Archive for the ‘Individual Rights’ Category.

Well, It Worked For Bypassing the First Amendment

CNN: Biden Admin Wants to Outsource Spying on Americans to Private Firms to Bypass Fourth Amendment

The Biden administration is considering using private firms to track the online activity of American citizens in order to get around the Fourth Amendment and other laws that protect Americans from unreasonable searches and seizures and surveillance. The report says that the Biden administration wants to monitor “extremist chatter by Americans online” but can’t do so without a warrant, and thinks private firms can get around the legal restrictions.

Free Speech: Congress Shall Make No Law.... But Does That Include Threats and Blackmail?

From Glenn Greenwald, whose email blast is well worth the money:

Over the course of five-plus hours on Thursday, a House Committee along with two subcommittees badgered three tech CEOs, repeatedly demanding that they censor more political content from their platforms and vowing legislative retaliation if they fail to comply. The hearing — convened by the House Energy and Commerce Committee’s Chair Rep. Frank Pallone, Jr. (D-NJ), and the two Chairs of its Subcommittees, Mike Doyle (D-PA) and Jan Schakowsky (D-IL) — was one of the most stunning displays of the growing authoritarian effort in Congress to commandeer the control which these companies wield over political discourse for their own political interests and purposes.

As I noted when I reported last month on the scheduling of this hearing, this was “the third time in less than five months that the U.S. Congress has summoned the CEOs of social media companies to appear before them with the explicit intent to pressure and coerce them to censor more content from their platforms.” The bulk of Thursday’s lengthy hearing consisted of one Democratic member after the next complaining that Facebook CEO Mark Zuckerberg, Google/Alphabet CEO Sundar Pachai and Twitter CEO Jack Dorsey have failed in their duties to censor political voices and ideological content that these elected officials regard as adversarial or harmful, accompanied by threats that legislative punishment (including possible revocation of Section 230 immunity) is imminent in order to force compliance (Section 230 is the provision of the 1996 Communications Decency Act that shields internet companies from liability for content posted by their users)....

But it is vital not to lose sight of how truly despotic hearings like this are. It is easy to overlook because we have become so accustomed to political leaders successfully demanding that social media companies censor the internet in accordance with their whims. Recall that Parler, at the time it was the most-downloaded app in the country, was removed in January from the Apple and Google Play Stores and then denied internet service by Amazon, only after two very prominent Democratic House members publicly demanded this. At the last pro-censorship hearing convened by Congress, Sen. Ed Markey (D-MA) explicitly declared that the Democrats’ grievance is not that these companies are censoring too much but rather not enough. One Democrat after the next at Thursday’s hearing described all the content on the internet they want gone: or else. Many of them said this explicitly.

Will the First Amendment Die in the Aftermath of January 6?

I have gone about a week now without even opening Twitter, which makes me both mentally healthier as well as slower to post my thoughts on various issues.  But those who were reading me on Twitter earlier in the month know that I am far more worried about the reaction to the events at the Capitol on January 6 (J6) than I ever was about the events themselves.

We are experiencing a weird moment in history as a great number of people, IMO, are grossly over-reacting to what would have been called a "protest gone wrong", a "riot", or a "building occupation" in almost any other circumstances.  Instead, there seems to be a consensus to call the storming of the capital by a bunch of crazy painted selfie-taking, souvenir-hunting knuckleheads an "insurrection."  Even moderates and free speech defenders (I am thinking of folks like Ken White at Popehat) -- people who should know the dangers of using such inflammatory language to drive an exaggerated reaction -- are using this term.  Folks online tell me that this was "Literally the definition of insurrection."  In turn I would say that this is literally the first time the general public has used this term to describe ... anything since the Civil War.  The Native Americans that took over Alcatraz weren't described as insurrectionists.  The Bundies and the Branch Davidians weren't insurrectionists.  Nixon wasn't an insurrectionist.  The Antifa and anarchist folks declaring independent nations in the center of Seattle weren't insurrectionists.  But by God the dude in the Fred Flintstone water buffalo hat was an insurrectionist.

Since I tend to criticize people for assuming single-dimension solutions to complex issues, I can think of multiple reasons why reactions to J6 might be exaggerated:

  • Some folks are nearly insane on any topic touching Trump.  I am going to write my retrospective on Trump later, but in short I consider him to be a bully with bad policy instincts who gathered followers by bullying folks on the Left that the Right doesn't like.  He was a disaster for the dignity of the office and public discourse -- though his opposition has some blame too for the latter -- but (consistent with my contention that our system is robust to tyrants) who did remarkably little damage from an actual policy standpoint.  But given that the anti-Trump media has been incredibly harsh on perfectly peaceful Trump gatherings, a riot and occupation of the capital is going to send some folks into orbit.
  • There is a clear asymmetry in how the media covers protests from the Left vs. form the Right.  I believe I can state this as a fact without bias, particularly since I tend to be more sympathetic to the drivers behind 2020 Leftish protests and violence  than to the motives of the J6 rioters.
  • The US Capitol building obviously has special symbolic value, though I think this targeting is more a function of how dumb this J6 group was rather than any special evil on its part.  I think many, many other groups Left and Right might have tried this themselves if they thought it was possible.  But who believed that the Capitol police, which has more officers than some large cities just to cover about 4 buildings, would show all the defensive prowess of an NBA all-star game?
  • I do think that a lot of the overwrought response to this is because it happened inside the beltway.  If this happened in Portland (and a mini version seems to happen there most evenings), it might not make the news.
  • I hate to be cynical, but I do also think there is an element who have focused-grouped the "insurrection" word and inserted it in the narrative in order to prepare the ground for the maximum amount of ex post political retribution and speech restrictions.  These are the folks who are essentially emulating that greatest of all 20th century de-platforming events, the Reichstag Fire Decree.  The lesson from those events and many others in history:  Hang the actions of one mentally ill Dutchman with a lighter on all your tens of millions of political enemies.  Pretend every person of goodwill who disagrees with you is personally responsible for the actions of extremist yahoos.

So in response to all this I was going to write about an article Will Wilkinson wrote at the Niskanen Center the other day (I would describe both Wilkinson and Niskanen as Leftish but at least within sight of the middle of the road but both have had some of the quality of their work reduced over the last 2 years with what I consider an irrational level of Trump hatred).  Given this source from a long-time member of the libertarian community, I found this article he wrote hugely depressing (since I first read it, Wilkinson's byline has been removed, probably for reasons we will get to in a moment).

I am going to leave aside the Trump impeachment stuff, which is a lot of the article.  I will just note the absolutely over-dramatic presentation and suggest there is a deep deep anger here that is simply not compatible with the policy role he wants to play.   I guess if you demanded I take a side, I would say that prosecuting your political enemies that you beat in the last election is a bad precedent.   Even the Republicans in Congress, after the unseemly "lock her up" campaign chants in 2016, managed to mostly avoid the temptation with Clinton and others.   Before I move on, I have to present this bit from the impeachment portion of his piece:

There is too much at stake to further delay mounting a trial, or to draw it out for days or weeks past Biden’s inauguration. There is no need for a lengthy Senate trial because the facts that justify impeachment and removal are not obscure.

It is interesting to see the Niskanen center parroting the words of every law-and-order Conservative demanding some dude get lynched because "we all know he's guilty."  I think it is clear to most folks that Trump was insufficiently diligent in restraining the fringes of his party.  But to convict Trump of  "[sending] his mob to the Capitol to make that threat vivid in the minds of legislators" is a stretch, and does actually need to be proved and not asserted.  I actually am not sure Trump is guilty of an act of commission for J6 -- I see him more as the sorcerer's apprentice, messing with forces he didn't really understand and having it spin out of control.  Which is a good reason to get him out of office, but not necessarily sufficient for Congress to attempt a bill of attainder against Trump under the banner of an impeachment of a dude who is already gone.

