We live in a democratic society, and that means that we can put certain issues and people to a vote and let the majority rule. However, there are certain rights that no majority percentage can vote away: the right to worship, the right to speedy trial, and the right to speak and express oneself freely are some examples. However, residents of the city of Los Angeles may soon get a chance to weigh in on whether or not adult film actors have the right to decide for themselves: condoms or no condoms.

The AIDS Healthcare Foundation (AHF) has advocated for the enforcement of condom mandates in the adult film industry for many years. Their most recent tactic is to put their mandate to a vote. By the end of November, AHF had enough signatures (15% of the voters in the previous mayoral election) to get the Initiative on the ballot. This means that come June 2012, LA residents might be able to vote on whether or not to tie porn production permits to the mandatory usage of “barrier protection,” like condoms in the film’s production.

However, there’s a big problem with the Initiative: prohibiting films that refuse to use condoms is a violation of the constitutionally guaranteed right to freedom of speech. While the U.S. is a democracy, we’re a constitutional democracy, which means individuals have a number of rights that are protected, regardless of the number of people who vote to abridge them. For example, 99% of a town may vote to make it lawful to imprison the 1% of the population without a trial. The measure might pass, but it would not be lawful as it would violate the constitutional right to a trial. In this case, the condom mandate would abridge free speech by prohibiting adult films that refuse to utilize some form of barrier-protection. (more…)

For many years, beer and wine wholesalers have ardently defended states’ right to regulate alcoholic beverages. Their wholesalers’ associations—the National Beer Wholesalers Association and the Wine & Spirits Wholesalers of America—have written countless letters to the editor, op-eds, press releases, and appeared in the media pushing for the passage of a bill they helped to write, the Community Alcohol Regulatory Effectiveness (CARE) Act (H.R. 1161).

The wholesalers claim the law would prevent the federal government from usurping the right of states to regulate alcohol under powers granted to them by the 21^st Amendment, which repealed Prohibition and set up the three-tier system of producers, wholesalers, and retailers that persists to this day. The law would exempt alcoholic beverages from the Interstate Commerce Clause’s protection against states enacting laws that discriminate against out-of-state businesses.

In effect, the beer and wine wholesalers associations want the feds to leave alcohol regulation to the states. So, it’s puzzling that when federal agencies heavy-handedly try to regulate alcoholic energy drinks like Four Loko, there’s hasn’t been so much as a peep from the wholesalers.

If you haven’t been following CEI’s writing on the issue, Four Loko was a flavored malt beverage that contained 12 percent alcohol by volume as well as stimulants like caffeine, taurine, and guarana, and was sold in brightly colored 23.5-ounce cans. After a few college kids drank themselves into the hospital and blamed the alcoholic energy drink, Four Loko’s manufacturer, Phusion Projects, found itself at the heart of a media firestorm. (more…)

The Federal Trade Commission’s (FTC) supposedly voluntary guidelines for marketing food products to children, if adopted, would undermine free speech, seriously hinder small businesses, consumer choice, and could adversely affect rates of childhood obesity.

The guidelines, put forth by an interagency working group with members from the FTC, Centers for Disease Control and Prevention (CDC), Food and Drug Administration, and the U.S. Department of Agriculture, stipulate that producers of food and drink products who market to children between the ages of 2 and 17 voluntarily make sure those products contribute to the government’s recommended daily nutritional requirements and do not contain high levels of added sugar or salt.

While the guidelines are touted as voluntary, the power these five agencies wield over the industry would almost certainly make them a de facto mandate, as few members of the industry would risk running afoul of government entities that can issue licenses, fines and sanctions, ban products, and file lawsuits.

The goal of the guidelines, as stated in the Agencies’ report is to address “high rates of childhood obesity” over the next five years. To accomplish that goal, they want to modify the nutritional makeup of foods that are heavily marketed to children so that only foods that make “a meaningful contribution to a healthful diet” are advertised to kids and teens.

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On April 15, a day now known as “Black Friday”, the U.S. Department of Justice (DOJ) effectively shut down three major online poker websites by seizing their domain names. The DOJ’s heavy-handed prosecution of the websites, all of which are based abroad, has made a mockery of America’s stated commitment to Internet freedom. The seizures have also hindered the online gambling operations in nations where Internet poker is completely lawful and the U.S. government has no jurisdiction.

Given that the seized poker websites are housed and regulated by foreign nations—Poker Stars is registered in the Isle of Man, Full Tilt in Ireland, and Absolute Poker in Antigua—how could the U.S. government unilaterally seize their domain names? The short answer is that all of the sites end in “.com.” All such domains are registered in the U.S. and, hence, are subject to U.S. civil forfeiture laws.

Author and legal scholar Larry Downes has critiqued civil asset forfeiture laws on the Technology Liberation Front blog. He argues that the laws are actually intended to punish suspects before they are convicted. “The purpose of forfeiture laws,” Downes laments, “is to help prosecutors fit the punishment to the crime, especially when restitution of the victims or of the cost of prosecution is otherwise unlikely to have a deterrent effect.” Domain name seizures often occur without a trial and often without any warning to the owners, as was the case in Black Friday’s seizure of poker domains.

