Welcome to Cato Audio for December 2023. I'm Caleb Brown. In this month's offering, author Jeff Kossef weighs disinformation and courts as arbiters of truth. Law professor Asma Udine discusses secularism versus religious liberty in American education. Alex Adam talks about how his state of Idaho expanded prescribing authority for pharmacists. And I chat with Cato's David Kemp about the overrated powers of OPEC. First up, this month's Cato Roundtable. It has been a long line of Supreme Court cases since the Heller decision came down, wow, almost 15 years ago.
and to talk about the big case, the big Second Amendment case before the U.S. Supreme Court in this term. I'm speaking with Cody Wisniewski, Firearms Policy Coalition Action Foundation. He is their general counsel. And Clark Neely, Senior Vice President for Legal Affairs at the Cato Institute, and something of a Second Amendment litigator himself, having conceived of the challenge to Washington, D.C.'s effective ban on guns that ended in the Supreme Court's Heller decision. So let's start with this. We had the Heller case, Clark, that you know perhaps better than anyone.
That was a challenge to a law brought by someone who wanted to abide by the law, but felt that his rights had been violated by the law that existed in D.C. That's one way to get a case to the U.S. Supreme Court. But with Mr. Rahimi.
It's an entirely different way. Right. Well, when you have a potentially unconstitutional law with criminal penalties, there are basically two ways for that law to get to the Supreme Court. One is the way we did it in Heller, which is that you go out and you handpick a bunch of sympathetic, relatable, law-abiding, ideally law-abiding citizens, which is what we found in Heller. And you present that case to the courts in that posture. Essentially, you file a lawsuit saying, look, this law is unconstitutional. My clients don't want to be criminals. They don't want to violate the law. So they want a decision from the court as to whether the law is constitutional so that they can then go and exercise their constitutional rights.
The other way for a case to get to the Supreme Court, which is what we saw in Rahimi, is for the government to prosecute somebody for violating the law in question. And then that... case arrives at the Supreme Court in a much different posture, of course, because essentially you have somebody that has been selected by the government and who is accused of being a criminal. And I think in this case probably is a criminal. And that's a much less sympathetic posture, obviously. And, you know, there's a good reason why very effective public interest litigators from Thurgood Marshall and his colleagues at the NAACP in the civil rights era right on down to today with IJ and PLF and ACLU. They go out and they look for sympathetic plaintiffs who can assert constitutional claims in a way that is both sympathetic and relatable. And what would happen in the Rahimi case is the opposite of all of that. Cody, what
What is the issue here in the Rahimi case and how does it relate to the court's recent Bruin decision? So Rahimi involves a federal disarmament statute, 922G. And 922G lays out several prohibitions on individuals for possessing firearms and ammunition if they meet certain requirements established by statute. These are what people commonly would refer to as like the felon dispossession statute is 922G1. We've talked before, it doesn't actually just disarm felons, but the prohibition on drug users is 922G3. So this is where those are all laid out. Well, Rahimi was charged with violating a provision under 922G8.
which prohibits people from possessing arms or ammunition if they've been subject to a domestic restraining order. And G8 has some more lengthy language than some of the other subsections. And in it allows, does provide for some, the appearance of some process in entering that order. But then at the very end of G8, there's a split, a subsection. So there's G8, C1, and C2. And those allow for findings of, an actual finding of danger to another individual under C1, or no such finding under C2, just a potential for danger in the future. Now, Rahimi...
as part of a proceeding years ago, voluntarily signed a domestic restraining order against his girlfriend at the time. And that domestic restraining order in that proceeding meets the federal requirements. It was one of the issues before the court early on in the case, meets the federal requirements under G8. That means that as soon as Rahimi signs that order, he was automatically prohibited by the federal government from possessing arms and ammunition. And that prohibition is functionally for life because there is no way for Rahimi to go back to the federal government and have them re-review that prohibition.
Okay, you said the word that got my spidey senses tingling was, in fact, a finding. Clark, what does it mean that a government finds something? What does it mean when a court determines that something is the case? You know, it really depends, as we pointed out in our amicus brief that we filed, really depends on the stakes to some extent. So, for example, if you get a traffic ticket, the government can find that you were culpable of whatever infraction they alleged with essentially no process whatsoever or just sort of the merest nod to do process. And if you've ever tried to challenge a traffic ticket in court, you'll see what I mean. There's almost no process there, and it's pretty much a foregone conclusion. At the other end of the spectrum would be the way.
the procedure that the Constitution sets forth for resolving serious criminal charges. And of course, that culminates in a public jury trial, or at least it's supposed to. And that is essentially the most process that we have available in our system. We don't have anything more than an adversarial public jury trial with the presentation of evidence, the questioning of witnesses, and so forth and so on. And the process by which the government...
determines that Section 922 G8 has been triggered, and therefore it's now a federal crime for you to own guns or ammunition, is interesting because it depends on what takes place in a different tribunal. It depends what takes place in a family court. I'm sorry, a state court, often a state family court. And the amount of process that you get before a domestic restraining order issues against you can vary tremendously. And there was a great deal of discussion about this in the various amicus briefs in the Rahimi case. And essentially, it's all over the map. There are some jurisdictions that essentially hand out a domestic restraining order like a vending machine.
And there are others where you actually get the kind of process that I think most of us think about when we think of process, the opportunity to testify on your own behalf, to confront witnesses, perhaps access to counsel, et cetera. So what essentially is clear is that there is no real uniform standard in this setting. And it is clear that this federal law triggering your dispossession of firearms, that trigger can occur by virtue of a state court proceeding that features very little, if any, process. And therefore, as a result of that, we don't really know for sure whether you ever did anything dangerous or whether you represent an actual threat. to anybody. And that's pretty important. This is, I feel like the Supreme Court has handled cases that have this sort of element to them before, perhaps under the Armed Career Criminal Act. That is the feds, man, I'm not a constitutional lawyer. The feds had in some ways delegated to state courts determinations about what would qualify as like a three strikes situation. And I'm wondering.