But it is the part that followed that really depressed me, leaving me to wonder if there is any intellectual support for the First Amendment any more:

Blame for the insurrectionary riots cannot be laid entirely at Donald Trump’s feet. Many Congress members actively encouraged Americans to believe that the election was tainted by fraud, that Biden may not have been legitimately elected, and that our democracy could be irreparably harmed should he be allowed to take office. They should be held responsible for the dire consequences of propagating these lies. The worst offenders may merit official censure or worse. Most deserve to be abandoned by donors, saddled with strong primary challengers, and punished by voters at the ballot box.

It appears that some Republican members did more than amplify destabilizing falsehoods. Some may have actively planned to bring a mob to the Capitol steps with the intent of influencing the electoral count. If that is the case, they should be removed from Congress and face criminal prosecution.

However, it is essential that any such sanctions imposed on Congress members be grounded in a scrupulous, comprehensive accounting of the factors that contributed to the siege. This disaster was caused by the opportunistic deployment of lies for political gain. If we are to have any hope of restoring stable, functional, constitutional government, the process by which we investigate these events and mete out justice must be a model of careful, proper procedure.

Amy Zegart and Herbert Lin of Stanford University have developed a careful proposal for a commission on January 6, based on an extensive assessment of past commissions (including the 9/11 commission). Congress should expeditiously create such a commission and commit across the aisle to follow its findings, wherever they may lead.

Wilkinson can use words like "careful", "thoughtful", and "proper" all he wants but the fact is he is advocating asymmetrical punishment (even if the punishment is just the process) for what is fairly normal political invective.  Had Republicans called for a 9/11 commission to investigate Congressional Democrats who voiced support for riots last year that turned violent, I am positive Mr Wilkinson would have blown a gasket.  Raising questions of election fraud is well within the bounds of acceptable political discourse.  As often happens in politics, the discourse can become overheated, with words slipping from "potential fraud" to "illegitimate."  But this again is fairly normal.  Why, we would have to go all the way back to the distant election of 2016 to see a similar example, where many many prominent Democrats argued Trump's election was tainted by fraud (RUSSIA!) and he was illegitimate.  In fact, there were many protesters in DC on Jan 20, 2017 protesting exactly that and a number of them turned violent.  In fact, we might even cite Wilkinson himself, who has written similar things about Trump many times, including this in Vox:

Trump’s presidency has been dogged with doubts about legitimacy from the beginning. There’s a real possibility that he would have lost but for Russian interference. At this point, however, that in itself is not the biggest stain on Trump’s legitimacy.

This is the problem with all calls for speech limitation or retribution of some sort -- they are always asymmetric.  My protest is entirely justified and important -- yours is trivial and a super-spreader event.  My invective is "passion" while my enemy's nearly identical invective is "violent and threatening."   If nothing else, 2020 has been a giant lesson in the hypocrisy of our elites, both public and private.

Which brings us to the rest of the story, where someone turned the irony dial to 11:

Will Wilkinson is a vice president at the left-leaning Niskanen Center, a contributing writer at The New York Times, and someone who has frequently quarreled with me about so-called cancel culture. (I think it's generally bad when people are fired, expelled, or dragged on social media for saying stupid or poorly phrased things they quickly come to regret; Wilkinson has suggested to me that I've made too much of this problem.)

On Wednesday, Wilkinson tweeted, "If Biden really wanted unity, he'd lynch Mike Pence."

Lynching humor is virtually never a good idea, and this joke was especially badly executed. (Wilkinson said he was making a joke not at the former vice president's expense, but in reference to the Capitol rioters who had expressed a similar sentiment. The joke being that this time it was the far right calling for violence against a Republican official rather than the left.)

Nevertheless, widespread outrage—some of it stoked by conservative news sites like The Federalist and The Daily Caller—ensued on social media. Wilkinson apologized, describing his tweet as a lapse in judgment.

"It was sharp sarcasm, but looked like a call for violence," said Wilkinson. "That's always wrong, even as a joke."

Nevertheless, the Niskanen Center fired Wilkinson and made it clear that they did so explicitly because of the tweet. "The Niskanen Center appreciates and encourages interesting and provocative online discourse," wrote Niskanen President Jerry Taylor in a statement. "However we draw the line at statements that are, or can in any way be interpreted as, condoning or promoting violence."

I guess it would be sort of satisfying to react by saying that I was happy to see him hoist on his own petard, but really I am not.  I am not sure how we are going to do it but everyone has to just chill the hell out and accept speech as speech, and not as violence.   I am subscribed to Glen Greenwald's newsletter because he is one of the few folks on the Left who is willing to call out this ridiculous anti-speech culture that is developing.  He has a good column on Wilkinson's firing here, including:

So a completely ordinary and unassuming liberal commentator is in jeopardy of having his career destroyed because of a tweet that no person in good faith could possibly believe was actually advocating violence and which, at worst, could be said to be irresponsibly worded. And this is happening even though everyone knows it is all based on a totally fictitious understanding of what he said.

Greenwald does not say it, but it has become a habit of Trump critics to take his every statement and read it, no matter what the obvious meaning of the words, in the worst possible light.  While this is something folks have been doing in the editorial business since time immemorial, the migration of this pattern in the Trump era to the news division has been toxic.  It started way back at with the treatment of Trump's Charlottesville comments -- these actually surprised me as I for years had accepted that Trump had defended neo-Nazis as was portrayed on every news feed until I actually read his actual comments.  Trump wasn't supporting nazis and Wilkinson wasn't threatening the VP.  Any reasonable person reading either set of comments in context would agree, but we are living in a word dominated by post-modernist narrative.   Greenwald ends with this warning to both sides:

Unleash this monster and one day it will come for you. And you’ll have no principle to credibly invoke in protest when it does. You’ll be left with nothing more than lame and craven pleading that your friends do not deserve the same treatment as your enemies. Force, not principle, will be the sole factor deciding the outcome.

I will end with a few tweets from the same source, because I think he was been spot-on during the past few weeks:

 

 

 

Politicians Should Not Have Access to ANYONE's Tax Returns

Since Richard Nixon weaponized the IRS against his enemies, by mining their tax returns for information he could use against them and calling down onerous audits on them, I thought it was an established principle of liberal democracy in this country that tax returns could not be used politically.  The only people who are supposed to have access to them are people who have legitimate enforcement responsibilities for tax collection.  That means the President and his staff can't rifle through them, and I thought those rules applied to Congress as well.

However, the Democrats in the House of Representatives, who mostly grew up excoriating Nixon's excesses, are now arguing the House should have access to any tax return they wish for any reason.  Of course, this is all playing out vis a vis Donald Trump.  From the WSJ:

The House’s tax-writing committee sued the Treasury Department and the Internal Revenue Service on Tuesday for access to President Trump’s tax returns, hoping federal judges will pry loose records that the administration has refused to hand over.

The lawsuit from the House Ways and Means Committee puts the clash over Mr. Trump’s tax returns and audit records in the courts, exactly where Committee Chairman Richard Neal (D., Mass.) and Treasury Secretary Steven Mnuchinhave predicted for months that it would land.

Mr. Neal is asking the courts to enforce a subpoena that Mr. Mnuchin and IRS Commissioner Charles Rettig have defied and produce the records immediately. The chairman also wants the courts to validate his authority under a tax code section that says he can get any taxpayer’s returns upon request.

