Coyote Blog

As the Left works hard to become the new Victorians, the reversal of Left and Right continues.  The most recent story:  Harvard students call on the University to remove a Harvard dean because, as an attorney, he has the temerity to represent an unappealing client.  When I grew up it was Conservatives that would try to shame an attorney for representing an alleged murderer or rapist, and the Left that used to scream that everyone has a right to representation in the legal process.  If I see the ACLU chime in against the dean, I will know the reversal is complete.

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.

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.

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?

Like many of the people who are protesting today in St. Louis the acquittal of  Jason Stockley (please, let's hope it stays peaceful) I am angry about the lack of accountability for this behavior:

Smith tried to flee from Stockley on Dec. 20, 2011, following an alleged drug deal, authorities said. During the pursuit, Stockley could be heard saying on an internal police car video he was going to kill Smith, prosecutors said.

Stockley, riding in the passenger seat of a patrol vehicle with his personal AK-47 in one hand and department-issued weapon in the other, shot at Smith’s car, according to St. Louis Circuit Attorney’s Office spokeswoman Susan Ryan and charging documents.

At Stockley’s direction, the driver of the police car slammed into Smith’s vehicle and they came to a stop, court documents said. Stockley then approached Smith’s car and shot him five times with his service weapon.

Stockley’s lawyers said he fired in self-defense because he believed Smith was reaching for a gun but prosecutors said the only gun recovered from the scene had only Stockley’s DNA on it.

Stockley was acquitted of all charges today.  Just read the above and remember that Smith was not some terrorist about to detonate a nuclear weapon, he was involved in a drug sale.  And here is this police officer chasing him in gunzerker dual-wield mode, crashing his car into him and shooting him after stating his intention to do so over the radio.

But I am also pissed off at BLM.  Why?  Well, I suppose if they encourage folks to violence today I will be mad at them for that.  But I am really mad at the total failure they have become as a change organization.  For years many lone voices have tried to point out issues with police violence and the lack of accountability for it.  BLM did a great job of substantially raising awareness of these issues through protests and disruptions.  But protest and disruption (and collecting donations) is all they seem to be able to do.  The time is long past that they need to be leading the hard work of renegotiating police union contracts and changing local laws.  BLM should have been ready for a day like today with a list of model legislation they can be waving in front of cameras saying this is the list of things we need to be doing in every city to prevent a repeat of this travesty.  Instead, all we will watch is more protests and violence.

Why do I single out BLM?  Why is it their responsibility?  Because they have sucked all the oxygen out of the room.   They wanted to be -- and are -- the de facto leaders on this issue.  They get all the funding.  They get all the celebrity support.  And they are not doing jack except perhaps alienating people they will need to work with to make progress.  They actually had a good plan in the beginning that they have since abandoned in favor of posturing and virtue signalling.   In contrast look at the ACLU, the IJ, and ALEC and how they spend their resources.   It reminds me of exactly how the Trump Administration operates, as so ably described by Megan McArdle today.  Lots of posturing, no ability to do the hard, detailed work to make change.

The ACLU has always been an important but imperfect organization.  Historically, its biggest problem IMO has been its Stalinist origins and its resulting complete silence on, even at times hostility towards, property rights.   But it was always wonderfully absolutist in protecting free speech.  One of my first blog posts, which I can't seem to find, 10+ years ago was a post congratulating the ACLU to the distasteful but necesary task of defending the free speech rights of neo-Nazis.

Unfortunately, the rising opposition to free speech on the Left seems to be infecting the ACLU.  Via Ronald Collins:

Wendy Kaminer is an ardent free-speech advocate; she is currently a member of the advisory board of the Foundation for Individual Rights in Education (FIRE). Ms. Kaminer Kaminer was a member of the board of the ACLU of Massachusetts from the early 1990s until June 2009. She was also a national board member of the ACLU from 1999 until her term expired in June 2006. As to the omission of any reference to protecting First Amendment free-speech freedoms in the 2016 Workplan, she stated:

I’m not at all surprised that the ACLU’s 2016 work plan doesn’t include an explicit commitment to protecting freedom of speech. At the national level, ACLU has been exercising its right to remain silent on key free speech issues for years, in apparent deference to progressive support for restricting speech deemed racist, sexist, homophobic or otherwise exclusionary. Still, while it’s unsurprising, the ACLU’s withdrawal from free speech battles that could eventually lead the U.S. to adopt a Western European approach to regulating “hate speech” is indeed alarming. As threats to free speech intensify — on campus (thanks partly to arguably unconstitutional federal mandates) and in the remarkable tendency of some liberals to blame the victims of violence for giving offense to their murderers (remember Charlie Hebdo) — the ACLU’s timidity in protecting speech looks more and more like complicity in censoring it.

