What-we-don’t-know-won’t-hurt-them Dep’t

Mayor Bloomberg, the NYPD Counter-Terrorism Division, and the Department of Homeland Security want to require a police permit for the possession of air quality monitors in NYC. No, seriously.

Mayor Bloomberg and the Counter-Terrorism Division of the NYPD, prompted by the federal Department of Homeland Security, have an original idea for dealing with the problem of localized air-quality problems. They want to require anyone using an air-quality monitor to get prior permission from the police. No exception for research or journalism or legal practice. Apparently &#8212 it’s hard to tell from the article &#8212 no standards for issuing permits.

The excuse for the legislation is to prevent false alarms. There haven’t been any, ummmmm… actual false alarms so far. But better safe than sorry, right? Anyway, the next time DHS and the city government want to issue false assurances about air quality, it’s essential that no one be in a position to refute those false assurances. Anyone who tries to do so must be a nut-job conspiracy theorist in any case; this law will ensure that those people can be accused of either making stuff up or breaking the law.

Since the announced purpose of the legislation is to prevent panic due to false reports, this seems to me like a back-door approach to content-based regulation of speech, which is First Amendment no-no. Can any of my lawyer-readers clarify?

In the meantime, Constitutional or not, the mind-bending stupidity and arrogance embodied in the legislation ought to be reason enough for even David Broder to jump off the Bloomberg bandwagon.

“Ought to be,” of course, isn’t the same as “will be.”

[Hat tip: Michael at Discourse.net.]

Update First reply from a law prof: stupid, but not unconstitutional. I’m willing to believe it, but surprised. Isn’t information-gathering necessary to exercise both speech and press rights? Could a city require a police permit for the use of cameras?

Second update A lawyer-reader dissents:

I disagree with the law professor. After reading the article, it seems to me that the law would be unconstitutional.

The article makes clear that the purpose of this proposed law is to prevent the content of certain speech. That is, the pushers of this law want to prevent speech which causes a panic about air quality. The courts analyze laws which affect the content of speech using “strict scrutiny.” Strict scrutiny requires two very tough requirements:

1. Compelling objective: The objective the government is being pursuing must be “compelling.” An argument that the objective is legitimate or rational is not good enough. The objective must be compelling.

2. Necessary means: The the government must choose “necessary” means to achieve the compelling objective. In other words, the “fit” between the means and the end must be extremely tight. The government must demonstrate that no less restrictive alternatives exist to accomplish the compelling goal.

Courts rarely find laws constitutional when they apply the strict scrutiny standard. This is especially true in First Amendment cases.

Neither strict scrutiny requirement exists for this law. No one is causing a panic by using their air-quality monitors. No problem, no compelling interest. The government might argue that preventing a panic caused by false alarms is a legitimate government goal. Indeed, that may be true. But, as above, in order to restrict the fundamental constitutional right of free speech, the government must be pursuing a compelling interest, not a legitimate one. (Of course, an illegitimate purpose is more likely — limiting citizens’ right to learn the truth about their air quality.)

Throwing people in jail for merely having an air-quality monitor is not the least restrictive approach to stopping a false bad air day panic. Indeed, requiring a police permit to have an air quality monitor strikes me as completely unrelated to preventing a panic caused by a false alarm. I really am having trouble even imagining the nexus between a police permit and false reports which cause a panic. What on earth would the requirements for the permit be? How could these requirements be drafted so that they were the least restrictive possible and be necessary to preventing false reports? I just don’t see it.

The proposed law is not only stupid, it’s unconstitutional.

That looks right, to my untutored eye.

One possible analogy would be laws regulating fire alarms. But there the issue is the drain on public resources from false alarms, and the penalty is for the false alarms, not for having an alarm system in the first place.

Third update A con-law professor speaks up, mostly raising queries. (The technique is sometimes called ““Getting to Maybe”. I reproduce his note verbatim, including the parts that are Greek to me. Keep sending ’em, and I’ll keep posting ’em.

I have to say, I find it really scary that this is even a close issue legally.

My first wild guess, just to play along cooperatively, might be that the ordinance, assuming some colorable police power interest, could survive a facial free speech challenge. [insert justifying argument here]

In a proper as applied case, though, the degree of tailoring might be suspect, as it’s unclear at least to me how obtaining a permit to use an air quality monitor tends to ensure that the user will use the monitor conservatively/”neutrally”/correctly/non-alarmistly/ and then responsibly report their results so as not to needlessly frighten the public.

The speech itself would seem to qualify, if not as classically political, at least as speech on matters of genuine public interest and concern. That might help the challengers.

Is the government interest here much different than in the case of any newspaper editorialist/blogger/talk radio host who warns the public of accumulating ozone?

Isn’t the essence of the problem not the allegedly irresponsible monitoring, but the widespread dissemination of allegedly alarmist data or its practical implications?

I’m assuming the ordinance will define an air quality monitor. Non-vaguely. And non-overbroadly.

Is humidty typically measured by an air quality monitor?

Various private weather services report and forecast local air quality in various respects, I assume, without relying entirely on official data.

Aren’t there even kids’ toys/science experiment-type devices to trap/measure soot/ambient air opacity, etc.?

Dormant commerce-clause issues.

And is this really about the weather, or more about Ground Zero contaminant debates, or maybe the aftermath of some sort of chemical attack/contaminant release? I really have no idea.

Has the City of New York considered the possibility of enhancing the reputation of its own official air quality pronouncements for timeliness and veracity rather than limiting (disinterestedly, of course) the competition)?

Notice that if I alarmistly claim (falsely) there’s too much atmospheric ozone, that leads not to interactive panic in the streets, presumably, but mainly to older folks staying indoors until disabused. The gravity of the state interest seems modest.

If I were attacking the ordinance, I might try to vaguely analogize it to attempts to inhibit/license the newspaper and website graphic depictions of precisely where the police or fire runs have been over the previous month/year, which are susceptible of use for distorting real estate sales, etc. Fat chance enjoining such depictions if the data is lawfully obtained.

But I (obviously) have no relevant cases.

Free speech arguments re regulation of guns/gun ranges, even with historical targets, have generally failed, as far as I’ve seen.

Deliberately or recklessly false characterizations of the air, like shouting “intense levels of smoke/oxidation” falsely in a crowded theater, would presumably still be punishable as disorderly conduct.

Has NYC essentially solved all the more pressing problems at this point? How are the public schools doing?

I’m still stuck on whether there’s a principled difference between requiring permits for air-quality monitors (which could be used to produce apparent information with which to spread panic) and requiring permits for cameras and Photoshop (which can be, and have been, used to produce apparent information with which to spread panic).

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: Markarkleiman-at-gmail.com