why we need decentralized funding for independent journalism

Whether we can continue to get the journalism we need, given the declining revenues and funding in journalism, is a concern of many people around the world, including in Hong Kong. To what extent is it possible to have independent journalism under such economic conditions? Before we get there, let’s ask first, what does it mean for journalism to be “independent”? What exactly should it be independent of?

Journalism is often at its best when it can “speak truth to power”, when journalists can ask the questions nobody else wants to ask, or even speak out against the powers-that-be when nobody else has the courage to do so. It is why it is important to think about how journalism is funded, who pays the bill and who subsequently can exert pressure on editors and journalists. For example, newspapers rely on advertisers (57%) more so than circulation (36%) for their revenues (Pew, 2015). That means it is important for newspapers to keep advertisers happy. It also means that these advertisers can exert disproportional pressure and influence: this is a problem if we agree that journalism is not only a business, but also serves a larger, indeed a public function to society. It is a lesson Hong Kong learned the hard way when House News, an online news outlet, closed down in 2014 because several major advertisers pulled out because of political pressure (SCMP, 2014). In the words of Tsoi, the founder of House News:

“Despite our popularity, many big companies don’t place advertisements on our website because of our critical stance towards the government and Beijing”.

So how can we have “independent” journalism and what kind of funding would this require? We need to start thinking about what I call models of “decentralized funding” for journalism. “Centralized funding” is when your funding comes from only a few, and subsequently, powerful and influential sources. In contrast, “decentralized funding” is when funding comes from many small amounts provided by multiple funders, or indeed, citizens. If all these small amounts add up to something significant, then that creates a situation where no particular source is powerful enough to exert meaningful influence, and where journalism can be more or less “independent”. But is that possible? Here are a few examples of journalism that rely on “decentralized funding”. This is not meant to be an exhaustive list, nor do I claim these are entirely new phenomena; that said, new technologies have given rise to several interesting ideas and opportunities worth exploring.

Crowdfunding: websites like Kickstarter, Indiegogo and Fringebacker are online platforms that enable a project to raise funds from a large number of people. Recent cases of journalism funded this way in Hong Kong include Factwire and Hong Kong Free Press. Patreon is another example of a crowdfunding platform, but instead of a one-time fundraising effort to jumpstart a project (like Factwire and HK Free Press) it instead allows people to be a “patron”; that’s to say, to financially support an individual or project on a regular basis.

Subscription: traditional subscription still exists, even online. For example, Malaysiakini, an online news website in, you guessed it, Malaysia, receives significant funding from its many subscribers who are willing to pay a sum every month. People are willing to subscribe, and pay money, because whereas the traditional media in Malaysia are highly censored, the online media are still relatively free and open: the internet is where they can get actual news. Malaysia’s situation is a bit peculiar like that: thanks to a pledge it made in 1998 in an attempt to attract foreign investment, the government will not censor the internet (Open Net).

Micro-payment: for the longest time, micro-payment was seen as the holy grail that would save quality journalism. While this has yet to happen, and I am not sure if it ever will, that doesn’t mean there are no interesting changes in this domain: in China, several platforms now allow users to “tip” content they like. For example, WeChat allows its users to tip writers for posts they like.

Centralized, but independent: Last but not least, independent journalism does not necessarily require “decentralized funding” to exist. Traditionally, foundations have always played an important role in funding important works of journalism. A recent example is ProPublica, funded by the Sandler Foundation, whose aim is to do quality investigative journalism. That said, many places around the world do not have the necessary foundations that have an explicit mission to serve the public interest, including in Hong Kong, a society that is already relatively well-off (I’ve never seen so many luxury cars than here in Hong Kong).

It is paramount that we start thinking and experimenting with models of “decentralized funding” for journalism; so that we can continue to get the journalism we need. If you know of any examples of decentralized funding that I should learn more about, I’d love to hear about them!

No, Politico, Google Can’t Rig the 2016 Election (without trying REALLY hard, at least)

Psychologist Robert Epstein has written a piece for Politico, titled “How Google Could Rig the 2016 Election.”  He’s trumpeting his recently-published study of “Search Engine Manipulation Effects” (SEME), stating with bluster that “Google has the ability to control voters.”

Epstein clearly wants attention for his work.  So let’s go ahead and give him some.

(spoiler: it isn’t very good.)

His research centers on a series of lab experiments (also replicated through Mechanical Turk and with volunteer participants in India) where volunteers are asked their opinion of political candidates, then encouraged to spend 15 minutes searching the candidates through a fake Google setup (called Kadoodle), then asked their opinion of the candidates again. Epstein finds that, if his team artificially boosted the ranking of positive stories for a candidate in Kadoodle results, then opinion of that candidate would improve.

This makes basic sense.  Participants in the experiment, when instructed to search through fake-google, click on the first few results they see.  They incorporate that new information into their impressions of the candidates.  It’s basically a digital-era update on the types of study that Iyengar and Kinder published in 1987.

But it’s a massive and unjustified leap to get from Epstein’s study to Epstein’s lede in Politico (“America’s next president could be eased into office not just by TV ads or speeches, but by Google’s secret decisions, and no one—except for me and perhaps a few other obscure researchers—would know how this was accomplished.”)

The basic problem is external validity.  If undecided voters made voting decisions by Googling candidates and seeing what articles come up, then Epstein’s study would be relevant.  But they don’t.

Undecided voters are overwhelmingly low-information voters.  They aren’t watching political news.  They’re mostly avoiding political advertising, when they can.  They aren’t sitting at home Googling candidates.  If they were, they wouldn’t be low-information voters.