Trump's lawyers are likely to argue Presidential privilege, but I hope the defense goes beyond this.  We all should be protected against individuals in Congress conducting fishing expeditions of their political opponents' tax returns.  And this is a fishing expedition, pure and simple.   There is no probably cause or any investigation that credibly needs to inspect some part of the returns.  Congress just wants them so they can fish for ammunition they can use in their political battles against Trump.

Trump is a pain in the *ss as President not just for his irritating demeanor and counter-productive economic nationalism, but also because liberals can't stop themselves from setting illiberal precedents in their desire to bring him down.

 

 

I Am Not Sure This Accomodation Law Needle Can Be Threaded

Via Zero Hedge:

The Washington Post and New York Times have recently opened up their platforms to Op-Eds defending, justifying and promoting abhorrent behavior committed against conservatives. Calling them out is the Washington Examiner's Byron York, who notes that "the toxicity of the resistance to President Trump has risen in recent days," with both papers "publishing rationalizations for denying Trump supporters public accommodation and for doxxing career federal employees."

First up, Stephanie Wilkinson, the owner of the infamous Red Hen restaurant in Lexington, Virginia. Wilkinson unapologetically booted White House spokeswoman Sarah Huckabee Sanders and her family last June. Wilkinson told the Washington Post at the time that her gay employees were too triggered by Sanders to serve her due to the Trump administration's transgender military ban.

It is going to be fascinating to see how these folks on the Left thread the Constitutional needle to make it illegal to refuse to bake cakes for gay weddings but legal to refuse service to Republicans.  My prediction is that someone on the Left is soon going to try and I am sure the New York Times will gladly give them editorial space to do so.  My guess is that any such theory will take advantage of the popular but bogus "hate speech is not free speech" idea.

I don't really get worked up about accomodation law too much one way or another.  I know our company benefits from being open to all.  We get calls all the time from customers who have been turned away because they have kids or have an older RV and we are happy to have their business.  It's not as true today but 15 years ago we gained a lot of good workers by hiring gay campground managers when many campgrounds thought it was "unsafe" to employ gay people around kids in campgrounds.  On the other hand, I read the First Amendment right of association as the right not to associate as well, so if folks want to turn away business it does not wildly bother me.  I personally wouldn't bake a cake for, say, the local Nazi party rally or Che Guevara birthday party.

My public policy rule of thumb is to allow folks to refuse accommodation as long as they represent a small percentage of the supply in a market.

As I Predicted 15 Years Ago, Indefinite Detentions at Gitmo Continue in the War that Never Ends

Sigh -- here is your update:  Human beings are still being detained by the US government in Guantanamo without any due process.  I was writing about this 15 years ago, but with the loss of some of my early content the earliest I can find is this from 2006.  The problem always was our using US POW rules from past wars in this very different war.  In the past, wars actually ran for what now seems like a limited time (though folks living through WWII would be surprised at that perspective).  POW's for most part were captured in uniform and on a battlefield (or floating in the water after their ship sank).  Nobody really had due process concerns as a) being in a German uniform in a Normandy pillbox on June 7 was pretty persuasive evidence one was an enemy combatant; b) the detained combatant was likely headed to Arkansas to harvest crops for a year or two, which was a FAR better place to be than where they were captured; c) when the war unambiguously ended, they went home.

But in our current AUMF and the "war on terror," where does it end?   There are no uniforms.  The battlefield as defined is the entire world.  The power to detain human beings for the duration of the war allows the Administration to detain roughly anyone they way, without having to defend that decision, and keep them however long they want because only the Administration (or perhaps Congress if it had a spine) decides when the "war" is over.

I had hoped that the Supreme Court would take the opportunity to review this practice after so many years had passed.  I think there were real reasons to ban this practice in 2004 when the Court reviewed this the first time, but at that time the war was relatively fresh and the detentions still shorter than other wartime POW internments.  But what about now?  Unfortunately, the Court declined to rethink their earlier position, despite hints in the original decision that matters might change if the "war" dragged on.

Today the Supreme Court declined an opportunity to examine whether it's still acceptable to hold enemy combatants in Guantanamo Bay at a time when Washington's interventions in Afghanistan and Iraq no longer resemble anything the U.S. was doing in the direct wake of 9/11.

Moath Hamza Ahmed al-Alwi, a Yemeni citizen, has been imprisoned in Guantanamo Bay since January 2002, when he was captured in Pakistan fleeing Afghanistan. He was initially accused of being a veteran terrorist combatant and a former Osama bin Laden bodyguard. Much later, in 2015, officials concluded he was most likely not a former bodyguard; while he was affiliated with Al Qaeda and the Taliban, it's unclear whether he was engaged in any sort of combat against the United States. He's one of 40 prisoners still detained there.

He's been sitting in Guantanamo Bay for 17 years, but the U.S. government has not charged him with any crimes. It doesn't appear to intend to charge him with anything, but it also refuses to release him, because the Authorization for Use of Military Force (AUMF) to wage war in Afghanistan and against the Taliban and al Qaeda remains in force.

In 2004's Hamdi v. Rumsfeld decision, the Supreme Court ruled that the AUMF authorized such detentions with an understanding that this authorization ended at the conclusion of the war. But even in 2004, the majority was cognizant of the possibility that this amorphous "war on terror" was likely to change over time. In the ruling, written by then-Justice Sandra Day O'Connor, it notes: "If the practical circumstances of a given conflict are entirely unlike those of the conflicts that informed the development of the law of war, that understanding may unravel. But that is not the situation we face as of this date."

I find Conservative support for these detentions frustrating in light of recent events.  People across the political spectrum, but particularly Conservatives, were outraged that Harvard would terminate a dean merely because as a lawyer he chose to represent an unpopular client (Harvey Weinstein).  They rightly argued that due process demands representation of every client, and that to make that work an attorney's moral standing can't be conflated with that of his clients.  Or put another way, what a defendant allegedly did or did not do is irrelevant to  what we owe them for due process.  I think the same can be said of the folks left to die in Guantanamo.

But Coyote, they aren't American citizens!  We don't owe them due process.  Wrong.  We do.  Read the first words of the Declaration of Independence.  Rights belong to all human beings -- they are not grudgingly granted by the Constitution to US Citizens only.  There is nothing in what I call the extended Bill of Rights (including 13-15) that does not apply to everyone who walks the Earth and interacts with the US Government.  Otherwise, as an extreme example, grabbing Africans and enslaving them would still be Constitutional.

But Coyote, no one wants these guys.  Well, that is a different point and is NOT the current legal underpinning of their detention.  I do understand it is politically impossible, and perhaps even unethical, to drop these folks in the US.  If we free them all and no one will take them, then they may stay as our guests to try to live some kind of life at Guantanamo.  But that is not the status they have today.

But Coyote, one of these guys may kill again.  In general, the argument in favor of confining or keeping at a distance any group that probably contains future criminals is bankrupt.  The argument exploded in popularity on the Right a while back with the Skittles immigration meme.  The meme said something like if you had a thousand Skittles and knew one was poisoned, would you eat from the bag?  And if not, why would you let in immigrant populations that likely include some future criminals.  The problem with this is that if this argument really had moral weight, we would be equally required to ban sex or at least all births since some percentage of babies born will be criminals.  At a higher level, our whole legal system is based on the presumption that it is better to err on the side of not punishing an actual criminal than on the side of punishing the innocent (which we still do a lot of nevertheless).  This presumption of innocence is one of the key markers that separate us from totalitarian governments.

