Is there a New York Times columnist as insufferably moralistic, or as neglectful of facts that contradict his argument, as Nicholas Kristof? Last week Kristof mounted yet another of his high-horse save-the-children campaigns, this time against beermasters Anheuser-Busch. Kristof asks readers to join his boycott of the leading brewer for (he says) improperly permitting its output to be sold in large volumes in tiny Whiteclay, Neb., just across the state line from the Oglala Sioux's Pine Ridge Reservation in South Dakota. Though notionally dry, the reservation is in practice wracked with alcoholism.
This state of affairs is not new, but is making headlines because a Nebraska lawyer has filed a lawsuit on behalf of the Oglala Sioux tribe against Anheuser-Busch, Miller, and various other defendants. The lawsuit claims $500 million in damages—reparations, really—for letting the malt beverages be sold in places where Pine Ridge residents can so easily get at them.
Unlike Kristof's column and blog post, the Times' earlier reporting on the dispute at least makes a few concessions about how the tribe's alcoholism problem has more complicated origins than the lawsuit would make it seem. For example, it quotes Oglala members who say the unusual Pine Ridge policy of complete alcohol prohibition within its boundaries has been a failure; other reservations, such as the nearby Rosebud, choose to legalize liquor sales, which tends to establish a class of local sellers more interested in staying in the community's good graces. Kristof by contrast appears to have swallowed the lawsuit's contentions in one hearty draft. And lawsuit contentions, like beer itself, can be dangerous when over-quaffed by the naive.
It took me about thirty seconds online to find the brewers' brief on behalf of their joint motion to dismiss the case, filed April 27 more than a week before Kristof's column. Of its many arguments as to why the case should fail, this one jumped out at me:
Nebraska's statutory three-tier distribution system prohibits Brewers from selling to the public at retail and from controlling the chain of distribution in Nebraska. By law, Brewers cannot control their independent, state-licensed wholesalers. Nebraska law also prevents Brewers from controlling the independent, state-licensed retailers or their sales to the general public.
Those familiar with state beer regulation will recognize what's going on here. Most states—specifically those with the "three-tier" system—carefully cultivate the profitability of the licensed beer wholesaling business by limiting the legal rights of brewers (as well as retailers and end-consumers) to work around them. If Nebraska is typical, that would make it unlawful for the brewers to arm-twist the wholesalers through economic threats into curtailing supplies to the Whiteclay border sellers. Maybe the tribe's lawyers will turn out to have some great answer to this objection, but for Kristof not even to bring it up seems surpassingly naive.
And yet naivete runs like an ever-freshening stream through the Kristof oeuvre. Thus the columnist effusively praises a proposal by former Sen. James Abourezk (D-S.D.) "for the Obama administration to extend Pine Ridge reservation lines to include Whiteclay." Were such a proposal to go forward (and wouldn't the tiny hamlet's landowners and residents, to say nothing of the state of Nebraska, have plausible grounds to object?) the stores would have to close down. Victory! But then what would happen when new stores popped up just past the redrawn boundary?
It's fine with me if Kristof doesn't want to drink Bud, so long as I don't have to read him.
Walter Olson is a senior fellow at the Cato Institute and editor of Overlawyered.com.
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