What’s more, when actual low-information voters do encounter incidental information, it’s happening through social sharing, not google searches.  That’s why search engine optimization has largely been overtaken by social optimization in the past 3-4 years.  Social is where serendipitous discovery and incidental exposure actually happen today.

Facebook could potentially rig an election, as Micah Sifry and Jonathan Zittrain have both pointed out.  It could fiddle with the newsfeed algorithm or selectively deploy its “I voted” functionality, in order to boost enthusiasm and turnout for one candidate or the other.  (Facebook won’t do this, of course, because the company would invite a massive congressional investigation if it did.  Lightly-regulated quasi-monopolies tend to rationally avoid behaviors that can invite major regulatory scrutiny.)

But Google?  To rig the 2016 election, Google would have to try really hard.  It would have to task dozens of engineers and social scientists with sorting through messy data, merging it with the voter file wherever possible, then apply aggressive nudges to expose low-information/high-susceptibility voters to information that they otherwise aren’t seeking out.

Epstein’s study doesn’t show any of what Epstein claims in his Politico article. Search Engine Manipulation Effects are just the digital equivalent of the traditional news media priming, framing, and agenda-setting effects that we’ve been aware of for decades.  It isn’t some new dastardly digital disaster.

This research is an object lesson in why the trend in election research has been toward field experiments, instead of lab experiments, and why the best research also tends to feature observational research on how campaigns and voters actually behave.   Elections don’t happen in a lab, and undecided voters don’t behave the way they would if we were paying them to participate.  (…Epstein also doesn’t particularly bother to familiarize himself with the literatures on elections, voting behavior, media effects, or digital news, but now I’m just playing armchair peer reviewer.)

Social science gets a bad rap when researchers start making bold, self-promotional claims.  Epstein’s peer-reviewed study isn’t great.  But his Politico self-aggrandizement tour is downright embarrassing.

 

 

Campaign Microtargeting, Part II: Eitan Hersh’s “Hacking the Electorate”

This is a follow-up to last week’s post on campaign microtargeting.  I had the opportunity this weekend to read Eitan Hersh’s new book, Hacking the Electorate.  It’s the most detailed, insightful account of how campaigns currently make use of voter data in elections.  I learned a lot from the book, and strongly recommend it to anyone interested in the subject.

The core of Hersh’s argument is what he calls the Perceived Voter Model.  “Perceived voters compose the electorate from the campaign’s-eye-view.  They are not people; they are avatars generated from whatever data a political campaign, candidate, or party can surmise” (end of chapter 1).*  His central point is that, if we want to understand how contemporary campaigns strategize, we need to pay attention to the actual data that they have access to.  Campaigns are not omniscient.  They go to war with the data that they have, not the data they would like (nor the data that salespeople promise they’ll have).

One of Hersh’s most important findings is that public data (the voter file + the census… stuff that the government collects and makes publicly available) is far more important than commercial data or social network data.  He implements a nice research design to demonstrate this, using state-by-state variance in the public data (some states require party registration, some collect data on race/ethnicity, others do not) to show how differences in public data lead to significantly different voter contact strategies.

He also finds that, for all the talk about commercial data and network data, campaigns can’t put much weight on these data sources (chapter 8).  The commercial data is incomplete and often out-of-date.  While the most well-resourced campaigns certainly purchase this data, they gain very little added leverage from it.  At best, they can use this data in states that are public data-deficient to try to model the same voter attributes they are tracking in states with rich public data policies.

Meanwhile, network-based strategies to reach undecided voters through their social networks (aka Facebook) have been severely limited, at least thus far.  The network approach proves difficult because (a) it requires core volunteers to start awkward conversations with their least-political friends, (b) it proves hard to reach the whole electorate when starting from the networks of hardcore volunteers, and (c) committed campaign volunteers tend to have social networks that are heavily weighted towards other strong partisans.  Again, this doesn’t mean that social networks are unimportant (see Ashley Parker’s NYT story today about Facebook in the primaries), but it does limit their value compared to other data sources.

Public data is reliable and relatively complete.  Consumer data is patchier and less reliable.  Network data is rich but constrained by the contours of your supporter base.  When trying to determine and model their voter universe, campaigns mostly have to rely on public data.

The takeaway here isn’t “we don’t need to worry about microtargeting.”  The point is that our normative debates about microtargeting ought to be grounded in an empirical understanding of the current state of the data.

That provides a lot of room for policy debates as well.  The types of reliable and relatively complete data that are available to political campaigns are dictated by state policies.  What sort of data should be available, in what contexts, at what costs, and to which users?  Hersh ends the book by arguing that some of the real threats come when elected officials start using campaign data for governance.  (Want help from your Congressperson?  Just a moment while they check whether you’re in their supporter database or not.)

One of the reasons why microtargeting attracts so much attention is that it is surrounded by an almost alchemical or mystical sensibility.  (“There are data wizards!  They know so much about us, and they are using it to manipulate our democratic elections!”)  Hacking the Electorate provides an insightful account of just what types of data the campaigns can currently rely upon.  It’s an excellent, grounding contribution to the data and politics literature.

 

 

*I read the book on my iPad, so I have no earthly idea what page number this quote correlates to.  Ah, technology…

 

Making Peace with Campaign Microtargeting: four principles of responsible algorithms [book blogging]

[This post is part of an irregular series where I tinker with big concepts for my book.  Comments and disagreements are extra-appreciated …and can earn you a spot in the acknowledgements section!]

