Archive for 2014

Westminster, Mass., and the well-tended grass roots of tobacco bans

Townspeople came out loudly and in force to oppose the proposed Westminster, Mass. ban on all tobacco sales, and that has thrown advocates back a bit [New York Times, MassLive, earlier]:

“They’re just taking away everyday freedoms, little by little,” said Nate Johnson, 32, an egg farmer who also works in an auto body shop, as he stood outside the store last week. “This isn’t about tobacco, it’s about control,” he said.

Right he is. And despite the Times reporter’s lifted eyebrow at the notion that “outside groups” are encouraging town officials to go forward with the ban, it’s worth asking how Westminster, Mass., population 7,400, came to have its very own “tobacco control officer.” Do you imagine the townspeople decided to create such a position with local tax funds? If so, read on.

WestminsterSealFor well over a decade the Massachusetts Municipal Association has run something called the Tobacco Control Technical Assistance Program, assisted by grant money from the state Department of Public Health. It does things like campaign for town-by-town hikes in the tobacco purchase age to 21, and town-by-town bans on tobacco sales in drug stores. It will surprise few that it has been in the thick of the Westminster situation.

This article, written for a friendly audience of public health advocates, frankly describes how the MMA project, with assistance from nonprofit and university groups as well as the state of Massachusetts, worked to break down the reluctance of town health boards to venture into restrictions on tobacco sales (scroll to “Roles of the Massachusetts Tobacco Control Program, Local Boards of Health, and Tobacco Control Advocates”);

Local boards were enticed into hiring tobacco control staff by the DPH’s tobacco control grants. As a participant in the process explained, “[L]ocal boards of health looked at it as ‘oh, it’s a grant. Let’s apply for this grant. So now, what do we have to do, now that we’ve got it?’” … The grants dictated that local boards use those community members they had hired as their staff to assist them in enacting and enforcing tobacco control regulations…

The staff paid for with money from outside the town seem to have seen their job as, in part, lobbying the local officials: “We’ve had to work on each individual board [of health] member to get them to come around,” said one.

The account continues with many revealing details of how the outside advisers managed to orchestrate public hearings to minimize critics’ voice, deflect challenges with “we’ll take that under advisement” rather than actual answers, and in the case of particularly intense opposition, “back off for a couple of months” before returning. “Grant-funded regulatory advocates were able to counter all of [opponents’] arguments and tactics.”

In other words, an extra reason for the townspeople of Westminster to be angry is that they have been paying to lobby themselves. And it’s worth knowing exactly how the game plan works, because similar ones have been rolled out to localities in various states not only on “tobacco control” but on “food policy,” environmental bans and other topics. Grass roots? If so, most carefully cultivated in high places.

Update Nov. 21: board drops plan in face of overwhelming public opposition.

At Cato next Monday: “Free Speech and Minority Rights: the One, Inc. v. Olesen Case”

Next Monday, Nov. 24, Cato will host a luncheon panel on the 1956 Supreme Court case of One, Inc., v. Olesen, a little case with big implications that reverberate to this day. Panelists include attorneys Lisa Linsky (McDermott Will & Emery) and Robert Corn-Revere (Davis Wright Tremaine) and author/Brookings fellow Jonathan Rauch, and I’ll be moderating. From the description:

Sixty years ago the U.S. Supreme Court’s first case on gay rights was set in motion. It has been neglected through many of the intervening years but is now recognized as a landmark in the law of free speech. In One, Inc., v. Olesen, a fledgling Los Angeles–based magazine seeking to advance the interests of homosexuals sued after the Post Office declared it obscene and banned its distribution through the mail. Against long odds, facing the full force of the federal government, and with little support from the civil libertarians of the day, the small publication persevered to the Supreme Court—and its unexpected victory there opened up legal space for other dissenting and unpopular opinions to thrive. Join us as three experts discuss the One, Inc. case as a turning point in First Amendment law and an example of how freedom of expression works to vindicate the interests of those on society’s margins. We’ll also learn about ongoing efforts to get the U.S. government to open its archives to shed light on its handling of the case.

