Author’s note: These views are my own and should not be attributed to my employer or any organization with which I am associated.

This is my best attempt to steel man what defenders of the current immigration enforcement crackdown believe is happening — and why they see protests against ICE not as principled dissent, but as reckless and dangerous.

The story goes something like this:

The United States is facing a prolonged crisis of border control and immigration enforcement. For years, successive administrations failed to meaningfully enforce existing laws, creating powerful incentives for illegal entry and overwhelming the system’s ability to vet those entering the country. Even if only a small fraction of those entering unlawfully are violent criminals, cartel affiliates, or repeat offenders, that failure is viewed as unacceptable. The government’s first responsibility, in this view, is to protect public safety.

The distinction between “criminal” and “non-criminal” immigration violations is misleading. Unauthorized entry and unlawful presence are themselves violations of federal law, and selective or discretionary enforcement undermines the rule of law. Immigration is now unlawful in principle only when it bypasses lawful procedures. If legal pathways are slow or restrictive, that is a problem for Congress, not a justification for ignoring enforcement altogether.

Under this framework, the Trump administration’s approach is not radical but corrective. The government is simply enforcing statutes that should have been enforced consistently for decades. That enforcement necessarily requires federal agents to operate in public spaces, often in hostile environments, and to do so decisively.

ICE protestors are not acting in good faith, but are actively obstructing law enforcement. Protests have shifted from general opposition to direct interference — surrounding officers, filming at close range, following agents, or refusing to disperse. This moves from peaceful opposition into obstruction of lawful federal operations, constitutes a felony.

ICE and Border Patrol agents must be given broad latitude to control scenes that can rapidly become volatile. Officers cannot safely assess intent in real time, especially when crowds are involved. If individuals resist arrest, refuse lawful orders, or introduce firearms into enforcement environments, agents may be forced to make split-second decisions to protect themselves and others. Tragic outcomes, while regrettable, are foreseeable consequences of interference, not as evidence of misconduct.

Protestors should comply with all orders from federal agents and should take responsibility for their actions if they resist. The responsibility for tragic outcomes lies not with the agents enforcing the law, but with those who chose to place themselves in the middle of enforcement actions — and with political leaders who encouraged confrontation rather than compliance.

Assumptions Versus Reality

Taken on its own terms, the pro-enforcement narrative has internal logic. A nation has the authority to enforce its laws and its borders, and public safety is a legitimate government interest. But that framework assumes that the laws being enforced are workable, targeted, and applied within constitutional bounds.

That assumption does not align with the facts.

To understand why protests against ICE enforcement have escalated, and why dismissing them as reckless obstruction misses the point, we must examine the system being enforced, how enforcement is carried out, and what happens when constitutional limits are treated as inconveniences rather than constraints.

To be clear, this is not an argument for violence against federal agents, nor a claim that unlawful conduct by the government licenses unlawful conduct by those who oppose it. It is an attempt to explain why resistance has intensified. The frustration animating these protests is not rooted in a distorted view of reality, but in prolonged exposure to a system that demands obedience while disregarding constitutional limits.

1. Our Immigration System Is Fundamentally Broken

For most people, immigration to the United States is impossible. According to a Cato Institute study, “fewer than 1 percent of people who want to move permanently to the United States can do so legally.”

Let’s look at the only ways that immigrants can become legal residents of the U.S.:

1. The refugee program: Qualified refugees have less than a 0.1 percent chance of being selected for resettlement, and only a few nationalities are even considered.

2. The diversity lottery: Diversity applicants have a 0.2 percent chance of receiving a green card, and because the lottery excludes the top origin countries for legal immigrants, a majority of the world’s population is ineligible to apply.

3. Family sponsorship: In addition to spouses, minor children, and parents of adult U.S. citizens, family sponsorships are capped. The years of waiting caused by these caps mean that — except for sponsors of spouses and minor children of existing green card holders — most sponsors in these categories will die before their relatives can immigrate.

4. Employment-based self-sponsorship: These categories are only for those who are, in legal terms, “extraordinary,” have work of “national importance,” or can afford to make at least $800,000 in investments in the United States — not options for many.

5. Employer sponsorship: An almost insurmountable bureaucratic barrier restricts employer sponsorship, excluding nearly all workers without college degrees, and low caps will result in many applicants dying before they can obtain green cards. Employers make only 1 in 1,500 hires through this system.

The common refrain is that immigrants should come through the “front door” or via the legal process. But as Cato’s report shows, the legal process is unavailable for the vast majority of immigrants who want to come here. So it’s unsurprising that many people risk entering the country illegally to address labor market shortages and raise their standard of living.

In most cases, due to significant backlogs, we don’t even know the actual wait time for most immigrants to receive their green cards. For many, including high-skilled workers, the wait could be half a century or more, meaning many will die before their green card is approved.

A system that seeks to decrease illegal immigration needs to better align with the reality of supply and demand for immigrant labor, recognizing that most people who come here illegally do so for economic reasons.

2. The Administration’s Enforcement Efforts Are Not Just Targeting ‘Criminals’

The administration insists that ICE is focused on dangerous criminals. The record tells a different story.

Investigative reporting has documented more than 170 U.S. citizens detained by immigration agents in the first nine months of the administration alone. These detentions occurred during raids, protests, and routine encounters, often after individuals clearly stated they were citizens and produced valid identification. Some were held for hours or days without access to lawyers or family members. Charges, when brought, frequently collapsed or were never filed at all.

ICE’s own policies help explain how this happens. New enforcement directives instruct officers to arrest virtually anyone they encounter and to initiate removal proceedings automatically, abandoning prior guidance that prioritized serious crimes or humanitarian concerns. Longtime residents, green card holders, DACA recipients, journalists, veterans, and even minors have been swept into detention.

Release on bond has become increasingly rare, even for people legally eligible for it, as ICE routinely appeals immigration judges’ release decisions to keep people locked up longer. Few people can secure release from immigration detention, which requires a habeas corpus petition. Most detainees lack legal counsel, and many immigration lawyers lack training in the complex process of filing a habeas petition.

3. DHS Is Ignoring Court Orders to Release Detainees

“There has been an undeniable move by the Government in the past month to defy court orders or at least stretch the legal process to the breaking point in an attempt to deny noncitizens their due process rights,” U.S. District Judge Michael Davis recently warned in a court order.

Another federal court ruling by Minnesota Judge Patrick Schiltz estimated that ICE had violated court orders 96 times in Minnesota in January alone.

Court orders have been ignored by ICE in New Jersey, Florida, Massachusetts, and Rhode Island, to name just a few other jurisdictions where the agency has either refused to release detainees or has moved detainees in defiance of federal courts.

An exasperated attorney for DHS recently told a Minnesota federal court that “the system sucks” and asked the judge to hold her in contempt “so that I can have a full 24 hours of sleep.” Judge Jerry Blackwell stated:

“The overwhelming majority of the hundreds [of individuals] seen by this court have been found to be lawfully present as of now in the country. In some instances, it is the continued detention of a person the Constitution does not permit the government to hold and who should have been left alone, that is, not arrested in the first place.”

[ . . . ]

“The volume of cases and matters is not a justification for diluting constitutional rights, and it never can be. It heightens the need for care. Having what you feel are too many detainees, too many cases, too many deadlines, and not enough infrastructure to keep up with it all is not a defense to continued detention. If anything, it ought to be a warning sign.”

4. ICE Detention Facilities Are Violating Human Rights

Once detained, many immigrants are placed in facilities that operate with minimal transparency and little accountability.

At Fort Bliss, the largest immigration detention center in the country, detainees have described physical abuse, sexual assault, medical neglect, and coercion to self-deport. Signed declarations and interviews with dozens of people held there report overcrowding, food shortages, unsanitary conditions, and denial of basic medical care. ICE reported that one man died after failing to receive timely treatment for liver and kidney failure.

These are not isolated incidents. In Louisiana, a contracted detention officer recently pleaded guilty to sexually abusing a detained woman over several months, exploiting his authority over her confinement. Civil rights groups have documented patterns of abuse, retaliation, and neglect across multiple facilities.

Immigration detention is a civil matter, not a criminal one. Yet people are being held in conditions that would raise serious constitutional concerns in any prison system.

5. ICE Is Violating the Fourth Amendment

The erosion of constitutional limits has not stopped at the treatment of detainees and the denial of habeas corpus. It extends to the manner in which arrests are carried out.

An internal ICE memo obtained by the Associated Press authorizes officers to forcibly enter homes using only administrative warrants, without approval from a judge. This represents a sharp break from longstanding Fourth Amendment norms, which require judicial warrants for nonconsensual entry into private residences. Administrative warrants are issued by immigration officials themselves, not neutral magistrates.

The memo has reportedly been used to train new officers, even though it contradicts prior written guidance and Supreme Court precedent. In practice, this has meant heavily armed agents entering homes, sometimes ramming doors, without judicial oversight.

The Fourth Amendment still applies in immigration investigations.

6. ICE Is Violating the First Amendment Rights of Protesters, Observers, and Critics

The public has a well-established First Amendment right to observe, record, and criticize law enforcement in public spaces. ICE and DHS leadership are now openly challenging that principle.

DHS officials have repeatedly claimed that filming or following ICE agents “sounds like obstruction of justice,” despite the fact that federal courts across the country have recognized recording police activity as protected speech. Internal DHS guidance has gone further, treating cameras, livestreaming, and even proximity to officers as indicators of potential violence.

This rhetoric has consequences. Journalists and bystanders have been detained, threatened, beaten, or arrested for filming ICE operations, even when they remained at a distance and did not interfere. A federal judge recently found that DHS plausibly adopted an unlawful policy suppressing protected First Amendment activity.

Furthermore, current and former DHS officials recently told the New York Times that ICE agents are using facial recognition technology meant for identifying undocumented immigrants to track citizens who have protested ICE. The agency is also reportedly using tools to track social media activity and individuals’ real-time locations.

DHS is also using administrative subpoenas — which can be issued without a judge or grand jury — to request data from technology companies, including Meta and Google, regarding individuals who have criticized the agency online.

When a Florida retiree sent an email to the state’s attorney general urging against the deportation of an Afghan asylum seeker, he soon received a notice from Google stating that “a Law Enforcement authority” had compelled the release of information related to his account. Then, federal agents showed up at his door. Google received over 28,000 subpoenas in the first 6 months of 2025 alone.

Tracking protestors and monitoring their online activity is an effort to intimidate and chill protected First Amendment activity.

7. ICE Has a History of Using Deadly Force

The killing of Alex Pretti and Renee Good did not occur in a vacuum. ICE and Border Patrol have a documented history of using deadly force in ways that later raise serious factual and legal questions.

Investigations by Type Investigations and The Marshall Project have catalogued dozens of shootings involving ICE and Border Patrol officers over the past two decades, many of them during routine enforcement actions rather than high-risk confrontations. In several cases, initial agency statements portrayed victims as armed, threatening, or actively resisting, only for later reporting or video evidence to undermine those claims. In at least seven cases, the person shot by ICE was not the target of the agency’s enforcement.

Between 2015 and 2021, at least 59 people were shot by Border Patrol or ICE-linked agents, with relatively few resulting in discipline or prosecution. Internal reviews often exonerated officers based on accounts that conflicted with eyewitness testimony, forensic evidence, or body-camera footage. In some cases, victims were shot while fleeing, while unarmed, or after encounters that escalated rapidly from minor infractions.

More recent reports indicate that this pattern has persisted during the current enforcement surge. A separate analysis tracking shootings during immigration raids found multiple incidents where agents discharged firearms during street-level encounters with civilians, including bystanders and people not suspected of violent crimes. Accountability remains rare, and transparency is limited, with key details often withheld or released only after sustained public pressure.

When an agency has a long record of deadly force paired with misleading initial narratives and minimal consequences, skepticism toward official accounts is warranted.

8. ICE Officers Are Not Properly Trained for Street-Level Immigration Enforcement

Even if ICE enforcement were narrowly targeted and constitutionally restrained, the agency would still face a structural problem: many officers are not adequately trained for the type of public, street-level policing they are now being asked to perform.

As ICE rushed to hire 10,000 new officers under intense political pressure, an internal error misclassified hundreds of recruits as experienced law enforcement officers and routed them through abbreviated training programs. Some recruits were sent to field offices without completing the full in-person academy training that covers immigration law, use of force, and firearms handling. Although DHS later described this as a “technological snag,” the error underscored the difficulty of rapidly expanding a federal enforcement agency without compromising standards.

Even for recruits who completed formal training, the curriculum has been dramatically shortened. According to reporting in The Atlantic, ICE reduced its academy training from several months to just 42 days, with only about four hours devoted specifically to de-escalation techniques. Veteran ICE officers interviewed expressed concern that many new hires lacked the judgment, physical readiness, and experience necessary for volatile encounters in public spaces.

ICE agents are not a street-level police force. Historically, officers conducted targeted arrests based on prior intelligence, often in controlled environments and with advance planning. Today’s enforcement model increasingly involves masked agents operating in residential neighborhoods, traffic stops, and protests, frequently surrounded by civilians with cameras and heightened tensions.

When officers trained primarily for administrative immigration enforcement are placed into chaotic, highly visible confrontations with citizens and non-citizens alike, the risk of misidentification, panic, and excessive force rises sharply.

What “Law and Order” Actually Looks Like

To read this record and still treat protests against ICE as mere lawlessness is to misunderstand what these protests are responding to. Our system makes lawful migration nearly impossible, enforces indiscriminately, disregards court orders, tolerates abuse behind closed doors, and treats public accountability as a threat rather than a constitutional safeguard against overreach.

The claim that “illegal immigrants are criminals” collapses under even minimal scrutiny. Immigration violations are civil offenses, not violent crimes, and the administration’s own actions routinely blur that distinction while expanding enforcement far beyond its stated targets. Meanwhile, the agencies charged with enforcing the law have repeatedly violated the very constitutional limits that make law enforcement legitimate.

Defenders of the immigration crackdown claim to be demanding compliance with the law. But in enforcing said laws, the government is ignoring court orders, suppressing constitutionally protected activity, and escalating force in public spaces. That’s an erosion of the rule of law, not “law and order.”

When lethal force enters this chaotic environment, we cannot in good faith dismiss it as simply a case of protestors being in the wrong place at the wrong time, obstructing and interfering with a just and lawful government activity — especially when public officials are routinely lying about the circumstances that led to these tragedies.

Character assassinations of victims, conspiracies about vast left-wing networks of agitators, and selective invocations of “law and order” cannot deny the reality of what has led to the situation in which we now find ourselves. If the political groups that once warned of government overreach and tyranny were intellectually honest, they would recognize that peaceful protest, and even civil disobedience, might not only be warranted, but necessary.

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When the Trump administration violates legal norms or does something unorthodox, people on the other side typically turn to the common refrain, “This is not normal.” In the wake of the ICE shooting in Minneapolis this week, I’m growing extremely worried about what our new “normal” is becoming.

I’ve been closely following the public discourse around the tragic shooting of Renee Good. And I’m not naive about how this all works; I know the pattern well: when incidents like this occur, people quickly dig in, stake out positions, and defend them regardless of what new evidence emerges.

But for some reason, this time feels different, darker, and more dangerous.

Over the past year, this administration has done and said some deeply disturbing and inhumane stuff. The Department of Homeland Security’s social media accounts, for instance, have used memes and disturbing images of people being arrested, chained, and thrown onto airplanes, and have often used dehumanizing language to describe immigrants.

I bring this up because it helps explain why the administration’s response to this shooting feels less like caution and more like continuation — and it has taken on another level of mean-spiritedness.

Normally, when things like this happen, the typical response, especially from federal officials, is reserved. If an administration responds at all, they will say that the events that unfolded were tragic, that authorities are conducting ongoing investigations into what occurred, and perhaps stress that protesters should respond peacefully.

Instead, the administration moved quickly to lock in a narrative about what happened — before the facts were known. Within hours after the incident, Department of Homeland Security Secretary Kristi Noem called Good’s actions “an act of domestic terrorism.” She claimed that officers “were attempting to push out their vehicle and a woman attacked them and those surrounding them, and attempted to run them over and rammed them with her vehicle.” Obviously, none of the video evidence released supports this.

In a press conference, Vice President J.D. Vance was also confident and adamant about what had occurred. Rather than expressing empathy and stressing the need for cooler temperatures, his tone was angry, confrontational, and annoyed. He asserted, without evidence, that Good was “part of a broader left-wing network to attack, to dox, to assault and to make it impossible for our ICE officers to do their job.” He also claimed that she was using “domestic terror techniques.”

When pressed on whether it was premature to draw conclusions about the incident, Vance argued that certain facts were not in dispute: “You have a woman who aimed her car at a law enforcement officer and pressed on the accelerator.” “Nobody debates that,” he insisted, despite the fact that many people, watching the same footage, clearly do.

He continued, “You’ve got to be a little brainwashed to get to that point to where you’re willing, not just to protest, that’s fine — not peacefully protest, but throw your vehicle in front of legitimate law enforcement officers and drive your car into them.”

Vance frames the incident as a deliberate attack, but the video shows officers surrounding her vehicle and attempting to forcibly remove her before she tried to drive away. Later video evidence shows her pointing the steering wheel away from the officer before driving off.

Multiple core elements of the administration’s narrative have since been contradicted by video evidence. She was clearly not a domestic terrorist. ICE officers weren’t stuck in the snow — they approached her car. It’s clear that she wasn’t trying to ram the officer, even though she might have bumped him, given how she was turning her vehicle.

Despite new videos coming to light and time to evaluate the circumstances, Noem doubled down on her original claims when pressed on them in a more recent interview with Jake Tapper, saying, “everything that I‘ve said has been proven to be factual and the truth.” When Tapper pressed her on her claim that officers were attacked while attempting to push their vehicle that was stuck in the snow, Noem responded, “It absolutely is what happened.”

The administration’s continued promotion of facts that contradict reality is deeply concerning. I could find no comparable instance in which administration officials responded to a contested use-of-force incident with such certainty, asserting a definitive narrative without emphasizing the need for a full investigation. The only evidence they initially had to go on was multiple cell phone videos and the word of ICE authorities, yet they immediately made bold assertions about what occurred. As more evidence has come to light, they have made little to no updates to their narrative.

Meanwhile, on social media, every video that emerged in the aftermath of the shooting changed no one’s minds about what happened. Each new angle hardened existing beliefs on both sides rather than clarifying the truth.

The incident raises deeper questions about what the administration viewed as an acceptable — or even desirable — outcome of the events that led to it. These questions become even more troubling when we consider alternative scenarios.

For instance, what if she hadn’t tried to flee? Instead, we would likely be debating a video in which a US citizen was forcibly removed from her car by ICE agents, since moments before she tried to drive away, an agent was attempting to open her door. And for what? Blocking part of a road that other ICE vehicles were able to easily get around?

Other serious questions linger, like why was the ICE agent filming Good if she posed an immediate threat? What purpose did this serve? And why did ICE not immediately attempt to save her life or allow a bystander claiming to be a physician to help?

How can all of the unnecessary escalation in response to a non-violent act be justified by the administration and its supporters? No one who has defended the use of deadly force has really addressed the circumstances that led up to this or provided a solid justification for why ICE agents have the authority to fully mobilize against non-violent acts of resistance when faced with any inconvenience.

Again, the administration and its supporters don’t seem to care about why all of the circumstances surrounding the shooting are so outside the norms of what we expect from law enforcement and the use of deadly force.

Instead, the Vice President has asserted (wrongly) that ICE officers are “protected by absolute immunity” in their official actions. Meanwhile, instead of questioning whether ICE overstepped its authority, MAGA officials and supporters have engaged in character assassination of Good, conspiratorial speculation about her motivations and background, and, in even more vile posts that have been circulating on social media, claiming she deserved it for defending immigrants living in her community.

While tragic and unnecessary, what’s happening now goes beyond this particular shooting. What’s more concerning is that we have an administration and its supporters asserting a fixed narrative before facts are known — and refusing to revise it when facts emerge. And it illustrates a deep epistemic problem of our current moment, where partisan and ideological perspectives have less and less to do with the facts.

Confirmation bias exists on all sides, but it is the administration’s demonstrably false claims — made from positions of power — that make this situation uniquely dangerous. Especially when those claims are used to justify aggressive enforcement policies.

But what worries me most is what happens next.

What happens when there is another law enforcement-involved shooting — and I believe there is likely to be one — where the facts are more stacked against the officer involved? The administration’s complete lack of humility — and its supporters’ eagerness to defend it — makes me worry that there may be no line an enforcer of its agenda could cross without being justified after the fact. And if we get to a situation where the administration defends deadly force no matter the circumstances (or makes up facts to support such actions), where does that leave us?

That epistemic situation can only spell disaster for our democracy and for the rule of law. If we can no longer agree on basic facts or on whether the government can or has overstepped its authority, then it gives the government license to do almost anything it wants.

When officers believe political leaders will defend them regardless of the facts, restraint becomes optional. ICE agents in Minneapolis are already feeling emboldened to violate the First Amendment rights of protestors, for instance, by tackling or knocking phones out of the hands of those who are filming them.

Once the government normalizes excessive force against citizens engaged in civil resistance — and insists on its own version of events regardless of evidence — the protections we assume will be there for everyone begin to erode for all of us.

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The views expressed in this piece do not necessarily represent the views of my employer or any associated individuals or organizations.

People clutching their pearls and feigning outrage over something someone said on TV that they dislike must think we're still in the middle of the 20th century.

There are literally hundreds of TV channels, dozens of streaming platforms, thousands of YouTube creators, and more podcasts than there are people. If you're not happy with someone's comments on any of these platforms, I'm sure you can find others who share your views elsewhere. It's astonishing that in the year 2025, we are still so concerned about what someone says on network television.

All of this to say there is no legal or even practical justification for the government to threaten broadcast licenses or pressure companies to cancel programming over speech it dislikes, even if it believes that speech to be false. The First Amendment protects all kinds of untrue speech, and the Supreme Court has ruled that there must be "breathing space" for false statements and hyperbole that are "inevitable in free debate."

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And make no mistake, this latest move is as blatant government censorship as it gets. And yet, I feel like I’m taking crazy pills.

Conservative pundits seem to be entirely ignoring the role the Federal Communications Commission played in this cancellation and are acting as if what happened to Jimmy Kimmel is just a normal business decision, where an entertainer faces consequences from their employer for saying something beyond the pale on TV.

The headline of an Op-Ed in the Washington Examiner read, “Kimmel cancellation isn’t ‘cancel culture.’ It’s consequence culture.” Dave Portnoy, founder of Barstool Sports, said, “when a person says something that a ton of people find offensive, rude, dumb in real time and then that person is punished for it that’s not cancel culture. That is consequences for your actions.”

But what happened cannot be justified with the argument that ABC/Disney would have cancelled Jimmy Kimmel anyway for these remarks. Or that they were looking for an “excuse” to fire him.

Those rationales left the building when FCC Chairman Brendan Carr threatened licensed ABC affiliates with the statement: "we can do this the easy way or the hard way." This is now a textbook case of government jawboning — informal government pressure to shape or suppress speech in an attempt to avoid traditional constitutional scrutiny.

Some celebrations of the firing were much more aware of the government pressure involved, like this post from YouTuber Benny Johnson, “Thanks to FCC pressure and Nexstar and Sinclair pulling him from millions of homes, his platform is destroyed. He’s finished. Will never recover. This isn’t cancel culture. This is CONSEQUENCE culture.”

But this move goes beyond questions of cancel culture. The FCC’s implied threats create serious constitutional questions about the role of government, and they should make all of us nervous.

When a New York state official threatened enforcement action against the National Rifle Association because they disagreed with the organization’s political stances, the Supreme Court ruled, "Government officials cannot attempt to coerce private parties in order to punish or suppress views that the government disfavors." If you didn't like the Biden administration pressuring social media companies to censor speech about COVID, you shouldn't be cheering this.

If you are celebrating Jimmy Kimmel's cancellation because you disagree with him or find him repulsive, none of that matters now. Officials in this administration are setting precedents that will no doubt be deployed against those on your "side" when the other party takes power. And every censorship attempt you champion now will diminish your credibility when you claim your side is being persecuted.

Government-stamped cancel culture will set things in motion that will be incredibly difficult to undo. And next time, your team will likely be the target.

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I’ll try to do a deep dive on this later, but I wanted to share some exciting news about a push for housing reform in Nashville. From Stephen Elliot at the Nashville Scene:

Metro Councilmembers Quin Evans Segall and Rollin Horton filed a suite of bills this week, and the full council is expected to consider them on first reading next week.

"Nashville’s outdated zoning code has generated accelerating urban sprawl, endangering the rural and suburban character of some of the most beautiful parts of Davidson County, while locking our streets in suffocating car traffic and congestion to the point that we have been ranked the worst commute in America," says Horton, whose District 20 includes The Nations and Charlotte Park.

"By necessitating this urban sprawl development pattern, the city’s zoning code forces Nashvillians into car-dependent lifestyles so that it is necessary to drive to meet nearly every daily need, discouraging walkable neighborhoods. This has led to increased vehicular traffic, longer commute times and ever-increasing congestion."

Horton’s bills would accomplish four goals: allow certain residential structures of up to six stories to be served by a single stairwell, eliminate minimum lot sizes in multifamily districts, permit housing by right in commercial districts and ask Metro departments to create pre-approved pattern books for missing middle housing.

Additionally, Evans Segall, an at-large member, is sponsoring several bills. They would allow duplexes to be built wherever single-family homes are allowed countywide, allow triplex and quadplex homes to be built where single-family homes are allowed in the smaller Urban Services District and scale back certain safety standards for some smaller multifamily projects that currently have to match safety standards of large multifamily buildings.

This legislative effort would encourage “missing middle” housing, which “refers to the whole spectrum of homes in between single-family houses and large apartment buildings.” This includes housing types like “duplexes, triplexes, fourplexes, small-scale apartment buildings with a handful of units, cottage courts, townhouses, and so forth.”

