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Trump’s ‘Big Tech’ Lawsuits Are Ludicrous –

No one should be surprised that former President Donald Trump, who according to a USA Today analysis had filed 4,095 lawsuits over three decades by the beginning of his presidency in 2016, has filed a series of “class action” lawsuits against Facebook, Twitter, and Google.

He accuses these firms of violating the First Amendment because they suspended his and other conservatives’ social-media accounts. Some politicians act on a set of principles and others go by whatever suits their interests at any given time. If you haven’t figured out which category Trump falls into, you haven’t been paying attention.

Trump’s interest is to stay in the limelight, and pounding the “liberal big tech firms are censoring you” drum helps keep the GOP base energized. It’s also a good way to keep the money flowing. Following his press conference announcing the suits, the former president reportedly sent out an email urging his followers to, “Please contribute IMMEDIATELY.”

Instead of focusing on Trump’s transparent motives, I’ll consider the substance of the challenge. But as the Monty Python comedians would note, the Trump team’s legal arguments are “wafer thin.”

Trump and his allies are smart enough to know that these legal actions have the same chance of success—ballpark zero—as his myriad lawsuits attempting to overturn the presidential election results. For starters, the former president contends that because of their market power and the special privileges these companies receive from government that they are de facto “state actors.”

By obliterating the distinction between private companies and the government, Trump can then do an end-run around the plain words of the U.S. Constitution and “force Big Tech to stop censoring the American people,” as Trump explained in a Wall Street Journal op-ed. When he writes force, he means government will do the forcing—by meddling in the private decisions made by private actors working in private companies.

Trump’s “living and breathing” view of the Constitution would allow the state to tell tech platforms what they may and may not publish. Market power does not make a private company the equivalent of a government agency. On a parallel note, Walmart is an enormous retailer, but we don’t want some Bureau of Retail Sales deciding what it sells and where it locates.

The major social-media platforms have immense market share, but they are not actual monopolies because there are no restrictions on competitors entering the market. Just because Facebook is ubiquitous doesn’t mean it will always be that way, as any MySpace aficionado will tell you.

Regarding those supposed special privileges, Trump and his allies argue that tech companies receive special protections from Section 230 of the Communications Decency Act, which exempts them from legal liability from the posts that individual commenters make.

That’s a privilege, I suppose, much in the same way that forming an LLC shields all corporations from liability—or the way the feds shield religious institutions from taxes and various regulations. On a practical note, eliminating Section 230 will only cause tech companies to become more meddlesome (or refuse to moderate at all and turn their platforms into a cesspool), but that’s an issue for another day.

“The fact that they benefit from a federal law does not transform someone into the federal government,” Vanderbilt law school professor Brian Fitzpatrick told The Washington Post. “All of us benefit from laws at some point or another and that does not transform us into the federal government.” That’s exactly right.

Trump’s other argument is, “Big Tech has been illegally deputized as the censorship arm of the U.S. government” because of lobbying efforts by federal agencies to push Facebook to remove posts they deem to be disinformation. That bothers me, but unless the feds use their coercive powers, that does not make Facebook an arm of the government.

Nevertheless, the lawsuits thrill many conservatives. One writer for The Federalist recently argued that, “(T)he market versus government dichotomy that undergirds Reaganite Republicanism is wholly incapable of answering the crises we face today.”

Sorry, but I’m not willing to obliterate the bright line between private companies and the government simply because of a former president’s hurt feelings. Fortunately, I suspect the courts aren’t going to do so, either.

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Families Have a New Reason to Flee Public Schools –

With the end of summer fast approaching, parents are making hard decisions about their children’s education: should they risk the pandemic-fueled chaos of forcibly pre-paid government schools, or should they try homeschooling, private schools, or something different? A recent federal court decision from California may nudge more kids out public-school doors as it affirms that private schools have much wider latitude than those run by the government to set their own policies, including responses to COVID-19. That’s an important degree of extra leeway when some officials seem eager to impose new restrictions and the CDC reverses itself to recommend that even vaccinated students should suffer through the day behind masks.

On July 23, a panel of judges from the Ninth Circuit Court of Appeals ruled on a challenge to Democratic California Gov. Gavin Newsom’s across-the-board closure of all schools, private as well as public, to in-class learning last year.

“We hold that the district court properly rejected the substantive due process claims of those Plaintiffs who challenge California’s decision to temporarily provide public education in an almost exclusively online format,” Judge Daniel P. Collins wrote for a panel of the Ninth Circuit Court of Appeals. “Both the Supreme Court and this court have repeatedly declined to recognize a federal constitutional right to have the State affirmatively provide an education in any particular manner, and Plaintiffs have not made a sufficient showing that we can or should recognize such a right in this case.”