Here is how Harvey A. Silverglate, co-founder of FIRE and a former member of the Board President of the ACLU of Massachusetts, replied:

Sadly, it comes as no surprise that the national ACLU Board and Staff are nowhere to be seen in the increasingly difficult battle to protect First Amendment freedom of expression rights. This is especially so in areas where the ACLU, more and more, pursues a political or social agenda where the overriding importance of the goal transcends, in the eyes of ACLU’s leadership, the needed vitality of free speech principles neutrally and apolitically applied. Fortunately, some ACLU state affiliates still carry the free speech battle flag, but they are a diminishing army in a war that is getting more and more difficult, even though more and more important, to wage.

Walter Olson writes (emphasis added)

Elane Photography LLC v. Vanessa Willock is the case in which an Albuquerque, NM woman has (thus farsuccessfully) sued husband-and-wife photographers under New Mexico’s “public accommodations” discrimination law for their reluctance to shoot photos of her commitment ceremony to a female partner. One of the most dismaying elements of the case is that the American Civil Liberties Union has taken the anti-liberty side. Adam Liptak in the NYT:

I asked Louise Melling, a lawyer at the American Civil Liberties Union, which has a distinguished history of championing free speech, how the group had evaluated the case.

Ms. Melling said the evaluation had required difficult choices. Photography is expression protected by the Constitution, she said, and Ms. [Elane] Huguenin acted from “heartfelt convictions.”

But the equal treatment of gay couples is more important than the free speech rights of commercial photographers, she said, explaining why the A.C.L.U. filed a brief in the New Mexico Supreme Court supporting the couple.

Earlier, Olson made the useful point that large organizations like the ACLU are not monolithic -- they have internal conflicts on issues like this.  But based on my interactions with the ACLU, I believe the key word is in bold:  "commercial".   For many at the ACLU, the fact that an activity is commercial or for money voids or cancels out any rights one has.  Property rights or rights exercised in the conduct of commerce tend to always come last (if at all) at the ACLU.  Which is why I donate every year to the IJ, the organization the ACLU should have been if they had not been founded by Stalinists.  Update:  That is unfair.  It's like criticizing someone because of what his father did or believed.  Many organizations move beyond their original founder's legacy.  But it is never-the-less undeniable that -- at best -- the ACLU has no interest in property rights or commercial freedoms.

Given recent legislative and judicial decisions, there are vanishingly few electronic records that the government cannot rape at will.  Increasingly, government agencies can access electronic data without even bothering with silly stuff like warrants or judicial review.  

The Drug Enforcement Administration is trying to access private prescription records of patients in Oregon without a warrant, despite a state law forbidding it from doing so. The ACLU and its Oregon affiliate are challenging this practice in a new  that raises the question of whether the Fourth Amendment allows federal law enforcement agents to obtain confidential prescription records without a judge’s prior approval. It should not.

In 2009, the Oregon legislature created the Oregon Prescription Drug Monitoring Program (PDMP), which tracks prescriptions for certain drugs dispensed by Oregon pharmacies, including all of the medications listed above. The program was intended to help physicians prevent drug overdoses by their patients and more easily recognize signs of drug abuse. Because the medical information revealed by these prescription records is highly sensitive, the legislature created robust privacy and security protections for the PDMP, including a requirement that law enforcement must obtain a warrant before requesting records for use in an investigation. But despite those protections, the DEA has been requesting prescription records from the PDMP using administrative subpoenas which, unlike warrants, do not involve demonstrating probable cause to a neutral judge.

While the government needs a search warrant to access paper medical records, it apparently feels it can look at electronic records without a warrant,.  Which explains one reason why the Administration is so excited about the new medical records requirements in Obamacare.   You didn't think HIPAA applied to the government, did you?  And if you wondered why Obamacare requires doctors to ask medically-unrelated questions (e.g. on gun ownership), now you know.

The Institute for Justice, or IJ.  The do great work.  What the ACLU should have been if it wasn't founded by Stalinists.  Check out this aggravating example:

Imagine you own a million-dollar piece of property free and clear, but then the federal government and local law enforcement agents announce that they are going to take it from you, not compensate you one dime, and then use the money they get from selling your land to pad their budgets—all this even though you have never so much as been accused of a crime, let alone convicted of one.”

That is the nightmare Russ Caswell and his family is now facing in Tewksbury, Mass., where they stand to lose the family-operated motel they have owned for two generations.