Register free or watch online at this link.

Free speech roundup

  • “Court agrees that Google’s search results qualify as free speech” [Megan Geuss, ArsTechnica]
  • “Manassas detective in teen sexting case sues teen’s lawyer for defamation” [Washington Post]
  • Reports of SLAPP suit out of Chicago not quite as initially portrayed [Ken at Popehat]
  • Compelled-speech update: Lexington, Ky. anti-bias commission orders employee training for t-shirt maker that objected to printing gay-pride messages [Kentucky.com, earlier]
  • “NY high court says anti-cyberbullying law won’t pass First Amendment muster” [ABA Journal] New Arizona law against sending naked photos without subject’s consent could criminalize many sorts of speech [ACLU]
  • UK scheme to muzzle nonviolent “extremists” just as horrid as it sounds, cont’d [Brendan O’Neill/Reason, earlier] Political director of U.K. Huffington Post calls for “sanctions” for press outlets that engage in “dishonest, demonizing” coverage of Muslims, immigrants, and asylum seekers [Guardian]
  • SCOTUS should hear case re: right to engage in political advocacy without registering with government [Ilya Shapiro and Trevor Burrus, Cato; Vermont Right to Life Committee v. Sorrell]

Labor and employment roundup

“Prosecutors Who Rent Out their Letterhead to Debt Collectors”

The American Bar Association’s Standing Committee on Ethics and Professional Responsibility moves against a dubious practice. “The demand letters are effective at scaring consumers because they are sent on prosecutor letterhead and contain threats of criminal prosecution — threats that no other debt collector could make.” However, they mobilize the prosecutor’s apparent public authority on behalf of legal threats which typically the prosecutor has not reviewed individually exercising professional judgment, and they can deceive debtors about the legal status of their claimed obligation. [Deepak Gupta, Consumer Law & Policy; earlier]

Catalonia: new LGBT bias law shifts burden to accused

The separatism-minded Spanish region of Catalonia has enacted a law under which “the person accused of homophobic acts will have to prove his innocence, reversing the presumption of innocence until proven guilty.” [El Pais, TheLocal.es] The law includes fines for anti-gay occurrences in the workplace. Advocates defended the shifting of the burden of proof onto the accused to prove innocence as a “positive discrimination measure [that] is already in place for other offenses, such as domestic violence against women, in instances when it is very difficult to prove.” [VilaWeb] (& welcome Andrew Sullivan readers)

Banking and finance roundup

  • “How Operation Choke Point Hurts the Unbanked” [former FDIC chairman William Isaac, American Banker]
  • A nation of snitches: “U.S. rules would expand white collar crime informers” [Reuters]
  • Courts should stop giving deference to agency interpretations of criminal law: “Justice Scalia’s shot across the SEC’s bow re insider trading” [Bainbridge] Judge Rakoff criticizes SEC for bringing so many enforcement proceedings to in-house adjudicators [Reuters, earlier]
  • Monitor envy: “The biggest U.S. banks have 100 or more on-site examiners from an array of regulators” and now New York’s financial regulator wants to get into the act [WSJ]
  • Seventh Circuit finds Bank of America entitled to ask loan applicants about expected continuing entitlement to disability benefits, but in the mean time bank agrees in DoJ settlement to cease such inquiries [Easterbrook opinion in Wigginton v. Bank of America, see last page]
  • Two SEC commissioners warn that campaigned-for “fair fund” to compensate investors in CR Intrinsic inside trading case “likely to benefit only class-action attorneys and the fund’s administrators” [Daniel Gallagher and Michael Piwowar, WSJ]
  • “U.S. veterans sue [major European] banks, claim they should pay for Iraq attacks” [Alison Frankel, Reuters]