Basically, the court says the state can force you to cough up taxes to fund its quasi-educational holding pens but, in return for that money, you’ll get what you get and too bad if you don’t like it. You have many more options, though, if you can swallow the cost of taxes and still pony up for other options.

“We reach a different conclusion, however, as to the State’s interference in the in-person provision of private education to the children of five of the Plaintiffs in this case. California’s forced closure of their private schools implicates a right that has long been considered fundamental under the applicable caselaw—the right of parents to control their children’s education and to choose their children’s educational forum.”

California has since rescinded the school closure order, but the court issued its decision anyway, citing the state’s history of “moving the goalposts” as evidence that it couldn’t be trusted to refrain from imposing strictures in the future. Renewed mask requirements in Los Angeles County on even the vaccinated and mutterings about reimposing restrictions show that the court’s concerns are justified.

So, the Ninth Circuit decision reaffirms the freedom of private alternatives to public schools to offer options that might be at odds with the preferences of public officials—or with the policies of other private institutions. Private schools, microschools, learning pods, and homeschoolers retain their ability to cater to different styles, needs, risk-tolerances, and philosophies, as they should in a diverse and at least nominally free society that respects individual choice.

That people appreciate such flexibility is reflected in the substantially greater happiness found among families that choose alternatives to default government-run district schools.

“Private School and Home School Parents are more strongly satisfied than District School Parents,” finds the latest monthly survey performed by Morning Consult for EdChoice. About 67 percent of private school parents report being “very satisfied” with their children’s experience, compared to 59 percent of homeschoolers, 59 percent of charter school parents, and 38 percent of district school parents (adding in those who are “somewhat satisfied” brings all learning categories into positive territory).

About 49 percent of private school parents say their children’s academic learning progressed “very well” during the last school year, compared to 46 percent of home school parents and 28 percent of district school parents. Private school parents and homeschoolers also substantially outstripped district school parents in their satisfaction with their children’s emotional and social development.

If given the option, and cost was not a factor, the survey found that only 41 percent of school parents would choose traditional public schools. About 37 percent would pick private schools, 9 percent would homeschool, and 7 percent would choose charters.

Large majorities of school parents, 70 percent and higher, told EdChoice that they support charter schools, school vouchers, and educational savings accounts that make it easier for them to select learning approaches instead of being stuck in government institutions. Other recent surveys find similar levels of support for education options, with Tommy Schultz, CEO of the American Federation for Children, saying of his organization’s polling that “public support for school choice is at an all-time high.”

None of this means that families fleeing public schools are all on the same page. Some are absolutely done with mask mandates and distance learning, others want even stricter rules for avoiding infection, and still others choose alternative education approaches for reasons that have nothing to do with pandemic responses. What they all have in common is a desire for learning environments that meet their needs and abide by their priorities—not those of government officials imposing one-size-fits-all mandates. Among those mandates might be renewed mask rules after the Centers for Disease Control and Prevention (CDC) did an about-face on its recommendations this week.

“CDC recommends that everyone in K through 12 schools wear a mask indoors, including teachers, staff, students and visitors, regardless of vaccination status,” Director Rochelle Walensky advised in a reversal of earlier guidance.

That’s not exactly welcome news to families that vaccinated their teen students in hope of a return to something resembling normal life and healthy human interaction. Many of them are willing to accept the slight risk COVID-19 poses to the vaccinated in order to offset the very real damage isolation has inflicted on children’s mental health. From April through October of 2020, emergency room visits in the United States for mental health reasons increased by 24 percent for kids 5- to 11-years-old, and by 31 percent for 12- to 17-year-olds as compared to the previous year, according to researchers.

Thanks to the Ninth Circuit Court panel, parents able to pick private education options for their kids will be a lot freer to make their own assessments of relative risks and choose learning environments that suit their preferences and not those of government officials.

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Trots and Bonnie –

Shary Flenniken began her career with a brief stint in underground comix in San Francisco before earning a coveted regular slot in National Lampoon, from the early ’70s to the early ’90s, for her comics about a pubescent girl named Bonnie, her talking dog, Trots, and their pals. It seems hard to believe these appeared in an over-the-counter national magazine (even one with a rep for edgy naughtiness). They portrayed with wildness, honesty, and humor this “dangerous time in a young woman’s life…with a complete lack of adult-world moralizing or editorial restraint,” writes cartoonist Emily Flake in her introduction to Trots and Bonnie, a new book collection of Flenniken’s old strips.