Like most cities in the U.S., exclusionary zoning laws in Nashville only allow single-family homes to be built in the vast majority of our metro area. The Beacon Center of Tennessee recently put out a “Zoning Atlas” showing the locations where 2 or 3+ family housing can legally be built:

Council Member Evans Segall has launched a new website that lays out the plan, titled NEST: Nashville’s Essential Structures for Togetherness. Here is a summary of all of the zoning reforms that have been proposed:

• NEST allows for small scale infill housing development in ways that require consistency with design and a neighborhood feel.

• NEST clarifies rules surrounding duplex homes so they are easier to administer and are built in a neighborhood-friendly manner.

• NEST allows homes to be built in commercial districts countywide.

• NEST allows triplex and quadplex homes that look like single family homes to be built anywhere in the Urban Services District where single family homes are allowed.

• NEST allows for single stair egress and ingress for small scale apartments.

• NEST provides that certain small scale residential multifamily buildings can be built to the same safety standards as duplex homes.

• NEST removes offensive language from the code, adopting disability-inclusive language.

• NEST removes outdated requirements surrounding bathrooms and laundry.

• NEST removes barriers that needlessly take away valuable time from our Metro employees.

• NEST removes minimum lot size - but not footprint or setback or density - requirements from multifamily residential districts.

In the Scene article, Elliot points out that the reform efforts might draw attention from the Republican-led state legislature, which has recently attempted to meddle in Nashville’s governing affairs on multiple occasions. But, as I and others have argued, removing single-family zoning restrictions.

“offers a plethora of societal outcomes appealing to individuals across the political spectrum. By promoting affordable housing, economic growth, social inclusion, and environmental sustainability, this reform has the potential to unite diverse perspectives, transcending partisan differences and fostering a better world for all.”

If the majority party of the state legislature truly believes in limited government, they should wholeheartedly support these reforms.

The most likely opponents will be neighborhood groups and other council members, but supporters have the facts on our side. For example, Minneapolis recently eliminated singe-family zoning and is witnessing a boom in housing affordability compared to other Midwestern cities (from the Financial Times):

Supporters can learn the facts at the NEST website. I also encourage people to check out and get involved with groups like Housing Now Nashville and Strong Towns. You can also contact the planning commission and your council member.

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Note: This post has been updated with a new development below

Housing

Crisis Greens vs. Cautious Greens: How Housing Policy Is Tearing Environmentalists Apart

At The Atlantic, Jerusalem Demsas has a great piece on a battle in Minneapolis over housing policy. Minneapolis became one of the first major cities to remove single-family zoning. Several environmental groups sued the city, fearing it would create unchecked growth that would negatively impact the environment. Meanwhile, the pro-housing movement has touted the positive environmental benefits of more density. While Demasas sympathizes more with the pro-housing side, her piece provides more nuance to the anti-growth faction of the environmentalist debate to try to explain their deeper motivations.

On its face, the battle in Minneapolis is a fight over what types of housing should go where. But the debate is also revealing generational, ideological, and temperamental divides within the large umbrella of the environmental movement. And how these disputes are resolved will shape the future of cities, the politics of growth, and the contours of American liberalism.

I began to think of those who favored the Minneapolis plan as the “Crisis Greens.” They saw environmentalism largely through the lens of climate change and urgently demanded more government action to address the problem. They were less enamored of process than their opponents were, and less wary of change. And those skeptical of the plan, those involved in the lawsuit and those outside of it, I termed “Cautious Greens.” They were suspicious of development and sweeping government action. They saw environmentalism as encompassing varied lifestyle concerns and were thus much more focused on local impacts. But perhaps most telling, the Cautious Greens were apt to ask, with some bewilderment, What’s the problem with just taking our time?

[ . . . ]

The historian Jake Anbinder advises against “the blinkers of the NIMBY framework.” Instead of seeing the Cautious Greens as self-interested, hypocritical homeowners, we might better understand them as adherents to an ideology deeply enmeshed in American politics. Incubated during a succession of development failures by Big Government, the Cautious Greens remain scarred by the highway construction and rapid suburbanization that characterized America’s built environment in the postwar era. Anbinder traces the historical development of anti-growth liberalism through a “wide array of local skirmishes whose participants had only a vague sense of being part of the same war.”

[ . . . ]

Last year, two law professors, J. B. Ruhl and James Salzman, coined the phrase “the Greens’ Dilemma” to describe the tension between 20th-century environmental statutes designed to slow or halt new development and a climate crisis that necessitates building faster and more than ever before. If your primary concern is lowering carbon emissions to prevent the catastrophic effects of climate change, stopping or slowing development is good if what’s being developed is bad. In that world, it’s easy to band together with classic NIMBYs like homeowners who hate development, because your causes are aligned. But when the country needs transmission lines to connect renewable energy to the grid or carbon pipelines to ensure that greenhouse gas doesn’t diffuse into the air—or when it needs new housing to accommodate growth—the coalition begins to fracture.

Indeed, this divide is found in more than just housing policy. Alec Stapp of the think tank Institute for Progress has regularly pointed out how environmentalist groups have repeatedly sued to block renewable energy projects. Just this week, environmental groups, including the Center for Biological Diversity, filed a lawsuit to stop a $10 billion transmission line that would carry energy produced by wind power that would cross “one of the most intact, prehistoric and historical . . . landscapes in southern Arizona.” Stapp calls this version of environmentalism “outdated,” and I tend to agree. Like the housing affordability crisis, the climate crisis is an emergency that requires a rebalancing of priorities.

A similar dynamic can be seen in Nashville, albeit on a much smaller scale. A group called “Save Nashville” claims to be a “cooperative” of “environmentalists and conservationists” that “formed to protect Nashville, Tennessee’s remaining green spaces and rivers.” Beyond Tweeting some pretty ableist and homophobic things, this account has been primarily devoted to fighting an apartment complex in Bellevue, one of Nashville’s suburbs. In a reply to Councilmember Sean Parker, they try to blame stress on our energy grid during the freezing temperatures last week on high-density housing developments (including one that hasn’t been built yet).

It doesn’t appear that Save Nashville has enough momentum or resources to challenge any upzoning in Nashville, legally speaking. However, other groups have recently sued high-density developments over (sometimes legitimate) environmental concerns. The conflicts between the pro-housing movement and environmental groups will likely not subside anytime soon, especially as the YIMBY movement continues to grow around the country.

Update: After this was posted, Save Nashville deleted their X account.

We Can’t Easily Visualize Housing Shortages or Proposed Solutions

At his Substack Up Close & Political, Toby Muresianu provides a very insightful analysis of why some people experience a disconnect regarding housing supply and prices: we can’t see shortages in this sector as well as we can for other goods.

Housing shortages look different because when housing is rented or sold it doesn’t go anywhere, it remains in public.

Also, most people looking for housing aren’t in public where we can see them. They’re at home searching online on Craigslist or Apartments.com.

With housing, demand is largely invisible, while supply is not just visible—it appears to be all around us. This makes the reality that demand is greater than supply counterintuitive.

He also explains how the image of a shiny new, expensive-looking apartment complex doesn’t always signal the downstream effects of increasing the housing supply:

The problem that we want to solve is high housing costs across the region. But this doesn’t seem like a solution to that: it looks like high cost housing!

The construction of new buildings in areas with rising housing costs also often leads people to get the causality backwards—assuming that the rising housing costs must be a result of new construction rather than a response to it.

The effects of initial visual impressions are also very psychologically strong. They are extraordinarily hard to shift even after better information becomes available, which could explain why people who initially perceive new buildings as too expensive can remain skeptical even if it turns out they are actually low-income housing.

His entire post is worth a close read, and pro-housing groups should keep in mind this visual disconnect as they advocate for more density.

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Stadium Subsidies

More Lessons for Journalists Who Report on Stadium Projects

More announcements about new publicly subsidized stadium projects usually mean more terrible news coverage about those projects. Recently, there’s been talk of taxpayer-funded stadiums/arenas in Alexandria, Virginia (for the Washington Capitals and Wizards), St. Petersburg, Florida (for the Tampa Bay Rays), Kansas City (for the Royals), and Chicago (for the White Sox), among others. Last week, I wrote about how journalists in Nashville and elsewhere can and should do better regarding how they frame their reporting.

At Field of Schemes, Neil deMause takes on some recent reporting on the new arena in Alexandria Living magazine in an article titled, “Monumental Arena Expected to Pay for Itself, City Officials Say”:

The first red flag here is “officials say”: Much like it’s bad journalism to take police reports at their word, basing your report entirely on the claims of politicians who support a project is media malpractice. (The second red flag is “financial consultant”: Sanderson turns out to work for an investment firm, and he’s a lawyer with a bachelor’s degree in architecture, with no economic training.) There’s nothing wrong with reporting what elected officials or even unelected consultants are saying, but they shouldn’t be allowed to craft the narrative of your story, let alone the headlines that will be all that many people will read during their morning doom scrolls.

And the central claim here — that tax revenues from a new development don’t exist if the project isn’t built — is fundamentally wrong, as any economist could have told the magazine’s writers if they’d bothered to call one. For starters, there’s the substitution effect, which is the principle that if people spend money in one place, they’re not spending it someplace else, so a lot of that tax money would have been collected elsewhere in the city or the state if Virginians had done something else with their evenings rather than go see a Caps or Wizards game. (Some would be cannibalized from across the river in D.C., certainly, but not all of it.) And then there’s also the but-for problem, which is that the idea this is all free tax revenue assumes that nothing would be built on the site without the public spending, which is also flagrantly untrue.

[ . . . ]

But then, this is the whole point of tax increment financing: Not to come up with clever ways of funding projects without tapping public dollars, but rather to come up with clever ways of using public dollars while claiming you’re not. Anyone reading the words “Monumental Arena Expected to Pay for Itself” would reasonably expect that this means an Alexandria arena won’t use money that local government would otherwise have available to spend on other things like schools and health care, but it absolutely will.

Again, as I have argued and as Neil stresses here, the common journalistic mistake of equating stadium supporters (who generally have a political or financial stake in the project) and opponents (which includes independent experts who have studied the issue for decades) for the sake of “balance” does a huge disservice to readers when that context is omitted from the reporting. And it’s usually always left out or, worse, more space is given to the flashy claims by policymakers and paid consultants than to detractors.

Quick Hits:

• J.C. Bradbury on X: “Yes, just like any other normal private business development, get a yard sign to show your support!” (Referring to the Potomac Yard Arena Supporters offering . . . yard signs for their stadium project)

• Patrick Hedger on X: “If [the Potomac Yard Arena plan] is so attractive, why is the government involved? Only the best deals require loans subsidized by taxpayers hundreds of miles away… or something.”

• Jeremy Horpedahl on X: “In 1980, unaffordable housing was mostly confined to coastal South California. By 2000, it had only really spread to the NY-Boston corridor. Before the pandemic, it had spread up the West Coast, the Mountain States, and Florida. Today, unaffordable housing is everywhere.”

• Minjee Kim on The Case for Mass Upzoning: “ . . . mass rezoning is not only justifiable but also one of the most cost-effective and least risky policy solutions for tackling housing affordability and supply challenges in the United States.”

• Alex Nowrasteh & Ilya Somin on The Case Against Nationalism: “In a country like the United States, nationalism is (ironically) a schismatic ideology that turns normal policy disagreements into a debate over which side of the political spectrum represents the "real" Americans.”

• Angele Latham at The Tennessean: “New House bill would expand who can challenge books in Tennessee public schools”

• M. Scott Carter at The Oklahoman: “Oklahoma bill making journalists get licenses, drug tests sparks First Amendment pushback.”

This work is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International.

I recently noticed some more buzz about the possibility of Major League Baseball eyeing Nashville for an expansion team. That would be exciting for Nashvillians and contribute to a growing Nashville sports culture with the Titans, Predators, and Nashville SC. 

But as I pointed out last May, some local media outlets, especially our state’s flagship paper, The Tennessean, failed to live up to their responsibility as a watchdog of bad public policy when it came to covering the deal to provide $1.2 billion in taxpayer funds for the new Titans stadium. Specifically, Tennessean reporters regularly omitted insights from independent experts, failed to properly scrutinize grandiose economic impact claims, neglected to dig into the deal's details, and often parroted the team and the city’s claims as gospel. Instead, it appeared the paper was just another part of the local growth coalition pushing for the new stadium. 

Let’s suppose Nashville gets selected for an MLB expansion team, and the prospect of public financing for a new stadium emerges. In that case, local reporters will have another chance to perform their journalistic duty and use the long-recognized economic insights about stadium subsidies to scrutinize claims from team owners or policymakers. 

Reporters don’t need to become overnight scholars in the economics of sports stadiums. But they should acknowledge the abundance of research that would arm them with enough ammo to be skeptical of elaborate claims. Plenty of experts are also available and willing to provide valuable insights as sources for their reporting, but they are often ignored or omitted. 

Here are some key ideas/concepts that journalists should keep in mind when reporting on future stadium projects: 

Economists Overwhelmingly Agree: Taxpayers Should Not Subsidize Sports Stadiums 

It is hardly a controversial idea that stadiums are poor targets for public financing or incubators of economic growth. A 2005 survey of members of the American Economics Association found that 85 percent of respondents supported eliminating subsidies to professional sports franchises. In 2017, the University of Chicago Booth School’s Initiative on Global Markets surveyed a panel of U.S. economic experts and found that 83 percent of economists agree that “[p]roviding state and local subsidies for professional sports teams is likely to cost the relevant taxpayer more than any local economic benefits that are generated.” 

Since they began studying the issue, economists have long known that they produce no significant economic benefits to local economies. In 1997, Roger G. Noll and Andrew S. Zimbalist published an edited volume for the Brookings Institution called Sports, Jobs, and Taxes: The Economic Impact of Sports Teams and Stadiums. In a Brookings article about the volume, Noll and Zimbalist summarize their findings as well as those of their 15 collaborators: 

In every case, the conclusions are the same. A new sports facility has an extremely small (perhaps even negative) effect on overall economic activity and employment. No recent facility appears to have earned anything approaching a reasonable return on investment. No recent facility has been self-financing in terms of its impact on net tax revenues. Regardless of whether the unit of analysis is a local neighborhood, a city, or an entire metropolitan area, the economic benefits of sports facilities are de minimus.

In a 2008 review of the economic literature published in Econ Journal Watch, economists Dennis Coates and Brad R. Humphreys found “near unanimity in the conclusion that stadiums, arenas and sports franchises have no consistent, positive impact on jobs, income, and tax revenues." Another recent 2023 survey of the economic literature on the topic published in the Journal of Economic Surveys by J.C. Bradbury, Coates, and Humphreys examined the findings of over 130 articles spanning 30 years. They, too, found “near-universal consensus evidence that sports venues do not generate large positive effects on local economies.” 

Despite grandiose claims from local politicians that new stadiums or sports franchises will boost local economies or create jobs, there is no evidence that sports venues have a significant impact. As sports economist Michael Leeds succinctly put it in a 2015 episode of Marketplace, “If every sports team in Chicago were to suddenly disappear, the impact on the Chicago economy would be a fraction of 1 percent. A baseball team has about the same impact on a community as a midsize department store.”

Acknowledge The Seen and The Unseen 

In 1850, French political economist Frederic Bastiat published an essay called “That Which Is Seen and That Which Is Not Seen” that introduced a concept that economists now call “opportunity cost.” In this essay, Bastiat discusses the “unseen” alternatives that might have occurred in place of some other economic activity. 

It’s easy to mistake a new stadium and the economic activity surrounding it as having a net positive economic impact. We see the new stadium. We see the new businesses open up around it. We see fans in the stadium district spending money. We assume that all these things we see add to the overall economy. What we don’t see are the parts of the local economy — the shops, the theaters, the bars and restaurants, and other entertainment areas — that residents or tourists are not visiting when they go to a game instead. 

Economists have repeatedly found that any economic activity and tax revenues produced by sports venues are simply diverted from other areas of local economies. This not only means losses for those other businesses but also means taxpayers eventually foot the bill. In a 2023 policy retrospective, Bradbury, Coates, and Humphreys explain how spending at publicly funded stadiums or in stadium districts 

diverts tax revenue that would have been collected through other local commerce to funding the stadium. This results in less available tax revenue for other government services funded by general property and sales taxes, which will necessitate compensating tax increases to recuperate lost tax revenue of reduced services.

Subsidized stadium projects also result in reduced property tax and federal tax revenue. Bradbury, Coates, and Humphreys cite recent estimates that “the cumulative cost in foregone property taxes for all major league sports facilities through the end of their current leases is $18 billion, which translates to an annual public cost of $5.7 million per venue.” Since stadiums are often financed via municipal bonds, that interest is exempt from federal taxation, costing the federal government $4.3 billion in tax revenue since 2000.

When considering alternative uses and opportunity costs, public funding of sports stadiums also encounters many of the same problems as other forms of corporate welfare. Economists Christopher Coyne and Lotta Moberg write in a 2014 study on state incentives to targeted industries:

State-provided targeted benefits contribute to the misallocation of resources because they divert them from the uses that market actors value the most. As [Friedrich A.] Hayek (1945: 519–20) explains, market actors channel resources to their optimal uses with very limited knowledge by relying on prices and profit-and-loss feedback. The knowledge necessary to allocate scarce resources among an array of feasible competing ends emerges through the market process as buyers continually discover new and better uses. For policymakers to improve on the resource allocation that the market process generates, they would need to possess superior information as compared to market actors.

[ . . . ] 

Policymakers can still create the illusion of increasing social wealth. If a company is paid to hire people and increases its investments, it looks as though the policy generates wealth and contributes to economic growth. The problem is that the policymaker has no means of judging the opportunity costs, or alternative uses, of the redistributed resources. Because policymakers lack access to the dispersed knowledge possessed by private individuals, they cannot determine what the optimal allocation of resources is. Their judgments are thus likely to lead to resource misallocation. [Emphasis mine.]

Like other subsidized firms, sports stadiums distort local economic activity and misallocate resources. Beyond diverting tax revenues from public services to pay for the stadium bonds or additional associated costs, the stadium (and surrounding mixed-use development) creates a market distortion. The new stadium takes up land that might have otherwise gone to other businesses or housing developments that would be more beneficial to the local economy. Certain restaurant owners or vendors that are chosen to sell their goods at the stadium or in the surrounding stadium district — often due to their participation in the initial lobbying effort — have now reaped substantial gains, not from market competition, but from favoritism and connections to the stadium booster/local growth coalition. Capital, labor, and resources — including government spending — have also been misallocated to other areas of the economy due to the subsidy instead of being put to their highest valued use. 

Ignore The Hype Around Special Stadium Districts 

As part of their pitch for a new Tennessee Titans stadium, former Nashville Mayor John Cooper and the team promised that a major mixed-use development surrounding the stadium would stimulate economic activity and help fund the stadium. In an op-ed for The Tennessean, Mayor Cooper promised, “Tourists and spending around the stadium will pay for this project, not your family.” Cooper continued, “The primary funding source for stadium construction will be the Titans and visitors to Nashville and the stadium campus.” 

Special stadium districts are not a novel approach to financing a new stadium, but there’s also no evidence that they work for the same reasons that stadiums fail to generate economic benefits: spending in stadium districts is just diverted from other areas of the economy. In a 2016 article in Economic Development Quarterly, Robert W. Wassmer, Ryan S. Ong, and Geoffrey Propheter explained  

new real estate development adjoining a professional sports venue results from simply a move of economic activity away from other sites within the jurisdiction. Unless residents perceive this intrajurisdictional shift in economic activity as a social benefit, this is a zero-sum gain for the jurisdiction. 

One of the most recent examples of a mixed-use stadium development is The Battery Atlanta, which surrounds the Braves’ Truist Park (constructed in 2017). The stadium received $300 million in public funding from Cobb County with the promise of increased economic development and tax revenue from the surrounding campus, but the project has run an annual deficit of approximately $12 to $15 million for Cobb County, according to J.C. Bradbury. Bradbury also found that “approximately one-third of the project’s sales appear to derive from crowding out other local economic activity,” meaning that “added tax collections fall well short of covering the public subsidies provided by Cobb.”

For Nashville, the surrounding mixed-use development will likely fail to produce new tax revenue, and taxpayers will be shafted in the form of higher taxes or less funds for other public services. 

Scrutinize Economic Impact Reports 

Behind every economic impact report on a proposed stadium project, you will find a consulting firm specializing in telling policymakers what they want to hear using methodology that would never pass muster in a peer-reviewed economic journal. One firm called HR&A Advisors has been very successful in helping cities sell public financing of stadiums to taxpayers.  

To help promote a new arena in Potomac Yard for the Washington Wizards and Washington Capitals, the Alexandria Economic Development Partnership (AEDP) hired HR&A to put together an “analysis” of the economic impact. The report, which has yet to be fully released beyond just a memo, claimed that a proposed entertainment district surrounding the arena would create “30,000 permanent jobs” and “generate roughly 2.5 times the economic output.” It’s worth noting that one of the AEDP’s board members is an executive at the real estate investment trust that would develop the Potomac Yard district. HR&A was also hired by St. Pete to evaluate proposals for redeveloping Tropicana Field, produced a report on building a new stadium for the Kansas City Royals, and, in 2016, generated some outlandish estimates for how much tax revenue the new Texas Rangers stadium would produce. 

Economists have consistently found reports put out by firms like HR&A to be lacking in methodology and rigor. Citing several academic articles on the topic, Bradbury, Coates, and Humphreys argue that these reports commit “basic errors such as incorrectly identifying costs as benefits, overestimating benefits and underestimating costs, confusing gross and net spending, using excessive multipliers that inflate growth expectations, and relying on unrealistic assumptions about future economic development.”

As economists Michael D. Farren and Philip St. Jean point out in an article for the Mercatus Center at George Mason University, economic impact studies represent “a ‘benefits-only’ approach to decision making, as opposed to a more rigorous cost-benefit analysis.” They continue: 

[A] proper cost-benefit analysis not only counts the cost as well as the benefit, it also compares different alternatives that could be pursued. That is, the full economic cost of a proposed project includes what else could be done with those resources -- the tradeoffs that need to be made to select one option over another. [Emphasis theirs.]

When team owners or policymakers tout these reports, journalists should seek independent academic experts to evaluate the claims and methodology rather than report them at face value. They should also remind readers about the costs to taxpayers and the foregone alternative public investments that could have been made instead of subsidizing a new stadium. 

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Conclusion: The Case for Better Reporting on Stadiums 

Timothy Taylor, managing editor of the Journal of Economic Perspectives, recently wrote in a blog post: 

If public subsidies for stadiums don’t pay off, why do they keep happening? There are two possible answers here. One is that stadium subsidies arise from an unholy mixture of loudly represented special interests, empire-building local officials, and the threat that a team can move away. The result is a kind of arms race, where cities know they would be better off if they were all to limit these subsidies, but few individual cities are willing to do so on their own.” 

Here, Taylor describes the economic concept of concentrated benefits and dispersed costs. Team owners, local policymakers, and business owners in hospitality or concessions all stand to benefit from a new stadium project and have significant resources to devote to lobbying for its approval. Meanwhile, individual taxpayers who might oppose these projects share a small portion of the overall cost and may be less motivated to act against them. Thus, publicly financed stadiums keep getting approved. 

As we’ve seen in Nashville, when the media acts as a cheerleader of a stadium project, it makes it that much harder to fight back. However, local media can play a vital role in exposing the undeniable waste of taxpayer dollars. Reporters don’t need to be anti-stadium zealots, but they should at least confront every claim about new stadium projects with an informed and healthy dose of skepticism. 

Too often, to appear objective and balanced per standards for journalism ethics, reporters give equal weight to “both sides” of the debate. “Supporters say this, while opponents say this.” The problem is that supporters are often parties with a vested interest in the deal — whether it’s politicians out to cement their legacy or consultants who are paid by stadium boosters to put out glowing economic impact reports. These interests are hardly given much ink beyond maybe a sentence or two. 

But this gives supporters and opponents equal weight in the reporting, especially when supporters’ claims are taken at face value. Opposing voices are informed by the “near-universal consensus evidence” and experts who find that stadiums do not produce the promised economic benefits. At the very least, reporters should provide readers with enough context about how certain claims stack up to the overwhelming evidence. 

The Tennessee Public Records Act should also be used to uncover any behind-the-scenes discussions before a stadium deal is announced. And when those requests are denied due to “deliberative process privilege,” media outlets should use their resources to fight back to fully inform the public on who stands to benefit from stadium deals.  

Here’s hoping reporters get it right next time. If not, readers ought to hold them accountable.

This work is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International.

I haven’t had as much time to devote to writing lately. But as I work on more long-form pieces, I am compiling some quick thoughts on a few news items that have caught my eye recently.

Stadium Subsidies

The Titans Stadium Tab Keeps Growing for Taxpayers

At The Tennessee Lookout, Adam Friedman reports on how bond documents from the Titans stadium deal show that taxpayers will be responsible for paying around $1.1 billion in interest payments:

Metro Nashville issued $705.4 million in bonds for the stadium, estimating they’ll pay $837.6 million in interest over 30 years. The state of Tennessee issued $452.7 million in bonds over 20 years, expecting to pay $230.2 million in interest.

The bond issuances were the final step in the deal to build a new NFL stadium for the Tennessee Titans, which state lawmakers approved in 2022 and the Metro Nashville Council cleared in April.

The stadium deal, with interest, will cost taxpayers nearly $2.3 billion.

Meanwhile, the team’s value has increased by 26 percent to $4.4 billion. It’s likely that the cost to taxpayers will continue to grow over time, demonstrating once again how stadium deals socialize the costs and privatize the gains for wealthy team owners.

