Vice Squad
Wednesday, April 30, 2008
 
Anti-Gambling Legislation Successful!


Um, well, except the legislation is not passed as an explicit anti-gambling measure. Nevertheless, public smoking bans are reliable in decreasing gambling (as long as those bans apply to on-site gambling venues). [Smoking bans put quite a crimp into bingo, too.] The most recent evidence comes from Down Unda (a curiously north-centric term), in New South Wales: "The ban on indoor smoking is ripping tens of millions from the pub and club industry, and poker machine turnover fell almost 20 per cent in hotels last month."

Of course, declines in gambling are always over-determined. Sure, there's the smoking ban, but there are also high petrol prices, wetter-than-usual-weather (which reinforces the smoking ban in that fewer bettors are desirous of stepping outside for a cigarette), internet-based competition, and (according to the linked article), high interest rates. This is the first time I have run across the claim that high interest rates deter gambling, but there does seem to be a certain logic to it.

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Tuesday, April 29, 2008
 
Self-Exclusion, Unabridged


Vice Squad has something of a fixation with self-exclusion, those programs whereby problem gamblers (or people who fear that they might become problem gamblers) can volunteer to be barred from access to casinos. I have a short article in the Winter, 2008 Milken Institute Review on self-exclusion, arguing that parallel programs should be part of the mix when the currently illegal drugs are legalised. That article was a by-product of a longer paper that I let languish in an unfinished state. But now I have finished it, after a fashion, and posted it on SSRN, free for the downloading. The longer version isn't really all that much longer -- it's 20 pages. If that is too daunting, here's the rather tepid abstract:
Gambling jurisdictions around the world have adopted self-exclusion programs in which gamblers can voluntarily agree to be barred from further gambling. The popularity of self-exclusion stems from its aid in combating problem or pathological gambling, along with its non-coercive nature. To bolster the self-control of problem gamblers, exclusion programs combine physical inaccessibility and reward diminution: bettors are supposed to remain (or be kept) away from gambling sites, and the gambling winnings of excluded bettors can be confiscated. Other elements of program design that can affect the workings of a self-exclusion program include the duration of an exclusion, its revocability, and the breadth of gambling activities to which the prohibition applies. Self-exclusion or broader user licensing programs can be helpful for control of vices other than gambling. I argue that self-exclusion should form an integral component of drug regulatory frameworks that offer substantial improvements over drug prohibition.
The title of the paper is tepid too: "Self-Exclusion". But the ideas, well, they are revolutionary (in a tepid sort of way).

Update: There were some annoying ersatz characters at the beginning of the abstract on the SSRN page, so I just made a bid to remove them. We'll see if this works...

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Monday, April 28, 2008
 
Apostasy: Something More Important Than the Drug War


It's that little matter of winning the war in Afghanistan. A British outpost is surrounded by poppy fields. So of course, the soldiers are out in the fields, pulling up poppies and ensuring that the opium crop is not replanted, just like the head of the UN's Office on Drugs and Crime wants. Oh no, that's not right: the soldiers ignore the poppy fields and their diligent custodians:
Sometimes they even help them. When one poppy worker arrived at the camp gate suffering from heat exhaustion recently, he was referred to the main base in Garmser town, less than a mile away. He was treated by a military doctor. "We're not much interested in what they are doing with the poppy," said Sgt Russell. "We know it's going on but we're soldiers, not politicians. And we're here to do a good job."
Of course, the US and the UN haven't given up on eradication of the poppy fields. (Remember, the UN is committed to a drug-free world by...er, 2008):
US-funded efforts to destroy the crops with tractors and sticks have produced meagre results. This year's campaign left several eradication workers dead, dozens more injured and destroyed just 4,000 hectares of poppy - a sliver of the total. But officials are pleased that some major drug cultivators were hit. About a fifth of the crop of Abdul Rahman Jan - until two years ago the provincial police chief - was destroyed.
That last is quite a resounding victory in this war on an unapproved plant. Shout it from the mountaintops! One producer's output is but 80% of what it used to be! We might never achieve this level of success again.