Flenniken gives heft to the comics through sharp ironic feminism. When Trots writes porn on walls with his urine, Bonnie asks, “How come girl dogs don’t write?” Trots replies, “They never wrote anything important, so God took their ability away.”

Flenniken also delivers in her elegant linework heartfelt and painful touches, as when Trots and Bonnie help a rape victim by walking her home dressed up like a football player, with Trots in spiked collar and fake fangs. “We should call a policeman,” they suggest. “He was a policeman,” comes the reply. Flenniken was proud to make Lampoon readers—mostly young men—confront the reality of rape in that context.

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Brickbat: Under Pressure

In England, the Greater Manchester police department said it is investigating after newly uncovered DNA evidence implicated another man in a rape for which Andrew Malkinson spent 17 years in prison. No physical evidence tied Malkinson to the crime, and a key witness in the trial now says she was pressured by police to testify against him and does not believe he committed the crime. The police have also acknowledged that two other witnesses against Malkinson had multiple criminal convictions, even though they told the court they had none. “It seems the more questions that are asked about this case, the more skeletons are coming out of the closet,” said Emily Bolton, an attorney with Appeal, which works to exonerate those who are wrongly convicted and is representing Malkinson.

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Dave Smith on Big Tech Censorship, Lockdowns, and Running for President –

“When it comes to the issues that the liberals are best on, we’re better than them on those issues,” says comedian and podcaster Dave Smith. “And when it comes to the issues that the conservatives are best on, we’re better than them at those issues. And so I just think that if [libertarianism] is presented the right way and articulated the right way, you can generate a lot of interest.”

Smith is a rising presence in Libertarian Party (L.P.) circles and he tells Reason that he’s considering running for the party’s presidential nomination in 2024. He says a major reason he expects to run is that even though the 2020 nominee, Jo Jorgensen, got the second-highest vote total in L.P. history, he thinks she didn’t push back hard enough on government lockdowns and overreach in its fight against COVID-19, which he sees as a missed opportunity to build a bigger libertarian movement.

A vocal opponent of wokeness and political correctness, Smith is quick to attack fellow libertarians whom he thinks are naive about how the state maintains its power. He’s said that he’d “take a red-pilled leftie over a blue-pilled libertarian any day.” After the Biden administration revealed it was pushing Facebook to restrict accounts it says are spreading misinformation about COVID-19, Smith tweeted, “This administration has exposed the useful idiots who call themselves libertarians. Saying ‘it’s a private company’ for the last few years, ignoring what is obviously the biggest threat to liberty. They unwittingly support the largest government in human history.”

When that take was discussed on a recent Reason Roundtable podcast, Smith tweeted that my fellow panelists and I had misrepresented his views. So I reached out to him so he could clarify his ideas about the intersection of big government and big tech, discuss the future of the L.P., why he has no plans to vaccinate himself or his young daughter, and why he believes libertarians should be more engaged in the culture war.

Narrated by Nick Gillespie; Edited by Ian Keyser and John Osterhoudt

Photo: Dave Smith photos by Brett Raney; Paul Hennessy/SOPA Images/Sipa/Newscom; Paul Hennessy / SOPA Images/Sipa/Newscom; Amanda Andrade-Rhoades/CNP/SplashNews/Newscom

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Adding Human Gene Boosts Crop Yields by 50 Percent –

Adding the human gene that produces the FTO enzyme to rice and potatoes boosts yields of those crops by 50 percent in field tests, report a team of researchers associated with the University of Chicago, Peking University, and Guizhou University. Their report in the journal Nature Biotechnology says the modified plants grew significantly larger, produced longer root systems, and were better able to tolerate drought stress. In humans, the FTO enzyme erases certain markers that regulate the production of proteins associated with cellular growth. In plants, the FTO enzyme similarly erases markers that inhibit their growth.

“The rice plants grew three times more rice under laboratory conditions,” reports the accompanying press release. “When [the researchers] tried it out in real field tests, the plants grew 50% more mass and yielded 50% more rice. They grew longer roots, photosynthesized more efficiently, and could better withstand stress from drought.”

The researchers also inserted the FTO gene into potatoes and the results were the same—yields in the field increased by 50 percent. Modified rice produced more grains per stalk; the number of potatoes didn’t increase, but their weights did. The researchers reported that neither rice nor potatoes showed significant changes in their starch, protein, total carbohydrate, or vitamin C content. They believe that the technique is universal and would boost the productivity and drought tolerance of not only most crops, but also trees, grasses, and more.