Local Media

The Tennessean Is Hiring A Taylor Swift Reporter

No, that’s not a joke. The Tennessean and USA Today, both owned by Gannett, are hiring a Taylor Swift reporter. Last December, Gannett laid off 6 percent or over 200 employees. Those layoffs came soon after another round of cuts that took place in August, where Gannett eliminated about 400 jobs. In May 2023, the Poynter Institute reported about a “mass exodus among top leadership” in the Gannett network after a “financial freefall.”

As numerous people have pointed out online, this hiring announcement (which also included a Beyonce reporter) is not a great look for the news network. Memphis is apparently still without an investigative reporter.

I’m not faulting Gannett/The Tennessean for wanting to make money, and these new beats will likely drive new subscriptions to the paper, which is the name of the game. But at a certain point, it’s necessary to question whether this is the right business move for the publication long term. People are noticing that the best reporting about the city is not at The Tennessean but at alternative outlets like the Nashville Scene, the Tennessee Lookout, and The Center Square.

While I’m glad to see certain beats like a First Amendment reporter, other areas of coverage have been absolutely dreadful — specifically, The Tennessean’s failure to properly scrutinize and investigate a massive deal for the new Titan’s stadium.

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Free Speech

U.S. District Court Halts Blount County’s Attempts to Enforce Drag Ban

Earlier this month, a judge for the U.S. District Court of Eastern Tennessee enjoined a Blount County prosecutor from enforcing the state’s ban on drag performances, which was struck down by another District Court Judge Thomas L. Parker in Friends of Georges, Inc. v. Mulroy in June.

Tennessee Attorney General Jonathan Skrmetti told prosecutors around the state that the Friends of Georges, Inc. decision only applied to the Memphis area, so Blount County District Attorney Ryan Desmond contended that he could shut down any drag performances at the county’s Pride events.

The ACLU of Tennessee sued Desmond, and U.S. District Court Judge Ronnie Greer blocked the Blount County prosecutor from enforcing the law. Here are some key excerpts from his order:

Lastly, as to the fourth and final factor, District Attorney Desmond contends that the record fails to show that he refused to disavow enforcement of the Act because “Plaintiffs have not identified their future intended speech with any specificity, so there is no future action to disavow enforcement against.” [Def.’s Resp. at 10]. But again, Plaintiffs have alleged that Mr. Lovegood is a drag artist, has been performing in drag for more than three years, and intends to perform at Blount Pride’s upcoming festival. District Attorney Desmond cannot seriously argue that Mr. Lovegood’s upcoming musical performance is not speech under the aegis of the First Amendment. See ETW Corp. v. Jireh Publ’g, Inc., 332 F.3d 915, 924 (6th Cir. 2003) (“The protection of the First Amendment is not limited to written or spoken words, but includes other mediums of expression, including music, pictures, films, photographs, paintings, drawings, engravings, prints, and sculptures.” (quoting Hurley v. Irish-American Gay, Lesbian, & Bisexual Group of Boston, 515 U.S. 557, 569 (1995))). The record therefore satisfies the fourth factor, and because three of the four factors are present in the record, Plaintiffs have standing. See Cameron, 995 F.3d at 550 (stating that standing requires only “some combination” of the factors to be present). 

[ . . . ]

Judge Parker’s seventy-page opinion is well-written, scrupulously researched, and highly persuasive. The Court, based on the parties arguments at this juncture in the proceedings, sees no reason to “break new ground” on the constitutional issues that Plaintiffs raise in their complaint when Judge Parker, in his well-reasoned opinion, has already “provide[d] an adequate basis for [a] decision.” Greater New Orleans Broad. Ass’n, Inc. v. United States, 527 U.S. 173, 184 (1999); see Walker v. Floyd County, Ind., 4:07-cv-14-SEB-WGH, 2009 WL 2222886, at *1 (S.D. Ind. July 22, 2009) (“We commonly find it helpful to consider the rulings of our sister courts when those rulings address issues nearly identical to issues pending before this Court; and, while they clearly carry no precedential value, such determinations can offer persuasive reasoning.”). The Court is likely to adopt Judge Parker’s reasoning in addressing the constitutional questions that Plaintiffs raise in their complaint, and Plaintiffs, in relying on Friends of Georges, have therefore demonstrated a strong likelihood of success on the merits. [Emphasis mine.]

The court neglected to opine on the question of whether the Friends of George’s, Inc decision applies to the entire state and instead stayed the case until the Sixth Circuit Court of Appeals can rule on the Friends of George’s case.

Read my piece here on why the First Amendment should protect drag performances.

University of Tennessee Students Say Campus Committed to Free Expression

At the Tennessee Lookout, Benjamin Pounds reports on results from a state-mandated survey about University of Tennessee students’ beliefs about free speech on campus:

The 2023 Campus Climate Survey, published by UT before the fall semester, shows 92% of UT students said their campuses were committed to free expression, and 89% felt comfortable expressing themselves. Eight out of 10 UT students said they found different viewpoints on their campuses. Only 5% said they were not comfortable sharing opinions in their classrooms because it would affect their evaluations. 

Contrary to the popular narrative, the survey found that liberal students at UT were the least likely to feel comfortable expressing their views and didn’t agree that their institution was committed to free speech.

At his publication The Oyster Club, Eric Celler has examined several surveys, studies, and other developments surrounding campus free speech that are worth a read.

Fox Nashville Poll: Should Sexually Explicit Content Be Available in Elementary School Libraries?

Not one serious person is making this argument.

No one opposes curriculum/book bans because they want sexually explicit material in schools. The concern has always been that these statutes and rules are so vague and overly broad that works some may view as "controversial" (but not explicit) may be tossed aside in the moral panic. These laws are also duplicative because we already have obscenity laws that prohibit the distribution of obscene materials to children.

And while it's true that parents can still buy books that have been removed from schools for their kids, that's not the point. We are not teaching our kids great lessons about free speech. Overly broad and vague book bans teach kids that the state should have the power to decide what ideas are acceptable. Worse, certain subjects we may want kids to learn about could be kept further out of reach when teachers/admins remove material out of an abundance of caution. I explain the problems with these laws here.

The bottom line is that Fox Nashville is sensationalizing the issue like so many intellectually dishonest politicians and talking heads.

Lawsuit Over Tennessee House’s Sign Ban Dismissed

On Thursday, Chancellor Anne Martin issued an order to dismiss the ACLU of Tennessee's lawsuit against the Tennessee Legislature, which was filed over the removal of protestors who were holding up small signs during committee hearings in violation of the House's rules for the special session. The case was dismissed at the request of both parties, although as Anita Wadhwani reports, the ACLU expects to file a motion to recover attorney fees and costs from the state.

I recently published an updated version of my piece on whether the First Amendment applies in this case at The Tennessee Lookout in light of case developments that occurred after the first version was published. While this case is over, I expect the issue will emerge again in future sessions if House Republicans continue their attempts to stifle dissent.

Quick Hits:

• Lonnie Lee Hood at The Tennessee Lookout: A recent case in Franklin exposes gaps in policies pertaining to public records

• Paul Sherman on Twitter: “Refusal to recite the pledge has been protected for 80 years and is one of the most famous First Amendment precedents of all time, yet schools routinely punish kids for it. The truth is that lots of government officials simply do not care what is and is not constitutional.”

• Nashville Business Journal: Murfreesboro to consider baseball stadium proposal

• Christian Britischgi at Reason: Environmentalists have managed to reverse America's leading "yes in my backyard" (YIMBY) success story in Minnesota

• Scott Lincicome on Twitter: “The US is on course to complete construction on over 460,000 new apartment units in 2023 — the highest figure on record"

• Kyle Cheney on Twitter: “A federal judge has enjoined Texas and Gov Greg Abbott from constructing new buoy/blockades in the Rio Grande and to remove the existing ones by Sept. 15.”

• Ilya Somin on Twitter: “The anniversary of 9/11 is a good time to remember we still need to pass an Afghan Adjustment Act giving permanent refuge to Afghan refugees who came here fleeing the Taliban, including many who aided US forces.”

That’s all for now. Be sure to check out and read all of the full pieces discussed above.

This post has been updated with a correction note below.

On Tuesday, during a Tennessee House Civil Justice Subcommittee meeting, police escorted protestors out of the hearing for holding signs that read “1 KID > ALL THE GUNS.” This hearing was part of a special Tennessee General Assembly legislative session focused on public safety in the wake of the shooting at The Covenant School in Nashville. 

Here is a video of the incident: 

Today, Judge Anne Martin of the Davidson County Chancery Court sided with the American Civil Liberties Union of Tennessee, temporarily blocking a rule passed by House Republicans banning signs during the special session. 

As you can see in the video, before the subcommittee chair called attention to them, the women were not shouting or being disruptive and were simply holding up signs. On Monday, however, House Republicans passed strict rules to prevent legislators and protestors from disrupting proceedings. As Adam Friedman reported at The Tennessee Lookout, the rules prohibited carrying signs and restricted the public’s access: 

As part of the special session and new rules, Republican lawmakers restricted public access to the Capitol building, legislative offices and House floor. 

A cap was set for how many people could enter the Capitol, and members of the public won’t be allowed to carry signs while in the House gallery. 

House Republicans also closed off one of the two galleries from the public, allowing only credentialed guests like media members, legislative staff and lobbyists.

Did the sign ban and subsequent removal of these protestors violate their First Amendment rights?

Courts have long recognized the ability of legislative bodies to set rules for decorum in public meetings and hearings. For instance, in Acosta v. City of Costa Mesa (2012), the Ninth Circuit upheld City Council rules prohibiting “disorderly, insolent, or disruptive behavior.” In Steinburg v. Chesterfield County Planning Commission (2008), the Fourth Circuit ruled:

Officials presiding over such meetings must have discretion [. . .] to cut off speech which they reasonably perceive to be, or imminently to threaten, a disruption of the orderly and fair progress of the discussion, whether by virtue of its irrelevance, its duration, or its very tone and manner.

Courts have also argued that legislative hearings or board meetings are “limited public forums” or “public property which the State has opened for use by the public as a place for expressive activity” (See Perry Education Association v. Perry Local Educators’ Association et al. (1983), Ison v. Madison Local School District Board of Education (2021), and ACT-UP v. Walp (1991))  

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Even in traditional public forums like public sidewalks, the Supreme Court has recognized that there can be some restrictions on speech. In Ward v. Rock Against Racism (1989), the Supreme Court argued, “Our cases make clear, however, that even in a public forum, the government may impose reasonable restrictions on the time, place, or manner of protected speech, provided the restrictions ‘are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information’” (citing Clark v. Community for Creative Non-Violence (1984).

In limited public forums, however, the Supreme Court has held that the government may go further and impose content-based restrictions such as reserving a venue “for certain groups or for the discussion of certain topics” (Rosenberger v. Rector and Visitors of the University of Virginia (1995)) as long as they “are reasonable in light of the purpose served by the forum and are viewpoint neutral” (Cornelius v. NAACP Legal Defense and Education Fund (1985)). 

But still, courts have found that the First Amendment applies in a limited public forum setting. In ACT-UP v. Walp (1991), the U.S. District Court for the Middle District of Pennsylvania held that the gallery of the Pennsylvania House chamber was a limited public forum. Because of this, the court found that members of a group called ACT-UP, who were barred from attending a speech by the Governor, “were denied the ability to engage in protected speech, and, as a result, access may be restricted only by reasonable time, place and manner regulations or in order to protect a compelling governmental interest by the narrowest of means.” While the group would not have been allowed to speak, the court argued that their presence constituted speech because “simply attending the speech and making themselves known through their presence is itself communicative in nature.” That’s because the Governor’s speech pertained to the issue for which ACT-UP was advocating.

So the questions at hand in the case of the Tennessee House barring signs from legislative hearings are (1.) whether this restriction furthers the compelling government interest of conducting a legislative session without disruption and (2.) whether such restrictions are reasonable in light of the fact that the hearing on gun safety was open to the public.

Indeed, the Supreme Court held in City of Madison Joint School District v. Wisconsin Employment Relations Commission (1976) that once school board meetings were opened to the public, they could not “discriminate between speakers on the basis of [. . .] the content of their speech.” “Where the State has opened a forum for direct citizen involvement,” the court reasoned, “it is difficult to find justification for excluding teachers who make up the overwhelming proportion of school employees and who are most vitally concerned with the proceedings.” 

Since the subcommittee meeting was about measures for public safety and was open to the public, it is hard to argue that Nashville residents and parents concerned about gun safety should be barred from peacefully and quietly making their presence known during a hearing. In the ACT-UP case, group members testified that they planned to wear T-shirts and other apparel to make their presence known. The federal court in that case argued, “[t]he wearing of T-shirts and other apparel, even if only symbolic in nature, has been held to be protected speech under the first amendment” (citing Tinker v. Des Moines Independent Community School District (1991). 

Banning signs serves no purpose other than the prohibition of non-disruptive, political speech. The idea that signs held by audience members would cause distractions, distort the legislative process, or sway committee members in any meaningful way is a naive view of how legislatures work. Let’s also not pretend that most members of the committee haven’t already made up their minds on where they stand on these issues. 

Courts have even ruled in favor of public meeting attendees who were ejected for wearing ninja masks (see City of Dayton v. Estrati (1997)) and even making a Nazi salute (see Norse v. City of Santa Cruz (2010)).

While we cannot definitively determine the exact motive, the removed protestors could make a compelling argument that House Republicans deliberately directed the signage ban at gun control supporters, who have been more vocal and passionate on this issue during the special session and who, in fairness, caused disruptions during the last legislative session. Therefore, there is an implied effort to prohibit certain viewpoints from being aired by the public rather than specific conduct. If previous statements made by legislators further demonstrated this motive, it would constitute deliberate viewpoint discrimination, a clear violation of the First Amendment, even in a limited public forum. 

In its complaint, the ACLU of Tennessee argued that 

The Rules of Order are entirely unreasonable and do not further the purpose of the forum (the galleries and committee meeting rooms of the House of Representatives). A sign the size of an average piece of paper cannot obstruct the view of participants or committee members and is not disruptive to the proceedings. It does not make noise or emit light. Moreover, nothing in the Rules of Order permit speech of a similar size—or larger—on t-shirts, sashes, buttons, or anything else that can be worn. Under the Rules of Order, a person attending a subcommittee meeting could wear a shirt or hat or button with the Nike logo on it but cannot have a sign with the Nike logo on itthat is the exact same size.

The complaint also cited several First Amendment cases on the importance of silent protests (see Brown v. Louisiana (1966) and Carey v. Brown (1980)) and specific provisions of the Tennessee Constitution that protect this sort of speech: 

Article I, Section 19: 

The free communication of thoughts and opinions, is one of the invaluable rights of man, and every citizen may freely speak, write, and print on any subject, being responsible for the abuse of that liberty

Article I, Section 23: 

That the citizens have a right, in a peaceable manner, to assemble together for their common good, to instruct their representatives, and to apply to those invested with the powers of government for redress of grievances, or other proper purposes, by address or remonstrance.

A member of the public silently holding up a sign at a legislative hearing would seem to be exactly what the founders envisioned when they sought to protect political speech and the right of the public to petition their government. Yet, Tennessee Republicans act as though these peaceful acts are an affront to the legislative process.  

It will be interesting to see if this case furthers First Amendment jurisprudence on the balance between free speech and legislative decorum. But in the meantime, let’s not pretend that holding up small, non-obstructive signs harms our legislative process under some distorted sense of civility. 

This work is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International.

CORRECTION: An earlier version of this post incorrectly attributed quotes from the ACLU of Tennessee’s complaint (found here) to the Chancery Court’s injunction.

This multi-part series explores policy issues that have the potential to unite people across the ideological spectrum and how empirical research and shared values can bridge political gaps on vital matters. The first essay focused on a policy to end exclusionary zoning rules that artificially suppress the housing supply. This series draws inspiration from a piece by Ilya Somin, a Cato Institute scholar who suggested that libertarians should focus on constitutional aspects of three issues that traditionally align with progressive policy priorities. By seeking common ground on issues that break partisan barriers and align with compelling evidence, the series argues for the potential to catalyze profound and meaningful social change. Through discussions on economic, philosophical, and constitutional perspectives, this series aims to find solutions that appeal to multiple ideological values and foster unity on critical policy matters.

In January 2022, the president of the Tennessee Chapter of Associated Builders and Contractors (ABC) told The Tennessean that the state was short 200,000 construction workers across all trades. The national ABC also predicts that there will be an additional 546,000 job openings nationwide in the construction sector this year. The ABC also estimated the industry would need 342,000 new workers in 2024 to meet demand above normal hiring expectations. 

Further, nearly 1 in 4 construction workers are older than 55, meaning that construction professionals will soon retire and leave the workforce. Go Build Tennessee is a 501(c)(3) that attempts to connect students to training and jobs in the construction industry. Its website states, "For every 5 tradesmen who retire, only 1 apprentice is training to fill their position.”  

As major cities like Nashville struggle to keep up with the demand for housing, this potential labor shortage in construction and similar trades will only exacerbate the problem. While we should encourage more young people to enter the skilled trades, we could also quickly solve this problem by freeing up our extremely complex immigration system to allow more workers into the country to fill those gaps. 

Nationally, 30 percent of construction workers are foreign-born. Despite being only 7.2 percent of Tennessee’s workforce, 18.1 percent of construction workers in our state are immigrants. Many more workers with construction backgrounds would like to work here, but our system has made it virtually impossible for them to do so. Construction industry advocates have called for comprehensive immigration reform to allow more foreign-born workers, but Congress has failed to act. 

Policy Solution #2: Liberalizing Immigration

Let anyone take a job anywhere. George Mason University economist Bryan Caplan proposed this radical idea in a 2013 debate over immigration. This slogan represented a nuts-and-bolts policy proposal to simplify America’s extremely complex immigration system.

For most people, immigration to the United States is impossible. According to a new study from Cato Institute scholar David Bier, “fewer than 1 percent of people who want to move permanently to the United States can do so legally.” Let’s look at the only ways that immigrants can become a legal resident of the U.S. via Bier’s paper: 

1. The refugee program: Qualified refugees have less than a 0.1 percent chance of being selected for resettlement, and only a few nationalities are even considered.

2. The diversity lottery: Diversity applicants have a 0.2 percent chance of receiving a green card, and because the lottery excludes the top origin countries for legal immigrants, a majority of the world’s population is ineligible to apply.

3. Family sponsorship: Aside from the spouses, minor children, and parents of adult U.S. citizens, family sponsorships are capped. The years of waiting caused by these caps mean that—except for sponsors of spouses and minor children of existing green card holders—most sponsors in these categories will die before their relatives can immigrate.

4. Employment‐​based self‐​sponsorship: These categories are only for those who are, in legal terms, “extraordinary,” have work of “national importance,” or can afford to make at least $800,000 in investments in the United States—not options for many.

5. Employer sponsorship: An almost insurmountable barrier of bureaucratic red tape restricts employer sponsorship, and these restrictions exclude nearly all workers without college degrees, while low caps will result in many applicants dying before they can receive green cards. Employers make only 1 in 1,500 hires through this system.

Those who express concerns about illegal immigration fall back on the common refrain that immigrants should come through the “front door” or via the legal process. But as David Bier’s report points out, the legal process is unavailable for the vast majority of immigrants that want to come here, so it’s unsurprising that many people risk entering the country illegally to meet labor market shortages and attempt to raise their standard of living. 

Here is a helpful, albeit highly complex, diagram from the Cato Institute explaining the complicated and arduous process for becoming a legal resident in the U.S. Cato has also developed an interactive Green Card Game in which you can see if you can legally obtain a green card or permanent residence (spoiler alert: it’s tough). 

In most cases, due to significant backlogs, we don’t even know the actual wait time for most immigrants to receive their green cards. For many, including high-skilled workers, the wait could be half a century or more, meaning many will die before their green card is approved. 

In this essay, I will make a case for liberalizing our immigration system by making it easier for anyone who wants to work here to do so. If an employer wants to hire a worker from El Salvador, the United Kingdom, or India, they should be able to do so with relative ease. If there is a shortage of low-skilled agricultural workers, we should make it easier to meet that demand. 

Like Caplan, here’s what I’m not arguing: I am not proposing completely open borders with no controls or security checks. I am also not suggesting that we grant every immigrant immediate citizenship, voting rights, or social welfare benefits other than access to emergency medical services, public schools, or social security benefits if they pay into the system. 

Whether the reforms include more temporary/seasonal work visas or long-term visas with a path to legal residency, I am advocating for a system wherein labor supply can more easily keep up with the demand for labor. Regarding specific policy proposals, I recommend another paper by David Bier that lays out a series of reforms that could improve our policies. 

Ideological Concerns Over Immigration

Conservatives are typically the loudest opponents of immigration. They worry that immigrants will steal jobs from American workers. Others fear that immigrants will threaten American culture, vote for Democrats, or import socialist ideologies. They worry that immigrants will drain welfare benefits from Americans. They also worry about crime and drug cartels, mainly from Central and South America.

I recognize that a lot has changed about our political landscape since 2013 with the rise of Trumpism and far-right nationalism that has shifted the Overton window on immigration reform. And like my previous essay, these arguments are unlikely to appeal to the MAGA wing of the Republican Party. 

This essay will also not address xenophobic arguments. If you are worried that immigration will lead to the subjugation of white supremacy in the United States, there’s likely nothing I can say that will convince you. However, I do not want to completely dismiss the anxieties of working-class voters who think that immigrants might threaten their economic security. 

While progressives generally support higher levels of immigration, there are still concerns that low-skilled immigrants could take away the jobs of working-class Americans. Although rare today, pro-union activists occasionally put forth these arguments. Progressives are also concerned that corporations will exploit immigrant workers or pay them under the table without benefits.

Finally, there is a growing contingent of libertarians, particularly those who run the Mises Caucus of the Libertarian Party, who believe immigration is incompatible with a truly free society. While there is also an underlying xenophobia to these arguments, mainly those brought forth by Hoppeans, some argue that, as long as there is a welfare state, the government should restrict immigration. Others present the twisted argument that immigrants violate the property rights of native-born citizens.

I will address these objections in the following sections.

The Economic Case

Surveys have consistently found that economists overwhelmingly support immigration, with a recent poll finding that 97 percent of professional economists believe that “immigration generally has a net positive economic effect for the U.S. economy.” 

A 2017 consensus report from the National Academies of Sciences, Engineering, and Medicine titled The Economic and Fiscal Consequences of Immigration found that “second generation [immigrants] are among the strongest fiscal and economic contributors in the U.S.” and that “immigration has an overall positive impact on long-run economic growth in the U.S.” 

But the size and scale of that positive effect is often overlooked. Harvard Kennedy School economist George Borjas, often cited by immigration skeptics, estimates that, as of 2012, the “presence of all immigrant workers (legal and illegal) in the labor market makes the U.S. economy (GDP) an estimated 11 percent larger ($1.6 trillion) each year.” 

After reviewing the literature on the estimated economic gains from removing barriers to migration worldwide, George Mason University Professor Michael Clemens finds that the global economy could grow by 50 to 150 percent of world GDP. In other words, tight restrictions on labor mobility cost the global economy trillions of dollars annually. 

Further, these estimates don’t assume that everyone in low-income countries would emigrate to higher-income areas. The considerable gains in global GDP would occur even if only 5 percent of people living in low-income areas relocate, according to Clemens. 

Migrants contribute significantly to our economic well-being, even under America’s strict immigration regime. In a 2006 paper, Gianmarco I.P. Ottaviano (University of Bologna) and Giovanni Peri (University of California, Davis) find that “in the long run the average wage of U.S.-born workers experienced a significant increase (+1.8%) as a consequence of immigration during the 1990-2004 period.” They also find modest increases in the short run. 

These gains may seem modest, but as Texas Tech University economist Benjamin Powell argues, “the current level of benefits that natives derive from immigration is directly related to the U.S. government’s restrictive immigration policies. If greater numbers were let in, if the U.S. government didn’t severely limit the number of skilled-worker H1-B visas, and if illegal immigrants had better access to formal-sector employment, the net gains could be larger.” 

We artificially constrain the labor supply and potential economic growth based on arbitrary controls, quotas, caps, and legal red tape. Any economic stimulus from government infrastructure or jobs programs would pale compared to the gains we would experience by loosening immigration restrictions. 

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The Progressive Case

Less restrictive immigration is humanitarian. A more open system wherein people can easily obtain legal status within a new country prevents the “othering” of human beings by labeling certain people as “illegal” or “undocumented.” It recognizes all human beings' value, dignity, and rights to pursue economic prosperity. Freer immigration also provides a welcoming home to those fleeing despotic regimes, natural disasters, or other atrocities. 

Immigrants can also create a more prosperous and diverse cultural environment. A cosmopolitan society of people with varying backgrounds and experiences creates more opportunities for exchanging new ideas, innovations, skills, cuisine, artwork, and beliefs. This dynamism fosters both economic and cultural growth in a society.   

In addition to significantly increasing the incomes of those that migrate to countries like the U.S., immigration also can decrease global poverty. Even if most countries do not open their borders to realize the massive gains predicted by Clemens, immigrants to open countries can still have an impact back home. Foreign-born workers in the U.S. help stimulate development in their native countries by sending remittance payments to family and friends, or a share of the gains they receive due to the higher earning they receive here.

Remittance payments from immigrants in the U.S. far exceed our federal foreign aid budget. In 2017, according to Pew Research Center, total remittance payments from immigrants to their home countries totaled $148.5 billion. By contrast, that same year, the State Department and USAID requested $50.1 billion, which included only $34 billion for foreign assistance programs and activities. 

The most common objection to a higher influx of immigrants raised by progressives stems from concerns that immigrants may harm native low-skilled workers. However, a comprehensive survey of the economic literature by Rachel M. Friedberg and Jennifer Hunt concluded, “The popular belief that immigrants have a large adverse impact on the wages and employment opportunities of the native-born population of the receiving country is not supported by the empirical evidence.” 