Is it typical for the feds to delegate to state courts determinations about whether or not certain people retain constitutional rights? I mean, the feds aren't traditionally the most giving with their power. That's for sure. But there are in the firearms context, for some reason, you do see kind of this this shift where a lot of the subsections of 922 rely on what a state has to say about conduct and individuals and justice, which, you know, in a pure federalism system would actually be very intriguing. Right. An idea that the federal government is deferring to what the state establishes as being.
severe violations in its jurisdiction. The concerning thing you have here is that the result thereof is lifetime disarmament, right? And so this delegation, if you will, of the Fed's definition of what qualifies as something that would trigger a prohibition ends with the state being able to set any terms, essentially, for what qualifies as meeting the requirements under these 922 prohibitions. And that's really problematic with G in particular, because as we're talking about, so 922.8, C2. says that all that the order has to do is by its terms explicitly prohibit the use, attempted use, or threatened use of physical force against an intimate partner. Now, that's not a determination that there was violence used. One of the things that Clark has mentioned and was brought up a lot in the Rahimi case is that several of these orders, the vast majority of these orders, are entered into a matter of course in separation proceedings and divorce proceedings and alimony and child support. Even in this case, there's an indication that Rahimi entered into the order so that he could avoid paying attorney's fees.
And that by entering into this agreed upon order, he could avoid paying attorney's fees in that underlying separation agreement. And so there are a lot of other factors that come into play here. And this is a big delegation of authority that, you know, in other senses might look to be, you know, federalism in action. But in this sense, really, is the opportunity for people to be forgotten by the system and have themselves disarmed without any sort of actual real due process and real protection. Clark, you mentioned this earlier, but in terms of trying to determine whether or not a constitutional right may be abridged.
by a government, you know, you laid it out there. We have a standard for determining what that is. And this seems very clearly to fall far short of that, even if everyone seems to agree that Mr. Rahimi is not a good guy. Yeah. You know, part of the problem is we don't have a standard, or at least it's not sort of a concrete one that's set for all cases. Instead, what we have is a, you know, kind of a notional entitlement to some amount of procedural due process. In other words, an opportunity to be heard, perhaps an opportunity to present evidence, et cetera. And how much process you get.
again, does depend to some extent on what the stakes are. So if it's a traffic ticket, not much process. If it's a death penalty prosecution, lots of process. I think sort of the crux of the issue in the Rahimi case is how much process should somebody get before the government can disarm them? And one question that I really wish had been asked during the oral argument, because I think it would have really put this issue into such stark relief, is what if the consequences of a domestic violence restraining order being issued were not just that it triggers this federal statute that makes it illegal for you to then possess firearms, but you also lose the right to see your children?
Right. So anyone against whom a domestic violence restraining order is issued cannot be around their children. I strongly suspect that the amount of process that's built into this federal statute would be considered insufficient to trigger the loss of parental rights. And in fact, there is even some Supreme Court case law that we cited that requires, for example, a higher burden of proof, not just preponderance of the evidence, which is what is the standard in most domestic violence restraining situations, but clear and convincing evidence, which is a higher standard, obviously. And so only if we sort of.
make the unstated predetermination that dispossessing somebody of their firearms is really not a very big deal. And it's more like, you know, fining them 50 or 100 bucks for a traffic infraction than it is like incarcerating them or terminating their parental rights. Only then, I think, does it seem as if the amount of process that's sort of built into the federal 922 G8 law as kind of the floor, the baseline, this is how much you have to have. Only then, I think, does it seem like it would square with the Constitution. But if the stakes were bigger, and again, like the suspension of parental rights, I think virtually everybody on both sides of this case would look at that and say, oh, no.
Now, the lower court procedure, the state court procedure needs to be more rigorous before we take such a huge step as suspending somebody's ability to visit their children. But if you're just taking his guns, man, no big deal. Yeah. So in terms of what the government has to prove, you've mentioned clear and convincing evidence. Does that fall short of a conviction of a crime in court? Well, it's on a spectrum. And to be clear, the government does not need to. There's no proceeding involved in the 922G8 dispossession that requires clear and convincing evidence. In other words, that statute, the dispossession statute at issue in the Rihimi case is triggered.
by any state court proceeding where the defendant, let's call him the defendant, received notice of the hearing, had an opportunity to participate, and which the tribunal either found that there was some past incident of violence or stalking or threats or something like that, or, and this is the point that Cody was correctly emphasizing earlier, or simply restrains, orders the defendant not to do any of those things going forward. But that's an incredibly important distinction, right? Because it's one thing if a court finds that you did a bad thing, that you did a dangerous thing, that you're a real threat. So another thing, if the court says, look, I don't know whether you did anything or not, but I'm ordering you not to do anything going forward. And hopefully everybody can see what a huge distinction that is. So really, the federal law can be triggered with no showing of misconduct, no showing that the person actually did anything wrong or threatening or dangerous. And the solicitor general kind of tried to very effectively, I think, unfortunately, tried to sort of paper over this by saying, well, you know, there's this common law tradition that courts don't issue injunctions, which is to say in order to do or not to do something. Courts don't issue injunctions without a predicate set of facts that would support that injunction. And then also we have this thing called the procedural or the rule of procedural regularity. And also, oh, my God, look at the bear.
And the justices were clearly very willing to go along with this. Basically, I think it's not unfair to say fairytale version of the way state court family law proceedings work, which is with regularity and with due process and with full opportunity for both sides to present their cases. And again, as Cody emphasized, Texas and some other jurisdictions have a further disadvantage for defendants, which is that they have a one-way fee-shifting provision, which means if you go along and agree to the domestic violence order, which Rahimi did, then... you're safe or generally you're going to be safe from having to pay the other side's attorney's fees. But if you resist, if you exercise your right to an adversarial proceeding and try to defend yourself or argue, look, I never did any of those things, whatever, then you are exposing yourself to attorney's fees, which can be substantial. And I would say in many cases for many defendants, ruinous, particularly if you're involved in an ongoing divorce. And so there are all these disincentives to exercise whatever shreds of due process you have as a defendant or respondent in these proceedings. And then the cherry on top is...