Facebook Seeks To Leverage Its Own Failings to Get Congress to Cement Facebook's Monopoly Position

It is something you see all the time -- large companies asking to be regulated, at first glance against self-interest.  Those most interested in expansion of the government and the regulatory state will shout, "See!  Even large evil companies know they need to be subject to government oversight."

But in fact what is usually going on is that the large company knows that regulation will actually cement its position in the industry, making it harder for rivals and new entrants to compete.   Toy-maker Mattel turned a lead scandal of their own making into a coup by creating a regulatory framework that pounded its competitors.  Walmart and Costco often support minimum wage in retail legislation because they know that with their higher sales per employee, they can survive higher minimum wages than their smaller ma and pa competitors.

Mark Zuckerberg, who I am increasingly convinced is the most dangerous man in America, and his testimony to Congress begging for regulation, should be seen in this context.

So in Facebook’s case, they will advocate some institutionalized changes in the way social media should work. Every change will involve compliance costs. Facebook will make sure that it can comply...and that its competitors cannot without great expense. That will give them a distinct advantage in the marketplace, make it more difficult for startups to compete, and guarantee this platform a leading place by law.

This is why Mark readily agreed to be regulated. Regulations always work to the advantage of the largest market players....

Nor should this come as some sort of shock. This is the way government regulations have always worked, from the meatpackers in the early 20th century (who crafted and enforced meatpacking legislation), to all labor legislation (it’s labor-union lawyers who exercise the dominant influence) to Bitcoin regulations (the major exchanges are always involved) to digital technology today (no way are Google and Facebook going to be excluded from writing the regulations that govern their industries).

There is a civics-text myth that imagines government workers and politicians as all-knowing, crafting rules that benefit everyone as opposed to particular players. It imagines that major market players are suffering as government forces new rules that require their operations put greed on hold and serve the public. The on-the-ground reality is otherwise. There is not a single regulation on the books that does not have an author who is unattached in some way to the regulated industry in question.

Milton Friedman called this regulatory capture. The problem is the influence of industry is there from the beginning. It’s absolutely not the case that capitalists are champions of capitalist competition, as the career and policies of Donald Trump should make clear. Lots of people are good at using markets to make money; only very special people become defenders of open competitive processes.

Right now, Facebook faces massive competition from other platforms in social media, copycats, and alternative uses of people’s time. In some ways, it’s the best possible moment to call on government to institutionalize Facebook as a form of public utility. That might actually be the end game that Zuckerberg has in mind. Then the politicians can update their timeline status: today we passed regulations that brought this wayward company to heel.

Zuckerberg said from the very beginning that he was dismissive of individual privacy and he has created the Facebook honeytrap to kill it.  He now is setting his sights on free speech, begging the government to tear up the First Amendment.  He is a one-man individual rights wrecking crew.

Update:  I am actually going to include this from the Reason article about Mattel, because the situation is so similar -- a failing at a large company is used to create a regulatory framework that greatly aids the large company against rivals

Remember the sloppily written "for the children" toy testing law that went into effect last year? The Consumer Product Safety Improvement Act (CPSIA) requires third-party testing of nearly every object intended for a child's use, and was passed in response to several toy recalls in 2007 for lead and other chemicals. Six of those recalls were on toys made by Mattel, or its subsidiary Fisher Price.

Small toymakers were blindsided by the expensive requirement, which made no exception for small domestic companies working with materials that posed no threat. Makers of books, jewelry, and clothes for kids were also caught in the net. Enforcement of the law was delayed by a year—that grace period ended last week—and many particular exceptions have been carved out, but despite an outcry, there has been no wholesale re-evaluation of the law. Once might think that large toy manufacturers would have made common cause with the little guys begging for mercy. After all, Mattel also stood to gain if the law was repealed, right?

Turns out, when Mattel got lemons, it decided to make lead-tainted lemonade (leadonade?). As luck would have it, Mattel already operates several of its own toy testing labs, including those in Mexico, China, Malaysia, Indonesia and California.

So while most small toymakers had no idea this law was coming down the pike until it was too late, Mattel spent $1 million lobbying for a little provision to be included in the CPSIA permitting companies to test their own toys in "firewalled" labs that have won Consumer Product Safety Commission approval.

The million bucks was well spent, as Mattel gained approval late last week to test its own toys in the sites listed above—just as the window for delayed enforcement closed.

Instead of winding up hurting, Mattel now has a cost advantage on mandatory testing, and a handy new government-sponsored barrier to entry for its competitors.

The Rise and Fall of The ACLU -- Conservatives Start to Lament the Downfall of an Organization They Have Loved to Hate

David Bernstein has a great article on the abandonment by the ACLU of many of its traditional core principles.

Readers know I grew up a traditional Texas Conservative through high school, and then migrated to the libertarian-ish camp through college and beyond.  One of my early disconnects with the Conservatives was their demonization of the ACLU.  I didn't agree with everything the ACLU did (particularly related to economic regulation because then the group's quasi-Stalinist origins showed through), but I did think it did a lot of great work.  It was defending the Bill of Rights in unpopular cases with unsympathetic victims (e.g. Nazis and obvious criminals) in situations no one else would touch.  They were frequently a backstop against bad facts creating bad law.

Ironically, though, just as Conservatives really need the ACLU now they they are targets of things like speech and due process limitations, the ACLU is migrating away from defense of these things.

First, the ACLU ran an anti-Brett Kavanaugh video ad that relied entirely on something that no committed civil libertarian would countenance, guilt by association. And not just guilt by association, but guilt by association with individuals that Kavanaugh wasn't actually associated with in any way, except that they were all men who like Kavanaugh had been accused of serious sexual misconduct. The literal point of the ad is that Bill Clinton, Harvey Weinstein, and Bill Cosby were accused of sexual misconduct, they denied it but were actually guilty; therefore, Brett Kavanaugh, also having been accused of sexual misconduct, and also having denied it, is likely guilty too.

Can you imagine back in the 1950s the ACLU running an ad with the theme, "Earl Warren has been accused of being a Communist. He denies it. But Alger Hiss and and Julius Rosenberg were also accused of being Communists, they denied it, but they were lying. So Earl Warren is likely lying, too?"

Meanwhile, yesterday, the Department of Education released a proposed new Title IX regulation that provides for due process rights for accused students that had been prohibited by Obama-era guidance. Shockingly, even to those of us who have followed the ACLU's long, slow decline, the ACLU tweeted in reponse that the proposed regulation "promotes an unfair process, inappropriately favoring the accused." Even longtime ACLU critics are choking on the ACLU, of all organizations, claiming that due proess protections "inappropriately favor the accuse."

The ACLU had a clear choice between the identitarian politics of the feminist hard left, and retaining some semblance of its traditional commitment to fair process. It chose the former. And that along with the Kavanaugh ad signals the final end of the ACLU as we knew it. RIP.

The 5 Worst Supreme Court Rulings of the Past 50 Years

I am not an expert, but each and every one of these seem pretty bad.

For example:

1. Smith v. Maryland (1979)

The Fourth Amendment guarantees "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." But according to the Supreme Court's 1979 decision in Smith v. Maryland, "a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties."

Lawyers call this the third-party doctrine. Prosecutors and police call it the gift that keeps on giving. Let's say the cops want to know what websites you've been reading. The third party doctrine lets them get that information from your internet service provider without obtaining a search warrant first. So much for that pesky Fourth Amendment and the privacy rights it was designed to protect.

Power, Privilege, and Free Speech

This is an excerpt from a letter I wrote to the Daily Princetonian a couple years ago in response to an editorial calling for speech codes of some sort (e.g. bans on "hate speech")

This is why I think Progressives are making a huge mistake in opposing free speech, on their own terms.