I had to skip this year’s Personal Democracy Forum, and have slowly been watching archived versions of the keynote talks to see what I missed.  One talk that really stands out for me as Cathy O’Neil speaking about “Weapons of Math Destruction.”  O’Neil is writing a book about algorithms, and how social institutions cloak their decisions behind mathematical equations in order to obscure the choices that they make.  It’s an important topic, and I’m looking forward to the book.  Of the three examples she gives, though, one did not seem to be much like the others.

O’Neil provides three examples of algorithms as “weapons of math destruction.”  The first is the Value Added Model (VAM) in public education.  The VAM is an algorithm that is supposed to separate the good teachers from the bad teachers.  That’s a laudable goal.  We probably need a good model for grading teachers and incentivizing good teaching. But O’Neil explains that the model is a complete black box.  No teacher, no administrator, no data scientist is allowed to look at the algorithm itself and determine if it is measuring the right things.  When teachers and administrators ask to see information about the model, they are told “oh you wouldn’t want to know about it–it’s math.”  We are evaluating teachers without explaining to them what answers they got wrong or how they can improve their scores.  Let that pedagogical irony sink in for a moment.

This is a case where algorithms and Big Data take on an almost alchemical quality.  “Put your trust in the data wizards,” we are essentially told, “they know things that you cannot fathom.”  And as with all other forms of alchemy, if you dig beneath the surface you’ll quickly detect a faint scent of manure.

O’Neil’s second example is even more troubling: predictive policing and evidence-based sentencing in the criminal justice system.  Judges rely on predictive models to estimate a “recidivism score,” which factors into their sentencing decisions.  Likelihood of recidivism is, again, an important consideration.  Policing, like teaching, is a massive public good, and it seems like better data would be a good thing.  But the problem with these recidivism models is that they include factors (high school graduate?  Currently employed? Did your father serve jail time?) which would be plainly illegal if they were brought to a judge directly.  By cloaking these factors behind mathematics, the justice system becomes less just..

But then there’s her third example: microtargeting in political campaigns.  And this is where I think the argument stumbles some.  The first example she provides is Facebook’s 61 million person Get Out The Vote experiment.  (Micah Sifry has written previously about how this experiment demonstrates Facebook’s implicit electoral power).  But that experiment is not technically microtargeting.  The second example she gives is a hypothetical: Rand Paul could highlight his positions on financial reform when she visits his website, while hiding other positions that she is less likely to agree with.  “What is efficient for campaigns is inefficient for democracy,” she concludes.

This last example seems like a stretch to me.  Political campaigns have always used targeting in their communications.  Candidates spice up their stump speeches with local anecdotes and local issues.  Mailings are targeted based on demographics, issues, and vote history.  Broadcast political commercials are targeted to focus on the issues that swing voters (or base voters) find most appealing.  Targeting and modeling in political campaigns isn’t particularly new.  What we’re seeing with microtargeting is a difference in degree, rather than a difference in kind.  The databases are becoming less terrible.  The campaigners are taking testing and modeling more seriously.

The case of political microtargeting seems different from the VAM and predictive sentencing because of four general properties: let’s call them The Principle of Potential Harm, the Principle of Approximate Transparency, the Data Quality Principle, and The Principle of Potential Redress.

The Principle of Potential Harm asks “what (unintended) harms might befall an individual if this algorithmic model produces a faulty decision?” In the case of the VAM, good teachers could be unfairly punished.  They could be denied raises or potentially fired.  In the case of predictive sentencing, people of color and poor people could be sentenced to longer, harsher sentences than their white and well-off peers.*  In the case of campaign microtargeting, an individual… might encounter less political advertising that they disagree with.

Within electoral politics, algorithmic models have also been used to purge voter rolls.  There the potential harm is that an individual can be denied their right to vote simply because their name is similar to the name of a convicted felon.  The Principle of Potential Harm states that we should be more concerned with algorithms in “vote cleansing” programs than with algorithms in political advertising.

The Principle of Approximate Transparency states “if someone asks why an algorithm categorized them as it did, they should be able to get a clear answer.”  This is a rule that some of the leading netroots advocacy groups follow: if they are going to use predictive modeling to decide who gets what communications, then they should be prepared to explain what factors went into that decision.  If they would be embarrassed to explain it, then they should not use predictive modeling in that case.

I call this “approximate transparency” because there are actually some quite good reasons to keep the details of a predictive algorithm obscure.  If Facebook or Google were fully transparent about their algorithms, then malicious actors would be much more successful in gaming their ranking systems.  If a predictive model is being used to make valuable decisions, then we should assume people will try to distort that model.  A little bit of opaqueness can go a long way in helping the models to perform effectively over time.  But if a model is completely secret, then we are unable to consider its merits and its flaws.

In the area of political microtargeting, political journalists enforce an approximate form of transparency.  In the 2012 election, ProPublica set up a system that monitored emails from both presidential campaigns to see how they were microtargeting their messages.  Political journalists and academics paid close attention to political advertisements as well.  This was not full transparency — the Obama Campaign was not going to tell anyone its strategy for determining who got which messages — but it was enough of to keep the worst potential excesses in check.  Any value the campaigns might get from extremely microtargeted advertisements would be washed away if it led to a front-page story about their deceptive practices.

The Data Quality Principle states that we should stay aware, and wary, of the underlying quality of the data going into the model.  Again, the 2000 Florida voter purge is a helpful example.  If that company had perfect data, then its computerized removal of names from the voter rolls would be a trivial matter.  But their data was junk, and that rendered the model suspect.