There's no requirement in the federal law that we've been discussing that you be advised that one of the consequences to the issuance of domestic violence restraining order is that it will be a serious federal felony for you to possess firearms going forward. They don't even have to let you know that before you decide whether to exercise your supposed right to challenge the domestic violence restraining order. I just don't see how anybody can look at that and say, yep, that looks like new process to me. If I could build on that, you know, two things can be true at once. Rahimi could be a bad person, a dangerous person that should be, can be disarmed.
and 922 g8 can be unconstitutional right and those two things can be true and i think that's where when clark's talking about You know, the defendant goes up to the Supreme Court as the defendant is. The other element there, too, right, is as a criminal defense attorney, you are limited and there are more stringent regulations on how you can argue a case than a civil plaintiff attorney, like in the Heller case, right? You are way more in control of your argument as the plaintiff in the case, in a civil case where there isn't criminal penalty, because all you're alleging in those cases is that my client would like to engage in this conduct, but for this criminal law. And if they did engage in that conduct, they justifiably fear that they'll be prosecuted under that law.
is being prosecuted. And so it's a way more stringent process on the attorney. The facts are the facts as they've come to you. And so it drastically limits what you can do. But I think it's really important to understand. The underlying point here is this case was, in fact, chosen by the federal government. I think when Clark said that, it's a really apt word. Rahimi is subject to several other prosecutions in the state of Texas, which for some reason are dragging themselves along in the process and for some reason are not moving forward. Now, if he was convicted of any of those crimes that were pending in the state of Texas, he would be disarmed under other statutory provisions under G8, which might not have the same constitutional defects.
You know, Rahimi has been accused of, I think at one point he went into a Burger King and his friend's credit card was declined. And as a result, Rahimi drew out a gun and fired three shots into the air. Like, it's not like he's a well-adjusted individual in society. he can be a bad person and G8 cannot provide constitutional protections. And we should, what we're talking about is kind of the latter and what Clark's hinting to and what he's explicitly saying is, you know, an argument. The solicitor general did a good job of trying to point to the former as much as she could and trying to bury the lead. Yeah, I mean, look, let me tell you as a public interest litigator what this case, the mirror image of this case looks like. The mirror image of this case would be a civil proceeding where somebody has gone out and found some very sympathetic plaintiffs. And I'll give you an example of a very sympathetic plaintiff. There was at least one and maybe more amicus breeze that noted that in some cases,
It is actually the abuser that goes and gets a domestic violence restraining order in a cynical ploy to manipulate the legal system in order to dispossess their victim and make that person easier to victimize and abuse. Now, our friends on the other side of this issue wave their hands and say, oh, that's never happened. Never in the history of the world has that ever happened. Well, guess what? It does happen. And there are people out there to whom it has happened. And if, let's say, public interest litigators went out and found one or more of those people, and now you've got a very sympathetic, she's probably going to be a woman.
She's got a history of being beaten up by a particular guy, and she can come into court and credibly say, you know, in the midst of everything, as the divorce was reaching its lowest point, right, or a breakup or whatever, on top of everything else, this guy went to court and got a domestic violence restraining order to take away from me the one way for me to defend myself. Imagine that case gets to the Supreme Court and imagine how different the conversation is now. And the idea that the outcome of these cases should depend entirely on how sympathetic or unsympathetic a particular litigant is, I think it's problematic. It's not to say that you can't hedge the results. Of course you can. And good public interest lawyers seek to do that. But the idea that the constitutionality of a federal law, in this case, 922 G8, would turn entirely on the happenstance.
of who managed to get the case to the Supreme Court first and how sympathetic they appear to be, I think exposes a fundamental fallacy about the Rahimi case, right? Which is that, oh, you know what? It's an easy case because this guy looks like a thug. If that is so, then every death penalty case should be easy, right? And every case involving any plausibly alleged criminal should be easy, including the Miranda decision, right? Which is the one where they say you had a right to be advised of your right to remain silent. And look, Miranda was almost certainly a criminal and a really bad one. But the Supreme Court managed to look at the principle of that case instead of the defendant. And I suspect that it will be exactly the opposite of the Rahimi case. They'll look at the defendant rather than the principle. With that prediction, there are other...
issues that are related to this with respect to the degree to which individuals, citizens may possess firearms in the United States of America. Those have to do with people who are out of prison, but have been convicted of felonies. And people who make use of certain chemicals in states where those chemicals are legal for adults to use. I note that earlier this month, as we're recording this in November, Ohio legalized cannabis on its ballot for adult use, putting more than half of the U.S. population in a jurisdiction where cannabis is legal for some purposes. How much would cases, future cases like dealing with those issues, hinge at all on?
what the court says in Rahimi. And I think they're going to hinge massively, right? So the hope would be that the court can look past Zaki Rahimi and can look past the underlying factual scenario, potentially, and issue an opinion that decides the principle of the point. You know, Miranda is the perfect example of that, right? Look past and decide the underlying principle and the underlying constitutional challenge because there are several other cases, right? So like Clark is saying, it's not just an individual under G8 that's potentially being disarmed.
to wield the system against them. But there's all these other subsections of G too. So one of the polar opposites of the Rahimi case is the Range case that's pending before the Supreme Court right now, which Justice Barrett actually asked the SG about. And so in the Range case, he's disarmed under 922 G1, which prohibits anybody from possessing a firearm or ammunition, if they've been convicted of a crime that is punishable by more than one year's imprisonment. So it's not a felony. It's any crime. And you don't actually have to serve more than one year in prison. The crime just has to bear a potential complete sentence of that. So you could never set foot in a jail or in a prison in your entire life. And you could still be disarmed under the statute. And so for range.
Range lied on, he pled guilty, pleaded guilty to making a false statement about his income in order to obtain about $2,500 in food stamp assistance. And the income that he lied about was that he was mowing lawns on the side. And so he went out and tried to make some additional money to support his family, didn't disclose that money to the government, and thus would have, because he would have broken the income limit in order to get all of that food stamp income. Range is disarmed for life under 922 G1. He never did anything violent, never did anything dangerous. You know, his crime probably totaled an amount of, you know, several thousand dollars, maybe that, you know, the state didn't view he was entitled to that he got. But those are the sorts of people that are also impacted or can be potentially impacted by what the Supreme Court decides in Rahimi when it decides this, this subsection G issue. And there are, you know, there's the USB Daniels case.
