Defending Speech With Which I Don't Agree
Yeah, I think the title is worded awkwardly, but I am trying to curb my enthusiasm for ending sentences with prepositions (I will continue to boldly split infinitives that no man has split before).
Anyway, in the spirit of this post and this one, I try from time to time to reinforce my support for free speech as an absolute right by publicly supporting the speech rights of those with whom I disagree. Today's case is the public University of Nebraska-Lincoln deciding to un-invite former terrorist William Ayers to speak on campus. The reason given was the current weak-ass excuse often used to reverse the invitation of controversial speakers, "we can't gaurantee security."
Though I would never have hired the guy, Ayers is a professor at a real public university, and what he has to say is particularly relevant given his ties to Barrack Obama. I find the behavior of Nebraska's conservative politicians to be especially absurd here -- after months of calling for more discussion and disclusore of Ayers and his ties to Obama, they want to prevent Ayers from speaking publicly?
Update: In an odd coincidence, at about the same time I was writing this post, the NY Times blog was posting on split infinitives.
It's a Feature, not a Bug
Laws that require the goodwill and ethical functioning of its participants, without oversight, always worry me. The companion argument to this is when someone says (and this is popular among Democrats nowadays) all this infrastructure in the government that does not work will be fine when we get our own smart people running it.
It never, never works. Here is yet another example: All that extra post-9/11 investigatory power? Trust us, we only use it on the bad guys.
The Maryland State Police classified 53 nonviolent activists as terrorists and entered their names and personal information into state and federal databases that track terrorism suspects, the state police chief acknowledged yesterday.
Police Superintendent Terrence B. Sheridan revealed at a legislative hearing that the surveillance operation, which targeted opponents of the death penalty and the Iraq war, was far more extensive than was known when its existence was disclosed in July....
Said the unrepentant leader of this efort:
"I don't believe the First Amendment is any guarantee to those who wish to disrupt the government," he said.
Reading my history, disrupting the government was not the last thing they were trying to protect, it was the first thing.
Grass Roots Efforts to Impose Socialism
At first, I thought this was an interesting article in the battle of urban planners against suburban "sprawl." Here is the voice of the often silent majority, who like suburbs and don't want a bunch of high-density mini-Manhattans :
Jones and his neighbors moved to Laveen's low-scale subdivisions in hopes of finding a suburban life near the heart of the Valley, where they could enjoy large, affordable homes a few miles southwest of downtown Phoenix.
"We had the opportunity to buy a brand-new home we could afford, and we had a view of downtown," Pacey says. "The potential to make this as wonderful as other areas of Phoenix is huge."
The story has the typical highly-connected former politician turned developer (is there another kind?) using his unique access to his old zoning cronies to manipulate regulation for personal profit:
Then Paul Johnson, a former Phoenix mayor, proposed taking a mostly vacant 27-acre parcel a few blocks east of Jones' home and building 517 apartments and townhouses on it.
The property was zoned for one house to the acre. It abuts a two-lane road where the speed limit, when two nearby schools are in session, is 15 mph. And the nearby intersection of 27th and Southern avenues, which provides access to downtown Phoenix, is still controlled by stop signs.
Schools in the neighborhood already were overcrowded, and residents were concerned about the police's ability to keep up with calls for service. Where were all these new people going to go?
"They've done so much building in Laveen that the infrastructure has not kept up," says Jones, an auditor who had no previous involvement in civic affairs.
Despite a resident outcry and opposition from Michael Nowakowski, the councilman who had just been elected to represent the district, the council approved the rezoning 7-1 on Dec. 19.
Johnson gets extra bonus points as the urban-chic villain, expressing the superiority of sitting in cafes to, say, having a back yard.
As a former mayor, Paul Johnson is familiar with residents' arguments against high-density developments.
"They feel that any time you have additional density, that it means a lower quality," he says one morning over coffee at Biltmore Fashion Park. "The counter to that is this."
Johnson gestures across Camelback Road to the high-rise apartments and townhomes near 24th Street.
"I look out across the street, and there's a lot of density there," he says. "But I'm also sitting in a pretty nice cafe. I have a nice place to sit. And there's a lot of other people here who think it's a nice place."
But it turns out that there are no good guys in this story, as is often the case for your poor libertarian correspondent. Because, the opponents of such development are turning to the ballot box, converting property decisions from individual ones made by the property owner to group decisions made on election day. What can be built on this particular property may well be decided at the ballot box, just as I discussed another parcel of land whose fate will be decided not by its owner, but at town elections in November.
Sometimes, the reaction to government control is a bid for de-regulation. But more often, it merely results in a scrap for power, as parties ignore the question of whether the government power should exist at all, and instead fight over who gets to wield it.
For the most part, it has been up to city councils to decide how much density one neighborhood can tolerate. If Jones is successful, they could lose some of that power.
"It speaks to the age-old dilemma of representative democracy versus direct democracy," said Paul Lewis, an assistant professor of political science at ASU. "There's always an issue with land use because what might be in the overall interest of the city might still be seen as a detriment to its immediate neighborhood."
This is all very depressing. No mention of any age-old question between individual rights and government power. For these guys, the "city" and the "neighborhood" are somehow real entities with more rights than actual people.
For centuries we have had a perfectly serviceable approach for determining who gets to decide what gets built on a piece of land: ownership. If one wanted to control a property, she/he bought it. But the desire to control property without really owning it is a strong one, and a driving force for much of government regulation.
So We Can't Have Even One Candidate Who Truly Understands Free Speech
I stand by my no-McCain vow I made years ago after his role in campaign speech limitation. But Obama does not look like a very promising alternative:
The Obama campaign disputes the accuracy of the advertisement, which is fine. It has also threatened regulatory retaliation against outlets that show it, which isn't fine. Instead of, say, crafting a response ad, Obama's team had general counsel Robert F. Bauer send stations a letter [pdf] arguing that "Failure to prevent the airing of 'false and misleading advertising may be 'probative of an underlying abdication of licensee responsibility.'" And, more directly: "For the sake of both FCC licensing requirements and the public interest, your station should refuse to continue to air this advertisement."
In particular, I would love to see Obama actually say what positions that are ascribed to him on gun control are false, and what his actual, specific positions are. A vague, gauzy support for the second amendment does not necessarily mean he has walked away from his earlier positions. In fact, I am sure that McCain would say he supported the First Amendment but I would certainly feel comfortable pointing out how he fails to do so in the details.
It Sucks to be a Woman
This weekend, I had a conversation with a group of people about the upcoming election. As is typical in a fairly diverse group, at least one woman said that she was voting for Obama to protect "women's rights." When pressed, this seemed to boil down to support for abortion rights.
Boy, I am sure glad that I am a man, where my rights are not narrowly defined around the availability of a single out-patient surgical procedure. I get to define my rights to include free speech, commerce, property, gun ownership, immunity from arbitrary search and seizure, and habeus corpus. Even in the narrow world of medical care, I can aspire broadly to rights such as the ability to use medications not necessarily labeled safe and effective by the FDA, the ability to contract for whatever procedures I want even if the government is not willing to pay for them, and the abilty ride my motorcycle with or without a helmet as long as I am willing to bear the cost and consequences of my actions.
I will confess that this broader view of my rights makes voting more difficult, as neither the Coke nor the Pepsi party consistently protects my rights defined this broadly.
Good News on the Free Speech Front
Last year, a University of Delaware student was banned from campus and ordered to undergo psychological testing before he could return. This was the administration's reaction to another student's complaint about certain content on his website, which was described as "racist, sexist, anti-Semitic, and homophobic."
Now, I have a guess that I would not have thought much of this student's professed opinions, but the first amendment is there to protect speech we don't like from punishment by government bodies such as the state-run University of Delaware. So it is good to see that the US District Court for Delaware granted this student summary judgment on his free speech claim.
In particular, I was happy to see this:
The court also noted that speech is constitutionally protected when it does not cause a substantial disruption on campus—even if an individual student feels so upset by the speech that she feels threatened by it, and even if university administrators strongly dislike what is being said. That is, the complaining student's reaction, together with the administrative trouble involved in dealing with the situation, was not enough to show a substantial disruption requiring punishment for Murakowski's protected speech.
This is important. While it seems odd, college campuses have been the vanguard for testing new theories for limiting free speech over the last several years. One popular theory is that offense taken by the listener is sufficient grounds to hold speech to be punishable. This definition kills any objective standards, and therefore is a blank check for speech limitation, something its proponents understand all too well. It is good to see a higher court very explicitly striking down this standards.
Handcuff Everyone with Brown Skin -- We'll sort 'em Out Later
Our execrable sheriff Joe Arpaio conducted another of his famous roundups of people with brown skin. This time descending on an area landscaping company, our brave deputies zip-tied anyone who did not look Anglo-Saxon. To have their handcuffs removed, workers of Latin descent had to first provide proof that they were in the country legally. Note that there is no legal requirement that I know of that workers in this country carry proof of citizenship at all times, on the off-chance the local Gestapo will descend on them and demand to see their papers.
Deputies from the Maricopa County Sheriff's Office raided a Mesa landscaping company early Wednesday morning, arresting nearly three dozen people suspected of being in the country illegally.
The raid on offices of Artistic Land Management, on Main Street just west of Dobson Road, happened about 4:30 a.m., according to one worker who was handcuffed and detained before being released when he produced documentation that he was in the country legally....
Juarez estimated about 35 workers were handcuffed with plastic zip-ties while deputies checked for documents. Those who could provide proof they were in the country legally were released, while others were put on buses and taken away.
Exaggerated Security Threats and Civil Liberties
From Eric L Muller's "Hirabayashi: The Biggest Lie of the Greatest Generation" which studies the Supreme Court decision upholding race-based civil rights restrictions (eg curfews) in WWII.
This Article presents new archival evidence of an enormous lie that Executive Branch officials presented to the Supreme Court in the Japanese American litigation of World War II, one that impugns Hirabayashi at least as much as it does Korematsu. The lie concerns what might be termed the “external” component of the national security threat in early 1942 – the danger that Japanese military forces posed to the West Coast of the United States. The government’s brief in Hirabayashi did not mince words about that external threat: The “principal danger” that military officials “apprehended” was “a Japanese invasion” which “might have threatened the very integrity of our nation.” With the Japanese “at the crest of their military fortunes,” the brief maintained, military officials found it “imperative” to “take adequate protective measures against a possible invasion of the West Coast.” The nighttime curfew on Japanese Americans was one such measure.
This depiction of the external Japanese threat found a sympathetic audience in the Supreme Court in Hirabayashi. Chief Justice Stone, writing for the unanimous Court, accepted that the men “charged with the responsibility of our national defense had ample ground for concluding that they must face the danger of invasion,” a danger that concurring Justice Douglas insisted was “not fanciful but real.” Singling out Japanese Americans for curfew was reasonable because of their “ethnic affiliations with an invading enemy.”
Archival records now make clear that all of this talk of a threatened Japanese invasion was a massive distortion of the actual military situation in the eastern Pacific in early 1942. There was at that time no danger of a Japanese invasion of the West Coast. The army and navy viewed any sort of Japanese invasion of California, Oregon, or Washington as impracticable. They were neither anticipating nor preparing for any such event. Indeed, during the key time period of early 1942, the Army was more concerned with scaling back the defense of the West Coast from land attack than with bolstering it.
Wow. Exaggeration of a security threat as an excuse to curtail civil rights. Gee, I'm sure glad that doesn't happen anymore. HT: Jonathon Adler
Reason has been on top of the LA crackdown on bacon-dog sales from mobile carts for some time. Recently, the police stormed in and confiscated a number of vendors' inventory and push carts. OK, its bad enough that bacon product sales have been deemed a threat to the Republic. But what freaked me out is that the police did not impound the carts but rather junked them (pictures here). So where is the due process? If the police are found to have acted precipitously in arresting these folks, if they are found to be not guilty for whatever reason, their property is still gone forever. This is roughly equivilant to having your car crushed in a mobile hydraulic press within minutes of being given a speeding ticket. I wonder how many of these carts, which likely represent a huge investment relative to the investment capital these small business people possess, are collateral for loans?
More Attacks of Free Speech
This is cross-posted from Climate-Skeptic, but it is very much in the spirit of the Canadian tribunals and University speech codes. There are increasing efforts, mainly on the left, to make the world a better place by limiting speech of those who don't agree with them.
I’m preparing a paper for an upcoming conference on this, so please comment if you can! Thanks. Many people have urged for there to be some legal or moral consequence for denying climate change. This urge generally comes from a number of places. Foremost is the belief that the science of anthropogenic climate change is proven beyond reasonable doubt and that climate change is an ethical issue. Those quotes from Mahorasy’s blog are interesting. I’ll include one here:
Perhaps there is a case for making climate change denial an offence. It is a crime against humanity, after all. –Margo Kingston, 21 November 2005
The urge also comes from frustration with a ‘denial’ lobby: the furthest and more extreme talkers on the subject who call global warming a ‘hoax’ (following James Inhofe’s now infamous quote). Of course there would be frustration with this position–a ‘hoax’ is purposeful and immoral. And those who either conduct the science or trust the science do not enjoy being told they are perpetrating a ‘hoax’, generating a myth, or committing a fraud....
I’m an advocate for something stronger. Call it regulation, law, or influence. Whatever name we give it, it should not be seen as regulation vs. freedom, but as a balancing of different freedoms. In the same way that to enjoy the freedom of a car you need insurance to protect the freedom of other drivers and pedestrians; in the same way that you enjoy the freedom to publish your views, you need a regulatory code to ensure the freedoms of those who can either disagree with or disprove your views. Either way. While I dislike Brendan O’Neill and know he’s wrong, I can’t stop him. But we need a body with teeth to be able to say, “actually Brendan, you can’t publish that unless you can prove it.” A body which can also say to me, and to James Hansen, and to the IPCC, the same....
What do you think? Perhaps a starting point is a draft point in the codes for governing how the media represent climate change, and a method for enforcing that code. And that code needs to extend out to cover new media, including blogs. And perhaps taking a lesson from the Obama campaign’s micro-response strategy: a team empowered with responding to complaints specifically dealing with online inaccuracy, to which all press and blogs have to respond. And so whatever Jennifer Mahorasy, or Wattsupwiththat, or Tom Nelson, or Climate Sceptic, or OnEarth, or La Marguerite, or the Sans Pretence, or DeSmog Blog, or Monckton or me, say, then we’re all bound by the same freedoms of publishing.
He asked for comments. I really did not have much energy to refute something so wrong-headed, but I left a few thoughts:
Wow, as proprietor of Climate-Skeptic.com, I am sure flattered to be listed as one of the first up against the wall come the great green-fascist revolution. I found it particularly ironic that you linked my post skewering a climate alarmist for claiming that heavier objects fall faster than lighter objects. Gee, I thought the fact that objects of different masses fall at the same rate had been "settled science" since the late 1500s.
But I don't think you need a lecture on science, you need a lecture on civics. Everyone always wants free speech for themselves. The tough part is to support free speech for others, even if they are horribly, terribly wrong-headed. That is the miracle of the first amendment, that we have stuck by this principle for over 200 years.
You see, technocrats like yourself are always assuming the perfect government official with perfect knowledge and perfect incentives to administer your little censorship body. But the fact is, such groups are populated with real people, and eventually, the odds are they will be populated by knaves. And even if folks are well-intentioned, incentives kill such government efforts every time. What if, for example, your speech regulation bureaucrats felt that their job security depended on a continued climate crisis, and evidence of no crisis might cause their job to go away? Would they really be unbiased with such an incentive?
Here is a parallel example to consider. It strikes me that the laws of economics are better understood than the activity of greenhouse gasses. I wonder if the author would support limits on speech for supporters of such things like minimum wages and trade protectionism that economists routinely say make no sense in the science of economics. Should Barrack Obama be enjoined from discussing his gasoline rebate plan because most all economists say that it won't work the way he says? There is an economist consensus, should that be enough to silence Obama?
Update: His proposed system is sort of a government mandated peer-review backed with prison terms. For some reason, climate science is obsessed with peer review. A few thoughts:
At best, peer review is a screen for whether a study is worthy of occupying limited publication space, not for whether it is correct. Peer review, again at best, focuses on whether a study has some minimum level of rigor and coherence and whether it offers up findings that are new or somehow advance the ball on an important topic.
In "big boy sciences" like physics, study findings are not considered vetted simply because they are peer-reviewed. They are vetted only after numerous other scientists have been able to replicate the results, or have at least failed to tear the original results down.
Learning to Love the Fifth Ammendment
I thought this was a pretty good video -- why even the innocent should not talk to the police. Learn to love your fifth amendment rights. He demonstrates that even the innocent can make statements that can be used to wrongly convict them.
The Fruits of Over-Zealous Prosecution
Radley Balko has a roundup of stories of overdue freedom for the improperly incarcerated. Its good to see this happening, though I must say I still have some mixed feelings about the Innocence Project after their staggeringly bad judgment of putting Janet Reno, Queen of Abusive Prosecution, on their board.
Stop, Or I Will Start Assembling My Handgun
Unlike many libertarians, I don't blog about gun rights much. Some think this odd, but in my mind this is like saying it is odd that a female blogger doesn't blog much about abortion. I have always thought it was pretty clear that the 2nd amendment protects an individual right to bear arms, but it's just not a subject for which I have much passion *shrug*
However, I did find this hilarious. Megan McArdle passes on the District of Columbia's petulant response to the Heller decision:
Here's what they're proposing:
* Allowing an exception for handgun ownership for self-defense use inside the home.
* If you want to keep a handgun in your home, the MPD will have to perform ballistic testing on it before it can be legally registered.
* There will be a limit to one handgun per person for the first 90 days after the legislation becomes law.
* Firearms in the home must be stored unloaded and disassembled, and secured with either a trigger lock, gun safe, or similar device. The new law will allow an exception for a firearm while it is being used against an intruder in the home.
* Residents who legally register handguns in the District will not be required to have licenses to carry them inside their own homes.
OK, so I can have a handgun in the home solely for self-defense, but this self-defense weapon must be stored unloaded, disassembled, and locked. The only time it can be unlocked and assembled and loaded is "while it is being used against an intruder". Jeez. In the time it would take to unlock, assemble, and load the gun, I could probably build some McGyver device out of dental floss, a TV remote, and a couple of Thin Mint Girls Scout Cookies to just blow them up.
Postscript: I have never been that confident in my ability with a handgun. TV portrayals notwithstanding, I find them very difficult to handle accurately, and they require a lot of practice which most casual owners don't pursue. In my case, I find this a more realistic home defense weapon.
For His Own Good
The government claims that it is important to crack down on gambling because people who gamble might do themselves financial harm. Of course, just like the teenager who is thrown in jail because it is better for him than smoking marijuana, so goes the case of Salvatore Culosi:
… Salvatore Culosi … was a 37-year old optometrist in the Washington, D.C. suburb of Fairfax, Virginia. According to friends, Culosi was a wealthy, self-made man. He was easygoing and friendly, a guy who enjoyed his success.
He was also a small-time gambler. Culosi and his friends regularly met at bars in the area to watch sports, and frequently wagered on the outcomes of games. The wagers weren’t insignificant — $50, $100, sometimes more on a given afternoon. But the small circle of friends also had the means to back up their wagers. No one was betting the mortgage, here…
Fairfax police detective David J. Baucom met Culosi in a bar one evening last October, befriended him, and was soon making wagers himself… Baucom began upping the ante, encouraging Culosi to wager larger sums than what the friends were used to…
Baucom eventually encouraged Culosi to wager at least $2,000 in a single day, the lower threshold under which Culosi could be charged under state law with “conducting an illegal gambling operation.” On January 24 of this year, Detective Baucom assembled the Fairfax County SWAT team, and marched off to Culosi’s home to arrest him.
According to press accounts, police affidavits, and the resulting investigation by the Fairfax prosecutor’s office, Baucom called Culosi that evening, and told him he’d be by to collect his winnings. With the SWAT team at the ready just behind him, Baucom waited outside Culosi’s home in an SUV. As Culosi emerged from the doorway, clad only in a t-shirt and jeans, SWAT officer Deval Bullock’s finger apparently slipped to the trigger of his Heckler & Koch MP5 semiautomatic weapon, already aimed at the unarmed Culosi.
The gun fired, releasing a bullet that entered Culosi’s side, then ripped through his chest and struck his heart, killing him instantly.
Why That Separation of Powers Thingie Makes Some Sense
The NY Times reports, via Hit and Run, that judicial review of Gitmo detainees, which the Administration has steadfastly resisted, may be quite justified:
In the first case to review the government’s secret evidence for holding a detainee at Guantánamo Bay, Cuba, a federal appeals court found that accusations against a Muslim from western China held for more than six years were based on bare and unverifiable claims. The unclassified parts of the decision were released on Monday.
With some derision for the Bush administration’s arguments, a three-judge panel said the government contended that its accusations against the detainee should be accepted as true because they had been repeated in at least three secret documents.