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Friday, April 25, 2008
 
Another Cost of Criminalising Vice


The officers responsible for killing Sean Bell following his bachelor party at a strip club have been acquitted of all charges by a New York judge. I have not followed the case or the testimony so for the sake of this post I will accept that the verdict is reasonable. Other cases of police shootings of unarmed people -- most notably the Diallo killing -- also have resulted in exoneration for the police. (There might be an argument that those shot in the Bell case used their car as a weapon, but even if true, that only occurred because they were suddenly cut-off and boxed in by unmarked police cars. Here's a New York magazine article with many of the details.)

Sean Bell is dead, and there is no criminal responsibility for the police. It isn't hard to understand the latter part. Police have to make split-second decisions in highly uncertain and stressful situations. Lethal force, which can be applied at a distance, is widely available. A police officer who guesses that a suspect is holding a cell phone could easily be killed, if that guess is wrong and the object turns out to be a gun. (The first police officer to shoot in the Bell case believed from overheard conversations inside the club that a gun might be present.) I think that this is one of the main reasons that courts are extremely reluctant to convict police after the shooting of an unarmed citizen.

But what is the lesson? Well, it is a general point in public policy: the less effective are after-the-fact sanctions, the stronger the case for imposing before-the-fact controls. It is very difficult, and perhaps even undesirable in most circumstances, to hold police accountable for errors in judgment that result in the death of innocent (or even guilty!) civilians. Therefore, one should only initiate police/citizen encounters when the stakes are high. The police who killed Sean Bell were at the strip club as part of an anti-prostitution sting operation.

The criminalisation of prostitution puts prostitutes, clients, and police at great risk. The toll in the US is small relative to the deaths brought on by the criminalisation of drugs, but it is significant nonetheless. The criminalisation of prostitution isn't necessary -- many places get by just fine with legal, regulated prostitution. Even if prostitution policing were perfect and costless, and even if prostitutes were not put at great risk from clients in a prohibition regime, I would not favor the criminalisation of prostitution. But the violence suffered -- by prostitutes, johns, and police -- as a result of criminalisation makes a strong case for a legal, regulated adult sex market. One of the enduring mysteries of vice policy is why this steady violence has had so little impact on improving public policy towards prostitution.

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Thursday, April 24, 2008
 
Bingo and Smoking; Bingo or Alcohol


Vice Squad has been trumpeting the smoking-ban induced decline in bingo for so long now that it is amazing there is any bingo left. But there is, and today the New York Times catches up to bingo/smoking ban complemetarity: "[Managers of charity bingo parlours] say smoking goes with bingo like peanut butter with jelly."

For the vice policy aficionado, however, this week's premier bingo-related story derives from Carlisle in the UK. Remember those ASBOs of questionable constitutionality (British constitutionality, that is)? One 23-year old gentleman had a history of being a troublesome drunk, so he was given an ASBO prohibiting him both from drinking and from patronising drinking establishments in Carlisle city centre. (Incidentally, the idea that a troublesome drunk can have his drinking privileges revoked is consistent both with Vice Squad's robustness principle and with John Stuart Mill's interpretation of his harm principle.) But this particular yob, er, gentleman, also enjoys a bingo hall in Carlisle. Alas, the bingo parlour is a drinking establishment (no longer a smoking establishment in England!), so the terms of his ASBO would keep him from bingo-ing. This will not stand, cried the Cumbrian magistrates, and voila, an exception was granted: he can go to the bingo hall, but he cannot drink there. (Vice Squad is touched by this act of mercy.) If the exception is abused via bingo-hall drinking or other unseemly behavior, there will be consequences to pay -- perhaps a curse will be imposed.

Vice Squad has been on the road, or at home, nodding; apologies for the interregnum.