The paper by Ottaviano and Peri referenced above finds that the least educated U.S.-born workers “only lost 1.1% of their real wage due to the 1990-2004 immigration. Even in the short run (as of 2004) the negative impact was a moderate 2.2% real wage loss.” They argue that previous models showing more significant effects on native-born wages did not account for the fact that “uneducated foreign-born do not fully and directly substitute for (i.e., compete with) uneducated natives.” They find that previous immigrants face the most significant adverse effects on their wages from more immigration in the short run. 

In summarizing the economic literature on the effects on wages, Benjamin Powell argues that 

[W]hen the immigrants have different skills than the native-born population, they complement the native-born labor rather than substitute for them. Many of the immigrants to the United States are either extremely highly-skilled or very low-skilled. Yet most native-born labor falls somewhere in between. The native-born population makes up around one third of adults in the United States without a high school diploma. A large portion of new Ph.D.s is awarded to foreign-born people. To the extent that immigrants are complementing U.S. labor, they can increase, rather than decrease, the wages of the native-born.

Legalizing more immigration would also bring undocumented workers out of the shadows of the black market and decrease any exploitation that may be occurring.  

The Libertarian Case

Since I do not believe I could make a better argument, I will let Cato Institute scholar and immigration policy expert Alex Nowrasteh summarize the libertarian case for immigration: 

We have a presumption of individual liberty. People have inalienable and individual rights. Immigration restrictions require the government to use violence and the threat of violence to stop the voluntary movement of people across borders. This use of government power restricts the inalienable rights of Americans and immigrants. Those who oppose free immigration should have to show that government force, which is funded coercively at taxpayer expense, should be used to stop the peaceful, voluntary, and mutually beneficial interactions of willing individuals. The presumption, the starting point, must be free immigration and the government can only restrict immigration if it has a very good reason.

There is also a robust free-market case for liberal immigration. In the same way that libertarians would not want the government to restrict the free flow of goods between countries—since doing so would grant undue market protection to domestic producers while harming domestic consumers with higher prices and distorting the economy—so, too, should libertarians not want the government to arbitrarily distort labor markets by artificially limiting the supply of labor. In the same way that tariffs prevent fair competition for domestic producers, immigration restrictions prevent fair competition for domestic workers. 

From a constitutional perspective, legal scholar Ilya Somin contends that the Supreme Court decision that recognized the federal government’s power to restrict immigration—the 1889 Chinese Exclusion Case—was “based on highly dubious reasoning and tinged with racism.” He also argues that the courts have exempted immigration restrictions “from many normal constitutional constraints on government power” with “no basis in the text or original meaning of the Constitution.” 

While the courts have not recognized the First Amendment rights of noncitizens, I would also like to add that a general principle in the Constitution—freedom of association—should be considered by libertarians when thinking about the rights of American citizens to freely associate with foreign-born people, especially when it comes to employing them on their property, renting to them, or engaging in market exchanges. 

Finally, there is a common objection from anti-immigrant libertarians that we should not allow more immigrants in as long as there is a welfare state. This argument stems from an infamous line from Milton Friedman that you cannot have free immigration if you have a welfare state. Of course, anti-immigrant libertarians leave out the rest of that discussion in which Friedman explicitly states that illegal immigration from Mexico is “a good thing for the United States.” 

It’s also odd that the welfare state never comes into play whenever libertarians advocate for drug legalization, which could very well burden the Medicaid system or publicly-provided emergency services with drug overdoses and other externalities. Also, as I will discuss in the next section, immigrants (both legal and illegal) are not net drains on the welfare state. 

Other libertarians subscribe to the bizarre belief that as long as the state exists, it should act as a de facto owner of public property and therefore be allowed to restrict immigration. But this is a gross distortion of property rights and negates the property rights of people who wish to hire, rent to, or sell to immigrants. Worse, this argument stems not from serious libertarian or classical liberal thinkers or academics but is most vociferously advocated by a known xenophobic, racist “philosopher” named Hans Hermann Hoppe. 

The Conservative Case

Traditional conservatives typically embrace free markets, competition, and creative destruction when it comes to businesses but ignore these benefits regarding immigration. Conservatives abandon the argument that the economy is not a zero-sum game of winners and losers. But they should recognize that, instead of taking away from the economic pie, immigrants’ contributions to the economy increase the size of the pie. That’s because immigrants increase demand for other goods and services that must be produced or provided, thus creating more jobs and entrepreneurial opportunities. 

In fact, immigrants are twice as likely as native-born Americans to become entrepreneurs. A recent study found that 0.83 percent of U.S. immigrants started a company between 2005 and 2010, compared to only 0.46 percent of native-born Americans. 

Immigrants are also innovators. At the top 10 patent-producing universities in the U.S. in 2011, 76 percent of patents had at least one foreign-born inventor, according to a 2012 report from The Partnership for A New American Economy. The report continues, 

Foreign-born inventors played especially large roles in cutting-edge fields like semiconductor device manufacturing (87%), information technology (84%), pulse or digital communications (83%), pharmaceutical drugs or drug compounds (79%), and optics (77%).  

As David Bier argues, skilled immigrants currently on temporary H-1B visas are essentially trapped, unable to contribute fully to the economy by starting businesses or changing job categories to areas where their labor may be more valued. As a result of our massive backlog in the green card process for these workers, Indian workers are choosing to migrate to Canada instead, as the number of Indians immigrating to Canada has tripled since 2013. 

For conservatives (and libertarians) worried about the burden on the welfare state, immigrants contribute more in taxes than they receive in benefits. Alex Nowrasteh states, “Immigrants pay $1.38 in taxes for every $1 that they consume in government benefits.” A 2023 study by Nowrasteh and Michael Howard found that “immigrants consumed 27 percent less welfare and entitlement benefits than native-born Americans on a per capita basis in 2020.” Contrary to popular belief, undocumented immigrants are ineligible for means-tested welfare, except for rare circumstances like emergency Medicaid. 

Immigrants also commit fewer crimes than native-born Americans. A study by Nowrasteh, Andrew Forrester, and Michelangelo Landgrave looked at crime data in Texas and found that, in 2018, “the illegal immigrant criminal conviction rate was 782 per 100,000 illegal immigrants, 535 per 100,000 legal immigrants, and 1,422 per 100,000 native-born Americans.” In other words, undocumented immigrants were convicted for 45 percent fewer crimes than native-born Americans in Texas. 

Another study by University of Wisconsin-Madison researchers Michael T. Light, Jingying He, and Jason P. Robey found that, compared to undocumented immigrants, native-born Americans were “over 2 times more likely to be arrested for violent crimes, 2.5 times more likely to be arrested for drug crimes, and over 4 times more likely to be arrested for property crimes.” 

Finally, some conservatives worry about the political economy implications of more immigration. They are concerned that immigrants from socialist countries will push our political institutions in that direction or, if granted the right to vote through citizenship, will elect politicians that favor more leftist or socialist policies. They also worry about terrorism. 

However, the literature on the topic finds that immigrants either have minor or positive effects on the economic institutions within their destination country. Higher immigration is not associated with more corruption, has no negative and some positive impacts on institutions like property rights, the rule of law, and economic freedom, has been shown to improve institutional quality, and is not associated with the rise of populist political figures. 

Regarding terrorism, a more legal immigration system would lead to fewer people coming across the border illegally, meaning that we can focus our border control efforts on stopping actual criminals or terrorists from entering. Additionally, the chances of an American being the victim of a terrorist attack by a foreigner on U.S. soil is 1 in 3.8 million per year and zero for an illegal immigrant.  

Whether undocumented or legal residents, immigrants are, on net, better, more upstanding citizens than native-born Americans. Given their economic contributions, conservatives should welcome them with open arms. 

Conclusion

The bottom line is: we don’t just need immigrants to fill jobs in the U.S. that we are unwilling to take; we need more immigrants to replace us so that the U.S. can continue to exist. As older generations age and younger generations are slow to replace them, the population - particularly the working-age population - will continue to decline. This slowing population growth could have disastrous economic impacts, including severe labor force shortages. 

Of course, as with any policy, there are costs and trade-offs to such a radical change in direction. We will need to work through cultural impacts and some economic losers in the short-run. But the long-term benefits of free immigration far outweigh the costs.  

Like zoning reform, liberalizing our immigration system is another “easy button” we could press in the near future, providing immense benefits to both the U.S. and the global economy. It would bring millions of productive workers who are already here out of the shadows and allow them to contribute fully to society. And it would provide us with the labor necessary to keep our economy growing while addressing other problems like housing shortages. 

For all ideological perspectives in the U.S., liberalizing immigration is a win-win-win.

This work is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International.

Due to recent travel and other priorities getting in the way, I am still working on the next installments of my Search for Common Ground series, in which I look at issues that bridge ideological and partisan divides and offer solutions that satisfy multiple values (Part 1 looks at zoning reform). I hope to have that piece ready next week, but until then, I wanted to share a few snippets of things I have been reading, watching, and listening to lately that I think are worth checking out.

YIMBYism

Matt Yglesias on Why YIMBYism Is Winning

At Slow Boring, Matt Yglesias argues a lack of polarization among the YIMBY movement has contributed to its success:

Either way, the point is that YIMBY successes depend on pragmatism and compromise. One of the big failures this year came in New York, where Kathy Hochul endorsed a really ambitious set of reforms that then all fell apart. The more common and more successful model involves a layered approach to reform, where the most ambitious ideas don’t pass but some smaller stuff gets done as wavering legislators want to show that they aren’t totally indifferent to the issue.

[ . . . ]

Slow Boring has a fairly technically minded audience, so the point I would make is that zoning generates enormous amounts of deadweight loss, so zoning reform unlocks a large surplus. That surplus means there are a lot of different benefits to zoning reform, and also that the surplus can be deliberately redistributed in a bunch of different ways. That means that there are a lot of different possible legislative coalitions and rhetorical strategies that align with the basic goal of reducing regulatory barriers to housing supply. Which ones are best and in which places depends on both the objective structure of public opinion and also who holds seats in the legislature.

[ . . . ]

I used to think that the problem of housing politics in the United States was that YIMBYism naturally “reads” as right-wing deregulation but the biggest need for policy changes is in large blue state cities and their inner-ring suburbs. So I thought deliberately aligning YIMBYism with progressive politics would be a good idea. The people actually doing the work mostly disagreed with me, and I think events have proven them right. One issue is that regulatory constraints on housing supply are actually incredibly widespread, even if the problem is most severe in a handful of deep blue metros. But the other is that, in practice, it’s more productive to treat this as a state-level issue rather than as dozens of separate local dogfights, and in state politics it’s helpful to be bipartisan — even in New York or Texas.

The Pamphleteer: An Interview with Housing Expert M. Nolan Gray

Davis Hunt, founder and editor of Nashville’s alt-daily newsletter The Pamphleteer, recently interviewed M. Nolan Gray, research director at California YIMBY, about zoning reform and housing policy. They also discuss Nolan’s excellent book Arbitrary Lines: How Zoning Broke the American City and How to Fix It, which I highly recommend. Davis raises some thoughtful concerns about YIMBYism, and Nolan delivers the goods.

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Liberalism and Free Expression

Re-Imagining Liberty: The Liberal Virtues (w/ Peter Boettke)

Aaron Ross Powell

The Liberal Virtues (w/ Peter Boettke)

Listen now (55 min) | Listen at: Apple Podcasts | Spotify | YouTube | Overcast | RSS In a series of essays on my website, I’ve been setting out the case goodwill and what I call sympathetic joy within the liberal project. These virtues not only strengthen liberalism, but help us to be happier and more content within a diverse and dynamic liberal society…

Listen now

3 years ago · 3 likes · 1 comment · Aaron Ross Powell

This is a fantastic discussion between host Aaron Ross Powell and Peter Boettke, University Professor of Economics and Philosophy at George Mason University. Contrary to traditional arguments for liberal toleration, Powell has made the case that “[a] society permeated more thoroughly with the virtues of goodwill and sympathetic joy is likely to better maintain political liberalism than one grounded in mere toleration.” Powell asks Boettke, who has written about the case for liberal cosmopolitanism in his book The Struggle for A Better World, to critique his concept of sympathetic joy, which leads to a robust and inspiring discussion about the potential for liberal ideas to thrive in dark times.

Alex Morey and Eric Celler Take on Threats to Academic Freedom and Free Expression at Texas A&M

I want to highlight two great, related posts about recent incidents at Texas A&M. To summarize, A&M Professor Joy Alonzo, an expert on the opioid crisis, was recently placed on administrative leave after word got back to Texas Lt. Governor Dan Patrick that she had made critical comments about his policies during a presentation on campus. In another recent case, former New York Times reporter Kathleen McElroy was offered a tenured faculty position at A&M in the journalism program. After alumni complained to the administration that McElroy was “too progressive,” her offer was rescinded. A&M’s president M. Katherine Banks was forced to resign due to the scandal, and McElroy was awarded a $1 million settlement.

At Persuasion, Alex Morey, who leads the Campus Rights Advocacy team at the Foundation for Individual Rights and Expression, contends that politics entering personnel decisions on campus threatens academic freedom and the First Amendment:

Taken together, these two Texas-sized controversies are a testament to what happens when universities bend over backwards to please powerful outside actors. They raise the question of how lawmakers, alumni, and donors nationwide are using their power and influence to dictate the ideas taught in college classrooms, particularly in red states.

[ . . . ]

Make no mistake: the kind of ultra-polarized, vindictive political wheeler-dealing that pollutes so much of our national landscape has no place in academia. Our public universities are society’s knowledge factories, testing ideas and mining facts using objective scientific principles. Student and faculty autonomy is key to fulfilling that educational mission, and must always be top of the list. Higher education ceases to function under conditions that severely limit the words, ideas, and views up for consideration—no matter what you think of the underlying ideas themselves, and no matter whether the threat comes from the left or the right.

[ . . . ]

And when it comes from the sort of pressure exercised against Alonzo and McElroy at Texas A&M, it’s the responsibility of college and university administrators to stick with their principles and resist the temptation to appease the powerful. Universities need administrators who treat their position as totally apolitical, who don’t sacrifice free speech to please alumni or donors who complain, and who value student and faculty rights above keeping the optics good for local politicians.

At The Oyster Club, Eric Celler takes an in-depth look at a recent op-ed in which Texas Lt. Governor Dan Patrick attempts to defend his actions against Professor Alonzo not as an attack on academic freedom but as simply raising concerns about what is being taught at “state-funded universities.” The problem, as Celler argues, is that Lt. Governor Patrick is not just a concerned parent or student — he is a state actor with political power:

What he found most worrying, though, was the response from the faculty senate. The Texas A&M “Faculty Senate” (which Patrick oddly put in scare quotes as if the body was made up) launched its own investigation into the investigation. According to Lt. Governor Patrick, “Their outrage seems based on the belief that anyone who dares ask a question about what is being taught or said in a classroom at a state university is somehow challenging their ‘academic freedom.’” 

They’re right, and Lt. Gov. Patrick seems to misunderstand the issue at hand fundamentally. He isn’t just “anyone”; he is the Lt. Governor of Texas. He is a public official with tremendous power that he can wield against individual professors he deems troublesome. This is quite different from a parent or a student raising concerns with the university. States have a legitimate monopoly on force, and they have a duty to wield that responsibly. The most alarming aspect of his comments is how little the Lt. Governor appreciates this fact.

[ . . . ]

The most troubling element of all this is the outlook for academic freedom and free speech on campus. In a world where administrators are comfortable doing the bidding of thin-skinned public officials, nobody is safe. If faculty can’t expect their institution to stand behind them when their academic freedom is questioned, they cannot conduct consequential research. Truth-seeking is often uncomfortable, inconvenient, and offensive. Questioning decisions made by public officials is, to use an overused phrase, a cornerstone of liberal democracy. These things go hand-in-hand, and without an expectation that they will be jealously guarded, we’re all in trouble.

Quick Hits:

• Jon Styf at The Center Square: Report: Tennessee Titans' value rose 33% to $4.37B following $2.1B stadium deal

• J.C. Bradbury: “Every NFL team is now worth *at least* $4 billion. Folks, there is no legitimate justification for taxpayers to ever subsidize an NFL stadium. None, zero, zilch.”

• Field of Schemes: “Rays fans are showing up to games again, clearly they need to tear down their stadium and build a new one”

• Associated Press: “Students in a Florida school district will be reading only excerpts from William Shakespeare’s plays for class rather than the full texts under redesigned curriculum guides developed, in part, to take into consideration the state’s new law that restricts classroom materials whose content can be deemed sexual.”

• Walter Olson at The Unpopulist: “Nothing in the charges filed Wednesday seeks to punish [former President Trump] for speech or advocacy as such. While the indictment does recite many things Trump said and calls them false, it identifies each such statement as being part of an overall course of conduct satisfying the elements of a crime under one of four federal statutes.”

That’s all for now. Be sure to check out and read all of the full pieces discussed above.

Slow Boring

YIMBYs keep winning

The YIMBY movement annoys a lot of people who are highly engaged with politics because we are living in a time of intense political polarization, and YIMBYism is not aligned with either pole. But the core YIMBY thesis that quantitative restrictions on housing production are costly to the economy and harmful to society is true. The upshot of this is that a lot of smart, highly engaged people want to express negative sentiments about YIMBYism that don’t involve directly contradicting the core YIMBY thesis since they are too smart to deny its veracity. The result is a lot of tone-policing and concern-trolling where people express the idea that YIMBYs are doing this or that wrong, ideas that normally amount to “I wish you’d be less focused on your goal” or “I wish you’d do more to align yourself with my camp in the polarization dynamic…

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3 years ago · 198 likes · 353 comments · Matthew Yglesias

Persuasion

Keep Politics Out of Academic Hiring

Joy Alonzo wants to stop fentanyl overdose deaths. As a professor at the Texas A&M College of Pharmacy and co-chair of the school’s Opioid Task Force, she advocates for her views inside and outside of class. “Have a naloxone rescue kit and know how to use it,” she writes on the website…

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3 years ago · 35 likes · 3 comments · Alex Morey

The Oyster Club

Just Say No.

Putting the “Petty” in Petty Authoritarianism In the United States, the authoritarian left and the authoritarian right have much in common. But one thing the right has over the left in the current culture wars (so far) is its willingness to use th…

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3 years ago · Eric Celler

Later this week, on Thursday, August 3, 2023, Nashvillians will decide who will represent their district on the Metropolitan Council as well as At-Large council seats, the mayor, and vice mayor. Check any of the voting guides from Nashville media outlets and one issue that comes up again and again is housing affordability. I have frequently written about Nashville’s affordable housing crisis and the need to take a look at our land use regulations to make it easier to provide more homes for people in our city and around the country.

Fortunately, a group called Housing Now Nashville has begun to organize and advocate for housing reforms that will make Music City a more welcoming and affordable place to live. I interviewed the two leads for the group, Neil Kornutick and Jason Miller, about their thoughts on the housing crisis in Nashville and how they plan to mobilize for needed reforms.

Without further ado, here is that conversation:

Justin Hayes: It's in the name: Housing Now Nashville wants more housing in Nashville, and you want it now. But what are the benefits of building more housing? 

Neil Kornutick: More housing being built helps to stabilize the market. Cities that have built more housing than peers have seen a lower rate of increase in their housing costs. From The Atlantic: “Studies show that when builders construct units in a given place, it reduces rents and sale prices in nearby blocks, as well as in nearby neighborhoods; conversely, restricting construction drives prices up.”

Justin: What do you say to those who think Nashville has had "too much growth" or "uncontrolled growth?" 

Jason Miller: Primarily where people feel the growth pains in Nashville is in their bank account. American cities are struggling with a severe housing shortage since the 2008 crash. But we didn’t get here in just 15 years. Despite all of the development in this city, downtown Nashville still has fewer residents today than in 1940. In order to bring down rents and make home ownership in the city attainable, Nashville needs to produce 5000 additional housing units annually to make up for the shortage. Each year, we are failing to do that. 

Neil: What Jason said about housing prices is absolutely the priority. We need the housing, and we are also not necessarily unique. Many cities have experienced a boom in population and investment. I will say that, for some, the impact that growth can have is difficult. Some of our newer housing stock has removed smaller, more affordable places and displaced long-term residents. We absolutely need a better plan to protect existing homeowners and tenants so they also get the benefits of growth. Those not displaced might be living next to loud and disruptive construction projects for long periods of time. 

Justin: How can we fix zoning in Nashville and the city's overall system for approving more housing projects? 

Neil: We actually have a very thoughtful and well-laid-out plan with NashvilleNext and a planning department that can help implement that vision and adapt to changing environments. It is not just dense housing on the pikes. It highlights the benefits of mixed-use projects within neighborhoods and building much more of our missing middle housing stock we so desperately need.

We need to empower our professional staff to do the work and remove the unnecessary veto points that are often created. We can include more form-based zoning across broader areas that would remove individual projects from taking up so much time. Right now we have a process where any rezoning requires first the council member buy-in, then neighborhood meetings, then planning 3 readings at Metro Council. Downtown has made this change, and we need to look hard at expanding it. We also need permitting reform to take the burden off our other departments. Builders are always willing to save time, and we should give them a path of hiring professional engineers to help with reviews. 

Justin:  If you could push a button (or let's say at-most 3 buttons) to enact policies to fix Nashville's affordable housing crisis immediately, what would you change, and why? 

Jason: Fixing Nashville’s affordability crisis will take a concerted effort employing numerous remedies. In most of the county, housing options that are affordable for Nashville families and young people are banned. Legalizing these traditional, missing middle-density housing options county-wide is crucial. While simultaneously fighting the climate crisis, significantly increasing housing on our transit corridors is key to meeting the city’s new housing need and providing increased opportunity for Nashville’s working class to remain in Nashville, particularly as costs associated with commuting by car break people’s budgets. Meanwhile, Wall Street has turned standardized single-family homes into bundled financial products. Diversifying our housing stock will work to stabilize home prices and rents in Nashville and allow residents to finally come up for air.

Neil: Agree that there will be no one button to push. We each have different needs and wants. I think recognizing that is how we can help build more homes. For some specific policy ideas:

1. Legalize ADUs (Accessory Dwelling Units) in the UZO (Urban Zoning Overlay)

2. Upzone the entirety of the UZO to allow for more missing middle homes

3. Work with the state to allow for inclusionary zoning bonuses

Justin:  What is Missing Middle Housing? Why do we need more of it? 

Jason: Missing Middle Housing is a term that refers to a whole host of housing styles which were lost beginning in the 1940s as urban renewal, highway expansion, and post-WW2 suburban development radically reshaped cities. Much of America’s traditional buildings and homes have been lost to the bulldozer, and the city then added restrictive housing policies. Missing middle homes range from duplexes, triplexes, and quadruplexes to townhomes, courtyard and cottage homes, shotgun homes, small apartment buildings, and row buildings with apartments above local shops. 

Legalizing our traditional styles of housing provides us with the opportunity to build a housing stock in Nashville that is attuned to the needs of working people, which raises city revenues without raising taxes on individual residents and helps to create the conditions for walkable and transit-oriented neighborhoods.

Neil: We are good at building single-family homes and large multi-family homes. We need to expand the portfolio of what can be built. 

Justin:  What are the most common objections to housing that you hear from Not-In-My-Backyard (NIMBY) groups. Why are those arguments incorrect or misguided? 

Neil: You can listen to opposition, and you will almost always hear the same types of arguments. This will cause traffic or flooding; there will be renters (both arguments about them paying too little or paying too much); or it will be too tall and not have infrastructure prebuilt. I look at these and just hope that people will remember they are opposing homes in their backyards. The start of that premise is they already have a home in an area that they clearly value. Saying no isn’t just saying no to some developer or banker, it's to someone who needs or wants a home in that area. 

Jason: We know very well at this point that the best arrangement of cities and towns with respect to the climate crisis is one of denser, walkable, transit-oriented street networks. To accommodate the increased need for auto infrastructure that our current development pattern requires, more and more places, homes, and natural areas have to be bulldozed and replaced with more and more lanes and unwalkable neighborhoods with fewer homes. Building this way is detrimental to the environment, city budgets, the independence of elderly residents who no longer drive, the freedom of children to walk to friends’ houses safely, prohibitive for local small businesses, and much more. 

Justin:  Is there ever a right time to be a NIMBY? 

Jason: It is normal to be more critical of construction and development that is taking place right next to where we lay our heads. Certainly, the residents of Murfreesboro have had a compelling argument for their quality of life living next to the biggest landfill in the state and will see it transition to a power plant by capturing the methane gas and burning it to generate energy. Tennessee’s own Rep. Justin Pearson made a big splash leading Memphis Community Against the Pipeline to fight against the Byhalia Pipeline that promised to severely threaten the Memphis Aquifer with contamination, which supplies uniquely clean water to over a million people. These efforts to fight industrial contamination in their backyards are honorable.

Neil: I think it is important to have these discussions on values before individual projects come up. What do you want your city to be known for and what are the things that will help us achieve that. Much of my comments on housing are often around our cities commitments to equity, transit and climate change. The movement of organized neighbors against things or environmental reviews has a real history. Many of our Nashville neighborhoods had a highway built through them instead of those who had the political power to oppose it. Most housing projects are not that, but we can continue to look with a critical eye at projects that pollute or disrupt natural resources. 

Justin: Is there a city we should model Nashville after? How so? 

Neil: Again, there is no silver bullet or one-size-fits-all policy. We also do not need to reinvent the wheel. A fun thing to do is go look at planning reports or transportation policy initiatives in other cities. They all say the same things because they are often using the same policy consultants. We know how to do all of this stuff, we just need to start implementing the plans we have and then adjusting as we learn more. Cities like Minneapolis or Portland have done a great job on changing their zoning. States have passed broad laws to help nudge cities along. Places like California and Montana are making big strides recently. 

Justin: Besides fixing our housing issues, what else can the city do to make it more friendly, inclusive, and modern? 