The Data Quality Principle is a major reason why I am not particularly concerned about voter microtargeting.  Even though the databases are better than they’ve ever been before, they still have lots of flaws and errors.  Electoral campaigns (particularly the big ones that are flush with cash) lean towards overinclusion rather than overexclusion in their communications.  So while they might use an enhanced voter file to help isolate the neighborhoods and households most in need of a door-knock, we are pretty far removed from the future dystopia where household A and household B receive entirely different messages at their door.

The Principle of Potential Redress holds that, since algorithms are flawed, there should be a clear avenue for redress when a person feels they have been algorithmically wronged.  Teachers should be able to effectively challenge their VAM score.  Convicts (or their lawyers) should have clear tools for arguing why the predictive sentencing algorithm is making the wrong prediction.  Voters who have been algorithmically excluded from the rolls should be able to cast a provisional ballot, and that ballot should be counted after minimal procedural headaches.

The potential redress for citizens who receive microtargeted political advertisements is… read some political journalism! Electoral campaigns are awash in political advertisements.  Better targeting of those advertisements is efficient for the campaigns and, for the most part, less of a headache for the citizens.

My main point here is that some algorithms are much more ethically dicey than others.  It depends on what the data is being used for, how trustworthy it is, how transparent it is, and what pathways we have to challenge it.

Smart critiques of emerging digital decision-making often lump campaign microtargeting in with a laundry list of other, deeper problems. I, for one, have made my peace with campaign microtargeting.  And I think the differences between it and other “weapons of math destruction” can help us understand which algorithms are the most dangerous.

 

*Note: people of color and poor people already face major sentencing disparities.  So I suppose the potential harm here is that these disparities will be even more difficult to address.

On Democracy.io: …I don’t get it.

Alex Howard reported yesterday on the release of Democracy.io, a sleek new tool for emailing members of Congress.  It’s a nice tool, built with the support of the Electronic Frontier Foundation, based on open datasets created by the Sunlight Foundation.

I hate to sound like a broken record here, but… I don’t get it.

Here’s Sina Khanifar, in an interview with Alex Howard (emphasis added):

“Advocacy organizations that can afford it have long had access to tools for delivering bulk constituent messages, but those solutions are expensive and generally inaccessible for regular citizens. Democracy.io helps fill that gap by giving people an easy way to have their voices are heard in Washington.”

What’s the use-case here? Who are these “regular citizens” that want to share their thoughts and opinions with members of Congress unprompted by advocacy organizations?  Where are they getting their information from, and what’s prompting them to write these digital letters?

The literature on political mobilization is pretty clear on this point: people are far more likely to partake in political activity when they are asked to do so.  Whether that’s donating money, knocking on doors, showing up to a hearing, or writing a letter, we tend to take political action because someone we trust/generally agree with asked us to do so.

Participating-because-we-were-asked is sometimes treated as non-“organic,” not as democratically healthy as spontaneous citizen participation that comes out of the civic ether.  But let’s be real for a second: it takes a very particular type of person to walk through life believing that (1) they have all the answers, (2) Congress needs to hear those answers, and (3) writing an e-mail ought to do the trick.  On season 1 of Parks and Rec, Leslie Knope referred to it as “people caring loudly at me.”

This isn’t to say that Democracy.io isn’t nice tech.  It appears to be well-designed.  Some future, nascent social movements might be able to deploy this tool on a mass scale, bypassing software vendors that they can’t afford.  The codebase might be combined with something else to massively simplify some genuinely hard problems.

But, at least in its current form… I don’t get it.  Citizen participation tends to be organized and mediated through networked advocacy groups.  Those groups face a thousand different problems, some small, some big.  How did simplifying the process for emailing congress out-of-the-blue rise to the top of the list?

Some initial reactions to Brigade.com

I was out of the country last week, so I missed the initial launch of Brigade.com. Alex Howard and Nancy Scola have already covered pretty much everything you’ll need to know about the site so far. (If you haven’t read them already, I recommend you spend a few minutes with them for background.)

Brigade is the latest in a long line of ventures aimed at giving everyday citizens the tools to become more civically connected and involved in politics.  Most of these efforts have fizzled.  I generally take a pretty skeptical approach to them.

The site has a few interesting wrinkles — it’s clearly built for mobile, and it’s far less reliant on cumbersome profiles than many of its predecessors.  It’s also at the beginning of a multi-stage launch, which makes it hard to tell whether some of the missing features (campaigning/organizing/mobilizing functions, in particular) are absent or just unfinished.

As I wrote a few months ago, there’s eventually going to be a tension between the users they want to attract and the eventual customers who will pay for the service. But that tension won’t surface in the early stages of development, while the site is trying to create traction with the inattentive American public. The current challenge (creating that traction/making the site “sticky”) is interesting in its own right.  I don’t know if Brigade will succeed or fail. It has a lot of money, a lot of talent, and a lot of buzz working in its favor. But it’s also trying to offer a product that simply might not be in demand. That’s a hard problem to solve.

Now that I’ve had the chance to look around the site a bit, two main points stand out:

  1. Banking on Gamification.

The core of the user experience right now is the stack of issue position cards. “The U.S. should remove the penny,” “Fracking should be banned,” “The voting age should be lowered to 16,” “Online marketplaces (like Amazon, eBay, Etsy, etc) should ban the sale of confederate flag merchandise.” You can choose between Agree, Disagree, and Unsure. You can type in an argument that describes your reasoning, or read and “upvote” other people’s reasons. And you can create your own topic for people to agree or disagree with. The more you participate, and the more people upvote your participation, the higher your “impact” score.

