The World and Everything in It — January 11, 2021

MARY REICHARD, HOST: Good morning!

The Supreme Court considers whether Facebook violates the federal robocall law. To do that, the justices revisit grammar school.

NICK EICHER, HOST: That’s ahead on Legal Docket.

Also the Monday Moneybeat: why the markets shrugged off the Washington riot at the Capitol building and much more with David Bahnsen.

Plus the WORLD History Book. 245 years ago the first publication of an American best seller.

REICHARD: It’s Monday, January 11th. This is The World and Everything in It from listener-supported WORLD Radio. I’m Mary Reichard.

EICHER: And I’m Nick Eicher. Good morning!

REICHARD: Time now for the news. Here’s Kent Covington.

KENT COVINGTON, NEWS ANCHOR: House drive to impeach Trump again gains momentum » Support for a drive to impeach President Trump for a second time is gaining steam in the House.  

In the wake of Wednesday’s deadly riot at the Capitol, Democratic Congresswoman Carolyn Maloney of New York told reporters…

MALONEY: The leaders of our country have to meet and go forward with the 25th Amendment to remove him from office. If they do not act, then this Congress will go back next week and we will move forward with the second impeachment.

Some media outlets have reported that members of President Trump’s Cabinet have discussed the possibility of invoking the 25th Amendment. 

But Trump’s former chief of staff Mick Mulvaney told Fox News he thinks they’re unlikely to act on those discussions.  

MULVANEY: I think the 25th Amendment is a very clumsy tool. We’ve never used it under these circumstances. We’ve typically used it when a president goes for a medical procedure. We don’t really know how to do it and it’s slow. 

But impeachment is also a slow process and GOP Congressman Jim Jordan says that’s one of the reasons why he hopes the House does not pursue impeachment again.

JORDAN: Impeachment is for a sitting president, and the president, if the Democrats were to pursue this, could not have a trial until after he has left office. So I think it’s got real constitutional problems, but most importantly, it’s not healthy for the nation. 

If the House impeaches Trump for a second time and if the Senate convicts him this time after he leaves office, it would bar Trump from ever running for president again. 

Reports: Pence to attend Biden inauguration in Trump’s place » President Trump says he will not attend President-Elect Joe Biden’s inauguration one week from Wednesday. 

Biden said he agrees it’s best for Trump not to show. But he added…

BIDEN: The vice president is welcome to come. We’d be honored to have him there and to move forward in the transition. 

And several media outlets reported Sunday that Pence will attend Biden’s inauguration. They cited sources close to the vice president. 

Former Presidents Barack Obama, George W. Bush, and Bill Clinton will also attend. 

It is a longstanding tradition for an outgoing president to attend the inauguration of his successor in a symbolic handoff of power. 

Tech giants boot social media app popular with Trump backers » Most mainstream social media platforms have banned President Trump, either temporarily or indefinitely. 

And now several major tech companies are putting the squeeze on a social media app popular with some Trump supporters.

Google and Apple have removed the Parler app from their app stores. And Amazon is kicking Parler off of its web hosting service. 

The tech giants said Parler wasn’t doing enough to block user posts that seek “to incite ongoing violence.” 

But GOP Senator Marco Rubio said he finds the move troubling. 

RUBIO: The left has decided that this is an opportunity to destroy the right. So if you ever voted for Donald Trump, if you ever supported anything that he did, you are just as guilty as the people who went into that Capitol. 

Parler CEO John Matze said his company is being scapegoated. He said “Standards not applied to Twitter, Facebook, or even Apple themselves, apply to Parler.” 

The app has an estimated 8 million users in the United States. Matze said the app could be down for a week—in his words—“as we rebuild from scratch.”

States race to distribute vaccines » The federal government is preparing an early launch of a program teaming up with major pharmacy chains to administer coronavirus vaccines. But some states are already working with private companies. 