Caleb, that I think we talked about previously, right? And so that's an individual who was disarmed because he was using marijuana while in possession of a firearm. And so he was deemed to be a prohibited person under 922 G3 as the user of an unlawful user or addicted to any controlled substance under the Federally Defined Controlled Substances Act. Now, you should be able to look at these things and differentiate them from Mahimi. But the concern is, will the court do that enough so that people like Daniels and people like Range have the ability to ensure that they can possess arms?
does Rahimi go so far as to impact their ability to do so? You know, to a certain extent, I think that the court has painted itself into a corner with this new framework that it decided to apply going forward in the Bruin case. And instead of using what we constitutional lawyers call tiered scrutiny, where essentially you decide kind of how important the right is. And then based on that, you decide how strong a showing the government has to make to kind of overcome the exercise of that right. They're using something now for Second Amendment cases that they refer to as text history and tradition or historical tradition. Essentially, what you do is you look back in time, you try to see if there's a sufficiently analogous regulatory regime. If there is, then the current law.
is constitutional. If there's not, then it's unconstitutional. A lot of us are quite skeptical how well this is going to work. And I think one of the cases in particular that Cody just described is going to show why it's the Daniels case involving this portion of Section 922G that makes it illegal for unlawful users of controlled substances to possess a gun. Well, guess what? There were no controlled substances at the time of the founding, and they consumed a lot of cannabis back then. And so the government is going to essentially have to try to uphold this provision. The government's going to have to come into court and essentially say, well, here's the thing. Back in the founding era, you had to be both responsible and law-abiding.
in order to own a gun. That's their new mantra, by the way, responsible and law abiding. And even if it was okay to consume cannabis and own a gun back at the founding, that's not really the relevant question. The relevant question is, do we consider somebody who consumes or possesses illegal drugs today to be responsible and law abiding? And of course, the answer is no. Well, you don't have to be a genius to see the circularity in that argument, right? You just pass a law that says people can't do a particular thing. And then when they do that thing, you say, oh, you're neither responsible nor law abiding. So we get to suspend your Second Amendment rights.
I think that's where the real clash in these future cases is going to be. In essence, the Solicitor General will keep coming back into the Supreme Court kind of clothed in this mantra of responsible and law-abiding, responsible and law-abiding. And then anybody who doesn't fit within a very precise definition of responsible and law-abiding, they'll just say, oh, well, they don't get to have a Second Amendment right. Unfortunately, I think that the Bruin majority, based on what we saw in the Rahimi argument, is going to give them, the federal government, considerable leeway to invoke this. responsible and law-abiding mantra, in part because I think this historical tradition approach has got a lot of problems that were probably not sufficiently evident to the majority in the Bruin case, but man, they're going to come out of the woodwork now, and we're going to see them in cases involving things like felon dispossession, which was not a thing at the founding time of this country. We're going to see a thing about, this is going to come up in questions involving sensitive places, which is a term that we saw in the Heller case, which basically means places where the government can tell you you can't bring a gun. Well, clearly there are some sensitive places, like an airplane. But again, that really wasn't a thing at the founding.
And so anyway, long story short, I think it's going to be a mess. And I think that the federal government has sort of settled on its strategy for getting the federal regulatory camel's nose as far under the Second Amendment 10 as possible. And it's going to be the mantra of responsible and law abiding. And that's going to do an enormous amount of damage, I think, to Second Amendment rights and Second Amendment jurisprudence. But stay tuned. And we're going to leave it there. Clark Neely, Senior Vice President for Legal Affairs at the Cato Institute and Cody Wisniewski, Firearms Policy Coalition Action Foundation. He is their general counsel. You can, of course, read our continuous coverage of rights.
both so-called fundamental and so-called non-fundamental, at our website, cato.org. When commentators and politicians discuss misinformation, they often repeat five words, fire in a crowded theater. It's an outdated analogy, but it's come to serve as a catch-all justification for the regulation of false speech. And while false speech does present the potential for real harm, courts are uniquely unsuited to serve as arbiters of truth. That from Jeff Koseff in his new book, Liar in a Crowded Theater. He spoke at the Cato Institute in November.
In terms of why I wrote this book, it actually originated from my previous books, and in particular, my book about Section 230, which I guess was published five years ago, it feels like a few lifetimes ago, back when it was really hard to get an academic press to think that Section 230 had enough of a market that anyone knew what it was, because at the time it was more of an obscure tech policy issue and not something that you would hear on the presidential campaign trail. But things have changed quite a bit, and you had proposals since, within those five years, you've had dozens of proposals. to change Section 230. And some of them came from the right, which was to sort of condition platforms 230 protections on the ability of users to post unmoderated content. That wasn't really as much as where this originated from as from the criticism from the left, which was primarily looking at how do we amend Section 230 to stop speech that we don't like. Speech-like misinformation, sometimes hate speech, and a lot of them were really legitimate concerns.
What I kept hearing time and again most frequently was misinformation. And this was a very valid concern. This is post-2016, post-2020, real concerns about the harms of misinformation. And what I kept hearing was, well, if we didn't have Section 230, then the platforms would be held accountable for misinformation. And to a certain extent, that could be true if there were a narrow category of misinformation like defamation. Because, I mean, Section 230 does shield platforms from defamation claims based on user content. But what it doesn't do is shield...
platforms for misinformation claims in general, because there's no such thing. And what I would point out time and again is that most of what we consider to be misinformation is constitutionally protected. And I would get a lot of responses, not particularly enthusiastic ones, but some of what I got was, well, why is it protected? And that's really what got me looking at writing this book, is why does the First Amendment... protect misinformation. And so that got me going down a lot of different rabbit holes about all the possible cases involving falsehoods, possible falsehoods, things we thought were false at one point that ended up being true at another point. And I wanted to really do two things. I wanted to look at what is the extent of legal protections for false speech, which is primarily the First Amendment in the United States, but also includes a number of common law doctrines, things like substantial truth, as well as some statutes like fair report privileges that are sometimes codified in statute, anti-slap laws. All of them allow
to some extent, legal protection, both civil and criminal protection, for things that are alleged to be falsehoods. And I wanted to look at, rather than just sort of look at the doctrine, I wanted to look at the reasoning. So why do the courts protect false speech? And there's obviously the marketplace of ideas framework is the most prominent, but we have other reasons as well, such as, you know, that there's always going to be some uncertainty as to what's true or false at any particular time. You think about what we knew in the earliest days of the COVID pandemic and what the government guidance was. And we were all washing our hands for five minutes at a time because the guidance was that COVID was not airborne.