This is the basic logic of gamification. Create a simple reward structure that encourages people to engage in the actions you want them to take. Make it feel like a game, rather than a survey questionnaire. And gamification works… at least up until the moment when people get bored with your game, and find some other game instead.

The initial gamification play makes sense here. No one wants to set up yet another social network profile. The social-network-for-social-change model has failed too many times to generate much enthusiasm. So instead, Brigade is focusing us on easy civic tasks which provide a little fun and offer little psychic rewards. Along the way, they build a userbase, establish social ties, and amass data on those users. It’s a nice start.

But the big question is “what will keep people coming back?” I filled out 25 position cards at the dog park yesterday afternoon. It was brief fun. But will I open the app up tomorrow, and next week, and next month?

It reminds me of the early days of Foursquare, when I routinely “checked in” everywhere I went, amassing badges and mayorships throughout my Brooklyn neighborhood. Foursquare was a fun distraction for awhile. Then I found Angry Birds. That game was a lot more fun. I haven’t used Foursquare in years.

The gamified element of Brigade is an interesting start, but I’m not sure how long of a shelf life it provides.

  1. A “Public” Misperception?

The following quote, from Sean Parker in his interview with Nancy Scola, is illuminating:

“…the norms on Facebook dictate that ‘you obey a certain set of social rules on the kinds of things you share or don’t. When it comes to your civic identity or your political identity or your charitable identity, frankly you don’t want to express that side of yourself on Facebook. It’s not the right medium to do it.”

This strikes me as an important premise of the site: People don’t reveal their civic/political/charitable identity on Facebook. They’ll be more likely to do so on a separate site.

I’m not sure if the premise is correct, though. My Facebook newsfeed, for instance, is brimming with political articles. That’s because I have a lot of political friends, and they share political things. Facebook doesn’t discourage them from talking about politics or civil society. And those political friends also happen to be the people who are most likely to be early adopters of Brigade.

It sounds like Parker and his team are banking on the hope that the American public is filled with individuals who have a submerged civic or political identity, which they’ll happily reveal if given the right opportunity. But it’s also possible that (1) the public features a small subset of people who like talking politics and civics, (2) that subset is already doing so on Facebook, and (3) they’ll migrate to Brigade and poke around for a bit, providing an initial impression of early lift/viral success.

This means that if Parker is right about the public, we won’t actually be able to tell for the first few months. The early adopters of Brigade are already plenty comfortable talking politics on Facebook. So even if they flock to Brigade and get a kick out of the issue position card stack, it won’t demonstrate much about the potential demand among the broader, non-attentive public.  The real test will come later.

—–

I’m curious to see what the site’s initial growth looks like, and even more curious to see what features they roll out besides the issue position cards.  Building a user base beyond the usual suspects is going to be a very tough lift, though.  If my (admittedly cynical) read of the American public is right, then gamification and early adoption might produce phantom positive signals during this initial rollout phase.

“No Interracial Couples”: On religious liberty in Indiana

Even as an atheist, I strongly support the preservation of religious freedom from most kinds of state intrusion.

You should be able to wear your religious head covering of choice, even in driver’s license photos. Prisons should provide kosher or halal meals and allow prisoners to keep their beards. Native American tribes that use peyote in their traditional religious ceremonies should be exempted from the laws against that substance. Thankfully, this norm is generally and increasingly used to settle these questions.

One major problem with the Indiana Religious Freedom Restoration Act, however, is that it also includes disputes that are exclusively between private parties. Section 9 reads, in part:

A person whose exercise of religion has been substantially burdened, or is likely to be substantially burdened, by a violation of this chapter may assert the violation or impending violation as a claim or defense in a judicial or administrative proceeding, regardless of whether the state or any other governmental entity is a party to the proceeding.

This means that it will not only give heft to plaintiffs who seek to overturn state actions that substantially burden religion. It will also apply to civil actions between private citizens — including companies — giving a potential fig leaf defense to obviously noxious and discriminatory behavior.

The cliche example floating around is the bakeshop being forced to make a wedding cake for gay couples despite religious objections to the wedding itself. There are far, far more substantial issues in play than dessert, but even if we keep it at the level of the admittedly less-than-life-or-death, it’s easy to see the problems here.

Imagine a Christian bakeshop that refused to bake a cake for a Jewish or Muslim wedding. Imagine that’s it’s someone who sincerely objects to interracial marriage, on religious grounds — and yes, while this was far more common half a century ago, I’m sorry to report that these people still exist.

While racial animus is less accepted today, it’s still sincerely held by many and religiously grounded for some. Just because that’s passé and anti-gay sentiment is still held by a substantial portion of the population, is the legal and moral question any different? Is the discriminatory potential — and, let’s be frank, intention — clear yet?

Imagine bakeries with “No Interracial Couples” signs in their windows, or even an implicit policy to that effect. Offended yet? Even though this might be motivated by sincere religious belief? Would you object to a law that tells the victims of such discrimination that state courts are likely closed to them?1)The obvious intent and far more likely outcome of this law is to gut local ordinances that provide LGBTQ protections. Yet it would at least re-open the question of racial and religious discrimination in the context of any applicable state laws. Religiously-motivated racial, ethnic, religious, and gender discrimination might be permitted by state law, at least in some contexts, and we wouldn’t know until the courts sorted it out. In less life-or-death contexts, such as refusing to bake a cake for a Jewish wedding, some judges might find the state interest to be insufficiently compelling. Do you want to tell that couple, “It’s federal court or bust.”? I sure don’t. My broader point, however, is obviously that this provides an analogy, bringing the battles of the mid-20th Century to bear on today’s civil rights battle. Good, that means you’re a decent human being.