The most contentious civil forfeiture fight in the nation will be the subject of a week-long trial starting Monday, November 5, 2012, in Boston. Throughout the week, the Institute for Justice, which represents the property owners in the case, will expose the ugly practice of civil forfeiture—where law enforcement agencies can pad their budgets by taking property from innocent owners who have never been convicted or even charged with a crime.

OK, there are lots of reasons to get Obama out of office.  The problem is, that for most of them, I have no reasonable hope that Romney will be any better.  Corporatism?  CEO as Venture-Capitalist-in-Chief?  Indefinite detentions?  Lack of Transparency?  The Drug War?   Obamacare, which was modeled on Romneycare?  What are the odds that any of these improve under Romney, and at least under Obama they are not being done by someone who wraps himself in the mantle of small government and free markets, helping to corrupt the public understanding of those terms.

So I am pretty sure I cannot vote for Romey.  I really like Gary Johnson and I am pretty sure he will get my vote.  Republican friends get all over me for wasting my vote, saying it will just help Obama win.  So be it -- I see both candidates undertaking roughly the same actions and I would rather that bad statist actions be taken in the name of Progressives rather than in the name of someone who purports to be free market.

To test my own position, I have been scrounging for reasons to vote for Romney.  I have two so far:

1.  Less likely to bail out Illinois when its pension system goes broke in the next few years

2.  I might marginally prefer his Supreme Court nominees to Obama's

That is about all I have.  Stretching today, I have come up with a third:

3.  If we have a Republican in the White House, the press will start doing its job and dig into the facts about drone strikes and warrant-less wiretapping.

You know the press are in full defense mode protecting their guy in office when the only press that reports on the ACLU's accusation about sky-rocketing wire tapping under Obama are the libertarians at Reason and the Marxists at the World Socialist Web site.  Four years ago the New York Times would have milked this for about a dozen articles.  It may take a Republican President to get the media to kick back into accountability mode over expansions of executive power.

I wanted to leave Glendale's proposed $100 million subsidy of the purchase of the Phoenix Coyotes hockey team by Matthew Hulzinger behind for a while, but I had to comment on something in the paper yesterday.

The Arizona Republic, which is an interested party given that a good part of their revenues depend on having major sports teams in town, had an amazing editorial on Tuesday.  Basically, it said that Goldwater, who has sued to bock the bond issue under Arizona's gift clause,  needed to stop being so pure in its beliefs and defense of the Constitution and that it should jump down in the political muck with everyone else.

I encourage you to read the article and imagine that it involved defense of any other Constitutional provision, say free-speech rights or civil rights.  The tone of the editorial would be unthinkable if aimed at any other defense of a Constitutional protection.  Someone always has utilitarian arguments for voiding things like free speech protections -- that is why defenders of such rights have to protect them zealously and consistently.  The ACLU doesn't get into arguments whether particular speech is right or wrong or positive or negative -- it just defends the principle.  Can't Goldwater do the same?

My thoughts on the Coyotes deal are here and her.  Rather than dealing with the editorial line by line, which spends graph after graph trying to convince readers that Darcy Olsen, head of the Goldwater Institute, is "snotty,"  here are some questions that the AZ Republic could be asking if it were not in the tank for this deal