The government’s move has reignited the controversy over U.S. federal agencies using domain seizures to punish foreign entities allegedly in violation of U.S. laws. While the DOJ did not technically “take down” the poker websites, federal agents obtained a court order that compelled Verisign, the global operator of the .com registry, to reroute the poker sites’ domain names to a government page featuring intimidating federal logos notifying users of the seizure. As a result of the seizure, no computer in the world—even those in countries where poker is explicitly legal—could access the poker sites via their domain names.

This latest round of seizures follows a series of similar actions taken in recent months by Immigration and Customs Enforcement (ICE), which has seized the domain names of dozens of websites alleged to be engaged in copyright infringement. One such site, the Spain-based Rojadirecta.com, had actually been deemed legal by Spanish courts.

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While the American online poker community is still reeling from the federal government’s recent crackdown on online gambling websites, it’s worth considering the significance of the date of the seizure and indictment: April 15.

The indictment was handed down by a grand jury and sealed on March 10, 2011, but the Department of Justice (DOJ) waited more than a month before taking action against the online poker companies and the banks involved. While the concurrence with Tax Day was likely a coincidence, it nevertheless reveals the government’s true priorities at the heart of its prosecution of online gambling: money and control.

Keeping foreign operators out of the U.S. market will enable the government to keep more American money in the U.S. subject to tax, as well as prosecute any remaining operators based within the United States.

In December, news broke that the District of Columbia was considering legalizing online gambling. The law was enacted on April 13, 2011, two days prior to the unsealing of the indictment.

D.C’s legalization of online gaming came on the heels of several deals struck between land-based American casino operators and established foreign online poker rooms to work together should online gaming become legal in the United States. For example, U.S. casino operator Wynn and Isle of Man-based PokerStars (now one of the companies under indictment) announced a partnership from which Wynn has since pulled out.

Ironically, the indictment hasn’t hurt online gambling sites, which saw their share prices rise.

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Last month, I discussed the negative impacts that a nutritional label mandate would have on small producers of alcohol beverages, such as craft brewers. Another side of this issue is the negative impact that prohibiting nutritional labels has caused small and large alcohol beverage producers—as well as health-conscious consumers of adult beverages.

I sat down with the executive Vice President of Diageo, one of the world’s largest producers of adult beverages (its brands include Guinness, Smirnoff, Jose Cuervo, and many others) to discuss how voluntary labeling could help both consumers and producers of alcohol, big and small.

In 2004, the National Consumers League called on the Federal Alcohol Tax and Trade Bureau (TTB) to reform alcohol label requirements so that consumers of adult beverages can make better nutritional decisions (it wasn’t the only group calling for change). At that same time, Diageo began its lengthy battle with the TTB to be able to attach to its products labels that included information on calories, carbohydrates, and alcohol content. The agency rejected Diageo’s request.

Now, seven years later, the TTB has not changed its rules, and consumer groups have asked again that it issue a final rule. However, in 2007 the TTB did issue a notice of proposed rulemaking that would amend its regulations to require a statement of alcohol content on all alcohol beverage products as well as a “serving facts” panel on alcohol beverage labels that would include a disclosure of calories, carbohydrates, fat, and protein. According to TTB spokesman Tom Hogue, the issue is a complicated one and federal officials aren’t likely to issue a final rule anytime soon.

While Diageo and other alcohol beverage manufacturers strongly support the idea of allowing nutritional data to appear on bottles, they currently support doing so on a voluntary basis. “Let the market place decide. If companies don’t think their consumers want labels then don’t have labels, but don’t prevent us from telling our consumers what’s in our products,” said Diageo Executive Vice President Guy Smith.

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Last month, President Barack Obama signed a highly publicized Executive Order demanding a government-wide review of existing laws to remove regulations that stifle job creation and hamper America’s economy. Meanwhile, the Obama administration is considering a new alcohol labeling requirement that would devastate America’s small brewers, hampering their ability to grow and hire new employees—and even to continue operating.

Big producers of alcoholic beverages are supporting a proposal before the federal Tax and Trade Bureau (TTB) that would require manufacturers of alcoholic beverages to list the nutritional content of their products, such as calories, alcohol content, and carbohydrates.

Supporters of the proposal claim that it will help provide consumers with more information to make better choices, but the result will be an increase in production costs could force some brewers of craft beers to close their doors while depriving others of the funds they need to grow their business—and hire more workers. This will mean fewer varieties of beer, more expensive products, and fewer jobs throughout the entire nation, as every state is home to small breweries.

Larger breweries will have little problem absorbing the cost of the new rule. In addition to the economies of scale they enjoy from large-scale production, major brewers only produce a few limited beer lines. Having fewer products limits the cost of providing content analysis and labeling.

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