In the United States, at least, we were able to still have those discussions. And as the scientific consensus changed, so did the sentiment. But we were able to discuss those opposing views. You also think about the lab leak theory and how that was considered pretty fringe at one point. And now it's at least more of a standard portion of the debate about the origins of COVID. So there are other reasons as well. There's a lot of stuff that's classified as misinformation, which actually can be very harmful, but it's not provably true or false. It's really bad opinions. But the courts over the years have said people...
have the breathing space to say those opinions um we also hold people responsible for how they receive speech so you know are you just going to believe misinformation are you going to believe falsehoods and if you do you might have to face some consequences and then finally in many cases, regulating false speech, even if it is provably false and damaging, in many cases, you're not going to even address all of the harms that you're seeking to address for misinformation. And the courts have recognized there's limits to the efficacy of misinformation. So I wanted to really kind of go through the different threads of cases to look at why we have those protections and apply that to current debates, and then also look at what are possible solutions that go beyond regulation. And I want to be clear, I don't make the argument that the First Amendment is absolute. I think probably if I did...
Hugo Black would probably be the only one who's ever agreed with me and he's dead. So I think I'm pretty safe that that's not going to, I mean, we have room for regulation. You can't lie in court. You can't lie to a federal agent. Companies face restrictions on their advertisements for their products. And all of that, I mean, the point of that is that it's narrowly defined. And the court has taken great efforts to make sure that there's clear guidance and that there's not just this general balancing test where we'll regulate everything that we think is harmful. The Supreme Court has said we don't do that. And that's unlike many other jurisdictions.
I wanted to look at that and then say, well, what are some areas in addition to regulation that we could be looking at? And the bottom line, I've tried to be really transparent in the book. None of them are perfect. None of them are close to perfect. But I don't think even with the most regulation possible, you're going to be able to address all of these problems. But I look at things that might help chip away and help make us a bit more resilient.
misinformation so things like making sure people are more literate uh in terms of for media literacy so they can better evaluate the torrent of information they're seeing on social media improving civics education having better access to counter speech giving platforms the leeway to moderate free of government pressure but i mean we have a case going to the supreme court right now where depending on how it turns out platforms might actually have less of an ability to independently determine what content that they carry. And I think that would be very dangerous. So again, I don't think that, and then finally, I would say that the government building trust with the public, I think that is very important. And I think when you erode trust, then misinformation can take hold more easily. And I think there are some examples where the US government and other governments have actually built trust quite effectively. But unfortunately, there are many examples where just basic messaging and transparency and honesty would have gone a long way.
in having the public better accept what the government is saying rather than just reflexively believing nonsense that they see on the internet. So that's kind of the motivation for the book. And for the title, I'll say Catherine actually had the better title. If Catherine's book hadn't come out, I probably would have titled it that because I think it really is a right to lie. And I think there's a lot of value in saying, what is the right to lie? My title actually originated halfway through my research because as I was researching all of these cases where court said to the government or to a plaintiff, hey,
You can't hold someone liable for that. We don't do that. I like looking at the briefs and the transcripts of the court hearings. In almost every single case, there was a lawyer saying, defending their proposed censorship by saying, you can't yell fire in a crowded theater, so therefore you also can't say this. And usually you could say this. So as I was writing it, I just thought, well, if I can't have a right to lie, I will, I think, tying it to the fire in a crowded theater, I've got to do that because...
That is such a dangerous phrase, and politicians, lawyers, the media use it whenever they want to justify regulation of speech. Jeff Koseff is author of Liar in a Crowded Theater. In France, students in public schools are prohibited from wearing religious clothing, which authorities fear would contaminate the secular oasis public schools are supposed to be. It's a coercive interpretation of secularism. So to what extent is the United States education system becoming more like the French system? To what extent is secularism swallowing religious freedom? Asma Udine is a visiting assistant professor of law at the Catholic University. She spoke at the Cato Institute in November.
So last year, Maryland's Montgomery County Public Schools, which I'll be referring to as MCPS, and it's one of the largest school districts in the country, and the school district instituted an LGBTQ curriculum. And not only did it institute this curriculum, but it also prohibited parental opt-out. I mean, actually initially allowed it, and then very quickly said, never mind, no one's allowed to opt out their children from this, and furthermore, we're not going to give any notification to parents on the days that these books and the larger curriculum is being taught in case a parent who descends wants to keep their child at home. So we'll come back to that in a little bit. So what are some of these books? And again, the curriculum that I'm talking about is specific to elementary schools. It starts in pre-K all the way up through fifth grade. And so the book that's assigned for pre-K, which again is three-year-olds, teaches them vocabularies such as cisgender and pansexual. And it's a book called Pride Puppy, where there's like a pride parade, and the students, these young children, are asked to match words with pictures. And the words include things like drag queen, drag king, leather underwear.
The fourth grade curriculum uses the book Love Violet, which instructs teachers to explore their students' romantic attractions. So the book is about the same-sex attraction between two very young girls on a playground. And in the context of talking about this particular romance, the teacher is to invite students to, quote, acknowledge how uncomfortable we might be when we feel our heart beating thumpity-thump and how hard it can be to talk about our feelings with someone that we don't just like what we like like. So keep in mind, this is the teacher talking to fourth grade students about... Romantic, you know, interest that, I mean, I'm not sure I have three kids, a current sixth grader who not too long ago was a fourth grader. I'm not sure the fourth graders actually experienced romantic attractions, but in any case, the teacher is not only exploring it, not only sort of insisting that it does happen, but also exploring it with her students. The book Intersection Allies advocates that to be quote-unquote safe, bathrooms should be gender neutral. And it also defines terms such as sex, gender, transgender, and non-binary, and asks the students, the elementary age students, to tell them what pronouns fit you best.
Fifth graders are to read a book about a young girl who believes that she's transgender and is encouraged on this path by parents who don't ask any questions and instead embrace a child-knows-best approach. So the book is called Born Ready, and it's based on the true story of a girl named Penelope who explains to her mother that I don't feel like a boy. I am a boy. The mother agrees to tell their family, quote, what we know, you are a boy. And the father also agrees that Penelope is a boy as long as Penelope says that he is a boy.