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Saturday, April 19, 2008
 
Aaland


The introduction of smokeless tobacco snus, a popular product in Sweden and Norway, into US markets is proceeding apace. Snus isn't very popular in the rest of Europe -- or at least any notional popularity is ineffectual -- because sales of it are banned in the EU (excepting Sweden). [Surely we all recall that Norway is not in the EU.] Two years ago Vice Squad noted how snus was certain to doom the EU, thanks to Finland's Aaland archipelago -- historically, culturally, and linguistically Swedish, Aaland is none too pleased at not being allowed to sell snus, because of Finland's membership in the EU. And none of those Finnish EU parliamentarians represent Aaland.

Aaland is currently reflecting its sense of abuse over snus by threatening to vote against the EU's Lisbon treaty. (Recall Vice Squad's post from late March.) That alone would not keep the treaty from entering into force, as long as EU-member Finland (and all other EU members) do ratify the treaty. An Aaland rejection, though, would complicate internal Finnish politics, as it would have to be settled to what extent EU rules would apply in Aaland. Here's an article with some helpful background, suggesting that Aaland's principled position is one of opposition to prohibition (of snus) without (EU) representation.

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Wednesday, April 16, 2008
 
Self-Exclusion is For Keeps in New Jersey


Vice Squad is a longtime fan of self-exclusion programs, those voluntary lists gamblers can join to be barred from entering casinos or collecting significant winnings if they do happen to sneak by. [Self-exclusion could profitably be employed for many vices, even the currently-illegal ones, I maintain.] Nevertheless, there are many ways in which existing self-exclusion programs can be improved, and lots of tricky issues concerning the details of their operation. Two issues concern the length of time over which an exclusion operates, and how to ensure that people do not self-exclude in a moment of intemperance. Both of these issues were under review in a recent New Jersey court case, in which a man was hoping to remove himself from Atlantic City's self-exclusion list. He signed up for a lifetime ban -- New Jersey also allows gamblers to choose one year or five year bans -- which he claims he joined impulsively. The erstwhile gambler was particularly distressed to learn (once he self-excluded) that those corporate Atlantic City casinos would not just exclude him from their Atlantic City locations, but from their casinos worldwide. This is a common practice. The court refused to remove him from the ban, which I think is probably the right decision.

Nevertheless, there are two obvious reforms that can help. First, people considering joining a self-exclusion list should be warned that their action might spillover to other jurisdictions. Second, long-term bans should themselves require a waiting period. A person who approaches a casino about self-exclusion should receive an immediate short-term exclusion, but for a lengthy term, he or she should have to take further action at a later date. (See the Blaszczynski, Ladouceur, and Nower suggestion noted here.) This action probably should be arranged to take place at a non-gambling locale, to reduce temptation.

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Tuesday, April 15, 2008
 
"Defend Our Porn"


That's the title of a website that has just been launched by the company and individual recently charged with federal obscenity crimes. (The subtitle is "Protect Our Freedom.") The site has news about the case, a guest book with some interesting posts from supporters, and information about donating to the cause. Seems the Justice Department was so enamored of this case that its press release announcing the indictments preceded (by days) any official notification to the targets.

Here's the site's Mission Statement, from the "Donate" page:
DefendOurPorn.org is a site started in 2008 as a direct result of the Federal government filing an obscenity indictment against John Stagliano, John Stagliano Inc and Evil Angel Productions for the traffic and interstate commerce of two pornographic movies and the website available of a trailer for a third pornographic movie.

In the days following the indictment, Mr. Stagliano received an outpouring of support from adult industry members and fans, asking how and where they could donate money to help fight the legal case. DefendOurPorn.org was founded.

Any money which is donated and not used towards the legal defense of the John Stagliano / Evil Angel case will be rolled over in the DefendOurPorn fund and will be earmarked for future First Amendment / obscenity prosecutions.