Speech codes are written by and for the privileged.  They are written by the oppressor to shut up the oppressed.  George Wallace did not need the First Amendment, black kids trying to go to the University of Alabama needed it.  So the progressive opposition to free speech (e.g BLM shouting down the ACLU over free speech) is either 1) completely misguided, as the oppressed need these protections the most or 2) an acknowledgement that progresives and their allies are now the privileged, that they are the ones in power, and that they wish to use speech codes as they have always been used, to shut up those not in power.  In our broader society the situation is probably #1 but on university campuses we may have evolved to situation #2.

The folks who wrote the first amendment were thinking about this dynamic.  Had they instead decided to write a speech code, it likely would not have been good.  It might well have banned the criticism of slavery, for example, if Jefferson and his Virginians had anything to say about it.  But they didn't create a speech code, thank god.  In fact, I am trying to think of any time in history I would have been comfortable with the ruling elite locking down the then-current norms of their society into a speech code, and I can't think of one.  What gives you confidence, vs. the evidence of all history, that you can do so today with good results?

Unfortunately, in the time since I wrote this, the ACLU has apparently abandoned its absolute support of free speech and seems ready to knuckle under to Progressive speech codes.  But never-the-less, I was thinking about this issue of speech codes and power when I read this:

Police officers in Crafton, Pennsylvania, arrested a 52-year-old black man, Robbie Sanderson, for shoplifting at a CVS in September of 2016. He called them Nazis, skinheads, and Gestapo as they cuffed him.

Because of those epithets, Sanderson was charged with "ethnic intimidation." Insulting the officers in such terms was an anti-white hate crime, from the perspective of the authorities. Sanderson had made bias-motivated "terroristic threats," they claimed. The alleged motivation increased the seriousness of Sanderson's crime from a first-degree misdemeanor to a third-degree felony.

Anyone with any education about history could have predicted such an outcome with total certainty.

The Absolutely To-Be-Expected Outcome of Government Regulation of "Fake News" on Social Media

Regulations to limit "fake news" will inevitably be used to limit criticism of the government and individual politicians.  Here is the latest example, from the WSJ

A foreign visitor became the first person convicted and sentenced to jail under a new law to punish those deemed to have published “fake news”after he criticized the police response to the slaying of a Palestinian engineer in Kuala Lumpur.

Salah Salem Saleh Sulaiman, 46 years old, a Danish national of Yemeni origins, pleaded guilty Monday at a court hearing. He was sentenced to a week in jail but opted to serve a  month behind bars in lieu of paying a fine of about $2,600. He wasn’t represented by a lawyer.

The case marked unexpected circumstances for the first use of the law since Parliament passed it April 3 amid criticism by rights groups that it would be wielded to inhibit criticism of the government ahead of elections on May 9. The government has denied that that is its intent, and Mr. Salah is the only person to have been charged under it.....

Mr. Salah appeared in a video posted to YouTube—and since removed—from the scene of the assassination of Palestinian Fadi al-Batsh, an electrical engineer and university lecturer who had lived in Malaysia for a decade. He was gunned down by two men on a motorcycle as he walked to dawn prayers at a mosque. No one has been arrested.

Mr. Salah accused medical services and police of being slow to respond to the shooting. Authorities vehemently rejected the allegations and arrested him. On Monday, he apologized and said he had recently arrived in Malaysia to visit friends and didn’t know the law existed.

The "and" in the third paragraph is odd.  I would have used "but nevertheless"

California Progressives Go Full Authoritarian

I almost titled this article "go full fascist" but the f-word is so used and abused in public discourse that I now try to avoid it.  Presented largely without comment because I would have assumed five years ago that any thinking person in this country would understand why this was a bad idea.  State law proposed by California Senator Richard Pen, SB 1424

Existing law prohibits a person, among others, from making or disseminating in any advertising device, or in any manner or means whatever, including over the Internet, any statement concerning real or personal property or services that is untrue or misleading, as specified.
This bill would require any person who operates a social media, as defined, Internet Web site with a physical presence in California to develop a strategic plan to verify news stories shared on its Web site. The bill would require the plan to include, among other things, a plan to mitigate the spread of false information through news stories, the utilization of fact-checkers to verify news stories, providing outreach to social media users, and placing a warning on a news story containing false information.

Because having the government decide what is and is not true, and what can and cannot be criticized, always works out so well.

Update:  This seems relevant, from China (bold added).  This is what happens when the state "fact-checks" social media:

When does a corporate apology become a political self-confession, or jiantao (检讨), an act of submission not to social mores and concerns, but to those in power? The line can certainly blur in China. But the public apology today from Zhang Yiming (张一鸣), the founder and CEO of one of China’s leading tech-based news and information platforms, crosses deep into the territory of political abjection.

Zhang’s apology, posted to WeChat at around 4 AM Beijing time, addressed recent criticism aired through the state-run China Central Television and other official media of Jinri Toutiao, or “Toutiao” — a platform for content creation and aggregation that makes use of algorithms to customize user experience. Critical official coverage of alleged content violations on the platform was followed by a notice on April 4 from the State Administration of Press, Publication, Radio, Film, and Television (SAPPRFT), in which the agency said Toutiao and another service providing live-streaming, Kuaishou, would be subject to “rectification measures.”

Read through Zhang’s apology and it is quickly apparent that this is a mea culpa made under extreme political pressure, in which Zhang, an engineer by background, ticks the necessary ideological boxes to signal his intention to fall into line.

At one point, Zhang confesses that the “deep-level causes” of the problems at Toutiao included “a weak [understanding and implementation of] the “four consciousnesses”. This is a unique Xi Jinping buzzword, introduced in January 2016, that refers to 1) “political consciousness” (政治意识), namely primary consideration of political priorities when addressing issues, 2) consciousness of the overall situation (大局意识), or of the overarching priorities of the Party and government, 3) “core consciousness” (核心意识), meaning to follow and protect Xi Jinping as the leadership “core,” and 4) “integrity consciousness” (看齐意识), referring to the need to fall in line with the Party. Next, Zhang mentions the service’s failure to respect “socialist core values,” and its “deviation from public opinion guidance” — this latter term being a Party buzzword (dating back to the 1989 crackdown on the Tiananmen Square protests) synonymous with information and press controls as a means of maintaining Party dominance.

Zhang also explicitly references Xi Jinping’s notion of the “New Era,” and writes: “All along, we have placed excessive emphasis on the role of technology, and we have not acknowledged that technology must be led by the socialist core value system, broadcasting positive energy, suiting the demands of the era, and respecting common convention.”

In the list of the company’s remedies, there is even a mention of the need to promote more content from “authoritative media,” a codeword for Party-controlled media, which suggests once again that the leadership has been unhappy with the idea of algorithms that wall users off from official messaging if they show no interest in such content.

 

 

So You Think You Have Property Rights in This Country?

You do have property rights ... right up to the point where someone with political pull wants to change the use of your property.

In Tempe, AZ, an intersection has been empty for a number of years after a gas station went out of business.  A local entrepreneur acquired rights to the land to build a car wash.  The city approved all his various permits and he was just starting to build when a powerful local developer who owned a strip mall next door decided he did not want a car wash next door to his businesses, and sought to rally the local community against the car wash with fears of traffic and poisonous chemicals.  The result?

After nearly three hours of debate, the Tempe City Council revoked permits for a Quick Quack Car Wash planned at Baseline Road and McClintock Drive.