The researchers also think that this discovery will lead to finding out how to boost yields by modifying the plants’ own genes that inhibit growth.

“This is a very exciting technology and could potentially help address problems of poverty and food insecurity at a global scale—and could also potentially be useful in responding to climate change,” said University of Chicago Economics Nobelist Michael Kremer in the press release.

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Unlicensed Dog Grooming Alarms Local News Reporter –

Fox 5 D.C. news correspondent Sierra Fox seemed to think the public would be shocked to discover that businesses didn’t have to get state permission in order to groom pets and that viewers might be “concerned after hearing that.”

Anybody who is familiar with the fearmongering tactics of local TV news outlets may have assumed that her coverage would lead to a lot of public handwringing that everybody’s beloved French bulldogs and labradoodles were in grave danger. But when Fox tweeted a preview of her piece, she was instead inundated with responses from people who understand how our overreliance on government-mandated occupational licensing cuts off avenues of economic opportunity for low-income people without making us any safer:

Fox’s investigation was inspired by a story from earlier in the week of a family who took their dog, Stardust, to a local pet groomer to get her nails trimmed. Something went wrong and the dog died. How the dog died is unclear and it’s not certain that it was directly related to the grooming. A technician told the family that the dog had a seizure. The dog grooming shop, named Life of Riley, told Fox 5 that the dog died of heatstroke.

It’s a tragedy, for certain. However, it’s not yet clear that the groomer was responsible. Nevertheless, Fox decided to delve further and discovered that just anybody can call themselves a dog groomer without getting permission from the government. She spoke with a representative for People for the Ethical Treatment of Animals (PETA) who said they get weekly complaints of grooming abuse and accidents and encouraged concerned residents to contact lawmakers if they want to demand groomers get licensed.

But Fox’s attempts to actually draw outrage from pet owners seem to have fallen flat. She went to Happy Grooming in Arlington, Virginia, and found pet owners who gave the shop great reviews and said they never have problems, despite the lack of state licensing mandates. And the owner of the shop told Fox that she didn’t think licensing actually was necessary because it’s “just a piece of paper” and noted that many professional groomers have been working for decades without a license and without complaints.

This is not the first time an isolated case of a pet death or two has inspired fear-driven calls for occupational licensing. Shoshana Weissmann, a fellow with free market think tank R Street and an expert analyst on occupational licensing, wrote in 2018 about a New Jersey bill that would have introduced dog grooming regulations there. The inspiration was apparently several dogs being injured or dying after visiting with pet groomers at PetSmart stores.

Weissmann noted at the time that demanding dog grooming licenses wouldn’t actually resolve the problem because PetSmart could easily afford to pay for the training. But there would be completely unrelated consequences. The irony here is that occupational licensing would likely harm PetSmart’s smaller independent competitors:

[A]dding licensing requirements will prevent smaller groomers from practicing—including struggling small businesses, teens who have learned to groom to earn some extra money, and other individual groomers of poorer means who have been grooming pets for years but cannot afford the training.

She repeated her concerns today to Reason in response to Fox’s fearmongering.

“People babysit without a license,” she points out. “Licensing was not the issue with the grooming. If you harm the dog, either the dog had some sort of issue or you’re out to hurt dogs.” Grooming licenses wouldn’t fix either issue, “it will just put people out of business.”

Rather than relying on government licensing, Weissmann encouraged pet owners to engage in a bit of research and due diligence for the pet groomers near them. Ask friends and look for online reviews. Even without the government mandates, there are voluntary pet grooming certification programs for professionals, and pet owners can ask for proof of training.

Weismann says she loved seeing all the tweets back to Fox criticizing her piece, though Weismann wishes folks were a bit nicer to the reporter in their responses.

“I wish [Fox] had reached out more,” Weissmann says. “It was nice to see people on both the left and the right criticize it. It was nice to see people realize this is ridiculous.”

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What Does the Unpublished Evidence Cited by the CDC’s New Face Mask Guidance Actually Show? –

Two and a half months ago, when the Centers for Disease Control and Prevention (CDC) began telling people vaccinated against COVID-19 that they generally did not need to wear face masks in public places, CDC Director Rochelle Walensky said the new advice was based on two factors. First, vaccinated people were rarely infected by the coronavirus; second, such “breakthrough” infections typically involved relatively low viral loads, meaning that vaccinated carriers were less likely to transmit the virus.

