Coyote Blog

According to Ken and Popehat, Eugene Volokh is defending Crystal Cox in a free speech case.  Here is some background on Ms. Cox.  In discussing Volokh's defense, Ken makes the same point I have on many occasions:

Crystal Cox is not a sincere supporter of free speech. Crystal Cox is not a defender of the First Amendment. Crystal Cox supports free speech for Crystal Cox, but for her own critics, Crystal Cox is a vigorous (if mostly incoherent) advocate for broad and unprincipled censorship.

This should not surprise us. As I mentioned before, free speech cases often involve defending vile speech by repugnant people. Nearly as often, those repugnant people are no respecters of the rights of anyone else. Do you think the Nazis who marched at Skokie, if they had their way, would uphold the free speech rights of the religious and ethnic minorities who protested them? Do you imagine that Fred Phelps' church, given its choice, would permit the blasphemous and idolatrous freedoms it rails against?

No. We extend constitutional rights to people who, given the opportunity, would not extend the same rights to us. That's how we roll.

Crystal Cox is no different. Eugene Volokh and the Electronic Frontier Foundation are appealing the judgment against her to vindicate (through however flawed a vessel) important free speech issues.

But it is one thing for me to blog that everyone, including Illinois Nazis and Crystal Cox, should have free speech rights.  It's quite another to actually spend days of one's time on a pro bono basis actually handling her legal work.  So kudos to Volokh -- we all know the sewers need to be cleaned out from time to time but few of us actually will jump in and do it.

I missed this from Volokh a while back, but since our Con-law-professor-in-chief has done so poorly defending the Constitutionality of the PPACA, someone gave Congress a crack at the job:

Most of us know that when then-Speaker Pelosi was asked where the Constitution gives Congress the power to enact an “individual mandate,” she replied with a mocking “are you serious? Are you serious?”

Here are a few more pearls of constitutional wisdom from our elected representatives.

Rep. Conyers cited the “Good and Welfare Clause” as the source of Congress’s authority [there is no such clause].

Rep. Stark responded, “the federal government can do most anything in this country.”

Rep. Clyburn  replied, “There’s nothing in the Constitution that says the federal government has anything to do with most of the stuff we do. How about [you] show me where in the Constitution it prohibits the federal government from doing this?”

Rep. Hare said “I don’t worry about the Constitution on this, to be honest [...] It doesn’t matter to me.” When asked, “Where in the Constitution does it give you the authority …?” He replied, “I don’t know.”

Sen. Akaka said he “not aware” of which Constitutional provision authorizes the healthcare bill.

Sen. Leahy added, “We have plenty of authority. Are you saying there’s no authority?”

Sen. Landrieu told a questioner, “I’ll leave that up to the constitutional lawyers on our staff.”

Ken over at Popehat had a great article about  a proposed cyber-bullying law in Connecticut.  While he later reports the bill may have died in committee, it is still instructive to look at it, as its twin may well get passed in AZ and many other states are proposing such laws faster than the little animals pop up in a whack-a-mole game.

I am becoming increasingly convinced that these are all stealth attempts to protect politicians and public officials from criticism.  Look at the proposed law in CT:

(a) A person commits electronic harassment when such person, with intent to harass, annoy or alarm another person, transmits, posts, displays or disseminates, by or through an electronic communication device, radio, computer, Internet web site or similar means, to any person, a communication, image or information, which is based on the actual or perceived traits or characteristics of that person, which:
(1) Places that person in reasonable fear of harm to his or her person or property;
(2) Has a substantial and detrimental effect on that person's physical or mental health;
(3) Has the effect of substantially interfering with that person's academic performance, employment or other community activities or
responsibilities;
(4) Has the effect of substantially interfering with that person's ability to participate in or benefit from any academic, professional or community-based services, activities or privileges; or
(5) Has the effect of causing substantial embarrassment or humiliation to that person within an academic or professional community.

One of the tricks of these laws is to mix and thereby conflate outrageous behavior most all of us are willing to restrict (e.g. make a credible threat to someone's life) with everyday behaviors such as annoying people.