The court compared that to the absurd declaration of a character in the Lewis Carroll poem "The Hunting of the Snark": "I have said it thrice: What I tell you three times is true."
"This comes perilously close to suggesting that whatever the government says must be treated as true," said the panel of the Court of Appeals for the District of Columbia Circuit.
The unanimous panel overturned as invalid a Pentagon determination that the detainee, Huzaifa Parhat, a member of the ethnic Uighur Muslim minority in western China, was properly held as an enemy combatant.
The panel included one of the court’s most conservative members, the chief judge, David B. Sentelle....
Pentagon officials have claimed that the Uighurs at Guantánamo were “affiliated” with a Uighur resistance group, the East Turkestan Islamic Movement, and that it, in turn, was “associated” with Al Qaeda and the Taliban.
Next up, the detainee whose mother's gynecologist's dog's veterinarian's great uncle once was friends with a Muslim guy.
The Administration now complains that there is nowhere that this man can be sent back to, and somehow this is supposed to validate his detainment? He wouldn't have had to be sent back anywhere if he hadn't been snatched up in the first place. I am willing to believe that this guy may be a bad buy, but we let lots of people we are pretty sure are bad guys walk the street, because for good and valid reasons we rank false detainment of the innocent as a greater harm than non-detainment of the guilty. Anyone seen OJ lately?
Follow-up on Habeas Corpus and Gitmo
I got a lot of email this weekend telling me why I was short-sighted in supporting the Supreme Court's decision on habeas corpus rights for detainees. First, I will observe that I have great readers, because all of the email was respectful. Second, I will say that I am open to being convinced that I am wrong here, but I have not been so convinced yet.
I got a lot of email about past precedents and settled law on this. What I don't seem to be communicating well is that I understand and agree with past precedent in the context of other conflicts, but that the concept of "combatant" as currently used by the GWB administration is so different than in the past as to defy precedent. The folks sitting in Gitmo are not uniformed Wermacht officers captured in the Falais Gap. They are combatants generally not because they were caught firing on our troops but because the Administration says they are combatants. New situations often require new law, and as I said before, when in doubt, I will always side for protection of individual rights against the government.
I'm not going to get into an anecdotal battle over the nature of individual Gitmo detainees. I can easily start rattling off folks who were detained for extended periods for no good reason, and I am sure one can rattle off names of hard core bad guys who none of us would be happy to have walking the streets. The place where reasonable people disagree is what to do with this mixed bag. Gitmo supporters argue that it is better to lock up a few good guys to make sure the really bad guys are off the street. I would argue in turn that this is exactly NOT how our legal system works. For good reasons, our system has always been tilted such that the greater harm is locking up the innocent rather than releasing the guilty.
It may be a faulty analogy, but I considered the other day what would have happened had the US government taken the same position with active communist part members in the 1950's. Would it really have been that hard to have applied the same logic that has a number of Gitmo detainees locked away for years to "communist sympathizers?"
I think this Administration, time and time again, has exhibited a strong streak of laziness when it comes to following process. It doesn't like bothering to go through channels to get warrants, even when those warrants are usually forthcoming. And it doesn't want to bother facing a judge over why detainees are in captivity, something that every local DA and police officer have to deal with every day.
Update: More, from Cato and George Will, here. There are certain people who I find it to be a sort of intellectual confirmation or confidence builder to find them on the other side of an issue from me. John McCain is quickly falling into to this camp for me, at least vis a vis individual rights questions.
Humans Have Rights, Not Just Americans
I am a bit late to this, having just gotten back in town, but this is extraordinarily good news:
In a stunning blow to the Bush Administration in its war-on-terrorism policies, the Supreme Court ruled Thursday that foreign nationals held at Guantanamo Bay have a right to pursue habeas challenges to their detention. The Court, dividing 5-4, ruled that Congress had not validly taken away habeas rights. If Congress wishes to suspend habeas, it must do so only as the Constitution allows — when the country faces rebellion or invasion.
The Court stressed that it was not ruling that the detainees are entitled to be released — that is, entitled to have writs issued to end their confinement. That issue, it said, is left to the District Court judges who will be hearing the challenges. The Court also said that “we do not address whether the President has authority to detain” individuals during the war on terrorism, and hold them at the U.S. Naval base in Cuba; that, too, it said, is to be considered first by the District judges.
The Court also declared that detainees do not have to go through the special civilian court review process that Congress created in 2005, since that is not an adequate substitute for habeas rights.
During the17th and 18th century, as various western countries began to reign in autarchs, habeas corpus rights were high on their list of protections they demanded. There is just too much potential for abuse to allow the Executive Branch to hold people (of any nationality) indefinitely without any kind of judicial due process. I refuse to discuss the detentions in the context of their effectiveness in fighting terrorism just as I refuse to discuss immigration in terms of who will pick the lettuce. If there are valid and legal reasons for these guys to be in detention, then the President must allow the judicial branch to confirm them or the legislative branch to amend them.
Update: Powerline writes:
Justice Scalia characterizes the decision this way:
Today, for the first time in our Nation’s history, the Court confers a constitutional right to habeas corpus on alien enemies detained abroad by our military forces in the course of an ongoing war.
It strikes me as odd to confer such a right, but then I haven't read Justice Kennedy's opinion yet.
I don't have enough law background to know if this is truly unprecedented in this way, but what it if is? One could easily argue that the nature of the "enemy" here, being that they don't have the courtesy to wear uniforms that indicate their combatant status and which side they are on, is fairly unprecedented as well. As is the President's claim that he has unilateral power to declare that there is a war at all, who this war is against, and who is or is not a combatant. I know from past posts on this topic that many of my readers disagree with me, but I think it is perfectly fine for the Supreme Court, encountering this new situation, sides with the individual over the government.
Update #2, via the Onion 9/11 issue:
Bush is acting with the full support of Congress, which on Sept. 14 authorized him to use any necessary force against the undetermined attackers. According to House Speaker Dennis Hastert (R-IL), the congressional move enables the president to declare war, "to the extent that war can realistically be declared on, like, maybe three or four Egyptian guys, an Algerian, and this other guy who kind of looks Lebanese but could be Syrian. Or whoever else it might have been. Because it might not have been them."...
U.S. Sen. John McCain (R-AZ), one of Congress' decorated war veterans, tried to steel the nation for the possibility of a long and confusing conflict.
"America faces a long road ahead," McCain said. "We do not yet know the nature of 21st-century warfare. We do not yet know how to fight this sort of fight. And I'll be damned if one of us has an inkling who we will be fighting against. With any luck, they've got uniforms of some sort."...
Secretary of Defense Donald Rumsfeld said the war against terrorism will be different from any previous model of modern warfare.
"We were lucky enough at Pearl Harbor to be the victim of a craven sneak attack from an aggressor with the decency to attack military targets, use their own damn planes, and clearly mark those planes with their national insignia so that we knew who they were," Rumsfeld said. "Since the 21st-century breed of coward is not affording us any such luxury, we are forced to fritter away time searching hither and yon for him in the manner of a global easter-egg hunt."
Wherein Coyote is Thrilled to be Out of Step with Europe
After digging a First Amendment hole for itself in the Plame affair, the New York Times seems to still be hell-bent on narrowing the very First Amendment protections that probably kept its employees out of jail in the early 70's. Specifically, the Times frets that the US is out of step with Europe in having a much broader view of freedom of speech:
Six years later, a state court judge in New York dismissed a libel case brought by several Puerto Rican groups against a business executive who had called food stamps “basically a Puerto Rican program.” The First Amendment, Justice Eve M. Preminger wrote, does not allow even false statements about racial or ethnic groups to be suppressed or punished just because they may increase “the general level of prejudice.”
Some prominent legal scholars say the United States should reconsider its position on hate speech.
“It is not clear to me that the Europeans are mistaken,” Jeremy Waldron, a legal philosopher, wrote in The New York Review of Books last month, “when they say that a liberal democracy must take affirmative responsibility for protecting the atmosphere of mutual respect against certain forms of vicious attack.”
In the 1970's, members of my family worked in the oil industry, and we received numerous death threats of varying believability, and several of our friends received letter bombs or had family members kidnapped. Many of these attacks and threats were directly traceable to certain media shows that featured editorial attacks on the oil industry. So is the Times suggesting that the media should hold off on its criticism of the oil industry because this criticism created an atmosphere of hate in which these attacks were conducted?
No freaking way, because these calls to limit criticism and "hate speech" always have an ideological filter. There is never a suggestion that the speech bans be even-handed. Criticism of African Americans is outlawed, but exactly parallel language about white folks is A-OK. Criticising Islam is out, but Christianity is a fine target. Death threats against Haitian activists must be avoided at all costs, but death threats against corporate executives are no reflection on free speech or the media. The article is quite explicit that by their definition, hate speech only applies to "minorities," which you can translate to mean "groups the political class has decided to protect." You may be assured that members of the political class will find a way to get themselves included in this definition, so they can be free of criticism,
Kudos to Harvey Silvergate, who even makes the exact same point I have made about Hitler a number of times:
“Free speech matters because it works,” Mr. Silverglate continued. Scrutiny and debate are more effective ways of combating hate speech than censorship, he said, and all the more so in the post-Sept. 11 era.
“The world didn’t suffer because too many people read ‘Mein Kampf,’ ” Mr. Silverglate said. “Sending Hitler on a speaking tour of the United States would have been quite a good idea.”
I will add that I am also happy to be out of step with Europe in terms of any number of other policies, including American libel law, or laws that make it ever so much easier to start a business, and European tolerance for a cozy business-political elite that, whatever their party, focuses on keeping their elite wealthy and powerful.
Canada on Free Speech Death Spiral
The list of topics banned from criticism is increasing in Canada. First it was Islam, and then it was homosexuality. Now, it is making activist professors at public universities immune from criticism. By order of the Canadian government:
That Mr. Boissoin and The Concerned Christian Coalition Inc. shall cease publishing in newspapers, by email, on the radio, in public speeches, or on the internet, in future, disparaging remarks about gays and homosexuals. Further, they shall not and are prohibited from making disparaging remarks in the future about Dr. Lund or Dr. Lund’s witnesses relating to their involvement in this complaint. Further, all disparaging remarks versus homosexuals are directed to be removed from current web sites and publications of Mr. Boissoin and The Concerned Christian Coalition Inc.
That fact that I vociferously disagree with Mr. Boissoin (I am in fact thrilled, for example, that gays will be able to marry soon in California), I whole-heartedly support his right to publicly voice his opinions, even if it makes some people feel bad. Dr. Lund, as I understand it, as a professor at a state university, is a government employee, and a vociferous one at that. All limitations on speech are bad, but this decision has crossed that critical line of protecting government employees from criticism, what we would think as the absolute solid heart of the First Amendment (while simultaneously restricting religious beliefs, just for extra credit).
Don't Get Uppity
I have always wondered how people could describe European countries as more egalitarian than the US. Yeah, I know the income distribution tends to be flatter, but that is almost entirely because the rich are richer in the US rather than the poor being poorer. But pure income distribution has always seemed like a terrible way to make comparisons. My perception has always been that class lines in Europe are much harder than they are in the US. The elites in Europe have made a sort of arrangement in which they pay off the masses with an income floor and low work expectations in turn for making sure that none of the masses can in turn challenge their elite status or join their ranks. The government protects large corporations form competition, foreign or domestic. The government protects existing laborers against new entrants into the labor market. The government makes it virtually impossible for the average guy to start a business. The result is a lower and middle class who won't or can't aspire to breaking out of their class. Elites are protected, and no one seems to care very much when political elites enrich themselves through public office and then entrench themselves and their families in the power system. This, presumably, is why the American political class thinks so much of the European model.
In the U.S., we have low gas taxes, low car taxes, few tolls, strict zoning that leads developers to provide lots of free parking, low speed limits, lots of traffic enforcement, and lots of congestion.
In Europe (France and Germany specifically), they have high gas taxes, high car taxes, lots of tolls, almost no free parking, high speed limits (often none at all), little traffic enforcement, and very little congestion. (The only real traffic jam I endured in Europe was trying to get into Paris during rush hour. I was delayed about 30 minutes total).
If you had to pick one of these two systems, which would you prefer? Or to make the question a little cleaner, if there were two otherwise identical countries, but one had the U.S. system and the other had the Euro system, where would you decide to live?
Much as it pains me to admit, I would choose to live in the country with the Euro system. If you're at least upper-middle class, the convenience is worth the price. Yes, this is another secret way that Europe is better for the rich, and the U.S. for everyone else.
UN Human Rights Council Calls for Restricting Free Speech
Oh, those wacky guys on the UN "Human Rights" Council. They are now looking to Saudi Arabia as a model for protection of individual rights:
The top U.N. rights body on Thursday passed a resolution proposed by Islamic countries saying it is deeply concerned about the defamation of religions and urging governments to prohibit it.
The European Union said the text was one-sided because it primarily focused on Islam.
The U.N. Human Rights Council, which is dominated by Arab and other Muslim countries, adopted the resolution on a 21-10 vote over the opposition of Europe and Canada....
The resolution "urges states to take actions to prohibit the dissemination ... of racist and xenophobic ideas" and material that would incite to religious hatred. It also urges states to adopt laws that would protect against hatred and discrimination stemming from religious defamation.
Saudi Arabia said, "Maybe Islam is one of the most obvious victims of aggressions under the pretext of freedom of expression."
"It is regrettable that there are false translations and interpretations of the freedom of expression," the Saudi delegation told the council, adding that no culture should incite to religious hatred by attacking sacred teachings.
Hat tip: Yet another Weird SF Fan
Update: I am kind of amazed the irony is lost on some folks, so I guess I need to be more explicit: I found it depressing that the UN Human Rights Council is calling for limits on speech.
Really a Joke
I am finding Andrew Coyne's live blog of the Canadian hate speech "trial" to be endlessly fascinating. Imagine taking the the most self-important but dysfunctional local school board you can find, give them a knowledge of court procedure and the rules of evidence mainly through watching People's Court reruns, and put them in charge of enforcing speech and censorship, and you will about have duplicated this proceeding.
Interestingly, the current evidence being entered in the proceeding seems to be blog comments made on non-Canadian blogs. Every so often, we have to go through an educational process with the MSM to help them understand that commenters on blogs do not necessarily represent the opinion of the blogger. It may be OK to use blog comments as evidence that the community at the Free Republic or the Democratic Underground are loony, but not to say that blogger X or Y is a racist because racist comments have been posted on his blog.
It appears that the government of Canada needs a similar education, but I can see this being hard to do. Remember, each of the hearing "judges" are essentially people who make their living as government censors. Their job is wiping out speech with which they do not agree. It is therefore quite likely difficult for them to comprehend that many bloggers (like myself) have no desire to edit or control the content of our commenters.
The Front Line of the Labor Market
A popular anti-immigrant tactic in Arizona is to try to ban day laborers from public places. Though it's not how I would choose to sell my labor, many people choose to advertise and sell their labor from street corners and in public spaces. And many of these folks, contrary to common perceptions, are legal residents of this country.
A federal judge on Monday issued a temporary order blocking the town of Cave Creek from enforcing a law aimed at stopping day laborers from gathering on streets to look for work.
In her ruling, U.S. District Judge Roslyn Silver found that the ordinance is an unconstitutional restriction of free speech, and that the possibility of irreparable harm exists.
“Plaintiffs, as day laborers, face not only the loss of First Amendment freedoms, but also the loss of employment opportunities necessary to support themselves and their families,” Silver wrote in the ruling.
Great Moments in the Defense of Free Speech
Andrew Coyne is live-blogging the Mark Steyn inquisition. Check it out.
A few snippets:
They’re going to call, among others, Dr. Andrew Rippon, professor of Islamic Studies at the University of Victoria, to show that Steyn has misunderstood the relationship between the Koran and Islamic society. Well, that’s as may be. Would be a good subject for debate. But why exactly does that require the state to adjudicate it?...
Just coming back from a break. Lots of media interest, it seems: CBC, CTV (I’m told), the National Post, local media, and a guy from the New York Times, who’s doing a piece comparing how the two countries’ legal systems deal with speech cases. Needless to say, he can’t believe what he’s witnessing…
Under Section 7.1, he continues, innocent intent is not a defence, nor is truth, nor is fair comment or the public interest, nor is good faith or responsible journalism.
Or in other words, there is no defence.
Arrested for Being Creepy
More and more, it looks like the real crime of the Fundamentalist Church of Jesus Christ of Latter Day Saints is being different and ... well ... creepy. The FLDS has apparently been targeted for destruction because its tenets and practices rub America's increasingly intolerant soccer moms and suburban dads the wrong way.
We just can't let people live that way!
I'm as weirded out by the Persian-harem-via-How The West Was Won ambience that clings to the FLDS as the next guy, but I want allegations of abuse against the group to be (fancy this) based on actual evidence, and addressed on an individual basis, rather than as an excuse for a pogrom. That is, as weirded out as we all may be, you prosecute the actual abusers among the oddball minorities (as well as the bland majorities) and leave everybody else the hell alone.
Next thing you now, we'll be locking up college lacrosse players just because they are rich white guys.
Show Me Your Papers
Kevin Drum is discussing a book by Larry Bartels that argues the bottom third of the US population (as measured by income) are disenfranchised, as their preferences seem to have no discernible effect on legislative votes. I have not read the book, but I find this an astounding assertion on its face, particularly given that the US government is nearly entirely paid for by the other 2/3. We exploiters don't seem to be doing a very good job of taking advantage of our oligarchy. (By the way, if "oppressed" is defined as having one's preferences have no impact on Congressmen, then add us libertarians into the oppressed).
On the other hand, I would say that if an affluent neighborhood had 50,000 of its citizens per month randomly stopped and frisked in the street, we might see a little more pressure for police and prosecutorial reform. I just finished Cop in the Hood, in which Peter Moskos spends a good portion of the book discussing these same issues of probable cause and street searches.
McCain and the Suppresion of Dissent
Anyone who still believes that campaign finance "reform" is really about cleaning up politics rather than protecting incumbents and government entities from challenge and dissent need to read George Will's column this week.
The First Amendment guarantees freedom of association, "the right of the people peaceably to assemble, and to petition the government for a redress of grievances." The exercise of this right often annoys governments, and the Parker Six did not know that Colorado's government, perhaps to discourage annoyances, stipulates that when two or more people associate to advocate a political position, and spend more than $200 in doing so, they become an "issue committee."
As such, they probably should hire a lawyer because even Colorado's secretary of state says the requirements imposed on issue committees are "often complex and unclear." Committees must register with the government; they must fund their activities from a bank account opened solely for that purpose; they must report to the government the names and addresses of all persons who contribute more than $20; they must also report the employers of plutocrats who contribute more than $100; they must report non-cash contributions such as lemons used for lemonade, and marker pens and wooden dowels for yard signs.
McCain-Feingold makes it impossible for me to vote for McCain. Of course, other such issues make it impossible for me to vote for the other two yahoos either. Siqh.
Footloose, Arizona Style
At San Tan Flats, you can dance if you want to:
Outdoor dancing is now allowed at San Tan Flat.
Pinal County Superior Court Judge William O'Neil Wednesday overturned the decision of the county board of supervisors that said the restaurant was operating illegally by allowing patrons to dance to live music on its back patio.
The case, which stretched over two years, drew national attention.
The supervisors' decision stemmed from a 1962 ordinance that banned outdoor dance halls.
Dale Bell, owner of the restaurant, contended the county violated his rights to run his business.
He sued the county for $1.
"That $1 is about freedom and about civil liberties and the government not being allowed to overreact," Bell said Wednesday.
Pinal County threatened to fine Bell $700 for each day he violated the ordinance.
Prosecutorial Abuse vs. Parental Abuse
Apparently, the State of Texas is still trying to figure out what to do with those 400+ kids rounded up at the YFZ Ranch. I don't really know enough about the case to comment on whether these kids were victims or not, though from reading this the evidence looks thin.
Here is my concern. About 15 years ago I sat on a jury in Dallas. The particular case was a child abuse case, with the state alleging a dad had sexually assaulted his daughter. The whole case took about 3 days to present and it took the jury about 2 hours to find the guy innocent, and it took that long only because of one holdout.
The reason we found him innocent so quickly is because it became clear that the state had employed Janet Reno tactics (the Miami method, I think it was called) to put pressure on the child over a period of 6 months to break her out of her position that her dad had done nothing. (By the way, is anyone else flabbergasted that Janet Reno, of all people, is on the board of the Innocence Project?).
Anyway, the dad was first arrested when the teenage babysitter told police that the daughter was behaving oddly and it seemed just like a story she had seen on Oprah. Note, the babysitter did not witness any abuse nor did the girl mention any abuse to her. She just was acting up one night. At trial, the babysitter said her dream was to have this case propel her to an Oprah appearance of her own (I kid you not).