Note from Karen Stagliano:
In the very near future, DefendOurPorn.org will be formed as a non-profit organization. Unfortunately, the Justice Department released a press release about the indictment against John Stagliano / Evil Angel before actually notifying the defendants, so we have been organizing things here while keeping day-to-day operations on schedule.

Thanks to AVN.com for the pointer -- link Not Safe For Work.

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Monday, April 14, 2008
 
Nudge


Vice Squad was in the audience this evening when Cass Sunstein spoke about his new book with Richard Thaler, Nudge. Sunstein and Thaler are the impresarios behind Libertarian Paternalism, an approach towards public (and private) policy that is fairly congruent, in the case of vice, with the Robustness Principle. ("Nudge" is a less off-putting synonym for Libertarian Paternalism: the authors also considered "One-Click Paternalism," the idea that you could override a default setting pushing you in a presumably desirable direction with one click of your mouse.) Nevertheless, Nudge does not address policy towards illegal drugs, though it looks as if alcohol, smoking, and gambling receive some attention; I am relying upon the index here.

Sunstein provided a bit of a road map about how he and Thaler were led to collaborate on Libertarian Paternalism and then Nudge. By the late 1990s, behavioral economics (with Thaler in the vanguard) had established fairly convincingly some common shortfalls from rationality, including over-optimism and a rather general disability in dealing with risky situations. Two types of interventions seemed to offer some hope for better results: (1) changing default options to those presumably desirable settings, as many people would just stick with the defaults, even when it was almost costless to choose differently; and (2) allowing people to precommit to putting some of their future raises into savings (Thaler is a co-inventor of "Save More Tomorrow" plans, of which I am a beneficiary). Since then, the idea that "Choice Architecture," the setting in which choices are made, is a powerful determinant of the choices that actually are made, has taken on equal prominence in Nudge. (Shades of "Drug, Set, and Setting.") Sunstein talked about the desirability of "Give More Tomorrow" plans that would allow people to precommit part of their future raises to charity. He also suggested that those of us (the vast majority of the audience) who had not bothered to sign up for automatic bill-paying options were mistaken and paying more (via late fees) while enduring higher transaction costs, too -- we were being overly influenced by the inertia that he also attributed to his continued paid subscriptions to five magazines that he originally received on a temporary, no-charge basis. In the question and answer period -- the architecture was such (involving a walk to a centrally placed microphone) that I did not trouble him with any queries -- Professor Sunstein mentioned the difference between thin and thick concepts of consent. A miner (to use Professor Sunstein's example) can be said to give thin consent to the risk of working underground by taking the job. Thick consent requires more, the notion that adequate information should be absorbed as well -- with the fact that a job was accepted without force or fraud being insufficient to establish thick consent. I am a fan of measures to assure thick consent for legal participation in some vices.

Professor Sunstein currently is guest-blogging about Libertarian Paternalism at the Volokh Conspiracy; his initial contribution is here. [Update: Nudge has its own blog!]

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Sunday, April 13, 2008
 
Beer During Prohibition


Beer sales were illegal during national alcohol prohibition in the US, of course. Well, except for near beer, which had a level of alcohol below the Volstead Act's .5 percent limit. (Near beer is produced by making beer, and then removing the alcohol; hence, legal near beer provided various obvious channels to evade the Prohibition rules.) But there is another sense in which beer sales were not illegal during Prohibition -- at least part of Prohibition. Between April and December 1933, full strength (3.2 percent) beer sales were legal, although Prohibition was still in force. The freshly inaugurated President Roosevelt had Congress amend the Volstead Act, to redefine those illegal "intoxicating liquors" as containing more than 3.2 percent alcohol. So the brewers got an 8-month jump on the distillers in re-entering the legal market. Not everywhere, though -- state dry laws or a dearth of implementing legislation delayed the return of beer in a majority of states.

Last week saw the 75th anniversary of the return of legal beer to the US. The event was marked in the Los Angeles Times through an op-ed by Maureen Ogle. One can learn a lot about beer and beer history from her blog; here are the beer-related posts. Thanks to Alcohol and Drugs History Society for the pointer.