The Council Chamber was standing-room only Thursday as more than 40 residents spoke. Opponents were in the majority by a 3-to-1 margin.

The residents' concerns largely revolved around noise and traffic. Those residents in favor of the development said a car wash was an upgrade from the old gas station that use to be at the corner.

Michael Pollack, who owns the nearby Peter Piper Pizza Plaza along with other commercial properties in the East Valley, hired an attorney to appeal the city's Design Review Board decision to grant permits for the car wash.

"I have nothing against ducks," Pollack told the council. "I would love to see something that harmonizes with that area."

Like residents, Pollack was concerned about noise and how a car wash would impact property values — points that representatives from Quick Quack said were unfounded.

Of course they are being generous here to the real influencer, pretending that Pollack was merely one more person in the community with concerns rather than the person who likely organized much of the opposition.

By the way, here is the Mr. Pollack's super-lovely strip mall he is concerned about "harmonizing" with

Don Boudreaux has a great quote from Bastiat today that seems to apply:

Admit it, what is worrying you is right and justice; what is worrying you is ownership – not yours, of course, but that of others.  You find it difficult to accept that others are free to dispose of their property (the only way to be an owner); you want to dispose of your property . . . and theirs.

 

Oppressors, Oppressed, Privilege, and Free Speech

A few days ago I wrote:

Speech codes are written by and for the privileged.  They are written by the oppressor to shut up the oppressed.  George Wallace did not need the First Amendment, black kids trying to go to the University of Alabama needed it.  So the progressive opposition to free speech (e.g BLM shouting down the ACLU over free speech) is either 1) completely misguided, as the oppressed need these protections the most or 2) an acknowledgement that progressives and their allies are now the privileged, that they are the ones in power, and that they wish to use speech codes as they have always been used, to shut up those not in power.  In our broader society the situation is probably #1 but on university campuses we may have evolved to situation #2.

Example of #1 (via Overlawyered)

A woman has been questioned by police and could face a hate crime prosecution after she waved a banner at Belfast’s Pride parade reading “Fuck the DUP”.

In a case that could have consequences for free speech and the right to offend across the UK, the Police Service of Northern Ireland (PSNI) says it will pass a file to the region’s public prosecution service (PPS) after Ellie Evans, 24, held up the placard at the August parade to protest against the party’s policies on gay marriage.

The investigation was prompted by a complaint from DUP politician Jim Wells, who told the Guardian that the slogan constituted “incitement to hatred and potential public disorder”.

Example of #2

A few months later, I received a letter from two Reed students of colour that was being distributed among alumni like a piece of samizdat. The students didn’t reveal their names for fear of being ostracised, but they described a campus that had been overtaken by militants who routinely shamed as racists anyone who didn’t agree with them. One of those singled out had been a freshman named Hunter Dillman who had been branded a racist after asking the organiser of a Latina student group an innocent question. He was ultimately hounded off campus.

The students said the Facebook shaming became even more virulent as the year went on. When another white student apologised to Amanda for being unable to attend a particular protest because he was behind on his schoolwork, Amanda accused him of being the kind of white guy who would ‘laugh at a lynching’. The students felt Amanda’s charge was so outrageous that they decided to take a big step: they would all ‘like’ the student’s apology on Facebook, even though they might be called racists as well. ‘As students of colour we felt that we had to do it’, one of them later told me. ‘It would have been 100 times worse if somebody white liked it.’

 

The Progressive Argument for Free Speech

A reader sent me a link to this critique, sort of, of free speech in the Daily Princetonian.  I say "sort of" because I thought the thinking and logic of the article was pretty muddled, so much so that I am not even totally sure what point they are trying to make, exactly, though it clearly is meant as a critique of Conservatives defending free speech.   Frankly I was pretty depressed that a Princeton philosophy major couldn't write in such a way as to make even their thesis clear.

Anyway, the comments are closed and I still feel enough of a connection to Princeton that I wanted to at least try to engage the students, so I wrote this back:

I didn't find your Daily Princetonian article of 9/25 particularly compelling, in part because you don't engage with defining an alternate regime if you toss out free speech.  "we don't need to hear any more form group x or y" is a fine policy for setting up your personal Twitter block list, but how does it work in a democracy?  Everyone assumes when they advocate for such controls that they and their fellow believers will be the ones controlling, but do you really believe that?  After the last election?  What if a President Lindsey Graham (god forbid) were to take your rules advocating for getting rid of hate speech and define hate speech as advocating for abortion rights?  The ACLU didn't famously defend the speech rights of the American Nazi party because it liked Nazis -- it defended them because they were justifiably afraid that the precedent of speech limitation might someday be used to restrict speech far more dear to them.

This is why I think Progressives are making a huge mistake in opposing free speech, on their own terms.

Speech codes are written by and for the privileged.  They are written by the oppressor to shut up the oppressed.  George Wallace did not need the First Amendment, black kids trying to go to the University of Alabama needed it.  So the progressive opposition to free speech (e.g BLM shouting down the ACLU over free speech) is either 1) completely misguided, as the oppressed need these protections the most or 2) an acknowledgement that progresives and their allies are now the privileged, that they are the ones in power, and that they wish to use speech codes as they have always been used, to shut up those not in power.  In our broader society the situation is probably #1 but on university campuses we may have evolved to situation #2.

The folks who wrote the first amendment were thinking about this dynamic.  Had they instead decided to write a speech code, it likely would not have been good.  It might well have banned the criticism of slavery, for example, if Jefferson and his Virginians had anything to say about it.  But they didn't create a speech code, thank god.  In fact, I am trying to think of any time in history I would have been comfortable with the ruling elite locking down the then-current norms of their society into a speech code, and I can't think of one.  What gives you confidence, vs. the evidence of all history, that you can do so today with good results?

OK, I Am Failing the Ideological Touring Test Here

I pride myself on being able, generally, to craft arguments on various issues along any of Arnold Kling's three axes of political discourse.  But I can't come up with an argument for why college students (likely Progressives on the oppressor-oppressed axis) would be legitimately afraid of the beach ball (via Maggies Farm).  My libertarian axis explanation of course is that having found that the "those guys' speech scares us" approach has been successful at shutting down speech of their opponents in the past, they are rationally pursuing a proven winning strategy.  But what is the Progressive argument here?

How The Left Is Changing the Meaning of Words to Reduce Freedom -- The Phrase "Incite Violence"

A surprising number of folks on the Left of late seem to be advocating for restrictions on free speech -- Howard Dean is among the latest.  One of the arguments they use is that, they say, it is illegal in one's speech to "incite violence".  Folks like Glenn Reynolds and Eugene Volokh have responded with legal analyses of this statement, but I want to point out something slightly different -- that in the way the Left is using this phrase, the meaning has been shifted in very dangerous ways.

First, some basic legal background, and on First Amendment issues I find it is always safe to run to Eugene Volokh for help:

To be sure, there are some kinds of speech that are unprotected by the First Amendment. But those narrow exceptions have nothing to do with “hate speech” in any conventionally used sense of the term. For instance, there is an exception for “fighting words” — face-to-face personal insults addressed to a specific person, of the sort that are likely to start an immediate fight. ....

The same is true of the other narrow exceptions, such as for true threats of illegal conduct or incitement intended to and likely to produce imminent illegal conduct (i.e., illegal conduct in the next few hours or maybe days, as opposed to some illegal conduct some time in the future). Indeed, threatening to kill someone because he’s black (or white), or intentionally inciting someone to a likely and immediate attack on someone because he’s Muslim (or Christian or Jewish), can be made a crime. But this isn’t because it’s “hate speech”; it’s because it’s illegal to make true threats and incite imminent crimes against anyone and for any reason, for instance because they are police officers or capitalists or just someone who is sleeping with the speaker’s ex-girlfriend.