Florida is partnering with chains including Publix grocery stores. Lt. Gov. Jeanette Nunez told Fox News…

NUNEZ: We started it as a pilot program in three counties in the central area of Florida. So right now we’ve got 22 Publix pharmacies that are providing vaccinations for COVID. You have to make an appointment. We hope to expand that partnership. 

More than 400,000 Floridians have received a vaccine shot. The state has only used roughly 30 percent of its vaccine supplies so far, but that’s about average right now. 

Less populated states have been able to move faster. West Virginia and North Dakota have used close to 70 percent of their supplies. 

Georgia has the slowest rollout in the nation. It has used just 17 percent. 

Calif. sees record death toll from COVID-19 » California has also struggled to administer vaccines. It is racing to speed up distribution after recording a record number of deaths. On Saturday, 695 Californians perished from COVID-19. 

Donna Rottschafer is a COVID unit nurse in Orange County. 

ROTTSCHAFER: I’ve been here 21 years, and I’ve seen more people pass away in the past week, in the past couple weeks, really, than almost combined in all of my career as a nurse. It’s been really hard, physically and emotionally. 

Hospitalizations are also at record levels. 

According to the state’s Department of Public Health, nearly 30,000 people have died in California from the illness.

I’m Kent Covington.

Straight ahead: Facebook and robocalls at the Supreme Court.

Plus, the beginning of the U.S. oil boom.

This is The World and Everything in It.

NICK EICHER, HOST: It’s Monday morning and welcome to The World and Everything in It. Today is the 11th of January, 2021. 

Good morning to you, I’m Nick Eicher.

MARY REICHARD, HOST: And I’m Mary Reichard. 

I think many people are left stunned by the riot in the Capitol last week, indeed by the riots of last summer. Simmering anger boiling over into chaos.

Despite it all, our institutions have held and maybe we take some comfort in hearing the work of our U.S. Supreme Court justices. They’re back to work today to hear oral arguments, by phone, as they have since May.  

For today’s Legal Docket, the two remaining arguments I’ve yet to cover from 2020.

First, the case of Facebook v Duguid. You might imagine this must be about fake news or censoring conservatives. But it isn’t. It’s about robocalls. You know, those automated telephone calls that deliver a recorded message, typically from a political party or telemarketer.

EICHER: You may remember that the justices decided a robocall dispute last term. Back in that case, the court struck down part of the federal law against robocalls—in particular that part that carved out an exception for collecting government-backed debt. 

Here in this case, a man named Noah Duguid hadn’t been hearing from debt collectors. Instead, he heard from Facebook. The social-media giant sent him repeated notifications that someone was trying to access his account. 

Which was weird to Duguid because he’s never had a Facebook account.

He requested that the notifications come to an end. But they didn’t. And so he sued under that robocall law enacted back in 1991, called the Telephone Consumer Protection Act.

REICHARD: That’s a bit of a mouthful, so I’ll ask you to remember the initialism TCPA. Telephone Consumer Protection Act, TCPA. 

It bans dialing systems that can “store or produce telephone numbers to be called, using a random or sequential number generator.”

And it’s got teeth, pretty sharp ones: penalties as high as $1,500 per unsolicited contact.

But Facebook says it’s not breaking that law, according to its interpretation of that language. Its lawyer, former Solicitor General Paul Clement, led with a lesson not from law school, but from grammar school:

CLEMENT: Under ordinary rules of grammar, a restrictive modifier that follows two disjunctive verbs modifies both, not just the second one. Three features of the statutory text here reinforce that conclusion. First, the punctuation.

Now I have to confess: when I heard “disjunctive” and “restrictive modifier” my mind immediately left the room.

But here’s what he’s saying. The law has a limiting phrase in it: and it’s this, “using a random or sequential number generator.” 

Clement argues that gets Facebook off the hook, because it doesn’t use random or sequential number generators.

What happened to Noah Duguid is his phone number likely got recycled from someone who did have a Facebook account. It’s a tiny fraction of people and not at all what this law aimed to stop.