When the CDC changed its advice again this week, telling vaccinated people to resume wearing masks if they live in “areas of substantial or high transmission,” Walensky alluded to evidence that casts doubt on the second point, at least as it relates to the especially contagious delta variant that now accounts for the vast majority of newly identified cases in the United States. But the CDC has not yet published that evidence, leaving unanswered questions about what it actually shows and its relevance to the role vaccinated people might be playing in the current case surge.

“Emerging evidence suggests that fully vaccinated persons who do become infected with the Delta variant are at risk for transmitting it to others,” the CDC says in a Morbidity and Mortality Weekly Report article published on Tuesday. The article cites “unpublished data” from the CDC COVID-19 Response Team. An unnamed “federal official knowledgeable about the research” told The Washington Post the results will be “published imminently.”

Walensky described the CDC’s reasoning in an interview with SiriusXM Doctor Radio on Tuesday. She noted that in May, the last time the CDC revised its mask advice, the alpha variant of the coronavirus accounted for most COVID-19 cases, while the delta variant was involved in “about 1 percent.” At that point, she said, “we had evidence both of the vaccine was working against alpha and preventing severe disease and death, but also that if you happen to be one of those very few breakthrough infections, there was very little evidence that you could actually give it to someone else.” Specifically, “the virus that would be circulating in your nasal pharynx was actually a very low level of virus.”

Today the delta variant accounts for about 83 percent of new U.S. cases. “We know and have known that the amount of virus in your nasal pharynx when you’re infected and unvaccinated with delta is much more than it was with alpha,” Walensky said. “Over the last several weeks,” she added, the CDC’s “outbreak investigations” in “many different places in the United States” have found that vaccinated people with breakthrough delta infections “have the same amount of virus as the unvaccinated people.” That evidence “is very much leading us to believe that it is probably the case that those vaccinated breakthrough infections, rare as they might be, have the potential to infect others.”

Walensky also alluded to data from other countries. “Studies from India with vaccines not authorized for use in the United States have noted relatively high viral loads and larger cluster sizes associated with infections with Delta, regardless of vaccination status,” the CDC’s new guidance says. It cites a preprint study of breakthrough infections in vaccinated Indian health care workers that found “higher respiratory viral loads compared to nondelta infections.” That study described the “respiratory viral loads” as “significant” but did not say they were comparable to those seen in unvaccinated carriers. The senior author of that study, microbiologist Ravindra Gupta, told the Post the ability of vaccinated people with breakthrough infections to transmit the virus has not been “formally measured in a rigorous way,” although he agreed with the CDC’s new mask advice.

“They’re making a claim that people with delta who are vaccinated and unvaccinated have similar levels of viral load, but nobody knows what that means,” Gregg Gonsalves, an associate professor at the Yale School of Public Health, told the Post. “It’s meaningless unless we see the data.”

One question is whether a high viral load in the nose is a good measure of infectivity. According to the Post, Emory University biostatistician Natalie Dean “remains unconvinced a high viral load in the nose truly means that vaccinated and unvaccinated people are equally as likely to spread the virus, although she acknowledged there is an ongoing debate about the issue.” Dean “thinks the amount of virus in the throat or lungs could be important and might differ between people who are vaccinated and those who are not.”

An Israeli study of 1,497 fully vaccinated health care workers, reported yesterday in The New England Journal of Medicine, identified 39 breakthrough infections, the vast majority of which were mild or asymptomatic. Three-quarters of those subjects “had a high viral load…at some point during their infection.” Yet “no secondary infections were documented.”

Anthony Fauci, the Biden administration’s top COVID-19 adviser, concedes that the practical significance of the CDC’s recent (and so far unseen) findings remains unclear. But he says “you can make a reasonable assumption that vaccinated people can transmit the virus just like unvaccinated people can.”

The CDC still describes breakthrough infections as “rare,” although it has stopped keeping track of cases with minimal or moderate symptoms, focusing instead on hospitalizations and deaths. As of July 19, it had counted 5,601 hospitalizations and 1,141 deaths involving vaccinated Americans. Those cases represent a tiny fraction of all COVID-19 hospital admissions and deaths: The U.S. at that point was seeing more than 3,500 hospitalizations per day and had recorded a total of more than 260,000 deaths since the beginning of this year. Vaccinated people, in other words, accounted for less than 0.5 percent of COVID-19 deaths during that period. Based on data from January through May 2021, the CDC found that less than 3 percent of hospitalizations involved patients who had been fully vaccinated.