Neil: Many of us came to this path on housing by being in the transportation advocacy space. Transit, walking, and biking are absolutely part of the housing policy discussion. We need to be able to get to the places we live, work, worship, play, and learn safely and efficiently. It helps to have them close by. I do think, as a young parent, we should think through what makes suburbs so attractive and build that into our cities. Where can kids and parents safely go play? How do we create the best neighborhood schools?

Justin: Is promoting more housing a bipartisan issue? If not, should it be? 

Both: Every family has a story of struggling to afford rent, living in the same neighborhood as their loved ones, or failing in a bidding war with Wall Street investment firms when buying a home. As our parents and grandparents reach their senior years, they are running headfirst into an unprecedented housing shortage for smaller homes and at the same time, backyard cottages (also known as Granny Flats or Accessory Dwelling Units) are quite rare. Because many of the same barriers for housing have shaped the business environment, there are stories of businesses being denied expansion of their footprint due to minimum parking requirements despite the lot never being full or when they share a lot with a business that has customers at opposite times of the day (i.e., an office next to a pub or a bakery next to a gym). Car-dependent commercial areas made separate from residences have mandated every florist and toymaker become skilled at online marketing or else go bankrupt.

Citizens who are especially concerned about equity and a fair shot at life are surprised that the development patterns with traditional multi-family homes and townhomes in the poorest residential neighborhoods actually subsidize the suburbs with more middle income and affluent residents. Of course, we know which communities get the most amenities. Citizens who are especially concerned with fiscal responsibility are often surprised to learn how wasteful cities are with our tax dollars by permitting these suburbs to be built. This is a glaring liability when our shared infrastructure has deferred maintenance year after year while basic services go underfunded.

Both red and blue states have been making housing a priority. California, New York, Oregon, Montana, Texas and Florida have all passed, or come very close to passing, broad housing reforms. I think we can do this in Tennessee as well. It is a problem that impacts us all and we need solutions from everyone.

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Justin: Who is the most pro-housing candidate in Nashville's Mayoral race, and why?

Neil: I have been pleased to hear that most of the major candidates are centering housing affordability, permitting reform and transit in their plans. I think we all have our personal opinion on who would be best but have not as an organization made an endorsement. 

Justin: What are Housing Now Nashville's upcoming goals, events, and initiatives? 

Neil: Our goals broadly are to help get more housing built and the people involved in that process. We will be scheduling out monthly meetings to include a social meeting, council or planning commission actions, and group meeting. 

Justin: Is there anything else readers should know?

Neil: I hope the message is that there is always work to do and problems to solve. Get involved with something in your community. We are here to help welcome new neighbors to Nashville and working to keep those that are already here. It’s not the character of the neighborhood, it's the characters in the neighborhood that matter.

You can become involved with Housing Now Nashville by signing up at HousingNowNash.org or by following along on Twitter (@housingnownash), Instagram (@housing_now_nashville) or Facebook.

This work is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International.

In today's increasingly polarized world, finding common ground between the left and right may seem elusive. I see it happen often in Nashville, especially as the city continues to shell out more taxpayer money for NFL stadiums and NASCAR tracks. Both sides of the political spectrum, while driven by different motives and underlying values, share a common aversion to such frivolous spending — the right objects to wastefulness, while the left resents handouts to billionaires. To add more ammo, the breadth of academic research finds no economic benefits to subsidizing sports stadiums or events. 

This issue serves as a powerful example of how empirical research and aligning values can bridge ideological divides, fostering unity on vital policy matters. Despite such coalitions, formidable obstacles stand in the way of meaningful change. Politicians who want to cement their legacy on the city (i.e., Nashville Mayor John Cooper’s backing of a Titans stadium deal), business interests like local chambers of commerce, and other benefactors wield enough persuasive force to keep Nashville, and cities like it, footing the bill for millions of dollars in support of professional sports teams.

Still, it’s on issues like this — those that break partisan and ideological barriers and align with compelling evidence — where we could actually see meaningful changes by combining forces on both a local and national level. 

In this series of essays, I aim to explore issues that could have broader appeal among the left, right, libertarians, and centrists on multiple fronts — from economic and philosophical perspectives to constitutional considerations and beyond. And I will also argue that by setting aside our partisan and ideological differences on other topics and rallying around these common issues, we possess the potential to catalyze profound and meaningful social change.

Some Background

I started considering this concept after reading a piece by Ilya Somin, a law professor who focuses on constitutional law and a scholar at the libertarian Cato Institute. Somin’s piece, titled “Three Constitutional Issues Libertarians Should Make Their Own,” argues that libertarians should focus on three constitutional issues that have gone “largely ignored” and would provide “valuable opportunities to expand liberty: zoning, constitutional constraints on immigration restrictions, and racial profiling in law enforcement.” 

But what struck me about the issues Somin chose to focus on is that they have traditionally been associated with progressive activism, or at least align with policy goals that many on the left advocate. Somin's central appeal to libertarians is rooted in the argument that immigration restrictions, exclusionary zoning, and racial profiling infringe upon individual liberty and constitutional rights. Progressives, on the other hand, may oppose these policies for reasons such as reducing economic inequality. Nevertheless, both sides converge on the same policy conclusions.

By discussing policy solutions that may appeal to multiple ideological values, I hope to find similar common ground. 

Policy Solution #1: Ending Exclusionary Zoning  

As the U.S. grapples with a deepening affordable housing crisis, YIMBY (Yes-In-My-Backyard) Groups have sprouted around the country to advocate for major reforms to the exclusionary zoning practices prevalent in most major cities. These zoning policies often prioritize single-family homes and hinder the construction of more affordable housing options for low- and middle-income residents. A 2022 paper by Jonathan Levine describes the YIMBY movement as “a loose and shifting pro-housing alliance of renters, progressives, and libertarians who hold that exclusionary land-use policies in urban and suburban areas exacerbate housing unaffordability and racial segregation and increase long-distance commuting and greenhouse-gas emissions.” 

These coalitions primarily focus on zoning reform within local or metropolitan jurisdictions, where traditional party and ideological lines blur, and national culture wars have a limited reach, allowing people from diverse political backgrounds to unite in this cause. After all, the YIMBY movement's overarching goal—to create an affordable place for everyone to live — is challenging to argue against, regardless of one's ideological perspective.

However, despite the undeniable merits of ending exclusionary zoning, the path forward has not been so simple. Misconceptions about increasing housing density persist and surface at zoning hearings in nearly every city, voiced by concerned residents and NIMBY (Not-In-My-Backyard) groups. Their concerns range from traffic congestion to potential overcrowding in schools and the perceived threats of crime to "community character."

Moreover, entrenched interests stand in the way of progress, benefiting from the current zoning schemes. This includes landowners and homeowners worried about their property values, as well as local public officials who cling to outdated beliefs that cities must rigidly manage growth through complex planning.

One important caveat: when we talk about ending exclusionary zoning, this is not a proposal to tear down single-family homes or to replace them all with apartments or “tall skinnies” (which are mostly single-family homes). Instead, advocates support making it easier to build a variety of forms of housing — from duplexes and quadruplexes to townhomes and condos to accessory dwelling units (ADUs) like mother-in-law suites. These proposals go in tandem with other reforms like reducing or ending minimum parking requirements and minimum lot sizes, both of which would increase the availability of land for housing.

Ideological Concerns about Density  

Ideological and partisan apprehensions about increased housing density cut across the spectrum of political affiliations. Conservatives, for instance, worry about increased crime rates and limited space to raise families. A poll by Pew Research found that conservatives preferred areas where “houses are larger and farther apart, but schools, stores, and restaurants are several miles away.” Consequently, they might resist the construction of multi-family housing, viewing it as a means to preserve the cultural identity and character of their neighborhoods.

Progressives, on the other hand, tend to support the idea of constructing more affordable housing, yet they may oppose ending exclusionary zoning due to fears of displacing low-income residents and communities of color or triggering gentrification. Others oppose higher density due to potentially negative environmental impacts. They may also argue that policies like inclusionary zoning mandates or rent control would be more effective in ensuring affordability. 

While libertarians are more inclined to support ending exclusionary zoning, viewing it as interfering with property rights and the free market, a small group of libertarians contends that it would actually be a violation of property rights to end single-family zoning. The Reason Foundation’s Robert Poole argues:  

“To abolish single-family zoning is a violation of the contract between a municipality and its single-family homeowners. They selected the neighborhood and the house based on the protections offered by prevailing zoning.” 

The Economic Case 

Before addressing these concerns, I would like to present some compelling evidence showcasing the economic benefits of these reforms. Economists from across the political spectrum agree that removing exclusionary zoning barriers is the best way to create more affordable housing. In March 2023, Zillow conducted a poll of 117 housing market experts and economists and found that 73 percent ranked zoning reform as “one of the most effective means to address affordability.” 

The economic repercussions of exclusionary zoning are far-reaching. Economists have found that by artificially decreasing the supply of housing, these zoning practices inflate housing prices, slow labor flows into highly productive cities, rob us of economic growth, and worsen income inequality. 

Research by economists Peter Ganong and Daniel Shoag from Harvard University shows that strict land use regulations in high-productivity cities led to above-average increases in housing prices, widening income inequality and discouraging population flows to high-income areas. 

Moreover, a 2019 study by Chang-Tai Hsieh (University of Chicago) and Enrico Moretti (University of California, Berkeley) estimated that relaxing land use restrictions in New York, San Jose, and San Fransisco — three of the most highly productive cities in the U.S. with some of the strictest zoning laws — could have increased aggregate growth by 36.3 percent from 1964 to 2009, boosting U.S. GDP by 3.7 percent in 2009. This would have resulted in an additional $3,685 in annual wages for the average American.

Ending exclusionary zoning presents an “easy button” for stimulating the economy. If major cities across the country embraced more liberal land use regulations, we could potentially see huge and immediate gains in productivity and growth as well as upward mobility for low-income workers. More people would be able to afford to move to cities offering higher wages, reduced commuting times, and increased job opportunities. 

This policy proposal should appeal to conservatives (not necessarily MAGA Republicans, but traditional conservatives) and libertarians alike, as it involves removing restrictive government regulations and unleashing the free market to enable housing supply to meet actual demand. Progressives can also tout this reform as a means to reduce income inequality while providing more opportunities for low-income and working-class individuals in their communities.

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The Progressive Case 

For the left, liberalizing land use regulations offers numerous upsides, especially concerning income and racial equality. Restrictive zoning perpetuates class and racial segregation in the U.S., intensifying wealth inequality by driving up home values for existing homeowners while inflating rents and housing costs for the least well-off among us.

This leads to a fragmented and stratified community. A paper by Jonathan T. Rothwell (Brookings Institution) and Douglas S. Massey (Princeton University) concludes that “[m]etropolitan areas with suburbs that restrict the density of residential construction are more segregated on the basis of income than those with more permissive density zoning regimes.” 

Considering the strong link between income and race, another study by Rothwell finds that liberalizing zoning laws “would reduce the equilibrium gap between the most and least [racially] segregated Metropolitan Statistical Areas by at least 35%.” 

Moreover, restrictive zoning policies exacerbate homelessness, as the low housing supply drives up housing costs, making it increasingly unaffordable for vulnerable populations.

Embracing a diverse array of multi-family housing options also offers significant environmental benefits. If cities have enough density to support walking, biking, or public transit, more people can access basic goods and services without driving a car. If more people can live in major cities, that’s fewer cars on the road, less traffic, and fewer emissions. Density also decreases the need for sprawl and the conversion of natural land further away. Cities just require less space. 

In Green Metropolis, David Owen reports that the average New Yorker consumes less energy, gasoline and land, generating fewer greenhouse gas emissions annually than “residents of any other American city, and less than 30 percent of the national average.” 

Relatedly, minimum parking requirements mandate that new developments provide a certain number of parking spaces. These requirements artificially reduce the supply of housing and prioritize cars over housing, perpetuating car-centric lifestyles. Furthermore, zoning rules for single-family homes, such as minimum lot sizes and setback requirements, leave land underused and contribute to environmentally harmful practices like excessive water use, fertilization, and pesticide application to manage large and unnecessary lawns. The bottom line is that sprawl is bad for the environment, while density is very good. 

One of the most common concerns raised by progressives about zoning reform is the displacement of current residents. But research shows that an increase in private development is associated with less displacement. That’s because increasing the supply of housing slows the growth of housing costs and rents, making it easier for low-income households to remain in their homes. 

For those still concerned about displacement, there are things that cities can do to incentivize affordable housing units for low-income residents within new developments. The key is to provide financial incentives to developers rather than punish them. Things like inclusionary zoning requirements have mixed results at best, and can even lead to new construction being built away from areas that mandate affordable housing. 

Instead, as urban development expert M. Nolan Gray argues, “cities should put their money where their mouth is, offering financial incentives — such as exemptions from impact fees, property tax relief, or expedited permitting — commensurate to the number of new income-restricted units that developers agree to include in new buildings.” In other words, if we want affordable housing units included in new developments, we should subsidize it, not mandate it. 

While acknowledging the tradeoffs inherent in any policy, the substantial benefits that ending exclusionary zoning offers to low-income individuals should not be dismissed merely because a small subset may experience short-term challenges. Mitigating these effects can be achieved through other policy tools, ensuring a more equitable and inclusive society for all.

The Libertarian Case

Note that when I discuss libertarians, I am mostly referring to classical liberals and not the alt-right faction that currently controls the Libertarian Party. As such, the libertarian case for ending exclusionary zoning comes down to property rights. Homeowners, landowners, and developers should be able to build whatever type of housing they want on the property they own. Now, that’s a very basic understanding of how property rights work and there are obviously a ton of caveats. 

Most libertarians support rules to prevent negative externalities, including ordinances or covenants that prohibit people from building a loud or pollution-emitting factory in the middle of a residential neighborhood. They also generally support things like homeowners associations (HOAs), or voluntary agreements among homeowners to set particular rules about what you can do with your property to maintain harmony within a neighborhood. (There are obviously issues with HOAs and their propensity to push for exclusionary zoning, but that is another piece.) 

But if there are no voluntarily-established rules prohibiting you, the underlying libertarian principle is that you should be able to build a duplex, triplex, or an ADU on the property you own. 

Now, what about the objection from some libertarians, mentioned above, that property owners who purchased a home in an area zoned for single-family homes had an implicit agreement and accepted such restrictions to protect themselves from unwanted density? In other words, zoning restrictions are a kind of “contract between a municipality and its single-family homeowners.” 

As Ilya Somin argues in response to this, this interpretation misunderstands what a contract is: 

A true contract arises through the voluntary agreement of the parties. By contrast, zoning restrictions are imposed by governments on all property owners in a given area, regardless of whether they agree to it or not.

It is true that, after the initial coercive imposition of zoning, some of those who buy property in the area may do so in part because they like the restrictions. But if that qualifies as a "contract" that future government policy is morally bound to respect, the same goes for virtually any other type of coercive government policy that some people have come to rely on.

We could equally say that protectionism is a "contract" between the government and protected industries. After all, many investors and workers may have "selected" that industry "based on the protections offered by prevailing" trade restrictions. Similarly, abolishing racial segregation violated the "contract" between the government and white racists who "selected" segregated neighborhoods "based on the protections offered by prevailing" segregation laws.

The difference between exclusionary zoning and private land-use restrictions like HOAs is that the latter is actually a voluntary contract, Somin explains. 

From a libertarian standpoint, the benefits of ending exclusionary zoning are multifaceted. It aligns with the principle of minimizing government intervention and allowing the free market to determine the housing supply. Utilitarian libertarians may support liberalizing land-use regulations due to the significant economic benefits discussed earlier.

For Constitutionalist libertarians, here is an excerpt of Somin’s constitutional case for ending exclusionary zoning: 

Since the Supreme Court’s 1926 decision in Village of Euclid v. Ambler Realty Co., which upheld zoning against constitutional challenges, and later rulings building on it, conventional wisdom has been that there is no strong legal case against the practice.

But Euclid was a terribly flawed decision. Among other things, the majority ignored the fact that the property rights protected by the takings clause of the Fifth Amendment (which requires the government to pay “just compensation” when it takes private property) include a right to use the property as the owner sees fit, not merely the right to prevent others from physically occupying the land or seizing formal ownership. That is in accordance with Founding‐​era understandings of natural property rights and much 19th century jurisprudence. If the government severely restricts use rights, ownership becomes little more than a hollow shell.

The right to use could traditionally be limited by the “police power”—the government’s authority to protect public health and safety. But much exclusionary zoning goes far beyond anything that can be justified on that basis. In recent years, the Supreme Court has shown a willingness to strengthen constitutional protections under the takings clause, in the process repudiating or modifying long‐​standing precedent. A well‐​developed litigation effort could lead the Court to narrow or overrule Euclid, as well. libertarian organizations with extensive experience in property rights issues are well positioned to undertake such a campaign.

Moreover, for libertarians who may worry that ending exclusionary zoning would hinder those who desire suburban living, there are still other ways societies have found voluntary solutions. In Houston, a city that does not have single-family zoning, communities can enter into voluntary agreements among property owners and homeowners called deed restrictions, which regulate how they can and cannot use their land. These rules are tied to the deed, meaning that property owners must agree to them as a condition of their purchase. 

A system that allows deed restrictions but prohibits single-family zoning preserves property owners' rights while avoiding arbitrary restrictions imposed by local governments. 

The Conservative Case

Conservatives might be the hardest to sell on this policy change, especially given the state of modern conservatism. Nothing I say is likely going to appeal to certain MAGA Republicans who are already wary of elites and big cities, and who believe our cities are hellscapes of crime and debauchery. But there are several reasons I believe traditional conservatives could get on board with ending exclusionary zoning. 

Especially on the state level, Republicans are beginning to come around to the idea of zoning reform, and for good reason. Constitutionalist conservatives should largely agree with the arguments above regarding property rights. Surely, conservatives who wave “Don’t Tread on Me” flags should also agree that the government shouldn’t be allowed to tell you that you can’t convert your detached garage into an apartment for your mother-in-law. Free-market or pro-business conservatives should appreciate any idea that removes unnecessary government regulation. 

Many traditional conservatives also embrace the concept of personal responsibility, or the ideal of self-built, self-reliant individuals. But if owning a home is one’s end goal and a measure of self-reliance, that dream is becoming further out of reach for many. If housing costs eat up a large share of someone’s income, saving for a home and building wealth becomes out of reach. Building more multi-family housing in a city increases the supply of affordable options, lowers housing costs as a share of expenses, and gives more people a shot at the American Dream.

There is also a school choice aspect involved with zoning reform. Many conservatives argue that government education dollars should follow students to allow them to attend schools outside of their school district or private schools to create competition and improve educational outcomes. This policy, they argue, would allow students who live in low-income neighborhoods to attend schools with more resources. 

But it’s exclusionary zoning that creates this situation in the first place. The best public schools are located in expensive areas that have priced out low-income families due to restrictive zoning. In areas with more restrictive zoning, there are greater gaps in test scores and outcomes. Fighting to make more housing types accessible to low- and middle-income families would mean more school choices for everyone. 

At Nashville’s own Vanderbilt University Law School, there are a group of academics who I would call zoning conservatives, who advocate for maintaining the status quo on land-use policies. In a law review article called “A Case for Zoning,” Christopher Serkin contends that zoning “does not prevent change but instead regulates the pace of change.” Who determines what constitutes an appropriate “pace of change,” Serkin doesn’t say.

And according to scholar Robert Ellickson, that “change” doesn’t really happen at all. Instead, exclusionary zoning freezes neighborhoods and rarely allows for more density. In his critique of Serkin’s article, David Schleicher of Yale Law School argues that under single-family zoning regimes, “[h]omeowners are not merely limiting the pace of change but wholly averting it, stopping redevelopment and growth altogether.” 

This deprives neighborhoods of the many community benefits that come with permitting more multi-family homes, including new customers for small businesses and an increased labor supply to fill jobs. Renters also improve community involvement and participation. A policy paper from Joint Center for Housing Studies at Harvard showed that renters are more likely to socialize with neighbors and participate in community organizations. 

For conservatives who believe that exclusionary zoning helps preserve and maintain historical and traditional suburban lifestyles in cities, it’s important to remember that zoning is a top-down approach, subject to the arbitrary whims of planning boards and public officials. Single-family homeowners often become entrenched interests who will petition their representatives to preserve and expand exclusionary zoning to protect their property values, even in areas where this doesn't make practical sense. This will lead to fewer homes being built to keep up with demand and inflated prices. If conservatives want to preserve areas for single-family zoning, they should organize with fellow neighbors to create deed restrictions like in Houston and keep other areas of the city open to mixed development types.

When it comes to worries about increased crime, multi-family housing is not the cause. A study of Irving, Texas found that “high density and multi-family development are not necessarily associated with high crime rate, but socioeconomic status is.” Another study of Anchorage, Alaska similarly found “no relationship between housing density and delinquency.” Embracing higher-density housing while addressing socioeconomic disparities could contribute to safer and more vibrant communities.

Final Thoughts

While it's impossible to address every concern regarding ending exclusionary zoning, the policy offers a plethora of societal outcomes appealing to individuals across the political spectrum. By promoting affordable housing, economic growth, social inclusion, and environmental sustainability, this reform has the potential to unite diverse perspectives, transcending partisan differences and fostering a better world for all. The removal of exclusionary zoning represents a compelling opportunity to advance shared values and interests, establishing a more equitable and inclusive society for generations to come.

This work is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International.

Following in the footsteps of states like Florida and Texas, the Tennessee legislature has been working hard to root out “wokeness” at the state’s public colleges and universities. While state lawmakers seemingly understand that the First Amendment prevents them from banning certain topics from being discussed in college classrooms, that hasn’t stopped them from attempting to chill speech in other areas. 

On July 1, 2023, a Tennessee law targeting so-called “divisive concepts” at the state’s public universities went into effect. This law, entitled the Tennessee Higher Education Freedom of Expression and Transparency Act, builds off of legislation passed last year that established rules and prohibitions on the use of so-called divisive concepts in the state’s institutions of higher education. 

While the state’s definition of “divisive concepts” includes many abhorrent and bigoted ideas like “one race or sex is inherently superior to another race or sex” or “an individual should be discriminated against or receive adverse treatment because of the individual's race or sex,” other topics are an attempt to target ideas loosely associated with critical race theory. These include: 

• An individual, by virtue of the individual's race or sex, bears responsibility for actions committed in the past by other members of the same race or sex;

• An individual should feel discomfort, guilt, anguish, or another form of psychological distress solely because of the individual's race or sex

• A meritocracy is inherently racist or sexist, or designed by a particular race or sex to oppress another race or sex;

• This state or the United States is fundamentally or irredeemably racist or sexist

• The rule of law does not exist, but instead is a series of power relationships and struggles among racial or other groups.

It also labels as divisive any concept that “promotes division between, or resentment of, a race, sex, religion, creed, nonviolent political affiliation, social class, or class or people” or that “ascribes character traits, values, moral, or ethical codes, privileges, or beliefs to a race or sex, or to an individual because of the individual’s race or sex.” For instance, a concept like “white privilege” would likely be considered “divisive” under these definitions. 

To its credit, the law passed last year (SB 2290) rightly prohibits universities from requiring students or employees “to endorse a specific ideology or political viewpoint to be eligible for hiring, tenure, promotion, or graduation.” It also prevents universities from requiring students or employees to endorse particular viewpoints on admissions or job applications. 

But while it stops short of banning discussions or lectures about “divisive concepts” in classrooms, it does prohibit “mandatory university trainings” as well as incentives for students or employees to endorse these concepts (or punishments if they don’t). As defined by the statute, these trainings include “seminars, workshops, trainings, and orientations.” As the Foundation for Individual Rights and Expression (FIRE) points out: 

Legislatures have substantial latitude to regulate how a state institution speaks for itself in such programs as non-credit-earning trainings. However, since the law’s definition of “training” includes “seminars” — and this term is often used to describe small, intensive for-credit courses — the provision could be read to prohibit the teaching of “divisive concepts” in higher education classrooms.

What has created even more confusion, however, is that the bill’s proponents have often made statements indicating that the law would somehow affect classroom teaching. For instance, Lt. Governor Randy McNally reportedly said that professors need to “stick to what they’re supposed to be teaching” and “need to teach the facts and not editorialize against certain races or beliefs.” 

Local media outlets have also misreported what the law actually does, such as Nashville’s WSMV 4, which reports that “Students can report professors who teach ‘divisive concepts’ under new law.” Another report from Johnson City’s WCYB 9 states that the law allows “students to report professors who teach concepts which promote political and social agendas.” Neither of these articles is true, of course, but inaccurate reports like these will increase fears about what professors can and cannot say.

The law also prohibits using “state-appropriated funds to incentivize, beyond payment of regular salary or other regular compensation, a faculty member to incorporate one (1) or more divisive concepts into academic curricula.” Joe Cohn, legislative and policy director at FIRE, told The Tennessean that this section is likely unconstitutional since it specifically prohibits faculty from seeking state grants to teach about particular topics: 

"They take one particular set of arguments with a particular point of view and say, 'This is the one thing that you're not allowed to get additional financial incentives to promote,'" Cohn said. "The moment there's a viewpoint-based regulation, it's unconstitutional."

Additionally, one of the main issues with Tennessee’s overall approach is that it has established a set list of “divisive concepts” in the first place. It never goes well when the government gets into the business of explicitly spelling out either good or bad ideas. First, some concepts are broad enough to chill perfectly acceptable speech. Second, the fact that it has prohibited mandatory trainings and endorsements for these particular ideas leaves open the door that it could require students or faculty to endorse other concepts not enumerated.  

The Tennessee Higher Education Freedom of Expression and Transparency Act

The new law (SB 817) that went into effect this month allows college students and employees to report incidents in which they felt compelled to endorse “divisive concepts” or were discriminated against due to their political viewpoints. The college must investigate the alleged incident and “take appropriate steps to correct any violation.” Institutions must also report those violations and any corrective actions taken in an annual report to the Tennessee Comptroller of the Treasury’s Office of Research and Education Accountability. 