That’s Facebook’s basic position. Here’s Duguid’s position as expressed by his attorney, Brian Garner.

GARNER: Congressional purpose is overwhelmingly clear. It’s privacy. Let me focus, though, on text. The issue here involves ordinary lexical meaning, grammar, and cognition. An example: To maintain or acquire lands to be developed using eminent domain. No linguistic rule should lead us to conclude that we must maintain lands using eminent domain.

Garner’s no slouch in judicial persuasion; he co-authored books about interpreting law with the late Justice Antonin Scalia. 

Two highly skilled advocates arguing opposite sides over a law that hasn’t kept up with technology.

Several justices seemed to want to throw up their hands. 

Justice Clarence Thomas:

THOMAS: So technology has changed and moved along very rapidly. Don’t you think it’s rather odd that we are applying a statute that’s almost anachronistic, if not vestigial and to modern technology like Facebook and instant messaging, et cetera? Don’t you think that at some point there’s at least a sense of futility?

Justice Sonia Sotomayor pointed a finger at Congress:

SOTOMAYOR: If what Congress wanted to do was stop a call that was automatic, and that’s what it accomplished, wouldn’t it be its job, not ours, to update the TCPA to bring it in line with the times?

And Justice Samuel Alito opined if only the court had power to declare a law obsolete, this one would be a fine candidate. 

But the court doesn’t have that power. So the justices spun various scenarios to test whether Facebook’s unwanted messages fall under what the TCPA says.

Justice Elena Kagan tried to parse the grammar with a different example. She posed a scenario to Facebook lawyer Clement:

KAGAN: So here is the sentence: It is illegal to stab or shoot another person using a firearm. And what I want to know is, would I be covered if I stabbed somebody with a knife?

CLEMENT: I think you would, Justice Kagan. You would obviously be covered if you stabbed somebody using a bayonet, I suppose, but there are certain combinations of words where the mind just sort of rebels at the combination of the two words.

Lawyer Garner, opposed to Facebook, argued that the Federal Communications Commission made clear what makes auto dialing automatic: no human intervention.

Facebook sent messages to stored numbers; no human placed that notification to Duguid. So, Facebook should pay up under the terms of the TCPA.

But that only seemed to muddy the waters. Justice Samuel Alito pointed out that every computer involves human intervention at some level,  even if just booting it up. Where’s the line?

Justice Amy Coney Barrett took it further:

BARRETT: What about using the auto-reply function on an iPhone? So I can set that up to say do not disturb me, I’m driving, or do not disturb me, I’m sleeping. And I can program the phone and it just comes with the phone, it’s not special software, to be sent to my favorites or to all my contacts. So is that the necessary human intervention? I’m not pressing a button each time.

The justices sounded frustrated. They worried about making everyone a criminal who has a smartphone. They struggled with what the most natural meaning of the language would be for an ordinary person. Consumer groups warn that a victory for Facebook will unleash a torrent of annoying messages without recourse.

The circuits are split on the matter.  Some say equipment that dials automatically from a stored list violates the law; others say only devices that use a number generator violate the law. 

One thing’s certain: the justices wish Congress would do its job and update this law to suit today’s technology.

OK, this final argument is about arbitration, a frequent flyer at the Supreme Court. Arbitration is an alternative way to resolve disputes without going to court. It’s faster and cheaper. But the details of arbitration still get fought out in court, as in this case that’s before the justices a second time.

Justice Sonia Sotomayor nailed down the problem:

SOTOMAYOR: Almost all agreements say any disputes related to this contract are subject to arbitration. And almost inevitably, a party will come in and say this dispute is not related to a contract.

Here, two companies that distribute dental equipment entered into a contract that included an arbitration clause. A dispute arose over who gets to decide what’s arbitrated and what should go to court.