What about infections that don’t result in hospitalization or death? “Multiple studies from the United States and other countries have demonstrated that a two-dose COVID-19 mRNA vaccination series [such as the Pfizer and Moderna vaccines] is highly effective against SARS-CoV-2 infection,” the CDC says, “including both symptomatic and asymptomatic infections,” caused by “ancestral and variant strains.” It adds that “early evidence for the Johnson & Johnson/Janssen vaccine also demonstrates effectiveness against COVID-19 in real-world conditions.”

In those studies, mRNA vaccines generally reduced the risk of infection by 86 percent to 99 percent, except for one outlier (a Danish study of people in long-term care facilities) that put the effectiveness of the Pfizer vaccine at 64 percent. A U.S. study of people who had received the Johnson & Johnson vaccine found a risk reduction of 77 percent.

What does that mean in terms of absolute risk? In one U.S. study of adults who had received the Pfizer or Moderna vaccines, the incidence of positive COVID-19 tests among fully vaccinated subjects was 0.048 per 1,000 person-days, compared to 0.43 per 1,000 person-days among the unvaccinated controls, yielding an effectiveness rate of 89 percent. In other words, unvaccinated people were nearly nine times as likely to be infected. A study of U.S. health care workers put the incidence of infection at 1.38 per 1,000 person-days when the subjects were unvaccinated, compared to 0.04 per 1,000 person-days when they were fully vaccinated, yielding an effectiveness rate of 97 percent. In other words, unvaccinated people were more than 30 times as likely to be infected.

The CDC notes emerging evidence that vaccines are less effective at preventing infection by the delta variant but are similarly effective at preventing delta cases serious enough to require hospitalization:

For the Delta variant, recent studies from England and Scotland have noted reduced effectiveness of the Pfizer-BioNTech vaccine against confirmed infection (79%) and symptomatic infection (88%), compared with Alpha (92% and 93%, respectively). During two recent rounds of a national population survey in England when Delta was the dominant stain, 2-dose vaccine effectiveness against PCR-confirmed infection was 72% and 73%, respectively. A study from Canada demonstrated 87% effectiveness against symptomatic illness ≥7 days after receipt of the Pfizer-BioNTech vaccine. Press releasesexternal icon from Israel have noted further decreased effectiveness of vaccines against infection and illness caused by Delta; these differences may in part reflect differences in study methodology, but more technical information is needed to allow full interpretation. Notably, in the United Kingdom, Canada, and Israel, vaccine effectiveness against hospitalization related to Delta was 93%–100% and comparable to that observed with Alpha.

In short, vaccines still provide excellent protection against hospitalization and death. And while the delta variant may reduce their protection against infection, that risk is still much lower among vaccinated people than it is among unvaccinated people. In the CDC’s view, that low risk, coupled with the unpublished evidence it has collected regarding viral loads in vaccinated people infected by the delta variant, is enough to justify its new face mask recommendation. The agency’s guidance strives to defend that position without seeming to denigrate the value of vaccination.

“COVID-19 vaccines currently authorized in the United States have been shown to be effective against SARS-CoV-2 infections, including asymptomatic and symptomatic infection, severe disease, and death,” the CDC says. “These findings, along with the early evidence for reduced viral load in vaccinated people who develop COVID-19, suggest that any associated transmission risk is likely to be substantially reduced in vaccinated people. While vaccine effectiveness against emerging SARS-CoV-2 variants remains under investigation, available evidence suggests that the COVID-19 vaccines presently authorized in the United States offer protection against known emerging variants, including the Delta variant, particularly against hospitalization and death.”

At the same time, the CDC says, “data suggest lower vaccine effectiveness against confirmed illness and symptomatic disease caused by the Beta, Gamma, and Delta variants compared with the ancestral strain and Alpha variant.” It notes that “the risks of SARS-CoV-2 infection in fully vaccinated people cannot be completely eliminated where community transmission of the virus is widespread.” Hence “vaccinated people can still become infected and spread the virus to others.”

These observations, which combine a low risk of infection with a mostly speculative risk of transmission, do not mean that the benefit of resuming general masking, or of requiring all K–12 students to wear masks this fall, outweigh the cost. That is especially true when you consider the message these highly risk-averse precautions send to people who are deciding whether to be vaccinated.

Florida Gov. Ron DeSantis, a Republican who never required face masks but urged residents to “consider” wearing them inside businesses, warns that telling vaccinated people to wear masks undermines attempts to boost the vaccination rate, which promise a much bigger public health payoff if they are successful. “I get a little bit frustrated when I see some of these jurisdictions saying, ‘Even if you’re healthy and vaccinated, you must wear a mask because we’re seeing increased cases,'” DeSantis said last week. “Understand what [message that] is sending to people who aren’t vaccinated: It’s telling them that the vaccines don’t work. I think that’s the worst message that you can send to people at this time.”