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Saturday, April 12, 2008
 
Atlantic City's Gambling Decline


Since legal casinos opened in Atlantic City in the late 1970s, gambling revenues went up every year -- until 2007. The decline continued through the first three months of 2008, with a 6.4% drop relative to the same period last year. In March, all 11 Atlantic City casinos reported lower gambling earnings than in March 2007. Part of the problem is surely the recent legalization and proliferation of slot machines in neighboring Pennsylvania -- though table game revenue is down, too, in Atlantic City, despite no direct competition on that score from the Keystone State.

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Friday, April 11, 2008
 
Prohibition as Liberalisation


During national alcohol prohibition in the US, beverages with trace amounts -- up to .5% -- of alcohol were not banned. But what about the rule in Islam, which also prohibits alcohol? How much of a trace of alcohol is necessary before the Islamic ban is triggered? According to a fatwa issued by a prominent Egyptian cleric, the answer is --- .5%! Who knew the lasting influence of the Volstead Act? In the case of the fatwa, some are worried that the .5% limit represents a dangerous liberalisation.

The Volstead Act did not make the purchase of alcohol illegal, and even alcohol possession was quasi-legal during Prohibition. So if we were to adopt Volstead Act-like standards towards our currently prohibited drugs, that would represent a dangerous liberalisation.

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Thursday, April 10, 2008
 
Regulating Vice: Chapter 3 (part 2), "The Robustness Principle"


Recall that surprise bestseller Regulating Vice calls for the robustness principle to govern vice policy. Policies are robust if they work pretty well independently of the extent to which vice participants are rational. That is, the policies should be serviceable if everyone is completely rational in their vice-related choices, and they should work pretty well even if lots of folks are wacky. From Chapter 3 (footnote omitted):

The main rationale for the robustness principle lies in ignorance. We can’t easily judge when a habit becomes an addiction or when rational consumption involves dynamic inconsistency or shades into compulsion. Therefore we want to avoid a regulatory regime that only makes sense if there is no such thing as vice rationality, or an alternative regime that only works well if everyone makes considered, sober judgments about his or her vice participation. What we tend to end up with when we avoid these extremes is vice controls that offer some assistance to those who are misinformed or struggling with self-control issues, as long as those controls do not impinge significantly upon those who are rationally vicious. In the realm of adult self-regarding vice, robust public policies can inform, entreat, and induce – but not compel.
Robustness is a sort of insurance against our own propensity to error. Policies that harshly punish private vice participation -- which in many manifestations has no obvious externalities -- would be inconsistent with robustness. But so might an unregulated market for highly addictive goods, because such a market would bring significant costs if myriad folks are addicted or diseased with respect to their consumption of the good.

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Wednesday, April 09, 2008
 
Feds After Mainstream Porn?


A new federal obscenity case has come into being, with the target a well-known figure in the pornography industry. He directs his own films (apparently inventing or at least being a progenitor of "gonzo" porn) and live shows, but also operates companies that produce and distribute porn videos directed by others. The charges against him (and his companies) arise from some of these other films. From what I can gather from this article (not safe for work) at Adult Video News.com and this one in the LA Times, the obscenity charges differ from those in recent cases because the porn itself is not particularly extreme. That is, there is a hint in these stories that these charges are aimed at restricting a much broader segment of the current porn market than was previously targeted. At least on this score, our Attorney General is a man of his word.

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The Answer is "62"


The question is, what percentage of voters in each of two "J" locales chose to pull the lever against casinos in referenda yesterday? In both Jasper County, Iowa, and Jefferson City, Missouri, the magic 62 percent of voters said no to legalising these particular dens of vice. Jasper County is hurting from the closure of a Maytag factory, but residents -- that is, 62 percent of residents -- still were unwilling to pursue a casino for the Newton area. Actually, the Jefferson City referendum contained two separate gambling liberalisation questions. Both were rejected by, uh, 62 percent of the voters. That 62 is a sort of lucky -- or unlucky, depending on your point of view -- figure, no?