In 2019, the Supreme Court held that in this case arbitrators, not courts, ought to decide whether an arbitration clause applies to a dispute. That, even if a court thinks the argument for arbitration is wholly groundless. 

The question this time around is more narrow: if a contract has an arbitrator decide things in general, with carve-outs for certain kinds of disputes apart from the rest, who decides whether the carved-out disputes are arbitrable?

Maybe Justice Stephen Breyer speaks for you right about now.

BREYER: All right. I had a hard time because of the words “arbitration,” “arbitrability,” it’s sort of like it’s hard to keep all this in my mind, okay?

I think the court will favor arbitration in this one. The justices have been friendly toward it, unless there’s “clear and unmistakable evidence” not to. 

However the court decides, this 8-year-old litigation shows that the more specific an arbitration agreement is, the better it works. 

And that’s this week’s Legal Docket.

MARY REICHARD, HOST: Coming up next on The World and Everything in It: The Monday Moneybeat.

NICK EICHER, HOST: Happy to be talking with financial analyst and advisor David Bahnsen. David, good morning to you.

DAVID BAHNSEN, GUEST: Good morning, Nick. Good to be with you.

EICHER: And you. 

Boy, what a tough thing to see last week: our Capitol under siege. Broken windows, rioters rushing into the two chambers, occupying those chambers, offices of lawmakers. Really unsettling. 

I know you feel the same way most Americans feel seeing that kind of thing. But it was a little surprising to notice that the markets kind of shrugged it off.

BAHNSEN: Well, I wrote about this quite a bit last week because a lot of people are surprised that the markets didn’t speak in a sense of oh no, this is a revolutionary event that is going to reverse the direction of economic growth or reverse the direction of corporate profitability. And I really don’t believe anyone should be surprised by that. 

This was a horrible event. This is one that has shaken a lot of people for very good reason. And there are all sorts of categories by which this event needs to be understood and remembered.

However, the impact of corporate profitability is just simply not one of those. 

When you look at the role that interest rates play and monetary policy plays and GDP growth and the vaccine and Q2 or Q3 pent-up demand. All of these things are exponentially more significant to where corporate profits will go, where economic growth will go, than the events that took place at the Capitol. 

So, I think it’s entirely logical that the markets didn’t respond negatively to the event. But, of course, that is not the same thing as saying that there isn’t a very significant cultural undertone, a social impact that is tremendously concerning in what happened. It’s just that the markets don’t have the ability or interest in pricing in something that is so immeasurable and ambiguous.

EICHER: We’ll get to jobs in a minute, because we got the final report on that from December and that puts 2020 in the books. 

But I want to talk to you about the tech industry, which seems to be moving quickly and aggressively to shut down speech on the right—now that government oversight is about to be fully vested in the other side. 

I bring this up to you, because you believe the market is the better vehicle for oversight.

BAHNSEN: Yeah, I think that the issues around Big Tech are complicated and I am really sympathetic to what a lot of conservatives feel is a concern right now in the biases that may be there and so forth. I do believe that it’s imperative that we seek market solutions and not government solutions because I don’t think people really want Elizabeth Warren in charge of Facebook anymore than they might be happy with Mark Zuckerberg. And so I think we have to be careful about jumping from the frying pan into the fire. 

I also think we have to be careful about using expressions like denying free speech because, of course, these are privately owned businesses. They’re allowed to set their own rules. But people understandably want a fair playing field. And the real — if I’m being totally fair, the concern is the amount of power that Big Tech has. It’s different than just saying you have to publish my book. No, they don’t have to publish your book in these kind of open forum type deals and the Section 230 controversy. I get it. But I think from my vantage point as a markets guy and an economist, I just want to point out that this is a great example as to why Christians in particular need to take more seriously the idea of shareholder rights, shareholder activism. Avoiding these things disempowers you, OK? I would rather see there be more Christian presence in the boardrooms of Big Technology. And if not in the boardrooms, at least in the shareholder meetings. Our ability to wage our own proxy fights is completely legal and enforceable and impactful. They respond. 