So it is illegal to "incite violence" though this exception to free speech is typically very narrow.  As I understand it, a KKK speaker who shouts from the podium, "look, a black guy just walked in, everybody go beat him up" would probably be guilty of inciting violence if the crowd immediately beat the guy up.  A BLM speaker who shouted as part of his speech that the crowd needed to fight back against police oppression would likely not be guilty of inciting violence if, some months later, one of the audience members assaulted a police officer.

But what all of this has in common is speakers telling their supporters to go out and commit violence against some other person or group.  The violence incited is by the speakers supporters and is specifically urged on by the speaker.  But this is not how the Left is using the term "incite violence".  The Left is using this term to refer to violence by opponents of the speaker attempting to prevent the speaker from being heard.  For example,  when folks argue that Ann Coulter cannot speak at Berkeley because she will "incite violence", they don't mean that she is expected to stand up and urge her supporters to go do violence against others -- they mean that they expect her opponents to be violent.

This is a horrible newspeak redefinition of a term.  It is implying that a speaker is responsible for the violence by those who oppose her.  By this definition, the socialists of 1932 Germany were guilty of "inciting violence" whenever  Nazi brownshirts tried to brutally shut down socialist meetings and speeches.

I am not sure why the Left is so good at this - perhaps because most of the media is sympathetic to the Left and is willing to let them define the terms of the debate.  The Left has successfully performed a similar bit of verbal judo with the claim that Russians "hacked" the last election.  By calling leaks of Democratic private correspondence "hacking the election", they have successfully left the impression among many that the Russians actually manipulated vote totals, something for which there is zero evidence and really no credible story of how it might have been done.

Speech Restrictions Will ALWAYS Be Enforced Assymetrically

One of the larger problems with speech restrictions is that they will always be interpreted and enforced asymmetrically.  Don't believe me?  Consider this tweet from the Left during the Obama Administration:

My guess is that these folks would not enforce this speech rule in the same way during the Trump Administration as during the Obama Administration.

Arizona State Legislature Considering Yet Another Awful Law, This Time Allowing Police Prior Restraint on Speech

It is hard to pick out the most egregious example of bad legislation that has been considered by our state legislature, but this one is certainly close:

Claiming people are being paid to riot, Republican state senators voted Wednesday to give police new power to arrest anyone who is involved in a peaceful demonstration that may turn bad — even before anything actually happened.

SB1142 expands the state’s racketeering laws, now aimed at organized crime, to also include rioting. And it redefines what constitutes rioting to include actions that result in damage to the property of others.

But the real heart of the legislation is what Democrats say is the guilt by association — and giving the government the right to criminally prosecute and seize the assets of everyone who planned a protest and everyone who participated. And what’s worse, said Sen. Steve Farley, D-Tucson, is that the person who may have broken a window, triggering the claim there was a riot, might actually not be a member of the group but someone from the other side....

There’s something else: By including rioting in racketeering laws, it actually permits police to arrest those who are planning events. And Kavanagh, a former police officer, said if there are organized groups, “I should certainly hope that our law enforcement people have some undercover people there.’’

“Wouldn’t you rather stop a riot before it starts?’’ Kavanagh asked colleagues during debate. “Do you really want to wait until people are injuring each other, throwing Molotov cocktails, picking up barricades and smashing them through businesses in downtown Phoenix?’’

This is the sort of law that is almost guaranteed to be abused and enforced in an asymmetrical manner.  This is one of those laws where the "Am I comfortable giving my political opponent this sort of power" test is particularly useful.  Conservatives rightly complained about the Obama Administrations asymmetric IRS scrutiny on Tea Party groups, but this law would create a far greater potential for abuse.  We no longer have Sheriff Joe any more (which is one reason I don't join so many others in complaining about the election of 2016) but does anyone doubt that Arpaio would have used this law to shut down every pro-immigrant protest he could learn about in advance?

Politicians Are Going to Use "Fake News" Panic as A Wedge to Enhance Censorship

This is simply a terrible idea and demonstrates the point I made after the last election, that "fake news" is the new "hate speech" -- in other words, an ill-defined, amorphous term that will be the excuse for censorship.  Every politician thinks that every criticism of themselves is "fake news".   Note the absolute relish with which the millennial Endgadget author greets this awful idea:

Fake news and hate speech are sadly unavoidable on social media, but that might change soon... in Germany, anyway. Late last week, Thomas Oppermann — chairman of the German Social Democratic Party — proposed a stringent law meant to hold companies like Facebook responsible when fake news makes the rounds. As reported by Der Spiegel(and translated by Deusche Well), Oppermann's plan would require Facebook to actively combat fake news all day, everyday. Here's the fascinating bit: if a fake news item pops up and Facebook can't address it within 24 hours, it would be subject to a €500,000 (or $522,575) for each post left untouched.

Oh, it gets better. Facebook and other "market-dominating platforms" would be required to to have teams in Germany dedicated to fielding reports of fake news and hate-filled posts. Fortunately for Oppermann — and German web users, most likely — the push to penalize companies for letting false, misleading or malicious content run wild has received plenty of support from the other major party in German politics, too. The country's Christian Democratic Union hates all of that stuff just as much, prompting one senior party member to promise definitive action "at the beginning of next year." The CDU has also proposed legislation (with backing from Chancellor Angela Merkel, no less) that would make it illegal to post fake news entirely.

The Term "Fake News" Joins "Hate Speech" As A New Tool for Ideological Speech Suppresion

The term "hate speech" has become a useful tool for speech suppression, mostly from the Left side of the political aisle.  The reason it is such a dangerous term for free speech is that there is no useful definition of hate speech, meaning that in practice it often comes to mean, "confrontational speech that I disagree with."   I think most of us would agree that saying, "all black men should be lynched" is unambiguously hateful.  But what about saying something like "African Americans need to come to terms with the high rate of black on black violence."  Or even, "President Obama plays too much golf."   I would call both the latter statements opinions that, even if wrong, reasonably fit within the acceptable bounds of public discourse, but both have been called hate speech and racist.

The Left's new tool for speech suppression appears to be the term "fake news."  Certainly a news story that says, "American actually has 57 states" would be considered by most to be fake.  We understand (or most of us outside places like the New York Times, which still seems to get fooled) that sites like the Onion are fake.   But, as I suspected the very first time I heard the term, "fake news" also seems to be defined as "political sites with which I disagree."  Via Reason:

But Zimdars' list is awful. It includes not just fake or parody sites; it includes sites with heavily ideological slants like Breitbart, LewRockwell.com, Liberty Unyielding, and Red State. These are not "fake news" sites. They are blogs that—much like Reason—have a mix of opinion and news content designed to advance a particular point of view. Red State has linked to pieces from Reason on multiple occasions, and years ago I wrote a guest commentary for Breitbart attempting to make a conservative case to support gay marriage recognition....

Reporting on the alleged impact of fake news on the election is itself full of problems. BuzzFeed investigated how well the top "fake" election news stories performed on Facebook compared to the top "real" election news stories. The fake stories had more "engagement" on Facebook than stories from mainstream media outlets. There's basic problems with this comparison—engagement doesn't mean that people read the stories or even believed them (I know anecdotally that when a fake news story shows up in my feed, the "engagement" is often people pointing out that the story is fake).