Now, let’s get out of the bakeshop, because this will likely grant a hall pass for discrimination in far more serious contexts.

There is no federal protection for LGBTQ folks and no statewide protection in Indiana. Even in the towns where there are protections, however, this bill essentially guts those — a transparent intent behind the bill.

Thus, imagine hoteliers turning away LGBTQ couples. In the context of racial discrimination, this was decided 51 years ago, but it’s now an open question in Indiana.

Imagine realtors refusing to work with people whose lifestyles they find morally objectionable. Imagine bankers turning down loan applicants and even would-be account holders. Imagine teachers refusing to meet with parents in same-sex relationships.

All of these might now be legally sanctioned as long as they are motivated by religious (rather than secular) animus.

These acts of discrimination need not even be grounded in religious tenets that are central to one’s faith. The act clarifies:

Sec. 5. As used in this chapter, “exercise of religion” includes any exercise of religion, whether or not compelled by, or central to, a system of religious belief.

Talk about a free pass. Any exercise of religion counts, even if it’s as transparently silly as a Pastafarian head covering — but, you know, used for discriminatory rather than parodic effect.

This means that, except where state or federal law provides otherwise, even the thinnest veneer of religious objection will excuse wanton, explicit discrimination. It also means that these religious fig leaves will also force a plaintiff and/or the state to re-establish how compelling the state interest is in all the laws that ban discrimination.

No wonder thirty legal scholars signed a letter opposing the bill (pdf). They warn that the law will

likely create confusion, conflict, and a wave of litigation that will threaten the clarity of religious liberty rights in Indiana while undermining the state’s ability to enforce other compelling interests. This confusion and conflict will increasingly take the form of private actors, such as employers, landlords, small business owners, or corporations, taking the law into their own hands and acting, in ways that violate generally applicable laws on the grounds that they have a religious justification for doing so. Members of the public will then be asked to bear the cost of their employer’s, their landlord’s, their local shopkeeper’s, or a police officer’s private religious beliefs.

In other words, this bill will wreak havoc on the legal order in the state of Indiana, and the stakes are heck of a lot bigger than wedding cakes.

The only good news about this bill is the backlash it has engendered. Indiana is getting pushback from athletes, celebrities, and CEOs — but also sports organizations like the Pacers, the NCAA, and even NASCAR. NASCAR!

Despite this backlash, however, the Arkansas legislature has just put a very similar bill on the desk of Governor Asa Hutchinson. We will soon know whether the pull of the reactionary right outweighs the voices for equity, to say nothing of the rapidly growing chorus of opponents in the business world.

Arkansas-based Walmart — which may make more money from both homophobes and from LGBTQ people than any other company in the country — has weighed in against that state’s bill. If it passes, though, I wonder if they’ll try to find a way to argue that their religion forbids collective bargaining.

Footnotes   [ + ]

1. The obvious intent and far more likely outcome of this law is to gut local ordinances that provide LGBTQ protections. Yet it would at least re-open the question of racial and religious discrimination in the context of any applicable state laws. Religiously-motivated racial, ethnic, religious, and gender discrimination might be permitted by state law, at least in some contexts, and we wouldn’t know until the courts sorted it out. In less life-or-death contexts, such as refusing to bake a cake for a Jewish wedding, some judges might find the state interest to be insufficiently compelling. Do you want to tell that couple, “It’s federal court or bust.”? I sure don’t. My broader point, however, is obviously that this provides an analogy, bringing the battles of the mid-20th Century to bear on today’s civil rights battle.

How to Solve the Vaccination Problem: Two Politically Feasible Proposals

My last post, “Is It Constitutional and Desirable to Require Vaccinations?“, asked serious questions about what at this rate is still probably not necessary. Here, I make two proposals that would be good policy right now, and would also be politically palatable.

After all, roughly 92% of American children are getting their MMR vaccine. How do we deal with the other 8%? This matters to everyone because vaccines are not 100% effective, and infants and some other folks can’t get vaccines for health reasons.

1. Eliminate, or at least harden, non-medical exemptions for school students

There are already two states, Mississippi and West Virginia, that only accept medical exemptions for public schools — not even religious exemptions. Little wonder, then, that Mississippi has a 99.7% MMR vaccination rate among kindergartners. It has been more than 20 years since either state had a case of measles.

This is good policy, and it should be adopted by the other 48 states. If your personal or religious beliefs are so strong that you insist on ignoring the advice of the collective, virtually unanimous opinion of medicine writ large, fine. You have to find another way to educate your children, at your own expense.

There is a bill in the California state legislature to do exactly this.

It’s getting some pushback from vaccine fear mongers, of course, but also from libertarian types. Here’s the thing, though: You don’t get to take advantage of a public service,  provided at public expense, and then tell the body politic that some very reasonable conditions placed on that service are a violation of your individual liberty.

It’s against policy to smoke anywhere on a K-12 campus in most if not all states — including in North Carolina, for G-d’s sake — and this infringement of liberty has come about with broad if grudging acceptance even among the gravelly-voiced crowd.

If you believe in this extreme of a version of personal liberty, you’re probably a follower (at least indirectly) of Ayn Rand. So take that reasoning to its conclusion. Rand didn’t even think public schools should exist. Until we abolish public schools and live in an objectivist utopia, then, there are just some times — from vaccines to seat belts to food safety inspections — that your liberty to do things “your way” might be curtailed.