In addition to the sort of child knows best approach, it's also complimented again by the sort of school knows best approach. So when Penelope tells the principal, I think like a boy, I feel like a boy, I'm sure I'm a boy, the teacher in the book says, today you're my teacher. The resource guide for this book encourages the Montgomery County teacher to sort of encourage students to notice how happy Penelope is when his mom commits to sharing with their loved one that he is a boy, and to question why gender is such a big deal in the United States. So in essence, then, the curriculum prioritizes a teacher's role in these very intimate aspects of their young children's lives and deprioritizes parents. And if parents are not fully affirming of the child's self-diagnosis, the curriculum directly makes the parents the object of opposition. Consider also some of the other things that the resource guides, and it's not just the books. You have to really understand the resource guides and what they're instructing the teacher to do. So if a student questions the story's narrative with comments like, he can't be a boy if he was born a girl, or what body parts do they have, the school board's guidance encourages teachers to respond like this.
When we are born, people make a guess about our gender and label us either a boy or a girl based on our body parts. Sometimes they're right and sometimes they're wrong. Our body parts do not decide our gender. Our gender comes from inside. We might feel different than what people tell us we are. We know ourselves best. More broadly, in speaking to the question that Mustafa posed for me in the topic of today's event, of this idea of enforced secularism in public schools, in adopting the curriculum, the school boards said that it is seeking to, quote, disrupt heteronormativity and either-or thinking on gender and sexuality beginning at age four.
Employees responsible for selecting the books were told to look through an LGBTQ plus lens and ask whether stereotypes, cis-normativity, and power hierarchies are reinforced or disrupted. The board requires teachers to emphasize ideological viewpoints, for example, that, quote, Harry Styles wears dresses, that not everyone is a boy or a girl, and that some people identify with both, sometimes one more than the other, and sometimes neither. So students shouldn't guess, but instead solicit pronouns. And it instructs the teachers to frame disagreement with these ideas as hurtful, and to disrupt, again, the either-or thinking. And the board acknowledges that any child may come away from the instruction with a new perspective that, quote, is not easily contravened by their parents.
Now, as you can imagine, the parents in Montgomery County are very concerned about this. And again, their concern is on this question, not of the actual curriculum, but the fact that they're not notified about it when it's being taught, and they don't have the option of opting out their students from participating, or their children from participating. And we can imagine why they're concerned about this, right? go directly against many traditional religious views about gender and sexuality, but it's also defining the appropriate role of parents in their children's lives. The no-questions-asked approach to children who express interest in transitioning is deeply troubling to many parents, including religious parents, this sort of excessive focus on romance, and the centering of the school teacher as a person of authority directing students' perspectives on these issues.
So there's a lawsuit. And the lawsuit was filed on May 24th, just up to 2023. And the accommodation is, again, we're not trying to ban any books. We're not trying to remove the curriculum from the school. All we're asking is that you give us the opt-out option. Just give us notice. Give us an opt-out. That's all the religious parents are asking for.
And there's multiple claims in the lawsuit. There's a free speech claim. There's a substantive due process claim. But today, I just want to focus on the free exercise claims, the religious liberty claims. And the first claim is that this interferes with the parental right to direct the religious upbringing of their children. It's a right that we have long recognized in this country, that the parents ultimately are the main figures who get to decide how their children are going to understand their religion, their religious beliefs about.
a wide variety of issues, including gender and sexuality. And there's a longstanding sort of understanding of that because there, in the family life and human sexuality instruction, there is an opt-out. There's always been an opt-out. There's a recognition that there's something about this area of education that parents should be more directly in control of. In this country, the free exercise is governed by, in the absence of particular statutes, is governed by what's called the Smith Standard. It's a standard that was laid out in a case called Employment Division v. Smith, which essentially says that unless you can show that a law is not generally applicable, that is, it doesn't apply to everyone the same way, or unless you can show that there was some sort of hostility at play when this law was enacted, then you're going to get mere rational basis review. That is, you're basically the religious believer is not going to succeed in his claim. But however, if you can show that it's not generally applicable and that there was hostility, then you get this heightened standard, which is called strict scrutiny. And under strict scrutiny, typically, a religious claimant will win.
In this lawsuit, the parents argue that this policy is neither generally applicable nor is it neutral. They explain, for example, that there are a number of exceptions. There's an exception to the human sexuality component. There was even initially an opt-out provision provided with regard to this curriculum. And the fact that there's exceptions negates this idea that it's generally applicable.
Not only that, but it was also not neutral. Not only in the course of developing this curriculum, not only explicitly in the curriculum, when it says that when students express dissent, they're to be told that they're being hateful or hurtful, but also in the protests that have come, the aftermath of the institution of this curriculum and the rescission of that opt-out, there's been a number of testimonies in front of the Board of Education. And time and again, the board has labeled religious students and parents as hateful, as engaging in a dehumanizing form of erasure. When a religious student spoke about her concerns, she was referred to as brainwashed. so this sort of like this language shows time and again that there's a hostility to religion and so it's not neutral and similarly there are no notice no disclaimers particularly for this even though the school does it for all kinds of other things such as if you have a guest speaker and so altogether this the lawsuit argues that strict scrutiny is a relevant legal standard here and under strict scrutiny again typically a religious claimant wins And on June 12, the law firm that brought this lawsuit filed a motion for a preliminary injunction. A preliminary injunction is something like a temporary restraining order. While the trial is going on, while we sort of engage in this long process of coming to a conclusion of whether or not this violates the parents' religious rights, can we just, in the meantime, just restore the opt-out so they cannot be injured in this way? And on August 24, the district court ruled against the parents, denied the motion for a preliminary injunction, and said they didn't even get to the question of whether or not the law is generally applicable or not neutral, but said that there is actually no burden, no burden placed by this policy on religious parents.
Quote, mere exposure in public school to ideas that contradict religious beliefs does not burden the religious exercise of students or parents. The parents and their children are not being directly or indirectly coerced into activity that violates their religious beliefs. This is language from the court's opinion. And the compulsion must mean something beyond simply reading and discussing assigned materials. And not only that, but the court said that the parents are not prevented from discussing and contextualizing any contrary views at home. So there's nothing problematic about this curriculum, because when the student comes home, the school board's not standing there trying to stop you from talking to your own children. So therefore, the court concludes, there's actually nothing really problematic. There's no burden on religious exercise here.