On that evidence alone, the state threw the dad in jail and starting a 6 month brainwashing and programming process aimed at getting the girl to say her dad abused her. They used a series of negative reinforcements whenever the girl said dad was innocent and offered positive reinforcements if she would say dad had said X or Y. Eventually, the little girl broke and told the state what they wanted to hear, but quickly recanted and held to the original story of her dad's innocent, all the way through the trial.
So, as quickly as we could, we set the dad free (the last jury holdout, interestingly, was a big Oprah fan). No one ever compensated for states abuse of the dad, and perhaps even worse, the states psychological abuse of his daughter. I know nothing of what became of them, but I hope they are all OK. I guess its lucky he did not get convicted, because while the Innocence project has freed a lot of people in Dallas, it sure is not going to work on this type of case with Janet Reno on its board.
Coming back to the YFZ case, I am worried that the state seems to be wanting to hold the kids for as long as possible, presumably to apply these methods to start getting kids to adopt the stories of abuse prosecutors want to hear. In some ways, the YFZ case is even more dangerous from a prosecutorial abuse standpoint. That is because there are a large number of people who think that strong religious beliefs of any type are, well, weird, and therefore are quicker to believe that other weird behavior may also be present.
When is Curtailing Freedom the Mature and Wise Choice?
.... Uh, never. Except of course at Colorado College, according to Amanda Udis-Kessler, Colorado College's Director of Institutional Research and Planning:
Social inequality is deeply grounded in a lack of respect-for women, people of color, lesbian and gay people, and others. When we choose to curtail our freedom to disrespect others in order to build a meaningful society, we have made a mature and wise choice-and one that college should help us learn.
The rest of the post is a roundup of the fallout over the punishment by the university of a parody of a campus feminist publication. Basically, the argument boils down to the feminists feeling "dissed" and arguing that being dissed is a sufficient reason to curtail speech if one is in a protected group. But remember this plea by the Colorado College feminists:
But please stop fabricating a story about humorless, offended feminists silencing men's free speech.
There are enough cases of this new theory of speech running around, that speech may be curtailed if someone in a protected group feels hurt or challenged by the speech, for real concern. It is the same theory at the heart of the kerfuffle in Canada over the human rights commission's attack on conservative magazines and bloggers, and the same theory in the recent New Mexico decision that a photographer cannot choose not to photograph gay marriages.
Obama's Campaign Against Individualism
I am becoming convinced that the frequent discussion of "diversity" among the leftish elite is really a mask for the fact that true diversity is in fact what they want to avoid. By defining diversity along the least meaningful lines - e.g. skin color and type of genitalia - they mask the fact that what leftish technocrats hate the most is variation in thought. After all, why have we been spending all that money on government schools all these years if it wasn't to generate such conformity?
Michael Young sees Obama's recent anti-flyover-country snobbery in the same light:
While Obama is indeed engaging in spin, there is a far more disturbing aspect to his interpretation. He misses the essential nature of modern culture. People don't end up focusing on issues like the right to bear arms, gay marriage, faith-based and family-based issues, and the like, because of bitterness against Washington or a sense that they can't effect change there. People focus on these issues because modern American political culture is, effectively, about subcultures, variety, pursuing parochial aims, and shaping one's identity and personal agendas independently of the state.
What Obama implicitly regards (in both his statements) as signs of disintegration, as reflections of popular frustration, are in fact examples of a thriving culture. Exceptions to this, of course, are anti-immigration sentiment and bigoted protectionism, both of which Obama conveniently dropped in his Indiana comments. Yet Obama's approach betrays a very suffocating vision of the state as the be-all and end-all of political-cultural behavior. Outside the confines of the state there is no salvation, only resentment. This is nonsense, but it also partly explains why Obama is so admired among educated liberals, who still view the state as the main medium of American providence.
If You Had Plans for the Property, You Should Have Bought It
Don't buy property in Paradise Valley (a suburb of Phoenix, near Scottsdale) if you actually expect the property to be fully your own. Even the smallest revisions of your home can require multiple appearances in front of the town council. By some odd statistical anomaly, property owners with friends in the city government seem to get these changes approved more readily than those without such influence.
A residents group is preparing to launch a voter referendum against the planned Ritz-Carlton, Paradise Valley Resort, claiming the project's residences are too dense....
Scottsdale-based Five Star Development wants to build a 225-room resort hotel, 15 1-acre home sites, 46 luxury detached homes and 100 patio homes on about 105 acres northwest of Scottsdale Road and Lincoln Drive.
This really isn't very high density, but this can be a very flaky town. One thing you have to realize is that I can't remember the last new home I saw go up in PV that was less than 5000 sq ft and 10,000+ sq ft is not at all unusual. This may be one of the few cases where a town is trying to keep out the Ritz Carlton because its customers will bring down the neighborhood, lol, but that is exactly what is at work here, in part.
Now I know you think I am exaggerating when I say the locals are worried about a Ritz-Carlton bringing down the neighborhood by attracting the unwashed, but here is the Zillow sales page for the area -- the vacant lot in the lower right is the property in question.
This piece of land has been empty and zoned for a resort for years. I know it was zoned for a resort long before this sale because I was stuck in traffic court all day and had nothing to stare at but the town zoning map (don't ever speed when crossing PV). The buyers purchased this land several years ago (I think from the Wrigley family) after ensuring the zoning was solid. If the town's residents wanted something else on the lot, they should have bought it themselves. But it is ever so much cheaper to instead use your political influence to tell other people what they can and can't do with their property.
Another thought: It is nearly an article of faith among libertarians that devolving government to the smallest possible unit enhances freedom. Well, here is an example where it does not. Not state or even city would pass a ballot resolution to change the zoning on one small piece of land. But it is entirely possible this could pass in a town of just a few thousand people.
On Presidential Power
While I find the torture recommendations in John Yoo's memos awful, they worry me less than the general assumptions embodied in them about presidential power. After all, the issue of allowable tortures is a narrow issue that can be dealt with efficiently through Congressional legislation, and is almost certainly something to be disavowed by the next administration.
Based on historical precedent, what is less likely to be disavowed by the next administration are the broader definitions of presidential power adopted by GWB. It is in this enhanced theory of presidential power where the real risk to the nation exists, and, unfortunately, there are all too few examples since George Washington's declining to run for office a third time of president's eschewing power. Already, folks on the left are crafting theories around using the imperial presidency to address their favored issues, such as the University of Colorado's proposal for implementing greenhouse gas controls by executive fiat.
Support Canadian Free Speech (Because These Same Tactics Are Being Tested in the US)
Richard "The Boy Named Sue" Warman has finally filed his statement of claim.
Canada's busiest litigant, serial "human rights" complainant and -- the guy Mark Steyn has called "Canada’s most sensitive man" -- Richard Warman is now suing his most vocal critics -- including me.
The suit names:
• Ezra Levant (famous for his stirring YouTube video of his confrontation with the Canadian Human Rights tribunal after he published the “Mohammed Cartoons”)
• FreeDominion.ca (Canada’s answer to FreeRepublic.com)
• Kate McMillan of SmallDeadAnimals.com
• Jonathan Kay of the National Post daily newspaper and its in-house blog
• and me, Kathy Shaidle of FiveFeetOfFury.com
Richard Warman used to work for the notorious Human Rights Commission, which runs the "kangaroo courts" who’ve charged Mark Steyn with "flagrant Islamophobia."
Richard Warman has brought almost half these cases single-handledly, getting websites he doesn’t like shut down, and making tens of thousands of tax free dollars in "compensation" out of web site owners who can’t afford to fight back or don’t even realize they can.
The province of British Columbia had to pass a special law to stop Richard Warman from suing libraries because they carried books he didn't approve of.
Richard Warman also wants to ban international websites he doesn’t like from being seen by Canadians.
The folks named in his new law suit are the very bloggers who have been most outspoken in their criticism of Warman’s methods.
She includes a paypal link to accept donations for their legal defense (or is it defence in Canadian?)
Freedom of Association
It is not at all uncommon that voters support restrictions on employers that they would never accept on themselves. For example, the government has made it pretty clear that normal rights to freedom of association don't really exist in the workplace -- numerous restrictions exist on who I can and cannot hire (or at least not-hire) in my business.
So it will be interesting when the government steps in and tells folks that a very basic freedom of association -- say, the ability to choose who one wants to share an apartment with -- does not really exist.
Ich Bin Ein Terrorist
Megan McArdle observes (via data from the ACLU) that over 900,000 Americans have their name on various terrorist watch lists. One could argue that this is perhaps four orders of magnitude off the actual number of active terrorists running around the country. How can such a travesty occur? Well, its the government, and McArdle points out, unsurprisingly, its an incentives issue.
Can some smart lawyer from the ACLU find a way to void this list on due process or maybe 14th amendment grounds?
For All Our Problems...
For all our problems in this country with protecting individual liberties, we at least still have pretty free reign in criticizing public figures. Unfortunately, the same cannot be said of Canada. I am not really that sympathetic to all that gets written on these Canadian web sites, but I support their right to say it.
Do not be too complacent, however. I am absolutely positive that there are many prominent people in this country who are scheming to bring exactly this sort of regime to the US. In fact, it is already being tested at various college campuses, where a newfound right "not to be offended" has begun to trump free speech, at least so far as offense is defined and felt by the ruling elite on campus.
Taking Preventative Action to Ensure No One Is Kindof Sortof Maybe Offended
If you have not seen it, the Indiana University-Purdue University in Indianapolis (IUPUI) reaction to a university employee reading a history book almost defies parody. As far as I can tell, someone got offended or maybe was concerned someone might be offended because the Klan was in the title (notwithstanding the fact that the book is apparently decidedly anti-Klan). This makes the whole "niggardly" controversy seem well-targeted in comparison.
However, I think Jacob Sullum misses the mark when he says:
To clarify, then, Sampson was not in trouble because of the book he chose to read. He was in trouble because of what he might have been thinking while reading the book.
In fact, this is still not correct. In fact, Sampson was in trouble because of what other people might think when they see him reading a book that has "KKK" somewhere in the title. Pathetic. Another lunatic step in trying to establish a "right not to be offended" at universities.
Gene Nichol: Not Quite the Martyr He Pretends to Be
Gene Nichol of William & Mary has resigned, pointing to the university's opposition of his First Amendment defense of a campus sex workers' show as a major reason for leaving. Which is all well and good -- I for one compliment him on supporting the speech rights of controversial people and performers.
However, before we go declaring Mr. Nichol a martyr for free speech, FIRE reminds us that less than six months ago Mr. Nichol spearheaded this far more comprehensive violation of free speech:
This fall, The College of William & Mary launched a Bias Incident Reporting System “to assist members of the William and Mary community—students, staff, and faculty—in bringing bias incidents to the College’s attention.” In its initial incarnation, the system was fraught with constitutional problems, from both free speech and due process standpoints. The system initially allowed for anonymous reporting, providing that “[a] person reporting online may report anonymously by leaving the personal information fields blank.” The definition of “bias” was overbroad and encompassed constitutionally protected expression: “A bias incident consists of harassment, intimidation, or other hostile behavior that is directed at a member of the William and Mary community because of that person’s race, sex (including pregnancy), age, color, disability, national or ethnic origin, political affiliation, religion, sexual orientation, or veteran status.” The homepage for the system even contained an explicit misstatement about the First Amendment, stating that the First Amendment did not protect “expressions of bias or hate aimed at individuals that violate the college’s statement of rights and responsibilities.”
...a group calling itself “Free America’s Alma Mater” published an advertisement in William & Mary’s student newspaper, The Flat Hat, skewering the new program. “Welcome to the new William & Mary’s Bias Reporting System, where W&M now invites you to shred the reputation of your neighbors…anonymously,” the ad read. “Prof gave you a bad grade? Upset at that fraternity brother who broke your heart? Did a colleague vote against you for tenure? Now you can get even!! Anonymously report anything that offends you to the William & Mary Thought Police at http://www.wm.edu/diversity/reportbias/.”
This earlier episode reveals that Mr. Nichol clearly does not believe that all speech is protected. In this light, the episode with the sex workers becomes one of taste rather than first amendment privileges, a mere quibble over where the censorship line (that Mr. Nichol believes should exist) is going to be drawn.
Which reminds me of the old joke: A man approaches a beautiful woman at a party, and says "Would you sleep with me for a million dollars?" and she says, "Yes." He then asks "would you sleep with me for $10?" and she screams "what kind of girl do you think I am?" He retorts "We already established that. Now we are just haggling over price."
Equal Protection? Bah!
L.A. councilman Dennis Zine is urging a proposal in the wake of the pop star’s latest psychiatric emergency that would implement a 20-yard “personal safety zone” around celebrities after Spears’ ambulance had to be surrounded by police cars and helicopters late last month to prevent the paparazzi from snapping photos of the singer en route to the hospital. ...
The tentatively termed “Britney Law” would have the right to confiscate all profits from any photograph taken without signed consent within the bubble of safety around any celebrity.
I'm Unclear Here
I would prefer not to see warrantless searches without judicial oversight be legal under any circumstances, so I am happy there are roadblocks in the FISA extension. What I am unclear about, though, are the exact issues surrounding telecom immunity from lawsuits which is apparently what has the thing held up. By no means do I wish to give telecoms some blanket immunity from the consequences of their handling of private data. However, it seems odd to want to hold them liable for complying with what would be, under the new law, a legal government order. Or, is the immunity issue all retroactive to past compliance with government orders when it wasn't so clear if the government orders were legal?
I must say I have some sympathy for businesses, particularly those that are highly regulated as telecom, who bow under government pressure and then get sued for doing so. For example, as I wrote before, I am required by Arizona law to take actions that the Feds consider illegal. Its a frustrating place to be.
Anyone who can provide clarity on the issues here (not the FISA issues or wiretapping issues but narrowly on the immunity issue) is encouraged to do so.
Paybacks are Hell, John McCain
I really try not to be vindictive, but I cannot tell you how happy this story, rife with irony, makes me:
John McCain has a campaign finance problem. When his campaign was down and out, he agreed to take public funding for the primaries. Public funding comes with spending limits overall and by state. Also, a candidate who accepts funding cannot raise money from private sources. Now that it is possible he will be the nominee, McCain will want to be free of those fundraising and spending limits, but he cannot withdraw from the public system. Or perhaps he could but only with the approval of the FEC, which is not operating because of a struggle over its nominees. The FEC does not now have a quorum to meet and regulate. (The lack of a quorum was caused by Barack Obama’s hold on a nominee to the FEC, but never mind).
McCain will want out of the public system because he is probably close to hitting the limit, and he could not get more money for his campaign until he received public funding after the GOP convention during the summer. His “dark period” would thus be a period without campaign funding that would run from spring until after the GOP convention. During that “dark period” Obama or Hillary, both of whom have not accepted public funding for the primaries, would be able to continue spending money; some of that spending would be directed against McCain after Obama or Hillary have secured their party’s nomination.
HAHAHAHAHA. OMG that is great. Read it and weep, Mr. McCain-Feingold. McCain has argued for years that money and speech are not the same thing, and that limiting campaign money is not equivalent to limiting speech. He can comfort himself with that thought as he goes silent for three or four [update: seven?] months while his opposition yaps away.
Tom Kirkendall has stayed on the case of Enron Task Force prosecutorial abuse even while most of the world has turned away, apparently believing that "mission accomplished" (ie putting Skilling in jail) justifies about any set of shady tactics.
But the evidence continues to grow that Skilling did not get a fair trial. We know that the task force bent over backwards to pressure exculpatory witnesses from testifying for Skilling, but now we find that prosecutors may have hidden a lot of exculpatory evidence from the defense.
Meanwhile, continuing to fly under the mainstream media's radar screen is the growing scandal relating to the Department of Justice's failure to turnover potentially exculpatory evidence to the defense teams in two major Enron-related criminal prosecutions (see previous posts here and here). The DOJ has a long legacy of misconduct in the Enron-related criminal cases that is mirrored by the mainstream media's myopia in ignoring it (see here, here, here, here and here).
This motion filed recently in the Enron-related Nigerian Barge criminal case describes the DOJ's non-disclosure of hundreds of pages of notes of FBI and DOJ interviews of Andrew Fastow, the former Enron CFO who was a key prosecution witness in the Lay-Skilling trial and a key figure in the Nigerian Barge trial.
Enron Task Force prosecutors withheld the notes of the Fastow interviews from the defense teams prior to the trials in the Lay-Skilling and Nigerian Barge cases. If the Fastow notes turn out to reflect that prosecutors withheld exculpatory evidence or induced Fastow to change his story over time, then that would be strong grounds for reversal of Skilling's conviction and dismissal of the remaining charges against the Merrill Lynch bankers in the Nigerian Barge case.
The post goes on to describe pretty substantial violations of FBI rules in handling interviews with Fastow, including destruction of some of the Form 302's summarizing early interviews. The defense hypothesis is that Fastow changed his story over time, particularly vis a vis Skilling's involvement, under pressure from the task force and the 302's were destroyed and modified to hide this fact from the defense, and ultimately the jury.
Getting the Bureaucrat's Permission to Speak
Ezra Levant has posted YouTube videos of his interrogation by an oily little Canadian bureaucrat called "a human rights officer." He has done it in a series of post, so go to his site and keep scrolling. Apparently, in Canada, free speech is not a human right but "freedom from criticism" is, at least for certain politically connected groups (threatening violence at the drop of a hat also seems to help gain one this "freedom from criticism" right. Levant is being hauled in by the government for publication of those Danish cartoons that barely register at 0.1 on a criticism meter that goes to 10.
Officer McGovern said "you're entitled to your opinions, that's for sure."
Well, actually, I'm not, am I? That's the reason I was sitting there. I don't have the right to my opinions, unless she says I do.
For all of you who left the US for Canada for more freedom from Bush and the Iraq war, have at it. Because Bush will be gone and we will be out of Iraq long before Canada (as well as Europe) catch up to the US in terms of its protection of [most] individual rights, like free speech.
via Maggies Farm
Update, from Mark Steyn:
Ms McGovern, a blandly unexceptional bureaucrat, is a classic example of the syndrome. No "vulnerable" Canadian Muslim has been attacked over the cartoons, but the cartoonists had to go into hiding, and a gang of Muslim youths turned up at their children's grade schools, and Muslim rioters around the world threatened death to anyone who published them, and even managed to kill a few folks who had nothing to do with them. Nonetheless, upon receiving a complaint from a Saudi imam trained at an explicitly infidelophobic academy and who's publicly called for the introduction of sharia in Canada, Shirlene McGovern decides that the purely hypothetical backlash to Muslims takes precedence over any actual backlash against anybody else.
Good Job Sheriff Joe!
Frequent readers will know that I don't think much of our County Sheriff Joe Arpaio. Sheriff Joe gains a ton of PR for himself as the "toughest sheriff in America" and relishes in making jail conditions as miserable as possible. Recognize that this is the jail that holds many people after arrest but before conviction.
Now on to the figure mentioned in the Dickerson piece of 2,150 "prison condition" lawsuits since 2004. Anyone with two licks of sense can go online at pacer.psc.uscourts.gov, or dockets.justia.com, enter "Arpaio" into the federal court docket, then count the lawsuits that name "prison conditions" as the cause. Count back to 2004, and as of mid-December, that number was more than 2,150.
The same search for the top jail custodians in L.A., New York, Chicago, and Houston nets a total of only 43 "prison condition" lawsuits.
Remember, those 2,150 lawsuits against Arpaio are only in federal court. There are hundreds more listed online with the Maricopa County Superior Court, at superiorcourt.maricopa.gov/docket/civilcourtcases/.....
"For the period January 1, 1993, to [November 29, 2007], the county has paid $30,039,928.75 on Sheriff Department General Liability claims," state the docs. "This figure includes all payments, attorney fees, other litigation expenses, settlements, payments on verdicts, etc."
Additionally, New Times asked Crowley how much the lawsuit insurance policy that also covers the sheriff has cost taxpayers. Crowley croaked, "The county has paid for General Liability coverage for the period 3-1-95 to 3-1-08 total premiums of $11,345,609.50."
Keep in mind that this liability coverage figure is high, in part, because of all those lawsuit payoffs to relatives of dead inmates.
From 1995 to 1998, the county paid $328,894 a year for an insurance policy with a $1 million deductible.
Today, Maricopa County pays a yearly premium of $1.2 million for outside insurance with a $5 million deductible. For any lawsuit that costs $5 million or less, the county foots the entire bill. It's the best policy the county can buy because of Arpaio's terrible track record.
Those who oppose more open immigration generally have three arguments, to which I have varying levels of sympathy:
- It's illegal! Illegal immigration violates the rule of law. I have always thought this argument weak and circular. If the only problem is that immigrants are violating the law, then the law can be changed and its now all legal. Since this is not the proposed solution, presumably there are other factors that make more open immigration bad beyond just the fact of its illegality. I am positive I could come up with hundreds of bad laws that if I asked a conservative, "should I aggressively enforce this bad law or should I change it," the answer would be the latter.