These changes have raised further concerns that faculty must watch what they say around students for fear of being reported, even though the law does not affect classroom discussions or curriculum. 

The statute also affects Diversity, Equity, and Inclusion officers, requiring institutions to “ensure that the employee’s efforts strengthen and increase intellectual diversity and promote a climate that facilitates free and respectful exchange of ideas.” That provision seems innocuous and fair, but the law also oddly tries to define job responsibilities for these employees: 

The institution must ensure that the employee's duties include efforts devoted to supporting student academic achievement and workforce readiness, such as mentoring, career readiness and support, workforce development, or other related learning support activities necessary for the academic and professional success of all students.

Colleges must then submit a report to their president and, if applicable, a system president, about its compliance with this DEI employee requirement. This section seems vague, and how universities or the state will enforce this requirement remains to be seen. 

It is undeniable that the intent was to target DEI programs. Senator Joey Hensley, the bill's lead sponsor, said in an interview with Inside Higher Ed, “We’re concerned about the DEI programs and how they’re really divisive concepts and put everybody into some group. And they favor one group over another and we just think that people go to college and they need to be educated in whatever field they’re going to school in and not be concerned about diversity, equity and inclusion issues.” 

Some provisions of this new law are favorable. For instance, the law protects student groups and guest speakers from bias or discrimination based on their beliefs or political ideology. An institution cannot deny the use of university property to a student group or guest speaker who plans to use the property peacefully and lawfully simply based on that group or speaker’s viewpoint. Colleges also cannot require certain student groups to pay fees not charged to all student groups. These are good provisions. As long as speakers or student groups hold peaceful and lawful events, they should not be barred from campus, regardless of their ideas.  

Finally, the law requires that colleges “notify students and employees [ . . . ] on the restrictions [ . . . ] and the definition of divisive concepts [ . . . ] by including such information on the institution’s website and on introductory materials provided by the institution to the new students and employees.” It also requires “employee training to ensure compliance” with the law. 

Although it stops short of banning conversations about these topics in classrooms, the requirement to broadcast them to students, faculty, and administrators makes the campus community acutely aware that they could be reported for crossing a line and potentially running afoul of the law. This fear could certainly chill acceptable speech in the process. 

How Are State Colleges Responding to the Law? 

Given the requirement to post about “divisive concepts” on school websites, I was curious how major public colleges in Tennessee are addressing the issue. Several have simply stated facts about the new laws, while others have emphasized their strong commitment to defending academic freedom. 

University of Tennessee at Knoxville 

The University of Tennessee at Knoxville (UT) has a lengthy page on its Office of Provost website that responds directly to the legislation and begins with its commitment to protecting its faculty’s academic freedom: 

All faculty—tenured, pretenure, and non–tenure track—have the right to teach, research, create, and perform about their knowledge and understanding in their discipline. This academic freedom persists even when faculty members hold a minority view within their discipline and when others in and beyond the institution find their views contrary or objectionable.

The page also states the university’s commitment to viewpoint diversity and debate, diversity, a culture of respect, and open dialogue. On diversity, the school states: 

The issues of diversity and divisive concepts as defined in the legislation have been widely conflated; they are not the same. We do not mandate or promote any single ideology. We support our diversity and engagement work to make sure everyone in our campus community knows they matter and belong. We are proud of our diversity and engagement efforts, and we will continue our work in that area.

The page also emphasizes that university leadership worked to ensure that the legislation recognized academic freedom, state and federal requirements to train students and employees on non-discrimination, that the laws do not impact teaching, debate, and discussion, and that the school’s DEI work can continue. 

UT also reviewed its mandatory trainings that would have been affected by the law and concluded, “The university has few mandatory trainings, and it is questionable whether they include divisive concepts as defined in the legislation.” Again, this line stood out as it demonstrates the problem with the state laying out particular ideas as “divisive” while failing to recognize how certain topics could be tangentially related and worthy of discussion. 

The page also recommends a statement for inclusion on course syllabi: 

Civil Discourse

A true university education is one in which students hear, study, and discuss ideas that challenge their thinking and encourage them to consider points of view different from their own. Students should expect to hear ideas that make them uncomfortable, should be able to explain and master concepts they disagree with, and should feel free to take opposing views as part of civil academic discourse.  We remind all members of the campus community that the Campus Free Speech Protection Act—signed into state law in 2017—applies to everyone. The act endorses the fundamental responsibility of the university by defining what we are not to do: “It is not the proper role of an institution to attempt to shield individuals from free speech, including ideas and opinions they find offensive, unwise, immoral, indecent, disagreeable, conservative, liberal, traditional, radical, or wrong-headed.” These principles are recognized in the Board of Trustees Policy Affirming Principles of Free Speech for Students and Faculty (BT0010). 

Middle Tennessee State University 

Middle Tennessee State University’s (MTSU) Divisive Concepts page is similar to UT’s in that it explicitly reassures the community that it remains committed to academic freedom and diversity. What stood out to me most about MTSU’s page is how it has clearly affected their policy choices to stay compliant with the law. Here is a section on DEI trainings: 

The university does not read the Act as a prohibition on DEI trainings, but we must take care in considering the design of those trainings. To comply with the Act’s training-related requirements, departments and administrative units should:  

• review current training programs and confirm that they do not contain any divisive concepts;

• ensure that those who create new training programs understand the prohibitions in the Act; and

• require third parties who conduct training to abide by the Act.

It is important to note that trainings may still inform students or employees, or foster discussion, about pre-conceptions, opinions, or stereotypes that people – regardless of their race or sex – may have regarding those that are different such as socio-economic status. Trainings may also discuss matters from a historical or factual standpoint and should include attribution of statements with historical reference or additional context to address the accuracy of the content provided.

East Tennessee State University 

East Tennessee State University’s webpage reiterates its core values before listing out some FAQs about how the laws will impact the school: 

"In every respect, PEOPLE come first, are treated with dignity and respect, and are encouraged to achieve their full potential." Reaching full potential includes safeguarding First Amendment rights and academic freedom. Academic freedom allows university faculty to responsibly engage in professional and community service, teach students to engage with empirically-sound information, and conduct ethical and important research. The legislation asserts that the law should not be interpreted to infringe upon the rights of freedom of speech or academic freedom. ETSU, as an institution devoted to regional stewardship, upholds practices, policies, and programs designed to serve the common good. As the AAUP principles indicate, “the common good depends upon the free search for truth and its free exposition.”

Our values statement continues, "RELATIONSHIPS are built on honesty, integrity, and trust; DIVERSITY of people and thought is respected." These values guide the work of the institution. All people deserve respect and dignity and the academy is enriched by exposure to different ideas, people, cultures, thought and practice. The law does not prohibit the work the Office of Equity and Inclusion is leading to build a university culture of inclusion and belonging for people from all backgrounds. Our accreditors and our employers require that our students learn to appreciate the ideas and cultures of others while approaching their own beliefs with inquiry and humility. Nothing in the law changes the university’s commitment to these values.

University of Tennessee Chattanooga 

The University of Tennessee Chattanooga (UTC) created a page on Viewpoint Diversity, which emphasizes its commitment “to ensure a climate welcoming of diverse viewpoints for all faculty, staff, and students.” The page contains a link to the list of Divisive Concepts, but it does not address the new laws specifically. 

Austin Peay State University 

Austin Peay State University’s (APSU) webpage contains its official response and resources for faculty. The college’s VP for Legal Affairs statement affirms its commitment to the First Amendment and academic freedom. It also includes an optional syllabus statement: 

APSU is committed to the free and full exchange of ideas and perspectives that is central to the educational enterprise. We are also committed to encouraging students—and all people—to be exposed to, and think critically about, sensitive topics and issues. This is an essential element of higher education and necessary to better prepare students for community participation and robust civic engagement. Curricular materials on concepts including but not limited to racism, sexism and classism may be presented and discussed in this class; while students are expected to master course content, it is not expected that students endorse or subscribe to any theory or viewpoint.

Tennessee Tech 

Tennessee Tech’s webpage simply lists the divisive concepts and the law's various provisions. 

University of Memphis and Tennessee State University 

I did not find a page on divisive concepts on the websites of either University of Memphis or Tennessee State University. 

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Conclusion: A Worrying Chilling Effect

I wanted to highlight these various responses and courses of action taken by public universities in Tennessee because it demonstrates how confusing and unproductive many of the provisions in these laws are. It has forced college administrators and faculty to walk on eggshells to avoid being reported for alleged violations. 

While these statutes could potentially stand up to First Amendment scrutiny if challenged in the courts (except for the provision identified by FIRE above), that doesn’t take away from the fact that they have created a chilling atmosphere on speech and discussion simply by their attempts to define acceptable topics of discourse. Under the guise of protecting open debate and viewpoint diversity on college campuses, the state has ironically limited the breathing room for free and open expression by creating a confusing legal environment. 

For instance, a law professor at UT said that her work dealt with critical race theory and bias and told The Tennessean that she was reconsidering her curriculum for future semesters. Other professors worried about the effects on non-tenure-track instructors. 

The state could have easily focused on promoting viewpoint diversity and protecting student groups and speakers from ideological discrimination. Instead, they created broad and vague remedies to address problems (like mandatory DEI trainings or students being forced to endorse particular views) that largely don’t exist. As Ken Paulsen at the Free Speech Center at MTSU argued, these laws seek “to tamp down statements that largely aren’t being said in the interest of discouraging theories that are rarely taught [ . . . ] The state would have been better served by a resolution that condemns on-campus racism, sexism and any discriminatory behavior that undercuts the promise of equality and justice for all, while also emphasizing the essential role of a campus as a marketplace of ideas.” 

Only time will tell what effects this will have on public discourse at colleges in our state.

This work is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International.

Bellevue, where I live, may not be in Nashville’s downtown core, but it has become an attractive area for those seeking to be closer to some of the great outdoor activities that Nashville has to offer, such as the Harpeth River and the Percy/Edwin Warner Parks.

Although Bellevue is about 12 miles from downtown, there’s still ample room for growth that doesn’t take away from the nature and beauty of the area. Increasing density or multifamily housing is one way to add housing without intruding on protected spaces. But like many of Nashville’s sprawling suburbs, Bellevue has also become artificially strangled by our city’s preference for exclusionary zoning policies that favor single-family homes.

Not everyone can afford to buy half-million dollar homes, and many people just starting out would prefer to rent. But there are few affordable options in our area. According to Zillow, median rent in Bellevue is over $1,900 a month. That’s cheaper than other parts of the city but still hardly “affordable.” Rent for a 2-bedroom apartment or condo has increased by over $315 in the past year.

NIMBY groups in Bellevue argue that recent proposals to build higher-density housing would violate Bellevue’s Community Plan and harm our community’s character. But even that plan recognizes the need for mixed housing types:

The Bellevue community’s desire to maintain and enhance its rural and suburban residential neighborhoods is shown by the placement of Neighborhood Maintenance policy to several neighborhoods and areas in the community. To maintain long-term sustainability of the community and to enhance housing choices for residents at every point in their lives, an appropriate mixture of housing types must still be provided. Appropriate locations for additional residential development are indicated by applying Neighborhood Evolving, Center, and Corridor policy areas. In rural areas, some opportunities for additional rural housing exist in certain areas. In suburban areas, providing diverse housing types allows individuals to relocate within the same community as their needs and circumstances change. The provision of diverse housing types also creates more opportunities for uses within the mixed use centers that serve the needs of the surrounding neighborhoods, such as cafes, coffee shops, boutiques, and small shops. Currently, some businesses would argue it is not viable for them to locate in the community because there are not enough people living in the area to support their businesses.

On Thursday, July 6, 2023, Metro Council will vote on a rezoning request for a development called Ariza Bellevue. Here are the relevant items on the council’s agenda:

A group called Bellevue Strong has loudly opposed this rezoning proposal and has even promoted some strange conspiracies about what’s motivating this development. Last year, I co-authored an op-ed with Daniel J. Smith, professor of economics at Middle Tennessee State University, about this project, explaining how NIMBYism like this holds our community back. Here is an excerpt from that piece:

Bellevue Strong argues that the development is “inconsistent” with Bellevue’s community plan and is not “harmonious or compatible with surrounding property uses.” What this amounts to is a fear that renters, who don’t have a “stake” in the community, will reduce the sense of community.

But research shows this fear is unfounded. Renters are more likely to socialize with neighbors and participate in community organizations. Renters in expensive areas like Bellevue are likely to be empty nesters or retirees looking to downsize while still remaining in the community or young professionals and couples just starting out and looking to establish roots in the area. Nothing will destroy a community faster (not to mention its moral character) than not allowing housing options for those unable to afford a $2 million home.

Certainly, the developer’s plans appear to make a concerted effort to attract these types of new residents with a bridge to Bellevue Park (currently landlocked by the Harpeth River), donated public park space, bike and pedestrian paths (down Coley David Road), and a bike tunnel (underneath CSX railroad), and greenway access. Rather than tear the community apart, the developer is investing millions to piece “the greenway puzzle together.” Importantly, these new high-end apartments will free up more affordable housing options elsewhere in the city.

Opponents have also brought up concerns over possible flooding, but a recent email from Council Member Dave Rosenberg addresses those concerns. Still, no matter how many assurances Bellevue Strong receives, they continue to oppose the plan vociferously.

Building higher-density housing, even in further-out areas like Bellevue, will still take pressure off the entire city’s housing market by increasing the overall supply. It gives young, working-class people more affordable options to enjoy living in Music City, even if living closer to downtown is out of reach. Even the construction of so-called “luxury apartments” has positive downstream effects on affordability across the city.

Unfortunately, I won’t be able to attend the meeting in person (I have spoken in favor at Planning Commission meetings), but here are the meeting details for those who would like to voice their support for more housing in our city:

Thursday, July 6th at 6:30PM (The relevant items will likely be considered later in the evening)

Historic Metro Courthouse
1 Public Square, 2nd floor
Nashville, TN 37201

Legislation: BL2023-1968/1969

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On a related note, I’m slightly concerned by a recent Nashville Banner interview with Jason Spain, a candidate to replace Rosenberg as the council member for District 35 (Bellevue):

What is the biggest issue facing your district? How would you approach it?

“Bellevue is a special community, and my neighbors want a representative who will work to keep it that way. At times it seems that there is new development happening at every corner. We have to choose if we are going to allow unchecked development to choke off the character of our city and quality of life that make people want to come here to begin with or if we will make strategic decisions about our built environment that will lead to smart growth that enhances our community, strengthens our neighborhoods and benefits everyone that calls Nashville home. Together, I know that we can ensure that future development works for us rather than happens to us. With responsible leadership, we can grow the right way and preserve the character of our community at the same time.” [Emphasis mine]

I am hoping that Mr. Spain will clarify what he means by “unchecked development,” since I have not really seen this in our community. But between this answer, and his indication in the same interview that he would have voted for the Titans stadium, I have to say I’m not impressed.

I have been closely following the disturbing and embarrassing rise of the alt-right contingent within the Libertarian Party, also known as the Mises Caucus. This faction, which took over the party in 2022, is responsible for several racist, anti-LGBTQ, antisemitic, and xenophobic Tweets. It has also compared Ukrainian President Zelensky to Hitler, echoed Marjorie Taylor Greene in calling for a “National Divorce,” and promoted a racist, anti-immigrant philosopher named Hans-Hermann Hoppe.

I recently asked Joshua Reed Eakle, a Tennessee native and former chairman of the state Libertarian Party, to shed some additional light on these developments and to discuss his broader efforts to reassert libertarianism’s liberal origins.

Joshua currently serves as the director of marketing of Students For Liberty and a board member of the Classical Liberal Caucus. He is also the co-founder of Project Liberal, an organization that’s advocating to resurrect true liberalism in American politics. Joshua is an entrepreneur, marketing executive, and libertarian organizer. His career as a business growth consultant has spanned industries from transportation to manufacturing to retail.

Without further ado, here is my interview with Joshua Reed Eakle:

Justin Hayes: You are currently the Global Marketing Director for Students for Liberty (SFL). For those who may be unfamiliar, what is SFL, and why do you think it is an important organization? 

Joshua Reed Eakle: Students For Liberty is a very unique organization. What makes SFL different from other groups is its focus on making a generational impact. SFL is not focused on reacting to today's news or making loud statements but on building a global network of leaders advancing liberty in all aspects of society.

SFL has been around for a short time (15 years), but it has already done some amazing things. They've gathered a group of bright, driven young leaders from all over the world, from schools to businesses, politics, and the media. These leaders are all working hard to spread the idea of liberty in ways you might not even think of in over 100 countries.

If you're a young person who cares about liberty, SFL is there to help you. They give you the tools you need, powerful global connections, and the resources you’ll need to unlock your potential as a leader. 

I'm proud to be a member of the Students For Liberty team. I can't think of anything more important than helping them grow. 

J.H.: Let’s talk about your involvement with the Libertarian Party. You were previously Chairman of the Libertarian Party of Tennessee. Why do you think it’s important to have third parties in politics, especially on the state level? What was the most challenging aspect of that experience? What was the most rewarding? 

J.R.E.: I've dedicated my life to challenging the two-party stronghold on American politics. Being part of a third party like the Libertarian Party can feel a bit like the Greek tale of Sisyphus, always pushing a boulder uphill only for it to roll back down again. But I believe it's essential to offer a different choice and to keep the two main parties accountable. This is particularly important when the results of an election are so close that a third party could tip the scales.

In Tennessee, where I was Chairman of the Libertarian Party, the fight for political representation is a steep uphill battle. To illustrate, if someone wants to run for office as a Republican or a Democrat, they only need 25 signatures to get on the ballot. But if you're a Libertarian, you need around 43,000 signatures. This makes it harder for us than almost any other state. So our first battle is always about getting a fair chance to run.

Leading the Libertarian Party was like trying to "herd cats." It's a volunteer organization, and sometimes keeping everyone focused and coordinated can be tough. The county leaders are passionate, and sometimes they can resist direction.

But don't get me wrong. Despite the challenges, being part of a third party is deeply rewarding. Each signature we gather, each vote we earn, and each policy we influence is a step toward a more diverse political landscape. And that is worth every bit of the struggle.

J.H.: Lately, it seems that certain LP members on Twitter don’t care for you that much, particularly members of the Mises Caucus, which now controls the party. They have even made several parody accounts of you on Twitter. What do you think you have done or said that has made them so angry?  

J.R.E.: It's challenging to pinpoint exactly who's behind the parody accounts, but it's clear that some people aren't particularly fond of me. My hunch is that this might have something to do with my involvement in launching the Classical Liberal Caucus last year. This new group has quickly grown to become the second-largest caucus within the Libertarian Party. Not only that, we've become the main challenge to the control of the Mises Caucus, which currently dominates the party.

Our growth has been astounding, and I believe we are in a strong position to shift the balance of power within the party in the next few election cycles. This rapid rise and our potential to bring about change could possibly be causing some friction or unease.

If you're someone who believes in what we're doing and wants to be part of this exciting journey, I invite you to join us at lpclc.org.

J.H. Why did you name it the Classical Liberal Caucus? Do you believe that your “side” has enough momentum to take back the party, or is it a lost cause? 

J.R.E.: We've named ourselves the Classical Liberal Caucus because our principles align with the ideas of great classical liberal thinkers from history. The beliefs of people like Ludwig von Mises, Friedrich Hayek, Frederick Douglass, and Frédéric Bastiat, centered on personal freedom and limited government, form the bedrock of our caucus.

Whether we can muster the momentum necessary to shift the direction of the party remains to be seen. Currently, the Mises Caucus appears to be pursuing a strategy that, metaphorically speaking, could be compared to "polluting the pool" to dissuade others from joining. This refers to their use of hateful rhetoric and name-calling towards anyone not part of their caucus online, creating an environment that can feel quite hostile for those who don't agree with them. This approach has proven effective in deterring many potential members from associating with the Libertarian Party.

However, our strategy is a counter to this. We aim to create an atmosphere that's both welcoming and professional within the caucus. We want to provide a space where differing opinions can be heard and debated constructively without fear of reprisal or hostility. This, we hope, will attract more people to our cause and the Libertarian Party in general.

As for the future, only time will tell. The next two election cycles will be crucial in determining whether our approach is effective. We remain optimistic and committed to our cause.

J.H.: I published a three-part primer on some of the ideas underpinning the rise of the Mises Caucus within the Libertarian Party. What are some other aspects of the Mises Caucus’s role in the LP that you think are important for readers to know and understand? 

J.R.E.: The rise of the Mises Caucus within the Libertarian Party is a complex issue, and there are several facets to their involvement that are critical to understand. Some of the key areas that might raise questions include a large amount of dark money and its suspicious connections to many individuals associated with the "MAGA" movement. These factors combined have left some party members concerned. The former Executive Director of the Libertarian Party of Pennsylvania put together a Twitter thread on this that’s worth reading.

However, since the Mises Caucus gained control in 2022, the party has faced significant challenges. Membership has seen a steep decline, and the party's financial health has been severely impacted. Moreover, we have lost the 50-state ballot access that the Libertarian Party was proud to have. Looking at party revenue, the takeover has sent the party back 30 years.

While it's crucial to avoid baseless accusations, one can't help but observe that if there were a deliberate attempt to destabilize the Libertarian Party, the current scenario wouldn't look much different.

J.H.: You have also started something called Project Liberal and changed your political views to “Liberal” in your Twitter bio. Why do you think reclaiming the word liberal is important for the liberty movement? What do you hope to accomplish with Project Liberal? 

J.R.E.: We're living in a time where polarization and hostility seem to be the norm in politics. Many people are looking for a way out of this tense climate, hoping to find a return to more civil and reasoned discussions. This is where the concept of liberalism can serve as a guiding light.

Despite its original meaning, the term "liberal" today can sometimes feel disconnected from its foundational values, replaced instead by more statist ideologies. But if we revisit its roots, we'll find principles that have always advocated for individual rights, democracy, free movement, and enterprise. These ideals have stood the test of time, and for centuries, they've been at the heart of some of the world's most thriving societies.

Project Liberal aims to remind us of these core values and to bring liberalism back to the forefront of mainstream political discourse. Our goal is not to create more division but to build bridges between different political factions that currently feel unrepresented or sidelined. We hope to foster a political movement that not only champions these values but also serves to unite a substantial portion of the public around them.

In essence, we want a political movement that stands up for liberal values, and we want to ensure that the ideals of liberalism are not just remembered but continue to be relevant in today's political landscape.

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J.H.: In the Wealth of Nations, Adam Smith argued, “No society can surely be flourishing and happy, of which the far greater part of the members are poor and miserable.” I tend to think that liberalism or “classical liberalism” is a continuation of the Smithian project of figuring out the institutional arrangements and policies that uplift the most people from hardship, idleness, ignorance, and predation. Do you agree with this? Do you think this is (or should be) a mission of the Libertarian Party and libertarian thought leaders? If it isn’t a focus, why do you think that is? 

J.R.E.: Absolutely, I wholeheartedly agree. The primary objective of liberalism must be to promote prosperity for all. This principle isn't just essential for practical reasons, but it's also pivotal in our communications. By showing people how certain policies may hinder their path to wealth, health, and overall prosperity, we can persuade them to embrace liberal ideals and join our movement.

The Libertarian Party and libertarian thought leaders should indeed focus on this mission. Yet, it seems that currently, they are often distracted by divisive culture wars and grievance politics, losing sight of this fundamental goal.

As to why this is the case, it's difficult for me to provide a clear answer. Politics can often become entangled in immediate conflicts and controversies, drawing focus away from the overarching vision. However, it's crucial for us to remember the long-term objectives, namely, creating an environment that enables the most people to lead fulfilling, prosperous lives.

J.H.: What do you think is the greatest threat to liberty? 

J.R.E.: In my view, the greatest threat to liberty is the growing trend of illiberalism, a phenomenon we're witnessing on both the political left and right. This shift away from core liberal values in our societal discourse is deeply concerning.

Liberal values have been the backbone of our nation, driving the prosperity and freedom that make the USA great. Abandoning these principles could lead us down a dangerous path. Without these guiding values, we risk descending into despotism, economic instability, and even violence.

And let's not be naive. Such drastic changes can happen faster than we might expect. This is why we need more people championing liberal values that have brought us this far, and I’m trying to do my part in this fight.

J.H.: What is the biggest misconception people have about libertarians? 

J.R.E.: One common misconception about libertarians is the notion that we're indifferent, self-centered, or lacking in empathy. Given some of the more extreme voices in the movement or those leading the party, it's not hard to see how this misunderstanding could arise.

However, my experience in the movement tells a different story. Libertarians are often deeply invested in the well-being of others. We advocate for a society where individuals can prosper without fear of force or coercion. We're passionate about ensuring everyone has the freedom to chart their own course, not only out of self-interest but from a genuine desire to see all people thrive.

J.H.: You were previously the Executive Director of For All Tennessee. Can you talk about the mission of that organization, its policy objectives, and your involvement? 

J.R.E.: For All Tennessee was established with the aim of uniting people around policies that strengthen individual freedom and limit government intervention. In essence, we were striving to find common ground between different political factions, to discover policies both left and right could agree on. We would then take these initiatives to the Tennessee statehouse, fighting for their implementation directly on the legislative floor.

Each year, our members would vote on the policy agenda, determining our focus for the upcoming legislative session. Then our lobbyists would dedicate their efforts during that session to pushing these chosen policies forward.

As for my personal involvement, I served as the executive director, contributing significantly to the organization's direction and strategy. However, I eventually had to step away from both my board duties and my role as director due to some differences in vision with the president. Despite this, I continue to support the cause, and I sincerely hope for its success in the future.

J.H.: As a fellow Nashvillian, how do you think we could implement some libertarian or “classically liberal” policy ideas to make Nashville (and other cities) a more prosperous and welcoming place? 

