When Government Is The False Advertiser, Cont’d
Mayor Bloomberg’s New York City health department has come in for repeated criticism in this space and elsewhere for crusading against salty and fattening foods through ad campaigns that manipulate viewer reactions in ways that border on the misleading and deceptive (“What can we get away with?” famously asked one official). They’re at it again. On January 9, Gotham’s for-your-own-good crew unveiled a new ad warning “Portions have grown. So has Type 2 diabetes, which can lead to amputations,” dramatically illustrated with a photo of an obese man with a stump where his leg had been. But as the New York Times reports, city officials “did not let on that the man shown — whose photo came from a company that supplies stock images to advertising firms and others — was not an amputee and may not have had diabetes.” Instead, they just Photoshopped his leg off, which certainly got the effect they were looking for, albeit at the cost of photographic reality. At an agency developing an ad campaign for a private company, someone might have advised adding a little fine print taking note that the picture was of a model and had been altered, lest the manipulation turn into the story itself, or even attract the interest of federal truth-in-advertising regulators. But the Bloomberg crew probably isn’t worried about the latter, given that their constant stream of hectic propaganda is fueled by generous grants from the federal government itself. Such grants also helped enable a contemplated booze crackdown exposed by the New York Post this month—quickly backed off from after a public outcry—that would have sought to reduce the number of establishments selling alcohol in New York City.
While on the topic of nannyism, the Times also reported this week that Penn State researchers found that the fad for banning so-called junk food in schools had no apparent effect: “No matter how the researchers looked at the data, they could find no correlation at all between obesity and attending a school where sweets and salty snacks were available.” Number of “food policy” types quoted in the article admitting “maybe we were wrong”: zero.
Obama and Military Tribunals
Yesterday, Obama’s attorney general, Eric Holder, held a press conference and announced that Khalid Shaik Mohammed (KSM) would be prosecuted for war crimes before a military tribunal. It’s probably fair to say, as some newspapers have noted, that the idea of bringing KSM to New York City to be tried in civilian court for the 9/11 atrocity was Holder’s “signature” decision since becoming attorney general–and that that idea is now dead. However, Obama and Holder conceded a place for tribunals more than a year ago and they could never really offer a good explanation as to why some persons would go to civilian court and why others would go before tribunals. Like Bush, Cheney, and Rumsfeld, Obama and his people would just sorta decide case-by-case.
Conservatives are chortling over Obama’s apparent embrace of Bush policies, such as keeping Guantanamo open and reviving trials before tribunals. Like the escalation of the war in Afghanistan, however, Obama has not stumbled on to the correct path. He has instead shown exceptionally poor judgment yet again. Two questions are now looming on the horizon. First, prosecutors are anxious to have a lengthy 9/11 trial, but what if KSM calls the tribunal a farce and decides to skip the trial, plead guilty, and then demands to be executed so he can become a martyr? The tribunal might grant the wish, but the legitimacy of the military system may be called into question again–especially in the Muslim world. Second, the Pentagon has made it pretty clear that anyone acquitted by a tribunal will remain a prisoner at Guantanamo (pdf). There may be a legal rationale for that, but, again, how is that going to be perceived by the world? As a start, one might consider how we would react if an American were acquitted by a court abroad, but was nonetheless returned to his prison cell to be detained indefinitely.
There is no need to go there. Obama should close Gitmo and transfer the prisoners to Bagram and hold them there, but with full transparency. The Bush policies of secret prisons, secret interrogation methods, and secret trials before special military courts were wrongheaded and remain so.
For additional background, go here.
The CPSC’s Defective New Complaints Database
We are told constantly that government can play a beneficial role in the marketplace by taking steps to make sure consumers are more fully informed about the risks of the goods and services they use. But what happens when the government itself helps spread health and safety information that is false or misleading? That question came up recently in the controversy over New York City’s misleading nutrition-scare ad campaign, and it now comes up again in a controversy over a new database of complaints about consumer products sponsored by the federal Consumer Product Safety Commission (CPSC).
