Coyote Blog

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.

I have advocated for years that the concept of citizenship needs to be unbundled (and here, on the Roman term Latin Rights).   Kerry Howley makes a similar argument today:

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. 

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:

1. 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.
2. 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.

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:

[25] 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".

[26]  The plaintiff was using legal means to complain of speech that he alleged was "hate" speech.

[27]  The evidence was that Mr. Warman was successful in both the complaint and a libel action which he instituted.

[28] 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.

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 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.

Much more here.

From the Associated Press:

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.

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.

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.

What about, as Roger Simon asks:

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.

Update:

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?

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.

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.

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?

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.

From Fred Thompson, via Insty:

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.

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.

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. 

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."

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.

Wikipedia describes trespass as "criminal act of going into somebody else's land or property without permission of the owner or lessee." 

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?

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.

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.

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.