J.R.E.: To make Nashville, and other cities, a more prosperous and welcoming place, there are a handful of "classically liberal" policy ideas that come to mind:

The city should ease its grip on development. Easing up on zoning restrictions or even going so far as to abolish single-family zoning would pave the way for the city to grow without facing ridiculous increases in the cost of housing.

We should focus on decriminalizing drugs and shifting our attention toward creating infrastructure that provides help to those struggling with addiction. An overall approach that places emphasis on health and recovery rather than punishment would go a long way to fight addiction within the city limits.

Overall, it’s crucial that we end unnecessarily strict licensing requirements and embrace a general deregulation approach. By doing this, we encourage growth and development, positioning Nashville to stand out among other southern cities.

J.H.: Where can people follow you on social media or find out more about your work? 

J.R.E.: An easy place to find a link to all of my social profiles is www.joshuaeakle.com.

A big thank you to Joshua for taking the time to answer my questions. Be sure to check out Project Liberal and follow along on Twitter at @ProjectLiberal.

This work is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International.

Getting public records from the Nashville Mayor’s office is like pulling teeth from a fidgety toddler.

In May, I published a thorough analysis of The Tennessean’s coverage of the Titans stadium deal. In that piece, I argue that, overall, Tennessee’s paper of record failed to properly scrutinize the deal, ask critical questions of public officials, or seek out independent experts to evaluate claims from the Titans and the Mayor’s Office about the benefits of the deal.

Since then, I have attempted to obtain emails from Nashville Metro in an effort to better understand the information flow between the Mayor’s office and The Tennessean that might have contributed to the favorable framing of the coverage.

But it appears that the Mayor’s office is either incompetent at fulfilling such requests or purposefully obstructing them.

My first request sought email communications between the Mayor’s office and The Tennessean beat writers who covered the stadium deal between October 1, 2022 (when the deal was announced) to April 27, 2023. At the end of May, I was informed by Mike Jameson, the Mayor’s Director of Legislative Affairs, that there were no records responsive to my request.

How could it be that no one from the Mayor’s office had any email communications with the main beat writers on the Titans stadium deal?

Jameson followed up that he asked the Mayor’s now former Chief Communications Officer TJ Ducklo to search and discovered one(!) email in which Ducklo was giving a statement on the Venue Solutions Group (VSG) report that was quoted in this story. Jameson then throws a Metro IT staff member under the bus for missing that email:

“Why that email was not included within the search results obtained by the Metro IT Department is unclear to me. The Metro IT staff member who provided the search results is A.J. Fakes who can be contacted at AJ.Fakes@nashville.gov.”

I then submitted a new request, this time widening the date range to between January 1, 2022 and April 27, 2023 and seeking communications to and from everyone on The Tennessean staff, including editors and leadership.

I received a lot more records in response to this request, but I can’t help wondering if many are still missing. Several questions from reporters go completely unanswered, although it’s possible that Ducklo called them or texted them a response.

Additionally, this response included records that should have been included in response to my first request. This time, for instance, I received emails and attachments from Ducklo to beat reporter Cassandra Stephenson from October 17, 2022, October 24, 2022, November 1, 2022, and November 21, 2022 — all within the date range of my original request. Why were these omitted the first time?

This is not the only time I have had issues obtaining records from the Mayor’s office. I once received a set of email communications that were non-germane and fell outside of the date range of my request. The Mayor’s office appears to be wholly unprepared to deal with substantive requests — especially when they are not able to claim “deliberative process privilege” and completely block records the public should be able to see.

I believe I am still missing several important email communications from this time period, but I will lay out some of what I received.

Here are links to the full records. Fair warning: The Mayor’s office included several long, irrelevant email chains from citizens angry over construction noise that take up a lot of the emails included below:

Records File 1

Records File 2

TJ Ducklo Complains about The Tennessean’s Coverage

On November 29, 2022, TJ Ducklo emailed Tennessean City Editor Elizabeth (Liz) Schubauer and reporter Cassandra Stephenson to complain about “[i]mportant missing context from today’s story.” Here was the story.

One of Ducklo’s complaints was that the $362 million to return the stadium to “good condition” didn’t account for what the team was entitled to under its lease obligations. Of course, neither VSG nor Ducklo know what is actually required under the team’s lease obligations, because that was never studied.

Schubauer then responds:

TJ responds that he is “worried the tone of some of the coverage ” is “beginning to adopt the framing of the vocal echo-chamber of folks who are reflexively negative, often in bad faith.” Ducklo also accepts Schubauer’s request to grab coffee.

They agree to meet at 8:30am at The Graduate on Friday morning (December 2, 2022).

The Finance Department’s Revenue and Stadium Improvement Estimates

Stephenson’s November 28 article at issue in the email exchange above comes from a Metro finance department report that Ducklo sent her on November 21, 2022 (Exhibit A.pdf). The report contained slides with estimates on projected annual revenue from the new stadium as well as estimated capacity to fund basic stadium improvements and renovations.

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No Comment on Beacon Center Poll

On September 1, 2022, former Tennessean reporter Adam Friedman published an article about a Beacon Center poll, which found that 61% of voters opposed state funding for the Titans stadium. The day before, Friedman emailed Ducklo for comment but was ignored.

Stephenson Questions Ducklo on Scope of VSG Report

On November 3, 2022, Stephenson asks Ducklo an important question: why didn’t VSG conduct a part of the study scope outlined in their original agreement (Task 2b)?

VSG’s Task 2b was supposed to look at other “improvement projects” at “comparable facilities” besides Hard Rock Stadium in Miami - including the Carolina Panthers, Jacksonville Jaguars, and Cleveland Browns stadiums.

It appears Stephenson got an answer from VSG Managing Partner Russ Simons, who told her that comparing Nissan to Hard Rock Stadium was “sufficient” and avoided incurring additional costs to review other stadiums.

That’s about all of the interesting tidbits I pulled from these records, but if anyone spots anything else, please feel free to comment below.

In addressing Nashville’s affordable housing crisis, time is of the essence. A 2021 report from the Mayor’s Affordable Housing Taskforce projects that Nashville needs to add nearly 54,000 units by 2030 to keep up with demand, or 4,800 units per year. An earlier report found that Nashville would face a shortage of almost 31,000 affordable housing units by 2025. 

How do we solve the affordable housing crisis? Well, economists across the political spectrum agree that the best way is to remove barriers to entry by getting rid of exclusionary zoning schemes that favor single-family homes over other housing types. 

We need more housing, density, and freedom for developers to build. We need to allow property owners to rent out rooms or accessory dwelling units (ADUs) to non-family members. We need to eliminate parking minimums and reduce lot size/setback requirements. And we need the transit and infrastructure to support a less car-reliant and growing city. We need all of these things yesterday if we are ever going to make it affordable for middle- and low-income people to live and stay in Nashville. 

Unfortunately, developers who apply for zoning changes to build higher-density projects are often stalled by Not-In-My-Backyard (NIMBY) groups. NIMBYs oppose high-density housing like apartments or condos from being built in places historically zoned for single-family homes. 

But could other things besides NIMBYism be delaying Nashville’s housing growth? 

In December 2021, a developer sought rezoning to build a 1,150-unit, mixed-use project on the site of a 212-unit apartment complex in East Nashville called Riverchase. The developer, CREA, entered into a community benefits agreement with the Urban League of Middle Tennessee that would set aside 225 units below market rates. CREA also sought a nonprofit developer to build another 120 affordable units.  

But the agreement didn’t go far enough to address the city’s affordable housing needs, some advocates argued. Some groups opposed the rezoning because former Riverchase residents were likely to be displaced by the new development, which they believe should not be the model for our development process. 

These community concerns led to multiple delays in Metro Council approving the rezoning request for the project. In light of the delays, the developer submitted a provisional proposal that included plans for 212 to 245 market-rate townhomes with no affordable units in case the city denied its rezoning request. 

After nearly a year of deliberating over this project, Metro Council approved the rezoning request. CREA told The Tennessean that 

it has paid more than $550,000 to support residents' relocation, including $212,500 for housing navigation staff, and wrote off approximately $360,000 in delinquent rent. As of October, 12 of the 176 families who lived on the property had not yet found stable housing. CREA has said it will continue to work with those people and is committed to ensuring each resident receives the $2,200 in relocation assistance as required under the community benefits agreement.

The deal still did not satisfy the most die-hard affordable housing advocates, although it’s hard to argue that the change from 212 units to 1,150 units was not a welcome outcome in adding to the city’s housing supply. Still, was a year-long process in getting this deal approved, especially one that already included affordable units, worth a fight that delayed more housing? 

The Fight for Inclusionary Zoning in Nashville 

Inclusionary zoning, or policies that require or incentivize developers to include a minimum number of units below market rates in exchange for things like increased density or height, has been a contentious subject in Nashville. 

In 2016, Nashville passed an ordinance where 

developers proposing five or more units could request a zoning variance for expanded development rights, such as density or greater height. To gain approval, they would have to include a percentage of new affordable or workforce units.

In 2017, the Beacon Center of Tennessee sued the city, arguing that Nashville’s ordinance violates a state law prohibiting municipalities from requiring affordable housing in new residential development projects. A letter from the Center notes how the ordinance’s inclusion of the word “shall” in several sections implied that the law created a mandatory requirement. The Center also argued that the law violated the Takings Clause of the U.S. Constitution: 

“The Metropolitan Government may not bargain with land-use permits in order to bypass their takings obligations. To protect property owners from being forced to surrender their Fifth Amendment right in order to obtain a building permit, a variance, or other government benefit related to their property, the Supreme Court applies a heightened level of scrutiny to ordinances like the one at issue here. Under this scrutiny, a ‘government may not condition the approval of a land-use permit on the owner’s relinquishment of a portion of his property unless there is a ‘nexus’ and ‘rough proportionality’ between the government’s demand and the effects of the proposed land use.’ Koontz, 133 S. Ct at 2591.” 

Supporters of the ordinance contended that the Center “mischaracterized the policy as a ‘mandate’” and argued that it was voluntary because “the requirement is only triggered when a developer chooses to apply for new development rights.” 

In 2018, the Tennessee legislature pre-empted the Nashville ordinance with a law prohibiting municipalities from requiring inclusionary or below-market housing in exchange for zoning changes. Advocates argued that the state’s law was obstructionist and prevented cities from using “every tool in the toolbox” to try to create affordable housing. 

As the Riverchase example shows, Nashville developers can still offer affordable units to appease community concerns, but the city cannot require them. The Riverchase case study and this legal dispute with the state raise several important questions. 

• Would Nashville benefit from a more assertive IZ policy? 

• Do inclusionary zoning (IZ) requirements work? Is voluntary IZ better than mandatory IZ? 

• Should we impose additional costs on developers to help fix an affordable housing crisis created by our city’s exclusionary zoning and preferential bias for single-family homes?  

• If community pressures to include affordable units cause delays in building new housing, are we still essentially exacerbating the effects of exclusionary zoning policies? 

Does Inclusionary Zoning Create Affordable Housing? The Research Is Mixed 

According to a 2019 report from The Urban Institute, only around 150,000 to 173,000 affordable housing units were built in the several decades since municipalities in the U.S. began adopting IZ policies, with most of those units located in Virginia, Massachusetts, Maryland, New Jersey, and California. The report also notes how other jurisdictions that have adopted IZ laws produce few or no affordable units. 

According to The Tennessean, Nashville’s IZ ordinance produced no affordable units. Council member Bob Mendes called Nashville’s ordinance “weak” and “the most anemic inclusionary zoning law in America” because it was not mandatory. “But did I think it was going to be zero units in 16 months?” Mendes told the paper. “No. It is disappointing that we didn’t manage to make a dent with this.”

So would Nashville have benefited from a stronger IZ ordinance—one that was an actual mandatory requirement, legal disputes over the language of the original ordinance aside? 

First, let’s state the obvious. When any parcel of land is upzoned for higher density, developers can build more market-rate housing than would otherwise be allowed, even if the city requires them to provide a portion of units below market rates. So that in and of itself could be considered a net positive. 

And if we can incentivize more density by using tools like IZ, the tradeoffs may be worth it. Law Professor Roderick Hills argues, for instance, that prohibiting inclusionary zoning “limits the bribes with which state and local governments can induce the neighbors to agree to loosen up zoning restrictions [ . . . ]  Inclusionary requirements give those local politicians a bit of political cover by making the link between market-rate and affordable housing more apparent.” He also contends that “[i]f cities must choose between unconditionally permitting new market-rate housing or unconditionally excluding it, then they are likely to choose the latter.” 

But if including affordable housing in development projects would help developers win zoning approval and curry favor with neighbors, why wouldn’t they do so voluntarily, as in the Riverchase example?

Second, most opponents aren’t just fighting IZ policies because they hate the poor or don’t want affordable housing. Most IZ advocates and opponents want the same thing: to make housing more affordable for low- and middle-income residents. 

Opponents believe that IZ requirements will make housing more expensive. In a 1981 article, legal scholar Robert Ellickson argues that economic theory would lead us to the conclusion that inclusionary zoning (IZ) policies act as “a tax on the construction of new housing” that will “increase general housing prices” and limit “the housing opportunities of moderate-income families.” This IZ tax will not be borne by developers but by renters and homebuyers in the form of higher costs and fewer available homes. 

While Ellickson’s analysis is consistent with economic theory, the empirical evidence is slightly murkier on the effects of IZ policies. According to the Urban Institute report, the research on the effectiveness of IZ requirements has mixed findings. Let’s look at a few significant studies. 

Research from Ann Hollingshead suggests that stronger, mandatory IZ policies can lead to lower rental rates for market-rate and low-cost units than weaker policies. Hollingshead looked at the difference between compulsory and fee-based IZ policies in California and found that optional policies led to “a 2 percent increase in median rental prices and a 3 percent increase in the price of low-cost units.” According to these findings, it’s possible that if Nashville adopted more robust IZ policies, it could create downward pressure on rental prices.  

But what about the broader societal costs? How do IZ policies affect other housing costs and the housing supply? 

A 2010 paper in the Journal of Urban Affairs by Vinit Mukhija, Lara Regus, Sara Solvin, and Ashok Das “found no statistically significant evidence of inclusionary zoning's adverse effect on housing supply in cities with inclusionary mandates” and “conclude that critics underestimate the affordable housing productivity of inclusionary zoning, and overestimate its adverse effects on housing supply.” They also found that mandatory IZ policies were more effective. 

However, a 2009 study in the journal Cityscape by Antonio M. Bento, Scott Lowe, Gerrit Knapp, and Arnab Chakraborty found, in California cities that adopted IZ policies between 1988 and 2005, the price of single-family homes increased compared to those that did not have IZ policies. The authors found no statistically significant difference in the supply of multi-family housing between cities that adopted IZ policies and those that didn’t. 

Other studies have found that IZ generated similar effects on housing prices but that those effects were dependent upon the state of the housing market. A 2010 paper in Urban Studies by Jenny Schuetz, Rachel Meltzer, and Vicki Been looked at the effects of IZ policies in Boston and San Fransisco. The authors found that in Boston, IZ “contributed to increased housing prices and lower rates of production during periods of regional house price appreciation.” In San Fransisco, IZ policies “increase housing prices in times of regional price appreciation, but [ . . . ] decrease prices during cooler regional markets.” They found no statistically significant effect on the housing supply in San Fransisco. 

Some studies have found more substantial adverse effects on both home prices and supply. A 2012 paper in the Journal of Public Finance and Public Choice by Tom Means and Edward Stringham concluded that California cities with IZ policies had “9 percent higher prices and 8 percent fewer homes overall” between 1980 and 1990 and had “20 percent higher prices and 7 percent fewer homes overall” between 1990 and 2000. 

Mercatus Center Senior Research Fellow Emily Hamilton found that mandatory IZ policies in the Baltimore-Washington region increased housing prices by around 1 percent each year. However, she did not find evidence that new housing construction decreased. 

The takeaway from the literature is that evidence supports both sides of the argument, although more studies than not find some broader societal costs associated with IZ policies. 

If IZ policies lower rents and don’t affect the housing supply, that’s great, but policymakers should consider the other potential costs that these researchers have found. There might also be other unintended consequences that we cannot account for. For instance, do IZ policies make developers more likely to build luxury housing to offset the costs of providing affordable units? 

Case Studies Worth Considering 

In a 2021 article on Strong Towns, a pro-housing advocacy group, Daniel Herriges notes how something peculiar was happening in Portland, OR. Building permits examined over the prior three years showed that a lot of 19-unit apartment buildings were being built in the city. That’s because in 2016, the city passed an IZ ordinance requiring affordable housing in developments with 20 or more units. An article in City Observatory called Portland’s IZ policy a “slow-motion train wreck.” Another commentator observed that “many sites of potential mixed-income buildings are instead remaining car washes” in the city. Herriges also notes how similarly strange unit counts were occuring in Minneapolis, Newark, NJ, and London, UK due to the same sort of mandates.

When the New York City neighborhood of West Chelsea upzoned a special district, an IZ agreement required that the developers offer 27 percent of the over 5,500 new apartments at below-market rates. But this meant that fewer homes were built, as an article in The Villager pointed out: “​​Building density in the entire district has been reduced from the previous plan in order to provide more incentives for developers to apply for higher density under the inclusionary housing program.” 

Further, the existence of IZ can lead affordable housing advocates to oppose city- or state-wide pro-density reforms because they believe it takes away a bargaining chip to entice developers to include affordable units. 

In 2011, when California attempted to pass legislation that would have reduced parking minimum requirements for new developments, affordable housing groups opposed the law because it would “undermine what they consider important incentives [ . . . ] that gives both nonprofit and for-profit developers density bonuses for including or increasing affordable housing in a given development.” 

In other words, before this law, cities would offer reduced parking minimum requirements in exchange for developers providing more affordable housing in new developments. But reducing parking minimum requirements across the state would have done more to make housing affordable.

These tradeoffs and unintended consequences shouldn’t be ignored. 

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Conclusion: Should Nashville Adopt IZ or End EZ? 

It’s hard for us to think about the long term. We want affordable housing units now, not later. But this impulse can also put the cart before the horse and lead to unintended consequences for the city. 

We likely get stuck in this short-term, small-scale thinking because Nashville takes a piecemeal approach to zoning reform. Rather than proposing major changes to our land use system, city leaders consider rezoning for one parcel of land at a time. Some cities have taken a more transparent and holistic approach to planning and development. In 2015, New Rochelle, NY created a system that laid out standardized community benefits for all new developments in the city rather than trying to reinvent the wheel each time a developer made a rezoning request. By 2021, the city had approved 32 new projects and built 7,000 homes with 1,000 at below-market rents. 

If Nashville relaxed its zoning laws and moved away from an exclusionary system that favors single-family housing, we would see a boom in missing-middle housing types. This liberalization would open the door for developers to build various housing options that would be more affordable for all income levels. 

The mixed findings from the empirical literature suggest that inclusionary zoning is merely a band-aid for creating housing affordability at the individual development level but may only have minor positive effects or even negative consequences. Removing exclusionary zoning would go much further to create affordable housing writ large in Nashville, especially considering it is the main reason we have an affordability crisis in the first place. As researcher Emily Hamilton explained to Greater Greater Washington: 

In Hamilton’s view, a better way to build affordable housing would be to subsidize it directly, and to remove the underlying zoning restrictions that make IZ valuable in the first place.

“As I see it, inclusionary zoning can never be a remedy for exclusionary zoning, because what gives density bonuses their value is underlying exclusionary zoning that prevents home builders from building as many houses as they would like to,” Hamilton said.

If we liberalize zoning in Nashville, we could significantly increase the housing supply and put downward pressure on prices. Even if we could build more market-rate housing, even so-called “luxury” apartments, can open up affordable housing for lower-income individuals. When “luxury” housing is built, it’s usually filled by a higher-income person who leaves an older apartment in the city. That person’s older apartment is now available to someone at middle income, whose even older/cheaper apartment is now available to someone at a lower-income level.

That may be a simplistic explanation, but it bears out in empirical studies. Finnish researchers found that, over two years, for every 100 market-rate housing units built, "29 units get created through vacancy in bottom-quintile income zip codes and 60 units in bottom-half income zip codes.” Timothy B. Lee summarized research from University of Notre Dame economist Evan Mast, which found similar results in the U.S.: 

Mast found that 67 percent of people who moved into a new luxury apartment building came from another apartment in the same metropolitan area. Of these, only 20 percent of the people who moved into luxury apartment buildings came directly from neighborhoods with below-average incomes. But that set off a moving chain that was more likely to reach lower-income neighborhoods. By the sixth link in the chain, 40 percent of movers were coming from neighborhoods with below-average incomes.

Let’s not forget that exclusionary zoning is a contributing cause of poverty and inequality in the first place. Not only was zoning a tool to maintain racial segregation in many U.S. cities but economists Chang-Tai Hsieh and Enrico Moretti also estimated that stringent restrictions on housing supply reduced aggregate U.S. economic growth by 36 percent from 1964 to 2009. This stymied growth harms lower-income people the most. In his book Arbitrary Lines, researcher Nolan Gray summarizes a study, which shows how exclusionary zoning reduces output and wages: 

A more recent paper by economists Giles Duranton and Diego Puga [explore] what might happen if some of our largest and wealthiest cities liberalized zoning[. T]heir model suggests that output per person in a place like Boston would rise by just over 13 percent. The gains would be most pronounced for new arrivals, who would see real incomes rise by just over a quarter. In the aggregate, if our three most productive cities were to tame zoning, U.S. real per capita income would rise by just over 8 percent.

Indeed, people will still inevitably fall through the cracks, even with liberal zoning reforms. But we can find better ways to incentivize affordable housing without imposing a tax on developers or maintaining the status quo. Inclusionary zoning only works as an incentive due to the existence of exclusionary zoning. Perhaps it can be a stopgap to getting some affordability now, but it shouldn’t be the end goal. 

This work is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International.

On June 2, 2023, Judge Thomas Parker of the U.S. District Court for the Western District of Tennessee, who Donald Trump appointed, ruled that the state’s anti-drag show law — the Adult Entertainment Act (AEA) — was unconstitutional. The law, signed by Governor Bill Lee on March 2, 2023, criminalizes the performance of “adult cabaret entertainment,” including “male or female impersonators,” in “any location where the adult cabaret entertainment could be viewed by a person who is not an adult.”

Judge Parker’s opinion included a scathing rebuke of the law and a formidable defense of the First Amendment. Here are a few highlights: 

After reviewing the facts of the case and the transcript from legislative debates about the bill, Judge Parker finds that “the AEA was passed for an impermissible purpose.” In perhaps one of the most scathing parts of his opinion, Judge Parker points out that legislators did not actually design the law to “protect minors” from the “secondary effects” of drag shows, such as an “increase in sexual exploitation” of children, as the government argued. Instead, the Court concluded that legislators’ actual “concerns involved the suppression of unpopular views of those who wish to impersonate a gender that is different from the one with which they were born.”

Judge Parker rightly concludes that the law requires strict scrutiny review, the highest standard of review that courts use to evaluate a law’s constitutionality since the law is “a content- and viewpoint-based restriction on speech.” To pass a strict scrutiny test, according to the Middle Tennessee State University First Amendment Encyclopedia, “the government must show that there is a compelling, or very strong, interest in the law, and that the law is either very narrowly tailored or is the least speech restrictive means available to the government.”

Judge Parker agrees that “Tennessee has a compelling state interest in protecting the physical and psychological well-being of minors” but ultimately finds that the law does not pass strict scrutiny review because the state failed to prove “that the AEA is both narrowly tailored and the least restrictive means to advance Tennessee’s interest.” The law, he argues, was “alarmingly overbroad.” 

In discussing how the threat of prosecution alone gives Plaintiffs standing in this case, Judge Parker notes that the vagueness of the law’s prohibition on acts that would be harmful to minors

lowers the floor for criminal behavior, equipping law enforcement officers with even more discretion. The chance that an officer could abuse that wide discretion is troubling given an art form like drag that some would say purposefully challenges the limits of society’s accepted norms. And the AEA covers a wide geographical reach: “in a location where adult cabaret entertainment could be viewed by a person who is not an adult [ . . . ] The Court emphasizes that the fear of prosecution from law enforcement officers is not merely speculative but certainly impending.

Judge Parker’s opinion also does an excellent job of explaining why the argument that drag shows are “obscene” for minors fails to pass constitutional muster: 

There is no question that obscenity is not protected by the First Amendment. But there is a difference between material that is “obscene” in the vernacular, and material that is “obscene” under the law. Miller v. California provides the standard for determining “obscenity” under the law. 413 U.S. 15, 21 (1973) (setting out a three-prong standard). Legal obscenity is an exceptionally high standard as one of its prongs requires that the speech “not have serious literary, artistic, political, or scientific value.” Moreover, speech that is not obscene—which may even be harmful to minors—is a different category from obscenity. Simply put, no majority of the Supreme Court has held that sexually explicit—but not obscene—speech receives less protection than political, artistic, or scientific speech. See Ashcroft v. A.C.L.U.., 535 U.S. 234, 245 (2002) (“It is also well established that speech may not be prohibited because it concerns subjects affecting our sensibilities.”); Reno v. A.C.L.U., 521 U.S. 844, 874 (1997) (reaffirming that the First Amendment protects sexual expression which is indecent but not obscene).

The state argued that the law was constitutionally sound because it pulls the language “male or female impersonators” from a 1987 law that regulated adult-oriented businesses in Shelby County, the “Adult-Oriented Establishment Registration Act” (AERA). But Judge Parker says that this argument fails on several fronts :

First, while including “male or female impersonators,” in a list with “topless dancers, go-go dancers, exotic dancers, strippers . . . or similar entertainers” may have escaped many readers’ scrutiny in 1987, it may not do so with ease in 2023. In 1987, homosexual intercourse was considered sodomy and was a crime in Tennessee, “Don’t Ask Don’t Tell” had not been enacted (much less repealed) for our military, and same-sex couples did not have a recognized fundamental right to marry. The phrase “similar entertainers” seems to refer to dancers traditionally associated with “adult-oriented businesses.” In 1987, associating “male or female impersonators” in that category may have called for little or no concern. This Court views categorizing “male or female impersonators” as “similar entertainers” in “adult-oriented businesses” with skepticism. Regardless of the Tennessee General Assembly’s intentions, the AEA’s text criminalizes performances that are “harmful to minors” by “male or female impersonators,” and the Court must grapple with that text. The Court finds that this phrase discriminates against the viewpoint of gender identity—particularly, those who wish to impersonate a gender that is different from the one with which they are born.