- We will be corrupting our culture. I am never fully sure what these arguments mean, and they always seem to carry a touch of racism, even if that is not what is intended. So I will rewrite this complaint in a way I find more compelling: "We are worried that in the name of liberty and freedom, we will admit immigrants who, because of their background and culture, will vote against liberty and freedom when they join our democracy." I am somewhat sympathetic to this fear, though I think the horse may already be out of the barn on this one. Our current US citizens already seem quite able to vote for restrictions on liberties without any outside help. If I were really worried about this, I might wall off Canada before Mexico.
- Open Immigration or Welfare State: Pick One. I find this the most compelling argument for immigration restrictions. Historically, immigration has been about taking a risk to make a better life. I have been reading a biography of Andrew Carnegie, which describes the real risks his family took, and knew they were taking, in coming to America. But in America today, we aren't comfortable letting people bear the full risk of their failure. We insist that the government step in with our tax money and provide people a soft landing for their bad decisions (see: Mortgage bailout) and even provide them with a minimum income that in many cases dwarfs what they were making in their home country.
My problem with conservatives is that they are too fast to yell "game over" after making these arguments, particularly the third. There are some very real reasons why conservatives, in particular, should not so easily give up on finding a way to allow more free immigration. Consider these questions:
- Should the US government have the right and the power to dictate who I can and cannot hire to work for me in my business?
- Should the US government have the right and the power to dictate who can and cannot take up residence on my property (say as tenants)?
My guess is that many conservatives would answer both these questions in the negative, but in reality this is what citizenship has become: A government license to work and live in the boundaries of this nation.
I can't accept that. As I wrote here:
The individual rights we hold dear are our rights as human beings, NOT as citizens. They flow from our very existence, not from our government. As human beings, we have the right to assemble with whomever we want and to speak our minds. We have the right to live free of force or physical coercion from other men. We have the right to make mutually beneficial arrangements with other men, arrangements that might involve exchanging goods, purchasing shelter, or paying another man an agreed upon rate for his work. We have these rights and more in nature, and have therefore chosen to form governments not to be the source of these rights (for they already existed in advance of governments) but to provide protection of these rights against other men who might try to violate these rights through force or fraud....
These rights of speech and assembly and commerce and property shouldn't, therefore, be contingent on "citizenship". I should be able, equally, to contract for service from David in New Jersey or Lars in Sweden. David or Lars, who are equally human beings, have the equal right to buy my property, if we can agree to terms. If he wants to get away from cold winters in Sweden, Lars can contract with a private airline to fly here, contract with another person to rent an apartment or buy housing, contract with a third person to provide his services in exchange for wages. But Lars can't do all these things today, and is excluded from these transactions just because he was born over some geographic line? To say that Lars or any other "foreign" resident has less of a right to engage in these decisions, behaviors, and transactions than a person born in the US is to imply that the US government is somehow the source of the right to pursue these activities, WHICH IT IS NOT...
I can accept that there can be some minimum residence requirements to vote in elections and perform certain government duties, but again these are functions associated with this artificial construct called "government". There should not be, nor is there any particular philosophical basis for, limiting the rights of association, speech, or commerce based on residency or citizenship, since these rights pre-date the government and the formation of borders.
Citizenships are club memberships you happen to be born with. Some clubs, like the Norway club, have truly awesome benefits. Others, like the Malawi club, offer next to none. Membership in each club is kept limited by club members, who understandably worry about the drain on resources that new members might represent. Wishing the U.S. would extend more memberships in 2008 isn’t going to get you very far.
Conceptually, for whatever reason, most of us are in a place where we think labor market access and citizenships ought to be bundled. A Malawian can’t come work here, we think, without the promise of a club membership, which is nearly impossible to get. This is an incredibly damaging assumption for two reasons: (1) memberships are essentially fixed in wealthy democratic societies (2) uneven labor market access is a major cause of global inequality. Decoupling the two leads to massive gains, as we see in Singapore, without the need to up memberships.
Here’s another way to think about it: Clubs have positive duties toward their members, including those of the welfare state. But the negative duty not to harm outsiders exists prior to clubs, and denying people the ability to cooperate with one another violates their rights in a very basic way. Our current policy is one of coercively preventing cooperation. In saying “we can’t let people into this country unless we confer upon them all the rights and duties of citizenship,” you are saying that we need to violate their right to move freely and cooperate unless we can give them welfare benefits. But that’s backwards.
Over the last week, I have heard about 20 commercials from our local prosecutor's office informing me that there is a web site I can visit with pictures of drunk drivers. Uh, why? Is this supposed to somehow help me, driving down a street at night, such that I might just recognize the oncoming driver from 300 yards away, despite his headlights, as being someone I saw on the web site?
Actually, no. The prosecutor believes that the criminal justice system does not impose harsh enough penalties, so he is using his office and public funds to add an additional penalty not specified by the court or the legislature: Public shaming. I was happy to see that Reason picked up this issue today:
Taking Thomas at his word, he is imposing extrajudicial punishment, based on his unilateral conclusion that the penalties prescribed by law for DUI offenses provide an inadequate deterrent
In addition, Mr. Thomas is very likely emulating the example of our self-aggrandizing county Sheriff, Joe Arpaio. Sheriff Joe has built a PR machine for himself at public expense, in large part through extra-legal get-tough-on-criminals show-campaigns like this one.
Get Your Laws off My Body
For a while now, I have been fascinated by the contrast between the Left's position on abortion and its position on universal health care.
In the abortion debate, the Left was careful to try to establish a broader principal than just support for abortion. Their position was (and still is) that the government should not interfere in a woman's decision-making about her own body. Cool. That's a general principal that any libertarian could love (Note that there are many libertarians who accept this principal but argue that abortion is the one exception to it if one considers the fetus an independent life.) The National Organization for Women have cleverly embodied this general principal in the T-Shirt below:
So now we come to universal health care. And most every leftish plan has the government paying all of our health care bills. Well I can absolutely assure you now, both via common sense and observance of practices in European countries with socialized medicine, that a couple of things follow from universal coverage:
- The government will be the final decision maker for what care each person will or will not get, how procedures will be performed, and what drugs will be authorized. If they did not take on these decisions, the system would simply implode financially. The government cannot afford to pay the bills while allowing individuals to still make their own choices about their care.
- The government will have a strong financial incentive to change people's individual lifestyles. What they eat, how they exercise, their sexual practices, etc. all have a great influence on future health care costs. Already, we see countries like Britain starting to meddle in these lifestyle choices in the name of reducing health costs. It is why I have termed the health care Trojan horse for fascism.
I don't think even universal coverage supporters would refute these two points except to say maybe "yes, the government will do those things but we promise to be gentle." Here is Jon Edwards:
“I’m mandating healthcare for every man woman and child in America and that’s the only way to have real universal healthcare.”
“Evertime you go into contact with the helathcare system or the govenment you will be signed up.”
During a press avail following the event Edwards reiterated his mandate:
“Basically every time they come into contact with either the healthcare system or the government, whether it’s payment of taxes, school, going to the library, whatever it is they will be signed up.”
When asked by a reporter if an individual decided they didn’t want healthcare Edwards quickly responded, “You don’t get that choice.“
So given that, how does the left hold universal coverage in their head at the same time as they argue that "a woman should make decisions for her own body"? How can the NOW website sell "Keep your laws off my body" T-shirts while promoting universal coverage laws on their home page? How do you reconcile "pro-choice" with Edward's "you don't get that choice."
I am really interested in someone taking a shot at this. And don't tell me that the difference is that in universal coverage, the argument is just over what the government will and won't pay for. I agree not having the government pay for something is not the same as banning it when there are plenty of private alternatives. But in the systems being advocated by Democratic candidates like Edwards, there will be no "other system" -- the government will be the monopoly provider, or at least the monopoly rules-setter. It will be what the government wants to give you or nothing. And there won't even necessarily be another country to which one can run away to get her procedure, because America is that country today where victims of socialist medicine escape to get needed and timely care.
A Statist View of Rights
In the statist's world, your rights are whatever the state says they are. You can really see this concept at work in this breathtakingly bad Canadian decision reported by Eugene Volokh:
Richard Warman, a lawyer who worked as an investigatory for the Canadian Human Rights Commission, often filed complaints against "hate speech" sites — complaints that were generally upheld under Canadian speech restrictions. Fromm, a defender of various anti-Semites and Holocaust denials, has been publicly condemning Warman for, among other things, being "an enemy of free speech." Warman sued, claiming that these condemnations are defamatory.
Friday, the Ontario Superior Court held for Warman — chiefly on the grounds that because Warman's claims were accepted by the legal system, they couldn't accurately be called an attack on free speech.
This case leaves one's head just spinning with ironies, not the least because it is a great example of how libel law as practiced in many western countries outside the US is itself a great enemy of free speech. The logic chain used by the judge in this case should make every American appreciative of our Constitutional system and our view of rights as independent of (and if fact requiring protection from) the state:
 The implication, as well as the clear of meaning of the words ["an enemy of free speech" and "escalated the war on free speech"], is that the plaintiff is doing something wrong. The comment "Well, see your tax dollars at work" also implies that Mr. Warman misused public funds for this "war on free speech".
 The plaintiff was using legal means to complain of speech that he alleged was "hate" speech.
 The evidence was that Mr. Warman was successful in both the complaint and a libel action which he instituted.
 Freedom of expression is not a right that has no boundaries. These parameters are outlined in various legislative directives and jurisprudence. I find Mr. Fromm has exceeded these. This posting is defamatory.
The implication is that there are no fundamental individual rights. Rights are defined instead by the state and are whatever is reflected in current law. In this decision, but fortunately not in the US, the law by definition can't be wrong, so taking advantage of a law, in this case to silence various groups, is by definition not only OK, but beyond the ability of anyone to legally criticize. There is much more, all depressing. Here is one example of a statement that was ruled defamatory:
Thank you very much, Jason. So, for posting an opinion, the same sort of opinion that might have appeared in editorial pages in newspapers across this country, Jason and the Northern Alliance, his site has come under attack and people who are just ordinary Canadians find themselves in front of the courts for nothing more serious than expressing their opinion. This is being done with taxpayers' money. I find that reprehensible.
OK, so here is my opinion: Not only is Richard Warman an enemy of free speech, but the Canadian legislature that passed this hate-speech law is an enemy of free speech and the Canadian Supreme Court is an enemy of free speech. Good enough for you hosers?
I guess I will now have to skip my ski trip to Whistler this year, to avoid arrest at the border.
Great First Ammendment Ruling
From FIRE, comes this really encouraging ruling:
Earlier this month, U.S. Magistrate Judge Wayne Brazil partially granted plaintiffs’ motion for a preliminary injunction in the San Francisco State University (SFSU) speech codes litigation. Yesterday, Judge Brazil issued his written opinion on the motion, and in so doing struck a devastating blow against speech codes at universities in California and hopefully—...
Judge Brazil enjoined the university from enforcing both the civility requirement and a related provision allowing student organizations to be punished collectively if any group members engage in behavior “inconsistent with SF State goals, principles, and policies.” Judge Brazil did not enjoin the university from enforcing its prohibition on “[c]onduct that threatens or endangers the health or safety of any person within or related to the University community, including physical abuse, threats, intimidation, harassment, or sexual misconduct.” However, he emphasized that the provision must be narrowly construed to only prohibit that “intimidation” or “harassment” which actually endangers someone’s health or safety, and explicitly directed the university that the policy “may be invoked only as it has been construed in this opinion.” This limiting construction prohibits the university from interpreting that provision broadly to punish constitutionally protected speech (since the vast majority of speech that actually endangers someone’s health or safety is not constitutionally protected).
Here are a few excepts from the Judge's decision:
It is important to emphasize here that it is controversial expression that it is the First Amendment’s highest duty to protect. By political definition, popular views need no protection. It is unpopular notions that are in the greatest peril — and it was primarily to protect their expression that the First Amendment was adopted. The Framers of our Constitution believed that a democracy could remain healthy over time only if its citizens felt free both to invent new ideas and to vent thoughts and feelings that were thoroughly out of fashion. Fashion, it was understood, is an agent of repression — and repression is an agent [of] democracy’s death....There also is an emotional dimension to the effectiveness of communication. Speakers, especially speakers on significant or controversial issues, often want their audience to understand how passionately they feel about their subject or message. For many speakers on religious or political subjects, for example, having their audience perceive and understand their passion, their intensity of feeling, can be the single most important aspect of an expressive act. And for many people, what matters most about a particular instance of communication is whether it inspires emotions in the audience, i.e., whether it has the emotional power to move the audience to action or to a different level of interest in or commitment to an idea or cause. For such people, the effectiveness of communication is measured by its emotional impact, by the intensity of the resonance it creates.How is all this relevant to our review of the University’s civility requirement? Civility connotes calmness, control, and deference or responsiveness to the circumstances, ideas, and feelings of others. […] Given these common understandings, a regulation that mandates civility easily could be understood as permitting only those forms of interaction that produce as little friction as possible, forms that are thoroughly lubricated by restraint, moderation, respect, social convention, and reason. The First Amendment difficulty with this kind of mandate should be obvious: the requirement “to be civil to one another” and the directive to eschew behaviors that are not consistent with “good citizenship” reasonably can be understood as prohibiting the kind of communication that it is necessary to use to convey the full emotional power with which a speaker embraces her ideas or the intensity and richness of the feelings that attach her to her cause. Similarly, mandating civility could deprive speakers of the tools they most need to connect emotionally with their audience, to move their audience to share their passion.In sum, there is a substantial risk that the civility requirement will inhibit or deter use of the forms and means of communication that, to many speakers in circumstances of the greatest First Amendment sensitivity, will be the most valued and the most effective.
Wow! This is fantastic, and aimed right at University speech codes that try to ban any speech that offends someone [a standard that tends to be enforced unevenly, typically entailing prosecuting only those students who offend people who are like-minded with the school's faculty and administration.
I Honestly Don't Understand Where We Are on Foreign Policy
I don't even pretend to be very knowledgeable about foreign policy so I seldom write about it. But the dialog around Turkey honestly has me confused. Nancy Pelosi argues that we need to call out Turkey right now in order "to restore America's moral authority around the world." So I get the moral dimension of calling out bad people for bad actions. But it was my understanding that this was what Democrats found facile in Bush's foreign policy, that Bush called out countries like North Korea and pre-invasion Iraq for being part of an axis of evil. Is it then Pelosi's position that morality in foreign policy consists of pointing out evil actions committed by our allies eighty years ago, but avoiding calling out current evil actions by our enemies?
I understand the logic behind reporter shield laws. However, I can't support the establishment of different classes of citizenship with different rights, particularly when these rights are tied to certain professions. Either everyone should be able to ignore a subpoena, or nobody should be able to do so. My individual rights should not be subject to a hiring decision by the NY Times.
For those who believe this is essential to the functioning of the press, it is left as an exercise to explain how the press has survived without it for over 200 years.
It is worth noting that this is effectively an extension of what Congress began with McCain-Feingold. In that law, Congress gave members of the press unique speech rights within 60 days of an election that the rest of us do not have. The press tries to piously portray itself as a special entity, but they sure do look like any other special interest group lobbying Congress for special privileges.
A Thought On Defending the Right of Commerce
The U.S. Supreme Court declined Monday to hear a challenge to Alabama's ban on the sale of sex toys, ending a nine-year legal battle and sending a warning to store owners to clean off their shelves.
An adult-store owner had asked the justices to throw out the law as an unconstitutional intrusion into the privacy of the bedroom. But the Supreme Court declined to hear the appeal, leaving intact a lower court ruling that upheld the law.
Sherri Williams, owner of Pleasures stores in Huntsville and Decatur, said she was disappointed, but plans to sue again on First Amendment free speech grounds.
"My motto has been they are going to have to pry this vibrator from my cold, dead hand. I refuse to give up," she said.
The appeals court made this distinction:
Williams had asked the Supreme Court to review a decision by the 11th U.S. Circuit Court of Appeals that found Alabama's law was not affected by a U.S. Supreme Court decision knocking down Texas' sodomy law.
The Texas sodomy law involved private conduct, while the Alabama law regulated commercial activity, the appeals court judges said. Public morality was an insufficient government interest in the Texas case but was sufficient in the Alabama case, they said.
Now, I don't in any way shape or form see any differences between "private conduct" and "commerce." How in the hell can sexual decisions between consenting adults be any different, legally, than commercial transactions between consenting adults. It is a distinction that socialists have been succesful in introducing in the US, and to which many now cling.
The interesting part is to consider the folks who are fighting the sex toy ban. My wild guess, which may be off the mark, is that this is not a bunch of Christian conservative Republicans. My guess is that these folks are probably a bit left of center, and further, that many of them accept and support the notion that the government has every right to regulate dirty old commerce, but no right to regulate one's "private life." Well, maybe now it will be clearer, at least to some, how dangerous this distinction is. As a parting note, it has been two years now since we saw the irony of left-leaning members of the Supreme Court overrule state laws allowing medical marijuana use based on the commerce clause.
Um, It's That Free Speech Thingie
Via Kevin Drum, Art Levine goes covert and digs up the evil doings at a seminar for corporate executives on avoiding unionization. Why corporate executives would possibly want to avoid something so sensible as unions is beyond me. But Mr. Levine uncovers some really nefarious doings:
What if we felt like saying a lot of anti-union stuff to our workers? Lotito introduced a segment called "You Can Say It." Could we tell our workers, for instance, that a union had held strike at a nearby facility only to find that all the strikers had been replaced — and that the same could happen to the employees here? Sure, said Lotito. "It's lawful." He added, "What happens if this statement is a lie? They didn't have another strike, there were no replacements? It's still lawful: The labor board doesn't really care if people are lying."
Whoa! You mean that, in this country, we can, you know, say stuff and its not the government's job to check the veracity? How have we gotten to such a low point?
Update: I have been to several of these course in my Fortune 50 manager days, and the vast majority of the advice is "treat workers well and communicate a lot." I remember specifically being told not to lie because such tactics tend to backfire.
As far as my feelings on unions themselves, I would have zero problem with workers organizing of their own free will if it were not for the fact that the government grants unions special rights and privileges that other private organizations do not have.
When Did We Start to Fear Speech?
I feel like it is time for one of those unpopular libertarian rants that piss everyone off. As with the last time this issue came up, I just don't understand what we fear so much letting Iranian dictator Amadinejad speak on American soil. I am absolutely all for letting people put themselves on the record in the clearest possible way. McQ over at Q&O is a smart guy I often agree with, but his core assumption seems to be that an invitation from Columbia University somehow confers some legitimacy on an otherwise egregious world leader. How? I am not sure the Columbia name even confers much legitimacy on its faculty. The only thing the decision communicates to me is that Columbia, the university that didn't allow presentation of the Mohammad cartoons and that allows speakers to be manhandled off the stage, is deeply confused about speech issues on campus.
Information is always useful. Would I have allowed Hitler to speak in the US in the 1930's? Hell yes! I wish he had gone on a 20-city speaking tour. Hitler couldn't help but telegraph his true intentions every time he spoke. Hell, he wrote it all down in a book if people would have paid attention. But what if he didn't? What if he convinced all America he was peaceful? Even then it would have been useful. Intelligent media (if there are any left) could then compare and contrast what he said at home vs. what he said in the US, much like a few folks do with Muslim clerics, comparing their English and Arabic speeches. Further, folks would have immediately seen Hitler was lying in September of 1939, and, knowing Americans, they would have been more pissed off at him for being lied to. Further, it would be fabulous to have quotes form Mussolini, touring eastern US cities, praising the New Deal and the NRA, much of which was modeled on his program in Italy.
I have a question for the Columbia crowd, since Holocaust deniers are welcome, would you allow a speaker in favor of a return to black slavery? I hope not. Well, that's how I feel about Holocaust deniers.
Absolutely I would. If there was a prominent person who advocated the return to black slavery, I would want that person on the record in public. I would love to listen to see what kind of supporters he thought he had, and, perhaps more importantly, to see who reacted favorably to him. You have to pull these guys up into the sunlight and show the world how distasteful they are.
During the 1930s, "one of the things we really lacked in this country was sufficient contact with Nazis to realize what they are up to," said Harvey Silverglate, a prominent civil rights attorney who has sharply criticized higher education for failing to support free speech on campus. The notion "that you're going to take really awful people and not listen to them is really suicidal for any society."
Some good news today in the annals of prosecutorial misconduct and overzealousness: The Governor of Florida has pardoned Richard Paey, the man who was sent to prison for 25 years for trying to do something about his pain.
Richard Paey, a victim in the war on drugs, was granted a full, immediate and unexpected pardon by Gov. Charlie Crist and the Cabinet Thursday morning, allowing him to get out of prison and be reunited with his family later in the day.
Paey, 49, has spent the last 3 ½ years in prison after he was convicted on drug trafficking charges in a 1997 arrest for filling out fake prescriptions and possessing about 700 Percocet narcotic painkillers. He was to be imprisoned for 25 years.