As part of the Consumer Product Safety Improvement Act of 2008 (CPSIA), Congress mandated that the CPSC create a “publicly available consumer product safety information database” compiling consumer complaints about the safety of products. Last week, by a 3-2 majority, the commission voted to adopt regulations that have dismayed many in the business community by ensuring that the database will needlessly include a wide range of secondhand, false, unfounded or tactical reports. The Washington Times editorializes:
…[Under the regulations as adopted last week] anybody who wants to trash a product, for whatever reason, can do so. The commission can leave a complaint on the database indefinitely without investigating its merits “even if a manufacturer has already provided evidence the claim is inaccurate,” as noted by Carter Wood of the National Association of Manufacturers’ “Shopfloor” blog….
Trial lawyers pushing class-action suits could gin up hundreds of anonymous complaints, then point the jurors to those complaints at the “official” CPSC website as [support for] their theories that a product in question caused vast harm. “The agency does not appear to be concerned about fairness and does not care that unfounded complaints could damage the reputation of a company,” said [Commissioner Nancy] Nord.
Commissioners Nord and Anne Northup introduced an alternative proposal (PDF) aimed at making the contents of the database more reliable and accurate but were outvoted by the Democratic commission majority led by Chairman Inez Tenenbaum. Nord: “under the majority’s approach, the database will not differentiate between complaints entered by lawyers, competitors, labor unions and advocacy groups who may have their own reasons to ‘salt’ the database, from those of actual consumers with firsthand experience with a product.” Commissioner Northup has published posts criticizing the regulations for their definitions of who can submit a report, who counts as a consumer, and who counts as a public safety entity.
For those interested in reading further, Rick Woldenberg, a leading private critic of the law who blogs at AmendTheCPSIA.com, has critically commented on the politics of the proposal here, here, here, here, and here. More coverage: ShopFloor with followups here and here, New York Times, Sean Wajert/Mass Tort Defense. I’ve been blogging for the past two years at my website Overlawyered about the wider problems with the CPSIA law, including its effects on books published before 1985, thrift stores, natural wooden toys, ballpoint pens, bicycles, plush animals, Irish dance costumes, rocks used in science class and many more. Most of these problems remain unresolved thanks to the inflexible wording of the law as well as, sometimes, the unsympathetic attitude of the commission majority. I’ve heard that bringing overdue investigative oversight to the ongoing CPSIA disaster is shaping up as a priority for many incoming lawmakers on the (newly Republican-led) House Energy and Commerce Committee, whose outgoing chair, California Democrat Henry Waxman, is closely identified with the law and its consumer-group backers.
First Amendment Victory in Second Circuit
As the legal battle against Obamacare continues, we got good constitutional news today in another aspect of health care law. The Second Circuit Court of Appeals, based in New York City, ruled that statutes restricting commercial speech about prescription drug-related data gathering are unconstitutional. The court emphasized that the First Amendment protects “[e]ven dry information, devoid of advocacy, political relevance, or artistic expression.”
The case, IMS Health v. Sorrell, concerned a Vermont law that sought to constrain various aspects of prescriber-identifiable data gathering, dissemination, and use. The state argued that such information collection and exchange could induce doctors to alter their prescribing practices in ways that impose additional costs on the state’s budget. Most notably, the law outlawed the transfer of doctors’ prescription history to facilitate drug companies’ one-on-one marketing—a practice known as “detailing” —because the state believed detailing drives up brand-name drug sales and, in turn, health care costs. Thus, the Vermont law would have eliminated a key part of the market by hindering economic incentives to comprehensively gather the data. The state argued that the data sharing isn’t “traditional journalistic activity,” it’s not protected by the First Amendment.
Cato joined the Pacific Legal Foundation, the Progress & Freedom Foundation, and two trade associations to file an amicus brief in the case in support of the plaintiffs challenging the law. The Vermont Prescription Restraint Law (and the similar laws enacted in New Hampshire and Maine) imposed unprecedented censorship on a broad swath of socially important information. We are gratified that the Second Circuit upheld First Amendment protections here and congratulate the plaintiffs on their victory.
You can read Cato’s brief here and the Second Circuit’s decision here.