Let's say I were to write in my blog that, say, Joe Arpaio is an jerk and should not get re-elected.  Let's analyze the statement

• It's transmitted electronically
• It will very likely annoy Arpaio, since he is known to be annoyed by all criticism
• I am trying very hard to interfere with his employment by preventing his re-election

By this law, therefore, even this relatively mild criticism is illegal.   In fact, since all criticisms of politicians can be said to negatively affect their re-election chances, by part 3 any political criticism online would be illegal.

I honestly don't think this is a bug, it is a feature.  Already police departments and other public officials are using cyber-bullying laws to stomp on those who criticize them.

Arizona House Bill 2549, which just passed its committee 30-0:

It is unlawful for any person, with intent to terrify, intimidate, threaten, harass, annoy or offend, to use ANY ELECTRONIC OR
DIGITAL DEVICE and use any obscene, lewd or profane language or suggest any lewd or lascivious act, or threaten to inflict physical harm to the person or property of any person.

I'm no lawyer, but it sure looks like, under this proposed law, my blogging that Sheriff Joe is an asshole will be illegal (if he is annoyed, and believe me he is annoyed by any criticism).

Note also that by the wording of the law, said communications are illegal in Arizona if it was originated here or received here.  That means if you folks in Colorado or California put something profane in an Internet comment, and it annoys some idiot in Arizona, you are technically in violation of the law.

Sometimes I have this fantasy that we have a Goldwater-libertarian streak among Arizona Republicans.  Obviously, this is just that, fantasy.

There is an ever-present effort among corporations, government officials, and public figures to suppress criticism.  A new tool in this war on speech is the trademark or copyright, where folks argue that criticism that uses even their name is somehow in violation of intellectual property protections.

Of course, this is all so much BS, and courts have been pretty good about protecting speech in these circumstances, but the need for vigilance never goes away.  Example

There's plenty of genuine trademark and copyright piracy out there: people trying to make money off of other people's work, or enjoy it for free. But increasingly, copyrights and trademarks are used by their owners, with the assistance of thuggish lawyers, as weapons to suppress satire, criticism, and comment. We've discussed the trend here before — Forever 21's embarrassing attack on a humor site,Ralph Lauren threatening lawsuits against people who comment on its freakish photoshops of models,Meghan McCain's attempt to use the California "right of publicity" to suppress parody of her awful writing, the TSA attempting to criminalize use of its logo,scummy telemarketers arguing that people criticizing them are violating the trademark in their name, andthe Guinness World Records people reacting to a hilarious screenshot with trademark threats. [Now that I look at it, I think we need a tag for this.] Sometimes the copyright and trademark thuggery goes meta, as whenjackass attorneys send cease-and-desist letters, claim copyright in the letters, and threaten suit if they are released and discussed.

The rest is worth reading, written in Ken's, uh,  trademark style that is both informative and enjoyable.  Like Ken, I have to confess to a deep befuddlement as to the appeal of Louis Vuitton gear, which generally look like brown Hefty bags with a pattern printed on it.  Why someone would go to the effort of copying them seems as odd to me as building a replica of the Peabody Terrace apartments where I used to live in Boston.

We must keep the little people at a distance

I was surprised to find this bit of awesomeness on the net:

Update: Speaking of which, Carlos Miller, from whom the title of this post is stolen, was yet again arrested for filming police in a public place.

A while back I criticized the notion that Backpage was somehow responsible for murders because one guy in Detroit identified his victims from Backpage ads.  I argued that Conservatives trying to take down Backpage adult ads ostensibly to make sex workers safer should look in the mirror, given that most of the reason sex workers are at risk is because Conservatives have driven their profession underground.

Jacob Sollum at Reason had a similar take the other day

Far from helping victims like Baby Face, prohibition forces the entire market underground, making it harder to enforce the distinction between minors and adults or between willing and coerced participants. Prohibition forces prostitutes to work in dangerous conditions, picking up customers on the street or covertly connecting with them online, and makes it harder for them to seek legal remedies when they are cheated or abused. These hazards, similar to those seen in black markets for drugs and gambling, are not inherent to the business of selling sex; they are inherent to the policy of using force to suppress peaceful commerce. Since these dangers are entirely predictable, prohibitionists like Kristof should be reflecting on their role in perpetuating them, instead of making scapegoats out of businesses that run classified ads.