The catch: Everyone, including judges, acknowledged the traffic accident victim was using the pills for debilitating pain. Since his incarceration, prison doctors have hooked him up to a morphine drip, which delivers more pain medication daily than he was convicted of trafficking.
Good. I am cautiously optimistic that after the Duke non-rape case, there is increasing focus on the issue of prosecutorial over-zealousness. Along these same lines, the ACLU is coming to the defense of Larry Craig. As is the plight of the Jena 6.
I have argued for a while that American support for real free speech seems to be languishing, and we seem to be more and more comfortable with making exceptions to the first amendment for "hate speech" and speech that offends people, and speech that costs money during an election. And now this, via Q&O, from a Rasmussen poll:
A large segment of the public would like to extend the concept of the Fairness Doctrine to the Internet as well. Thirty-four percent (34%) believe the government should “require web sites that offer political commentary to present opposing viewpoints.” Fifty percent (50%) are opposed.
They could only dredge up a bare majority of 50% to oppose this?
Don't Offend Us in Arizona
I have written a number of times about universities establishing a "right not to be offended" that supersedes free speech. This is a bit old, but apparently our confused state of Arizona has done the same thing:
The Arizona Senate has unanimously passed a resolution banning the "Bush Lied, They Died" t-shirts from sale in the state. The shirts include the names of hundreds of U.S. troops killed in Iraq in fine print, which legislators apparently find unseemly, and which they say makes the shirts commercial speech, instead of political speech, which the Supreme Court says enjoys more First Amendment protection.
This theory is absurd. Printing it on a T-Shirt and selling it for money no more converts this into commercial speech than printing Maureen Dowd's column on paper and selling it for money makes her editorials unprotected. The law makes it
punishable by up to a year in jail to use the names of deceased soldiers to help sell goods. The measure, SB 1014, also would let families go to court to stop the sales and collect damages
Here is a question - about every person in Phoenix, including me, has bought some sort of Pat Tillman shirt or jersey, to memorialize our local football player killed in action. Are those now illegal? The AZ Republic makes money selling papers in Phoenix that contain the names of deceased soldiers all the time -- are they going to jail? Does this mean that no one can sell Glen Miller albums in Arizona? And if it is determined to be OK to sell shirts memorializing soldiers or reporting on their deaths but not to criticize the president, well, that is pretty much selective enforcement based on political views, is it not.
As an aside, I have never really like the Bush Lied meme, though perhaps not for the reasons his supporters hate it. I don't like it because it's purpose seems to be to relieve every other politician of both parties from any responsibility for the war; ie, since they were all victims of lies, they bear no responsibility for their actions (or their votes). I don't buy that.
Update: Volokh has a much more complete analysis here, which include exceptions to the law. It appears that at least the Arizona Republic and Glen Miller are safe, but Pat Tillman jerseys still seem to be in the gray zone. However, interestingly, the law seems to exempt many forms of commercial speech but ban political use of the names. Wither the first amendment.
Due Process, Even for Accountants
I know that no one seems to really give a crap about due process for accountants nowadays, perhaps an over-swing of the pendulum from the days when no one really cared much about prosecuting white collar crime, but some of the Justice Departments prosecutorial abuses are finally coming back to haunt them.
The Justice Department’s case against 16 former KPMG partners for tax evasion continues to unravel, with prosecutors themselves conceding late last week that federal Judge Lewis Kaplan has little choice but to dismiss the charges against most of the defendants.
Judge Kaplan ruled last year that Justice had violated the defendants’ Constitutional rights by pressuring KPMG not to pay their legal fees. He is now considering a defense motion to dismiss. Prosecutors continue to protest the judge’s ruling but on Friday they admitted in a court filing that dismissal is the only remedy for the rights violations. The more honorable route would have been for prosecutors to acknowledge their mistakes and dismiss the charges themselves.
The truth is that this tax shelter case should never have been brought. Both KPMG and its partners believed the shelters they marketed were legal, and no tax court had ruled against the shelters before Justice brought its criminal charges. Then prosecutors used the threat of criminal indictment against all of KPMG to extort an admission of guilt from the firm and force it to stop paying the legal bills of individual partners.
All Your DNA Are Belong To Us
Boy, I totally missed this, and I live in Arizona. Not until Reason highlighted the case was it even brought to my attention. Apparently, Arizona is going to collect DNA samples from many of the people they arrest:
State lawmakers voted Tuesday to expand the state's DNA database dramatically by requiring all people arrested for certain crimes to provide DNA samples for state records whether they are convicted or not.
Conservative and liberal lawmakers alike raised alarms that the measure would violate the civil liberties of people never convicted of a crime and set a dangerous precedent for government collection of sensitive genetic information.
"I think it is egregious," Rep. Eddie Farnsworth, a conservative Republican from Gilbert and chairman of the House Judiciary Committee, said on the House floor Tuesday. "It tramples on the liberties and freedom of the people."
Apparently, the change is sneaking through buried in a budget bill. And there are people our there who still trust the government?
A Court Finally Challenges Indefinite Detainment at the President's Whim
Yeah, I know, security hawks will be lamenting the decision as an open door to terrorists, yada yada, but I think this is refreshing to see at least someone in the judiciary standing up for individual rights. Orin Kerr reports that the Fourth Circuit has rejected the indefinite detainment of Ali A-Marri of Qatar.
The court takes a very narrow view of the category "enemy combatant"; if I read the court correctly, it sees the category as basically limited to the catgeory of military opponent in battle rather than Al-Qaeda terrorist
Fine with me. The decision reads in part:
[A]bsent suspension of the writ of habeas corpus or declaration of martial law, the Constitution simply does not provide the President the power to exercise military authority over civilians within the United States. The President cannot eliminate constitutional protections with the stroke of a pen by proclaiming a civilian, even a criminal civilian, an enemy combatant subject to indefinite military detention. Put simply, the Constitution does not allow the President to order the military to seize civilians residing within the United States and detain them indefinitely without criminal process, and this is so even if he calls them “enemy combatants.”
To sanction such presidential authority to order the military to seize and indefinitely detain civilians, even if the President calls them “enemy combatants,” would have disastrous consequences for the Constitution — and the country. For a court to uphold a claim to such extraordinary power would do more than render lifeless the Suspension Clause, the Due Process Clause, and the rights to criminal process in the Fourth, Fifth, Sixth, and Eighth Amendments; it would effectively undermine all of the freedoms guaranteed by the Constitution. It is that power — were a court to recognize it — that could lead all our laws “to go unexecuted, and the government itself to go to pieces.” We refuse to recognize a claim to power that would so alter the constitutional foundations of our Republic.
I couldn't have said it better myself. Even if the President really, really needs this power to make us all safe (and I don't really think he does), that fact does not make the action Constitutional. If the government needs a new power to manage suspected terrorists on US soil, then they are going to have to create it through normal legislative and Constitutional processes.
Kerr projects that this decision is ice in the desert, and will soon be overturned. Never-the-less, I am glad someone is taking this position. Maybe it will catch on.
Are Republican Immigration Hawks Socialist?
But he received his biggest applause for blasting the bipartisan plan for immigration reform, which he called unworkable. "We are a nation of compassion, a nation of immigrants," he said. "But this is our home . . . and we get to decide who comes into our home."
Isn't this an essentially socialist view of property, that the whole country is essentially owned by all of us collectively and it is our government's responsibility to administer access to this community property?
I am just completing a course on the history of Rome from the Teaching Company (whose products have been universally excellent in my experience). One of the interesting things that contributed substantially to Rome's strength, at least through the BC years, was their flexibility and success in absorbing many different peoples into the state. They actually had various grades of citizenship, including such things as Latin Rights where certain peoples could get access to some aspects of citizenship (e.g. ability to conduct commerce and access to the judicial system) while being denied others (e.g. voting).
Can't we figure out something similar? Shouldn't it be possible to allow fairly open access to being present and conducting commerce in this country, while still having much tougher and tighter standards for voting and getting government handouts? The taxes immigrants pay easily cover things like emergency services and extra load on the courts, but fall short of covering extra welfare and education.
Unfortunately, the debate seems to be dominated either by Lou Dobbs racists who see Mexicans as spreading leprosy or by Marxists who see poor immigrants as a wedge to push socialism. The problem is again traceable to a President who tries to lead on divisive issues without trying to clearly communicate a moral high ground. For example, I would have first tried to establish one simple principle that has the virtue of being consistent with most of America's history:
"The US should allow easy access to our country for immigrants, but immigrants should expect that immigration involves financial risks which they, not current Americans, will need to bear. Over time, they will have access to full citizenship but the bar for such rights will be set high."
OK, it needs to be shorter and pithier, but you get the idea. Reagan was fabulous at this, and Clinton was pretty good in his own way. Bush sucks at it.
A Thought on Ward Churchill
I suppose this is going to be one of those nutty libertarian rants that help explain why libertarians do so poorly at the polls, but I am not really very comfortable with Ward Churchill's potential firing from University of Colorado. I can't think of very many things Mr. Churchill has said that I agree with, but I still have this crazy idea about defending speech regardless of the content of the speech.
And it is hard for me to escape the sense that Mr. Churchill may lose his tenured position at a state-run institution over the content of his speech. Yeah, I know, its nominally about his academic credentials. But don't you think everyone is winking at each other about this? Yes, Mr. Churchill is an academic fraud, but he was a fraud when UC hired him and tenured him as well, and they should have known it.
Over a couple of decades, every major university in the country rushed to build, practically from scratch, racial and ethnic and gender studies programs and departments. Had every university raced at the same time to build any discipline, talent would run short and in the hiring race, some under-qualified people would be hired. Let's suppose that every university decided at the same time they needed a climate department, there just would not be enough qualified climate scientists to fill out every position. The rush to build ethnic studies programs was similar but in fact a bit worse. Because while some people actually do have climate-related degrees, no one until recently had an ethnic studies degree. What professional qualifications should a school look for? And, in fact, in the rush to build ethnic studies programs, a lot of people of very dubious qualifications were given tenure, often based more on ethnic credibility and political activism than any academic qualifications. Hell, Cal State Long Beach hired a paranoid schizophrenic who had served prison time for beating and torturing two women as the head of their Black Studies department. And universities like UC patted themselves on their politically correct backs for these hirings.
I could go out tomorrow and find twenty tenured professors of ethnic/racial/gender studies in state universities whose academic credentials are at least as bad as Churchill's and whom no one would dare fire. This has nothing to do with Churchill's academic work or its quality. UC is getting exactly what it expected when it tenured him. This is about an attempt to fire a tenured professor for the content of his speech, speech that has embarrassed and put pressure on the university, and I can't support that.
The Battle Against Freedom of Association
Freedom of Association is not explicitly listed in the First Amendment, but the Supreme Court has never-the-less upheld association rights in expressive organizations and for intimate associations, such as the family and more broadly in private social clubs.
The State of California continues its attack on Craigslist and Roommates.com trying to make these organizations liable for California Fair Housing Law violations when they publish a classified ad that breaks the law. In short, it is illegal in California (and some other states) to advertise for a roommate who is a specific gender or race or religion, even if there are strong compatibility reasons for doing so (As in most states, it is A-OK to discriminate against smokers).
I won't get into the whole legal argument about these listing services, except to say that it is absurd to hold third parties accountable for other people's speech. I want to ask a more general question. How do laws that prevent me from choosing a roommate (however I want to) pass constitutional muster? Taking on a stranger for a roommate is a scary proposition, especially in states like California that make it well nigh impossible to evict someone once they have moved in. Short of marriage, it is hard to imagine a more intimate relationship -- in fact, many roommates probably see more of each other than some spouses. On average, most people are probably not a compatible roommate for me.
Beyond this, most of the people who run afoul of the housing law do so with their speech, not the actual selection of a roommate. Most fair housing complaints are against people's advertisements or public statements. This strikes me as a double violation - the banning of speech about my association preferences.
Holy Security State, Batman!
Hollywood may like to criticize GWB for his over-eager and intrusive anti-terrorism precautions, but they sure seem ready to take a page out of the homeland security book when it comes to protecting their CD sales:
In Florida, the new legislation requires all stores buying second-hand merchandise for resale to apply for a permit and file security in the form of a $10,000 bond with the Department of Agriculture and Consumer Services. In addition, stores would be required to thumb-print customers selling used CDs, and acquire a copy of state-issued identity documents such as a driver's license. Furthermore, stores could issue only store credit -- not cash -- in exchange for traded CDs, and would be required to hold discs for 30 days before reselling them. (HT Overlawyered)
Requiring thumbprints from customers just to sell used CD's? Are they nuts? Can you imagine if they tried to apply this to anything else? You'd have to have a retina scanner to use eBay. Freaking totally insane. I can buy a gun, an aircraft, and a shopping cart full of rat poison without a thumbprint but I need to go through the jailhouse booking routine to sell a CD?
By the way, note how insane the requirements on resellers are. For example, having to hold a disc 30 days before selling. Why? I am sure for a lot of hot music products the value goes down about 50% a month.
Of course, we all know the reason why. This is about politically powerful incumbents protecting their business from competition. In this case, music companies don't want to have to compete with their own CDs showing up on the aftermarket. Well you know what -- suck it up. Car companies have had to deal with this problem for years. I am sure they would love laws that make it difficult for anyone to buy a used car (or maybe they wouldn't - a healthy secondary market gives consumers the ability to trade up to new models frequently, something music sellers should consider).
Think about the recycling angle, by the way. The best recycling plan is to reuse an item for its original use. We all remember Hollywood giving Al Gore a big wet kiss at the Oscars, and congratulating themselves for being more green than the rest of us schmucks Except, of course, when it hits the bottom line. "Hey you little guys out there, don't resell those CD's, we want to make sure you throw them out and buy new. After all, we can't keep our private jets flying without selling lots more CDs."
Immigration and Trespass
If I invite an illegal immigrant to come stay in my house, is he trespassing? My Arizona legislators think so:
State Representative Jonathan Paton, a Republican, ... added that he would prefer to detain smuggled immigrants under trespassing laws, a move lawmakers are considering under a package of bills intended to crack down on illegal immigration.
The only way one can define an illegal immigrant at my house as "trespassing" is if one accepts some kind of statist-socialist view of property, that the state has effective ownership of my property. I have asked this before, but do Republicans, who once upon a time were at least nominally the defenders of private property, have any idea what they are doing?
Free Speech and Immigration
Frequent readers of this blog will know that I am a strong supporter of open immigration, and have substantial problems with how we are effectively criminalizing poor people looking for work.
However, it is perhaps most important to defend the free speech of people with whom one disagrees. A while back, my employee accidentally sent a private email from his private account expressing opinions about stronger defense of the border and enforcement of immigration laws (opinions that run counter to my own) to a government employee with whom we interact fairly frequently. The government employee's first impulse was to threaten that our company may be liable under anti-discrimination laws for such speech, but to their credit quickly agreed that it was inappropriate for a federal employee to take any action based on private speech. But that first, initial reaction was interesting.
It seems a professor here in the Phoenix area is facing sanction for similar reasons.
The case involves Walter Kehowski, a math professor at Glendale Community College—part of the Maricopa County Community College District (MCCCD) system—who e-mailed a single Thanksgiving message to the entire MCCCD community. On the day before Thanksgiving, Kehowski sent an e-mail containing the text of George Washington’s “Thanksgiving Day Proclamation of 1789” over the district’s “announcements” listserv. Kehowski had found the Proclamation on Pat Buchanan’s blog, and included a link to that webpage in his e-mail. That citation would have dire consequences.Within weeks, five MCCCD employees complained that Kehowski’s e-mail was “derogatory” and “hostile” because the link he’d included—if you decided to open it—led to a page where Buchanan also posted his opinions of immigration. MCCCD soon held an Initial Assessment of the complaints, and decided that since Kehowski’s e-mail was not work-related but rather expressed a “social comment,” he had violated MCCCD’s e-mail policies, which limit e-mails to work-related information. MCCCD reacted on March 9 by forcing Kehowski to cease teaching, placing him on immediate administrative leave, and recommending that he be terminated....
MCCCD has also found Kehowski guilty of violating the Equal Employment Opportunity policy.
Again we have government sanctioning speech based on its content, a definite no no, particularly since there was a pretty clear precedent for other people using the email system ant that particular listserv to pass on social commentary without sanction. Its clear, though, that many in the college's community found the speech somehow in violation of discrimination laws.
However, this is the irony I find amazing: State, Federal, and Maricopa County law require that businesses discriminate against undocumented aliens. I can be fined and sent to jail for not discriminating against them. Maricopa county, which runs this particular community college, employs a sheriff that revels in anti-immigrant rhetoric that probably runs more extreme than even Pat Buchanan and who prides himself on how many illegal immigrants he has rounded up this week (he. In this context, how can it be illegal to advocate for enforcement of current law? How can it be illegal to advocate for policies aggressively pursued by your own employer?
Any viewpoint in speech needs to be tolerated, but I find it especially odd that government institutions are unable to tolerate speech that upholds what is essentially the official position of the government.
Does the Hippocratic Oath Make Doctors Our Slaves?
In the beginning, human rights were things we could enjoy by ourself on a desert island. Speech, assembly, the ability to make decisions for our own life, to keep the product of our own labors -- these are all rights that don't require other people to make them real. The only role for government is merely to keep other people from trampling on these rights by the use of force.
And then, in the 20th century, we invented new rights -- the "right" to sustenance, to be clothed, to have shelter, to be educated, to have health care. These were not the passive rights like freedom of speech. For example, the right to shelter did not mean that we were free to go and build ourselves a shelter and have it protected from attack or burglary by others. No, it has come to mean that if we don't have shelter, either through hardship or fecklessness, it should be provided for us.
I hope you can see the difference. These new rights require action by someone else. They require that someone, by force if necessary, be made to provide us these things, or at least be made to forfeit wealth which is used to purchase these things for us. These new rights are not only different from traditional rights like speech and property, but they are 180 degrees opposite. The old-style rights established that no other person has a call on our mind, our bodies, or our labor. The new-style rights establish the opposite, that we do have a call on someone else's mind and labor. In fact, these news-tyle rights are not rights at all, but dressed up slavery. Because no matter how you try to pretty them up, the fact is that none of them have any meaning unless force can be used to make someone provide the object in question, whether it be health care or education or housing.
Now when we libertarians begin calling things like this slavery, the average American turns off. Oh, you libertarian guys, always exaggerating. But Eugene Volokh brings us a great example that proves otherwise. Libertarian Dr. Paul Hsieh wrote what I thought was a pretty reasonable letter to the Denver Post:
Health care is not a right, and it is not the proper role of government to provide health care for all citizens. Instead, this should be left to the free market. It is precisely the attempts of the governments of countries like Canada (or states like Tennessee) to attempt to mandate universal coverage which have led to the rationing and waiting lists for vital medical services. Similar problems are already starting to develop in the Massachusetts plan as well. Any plan of government-mandated "universal coverage" is nothing more than socialized medicine, and would be a disaster for Colorado.
Paul S. Hsieh, M.D., Sedalia
Denver Post columnist Jim Spencer is scandalized by Dr. Hsieh's position:
The craziest letter to the editor that I've read in some time came from a physician who claimed that Coloradans have no right to health care.
Seems the guy not only forgot his Hippocratic oath but also the law.
If you're sick enough or badly injured, they have to treat you at the emergency room regardless of your ability to pay.
The doctor aimed his editorial rant against socialized medicine. But he wrote it because a state blue-ribbon commission is now cobbling together a plan for medical treatment and prescription drugs for Coloradans....
First, it is depressing how deeply these new non-rights are embedded even in the freest country in the world -- so much so that the reporter considers it the craziest notion in the world that free health care might not be a human right. (I have a thought problem for you -- if free health care is a fundamental human right, and a group of us are stranded on an island with no doctor, how do we exercise our right?)
Second, the fact that something is written into the law does not make it a right. Rights flow from man's nature (or from God, depending on your beliefs) and NOT from the government. The fact that the government legislates against free speech does not change my right to free speech, it just marks itself as a bad government. On the other hand, if the government legislates that we all get free plasma TV's, it does not change the fact that man does not have the inherent right to a plasma TV.
Third, and I think most interesting, is how Mr. Spencer is using Dr Hsieh's Hippocratic oath as a club. In effect he is saying "you swore an oath and now you are obligated to provide us all with health care at whatever price, including zero, we wish to pay for it." Mr Spencer demands the right to health care -- and Mr. Hsieh is going to provide it at any price the government demands because his Hippocratic Oath forbids him to do otherwise. Very unsubtly, Mr. Spencer is treating Dr. Hsieh as his and society's slave, and he is appalled that the slave has talked back to the masters.
Postscript: I could not let this other paragraph in the article go.
"Insurance companies are not in the business of providing quality, equitable health care," [health care reform advocate] White explained. "They're in the business of making money. I said, 'OK, let's fix this once and for all.' This establishes a single- payer system."