The Strategic Dimension of the Mosque Debate
There are many facets to the debate about the Muslim community center and mosque proposed for the site of a former Burlington Coat Factory near Ground Zero in southern Manhattan. My colleague David Boaz’s observation on the United States pluralist founding tradition was a delight. Important as they are, I’m put off by the domestic political ramifications (1, 2, 3, 4), if only because of the crassness and opportunism that inhabit all politics.
There is a strategic dimension to the story. This episode is signaling to audiences around the world the current relationship between the United States and Islam. These audiences might support or oppose the United States and act accordingly to undermine or support terrorist groups. For these people, knowledge of a Muslim community, active in New York and proximate to Ground Zero, would help put the lie to the “clash of civilizations” narrative sought by al-Qaeda and its franchises, undercutting their support.
The debate itself sends signals: If the United States were predominantly anti-Muslim, this debate wouldn’t be happening. If our political leaders had the power to decide matters of religious observance, this debate wouldn’t be happening. The debate is helping to show Muslim populations around the world—who might not know otherwise—that we think and debate about these things, that we are a functioning democratic republic, and that our country is undecided about the position of Muslims in the United States or, at worst, weakly anti-Muslim.
In the video clip after the jump, conservative icon Ted Olson expresses well, I think, how standing by our constitutional values is good counterterrorist signaling.
New York State Should Cut Property Taxes
The New York Times editorialists are at it again. June 12th’s lead editorial, “The Latest Work Dodge: A Shutdown,” frets over the specter of the New York state government being shut down because Albany’s legislators can’t agree on a budget. Well, the Times must have breathed a collective sigh of relief late Monday (June 14th). That’s when the State Senate passed Governor Paterson’s 11th temporary budget extender, which allowed state offices to hang out “open for business” signs on Tuesday.
But, the Times wants a final state budget and claims that more taxing and borrowing and maybe some cuts in school aid will do the trick. One item that the Times wants off the table in Albany is property taxes. According to the Times, Democratic state senators outside New York City should stop pushing for restrictions on the rate of growth of property taxes. I agree. Instead, the legislators should start pushing for sharp cuts in New York’s oppressive property taxes. When every U.S. county is ranked according to its average property-tax bill, as a percent of home values, 14 of the highest 15 are in New York state.
As Prof. Steve Walters and I concluded in “A Property Tax Cut Could Help Save Buffalo” (Wall Street Journal, December 6, 2008), New York should follow California and Massachusetts and cut property taxes. Voters capped property taxes in California at 1% of market value with Proposition 13 in 1978. That forced San Francisco to cut its rate by 57% overnight and brought forth a tidal wave of investment, even amidst a recession. By 1982, inflation-adjusted city revenues were two-thirds higher than they had been before Prop. 13. Massachusetts voters passed Prop 2 ½ in 1980, forcing Boston’s property tax rate down by an estimated 75% within two years. Massive reinvestment, repopulation and urban renewal followed.
Stopping and Searching
Police in New York City conducted 575,000 “stops” in 2009. The actual number could be higher–depending on the number of stops the police decided not to record on paper. The ‘stop and search’ is a legally dubious tactic that persists largely because white, middle-class people are mostly unaffected by it. It is bad enough when the officers are in uniform, but gets worse when the police are in plain clothes and approach people rapidly. The police “target” may have only seconds to determine whether he/she is facing a mugging or a police stop. More here.
The Improving State of New York City, circa 1800-2007
Two figures that say it all.
Death Rates (deaths per 1,000 population), New York City, c. 1800-2007. Source: NYC Department of Health & Mental Hygiene. Summary of Vital Statistics (2008). H/T to William Briggs for making me aware of this figure.