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Massachusetts Prison System Sued Over Unreliable Drug Tests That Put Inmates in Solitary –

A new class action lawsuit accuses the Massachusetts Department of Corrections (DOC) of using a notoriously unreliable field test to detect contraband drugs. The suit argues that this has put people in solitary confinement for offenses they didn’t commit and led to public defenders being falsely accused of sending drug-tainted mail to their clients.

The lawsuit, filed in state court by Justice Catalyst Law and the law firm BraunHagey & Borden, says that the DOC uses tests developed by the company Sirchie to detect synthetic cannabinoids even though those tests have an error rate so high that they’re akin to “witchcraft, phrenology or simply picking a number out of a hat.”

“We brought this lawsuit to protect disempowered people incarcerated by the DOC from the unconscionable decision to use these tests in the face of overwhelming evidence of their inaccuracy,” Ellen Leonida, a partner at BraunHagey & Borden, said in a press release. “We also intend to hold the drug companies liable for knowingly profiting from the misuse of these tests and the misery they are causing.”

As Reason reported earlier this year, problematic drug field test kits are manufactured by several different companies and are used by police departments and prison systems across the country. The test kits use instant color reactions to indicate the presence of certain compounds found in illegal drugs, but those same compounds are also found in dozens of known licit substances.

Over the years, hundreds of wrongful arrests have been based on these field tests. Last year in Georgia, a college football quarterback was arrested after bird poop on his car tested positive for cocaine. In prison systems, where officials are trying to stop a flood of contraband drugs such as the synthetic cannabinoids known as “K2” or “spice,” inmates can be placed in solitary confinement and be stripped of good behavior credits, visitations, and other privileges.

The manufacturers warn that the results of these tests need to be verified, and Massachusetts prisons at least send all field tests to outside labs for confirmation. This eventually captures false positives, but it still leaves inmates to suffer in the meantime.

WBUR reported last October that more than a dozen Massachusetts attorneys said they had been falsely accused of sending drugs to their incarcerated clients, who were then put in solitary confinement for receiving legitimate legal mail. (One way K2 is smuggled into prisons is by lacing paper with it, which has led prison systems to crack down on outside mail and donated books.)

Criminal defense attorney Lisa Newman-Polk, also a plaintiff in the lawsuit, told WBUR that one of her clients was moved to a restrictive housing unit, lost his prison job, and couldn’t begin an education program after privileged legal mail she sent him tested “positive” for K2. A crime lab later invalidated those results.

“The fact that my client was just scooped up, kicked out of a really important college program that’s important for his reentry—it’s important for his mental health—and thrown into restricted housing for something he did not do, based on such feeble evidence, is wrong,” Newman-Polk told WBUR.

After poking around, Newman-Polk found 16 other attorneys were accused of sending drug-laced mail to clients.

Those tests aren’t even supposed to be used with paper samples, because the dyes and other chemicals in mass-produced paper can lead to inaccurate results.

“It’s just not designed to work that way,” Heather Harris, an assistant professor of forensic science at Arcadia University, told Reason. “Right off the bat, when you have a piece of paper and you pull out your field test kit, you’ve made the wrong decision. That’s not going to give you a reliable result.”

The well-known unreliability of these tests have led at least one state prison system to stop using them. Last summer, the New York Department of Corrections and Community Services (DOCCS) suspended use of Sirchie’s tests.

The New York State Correctional Officers & Police Benevolent Association, a union of state correctional workers, told local news outlets that DOCCS had found there were false-positive results with the testing kits being used to identify contraband drugs. “Inmates who were penalized for contraband drugs have been released from special housing units and their records were expunged,” The Auburn Citizen reported last August.

Despite this, these types of test kits are still widely used. And in the federal Bureau of Prisons, inmates have no legal right to request outside verification of a positive result, leaving them with no recourse to fight a bogus result.

Reason found one case where a federal inmate was put in solitary confinement for a month after some herbs that he kept in a pouch tested positive for amphetamines. The man convinced prison officials to send the suspected drugs to a real crime lab for verification. But the Bureau of Prisons hid the results for two years until a federal judge ordered it to respond to his lawsuit. The lab had found no drugs.