Search warrant required for GPS tracking

Glen Reynolds reports that opposition to SOPA has caused Congress to pull back a bit.  My prediction:  They will kill this particular bill, and we will all pat ourselves on the back for it going away, but they it will get slipped into the back of some defense authorization bill while no one is looking and become law anyway.  This kind of pandering to Hollywood and increased government control over speech and the Internet is just too appealing for Congress to pass up forever.

The whole sad update here.

Rand Paul's attack on the bill is here.

This was an entirely bipartisan effort, with the 13 nay votes spit equally between the parties

Nay ID Crapo, Michael [R]
Nay ID Risch, James [R]
Nay IL Durbin, Richard [D]
Nay IA Harkin, Thomas [D]
Nay KY Paul, Rand [R]
Nay MD Cardin, Benjamin [D]
Nay MN Franken, Al [D]
Nay OK Coburn, Thomas [R]
Nay OR Merkley, Jeff [D]
Nay OR Wyden, Ron [D]
Nay SC DeMint, Jim [R]
Nay UT Lee, Mike [R]
Nay VT Sanders, Bernard [I]

Democrats have been unbelievably disappointing on civil liberties issues the last several years.  The same group that sniped relentlessly (and correctly) at George Bush about Guantanamo have now reversed themselves 180 degrees now that their guy is in office.

I find it irritating that folks like President Obama feel like the power to indefinitely detain people, without due process, is Constitutionally OK as long as the President does not abuse the power.  Sorry, but the very existance of this power is a violation of the Constitution.  The whole point of that great document was to always assume that state powers would be abused, and I think history has taught that this is a fair assumption

Tim Lynch brings us an update on the Bill of Rights.  Good news:  The third is doing find.  The rest?  Not so much.

My new column is up at Forbes, and discusses the proposal by a number of Congressmen for a Constitutional Amendment to strip corporations of speech and other rights.  The post is hard to excerpt but here is just a bit:

This is why this proposed Amendment is so absurd.  In effect, it would mean that we all enjoy the full range of Constitutional rights, except when we agree to assemble and cooperate -- then we lose them all.   If I as an individual bake bread in my kitchen for resale, I could still petition the state to modify regulations relevant to my activity.  If I then join together with my neighbor in a cooperative venture to bake and resell bread, does it really make sense that I would then lose my right to petition the government?

Worse, the proposed Amendment does not limit its scope to just the First Amendment.  It means that individuals, when on corporate property, might have no protection from unreasonable searches and seizures;  corporations would have no guarantee of due process or of a jury trial in civil suits;  corporate assets would no longer be protected from eminent domain seizure without compensation.  Under this provision, the Federal government could seize Apple Computer if it so desired (or even quarter troops in the Apple offices!).  This all sounds like a stalking horse for Socialism, which might seem overwrought until one realizes that Bernie Sanders is the sponsor of a similar proposal in the Senate....

Of all the possible approaches to reducing the ability of private citizens to manipulate government policy to their personal benefit, this is in fact likely the worst.  As mentioned above, there are many different avenues to exercising influence and power, of which election spending and advertising is just one.  But election spending is the most transparent of all of these approaches.  This proposed amendment would in effect substitute highly visible advertising and electioneering with backroom deals and political patronage that is far more hidden from the public eye.  A cynical person might argue that this is exactly the goal.

I have said many times that protection of individual liberties is a far more important metric for the quality of governments than the quality of a country's elections.  We are about to get an object lesson in this in Egypt, where a really marvelous, open, and transparent election is going to lead to enormous losses of individual liberties, particularly for women.

Lol

I do not think that word "anarchist" means what they think it means.

This has from the beginning been the almost charming oddity of the OWS movement - we are anarchists that want more government.  We oppose "the man" but want him to pay our college tuition.  We hate capitalism but can't go anywhere without our iPods.

From the famous Onion 9/11 issue, this seems amazingly precient considering Senator McCain's proposed law to allow the President to indefinitely detain just about anyone he thinks might be a terrorist

U.S. Sen. John McCain (R-AZ), one of Congress' decorated war veterans, tried to steel the nation for the possibility of a long and confusing conflict.