Again: It’s constitutional to require vaccines, period, on penalty of a sizable fine. Requiring vaccines as a condition of using a public service? Sorry, not a violation of your basic rights.

But, you might say: What about private schools? Won’t all these well-off anti-vax families just pony up to send their kids elsewhere? A number surely will. The state should therefore also make private schools publicize their vaccination policies, exemption rates, and number of confirmed cases of vaccine-preventable diseases per year for the last five years. They should have to share this, in writing, with all current students’ parents and with any potential new students’ families.

A number of softer-hearted souls have proposed merely hardening the rules on personal exemptions — making it harder for parents to get the forms, making them resubmit every year, making them complete online learning modules, and so on. This has been partially effective, but it does not go far enough in my view.

“Resisting vaccination isn’t a matter of laziness; it’s actually time-consuming and expensive,” writes Whet Moser. Which means the same kind of parent who clings to anti-vax believes is also the kind of parent who will do “anything” for their kid. (Except, you know, make the single easiest decision a parent can make.) Instead of daring these folks to jump through more hoops, just keep the kids out of public schools, period.

If you want to compromise on the religious exemption, that is more reasonable — or, at least, less subject to the whims of changing opinions. I would, however, add a mechanism for sniffing out sham churches set up for this purpose.

I don’t feel particularly compelled to give on even this point, however. We have all sorts of rules in public schools that might conflict with a sincerely held religious belief, from mixed-gender classrooms to not letting kids get out of biology class because they don’t believe in evolution. If parents want something different on these counts, they have to find a school that meets their beliefs, and putting vaccinations on this list is perfectly reasonable.

2. Medical Isolation

Many people are talking about school policy changes, but I’m also concerned about infection at the doctor’s office — where you’ll find a disproportionately large share of infants and immunity-compromised children.

Thus, I propose that all medical offices have to post their vaccination policies prominently, and those caught not sticking to theirs are subject to a serious fine.

Imagine walking into the office and seeing this:

Statement of Office Policy on Vaccinations

XThis office only accepts patients that are up to date on their vaccinations (barring medical exemptions), and we verify.
This office only accepts patients that are up to date on their vaccinations (barring medical exemptions), but we do not verify.
X(If either of the above is checked) This office has after-hours "catch up" vaccinations.
This office accepts patients regardless of their vaccination status.

In today’s climate, that would be very reassuring to see. And if I make an appointment, show up, and instead it’s Box 4 that’s checked? My kid and I are going elsewhere.

If I discover this, I should leave, and I shouldn’t be forced to pay a cancellation fee. Such an office should also have to get written assent to this choice from all patients before they can bill for dollar one.

Box 2 would probably work well enough as long as patients/parents have to sign a statement, under penalty of perjury. Which brings up another important point: Verification would work best if states require that all immunizations be submitted to the state database. Vaccinating doctors are not required to submit this information in some states, such as (I’m very sorry to see) California, so it would be a good bit of extra work to be a Box 1 office.

I would probably be comfortable taking my child to a Box 2 medical office, but he’s 10, vaccinated, and healthy. If I had an infant or other especially vulnerable child, though, I’d really try to find a verified-immunization office.

It would be hard to find a doctor who’s willing to advertise to their patients that the unvaccinated are explicitly welcome in their office. Sure, even the occasional anti-vax quacks can be found, but it’s becoming hard to find doctors who will even see anti-vax parents. (Even without a mandate, if I were a doctor, I’d post a prominent “must be vaccinated” notice in my office, and I suspect we’ll start to see this soon in any case.)

So that’s my proposal: No public school without vaccinations or a valid medical excuse, and mandatory notice about medical office policies.

If you’re not vaccinating your children, you’re free-riding on herd immunity (to say nothing of harming your own child!), and the herd should try to limit the damage that your adorable little disease vector can do to the rest of us.

 

 

 

 

 

 

 

Is It Constitutional and Desirable to Require Vaccinations?

(This is the first of two posts, in which I ask if it’s desirable and constitutional to require vaccinations as a matter of law. My more pragmatic policy proposals are in part two.)

As with many others, I’ve been on an anti-anti-vax rampage on social media.

(I should perhaps rethink my strategy, but it’s not clear that there is a good strategy for dealing with someone once they’re in that camp. It’s not the first such example, either. How do you argue with a Scientologist? How do you convince congressional Republicans that we won’t eliminate the deficit without either raising taxes or seriously harming the economy? There aren’t a lot of good solutions here.)

Thus, one of my more libertarian friends (who gets all her kids’ shots, thank G-d, but who thinks you should use an alternative vaccination schedule that delays vaccinations) posted on my wall to ask if I would really support an infringement on individual liberty in the form of forcing folks to get vaccinated.

To which I say: Hell yes! I would support it, and it would even be constitutional. Which is not the same thing as supporting such a policy as politically pragmatic — but I have an answer for that, too.

As for my personal preference for whether we should force people to get vaccines against airborne pathogens — when they have been proven safe and effective, winning near-universal support among medical experts: Yes, I do want to live in that world.

I suppose I’d allow an exemption for truly anti-modern-culture isolationists who agree to keep away from broader society. (The Amish seem not to qualify on either count, by the way, with the majority getting vaccinated AND their willingness to participate in commerce with outsiders. Zippers no, shots mostly yes. Who knew?))