I just love the people that treat "making money" and "quality service" as incompatible. Because its just so easy to make a crappy product and sustain profits over a number of years. Here is an exercise: Name 10 private for-profit businesses that make a quality product or service. Gee, how about Apple, Sony, Toshiba, GE, Home Depot, UPS, Wal-Mart, etc. etc. You get the idea. Now name 10 government run agencies that provide a quality service. Gee there's the post office, uh no, not really. DMV? no. VA hospital? no. Amtrak? no. OK, name one.
A Question for Women's Groups
I don't have any particularly intelligent analysis of the SCOTUS's upholding the constitutionality of a partial birth abortion ban, so I won't offer any.
However, I have a question for women's groups. Groups like NOW support the federal government's constitutional right to ban breast implants,and in fact call for such a ban on the NOW web site. Simultaneously, they oppose the federal government's constitutional right to ban partial birth abortions.
My question is: How can you reconcile these two views? Aren't these two procedures similar enough (both are elective medical procedures that are invasive of a woman's body) to be Constitutionally identical? I understand that from a social conservative's point of view that the abortion procedure might warrant more legal attention if you believe there is a second life (ie the fetus) involved here. But how do you justify that the feds should have more power to regulate and ban boob jobs than they have to ban one type of abortion? And please, don't justify it because you think abortion is serious but breast implants are frivolous Those are legislative and political arguments about what should and should not be done with the fed's power, not Constitutional arguments about what that power actually is.
The women's groups' application of their "its our body" and "pro-choice" positions have always struck me as incredibly selective. It's a woman's choice to weigh the risks and benefits of an abortion, but apparently it's the government's choice to weight the risks and benefits of breast implants. I wrote more about this selective libertarianism when I made a plea for applying the privacy and choice logic of abortion supporters to all aspects of government regulation. I criticized NOW for another instance of selective libertarianism associated with government and women's bodies when NOW supported having the government limit a woman's choice to use Vioxx to relieve pain.
National Security Letters
From the beginning, national security letters had to end badly. One only has to understand incentives to know that things were going to go off the rails. Specifically, national security letters are an easy way to for investigators to short-circuit a lot of procedural steps, including review and approval of warrants by judges, steps that have been put in place for a real Constitutional purpose. Anyone who is at all familiar with the operation of any government bureaucracy had to know that their use would steadily grow well outside the narrow bounds of urgent national security issues. Anytime government employees can grow their power without supervision or accountability, they will tend to do so. What absolutely guaranteed that this would happen, and sooner rather than later, was the legal non-disclosure requirements around these letters that prevents anyone from discussing, investigation, or discovering their abuse and misuse.
The Washington Post carries a great anonymous editorial from one person served with such a letter:
Three years ago, I received a national security letter (NSL) in my capacity as the president of a small Internet access and consulting business. The letter ordered me to provide sensitive information about one of my clients. There was no indication that a judge had reviewed or approved the letter, and it turned out that none had. The letter came with a gag provision that prohibited me from telling anyone, including my client, that the FBI was seeking this information. Based on the context of the demand -- a context that the FBI still won't let me discuss publicly -- I suspected that the FBI was abusing its power and that the letter sought information to which the FBI was not entitled....
Without the gag orders issued on recipients of the letters, it is doubtful that the FBI would have been able to abuse the NSL power the way that it did. Some recipients would have spoken out about perceived abuses, and the FBI's actions would have been subject to some degree of public scrutiny. To be sure, not all recipients would have spoken out; the inspector general's report suggests that large telecom companies have been all too willing to share sensitive data with the agency -- in at least one case, a telecom company gave the FBI even more information than it asked for. But some recipients would have called attention to abuses, and some abuse would have been deterred.
I found it particularly difficult to be silent about my concerns while Congress was debating the reauthorization of the Patriot Act in 2005 and early 2006. If I hadn't been under a gag order, I would have contacted members of Congress to discuss my experiences and to advocate changes in the law.
Tim Lynch makes a point about the national security letters I found intriguing and that has not been discussed very often, that the letters represent effect conscription of ordinary citizens into an intelligence or even big brother role. The author of the WaPo editorial makes the same point:
I resent being conscripted as a secret informer for the government and being made to mislead those who are close to me, especially because I have doubts about the legitimacy of the underlying investigation.
That Vanishing First Ammendment Thingie
They're doing it again in California: "State and federal authorities have opened an investigation into a Norco housewife, alleging that her vitriolic protests against a high-risk group home in her neighborhood may constitute housing discrimination." Federal officials asked state fair housing regulators to investigate Julie Waltz, 61, who had protested plans to open a group house next to her home for developmentally disabled residents; among those eligible to reside there under state law would be persons deemed not competent to stand trial on sex crime charges.
Yes, you heard that right. She is being threatened with a housing discrimination charge by the government for exercising free speech on a public policy issue.
My "Rights" Seem Pretty Pitiful
Well, we libertarians must be losing the battle, if these are all the rights I have left as a taxpayer:
Today at 10am the Republican Study Committee will introduce a Tax Payers Bill of Rights with the aim of getting bi-partisan support for the principles of such a bill of rights and incorporating them in future legislation. The principles are:
1 Taxpayers have a right to have a federal government that does not grow beyond their ability to pay for it.
2 Taxpayers have a right to receive back each dollar that they entrust to the government for their retirement.
3 Taxpayers have a right to expect the government to balance the budget without having their taxes raised.
4 Taxpayers have a right to a simple, fair tax code that they can understand.
This is pretty thin soup, particularly from the party that once hailed itself as the party of small government. I can't really disagree any of this stuff, but it really constitutes a low bar, and it is even scarier that this will probably be controversial. In particular, #2 is a joke. Getting all your principal back from forty year old retirement investments basically means that all your retirement income was invested by the government at a 0% rate of return. Unfortunately, as I ran the numbers a while back, a 0% rate of return would actually be an improvement for Social Security.
This is really, really pathetic.
I'll Make a Bet
A blistering Justice Department report accuses the FBI of underreporting its use of the Patriot Act to force businesses to turn over customer information in terrorism cases....The report, to be released Friday, also says the FBI failed to send follow-up subpoenas to telecommunications firms that were told to expect them.....
Overall, the FBI underreported the number of national security letters it issued by about 20 percent between 2003 and 2005..... In 2005 alone, the FBI delivered a total of 9,254 letters relating to 3,501 U.S. citizens and legal residents.
The Patriot Act....allows the FBI to issue national security letters without a judge's approval in terrorism and espionage cases.
Here is my bet: Even more interesting will be a review of these letters, if that is ever allowed, to see how many really had any burning relation to national security. My guess is that many of these are being used in drug cases and financial cases that only the most creative FBI agent could twist into a national security situation.
Interesting Data on Immigration
Via Kevin Drum, the results from a couple of studies in California:
A study released Tuesday by the Public Policy Institute of California found that immigrants who arrived in the state between 1990 and 2004 increased wages for native workers by an average 4%.
UC Davis economist Giovanni Peri, who conducted the study, said the benefits were shared by all native-born workers, from high school dropouts to college graduates....
Another study released Monday by the Washington-based Immigration Policy Center showed that immigrant men ages 18 to 39 had an incarceration rate five times lower than native-born citizens in every ethnic group examined. Among men of Mexican descent, for instance, 0.7% of those foreign-born were incarcerated compared to 5.9% of native-born, according to the study, co-written by UC Irvine sociologist Ruben G. Rumbaut.
This is great stuff, I hope we see more of it, because it takes on two of the more common arguments against immigration. In particular, its good to see someone taking on the crime angle, an issue I have suspected all along of being more about racial prejudices than true statistics. This is a particularly telling table:
I previously took on the the meme that immigration causes crime here. My case for open immigration is here and here. My proposed plan is here. Note that I really try to stay away from arguing immigration within the "who is going to pick the lettuce" framework. I think free movement across borders of people, goods, and services is a basic human right, irrespective of the effect it has on wages or lettuce.
Oddly enough, Drum didn't focus much on the positive results on wages, as he has way too much invested in the whole "erosion of the middle class" thing to acknowledge that immigration might not hurt wages (since if immigration does not hurt wages, neither does free trade or outsourcing). Mr. Drum says he wants to think about the study. My prediction is that he will decide the crime study is a good one but the wage study was flawed.
Fixating on the Wrong Thing
For the last couple of years, much of the debate about detention at Gitmo has focused on silly arguments about torture. Flushing a Koran -- Torture! Showing a picture of a naked girl -- Torture! The comfy chair -- Torture! As I wrote in this post,
Here is my fervent hope: If I ever find myself imprisoned by hostile forces, I pray that they will torture me by sitting me in a chair and having me watch them flush books down the toilet.
If I bought into the theory of Rovian infallibility, I might argue that this was all a clever trick to distract the country with the left hand while the right was really doing the damage. Whether planned or not, the media certainly fixated on the left hand, while the right was doing this:
In a series of probing and sometimes testy exchanges with a government lawyer, two of three judges on a federal appeals court panel here indicated Thursday that they might not be prepared to accept the Bush administration’s claim that it has the unilateral power to detain people it calls enemy combatants....
“What would prevent you from plucking up anyone and saying, ‘You are an enemy combatant?’ ” Judge Roger L. Gregory of the United States Court of Appeals for the Fourth Circuit asked the administration’s lawyer, David B. Salmons.
Mr. Salmons said the executive branch was entitled to make that judgment in wartime without interference from the courts. “A citizen, no less than an alien, can be an enemy combatant,” he added.
The real threat to freedom and the American way here was always the Bush administration's incredible theory that it had a right to name anyone a combatant and then detain them forever, without any sort of independent review or appeal. Particularly in a "war" with no defined enemy. It's incredible to me that the Congress and courts have let this slide as long as they have, and good to see some scrutiny may finally be applied. Hat tip: Reason. More here, here, here. Looking back through my archives, I seem to have made this same point months ago:
One of the problems I have making common cause with many of the civil rights critics of the Bush administration is that they tend to hurt legitimate civil rights by exaggerating their claims into the ridiculous.
A good example is detentions at Gitmo. I believe strongly that the Bush administration's invented concept of unlimited-length detentions without trial or judicial review is obscene and needed to be halted. But critics of Bush quickly shifted the focus to "torture" at Gitmo, a charge that in light of the facts appears ridiculous to most rational people, including me. As a result, the administration's desire to hold people indefinitely without due process has been aided by Bush's critics, who have shifted the focus to a subject that is much more easily defended on the facts.
Its Official: Europe Gives Up on Free Speech
As a strong libertarian, I have all kinds of problems with the government in this country. However, I always scratch my head when people try to make the case that certain European countries are more free and open than the US. The facts just don't bear this out. First, the US at least has a written Constitution that make some attempt to define government's purpose as the protection of individual rights. Now, our government fails at this all the time, but at least there is something there in writing we can try to hang on to; European countries have nothing like it.
In particular, Europe has never had the strong tradition of free speech that we have in the US. Often folks in the US, particularly on the left, confuse Europe's receptiveness to leftish comments by Americans with general openness to free speech. In fact, just the opposite is true:
People who question the official history of recent conflicts in Africa and the Balkans could be jailed for up to three years for "genocide denial", under proposed EU legislation.
Germany, current holder of the EU's rotating presidency, will table new legislation to outlaw "racism and xenophobia" this spring.
Included in the draft EU directive are plans to outlaw Holocaust denial, creating an offence that does not exist in British law.
But the proposals, seen by The Daily Telegraph, go much further and would criminalise those who question the extent of war crimes that have taken place in the past 20 years.
For years, I and most free speech advocates in this country have criticized the holocaust-denial laws as the mother of all slippery slopes. Holocaust deniers should have the same speech rights as any other moonbat out there. Now, you can see the EU starting to slide down this slope, as more speech is criminalized. The article goes on:
If agreed by EU member states, the legislation is likely to declare open season for human rights activists and organisations seeking to establish a body of genocide denial law in Europe's courts.
Who needs jackbooted government dictators when we have "human rights activists" available to muzzle our speech.
Most of you know I tend to avoid the topic of religion like the plague on this blog, but suffice it so say that I am a secular guy. But that doesn't stop me from being scared of this guy (Chris Hedges at the Nation Institute):
This is the awful paradox of tolerance. There arise moments when those who would destroy the tolerance that makes an open society possible should no longer be tolerated. They must be held accountable by institutions that maintain the free exchange of ideas and liberty.
The radical Christian Right must be forced to include other points of view to counter their hate talk in their own broadcasts, watched by tens of millions of Americans. They must be denied the right to demonize whole segments of American society, saying they are manipulated by Satan and worthy only of conversion or eradication. They must be made to treat their opponents with respect and acknowledge the right of a fair hearing even as they exercise their own freedom to disagree with their opponents.
Passivity in the face of the rise of the Christian Right threatens the democratic state. And the movement has targeted the last remaining obstacles to its systems of indoctrination, mounting a fierce campaign to defeat hate-crime legislation, fearing the courts could apply it to them as they spew hate talk over the radio, television and Internet.
Whoa, Nellie. The "forced to be free" thing never really works out very well, I promise. I find the outright socialism preached by much of academia to be scary as hell and an incredible threat to me personally as a business owner, but you won't catch me trying to get the government to muzzle them. Hedges attitude is consistent with opposition to school choice discussed here by Neal McCluskey of Cato:
Another frequent objection to letting parents choose their kids’ schools is that American children need to be steeped in a shared worldview, lest they be in constant combat as adults. This arose as a major line of argument in a Free Republic discussion about Why We Fight, and is very similar to the “Americanization” mission given to industrial-era public schools, where immigrant students were taught to reject the customs and values of their parents’ lands — and often their parents themselves — and adopt the values political elites deemed proper.
Now, if one were willing to accept a system that would, by definition, quash any thoughts not officially sanctioned, then in theory one would be okay with a public schooling system intended to force uniform thought. In the context of an otherwise free society, however, getting such a system to work is impossible, because it would require that incredibly diverse and constantly combative adults create and run an education system that somehow produces uniform and placid graduates. It’s no more realistic than hoping a tornado will drop houses in a more perfect line than it found them.
The practical result of our trying to make uniformity out of diversity has, of course, been constant conflict, as Why We Fight makes clear. Moreover, there is another by-product of this process that no one mentions when they weave scenarios about choice producing schools steeped in ignorance: our schools right now teach very little, especially in the most contentious areas like evolution and history, because they want to avoid conflict.
It all kind of makes a mockery of the left's favorite word "diversity." One suspects what they want is for people of all color and backgrounds to come together and... think just like they do. This seems to be part of the same strategy here to bring back the fairness doctrine.
PS- Remember, before you flame me, I am a secularist here defending the right of everyone to speak. I am not defending Pat Robertson per se, because I almost never agree with the guy, but I am defending his right to say whatever he wants on TV.
I went to a dinner with a group of local libertarians who have been meeting for decades. We had a very interesting discussion on government centralization vs. decentralization concerning which approach has been and can expected to be in the future a better framework for protecting liberty (A similar discussion has been raging in the blogosphere, as represented by this post at Volokh and here). It has been a long time since I have not been the most radical anarchist in the room, so I had a great time.
Immigration and Statism
Dale Franks at QandO, quoting some from John Derbyshire, raise a key question that certainly has always concerned me as a pro-immigration libertarian:
As to why I think libertarians are nuts to favor mass uncontrolled immigration from the third world: I think they are nuts because their enthusiasm on this matter is suicidal to their cause. Their ideological passion is blinding them to a rather obvious fact: that libertarianism is a peculiarly American doctrine, with very little appeal to the huddled masses of the third world. If libertarianism implies mass third-world immigration, then it is self-destroying. Libertarianism is simply not attractive either to illiterate peasants from mercantilist Latin American states, or to East Asians with traditions of imperial-bureaucratic paternalism, or to the products of Middle Eastern Muslim theocracies.
In other words, by open immigration, are we letting in waves of people from statist traditions that will drive the US further away from an open, liberal society. This worries me from time to time, enough that I don't have a fully crafted response that I consider definitive. However, I want to offer some initial thoughts. Before I do, here are two background points:
- I think the freedom to move to another country, take a job there, buy property, live there, etc. is a basic individual right that should not be limited to the accident of not having been born originally in that country. Freedom of association is a right of all human beings, not merely a result of citizenship. I go into these arguments in much more detail here.
- Note that immigrant status and citizen status are two different things. Immigrant means that you are present in a country but not a citizen. As an immigrant, I believe you should be able to own property, accept employment, and most of the other things you and I do every day. However, immigrants don't vote. Only the narrow class of people called citizens may vote, and there is some process where over time immigrants can meet some hurdles and become citizens. The key problem for a libertarian, which I think Dale Franks would agree with, is "which status must you be to get government handouts?" My view is that only citizens should get most handouts, like welfare and food stamps and such, though immigrants should have access to things like infrastructure (highways) and emergency services. It is when one argues that any immigrant should have access to all this stuff that the whole immigration picture becomes a total mess.
With those couple of things in mind, here are my thoughts on the issue Franks raises:
- The US is not made up primarily of Scots and Dutch, two areas that can legitimately claim to have strong liberal traditions. Most of our past immigration has come from Ireland and Germany and Scandinavia and Eastern Europe. None of these areas particularly have a liberal tradition, and many were nationalistic-militaristic-paternalistic governments. Also, we may forget it today, but when countries like Ireland where a large source of our immigration in the 19th century, they were a third world country at the time. Just look at Vietnam -- it has one of the worst traditions I can think of, but as a class Vietnamese immigrants tend to be capitalist tigers.
- Depending on how one counts it, US citizens are already 65%-85% statist anyway, so I am not sure immigration is going to change the mix negatively. In other words, the statist train has already sailed. In fact, statism has flourished in this country from 1930-1980 during exactly the same period of time we were most restrictionist in immigration. Sure, correlation is not causation, but certainly you can't prove to me that restrictionist immigration slows statism in any way.
- Much of the statist economic policies in this country were launched by Wilson and Roosevelt, from two of the more blue-blooded families in America. Now this may not mean much. What I don't know, because I don't know enough history of the period, is this: Did support for New Deal (and more extreme socialist NRA-type policies) come disproportionately from new immigrants? My sense is exactly the opposite, that in fact some New Deal policies like the minimum wage were aimed by nativists at circumscribing the opportunities of immigrants.
- In effect, the author is advocating that we limit the freedom of movement and property ownership of people not born in the US because we are afraid that these new entrants into our country will bring political pressure to undermine individual rights. I think that is a legitimate fear, but if I accept that argument, I don't know why I would not also have to accept the argument that we should take away the freedom of speech from people who argue for limitations of individual rights. In both cases, we are giving political access to people who want to undermine our basic liberties. My conclusion: I can't go there in either case. I refuse to put a political test on the exercise of individual rights, even for people with really bad politics.
- A well-crafted welfare regime would make the problem a lot better. I am not so unrealistic to expect the welfare state to go away tomorrow, but I do think that the political will can be mustered to deny substantial benefits to new non-citizen immigrants. Which way we go on this will decide whether we can open up immigration. If welfare handouts to immigrants are limited, then new immigrants will tend to self-select towards those looking to work hard and take risks to make it on their own. This will mitigate the author's concern, and is in fact how we have maintained our culture of liberality through a history that was dominated mostly by open rather than closed immigration. If welfare handouts are generous to new immigrants, then immigrants will self-select to people looking to live off the state. If we insist on the latter, then I guess I will agree that immigration needs to be limited (though there is an even better reason for doing so in that we will, in that case, surely bankrupt ourselves.)
This is Weird
This is a weird case, via Radley Balko: A court issues a search warrant for a bullet, correctly stating the specific location to be searched and the reasons the bullet is needed. No problem so far, but unfortunately, the bullet is inside someone and must be surgically removed.
In the middle of Joshua Bush's forehead, two inches above his eyes, lies the evidence that prosecutors say could send the teenager to prison for attempted murder: a 9 mm bullet, lodged just under the skin.
Prosecutors say it will prove that Bush, 17, tried to kill the owner of a used-car lot after a robbery in July. And they have obtained a search warrant to extract the slug.
But Bush and his lawyer are fighting the removal, in a legal and medical oddity that raises questions about patient privacy and how far the government can go to solve crimes without running afoul of the constitutional protection against unreasonable searches and seizures.
They go on to mention this problem:
Police then obtained a second search warrant and scheduled the operation for last week at the University of Texas Medical Branch hospital in Galveston. It was postponed again, however, after the hospital decided not to participate for reasons it would not discuss.
Prosecutors said they continue to look for a doctor or hospital willing to remove the bullet.
Duh. No private doctor or hospital is going to do this procedure. Whoever removes this bullet is 100% guaranteed to get named on at least one lawsuit seconds after the procedure. Even if they win the suit, the cost of defending themselves will outweigh anything they might get paid for the procedure.
Are You Kidding Me?
This is so wrong. When possessing cash is a crime:
A federal appeals court ruled yesterday that if a motorist is carrying large sums of money, it is automatically subject to confiscation. In the case entitled, "United States of America v. $124,700 in U.S. Currency," the U.S. Court of Appeals for the Eighth Circuit took that amount of cash away from Emiliano Gomez Gonzolez, a man with a "lack of significant criminal history" neither accused nor convicted of any crime.