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Monday, April 07, 2008
 
BDSM Phone Sex and Faculty, Grad Student Relations


Via SWOP-East Vice Squad learns of some ongoing controversy at the University of New Mexico (while generating a much more sensational blog post title than is the Vice Squad norm). Most of our information comes from a series of three articles at Sex in the Public Square (Here are articles one, two, and three.) Seems that a (tenured) faculty member in English was also engaged in some phone sex work with a BDSM angle. The phone sex, of course, is completely legal. (Everyone involved in the story is an adult.) Photos were taken for advertising purposes, and in (at least?) one of the photos, the professor was shown with one of her female graduate students. That student was also working for the phone sex company. News of the photo leaked, some colleagues were outraged, the university investigated, and found that there was no reason to sanction the prof. Then the director of the creative writing program resigned the directorship in protest at the lack of university sanctions; the resignation did not extend to her faculty position, only to the directorship.

The second of the linked articles consists of an interview with the professor involved. (The third article features the voice of the grad student.) She makes a couple of points that cohere with my own personal experience. First, that unmarried faculty often are socially more connected with (mostly unmarried) graduate students than they are with their married faculty colleagues. ("...as an unmarried woman in a department of married people with families, I often find I have more in common with the graduate students than I do with my colleagues.") And second, that vice (or vice policy) work leads to increased recognition and tolerance for other people's "vices". ("I also learned to be even less judgmental than I had been before about other people’s sexual choices. So many callers had felt years of shame for their particular interests, and often it was a relief for them simply to be able to talk without being judged.")

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Saturday, April 05, 2008
 
Regulating Vice: Chapter 3, "The Robustness Principle"


Enough time has elapsed since the, er, five-part summary of Chapter 2, for Vice Squad to move on to summarizing Chapter 3 in surprise bestseller Regulating Vice. Recall that we started by looking at John Stuart Mill's harm principle. Then we explored addiction, to see if there is any reason to alter the harm principle because of the addictiveness and self-control problems (or just plain shortfalls from rationality) associated with many vices. Chapter 3, "The Robustness Principle," argues that yes, Mill's approach -- which would rule out policies that have as their motivation the reduction of adult vice -- should be replaced by that pesky Robustness Principle, long foisted on the loyal Vice Squad reader. From Chapter 3:

Some adult vice-related consumption is harmful and (arguably) less than rational; further, we cannot easily distinguish rational from irrational choice with respect to vice. This leads us to the robustness principle.... Public policy towards potentially addictive activities should be robust with respect to departures from full rationality. Vice policy for adults should hold up pretty well if everyone is always well-informed and fully rational, and it should work well, too, even if some or many vice-related choices are irrational. We require this robustness precisely because we cannot ascertain how much vice is rational, nor distinguish the rational component from that which flows from a degradation of the reflecting faculties.

A robust vice policy will provide some support for those who are uninformed or struggling with self-control in their decision making. The provision of such support should not impose substantial costs upon those whose vice-related decisions are marked by rationality. One example of a policy that satisfies the robustness principle is a requirement for purchases of heroin, say, to be made with at least three days’ notice – where the notice would be revocable by the adult would-be purchaser at any time during the ensuing waiting period. Rational heroin consumers, and even rational addicts, can then assure themselves of a steady supply, but those struggling with self-control issues will not be able to immediately satisfy an unforeseen craving and can cancel an impulsive order when their decision-making faculties are controlled by their more considered selves.
I suspect some more Vice Squad discussion of the Robustness Principle in the days (weeks? decades?) ahead. [Update: Here's the brief follow-up post.]