It's like in France when they say you are not supposed to wear the head scarf in school, but you can go wear it at home. Yeah, it doesn't really matter what happens in the context. You can hide religious values out there, but not in the space. Yeah, except the difference, of course, as I sort of laid out a little while ago, is that there's a very sort of affirmative attempt here to change the way that these students are thinking about gender and sexuality. So even in the context of all these very explicit concessions that are noted in the documentation, both the board insists that there's nothing really here that we're trying to do that's burdening religious exercise, and even more troublingly, the court actually accepted it. Asma Udin is a visiting assistant professor of law at Catholic University.
Pharmacists have sufficient training to autonomously prescribe medication to prevent or treat many medical conditions. But states generally require patients to obtain a doctor's prescription before purchasing pharmaceuticals. Some U.S. states facing too few medical professionals are making reforms. Alex Adams is budget and regulatory chief for the Idaho Office of the Governor. He's also a former executive director of the Idaho State Board of Pharmacy. In November, he spoke at the Cato Institute about reforms to prescribing authority in states.
What I would foresight is pharmacist prescribing, while it seems new, it's actually pretty well longstanding. The first state to allow it was Washington state in 1979. So we have more than 40 years of experience with pharmacist prescribing in the United States and all 50 states allow it. The thing to look at is at what level of restriction and how many regulations does it take for a pharmacist to be able to prescribe because the number of restrictions that a state puts in can certainly impede this in practice. So most folks on this are probably familiar with getting immunizations at pharmacies. It's the first drug product that the pharmacist could prescribe, and then after prescribing it, they could administer it to patients. That started in the early 90s, and it kind of had a slow and steady uptake, but what really put it on the scene was the H1N1 pandemic in 2009-2010. There was a need for mass vaccination.
and the primary care capacity was generally overrun. So to keep people out of urgent care facilities or whatnot, the federal government partnered and created the retail vaccine initiative for pharmacists to be able to prescribe and administer H1N1 vaccines. That grew pharmacists prescribing immunizations from about 5% to about one in four vaccines nationwide and really showed that the reach of pharmacists and the capability of pharmacists had been underutilized and could bring value to the healthcare team. So a lot of people started looking at, well, what if you combine the accessibility of pharmacies? In the U.S., 95% of all Americans live within five miles of a pharmacy. And they're also open nights and weekends. But pharmacists also have medication expertise. They have doctoral level degrees anchored around medication training and how to use the right medication at the right time. What if you combine the access with that expertise? Maybe we can get the outcomes that Ross's evidence speaks to. So in Idaho, we had kind of a long buildup of our legislature in 2010, 2011, past bills that allowed pharmacists to prescribe immunizations and fluoride supplements.
In 2015, our legislature passed a bill allowing pharmacists to prescribe naloxone, which is an opioid reversal agent. 2016, legislature passed a bill allowing pharmacists to prescribe EpiPens. Then in 2017, the legislature passed a bill allowing pharmacists to prescribe tobacco cessation drugs. Each of those had studies published around them showing that they were safe, effective, that pharmacists could accurately screen patients for those medications and provide them and monitor them in a way that would mitigate patient harm. But after each of those bills passed, the legislature kind of saw a trend and said, why are we doing this one by one? Why every year is there another drug that is added to the list of what pharmacists can prescribe? We need a better way of doing this. And worked with the legislature and ended up, rather than delineating every drug that pharmacists could prescribe, we put in place a framework that pharmacists could prescribe from. We said pharmacists can prescribe any drug if it met one of the following four planks. Is it preventive in nature? So it's designed to prevent the conditions and no diagnosis is necessary.
Second plank was pharmacists could prescribe in Idaho if it was non-diagnostic. So if the patient was previously diagnosed with diabetes, for example, but their dose wasn't optimized and the pharmacist needed to adjust the dose or they needed to add on an additional therapy to help the patient meet their either blood sugar goal or blood pressure goal, whatever condition is being treated, pharmacists could prescribe. So prevention and non-diagnostic was really trying to avoid diagnosis. There's two areas where pharmacists can and have diagnosed in Idaho. First is for minor ailments. If it's a minor ailment, and the legislation did not define that, but it generally means things like flu, strep throat, urinary tract infections, cold source, things that are going to generally be self-limiting, pharmacists can diagnose and prescribe for those. And then lastly, the legislation allowed pharmacists
to diagnose based off of the result of a CLIA wave test without getting into too much of the wonkiness behind CLIA. It's a fancy way of saying basically a simple test, either nasal swab or a finger stick blood test. Pharmacists could use those to guide treatment decisions. So we built that framework of what pharmacists could prescribe within those rather than delineating every drug in statute that pharmacists could prescribe. But the legislature did require the Board of Pharmacy, which I ran, to then fill in the details, which conditions are minor, which conditions are...
preventative in nature, which conditions can be diagnosed based on a CLIA wave test. And we went through several rounds of rulemaking with each of those and decided that that was not necessarily the best way to enable a pharmacist prescribing. If you look at our colleagues in the medical profession, if you look at our colleagues in the nurse practitioner or physician assistant professions, they don't delineate drug by drug with specific government regulations around each of when you can use them. And in fact, in a state like ours, it takes about 12 months from start to finish to promulgate a new regulation. So if clinical guidelines change or new evidence comes to the market, you're always going to be playing behind the curve, updating those regulations in a manner that just didn't feel necessary. So legislature actually then went back in.
and removed that framework of four planks that pharmacists could prescribe off of and brought in the authority to be more similar to physicians, nurse practitioners, or physician assistants. And prescribing is now contained within the definition of pharmacy practice, and pharmacists can prescribe according to a standard of care that other similarly trained pharmacists would do in similar practice situations. The benefit is it's relatively open-ended for pharmacists to be able to prescribe within their education, training. and competence without the heavy hand of government putting its thumb on every scenario. However, because it's anchored around a standard of care, the regulatory board, in this case the Board of Pharmacy, has the ability to adjudicate disciplinary cases against pharmacists who deviate from the standard of care causing patient harm. So we have a model of prescribing that evolved from individual drug classes to a broader framework to open-ended prescribing in a manner similar to other health professions in Idaho. We would categorize that as independent prescribing. As I previously said, all 50 states allow prescribing in some form or fashion.
