You Might Be A Criminal, and You Don’t Even Know It

By Christina Sandefur
April 22, 2019

There’s a disturbing and growing trend at every level of government: the movement not just to outlaw, but criminalize innocuous (and often beneficial) activities simply because they involve exchange of money.

Last month, I drew attention to this trend at the 2019 Federalist Society National Student Symposium. The theme of this year’s symposium was “The Resurgence of Economic Liberty,” so it was fitting that the event was held in the Goldwater Institute’s home state of Arizona, which has been leading the way in safeguarding the right to earn a living without first getting permission from the government.

Moderated by Judge Elizabeth Branch of the 11th Circuit Court of Appeals, my panel focused on the intersection of economic liberty and the criminal justice system. My co-panelists Professor Erik Luna of ASU Law, Professor Beth Colgan of UCLA Law, and Peter Wallison of the American Enterprise Institute discussed topics like civil asset forfeiture (when police seize people’s property without proving that they’ve done anything wrong) and excessive fines and fees (which can prevent people from driving, voting, and even earning a living) – practices that are more focused on lining bureaucrats’ pockets than keeping people safe.

Here’s one of the more egregious examples of government criminalizing conduct: Cities nationwide have recently begun to outlaw home-sharing – renting one’s home to overnight guests in exchange for money. Although technology – through platforms like Airbnb and HomeAway – have made it easier than ever before for homeowners and visitors to connect, home-sharing is actually a centuries-old practice, and cities have traditionally used existing nuisance laws to address any problems caused by the occasional raucous guest.

Yet today, cities are imposing crushing penalties on innocent conduct (we’re defending responsible homeowners against Miami Beach’s excessive fines – which can be up to $100,000 per night), locking people up for renting their homes (Nashville recently sent a man to jail for violating that city’s home-sharing ban), and even outlawing home-sharing advertisements (even though the First Amendment protects the right to share truthful information).

The problem isn’t limited to cities: the federal government also holds people criminally liable for doing no more than speaking the truth. As our investigative journalist Mark Flatten revealed in his latest investigative report, under fed law, pharmaceutical companies can be charged with a crime simply for telling doctors about legal, safe, alternative uses for an approved medicine. This is not only unconstitutional – as I point out on the panel, it ultimately affects doctors, who don’t have the most up-to-date information to be able to treat their patients.

We’re working in capitols and courtrooms across the country to fix this problem; namely, government’s position that the exchange of money transforms harmless activities into crimes. If it’s legal to let a guest stay in your home for free, and if it’s legal to share truthful, scientific information, it should be legal to do so for money. When people break the law, the punishment should fit the crime. But it shouldn’t be a crime to earn an honest living.

For more on economic liberty in the criminal justice system, you can watch the panel here.