"America faces a long road ahead," McCain said. "We do not yet know the nature of 21st-century warfare. We do not yet know how to fight this sort of fight. And I'll be damned if one of us has an inkling who we will be fighting against. With any luck, they've got uniforms of some sort."

"Christ," McCain continued, "what if the terrorists' base of operation turns out to be Detroit? Would we declare war on the state of Michigan? I suppose we'd have to."

Michigan was an interesting choice -- I wonder if they knew at the time the prominence of Muslims in Michigan or if it was just a random choice?  Certainly, though, they had McCain nailed.

I mentioned earlier that maybe somewhat different rules of due process were required when the enemy is not wearing, you know, uniforms.  Again, the Onion was first, from the same article

Secretary of Defense Donald Rumsfeld said the war against terrorism will be different from any previous model of modern warfare.

"We were lucky enough at Pearl Harbor to be the victim of a craven sneak attack from an aggressor with the decency to attack military targets, use their own damn planes, and clearly mark those planes with their national insignia so that we knew who they were," Rumsfeld said. "Since the 21st-century breed of coward is not affording us any such luxury, we are forced to fritter away time searching hither and yon for him in the manner of a global easter-egg hunt."

If nothing else, the OWS movement is helping ordinary Americans see the abuse of power that is so endemic in many police departments.  I am tired of the quasi-cult of police ass-kicking on average citizens, as fed by reality cop shows and folks like Joe Arpaio.  As Radley Balko points out, the casual way that the officer hoses down citizens who are just sitting on a curb with pepper spray is just outrageous.  From past experience, my guess is that these guys were ready to go limp and be dragged off - the pepper spray was just pure torture for the entertainment of the cops.

We would not do this to a terrorist in Gitmo, so why are we doing this to American citizens? I think I get particularly angry and intolerant of this kind of crap because I used to be the kind of law and order conservative that would excuse this kind of behavior, and that embarrasses me. The saying goes that a converted Catholic is often more fervent than a born one, so to I guess for this civil libertarian.

This is really sad to see in what is supposed to be a liberal democracy:

Now that the carbon tax has passed through [Australian] federal parliament, the government’s clean-up brigade is getting into the swing by trying to erase any dissent against the jobs-destroying legislation.

On cue comes the Australian Competition and Consumer Commission, which this week issued warnings to businesses that they will face whopping fines of up to $1.1m if they blame the carbon tax for price rises.

It says it has been “directed by the Australian government to undertake a compliance and enforcement role in relation to claims made about the impact of a carbon price.”

...

There will be 23 carbon cops roaming the streets doing snap audits of businesses that “choose to link your price increases to a carbon price”.

Instead, the ACCC suggests you tell customers you’ve raised prices because “the overall cost of running (your) business has increased”.

Update:  Obama loves the Aussie carbon tax

Addressing the press in Australia, where legislators passed a carbon tax earlier this month, Obama praised Prime Minister Julia Gillard for pursuing “a bold strategy” to trim industrial emissions that most scientists say are contributing to global warming.

I got a call this morning from Homeland Security about their e-verify immigration tracking system (which we are required by law to use in Arizona).  The caller said that Homeland Security was interested in the satisfaction of their customers.  I told her that I am not her customer.  I am a subject of the state who is forced by law against my will to use their system.  A customer is someone who is in a voluntary relationship.

The call ended soon after that.  I supposed I have just asked for some sort of audit, but at this point I don't care.

If the very rich got that way through special access to government power, then why is the solution to tax them more, and not just to reduce government power?

And if the very rich got that way through hard work and innovation, then why the hell are we proposing to take resources out of these people's hands?

Transparency and accountability are always loved by those out of power but seldom by those in power.  Thus we hear a lot about them on the campaign trail, and then suddenly, once folks are in office, silence.  Two examples today.

First, this unbelievably anti-democratic and egregious proposal

A proposed rule to the Freedom of Information Act would allow federal agencies to tell people requesting certain law-enforcement or national security documents that records don't exist—even when they do.