I know what you are thinking -- there must be some other facts Coyote is leaving out that explain why a man should have his money confiscated for no other reason than he chose to keep it in cash. Read the whole thing, because you won't find anything that makes this sane. I do a lot of business down on the border, and get many Mexican customers (legally) visiting as a tourist. Almost to a one, they show up with large rolls of cash. Our preference for key fob credit chips and ubiquitous Visa cards is not shared by every other culture, and the desire to keep one's assets in cash should not be a crime (it may not be smart, but not a crime). Hell, murderers have more protection under the law than this person carrying cash.
I would be interested to hear more about this from folks with a legal background, but I am surprised that an appeals court even has the purview to find that a crime exists when lower courts found none. The problem here, I think, is that the cash can (legally, which is nuts) be seized and kept without a trial, just on the say-so of the police, who have the incentive to decide that the cash is seizable because they get to drop it into their budget pool. So I guess the trier of fact is the police (?) and the lower court reversed the police decision and then the circuit court is reinstating it.
This is just one example of the incredibly high price we pay in civil liberties for the war on drugs. See this post to measure the countervailing benefits of the war on drugs. Hat tip: Catallarchy.
Update: Via Hit and Run, here is another nice feature of the war on drugs:
Tim takes one 24-hour Claritin-D tablet just about every day. That puts him just under the legal limit of 75-hundred milligrams of pseudo ephedrine a month. The limit is part of a new law that Quad Cities authorities are beginning to strictly enforce.
The law limits the amount of pseudo ephedrine you can buy. Pseudo ephedrine is an ingredient in medicines like Sudafed and Claritin-D, and it’s also a key ingredient in methamphetamines.
“It’s the only allergy medicine that works for me – for my allergies,” Tim explained.
The only problem is, Tim has a teenaged son who also suffers from allergies. And minors are not allowed to buy pseudo ephedrine.
“I bought some for my boy because he was going away to church camp and he needed it,” he said.
That decision put Tim over the legal limit. Two months later, there was a warrant for his arrest.
And off to jail he went, with no apologies:
But even if you’re not making meth, if you go over that limit – of one maximum strength pill per day – you will be arrested.
“Does it take drastic measures? Absolutely. Have we seen a positive result? Absolutely,” Sandoval stressed.
Do you see the similarity in these two stories. Two different people, both punished by the state for taking legal actions similar to those taken by drug dealers (holding cash and buying Claritin) with absolutely no evidence they in fact had anything to do with illegal drugs. Next up: Anyone driving a Porche 911 will be arrested since those cars are favored by drug dealers.
Sean Lynch of Catallarchy is dead on with this:
The headline showing on Google News reads: “NJ’s Move Toward Same-Sex Unions Called Undemocratic.” My first thought upon reading that was, “Duh!”
It seems to me that civil rights are undemocratic by their very definition, since they are rights that cannot be taken away, even by the will of the majority, at least in theory. The whole reason our Constitution even contains anything other than voting procedures is that it was clear to the framers that if they left everything to the will of the majority, they’d end up with an even worse tyranny than the one they just threw off.
As much as some libertarians may complain, the fact that civil rights today are in as good of a state as they are is a testament to what a great job the framers did at making the USA an “undemocratic” country. Heck, even the Second Amendment survives mostly intact in most states. And the rate at which technology seems to be empowering individuals seems to be outstripping the rate at which democracy is attempting to take away our rights, even using that same technology.
Terrific! I shared similar thoughts but from a different angle when I wrote that "the right to vote" is the least of our freedoms.
Conservative pundits often observe that "this is a new type of war -- shouldn't the president have new powers to fight it?" Well, maybe. But I think there is a question that is at least as valid: "Given that enemy combatants don't wear uniforms any more, shouldn't we exercise more care than in the past in how we designate people as combatants?" The much greater ambiguity in naming combatants would seem to demand extra layers of process protection and appeal rights for such persons.
Unfortunately, this Administration, with the aid and comfort of the US Congress, has gone exactly in the opposite direction. As Jim Bovard writes, via Cato-at-Liberty:
The MCA awarded Bush the power to label anyone on earth an enemy combatant and lock then up in perpetuity, nullifying the habeas corpus provision of the Constitution and “turning back the clock 800 years,” as Sen. Arlen Specter (R-PA) said. While only foreigners can be tried before military tribunals, Americans accused of being enemy combatants can be detained indefinitely without charges and without appeal. Even though the Pentagon has effectively admitted that many of the people detained at Guantanamo were wrongfully seized and held, the MCA presumes that the president of the United States is both omniscient and always fair.
Sixty years ago, when the military hauled in a guy dressed in a gray Wermacht uniform captured in the Ardennes Forest, you kindof gave them the benefit of the doubt that he was an enemy combatant. How long until merely exercising free speech rights in favor of a terrorist group gets one labeled a "combatant."
The Right Not to be Offended
One of the main salients in the war against free speech is the notion that people somehow have the right not to be offended; in other words, that authorities may legitimately limit speech that gives offense to anyone.
I could site a zillion examples, particularly on campuses, but this one is at the top of my inbox (emphasis added):
Sparks flew during question period at a Nov. 21 Carleton University Students’ Association (CUSA) council meeting after a motion that would prevent pro-life groups from assembling on CUSA space was tabled.
The motion -— moved by Katy McIntyre, CUSA vice-president (student services), on behalf of the Womyn’s Centre -— would amend the campus discrimination policy to state that “no CUSA resources, space, recognition or funding be allocated for anti-choice purposes.” ...
According to McIntyre, anti-choice groups are gender-discriminatory and violate CUSA’s safe space practices.
The motion focuses on anti-choice groups because they aim to abolish freedom of choice by criminalizing abortion. McIntyre said this discriminates against women, and that it violates the Canadian Constitution by removing a woman’s right to “life, liberty and security” of person....
McIntyre said she received complaints after Lifeline organized an academic debate on whether or not elective abortion should be made illegal.
“[These women] were upset the debate was happening on campus in a space that they thought they were safe and protected, and that respected their rights and freedoms,” said McIntyre....
Julien de Bellefeuille, Student Federation of the University of Ottawa vice-president (university affairs), said that although his student association does not currently have any policies regulating anti-choice groups, he said the motion is a good idea and something that his school should adopt as well.
Note that the debate is not over whether abortion should be illegal, but whether advocates of abortion bans can even discuss their position publicly. Ms. McIntyre is arguing straight out, with no possibility of confusion of motives, that she thinks that women who believe as she does should be protected from being anywhere in the vicinity of an opponent of her position (presumably she could protect herself without this motion simply by not listening to such speech, so the purpose most be to eliminate opposing speech altogether.
I have a couple of thoughts. First, there is no right not to be offended. Trying to define any such right will be the end of free speech. Second, its funny how the offense is only treated as one-way. While I am OK with abortion, I have many friends who vociferously oppose it. I am positive they are in turn offended by supporters of abortion, but I don't see any motion here to protect them from offense or provide them a "safe zone" free of opposing views. Third, it strikes me that a better word for the "safe zone" she wants is "echo chamber," where like-minded people as her can be free from having to hear any opposing opinion.
Update: The next item in my inbox happened to be on the same topic, and is from FIRE:
A professor at the University of Idaho has asked students to sign a “statement of understanding” acknowledging that some of the films he shows may have content that is offensive to some students. Inside Higher Ed brings us the story.
In a university culture where the avoidance of offense is considered a sacred principle on many campuses, it’s not surprising that Professor Dennis West would hit on a method already commonly used when engaging in nearly any activity that comes with even a minimal amount of risk. It’s sad that showing films to students can now be considered a risky activity, but it’s not surprising. Episodes like the University of New Hampshire’s reaction to a joking flyer, or Gonzaga’s classification of a flyer as hate speech simply because the flyer contained the word “hate,” make it clear that film professors—who sometimes show graphic, violent, or even merely political films—do indeed have something to worry about. This is a sad commentary on today’s academic culture.
Nativists in their Own Words
He warned “that immigration to this country is increasing and…is making its greatest relative increase from races most alien to the body of the American people and from the lowest and most illiterate classes among those races....half of whom have no occupation and most of whom represent the rudest form of labor,” are “people whom it is very difficult to assimilate and do not promise well for the standard of civilization in the United States.”
[He] complained that many of them “have no money at all. They land in this country without a cent in their pockets.” ...He objected that many “stay but a short time in the United States” in order to “then return to their native country with such money as they have been able to save here.” He warned that these sorts of immigrants, “who come to the United States, reduce the rate of wages by ruinous competition, and then take their savings out of the country, are not desirable. They are mere birds of passage. They form an element in the population which regards home as a foreign country, instead of that in which they live and earn money. They have no interest or stake in the country, and they never become American citizens.”
Whoa, who is that? J.D Hayworth? Tom Tancredo? Surely its someone bashing on Mexican immigration -- the mantra is so familiar.
Well, no. Actually, it is Henry Cabot Lodge, in 1891, most likely referring to your grandparents. In these words, he was speaking mainly of Italians, but they are the same charges made against the Irish in the mid-19th century or Eastern Europeans in the early 20th century or, of course, against Mexicans today. Do you really want to stake out the position that yes, this argument was wrong every time it has been used in the last 200 years but it's suddenly right today?
Are Immigrants Weeds in the Garden?
For some reason, probably because no one there has actually read my blog, the Minutemen Project has me on their email list for press releases. This one caught my eye:
Judge John H. Wilson has stepped out of his judicial robes to write a children’s book. Hot House Flowers is aimed at entertaining and educating children, but adults will find the story an informative and useful object lesson in politics and current events and a cautionary tale to share with family and friends.
Judge Wilson tackles the topic of illegal immigration in an imaginative manner, and the publisher adds a colorful assortment of illustrations to the Judge’s metaphorical story of cartoon “hothouse flowers” which must resist the intrusion of weeds from outside the borders of the protected house.
On first reading this, I wanted to barf. Comparing immigrants to weeds that attack us lovely (Caucasian) flowers is really insulting. However, on second thought, I thought this analogy was somewhat apt.
A hothouse flower is one that can't compete or survive outside of the limited confines of its greenhouse. Rather than being able to survive on its own, a hothouse flower takes a ton of outside care and feeding. The very term "hothouse flower" when applied to a person tends to mean someone who can't really function in the real world. And in some sense this is what our citizens and businesses will become in a Lou-Dobbsian world of limited immigration and trade protectionism, each of us hot house flowers or Marie Antoinette's who have no ability to function in the larger world. We all need healthy interchange and competition with the world at large to stay vital and growing as a country and as individuals.
By the way, a lot of those weeds turn into flowers:
"Over the past 15 years, immigrants have started 25 percent of U.S. public companies that were venture-backed." These businesses employ some 220,000 people in the U.S. and have a current market capitalization that "exceeds $500 billion, adding significant value to the American economy."
Mourning the Loss of Free Speech Through November 7, 2006
In a stunning beat down on one of America's longest-held and most sacred principles, your first ammendment rights to criticize incumbent politicians, at least on radio and TV, are suspended from now until the November 7 election. Congress has decided, and incredibly the Supreme
Court has concurred, that only members of the media, including intellectual giants like Bill O'Reilly and Keith Olbermann, can legally criticize sitting politicians on TV and radio in the runup to the election. These restrictions also came very, very close to applying to this and all other blogs. John McCain, Russ Feingold, and everyone who voted for this un-American incumbent protection act need to be voted out of office at our next opportunity. Update: Nice roundup here.
Don't Be Afraid to Let Your Enemy Speak
In this post, when I said that I thought the university had a duty to intervene with protests only when the protests had the effect of silencing or preventing invited speakers from speaking, this is the type of thing I was talking about:
Students stormed the stage at Columbia University's Roone auditorium yesterday, knocking over chairs and tables and attacking Jim Gilchrist, the founder of the Minutemen, a group that patrols the border between America and Mexico.
Mr. Gilchrist and Marvin Stewart, another member of his group, were in the process of giving a speech at the invitation of the Columbia College Republicans. They were escorted off the stage unharmed and exited the auditorium by a back door.
Having wreaked havoc onstage, the students unrolled a banner that read, in both Arabic and English, "No one is ever illegal." As security guards closed the curtains and began escorting people from the auditorium, the students jumped from the stage, pumping their fists, chanting victoriously, "Si se pudo, si se pudo," Spanish for "Yes we could!"
I don' t think such thuggery is protected by the first ammendment, and certainly a private institution should be able to make sure their invited speakers actually get to speak. Columbia really needs to rethink its free speech policies, if it allows this behavior to occur but shuts down the hockey team for this.
By the way, I am a strong detractor of the Minutemen, their goals, and the activities. It's good for the soul - everyone should take the time to defend the free speech of someone they disagree with. Mr. Gilchrist should have been allowed to speak. This is unfortunately yet another example of where I am horrified by the actions of people who agree with me. I mean, from a PR standpoint alone, the Minutemen could not have scripted a protest that would have done more than this one to enrage and energize its supporters. STUPID! For my fellow travellers in the pro-immigration movement, I would suggest you read this: Why its good to let your enemies speak.
Update: I was correct -- immigration foes are using this stupidity as a rallying cry. While I often disagree quite strongly with LGF on this issue, they have a good quote from the perpetrators of this protest that highlights exactly the "free speech for me but not for thee" logic that I hate. First they say, as all free speech opponents say:
We celebrate free speech.
Uh, OK. Then they continue:
for that reason we allowed the Minutemen to speak
Mr. Gilchrist was an invited guest of a private institution. Your permission is not required or relevant. The implication is that you somehow have a veto over everyone's speech, and they speak at your sufferance. And finally this:
The Minutemen are not a legitimate voice in the debate on immigration.
This is the key, absolutely dangerous assumption that all-too-many people hold in this country. That somehow speech can be parsed into "legitimate" and "illegitimate", with the clear implication that illegitimate speech has no first amendment protection. But who decides what is legitimate? Of course, implicit to anyone who says this, is the assumption that "why, me and my guys would decide." It is for this reason I have opposed "hate speech" laws in the past.
We've Got the First Ammendment on the Run
Seattle—as the comprehensive and sustained attack on Americans' freedom of political speech intensifies, this city has become a battleground. Campaign-finance "reformers," who advocate ever-increasing government regulation of the quantity, timing and content of political speech, always argue that they want to regulate "only" money, which, they say, leaves speech unaffected. But here they argue that political speech is money, and hence must be regulated. By demanding that the speech of two talk-radio hosts be monetized and strictly limited, reformers reveal the next stage in their stealthy repeal of the First Amendment.
I was living in Seattle at the time. These were not political operatives, like a James Carville, moonlighting as talk radio hosts. They were just radio guys who found an issue, no more or less than say Oprah when she focuses her audience on Alar or BGH or whatever. Read the whole thing, but note that, in the name of campaign finance reform which is ostensibly about not letting money rule politics, the government is going after the side that was outspent five to one. But this is not about campaign finance reform. This is about protecting the government and its officials from criticism.
This is the America produced by "reformers" led by John McCain. The U.S. Supreme Court, in affirming the constitutionality of the McCain-Feingold speech restrictions, advocated deference toward elected officials when they write laws regulating speech about elected officials and their deeds. This turned the First Amendment from the foundation of robust politics into a constitutional trifle to be "balanced" against competing considerations—combating the "appearance of corruption," or elevating political discourse or something. As a result, attempts to use campaign regulations to silence opponents are becoming a routine part of vicious political combat.
Requiem for the First Ammendment?
This study pops up every year or so, and every time I see it I can't believe the results. 100,000 high school students surveyed, along with 8000 teachers:
- 54 percent of the students said all newspapers should be able to publish freely without government approval, up from 51 percent in 2004.
- Students say they felt the First Amendment as a whole goes too far. In 2006, 45 percent said the First Amendment goes too far, versus 35 percent two years ago.
- In 2004, 38 percent of teachers thought the press had too much freedom. That figure dropped in 2006 to 29 percent. Student attitudes are improving as well, though more slowly. In 2004, 32 percent thought the press has too much freedom. In 2006, that figure dropped to 30 percent.
I guess I won't panic, as some of this is probably just high school kids being muddle-headed about everything. It would be interesting to see if these attitudes are being caused more by leftish fears (e.g. political correctness, don't say anything bad about women or minorities or gays or handicapped or...) or by rightish fears (e.g. national security activities)
Hat Tip: Hit and Run
More Anti-Immigration Scare Stats
A while back, I pointed out that immigration opponents seemed to be depending on American's having poor match skills and a pathetic knowledge of history. Today in this post from Captain's Quarters we find more statistical funny business. Captain Ed, like many conservatives, have been stumping for the US to build a big honking fence at the border, nominally as part of the war on terrorism.
Of course according to supporters it is only about security, not xenophobia, which explains why the fence proposal in Congress covers both our northern and southern borders since both are equally porous to terrorists. Oh, wait, the law only covers the southern border? Oh. Well, I hope terrorists can't read a map and don't notice that the northern border is three times as long and in many cases more unpopulated and unguarded than the southern border.
Anyway, another "security" argument by immigration foes is that hordes of criminals are apparently pouring across the border, and walls are proposed as a way to stop them. The Captain quotes Bill Frist:
One of the most important and most effective ways that we can stop illegal immigration is through the construction and proper maintenance of physical fences along the highest trafficked, most commonly violated sections of our border with Mexico.
Take the case of San Diego. According to the FBI Crime Index, crime in San Diego County dropped 56.3% between 1989 and 2000, after a fence stretching from the Ocean to the mountains near San Diego was substantially completed. And, according to numbers provided by the San Diego Sector Border Patrol in February 2004, apprehensions decreased from 531,689 in 1993 to 111,515 in 2003.
Whoa. That sounds impressive. But, remember what I often say on this site -- correlation is not causation. Indeed, it is not just random chance that he picked the years 1989 - 2000. Those were the years that nearly every part of the US saw a huge drop in its crime rate. Using this data for these years, and presuming Frist is using the crime rate index per 100,000 people, which is the stat that makes the most sense, here are some figures for 1989 - 2000:
Crime Rate Change, 1989-2000:
US : - 28%
California: - 45%
New York: -51%
Wow! The border fence in San Diego even had a similarly large effect on crime in New York State! That thing is amazing. Oh, and note these are state figures. My understanding is that the figures for large metropolitan areas is even more dramatic. So what happened in 1989 to 2000 is every state and in particular every large metropolitan area in the country saw huge double digit drops in crime, and San Diego was no exception. But Frist tries to give credit to the border fence.
In case you want to believe that Frist does not know what he is doing with these stats (ie that he wasn't intentionally trying to give credit for a national demographic trend to a border fence in San Diego) notice that 1989 was the US crime rate peak and 2000 was the US crime rate low point. So with data for the years up to 2005 available, he just happens to end his period at 2000. Oh, and the new style fences he wants to emulate were actually only started in 1996 (and here, search for "triple fence"), AFTER most of these crime gains had been made. Correlation definitely does not equal causation when the proposed cause occurred after the effect.
For all of you who always wanted to live in Soviet East Berlin, you may soon get a good taste of that experience:
The first fence, 10 feet high, is made of welded metal panels. The second fence, 15 feet high, consists of steel mesh, and the top is angled inward to make it harder to climb over. Finally, in high-traffic areas, there's also a smaller chain-link fence. In between the two main fences is 150 feet of "no man's land," an area that the Border Patrol sweeps with flood lights and trucks, and soon, surveillance cameras.
Below are views of Nogales, AZ and Berlin. Nothing alike. Nope. Totally different.
Finally, I will give the last word to Frist, bold added.
That’s why I strongly support the Secure Fence Act of 2006 … and that’s why I’m bringing this crucial legislation to the floor of the Senate this week for an up-or-down vote. By authorizing the construction of over 700 miles of two-layered reinforced fencing along our southwest border and by mandating the use of cameras, ground sensors, UAVs and other forms of hi-tech surveillance, this legislation would help us gain control over every inch of our borders – once and for all.
"gain control over every inch of our borders," except, or course, for those
3000 5525 miles (350 million inches) to the north where the people on the other side have the courtesy not to speak a foreign language. But its hard to demagogue well about a threat from Canadians, since they are mostly WASPs like we mostly are, or at least it has been for the last 100 years or so. 54-40 or fight!
Update: Here is that terrifying Canadian border barrier (from this site). This demonstrates why our terrorist security dollars need to all be invested on the southern border, since this one is already locked down tight. Heck, there is one of these babies (below) every mile! Beware terrorists!
And don't forget these terrorist-proof border checkpoints along our northern frontier:
But it's not about race.
Update 2: Yes, my emailers are correct. I did not actually give Frist the last word like I said I would. Gosh, I feel so bad about that.
You Can't Make Decisions for Yourself
A frequent topic of this blog is to point out situations where technocrats translate their distrust for individual decision-making into the justification for government control.