For those keeping score at home, here's the Regulating Vice Posts Roundup:
(1) Announcement
(2) Introduction (part I)
(3) Introduction (part II)
(4) Introduction (part III)
(5) Erratum, Page 2!!
(6) Chapter 1, The Harm Principle (part I)
(7) Chapter 1, The Harm Principle (part II)
(8) GMU Talk (part I)
(9) GMU Talk (part II)
(10) Chapter 2, Addiction (part I)
(11) Chapter 2, Addiction (part II)
(12) Chapter 2, Addiction (part III)
(13) Chapter 2, Addiction (part IV)
(14) Chapter 2, Addiction (part V)

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Friday, April 04, 2008
 
Big Tobacco, Big Win


You know how light cigarettes are better for you than regular cigarettes? Oops, that's right, there is evidence that they aren't better for you. They would be, presumably, if you smoked light cigarettes the same way that you smoke regular ones. But precisely because they are light, you will tend to smoke seven light cigarettes simultaneously, and then eat the still smoldering butts. Or something like that.

Hey, didn't tobacco companies sort of suggest that light cigarettes weren't as harmful as regular cigarettes, without telling us that we would smoke them seven at a time and then eat the detritus? Let's sue! For, oh, $800 billion! We'll use the RICO Act against those tobacco racketeers! It's a class action!

Or it was:
A federal appeals court tossed out an $800 billion class-action lawsuit against tobacco companies on Thursday brought by smokers who said they were deceived into believing "light" cigarettes were healthier.

The U.S. Court of Appeals for the Second Circuit said the smokers could not sue collectively. The decision means each individual smoker must prove that she or he had selected the product for perceived health benefits.

Seems that there might be questions of fact that were not common to the putative group. For instance, some people might have purchased light cigarettes for the cachet, instead of any suggested health benefits.

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Thursday, April 03, 2008
 
Limits to the Theatre Dodge, Part 2


Minnesota's public smoking ban does not apply to theatrical productions, which allowed some bars to skirt the ban by declaring their festivities to be theatre. (The man struck back, of course.) Colorado avoided similar contretemps by not providing an exception for theatrical productions. But this means that certain plays or other entertainments cannot grace the boards in Colorado. Some theatres took the state authorities to court, arguing that the smoking ban violated speech protections guaranteed by the First amendment. The trial court ruled for the state. Bruce Ramsey, a columnist for the Seattle Times, continues the story:

The theaters appealed. In the appeal, attorney Bruce Johnson of Seattle's Davis Wright Tremaine argued on behalf of 444 theaters across America that playwrights include smoking in a script in order "to better convey a sense of character" and "to establish a mood or state of mind." There are even plays about smoking, such as Bill Russell's "The Last Smoker in America." And because playwrights have the right to prohibit groups from performing altered versions of their plays, Johnson argued, the Colorado smoking ban might mean certain plays could not be performed at all.

On March 20 this year, the Colorado Court of Appeals ruled against the theaters. Smoking, the judges said, "is not sufficiently expressive" to be afforded First Amendment protection. Public health trumps freedom.

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Tuesday, April 01, 2008
 
Alcohol Advertising in College Newspapers


The state of Virginia has a law that bans most alcohol advertising in college newspapers. Make that, they had a law -- a federal court has declared the law to be a violation of free speech guarantees. As a matter of law, the decision probably is sound. The state provides no evidence that the ad ban actually promotes the cause of reduced underage drinking -- and hence one of the planks of the "Central Hudson" test governing US commercial speech jurisprudence, that a valid regulation has to directly advance some substantial government interest, is not met. But as a matter of policy, I wonder if the standard approach to commercial speech is appropriate for vice-related goods. Not just "wonder" -- I believe that stricter controls on commercial vice speech will lead to increased freedom, as more vices will be legal if their advertising can effectively be controlled. (I prefer a version of the Posadas approach.)

Hard liquor advertising probably will continue to stay away from Virginia's college newspapers: the code of conduct for the spirits trade association does not allow ads in college papers. The Beer Institute's code has no such rule, but does preclude advertising that doesn't comply with a college's own regulations.

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