Market forces, though, will have to say to some of the companies that maybe get out of bounds, at the end of the day, there has to be an impact to their shareholder value. And to the extent that they do things that upset a significant portion of the customer base and the shareholder base, there is absolutely no question that the economics will trump ideology. They will not say, well, at least we’re controlling the world with our leftist view, but, yeah, our stock’s down 40 percent. They can’t suffer a stock that’s down 40 percent. So, there has to be an impact and I think market forces are going to be a powerful arbiter here.

EICHER: Let’s tear into this jobs report before we go for the week, David. This is the December jobs report. It gives us a complete official picture for 2020. 

December, after month on month of job growth, we recorded minus 140-thousand. The vast majority in leisure—restaurants and bars—with all other sectors up.

But taken all together, 2020 was minus 9.2 million jobs net-net. Your analysis?

BAHNSEN: Yeah, and you said restaurants and bars. I would add in that leisure and hospitality category a really significant subcategory in the hotel or hospitality space. And so it’s part of that leisure category, but even beyond just the dining, the travel and hotel space that has just been decimated, and, of course, should be really transitory in the sense that that’s the type of thing that I think Americans are eager to get back to doing when they can. And so I’m encouraged by the fact that there should be a turn there, but it’s really discouraging at how severe it’s been for that group of people, particularly a lot of the lower paid, more like hourly workers that are less likely to have economic cushion to get through those types of periods. 

But, yeah, the jobs report, I guess as bad as it is, it really could have been and should have been and would have been a lot worse. I think that the limitation into the sectors you’re talking about is tragic for those sectors, but there really is a relief that this didn’t spill over more into other parts of the economy, that the manufacturing data and the industrial production, the exports, our trade relationships. There has been a reasonably healthy part of activity that’s enabled full employment and certainly, I think, everyone’s aware that if it were not for such a heavy level of digital capability throughout the economy, that this would have been far, far worse. 

What I just am so worried about is that labor participation rate, people that give up looking for a job, so they don’t have a job and they identify as no longer looking. If that number, which has just violently moved higher stays higher as it did in the post-financial crisis and throughout the years of the Obama administration, I think that’s an awful thing for the society. Because at that point you don’t just lose their labor output, which is important, you don’t just lose the productivity, which is economically important, but those people really can fall into depression. They can fall into– there’s a whole human dignity component there that becomes very concerning. So, when a four-week or four-month loss of a job of a local restaurant when you’re a college student, that’s awful and it’s financially stressful. But it’s not undermining human anthropology. But that higher labor participation number falling down, that to me could become much more concerning. And so I’m watching that very closely.

EICHER: I’m going to leave it there. David Bahnsen, financial analyst and advisor. Always great to talk with you, the voice of reason. Thank you, David.

BAHNSEN: Thanks, Nick.

NICK EICHER, HOST: Next up on The World and Everything in It: the WORLD History Book. 

This week, a popular pamphlet, the beginning of the U.S. oil boom, and farewell to a fashion icon. Here’s WORLD senior correspondent Katie Gaultney.

MUSIC: [ROAD TO BOSTON]

KATIE GAULTNEY, SENIOR CORRESPONDENT: Today, information spreads quickly. An email blast reaches thousands; a tweet goes viral. But 245 years ago, on January 10, 1776, Thomas Paine relied on the printing press to spread his revolutionary ideas. And the message—from his pamphlet Common Sense—spread like wildfire. 

COMMON SENSE: Society is produced by our wants, and government by our wickedness…

That excerpt, offered by Librivox, demonstrates Paine’s wariness of anything but an egalitarian form of government. Paine—a recent English immigrant—penned a harsh critique of George III and inspired the colonies to sever ties with England. Peter Thompson of the University of Oxford simplified Paine’s point. 

THOMPSON: Government should be the servant of the people, not its master. And over time, gradually, the English constitution has developed into this ravening monster which oppresses the ordinary man and woman in the street and is fundamentally corrupt. 

