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OpenMarket: Law and Constitution

  • Where Facebook Interim Report on Bias Falls Short

    August 20, 2019
    Today former U.S. Senator Jon Kyl (R-AZ), in fulfillment of an arrangement with Facebook, released an independent Interim Report (and accompanying op-ed) cataloging the primary concerns of conservatives who, as is now well known, regard Facebook as unfairly biased and opposed to conservative viewpoints.
  • States Making Predictable Grab for Revenue via Online Sales Taxes

    August 14, 2019
    Fallout from the 2018 South Dakota v.​​​​​​​ Wayfair Supreme Court decision, which allowed remote sales tax collection from online purchases, has begun and The Wall Street Journal editorialized on the sad state of affairs yesterday. The Competitive Enterprise Institute spent twenty years articulating the advantages of tax competition and warning of the repercussions of allowing states to reach outside their borders and collect taxes from businesses located entirely outside that state.
  • Leaked White House Executive Order on 'Censorship' Violates Two Basic Constitutional Tenets

    August 9, 2019
    Earlier this week it was reported that the Trump administration was drafting an executive order to combat perceived “censorship” of conservatives on online platforms such as Facebook and Google. Without details, the Competitive Enterprise Institute urged caution since the First Amendment does not empower government to police speech but rather restricts government from limiting or compelling speech.
  • VIDEO: Where the Regulatory State Came From

    August 9, 2019
    Our friends at the Pacific Legal Foundation have a funny and insightful explainer video on the historical development of the regulatory state (also known as the “administrative state”), and how the power of administrative agencies threaten our constitutional rights.
  • Nipping at Big Tech's Heels: Competition in Social Media

    August 7, 2019
    There has much bemoaning and hand-wringing by members of Congress on the alleged dangers of social media.
  • Most of Federal Government Action Would Survive Even Strict 'Gundy' Analysis

    July 11, 2019
    The Supreme Court’s recent decision in Gundy v. United States “suggests that the way our government works will be substantially changed towards greater democratic involvement,” as my colleague Devin Watkins explained on these pages last week. Although the Constitution permits Congress to pass laws that “leave the executive the responsibility to find facts and fill up details,” as Justice Gorsuch wrote in his Gundy dissent, “Congress must set forth standards ‘sufficiently definite and precise to enable Congress, the courts, and the public to ascertain’ whether Congress’s guidance has been followed.”
  • More to Like in Zuckerberg's Aspen Talk Than Not

    June 27, 2019
    Yesterday at the Aspen Ideas Festival, Facebook CEO Mark Zuckerberg touched on some of the most pressing issues facing his company and big tech as a whole. While his continued calls for government regulation of social media companies and other online services are dismaying, many of the principles Zuckerberg laid out represent exactly why such government intervention is not necessary and likely won’t produce better results.
  • State Legislatures Seek to Undermine 'Janus' Decision

    June 27, 2019
    Labor unions continue to deny the First Amendment rights of public employees despite the Supreme Court’s landmark decision in Janus v. AFSCME, which ruled one year ago that non-union workers cannot be compelled to pay union fees as a condition of employment. Many public employees that want to drop their membership have found it can be exceedingly difficult to do so.
  • 'Gundy' Decision Could Signal Fundamental Reform of Administrative State

    June 26, 2019
    It is hard to describe how important the Supreme Court decision last week in Gundy v. United States is. In one sense, nothing changed—no case was overturned, no new law was made, and Mr. Gundy is still going to jail. But in another way, the Gundy ruling suggests that the way our government works will be substantially changed towards greater democratic involvement.
  • Post-'Janus', Unions Continue Undermining Public Workers' First Amendment Rights

    June 24, 2019
    It has been nearly one year since the U.S. Supreme Court restored the First Amendment rights of public employees, but many members are still having difficulties exercising these new rights. In the landmark Janus v. AFSCME decision, public employees who are not members of a union can no longer be forced to pay agency fees, better known as forced union dues, as a condition of employment.

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