The class action lawsuit in Massachusetts asks a judge to declare that the DOC’s use of Sirchie’s NARK II tests on legal mail, and its punishment of inmates based on the results, violates incarcerated people’s constitutional right to due process and their right to legal counsel.

The DOC declined to comment on the lawsuit, citing the pending litigation. Sirchie did not immediately respond to a request for comment.

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$250/Day Fine for Displaying “Fuck Biden” Sign at Home Dropped, Thanks to ACLU of N.J. –

Rebecca Panico ( reports:

Roselle Park voluntarily dismissed its case in Superior Court on Tuesday against a borough homeowner who hung anti-President Biden flags with the f-word on her fence.

The American Civil Liberties Union of New Jersey was representing the homeowner, Patricia Dilascio, and her daughter, Andrea Dick, in their appeal to Superior Court in Union County. A municipal court judge earlier this month ruled the homeowner had violated a local obscenity ordinance and ordered them to remove the signs with the f-word—or else pay a $250-a-day fine.

Glad to hear it; I copy below what I wrote about the case two weeks ago.

[* * *] (Rebecca Panico) reports (and includes the photo above):

Roselle Park Municipal Court Judge Gary Bundy ordered the Willow Avenue homeowner to remove the signs with profanity within a week or face a $250-a-day fine….

“This is not a case about politics. It is a case, pure and simple, about language,” Bundy said. “This ordinance does not restrict political speech. Neither this town or its laws may abridge or eliminate Ms. Dilascio’s freedom of speech. However, freedom of speech is not simply an absolute right. It is clear from state law and statutes that we cannot simply put up the umbrella of the First Amendment and say everything and anything is protected speech.” …

The ordinance prohibits displaying “any obscene material, communication or performance or other article or item which is obscene within the Borough.” It defines obscenity as material that depicts or describes sexual conduct or lacks any serious literary, artistic, political or scientific value.

But Cohen’s wearing his “Fuck the Draft” jacket was protected speech, and it’s hard for me to see how the signs here are anything but. To quote Justice Harlan’s opinion in Cohen,

First, the principle contended for by the State seems inherently boundless. How is one to distinguish this from any other offensive word? Surely the State has no right to cleanse public debate to the point where it is grammatically palatable to the most squeamish among us. Yet no readily ascertainable general principle exists for stopping short of that result were we to affirm the judgment below. For, while the particular four-letter word being litigated here is perhaps more distasteful than most others of its genre, it is nevertheless often true that one man’s vulgarity is another’s lyric. Indeed, we think it is largely because governmental officials cannot make principled distinctions in this area that the Constitution leaves matters of taste and style so largely to the individual.

Additionally, we cannot overlook the fact, because it is well illustrated by the episode involved here, that much linguistic expression serves a dual communicative function: it conveys not only ideas capable of relatively precise, detached explication, but otherwise inexpressible emotions as well. In fact, words are often chosen as much for their emotive as their cognitive force. We cannot sanction the view that the Constitution, while solicitous of the cognitive content of individual speech, has little or no regard for that emotive function which, practically speaking, may often be the more important element of the overall message sought to be communicated. Indeed, as Mr. Justice Frankfurter has said, “[o]ne of the prerogatives of American citizenship is the right to criticize public men and measures—and that means not only informed and responsible criticism but the freedom to speak foolishly and without moderation.”

Finally, and in the same vein, we cannot indulge the facile assumption that one can forbid particular words without also running a substantial risk of suppressing ideas in the process. Indeed, governments might soon seize upon the censorship of particular words as a convenient guise for banning the expression of unpopular views. We have been able, as noted above, to discern little social benefit that might result from running the risk of opening the door to such grave results.

It is, in sum, our judgment that, absent a more particularized and compelling reason for its actions, the State may not, consistently with the First and Fourteenth Amendments, make the simple public display here involved of this single four-letter expletive a criminal offense.

On top of that, if the news story is correct that the defendant was being prosecuted solely under the “obscenity” ordinance, that ordinance just doesn’t apply here: It defines “obscene” using the normal legal definition, rather than the lay definition that often covers vulgar words. Under that definition, the speech must basically be pornographic, appealing to the “prurient interest” in sex and depicting or describing sexual conduct; the word “fuck” here doesn’t qualify; to quote Cohen again,

Whatever else may be necessary to give rise to the States’ broader power to prohibit obscene expression, such expression must be, in some significant way, erotic. It cannot plausibly be maintained that this vulgar allusion to the Selective Service System [or, in this case, to President Biden -EV] would conjure up such psychic stimulation in anyone likely to be confronted with Cohen’s crudely defaced jacket.