With its incendiary prose—structured much like a fiery sermon—the message caught on quickly. Colonists read it aloud at taverns, coffeehouses, and meeting places. Kathleen Burk of University College London talked to the BBC about its wide reach. 

BURK: It was published up and down the seaboard, it was published in Europe, in London to Vienna to Moscow. 

Historians estimate that adjusting 1776 sales to our modern population, the pamphlet would have sold 150 million copies by today’s numbers. In fact, it’s still in print today, and it remains the all-time best-selling American book. 

MUSIC: [SPINDLETOP SOUNDTRACK ]

“There’s oil in them hills…” or rather, that coastline. On January 10, 1901, the top blew off of Spindletop, an oilfield well in Beaumont, Texas, near Houston. It rained oil at an estimated rate of 100,000 barrels per day before it was capped. Spindletop author and historian Jo Ann Stiles put it in context: 

STILES: Literally in that one gusher at Spindletop, we outproduced the Russian oil fields for the year in a matter of 10 days, and it made the United States number one in the world in terms of oil production…

With Spindletop’s enormous output, America entered the oil age. With the Texas oil boom, burning petroleum as fuel for the masses made economic sense. 

Troy Gray is the director of the Spindletop-Gladys City Boomtown Museum. He said the time was right for a long-term impact.

GRAY: When the oil came, this was at a time when cars were invented and they were choosing between electric-powered cars and gas-powered cars. Because of the sheer amount of oil they found in Beaumont, that put us on the map and everyone wanted a piece of it. 

Tens of thousands of oil prospectors called “wildcatters” rushed to the Texas town, causing the population to triple in just three months. 

MUSIC: [WAYLON]

Traveling from the oilfields of Texas now to the streets of Paris. 

MUSIC: [LA VIE EN ROSE BY EDITH PIAF]

French designer Coco Chanel died 50 years ago yesterday. The couture pioneer rose from poverty to create a fashion house that changed women’s clothing. Her signature style—black, white, pearls and simple, elegant trims with a nod to the nautical—became the look for the well-heeled Parisienne. 

In this 1959 interview, she called imitation the sincerest form of flattery. She counted fashion industry imitators as evidence of her own success and influence. 

But before her surname became synonymous with style, Gabrielle Bonheur Chanel was the daughter of an itinerant peddler and a laundress. She dreamed of the stage, singing in cafes and cabarets, where she began using the nickname Coco.

Chanel’s fashion empire expanded to include not just clothing, hats, and accessories, but jewelry and fragrances, too. Her signature perfume, Chanel No. 5, remains one of the world’s most iconic scents. A bottle of it sells every 30 seconds. Celebs from Nicole Kidman to Brad Pitt have hawked the famous fragrance. 

PITT: Chanel No. 5… Inevitable. 

But of course, death, too, is inevitable. Chanel died at age 87 at her home in Paris, after carrying on her typical daily activities. She was feeling unwell and went to bed early on the evening of January 10, 1971. Her final words, spoken to her maid, were, “You see, this is how you die.” 

MUSIC: [LA VIE EN ROSE BY EDITH PIAF]

That’s this week’s History Book. I’m Katie Gaultney.

NICK EICHER, HOST: Tomorrow: We’ll tell you about kinks in the supply chain that are delaying the COVID-19 vaccine distribution.

And, we’ll consider how the Biden administration might approach international religious liberty.

That and more tomorrow. 

I’m Nick Eicher.

MARY REICHARD, HOST: And I’m Mary Reichard.

The World and Everything in It comes to you from WORLD Radio.

WORLD’s mission is biblically objective journalism that informs, educates, and inspires.

Consider it pure joy whenever you face trials of many kinds, because you know that the testing of your faith produces perseverance. Let perseverance finish its work so that you may be mature and complete, not lacking anything.

Go now in grace and peace.

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