Under current FOIA practice, the government may withhold information and issue what's known as a Glomar denial that says it can neither confirm nor deny the existence of records.

The new proposal—part of a lengthy rule revision by the Department of Justice—would direct government agencies to "respond to the request as if the excluded records did not exist."

The second story is in the same spirit, of using secrecy to avoid scrutiny and accountability

Sometime in 2012, I will begin the ninth year of my life under an FBI gag order, which began when I received what is known as a national security letter at the small Internet service provider I owned. On that day in 2004 (the exact date is redacted from court papers, so I can’t reveal it), an FBI agent came to my office and handed me a letter. It demanded that I turn over information about one of my clients and forbade me from telling “any person” that the government had approached me....

For years, the government implausibly claimed that if I were able to identify myself as the plaintiff in the case, irreparable damage to national security would result. But I did not believe then, nor do I believe now, that the FBI’s gag order was motivated by legitimate national security concerns. It was motivated by a desire to insulate the FBI from public criticism and oversight.

This is hilarious, all the more so because the actors involved have absolutely no self-awareness of just how bad this looks

This week alone has seen a ratings downgrade for Spain as well as a threat by agencies to review France's AAA status -- and the markets have taken notice. Once again, it would seem, ratings agencies are making things difficult for European countries.

Now, the European Union is considering doing something about it.

European Internal Market Commissioner Michel Barnier is considering a move to ban the agencies from publishing outlook reports on EU countries entangled in a crisis, according to a report in Thursday's issue of the Financial Times Deutschlandnewspaper

This is not even a content neutral ban on speech - it obviously will only be applied to bad reports, not positive ones.  No wonder Obama has always been so admiring of the Europeans.

I simply cannot believe that the President of the US just ordered an American citizen killed, without trial or due process, and the country just yawns.  And in some cases, cheered.  Are we really going to make the Fifth Amendment, along with the Fourth, the Ninth, and the Tenth, another "just kidding" passage?  Its amazing that the same kids that marched  against Nixon's abuse of power have decided this is perfectly OK.

I suppose I expect Republicans to pile on for this kind of security-state garbage, but an awful lot of Democrats are sitting on their hands as well, just because it was their guy in the Oval office pulling the trigger.  Kudos to a few souls on the left like Glenn Greenwald and Kevin Drum who, however subdued in comparison to their reaction had it been Bush, called out their party's leader for this bit of horror.  Greenwald makes the point to fellow Lefties - how would you feel if Rick Perry or Michelle Bachman had this power?

This latter is a good test I ask folks all the time.  Those who advocate for statist powers generally imagine folks like themselves wielding these powers.  But how realistic is that in a Democracy where power shifts every 8-10 years or so?  I ask folks all the time to picture their worst political enemy, and then imagine that person with the power they advocate.

We have reached the point that one only needs to mention "radiation" and people go nuts with fear, no matter what the context or concentration (witness all the morons buying Iodine tables in the US after the Japanese nuclear accident).

There are folks today who are trying to do the same thing in the world of First Amendment rights, making any mention of violence, no matter in what context, the cause of a major league freakout.

Witness this story you have probably seen already, about the professor in Wisconsin who had a Mal Reynolds (Firefly) poster that had a quote from one of the show's episodes:

You don't know me, son, so let me explain this to you once: If I ever kill you, you'll be awake. You'll be facing me. And you'll be armed.

To call this a threat is absurd.  In fact, in its original context, it was an anti-threat.  It was a statement of old-fashioned honor by a character who lived in a violent world.  And of course it is freaking fiction, and has no more relevance as a threat to real-life visitors to the professors offices than a picture of the Governator saying "I'll be back."

Not to mention the fact that such actions against speech are seldom enforced in a content-neutral sort of way.  One wonders how many Che Gueverra (a real life killer) posters the university tolerates, or how many "well-behaved women seldom make history" (arguably encouraging women to break the law) bumper stickers can be found in the parking lot.  The professor also had a poster taken down that explicitly advocates against violence, and had that poster taken down as well.  One wonders how many similar posters with eye-catching graphics one might find around campus advocating against violence against women or violence in Darfur.