Kevin Drum provides me with one of the best examples I have seen of late of this phenomena of using distrust of individual decision-making to justify government intervention, in part because he is so honest and up-front about it. I usually try not to quote another blogger's posts in total, because I want to give folks an incentive to go visit the site, but in this case I need to show the whole thing (the extensive comments are still worth a visit):
If we treat healthcare like any other market, allowing consumers free rein to purchase the services they like best, will it produce high quality results? A recent study suggests not:
Researchers from the Rand Corp. think tank, the University of California at Los Angeles and the federal Department of Veterans Affairs asked 236 elderly patients at two big managed-care plans, one in the Southwest and the other in the Northeast, to rate the medical care they were getting. The average score was high — about 8.9 on a scale from zero to 10.
....In the second part of their study, the medical researchers systematically examined 13 months of medical records to gauge the quality of care the same elderly patients had received....The average score wasn't as impressive as those in the patient-satisfaction surveys: 5.5 on a 10-point scale. But here's the interesting part: Those patients who graded the quality of their care as 10 weren't any more likely to be getting high-quality care than those who gave it a grade of 5. The most-satisfied patients didn't get better medical care than the least-satisfied.
Surprise! Patients are poor judges of whether they're getting good care. And if consumer preferences don't map to high quality care, then a free market in healthcare won't necessarily produce better results or higher efficiency, as it does in most markets.
Back to the drawing board. Perhaps a national healthcare system would be a better bet to reduce costs, cover more people, provide patients with more flexibility, and produce superior outcomes. After all, why are we satisfied with allowing the French to have a better healthcare system than ours even though we're half again richer than them?
There is it, in black and white: Most of you individual slobs out there cannot be trusted to make good health care decisions for yourselves, so the government should do it for you. (And by the way, who the hell thinks the French have a better health care system, but that's off-topic for today).
Here is the false premise: If the intellectuals who ran the study judged that the individuals involved were getting poor care when the individuals themselves thought is was good care, this does not necessarily mean the individuals being studied were wrong. It may very well mean they have different criteria for judging health care quality and value. In fact, what goes unquestioned here, and I guess the reader is supposed to swallow, is that there is some sort of Platonic ideal of "high-quality care" that the people who run this study have access to.
But this is ridiculous. Does high-quality mean fast? painless? private? successful? pleasant? convenient? I, for example, have all the patience of an 8-year-old who just ate three pieces of birthday cake washed down by two Cokes. I need stuff now, now, now. I hate gourmet restaurants where meals take 3 hours. Many gourmands, on the other hand, would probably shoot themselves before eating some of the food I eat. We have different standards.
Let's take an example from another industry: Cars. Every year, the "experts" at Consumer Reports and Car and Driver try out all the new cars and publish the two or three they think are the best. So, does this mean that everyone who does not buy one of these cars selected by the experts as the best are making a bad decision? Does this fact tell us the government should step in and buy their cars for them because they can't be trusted to make the right evaluations? NO! Of course not. It means that the people who buy other types of cars have different criteria and priorities in judging what a "high-quality" car is. Some want high gas mileage. Some want a tight interior with leather. Some want a big honkin' engine. Some want a truck jacked way up in the air. Some want room to carry five kids. You get the idea.
There are at least two better explanations for the study results. Let's first be clear what the study results were: The study found that the patients studied graded health care differently than did the people who ran the study. That's all it found. This could mean that the intellectuals who ran the study and the individuals studied judged care on different dimensions and with different priorities. Or it could mean that the individuals studied had incomplete information about their care and their choices. Neither justifies a government takeover of the industry. (In fact, to the latter point about information, markets that are truly allowed by the government to be free, which health care has not, often develop information sources for consumers, like the car magazines mentioned above.)
The thinking in Drum's post betrays the elitist-technocratic impulses behind a lot of the world's bad government. Look at "progressive" causes around the world, and you will see a unifying theme of individual decisions that are not trusted, whether its a poor Chinese farmer who can't be trusted to choose the right factory work or an American worker who can't be trusted to make her own investment decisions for retirement.
Postscript: In some past era, I might have called this one of the worst excuses for fascism I had ever heard. Unfortunately, Brad DeLong recently took that title with his post that the government needs to take even more money from the rich because the rich are ostentatious and that hurts other people's feelings. No really, I don't exaggerate, he said exactly that. If somehow you have missed this one, look here.
Wanted: Honesty of Purpose
Apparently, conservative Republicans are gearing up for a big Congressional push on "border security", hoping to decouple it from any discussion of immigration liberalization.
I know from my email and comments that many of my readers disagree with my stand for open immigration. Reasonable people can disagree, but the hypocrisy of the "border security" and its linking to the war on terror really set me on edge.
If you are a "border security" supporter, then say what you mean -- that you want to string a lot of razor wire and enlist the US Army to secure the border from ... poor people looking for a job. I get email every other day from the "minutemen" who triumph their brave defense of the border. I will virtually guarantee that they have not found a single terrorist and probably have not found a single person coming over the border solely for criminal intent, and that 100% of their impact has been to set the authorities on people who are looking for work. Yes I know that foreign born people looking for work in the US without the proper paperwork is currently illegal, but so is speeding and making a rolling stop at a stop sign (which are, by the way, a lot more dangerous). The question is, who is being harmed? To be precise, the government's job is not to "secure the borders" but to "secure its citizens". Doing so presupposes we can clearly state, "against what?"
Yeah, but what about the terrorists? Don't make me laugh. There are so many other, easier ways for a terrorist to get into the US that every terrorist act to date has been committed by people who came through normal border checkpoints and not across the Sonoran desert. And I have written several times about open immigration would actually make it harder on known terrorists entering illegally, by eliminating the camouflage of other people crossing the desert for them to hide in. And besides, every plan I have ever seen of late involves a wall along the Mexican border, but nothing along the Canadian border. A terrorist can sneak over either just as easily, so a plan that was really aimed at terrorism would be putting walls on both borders.
I am sympathetic to the argument that you can't provide full government handouts, err, benefits to everyone who shows up at the border. So fix the eligibility rules on government benefits, as I suggested in my plan here.
So lets be honest. If you want border security, lets not pretend that a wall along the Mexican border is about terrorism or security. Its about stopping people who were not born in this country from working here. Though I am opposed to the efforts, it is actually kind of refreshing to see nativist groups going after day labor centers. This at least represents an honest and open statement of their intentions, that they want to prevent a certain class of people from getting work.
Free Speech, But Only If Its Bilateral
I sense I am in the minority on this (what's new) but I just don't understand the outrage directed at the decision to let Muhammad Khatemi into the US for some speaking engagements. I guess I am enjoying the spectacle, though, of conservatives attacking McCain-Feingold for limiting free speech and then attacking the state department for letting a former head of state (albeit a fairly crazy one) into the country to, uh, speak.
The letter says that allowing Mr. Khatemi to visit America "undermines U.S. national security interests with respect to Iran and the broader Middle East." It also says permitting Mr. Khatemi's "unrestricted travel through the United States runs contrary to U.S. priorities regarding homeland security."
Taking the first part of this objection, I suppose they are arguing that granting this person a visa is somehow a reward, and we don't want to reward Iran. Now, I will confess that Iran sucks, but I don't get how this rewards them or sets back our cause. Yes, if he was received in the White House or by a prominent government official, I can understand it, and I would oppose doing so. Besides, when our former head of state Jimmy Carter goes to other countries, the trips always seem to have the opposite effect that people fear here, as he tends to hurt rather than somehow advance his home country's interests every time.
As to the second part, I could understand it if someone had a legitimate concern that this was a terrorist leader and he would be spending his time visiting and organizing terrorist cells, but I have not seen anyone make that claim. Besides, if I was in the FBI, I would love it if he was here to do that, and would follow him all over the place. The CIA and FBI often leave known agents in place, because it is much easier to stay on top of the person you know about than the person you don't. A high profile visit by Khatemi should be the least of our security concerns.
This just strikes me as one of those silly political loyalty tests that Democrats seem to like to conduct on domestic policy and Republicans conduct on foreign policy. If you let this guy in, you are branded as a supporter of terrorism and fascism and whatever else.
I am constantly irritated by efforts to ban a certain speaker from speaking or to drown out their message with taunts and chanting. If you think someone is advocating something so terrible - let him talk. If you are right in your judgment, their speech will likely rally people to your side in opposition. As I like to tell students who want to ban speakers from campus -- Hitler told everyone exactly what he was going to do if people had bothered to pay attention.
By the way, in explanation of the title of this post, I was reacting to something quoted from Rick Santorum. Now, I often hesitate to react to comments by Santorum, because, like Howard Dean and a few others, he is sort of a human walking straw man. But here goes:
On it, Mr. Santorum, who has cut his deficit against his Senate challenger in Pennsylvania to single digits, wrote that he should be granted a visa only if Iran allows their people to hear "free American voices."
Mr. Santorum wrote: "We should insist, at a minimum, that the Iranian people can hear free American voices. Iran is frightened of freedom. They are jamming our radio and television broadcasts and tearing down television satellite dishes in all the major cities of the country. It seems only fair that we be able to speak to the Iranians suffering under a regime of which Muhammad Khatemi is an integral part."
So now are we going to allow people free speech only if their country does so in a bilateral manner? All you Americans of North Korean, Chinese, Iranian, Saudi Arabian, Venezuelan, etc. decent, Beware! This logic betrays a theory of government that rights don't extend from the fact of our existence, but are concessions granted by the government. By this logic, people have free speech only as long as the government allows it, and the government has the right to trade away an individual's free speech as a part of a negotiation.
Immigration Opponents Depend on Bad Public Schools
I have been spammed several times with messages breathlessly telling me I have to watch this video about why the free flow of people from poorer nations into the US looking for opportunity is so disastrous. I had nothing else to do in my hotel room, so I watched a bit.
The video clearly relies on the fact that American students have had crappy education into US history. He uses the period of 1925-1965 as his base period, to show how much higher immigration rates are today than in these years. To try to make current immigration seem out of line, he gives us the first real whopper of the video - he actually calls 1925-1965 the "golden age of American immigration", implying it was an era of free and open immigration and representative of a high rate of immigration. Anyone with any sort of history education should be able to smell a rat - after all, wasn't the late 19th and early 20th century the real period of immigration into this country?
In fact, 1925-1965 was, on the metric of immigration as a percentage of US population (the correct way to index the number) the LOWEST and most restrictionist period of immigration in our entire history. In fact, 1925-1965 was the golden age of xenophobic restriction laws (aimed mainly at that time at southern and eastern Europeans).
So, after the lecturer began his talk by saying that white is black, I was obviously not really interested in the rest (not to mention the fact that he for some reason reminded me of across between Rutger Hauer and Crispin Glover playing a creepy takeover-the-world villain). He tries to take an environmental approach, I guess to try to lure the Left into the nativist camp. I will say his upward sloping population charts are pretty funny, given that they have absolutely no relationship to any credible forecast. He seems to take the global warming modeler's approach to shifting assumptions to get that big hockey stick. His argument is ridiculous, though. If you believe that a unit of population brings with it a measure of environmental harm, then immigration doesn't really change the net harm to the globe, it only moves its effects around. And I would argue that the US with its wealth and attention to environmental matters is in a far better position to mitigate these effects than say Mexico. I addressed this conservative retread of Paul Ehrlich population bomb panic here.
Martial Law in Washington DC
I thought the city of Washington DC had declared a "Crime emergency" because there was too much crime. Apparently not, since they have created a whole new class of criminals: 16-year-olds who are ... shudder ... out and about after 10PM.
D.C. Police Chief Charles H. Ramsey said yesterday that the city had to set the new 10 p.m. curfew for youths 16 and younger because of "irresponsible" parents who don't control their children.
"You shouldn't need a curfew if you've got parents who are responsible," Ramsey said on Washington Post Radio. "But unfortunately we've got some parents here that are totally irresponsible. Their idea of raising a kid is throwing a kid out of the house and letting them straggle back in at 2 o' clock in the morning."
Hat tip to Reason's Hit and Run, which had this comment:
It's not that city officials want to play parent to every kid in the district. It's just that, gosh, turns out law enforcement professionals are better parents.
Props by the way to Phoenix New Times reporter John Dougherty, whose longstanding reporting on Sheriff Joe is reminiscent of the tough, confrontational local reporting of old. Of course, there's no room for that in the milquetoast pander-to-the-local-pols reality of big-city newspapers today, so Dougherty is relegated to the local alternative paper (which may not be fair -- I don't know Mr. Dougherty -- he may prefer to be where he is). Sheriff Joe is popular here in Phoenix, so the Arizona Republic (the big paper here) panders to him rather than risk confronting a popular figure. The fact that one of Sheriff Joe's family helps run the Arizona Republic's editorial page may also have something to do with it.
Spanish Derangement Syndrome
I have written several times about the phenomena of certain nativist Americans who get absolutely freaked out whenever they even encounter Spanish in the good old USA. Here is another example of what I have started calling Spanish Derangement Syndrome:
A Spanish-language billboard promoting iced coffee is getting a chilly reception from some Bogota officials.
Mayor Steve Lonegan said the McDonald's billboard on River Road near Elm Avenue and the railroad overpass is offensive because it sends the message that Spanish speakers and immigrants do not need to learn how to speak English.
Boy would this guy ever blow a gasket here in Phoenix! So I have a counter proposal. Everywhere that Steve Lonegan travels overseas, I think they should remove their English signs and everyone should refuse to speak English. No English signs in airports, no English-speaking people at the hotel desk, no International Herald Tribune on the newsstand. After all, having English signs and English-speaking customer contact people all over, say, Germany, just sends the message that Americans don't have to learn German to travel there.
I am reminded that nearly every country in the world has an "American School" where expats send their kids to learn in English and avoid as much contact and assimilation as possible with the local populous. For example, I had several business associates in Singapore who all sent their kids to the local American School. Can you imagine what a hissy-fit nativists in the US would throw if there were similar Mexican schools in the US?
Update: By the way, I don't have any particular problem with English as a criteria for citizenship, but not for mere presence in the country. Note that I don't consider citizenship the restrictive license that nativists do, as I explained here, among other places.
Also, one would be hard-pressed to argue that the Constitution somehow restricts first amendment speech protections to speech made in English.
Update #2: Formatting has wigged out a couple of times with this post, with the word "English" formatted out on separate lines each time it appears. Weird. Hacker?
WSJ on Immigration
I was happy to see the Wall Street Journal come forward with an editorial favoring open immigration (this one is in their non-subscription area). I am even happier to see that they lead with the issue of fundamental human rights, not with the weak argument of who is to pick the lettuce.
Our own view is that a philosophy of "free markets and free people" includes flexible labor markets. At a fundamental level, this is a matter of freedom and human dignity. These migrants are freely contracting for their labor, which is a basic human right. Far from selling their labor "cheap," they are traveling to the U.S. to sell it more dearly and improve their lives. Like millions of Americans before them, they and certainly their children climb the economic ladder as their skills and education increase.
We realize that critics are not inventing the manifold problems that can arise from illegal immigration: Trespassing, violent crime, overcrowded hospital emergency rooms, document counterfeiting, human smuggling, corpses in the Arizona desert, and a sense that the government has lost control of the border. But all of these result, ultimately, from too many immigrants chasing too few U.S. visas.
Those migrating here to make a better life for themselves and their families would much prefer to come legally. Give them more legal ways to enter the country, and we are likely to reduce illegal immigration far more effectively than any physical barrier along the Rio Grande ever could. This is not about rewarding bad behavior. It's about bringing immigration policy in line with economic and human reality. And the reality is that the U.S. has a growing demand for workers, while Mexico has both a large supply of such workers and too few jobs at home.
The WSJ argues that polls show that most conservatives are similar-minded. I'm am not a conservative and don't speak for them, but from the flavor of my email on my pro-immigration posts and from reading various conservative blogs, I have trouble believing it.
I have a number of posts on immigration, but you should start with this one.
Happy Fourth of July
Happy Birthday to the greatestn nation on earth. I spend a lot of time criticizing our leaders and their policies, but there is no place else I would live. The US Constitution is still, over two-hundred years after its creation, the greatest single document ever written. Many other countries since have written constitutions and spilled tons of ink pontificating on theories of government, but none have had similar success in protecting individual rights while creating an environment where every individual can focus their productive energies in whatever direction they choose with generally minimal interference.
A while back I wrote about how wealth was created, and I pointed out that the great leaps we have made in human well-being over the last two hundred or so years stem from two effects:
- There was a philosophical and intellectual change where questioning established beliefs and social patterns went from being heresy and unthinkable to being acceptable, and even in vogue. In other words, men, at first just the elite but soon everyone, were urged to use their mind rather than just relying on established beliefs
- There were social and political changes that greatly increased the number of people capable of entrepreneurship. Before this time, the vast vast majority of people were locked into social positions that allowed them no flexibility to act on a good idea, even if they had one. By starting to create a large and free middle class, first in the Netherlands and England and then in the US, more people had the ability to use their mind to create new wealth. Whereas before, perhaps 1% or less of any population really had the freedom to truly act on their ideas, after 1700 many more people began to have this freedom.
Sure, our leaders, our military, and sometimes the nation as a whole screws up. I and others are quick to point these screw-ups out and sometimes we find ourselves wallowing in them. But at the end of the day, unlike in the majority of countries in the world, these screw-ups are treated as such, talked about and debated, and dealt with rather than treated as the norm.
Take the US military in an occupying role in Iraq. Out of 100,000 or so people, you are going to have some criminals who commit criminal acts, even in the military. The US army, unlike nearly every occupying army in history, generally treats its soldiers' crimes as crimes, and not as the inherent right of victors to rape and pillage. US soldiers who have committed crimes in Iraq will generally go to jail, while worse malefactors in most armies, even the holier-than-thou UN peacekeepers who seem to be engaging in rape and white slavery around the world, generally go unpunished. For all the crap the US military takes around the world, I bet you that if you took an honest vote on the question of "Which world army would you choose to occupy your country if you lost a war" most people would answer the US. If for no other reason because, despite all the charges of imperialism, our armies eventually leave rather than remain on as lingering masters.
So tomorrow, I will start dealing out more crap to our leaders, to the administration, to Congress, to the SCOTUS, and most especially to most every bureaucrat who thinks they can better manage my business or my property. But today I will step back and see the forest rather than the trees, and observe I am dang lucky to be an American.
For further thoughts, I refer you to my essay last year where I opined that many Americans miss the true greatness of America. They tend to celebrate first the "right to vote", when in fact many people get to vote but few enjoy the freedoms we do. The greatness of our country is in our protection of individual liberties and the rule of law. And the great insight our country was founded with is that rights flow from the very fact of our humanity -- they are not granted to us by kings or Congress. This last is perhaps most important, as I wrote:
At the end of the day, our freedoms in this country will only last so long as we as a nation continue to hold to the principle that our rights as individuals are our own, and the government's job is to protect them, not to ration them. Without this common belief, all the other institutions we have discussed, from voting to the rule of law to the Constitution, can be subverted in time
Now I am off to see Buckingham Palace. If I see the Queen, would it be in bad taste to wish her a happy Fourth of July?
Thoughts on Detentions
One of the problems I have making common cause with many of the civil rights critics of the Bush administration is that they tend to hurt legitimate civil rights by exaggerating their claims into the ridiculous.
A good example is detentions at Gitmo. I believe strongly that the Bush administration's invented concept of unlimited-length detentions without trial or judicial review is obscene and needed to be halted. But critics of Bush quickly shifted the focus to "torture" at Gitmo, a charge that in light of the facts appears ridiculous to most rational people, including me. As a result, the administration's desire to hold people indefinitely without due process has been aided by Bush's critics, who have shifted the focus to a subject that is much more easily defended on the facts.
Interestingly, as I watch the Beeb this morning, Britain is having a similar debate. Its hard to figure the whole thing out from the TV coverage and sound bites, but apparently Britain has the ability to detain suspected terrorists for 90 days, and wants the power to extend this.
Many people have told me that I am an insanely naive Pollyanna for not accepting the need for indefinite detention without trial of suspected terrorists. I have explained in the past that we don't have the right to do this with our own citizens, but we also don't have the right to do this with any other human being (the short explanation: The individual rights we hold dear are our rights as human beings, NOT as citizens. They flow from our very existence, not from our government and not from the fact of our citizenship. In some ways, the government probably has less right to abuse non-citizens, not more).
Here is a test: If the government had always had this power, ie to detain indefinitely people it thought somehow "dangerous" to "someone" (with the government getting to define both these terms), how abused would it have been in the past. My answer is "very much". Who would J. Edgar Hoover have detained? Would Martin Luther King have spent his life in jail, much like Nelson Mandela?
By the way, I have no idea what Hamdan vs. Rumsfeld means for all this, since I haven't read it and pundits seem to disagree on what it means (unfortunately, this may be something we live with a while, a feature of the new muddled "Justice Kennedy compromise" we seem to have to live with on a number of decisions). If anyone thinks they have seen a definitive analysis, please link it in the comments.