There's also a problem when you look at the top stories from mainstream media outlets—they tend toward ideologically supported opinion pieces as well. Tim Carney over at The Washington Examinernoted that two of the top three stories are essentially opinion pieces:

Here's the top "Real News" stories: "Trump's history of corruption is mind-boggling. So why is Clinton supposedly the corrupt one?" As the headline suggests, this is a liberal opinion piece, complaining that the media doesn't report enough on Trump's scandals.

No. 2 is "Stop Pretending You Don't Know Why People Hate Hillary Clinton." This is a rambling screed claiming that people only dislike Clinton because she is a woman.

So in an environment where "fake news" is policed by third parties that rely on expert analysis, we could see ideologically driven posts from outlets censored entirely because they're lesser known or smaller, while larger news sites get a pass on spreading heavily ideological opinion pieces. So a decision by Facebook to censor "fake news" would heavily weigh in favor of the more mainstream and "powerful" traditional media outlets.

The lack of having a voice in the media is what caused smaller online ideology-based sites to crop up in the first place. Feldman noted that he's already removed some sites that he believes have been included "unfairly" in Zimdars' list. His extension also doesn't block access to any sites in any event. It just produces a pop-up warning.

Tellingly, in a quick scan of the sites, I don't see any major sites of the Left, while I see many from the Right (though Zero Hedge is on the list and writes from both the Left and the Right).   Daily Kos anyone?  There are conspiracy sites on the list but none that I see peddle conspiracies (e.g. 9/11 trutherism) of the Left.

This is yet another effort to impose ideological censorship but make it feel like it is following some sort of neutral criteria.

Canada May Fine Me $42,000

Via Steven Green at Instapundit, comes this story of a comedian getting fined $42,000 by Canada for telling a joke:

Canadian comedian Mike Ward was fined a whopping $42,000 by Quebec’s Human Rights Tribunal for jokes he made about a disabled boy.

The child, Jérémy Gabriel, who suffers from Treacher Collins Syndrome, is a bit of a national celebrity in Canada after he sung for the pope in 2006 essentially because everyone thought he did not have long to live. Ward’s joke was a rant about how the child was supposed to die, that he “stole a wish” and is unkillable.

Hmm, I believe I have made this same joke about Keith Richards at least a hundred times in the context of messing up my dead pools.  I better not travel to Canada.

Hillary Clinton and "Intent" -- Can the Rest Of Us Get A Mens Rea Defense From Prosecution?

Yesterday, the FBI said that Hillary Clinton should not be prosecuted because, though she clearly violated laws about management of confidential information, she had no "intent" to do so.  Two thoughts

  • Even if she had no intent to violate secrecy laws, she did - beyond a reasonable doubt - have intent to violate public transparency and FOIA laws.  She wanted to make it hard, or impossible, for Conservative groups to see her communications, communications that the public has the right to see.  In violating this law with full intent, she also inadvertently violated secrecy laws.  I don't consider this any different than being charged for murder when your bank robbery inadvertently led to someone's death.
  • If politicians are going to grant each other a strong mens rea (guilty mind or criminal intent) requirements for criminal prosecution, then politicians need to give this to the rest of us as well.  Every year, individuals and companies are successfully prosecuted for accidentally falling afoul of some complex and arcane Federal law.   Someone needs to ask Hillary where she stands on Federal mens rea reform.

What's The Deal With the State of New York and Free Speech?

Sorry, I am a bit late on this but it came out while I was out of the country.  While the New York AG is going after ExxonMobil and a number of think tanks to try to prosecute them, or at least intimidate them, for their past speech on climate issues, apparently the state of New York is also going after college students who want to boycott Israel.

I have never thought much of the BDS movement -- while like most western governments Israel certainly has its flaws, I find it bizarre that the BDS movement treats Israel like it's the worst government on Earth.  In particular, I am amazed that BDS folks frequently, while they condemn Israel, act as apologists for neighboring Arab nations whose human rights records are objectively far worse.

All that being said, if they don't want to have anything to do with Israel and want to advocate for others to take the same approach, they are welcome to do so in a free country.  But now there is this:

Continuing Gov. Andrew Cuomo's crusade against New Yorkers who don't support Israel, state Sen. Jack Martins (R-Nassau County) wants to ban public colleges and universities from funding pro-Palestinian student groups. A new bill sponsored by Martins would require state and city schools to defund any campus organization that supports efforts to "boycott, divest from, and sanction" (BDS) Israel over its treatment of Palestinians. The BDS movement has become popular on U.S. and U.K. campuses.

Martins' bill would also prohibit the funding of campus groups that support economic boycotts of any American-allied nation, although this bit seems designed to distract from his true goal: preventing anti-Israel sentiment on campus. In an interview with the New York Daily News, Martins referred to calls to boycott Israel as "hate speech" and "anti-Semitism" and said the state legislature has "no choice but to step in and prevent taxpayer dollars being used to promote" such sentiment.

If a state institution is going to fund student groups, then it needs to do so in a viewpoint neutral manner.

The only teeny tiny good part of this story is that perhaps a few campus Leftists who want to ban everything that they consider hate speech might have an epiphany that giving the government this sort of power is a bad idea, since one can never guarantee that one's own fellow travelers are going to be writing the hate speech definitions.

Citizens United Haters, Is This Really What You Want? John Oliver Brexit Segment Forced to Air After Vote

A lot of folks, particularly on the Left, despise the Citizens United decision that said it was unconstitutional to limit third party political speech, particularly prior to an election (even if that speech was made by nasty old corporations).  The case was specifically about whether the government could prevent the airing of a third-party produced and funded documentary about one of the candidates just before an election.  The Supreme Court said that the government could not put in place such limits (ie "Congress shall make no law...") but Britain has no such restrictions so we can see exactly what we would get in such a regime.  Is this what you want?

As Britain gears up to vote in the EU referendum later this week, broadcasters are constantly working to ensure their coverage remains impartial. One such company is Sky, which has this week been forced to delay the latest instalment of John Oliver's Last Week Tonight HBO show. Why? Because it contains a 15-minute diatribe on why the UK should remain part of Europe.

Instead of airing the programme after Game of Thrones on Sky Atlantic on Monday night, like it does usually, Sky has pushed it back until 10:10pm on Thursday, just after the polls close. Social media users are up in arms about the decision, but in reality, Sky appears to be playing everything by the book.

Sky's decision allows it to adhere to Ofcom rules that come into effect during elections and referendums. "Sky have complied with the Ofcom broadcasting restrictions at times of elections and referendums that prohibit us showing this section of the programme at this moment in time. We will be able to show it once the polls close have closed on Thursday," a Sky spokesperson told Engadget.

In March, the regulator warned broadcasters that they'd need to take care when covering May's local elections and the subsequent Brexit vote. Section Five (which focuses on Due Impartiality) and Section Six (covering Elections and Referendums) of Ofcom's Code contain guidelines that are designed stop companies like Sky from influencing the public vote. Satirical content is allowed on UK TV networks during these times, but Oliver's delivery is very much political opinion based on facts, rather than straight humour.

By the way, the fact vs. satire distinction strikes me as particularly bizarre and arbitrary.

When will folks realize that such speech limitations are crafted by politicians to cravenly protect themselves from criticism.  Take that Citizens United decision.  Hillary Clinton has perhaps been most vociferous in her opposition to it, saying that if President she will appoint Supreme Court judges that will overturn it.  But note the specific Citizens United case was about whether a documentary critical of .... Hillary Clinton could be aired.  So Clinton is campaigning that when she takes power, she will change the Constitution so that she personally cannot be criticized.  And the sheeple on the Left nod and cheer as if shielding politicians from accountability is somehow "progressive."