He continues:

Given an appropriate scope, [the government] may regulate adult-oriented performers who are harmful to minors. But it cannot, in the name of protecting children, use the AEA to target speakers for a reason that is unrelated to protecting children. The Court finds that the AEA’s text targets the viewpoint of gender identity—particularly those who wish to impersonate a gender that is different from the one with which they are born. This text makes the AEA a content-based, viewpoint-based regulation on speech.

Judge Parker also explains how the bill's legislative history undermines the state’s argument that it had narrowly tailored the law. Judge Parker finds that “the Tennessee General Assembly carelessly, if not intentionally, passed the AEA for the inappropriate purpose of chilling constitutionally-protected speech.” 

He then notes that the AEA failed to include a “textual scienter requirement.” In other words, the law does not indicate, for example, whether someone who violates the law has to know whether or not minors are present or knowingly perform content that could be harmful to minors. He writes:

Having drawn language from a case analyzing a statute with a textual scienter requirement but not including that provision in the AEA can be evidence that the legislature passed the law to chill constitutionally-protected speech by lowering the requisite mens rea [the intention or knowledge of wrongdoing] in the AEA to criminalize more conduct. [bracketed addition mine]

He also contends that since the AEA criminalizes drag shows on “public property, or [i]n a location where the adult cabaret entertainment could be viewed by a person who is not an adult,” this language essentially criminalizes drag shows “virtually anywhere.”

Judge Parker concludes that “[t]he Tennessee General Assembly enacted the AEA—a statute regulating speech with criminal sanctions—in a way that is purposefully overbroad such that it can chill speech that may be constitutionally-protected.”

A First Amendment Theory for Drag Shows?  

Judge Parker’s opening paragraph emphasizes several key theories underlying the importance and necessity of the First Amendment for a free society:  

Freedom of speech is not just about speech. It is also about the right to debate with fellow citizens on self-government, to discover the truth in the marketplace of ideas, to express one’s identity, and to realize self-fulfillment in a free society. That freedom is of first importance to many Americans such that the United States Supreme Court has relaxed procedural requirements for citizens to vindicate their right to freedom of speech, while making it harder for the government to regulate it. This case is about one such regulation.

His ruling makes a strong case that Tennessee lawmakers intended to chill speech and specifically target drag shows, a content- and viewpoint-based restriction that fails strict scrutiny review. But the way Judge Parker opens his opinion raises an interesting question: is there a First Amendment theory that would justify drag shows and similar forms of entertainment as a valuable aspect of our right to free expression? 

The Marketplace of Ideas: Are Traditional Theories Useful? 

As the ruling mentions, one of the most common First Amendment Theories regularly invoked by the Supreme Court is the marketplace of ideas. This theory, derived from John Stuart Mill, contends that individuals can only arrive at truth via an open debate where ideas can be contested, and truths can confront falsehoods. But does this theory have much application to this scenario? 

One could argue that the idea under debate is about whether individuals should live by particular gender norms, expressed by performers dressing in clothing traditionally associated with the opposite gender. The law certainly seems targeted at this idea and threatens to chill it from the marketplace.  

In a discussion on the value of this theory, scholar Steven Gey notes how Justice Oliver Wendell Holmes -- who supported the marketplace of ideas approach on the grounds that there is no objective or absolute truth -- embraced an “ agnostic” view of the truth, whereby the government should protect free speech simply because the truth cannot be fully known or absolute. Gey argues that because no one can know absolute truth, especially those seeking to wield power, we should be skeptical of anyone claiming to have attained it. Instead, we should prohibit government from banning viewpoints that run counter to dominant orthodoxy and protect free expression by default. 

An agnostic approach could mean that government should not target drag shows because it does not and cannot know whether the ideas they represent are valid or valuable. Therefore, to live up to the spirit of the First Amendment, government should refrain from banning such forms of expression. 

Still, the marketplace of ideas does not seem like a perfect fit here since there is no exchange of ideas per se. A drag show, after all, is a performance, generally on a stage in front of an audience. Instead, we are dealing with a government regulation over a form of artistic expression in this case.

Unfortunately, First Amendment theorists have devoted little time to analyzing the role and place of artistic expression within the broader context of free speech. In a 1987 article for the Wisconsin Law Review, Sheldon H. Nahmod points out that there has been a lack of discussion in First Amendment Theory about art and artistic expression, commenting on how theorists and the courts have relegated art to “second class status” in the hierarchy of protected speech. 

In a 1996 article titled “Art Speech” in the Vanderbilt Law Review, Marci A. Hamilton argues that First Amendment theorists have 

been inclined to include art under the category of protected speech, but they have not addressed, much less reconciled, the difficulty of explaining how a first amendment theory valuing speech for its rationally comprehensible ideas can comfortably accommodate the phenomenon of art [ . . . ] Art’s value in the First Amendment’s antityranny scheme is incompetently explained by a system that values speech only for its conceptual content.

She also argues that the Supreme Court has “yet to provide a theory to undergrid the assertion, or to make clear how much protection art ought to receive [ . . . ] the Court tends to protect art only to the extent that it is a vehicle for ideas, especially political ideas.”

Structural Rights Theory 

In his book, Free Speech and Its Relation to Self-Government, Alexander Milkejohn argues why free speech is necessary for a democratic, self-governing society. He uses the analogy of a town hall environment wherein individuals can speak and hear all essential ideas so they can make informed decisions in a democracy. 

While Milkejohn’s theory is not particularly useful for examing the place of drag shows in a democratic, self-governing society, Steven Gey puts forth a structural rights theory that might be more applicable. Gey contends that “the proper argument for free speech is not only that unfettered speech produces more social goods, including enlightened self-governance, but also that governmental suppression of speech produces more social harms of a sort that are inconsistent with democratic self-governance.” 

In other words, just because some speech may provide no social value due to its overwhelming inaccuracy, for instance, it would be more harmful if the government prohibited such speech. Gey also draws upon the Establishment Clause of the First Amendment, which forces the government to remain agnostic on religion, and calls for an “agnosticism mandate” whereby “the government is prohibited by the speech clauses of the First Amendment from using the law to enforce its ideology on those who disagree.” 

Under this theory, it doesn’t matter whether and to what extent drag shows create value for our democratic self-governance; it would be worse for government to prohibit them because it would represent an encroachment on rights and either promote or prohibit a particular ideology. 

Self-Fulfillment, Human Dignity, and Autonomy

In his 1970 book, The System of Free Expression, Thomas Emerson argues, “freedom of expression is essential as a means of assuring individual self-fulfillment. The proper end of man is the realization of his character and potentialities as a human being.” Building on this theory in his book Human Liberty and Freedom of Speech, C. Edwin Baker concludes that “[s]peech and other self-expressive conduct is protected not as a means to achieve a collective good but because of its value to the individual.” 

These theories for the value of free expression cut against the commonly cited marketplace of ideas justifications for free speech—that free speech allows for the attainment of truth—or the democratic self-governance theory—that allowing ideas to be heard and discussed facilitates self-government and helps citizens make informed decisions on policy proposals. These theories view speech as a means to an end while the self-fulfillment and human dignity theories view speech as an end in itself that benefits individuals. 

Rodney Smolla writes, “[f]ree speech is thus specially valuable for reasons that have nothing to do with the collective search for truth or the processes of self-government, or for any other conceptualization of the common good. It is a right definitely, robustly, and irreverently to speak one’s mind just because it is one’s mind.”

This rationale does not mean that one must only be engaged in intellectual pursuits to achieve self-fulfillment; it can and should also apply to artistic expression. In his book Freedom of Expression: A Critical Analysis, Martin Redish argues that speech is not only about the ability to obtain facts. He asserts that “[a]n individual’s ‘mental’ processes cannot be limited to the receipt and digestion of cold, hard theories and facts, for there is also an emotional element that is uniquely human and that can be ‘developed’ by such ‘nonrational’ forms of communication.” 

It is clear that participating in a drag show is a form of self-expression that provides individuals with self-fulfillment. It creates value for both the performers and the audience who derive entertainment from it. These shows allow both groups to be who they are, live unfettered, and express their true selves. Prohibiting or chilling such forms of entertainment denies the possibility of self-fulfillment and threatens human dignity. 

As Geoffrey R. Stone notes, “laws that substantially prevent the expression of a particular message undermine the self-fulfillment rationale, not because they distort public debate, but because they severely limit the opportunities for self-expression.” 

A First Amendment Theory for Artistic Expression? 

While art can indeed contain political content or overtones, it sometimes has nothing to do with political discussions or debates. It is often a form of expression in itself. Marci Hamilton contends that this fact is enough to make art worthy of its own place in First Amendment Theory. She contends that 

“[e]xplicitly regonizing the First Amendment’s protection of art’s nondiscursive elements would require the Court to break through the rigidity of the marketplace of ideas formulation. Such a move, however, is dictated by the First Amendment’s larger mission against government intrusion into private liberties. [ . . . ] Limiting first amendment protection to idea protection misses the fullness of the First Amendment’s mission against tyranny.” 

She continues: 

[R]republican democracy is best served by keeping government from meddling with art. Those who advocate governmental regulation and censorship of art for the greater good routinely fail to take into account the importance of the subversive, defamiliarizing value of art to the ongoing project of liberty. A culture rich in a variety of artworks presses back the ever-encroaching reach of governmental ideology. Thus, the Constitution requires that government steer clear of meddling in the art world unless it can prove a compelling interest and no alternative means of regulating the particular issue.

Finally, Hamilton contends that art should be protected “against governmental interference because its flourishing furthers the intangible and unquantifiable value of increasing the people's capacity to resist hegemony.” 

In a sense, Hamilton’s theory is a mix between the self-fulfillment and human dignity theories and the structural rights theory but applied to art. Perhaps it can be summed up as follows: a society that allows art to flourish keeps the government at bay through subversive speech, prevents it from enforcing a singular orthodoxy, and thwarts tyranny. 

Still, we can find use in her theory in its application to drag shows, which are certainly subversive, risqué, and go against dominant government ideology. Under this theory, drag shows are not only a giant middle finger to the government’s attempts to control society, but they are a pure form of expression that merits First Amendment protection.  

Conclusion: Constitutional Challenges to Come

As of March 2023, bills targeting drag performances have been introduced or passed in Alabama, Arizona, Arkansas, Colorado, Florida, Idaho, Iowa, Kansas, Kentucky, Minnesota, Missouri, Montana, Nebraska, North Carolina, North Dakota, Oklahoma, South Carolina, South Dakota, Texas, and West Virginia. There will likely be many challenges to these laws making their way through federal courts over the next few years, especially if courts continue to (rightly) apply strict scrutiny review to vague and overly-broad statutes and recognize efforts to chill this speech. 

While we will continue to see very persuasive legal arguments put forth based on precedent and free speech doctrine, this challenge is certainly unique since drag shows are forms of both pure expression and expressive conduct, which each have their own place in First Amendment law. Perhaps the push to ban drag shows might, ironically, have the unintended consequence of generating a whole new theory for how we should think about the First Amendment when it comes to artistic expression, thus strengthening constitutional protections for both drag shows and similar forms of entertainment.

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A new report from the Beacon Center of Tennessee sheds light on the restrictive zoning laws in Middle Tennessee, which severely restrict the availability of affordable housing for low and middle-income residents. The report reveals that only 10.9 percent of the land in Davidson County is zoned for 3+ units, while the surrounding counties have less than 5 percent of their land zoned for apartments or anything larger than a duplex.

The report also notes how housing types like affordable dwelling units (ADUs) or in-law suites are either outright banned or only reserved for family members, meaning they are unavailable to other renters. In Middle Tennessee, only 34 percent of ADUs can be rented to someone other than a family member.

The report also includes an interactive Tennessee Zoning Atlas map that visualizes how restrictive zoning is around the Middle Tennessee area. 

Although not the focus of this report, it’s also worth pointing out the role Not-In-My-Backyard (NIMBY) coalitions play in rallying behind the status quo to maintain prohibitive zoning schemes in our area. Many multi-family housing developments, especially in Nashville suburbs, are often met by loud and angry opposition from current residents, fearful of what higher density might bring to their neighborhood. 

They generally spread fear and misinformation over higher density developments, claiming they will harm “community character,” threaten public safety, increase traffic, or crowd schools. These concerns are generally unfounded and overlook the massive societal and economic benefits of higher density, not least of which include an increase in the housing supply in a given area. 

NIMBY groups have organized to try to stop rezoning that would allow for large developments in both Belle Meade and Bellevue. The city has approved the Belle Meade Plaza development, while the apartments in Bellevue await further action from the City Planning Commission and Metro Council. An HOA has also filed a lawsuit regarding access to an easement extending the greenway path.

Unless major zoning reform occurs, NIMBY opposition groups will continue to delay or prevent significant developments from increasing the housing supply in Nashville. As the Beacon Center report concludes, Nashville and Middle Tennessee need to reform arbitrary zoning rules and more easily allow the construction of more types of multi-family housing units on more land.  

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In the 1980s and early 1990s, a wave of moral panic and conspiracy theories emerged, alleging the existence of a widespread Satanic cult network involved in ritual abuse, child molestation, and other heinous crimes. Sensationalized media stories, both national and local, fueled irrational fears by positing that a growing contingent of America, especially young people, were being tricked into becoming devil worshippers due to hidden occultist symbolism in books, music, artwork, and even in games like Dungeons & Dragons. 

While the “Satanic panic” dwindled after the Justice Department thoroughly debunked claims about cults and ritual abuse, its effects still linger. For instance, today’s Qanon conspiracy theorists believe that the Democrats, Hollywood, and other “elites” are all part of a secret cabal of pedophiles. But overblown fears about malicious attempts to influence our children are growing among regular people and concerned parents, fueled by intellectually dishonest brokers of misinformation. 

Many people, egged on by right-wing public officials and commentators, are becoming increasingly concerned that public schools are “grooming” their children, “priming” them for sexual abuse by exposing them to discussions about sexuality, gender identity, and sexual orientation. They also believe that schools have become leftist indoctrination camps where children are made to feel guilty about their race and coerced into adopting ideas like critical race theory. 

Despite a lack of evidence that these things are happening, fear and paranoia have prompted red states like Tennessee to enact overly broad, vague, and speech-chilling legislation to “protect the children” from being exposed to “inappropriate” ideas in library books and classrooms. And while we certainly don’t want children, especially those in elementary school, exposed to pornographic images or graphic discussions of sexual acts, these laws are often poorly written, duplicative of existing laws banning obscenity, and create an environment that is counterproductive for a child’s education. 

Parents Capitalize on “Divisive Concepts” Law

Much of the media focus has been on laws passed in Florida, such as the Don’t Say Gay law and Stop WOKE Act. This emphasis is due to Florida’s Governor Ron Desantis running for president. However, Tennessee has also attempted to stifle classroom discussion of certain topics and remove unsavory books from school libraries. 

In May 2021, Tennessee passed a law that would withhold funding from public or charter schools that teach about white privilege or critical race theory (CRT). The law prohibits the instruction of all of the following topics, largely based on the Trump Administration’s executive order on “divisive concepts”: 

It’s undoubtedly true that all of these ideas are divisive and morally abhorrent. Teachers obviously shouldn’t advocate for the violent overthrow of the U.S. Government, for example. But it’s also worth noting that, as The Tennessean points out, advocates of the bill failed to cite any specific examples of schools teaching either CRT or any of these concepts. 

While no one advocates for these concepts to be taught in schools, one need not ponder long to think of beneficial lessons that might fall within the boundaries of a discussion related to at least one or more of these topics. Some of these concepts are so vague that they will no doubt create a chilling effect as teachers may be fearful even to address topics tangentially related to them. For instance, teachers may feel as though they can’t even discuss the idea or concept of racism without running afoul of the law. 

In On Liberty, John Stuart Mill argues that even if a false or wrong idea is suppressed, individuals will be deprived of “the clearer perception and livelier impression of truth produced by its collision with error.” Should educators, especially in higher grade levels, not be allowed to pose thought experiments to students where they might entertain wrong ideas to gain a better understanding of virtue or morality?

Meanwhile, some parents immediately pointed to number (6) from the list above, saying their kids were feeling “discomfort, guilt, anguish, or another form of psychological distress” because of certain lessons. After the law passed, a conservative parents group that originated in Florida called Moms for Liberty mobilized in Williamson County to challenge the curriculum and reading materials, which they argued violated the new law because it included “anti-American, anti-White and anti-Mexican teaching.” The group flagged content in multiple books, including: 

• Ruby Bridges Goes to School — a book about a 6-year-old who integrated into a New Orleans elementary school in 1960. The book contained a famous Norman Rockwell painting of Ruby surrounded by U.S. Marshals protecting her from an angry segregationist crowd. The Moms for Liberty group argued that “[t]here’s no need to emphasize” the painting. 

• Separate Is Never Equal — a picture book about integrating schools in southern California and the landmark legal case that led to that victory. Moms for Liberty argued that the book should not be taught because it contained derogatory quotes from White segregationists in court about Mexican-Americans. One mom argued that second graders are “just not ready” to learn about this side of history and will learn the wrong lessons. 

Moms for Liberty also targeted Martin Luther King, Jr. and the March on Washington as another “divisive” book. At a Williamson County School Board meeting, Moms for Liberty argued that a book showing how seahorses mate was too racy for kids. They also tried to get a Johnny Appleseed book removed because it was “sad and dark.” In an email to the Daily Beast, Moms for Liberty said, 

“There are 31 books that our parents have expressed concern about [ . . . ] Some books should be removed entirely. Some books are objectionable only because of how they are presented via the accompanying teacher's manual. And yes, some books would be better suited to a higher grade level due to their age inappropriate content.” 

These parent groups are not just using the law to target hateful or divisive lessons; they are using it to whitewash history, deny reality, and leave children in the dark. 

Moms for Liberty also believe their kids are under attack from the LGBTQ+ agenda. In September 2021, the group posted a photo and video of a homecoming parade float sponsored by Indy Pride at Independence High School in Williamson County. A Tweet claimed that the float featured “two girls kissing & groping” in front of kindergarteners. Another Tweet questioned whether Indy Pride members were “recruiting” young children by handing out flyers about National Biweek. 

These troubling events in Williamson County are a microcosm of what’s happening across the entire state and the country. In January 2022, a school board in McMinn County voted unanimously to ban Maus, a Pulitzer Prize-winning graphic novel about the Holocaust, from being taught in its classrooms because the book contains material that board members said was inappropriate for students.

The GOP-controlled Tennessee General Assembly has capitalized on the hysteria to codify more laws to “protect” kids from being exposed to “indoctrination” and “discomfort.” 

Moral Panic Causes Chaos in Libraries and Classrooms 

In 2022, the state legislature passed the Age-Appropriate Materials Act, which mandated that public schools catalog and create a policy for reviewing materials in both libraries and classrooms. Teachers were shocked to discover that they would be required to catalog all the books in their classroom, creating a burdensome process that would necessitate work during their personal time. Democratic legislators have tried to clarify the law to exempt teachers’ classrooms from the bill. 

Teachers in the state have also reported wholesale bans on books until they can be reviewed. As one teacher described the process: 

First, teachers must catalog the title and author of each and every book currently in their classroom library — of which some teachers have hundreds, if not thousands.

That catalog then gets passed along to the school librarian, who checks that list against a list of approved books. The librarian then lets the teacher know which of their books is not on the approved list.

The teacher is then required to go through their library all over again and remove those books. Meanwhile, a list of those removed books is sent along to “someone higher up,” says Rawls — “probably someone that’s never been in a classroom, that’s never taught children.”

Those “higher-ups” then review the list, and they determine if those books are “appropriate or not appropriate.” They then send that feedback back to the school — requiring the teacher to, once again, go through their library.

After that, teachers must post online the final list of books in their library for parents’ review, allowing them the opportunity to “chime in” about books in their classroom.

Until all of these steps are completed, children in Rawls’s classroom are not allowed to read any of her books — no matter how much they beg.

The chilling effect created by laws like this can also lead to preemptive removals of books before they are even challenged, such as in Missouri, where one school librarian began removing almost everything out of fear while others shut down their libraries completely. 

To make matters worse, the Tennessee legislature also created a politically-appointed committee that could review appeals from parents, school employees, or others who want to challenge the decisions of local officials on whether books should be removed due to appropriateness standards. According to PEN America, decisions from this committee could potentially ban certain books statewide. 

This year, Tennessee also passed a new law to prosecute book publishers, distributors, and sellers who provide “obscene matter” to K-12 schools. Those found guilty under this law could be fined up to $100,000 or face up to six years in prison.   

The farce of these pushes from groups like Moms for Liberty is that there’s simply no legal need for them in the first place. They are not only a solution in search of a problem, but all 50 states, including Tennessee, already prohibit distributing obscene materials to children. Furthermore, bill sponsor Rep. Susan Lynn, R - Mt. Juliet, declined to provide any example of a specific book that would cause distributors to be prosecuted. This law, therefore, will only serve to further empower groups like Moms for Liberty to call for banning books and other materials in Tennessee schools that should not be banned.

Are Public Colleges Next?  

In 2022, the Tennessee legislature also passed a bill targeting state colleges using the same “divisive concepts” language. However, it did not wholesale ban discussions or lectures on those topics since college students and instructors have more First Amendment protections. Instead, the law banned mandatory training and incentives to teach those topics. It also allows college students and employees to seek legal remedies if they feel compelled to accept “divisive concepts” and requires colleges to 

“conduct a biennial survey of the institution's students and employees to assess the campus climate with regard to diversity of thought and the respondents' comfort level in speaking freely on campus, regardless of political affiliation or ideology. The institution shall publish the results of the biennial survey on the institution's website.”

While not as far-reaching as the K-12 laws, the Foundation for Individual Rights and Expression (FIRE) found several issues with this bill, including: 

“The legislation prohibits the use of state funds to incentivize any of the listed “divisive concepts,” but by singling out those ideas, it seemingly allows state funds to be used to promote or incentivize the teaching of a host of other viewpoint-based concepts. This viewpoint-based denial of state funds for a specific purpose is contrary to longstanding protections for academic freedom. 

[ . . . ] 

“Our second concern comes from language in the bill that bans “divisive concepts” in mandatory university trainings, but defines “Training” to include “seminars, workshops, trainings, and orientations.” Legislatures have substantial latitude to regulate how a state institution speaks for itself in such programs as non-credit-earning trainings. However, since the law’s definition of “training” includes “seminars” — and this term is often used to describe small, intensive for-credit courses — the provision could be read to prohibit the teaching of “divisive concepts” in higher education classrooms.”

Conclusion: How Will This End? 

More legislation targeting curriculum and books will likely be introduced in future legislative sessions, but given the broad and vague language of the current slate of laws, there will no doubt be challenges in the courts. Fortunately, legal precedents could knock down many of these laws. 

On book bans, in Board of Education, Island Trees Union Free School District No. 26 v. Pico, the Supreme Court held that school boards could not remove books from library shelves solely based on disapproval of the ideas they express. The Court emphasized that allowing viewpoint-based restrictions on books “hardly teaches children to respect the diversity of ideas that is fundamental to the American system.”

In fairness, the court did recognize the need to curtail offensive and obscene materials from being available to students. But there are two significant problems with how Tennessee has gone about this process. First, many of the books being challenged could hardly be described as obscene, especially those that parents argue make their children feel “discomfort.” Feeling uncomfortable about a complex idea or a dark period of history is part and parcel of educational growth. Second, the state has adopted a radical, precautionary approach to reviewing materials, which has caused preemptive restrictions on books before they are challenged or reviewed. This has created unnecessary burdens on school districts and denied children access to acceptable materials. 

On curriculum bans, the legal case is more challenging. In 2006, the Court ruled in Garcetti v. Ceballos that public employees do not have First Amendment speech protections when carrying out their official duties. Therefore, in theory, if the state sets a particular curriculum, then a public school teacher would have to abide by those rules. But, as legal scholar Frank Lamonte argues, some federal courts have found that students have a First Amendment right to receive information. This argument was successful in a federal court decision overturning a prohibition on teaching ethnic studies in Arizona. 

Regardless, the current situation is dire for teachers in Tennessee and other red states nationwide. Meanwhile, conservative politicians and commentators are attempting to create more moral panic over critical race theory and the “LGBTQ+ agenda” with feigned outrage over corporate campaigns from companies like Bud Light and Target, which will only generate more fear and paranoia among parents about the safety of their children. 

But the actual cost of these laws will be felt by our children for decades in the lessons they will and will not learn. They will learn that certain ideas and concepts are not worthy of discussion and that they can avoid ideas that make them feel discomfort or guilt. They will also learn that they can call upon state power to banish viewpoints they don’t like.

Their development of critical thinking skills will be delayed as more laws deny younger children exposure to ideas that challenge their preconceived notions. They will not learn how different groups of people felt during trying times and what that means for our current societal issues. Hiding away topics or ideas that might create discomfort will ultimately prevent kids from becoming well-rounded citizens in our democracy. 

It’s okay to want to protect kids from being exposed to inappropriate things. But the threats to freedom of speech, the freedom to read, and the freedom to learn in our state go far beyond that objective. They will ultimately leave our kids intellectually stunted, uncurious about the world, ignorant of history, and prone to authoritarian impulses. 

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Justin Hayes is a communications professional and a resident of Nashville, TN.

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