In most states, it's a model that we call dependent prescribing. It's under a collaborative practice agreement with a physician or other healthcare practitioner where it's essentially getting a permission slip from them in order to prescribe under the license and supervision of that physician. And that works perhaps in closed-door settings where the pharmacist is working side-by-side with that physician. It has less utility in outpatient settings where there isn't that direct line of supervision and practitioners may be considered competitors. So we are the first state to have broad, open-ended, independent prescriptive authority.
Alex Adams is Budget and Regulatory Chief for the Idaho Office of the Governor. He's also a former Executive Director of the Idaho State Board of Pharmacy. OPEC is regularly cast as an incredibly powerful organization that can, at times, simply set the price of oil and throw economies into short-term turmoil over fluctuating oil prices. The new Cato paper evaluates this widely held belief and finds it wanting. Cato's David Kemp is a co-author of the paper. We spoke for this Cato Audio exclusive. David, the conventional wisdom, correct me if I'm wrong, is that the Organization of Petroleum Exporting Countries, or OPEC,
essentially sets the global price of oil, or at least has enormous influence over the global price of oil. And so it is critically important that we pay attention to what these countries are doing with respect to their vast oil reserves and whether or not this cartel is going to continue producing oil to maintain low prices for the rest of the world. How fair is that assessment? And what would have to be true for that fact to be true? That's a fair assessment of how OPEC is perceived. In general, the U.S. public, politicians and the media endow it with pretty significant ability to set oil prices. In reality, that's not true. They don't have the ability to ramp up or down their production in the way that typically people think they do. And they have...
pretty significant constraints on how much they can invest in expanding their production. And they have geological constraints on how quickly they are able to change their production rates. So the general perception of OPEC and Saudi Arabia in particular, having control of an oil spigot that they can turn up or down is not true. Okay. So then why is there this intense focus on OPEC decision-making when we talk about a global commodity like oil?
Because oil prices are very important. So in US politics, they're a huge economic indicator that people see all around them. So when oil prices are high, consumers have to pay more at the pump. And when oil prices are very low, that undercuts the US oil industry and leads to layoffs and bankruptcies. And because of that, people look to direct their anger somewhere.
That often is that politicians who really have very little control over oil prices. So OPEC offers a convenient scapegoat that politicians can point to and either say we were successful in convincing OPEC to change their production rates and help lower or increase the price of oil, or they can point to and blame for high or low oil prices. The global commodity or multiple global commodities known as oil, it's a very long supply chain. You're talking about pulling it out of the ground. You're talking about putting it in tankers. You're talking about refining it. You're talking about then shipping it for retail distribution. This is a long process. And at any given point that OPEC might make a decision, it's going to be maybe a long time before people really feel that. So help us understand the mechanics here and why you say that OPEC can't just sort of flip a switch to turn off or on or moderate the pace of its oil outflows.
So the biggest constraint on their ability to quickly change production rates is just the geological realities of oil production. So in Saudi Arabia, in other countries, and in the rest of the world, they face the same geological constraints on how much they can take out of the ground at any one time. So petroleum engineers look at oil reservoirs and decide how many wells to drill, how fast to produce, to actually take oil out of those reservoirs. And they determine the most efficient rate that's going to... produce the most at any one time, but also over the full lifetime of the well, extract the most amount of oil. So if you increase in any given day, if you increase your production rate or decrease your production rate, you can negatively affect how much oil you'll ultimately be able to extract. So the point is, is that there are trade-offs. When Saudi Arabia, for example, is deciding how much oil to produce, if they want to increase rates today because prices are high or decrease rates today because prices are low, there are trade-offs involved with that decision.
And so why don't OPEC countries just store up a bunch of oil? Well, it's very expensive to store oil. So it's already being stored in the ground. So if you extract it and then hold on to that oil, you have to build huge storage facilities that are very expensive to build and maintain. OPEC countries know as well as anyone else, better than most, that oil prices go up and they go down. And they might have some influence on that.
Why don't they just drill a bunch of wells and just turn them on and off? Well, beyond the geological constraints on their ability to increase or decrease production at each individual well, the decision to increase production is not whether they should... turn up the production at each well. It's whether they should drill more wells and develop more oil reservoirs. And the reason they don't do that is because it requires a huge amount of upfront capital investment. So in Saudi Arabia, for example, most of their government revenue is from their oil profits. So the investment required to build more wells and develop more oil reservoirs is competing with
all the other potential places where the Saudi government could invest money. So for example, Saudi Ramco, Saudi's state-owned oil company, which is one of the most profitable companies in the world, the majority of its annual profits go to the Saudi government. So in any given year, 80 to more than 90% of its profits go to the Saudi government, which is then used to fund the Saudi's expansive welfare state. So because... Oil production requires such high amounts of upfront investment. That upfront investment has to compete with the entire Saudi welfare state. What would you say is the big takeaway here? I mean, you've pointed out that OPEC is not as powerful as American politicians and others have imbued it with. So what's the big takeaway? Is it just ignore OPEC? The short answer is basically yes. We shouldn't be as concerned with what OPEC is doing.
The benefits of OPEC membership to the actual nations that are in OPEC are almost entirely political. So they get domestic political benefits in that they can be seen as snubbing the West when they withhold oil, and they get an international bargaining chip when they negotiate over how much oil to produce. And the benefit of Western leaders is that they have a scapegoat. But the reality is that we, as the American public, shouldn't be concerned with what OPEC is doing. And we shouldn't buy into the OPEC theater that occurs when U.S. politicians are in uproar looking for ways to punish OPEC nations by withholding arms sales or removing troops. Those foreign policy decisions should be made separate from...
considerations of OPEC's control over oil price. David Kemp is co-author of the new Cato paper, Misperceptions of OPEC Capability and Behavior. How free is your state? In the seventh edition of Freedom in the 50 States, authors Jason Sorens and Will Ruger answer that question with the most comprehensive measure of governmental respect for economic and personal freedom at the state level. It's available at freedominthe50states.org. That will do it for this edition of Cato Audio. I'm Caleb Brown. Talk to you again next year.