But in the general population — among those healthy enough to be vaccinated, of course — yes, I would support forcing folks to get their shots. If you’re not willing, I would gladly levy a stiff fine. (I mean, I’m not proposing that we lock unvaccinated families in a tent inside a hospital in Newark where they have to poop in a bucket or anything. That would be inhumane.) This would be especially effective if it had a high ceiling and explicit instructions to judges that it should be proportional to income — since, you know, being an anti-vaxxer seems primarily to be a disease of privilege.

The Supremes ruled on this over a century ago, by the way, in Jacobson v. Massachusetts. In 1905, the court ruled that Massachusetts was within its power to fine Jacobson five dollars (equivalent to roughly $130 today) for failing to get vaccinated, at zero cost to himself, against smallpox.

The Wikipedia article is mostly accurate — relative to my skim of the case (IANAL, as always) — but read some of what the Supremes have to say on the matter. Pretty convincing, and definitive, stuff:

… the liberty secured by the Constitution of the United States to every person within its jurisdiction does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint. There are manifold restraints to which every person is necessarily subject for the common good. On any other basis organized society could not exist with safety to its members. Society based on the rule that each one is a law unto himself would soon be confronted with disorder and anarchy. Real liberty for all could not exist under the operation of a principle which recognizes the right of each individual person to use his own, whether in respect of his person or his property, regardless of the injury that may be done to others.1)Court footnote 7

Not a lot of wiggle room left there. Watch them apply it to this specific question:

Upon the principle of self-defense, of paramount necessity, a community has the right to protect itself against an epidemic of disease which threatens the safety of its members. It is to be observed that when the regulation in question was adopted smallpox, according to the recitals in the regulation adopted by the board of health, was prevalent to some extent in the city of Cambridge, and the disease was increasing. If such was the situation,—and nothing is asserted or appears in the record to the contrary,—if we are to attach, any value whatever to the knowledge which, it is safe to affirm, in common to all civilized peoples touching smallpox and the methods most usually employed to eradicate that disease, it cannot be adjudged that the present regulation of the board of health was not necessary in order to protect the public health and secure the public safety. …

 

If the mode adopted by the commonwealth of Massachusetts for the protection of its local communities against smallpox proved to be distressing, inconvenient, or objectionable to some,—if nothing more could be reasonably affirmed of the statute in question,—the answer is that it was the duty of the constituted authorities primarily to keep in view the welfare, comfort, and safety of the many, and not permit the interests of the many to be subordinated to the wishes or convenience of the few.2)Court footnote 8

The court goes on, at length, in a way that might make the Ayn Rand followers of the world a bit uncomfortable. I feel no obligation to assuage their feelings, however. If what you’re doing might harm or kill me, the state has a right to stop you from doing it — even if it’s something as banal as forcing restaurant employees to wash their hands. Ditto foolish self-harm, such as with seat belt and helmet laws.

The decision is also a fantastic read for some historical context on exactly how far back the consensus on vaccines really reaches. For instance:

[Jacobson’s arguments] in the main seem to have had no purpose except to state the general theory of those of the medical profession who attach little or no value to vaccination as a means of preventing the spread of smallpox, or who think that vaccination causes other diseases of the body. What everybody knows the court must know, and therefore the state court judicially knew, as this court knows, that an opposite theory accords with the common belief, and is maintained by high medical authority.3)Court footnote 10

It is therefore the law of the land that, when confronted with a deadly infectious disease that is reliably and safely vaccinated against, a state or municipality may affirmatively compel the populace to be immunized.

This has been the definitive law of the land for 110 years, and the medical consensus behind — and safety of — vaccines has only increased.

This decision is many times more remarkable because it is from an era (the start of the Lochner era — Jacobson was published just two months before Lochner v New York) where the Court had a much, much more restricted view of what the state is allowed to do under the Constitution. This is the same session when the court held it unconstitutional for a state to tell employers how many hours a worker could work, and yet it held mandatory inoculation against deadly disease to be fully constitutional and consistent with American values.

I agree on both counts — constitutionality and consistency with our values. This is doubly so when it comes to children. They’re not your property. If you starve them or assault them or psychologically torment them, the state can and should intervene.

On the affirmative side, you have to send them to school or educate them in some comparable way, period; the value of education is not up for debate. When parents won’t do what’s demonstrably in a child’s best interests, the state can intervene and — when the risk is serious — should seriously consider doing so.

Thankfully, there are less invasive policy choices that would likely lead to the same desirable outcome of a return to near-100% childhood vaccination. That is the subject of my next post.

Footnotes   [ + ]

1. Court footnote 7
2. Court footnote 8
3. Court footnote 10

On DeflateGate, Statistics, and Reasonable Inferences

[I’m not a sports analyst, and this is not a sports blog. We’re scholars, especially of political communication, politics, and media policy. But I do crunch numbers, and I thought I could help add something to this debate.]

[Also, corrections and updates at the bottom, appended Jan 28, 2pm-ish.]

We’ve all spent the last week hearing a lot about Tom Brady’s balls. Patriots fans and Pats haters are fighting online with a viciousness that’s hard to overstate. A good number of you have also seen the use of statistics to try to sort out whether the Pats have a measurable advantage in something that would be directly related to the inflated pressure of footballs — namely, fumble rates. Statistical analysis is only good, however, if the data are correct, if we are testing what we think we are testing, and if we are using the right statistical tools for the job. In this case as in so many, we need more good analysis that asks the right questions and uses the correct data.

This post has a lot to say, so here’s a summary: Continue reading

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