Infant Mortality Rate (deaths per 1,000 live births), New York City, 1898-2007. In 1898 IMR was estimated to be 140.9 Because of incomplete reporting of early neonatal deaths, this is almost certainly an underestimate. In 2007 IMR was 5.4 deaths per 1,000 live births. Source: NYC Department of Health & Mental Hygiene. Summary of Vital Statistics (2008)
Your Choices Are Unacceptable
Through my work on agriculture, I get occasional media calls on obesity and the agri-industrial complex supposedly behind it. On Sunday, for example, I gave an interview on NPR about the USDA’s push for — and subsidisation of — farmers markets and “eating locally” as the solution to poor nutrition. (This a recurrent theme of the Obama administration: Michelle Obama has made people’s food habits her business, growing a White House Garden and driving in a convoy of 36 vehicles to the H Street farmers’ market in a photo-op to promote it. The USDA even has a “People’s Garden“.)
So an article in today’s New York Times caught my eye. According to a recent study, the push for calorie postings in restaurants has had no affect on people’s eating habits in certain low-income areas of New York City. People’s choices are, apparently, pretty impermeable to the information that nutrition and public health advocates assured us was the key to better choices.
You would be forgiven for thinking that was the end of the matter and we could go on eating what we like unharassed. Think again:
“I think it does show us that labels are not enough,” Brian Elbel, an assistant professor at the New York University School of Medicine and the lead author of the study, said in an interview.
I hope I’m not coming across as hyperbolic, but I find it difficult to believe that healthy eating advocates will be content to accept that people are making choices, unpalatable though they may be to the ”slow food” movement, based on the benefits and costs of the alternatives available to them. If people won’t voluntarily submit to the food police — even when information is available — then I suspect calls for regulation will soon follow.
(HT: Radley Balko)
New York Mayor Opposes Closing Schools for Muslim Holidays
I have been trying for years to make people understand that a single system of government schools is fundamentally at odds with American values, especially individual liberty and equal treatment under the law. New York City Mayor Michael Bloomberg, in opposing a move to let city public schools close for Muslim holidays as they do for Christian and Jewish holidays, recently made my point in one, simple sentence:
One of the problems you have with a diverse city is that if you close the schools for every single holiday, there won’t be any school.
Exactly. So which religions, and which people, will get to be more equal than others, Mr. Mayor?
With universal school choice, we wouldn’t have to grapple with such terrible questions.
I Would Rather You Just Said “Thank You, Private Schools,” and Went on Your Way…
Some well-known bloggers are being terrible bullies, beating up on private schools.
Felix Salmon kicks things off by hoping the government tightens the definition of a “charitable” organization and begins taxing private schools who don’t “do a bit more to earn it.” Matt Yglesias agrees that private schools are mooching deadbeats and ups the ante, calling them actively harmful as well. Finally, Conor Clarke at The Atlantic agrees, but makes the other two look like panty-waists by proposing the government radically narrow what is considered a charity in the first place.
Yglesias even has the temerity to indict private schools for the failure of NYC public schools:
And as best one can tell, their main impact on the common weal is negative, drawing parents with resources and social capital out of the public school system and contributing to its neglect. You’d have to believe that New York City’s public schools would be both better funded and free of this kind of nonsense if a larger portion of the city’s elite were sending their kids to them.
Really? Would we have to believe what Yglesias says? No, it’s not “the best one can tell.” According to the evidence, Yglesias’ breezy, offhand accusation is demonstrably wrong. Increased competition from private schools actually improves public school performance.
And the more kids who leave public to go private, the more money the schools have for the kids who remain.
What ingrates. They complain about the lost tax revenue while dismissing out of hand the billions of dollars that parents and donors spend every year to educate children outside the government system. They dismiss the fact that these parents and donors are saving taxpayers in the neighborhood of $60 Billion a year based on current-dollar public school spending and the number of kids in private schools.
Finally, if this is all about rich people getting a free ride, why aren’t these guys screaming about means-testing public schools? Why shouldn’t we charge rich parents tuition to attend public schools? If a charitable deduction for private schools is so bad, why isn’t a free public education even worse?
New at Cato: Nat Hentoff on Hate Crimes
With the support of President Obama, so-called “hate crime” legislation is on the move in Congress. According to Cato senior fellow Nat Hentoff, laws that punish one time for the crime and another time for the hate violate the First Amendment, the 14th Amendment and protections against Double Jeopardy.
In April, Hentoff spoke at the Cato Policy Perspectives seminar in New York City about the current expansion of hate crime legislation.
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