• How smart is it for the taxpayers of Glendale to have spent $200 million plus the proposed $100 million more to keep a team valued at most at $117 million? (several other teams have sold lately for less than $100 million)  And, despite $300 million in taxpayer investments, the city has no equity in the team -- just the opposite, it has promised a sweetheart no-bid stadium management deal of an additional $100 million over 5 years on top of the $300 million.
• The Phoenix Coyotes has never made money in Arizona, and lost something like $40 million last year.  Why has no one pushed the buyer for his plan to profitability?  The $100 million Glendale taxpayers are putting up is essentially an equity investment for which it gets no equity.  If the team fails, the revenue to pay the bonds goes away.   The team needs to show a plan that makes sense before they get the money -- heck the new owners admit they will continue to lose money in the foreseeable future.     I have heard folks suggest that the Chicago Blackhawks (Hulzinger's home town team) are a potential model, given that they really turned themselves around.  But at least one former NHL executive has told me this is absurd.  The Blackhawks were a storied franchise run into the ground by horrible management.  Turning them around was like turning around the Red Sox in baseball.  Turning around the Coyotes is like turning around the Tampa Bay Rays.  The fact is that the team lost $40 million this year despite the marketing value of having been in the playoffs last year and having the second lowest payroll in the league.  The tickets are cheap and there is (at least for now) free parking and still they draw the lowest attendance in the NHL.  Part of the problem is Glendale itself, located on the ass-end of the metro area  (the stadium is 45 minutes away for me, and I live near the centerline of Phoenix).
• If taxpayers are really getting items worth $100 million in this deal (e.g. parking rights which Glendale probably already owns, a lease guarantee, etc) why can't the team buyer use this same collateral to get the financing privately?  I have seen the AZ Republic write article after article with quote after quote from Hulzinger but have not seen one reporter ask him this obvious question.  I have asked Hulzinger associates this question and have never gotten anything but vague non-answers.  A likely answer is what I explained yesterday, that Hulzinger is a smart guy and knows the team is not worth more than $100 million, but the NHL won't sell it for less than $200 million (based on a promise the Commissioner made to other owners when they took ownership of the team).  Hulzinger needed a partner who was desperate enough to make up the $100 million the NHL is trying to overcharge him -- enter the City of Glendale, who, like a losing gambler, keeps begging for more credit to double down to try to make good its previous losses.
• Glendale often cites a $500 million figure in losses if the team moves.  Has anyone questioned or shown any skepticism for this number?  My presumption is that it includes lost revenue at all the restaurants and stores around the stadium, but is that revenue really going to go away entirely, or just move to other area businesses?  If your favorite restaurant goes out of business, do you stop going out to eat or just go somewhere different?
• We hear about government subsidies to move businesses from other countries to the US, or other states to Arizona, and these tend to be of dubious value.  Does it really make sense for Glendale taxpayers to pay $400 million to move business to another part of the Phoenix metropolitan area?
• Why do parties keep insisting that Goldwater sit down and "negotiate?"  Goldwater does not have the power to change the Constitutional provision.  Do folks similarly call on the NAACP to "negotiate" over repeal of Jim Crow laws?  Call on the ACLU to negotiate over "don't ask, don't tell"?  This may be the way Chicago politics works, with community organizers holding deals ransom in return for a negotiated payoff, but I am not sure that is why Goldwater is in this fight.  The Gift Clause is a fantastic Constitutional provision that the US Constitution has, and should be defended.
• Jim Balsillie offered to buy out the team (and move it to Canada) without public help and to pay off $50 million of the existing Glendale debt as an exit fee.  Thus the city would have had $150 in debt and no team.  Now, it will be $300 million in debt and on the hook for $100 million more and may still not have a team in five years when, almost inevitably, another hubristic rich guy finds he is not magically smarter about hockey and can't make the team work in Arizona.   Has anyone compared these two deals?  Private businesses cut losses all the time -- politicians almost never do, in part because they are playing with house money (ours).

Why Can't Chuck Get His Business Off the Ground?  Go watch, from the IJ  (the IJ is what the ACLU should have been if they were not founded by Stalinists).

Via TJIC, Copblock releases links to police officers accused of committing crimes.  The list for just one week is ridiculously long, and surely would be longer if not for the law of Omerta among police that cause only a small percentage of their crimes to see the light of day.  Congratulations to Phoenix area police (including Mesa and Maricopa County) for making the list seven times.

- Phoenix AZ cop who was charged with murder, planted drugs on mentally challenged homeless lady

- Phoenix AZ cop given 2nd degree murder charge after shooting unarmed man to death

- Mesa AZ cop grabs 2 women by the neck and slams their heads together

- Maricopa County AZ sheriff sued for intentionally locking disabled woman in jail cell w/several men for 6 hours

- 6 Mesa AZ cops sued for tasing, kicking and beating man

- Maricopa County AZ sheriff ordered to fix unconstitutional conditions at jails in ACLU suit by 9th circuit court

- Phoenix AZ cop arrested on DV-related aggravated assault after witness called cops

Solid work for one week.

This week's episode -- Monk's making simple caskets to support themselves must desist because Louisiana has detailed licensing laws to protect current funeral homes from just this type of low-cost competition. This is what the monks would have to do to sell what is basically a nice wooden box

Louisiana law purports to require that anyone who is going to sell a casket has to jump through all same regulatory hoops as a full-fledged mortuary operation that embalms bodies. See, selling "funeral merchandise" (including caskets) means you are a "funeral director." And to be a "funeral director," you must be approved for "good moral character and temperate habits" by a funeral-related government entity [of course, that's in Louisiana, but still], complete 30 semester hours at college, apprentice with a funeral director for a year, pay an application fee, and pass an exam. But that's not all. If you want your facility to sell caskets, it's got to qualify as a facility for funeral directing, including a showroom and "embalming facilities for the sanitation, disinfection, and preparation of a human body."

The monks are being represented by the IJ (what the ACLU should have been if it weren't for its Stalinist founders) which hopes to get to the Supreme Court.  If I were one of the monks (wildly unlikely as that is) I might be tempted to sell them as "human-sized wood boxes" rather than coffins and see where that got me.

The most important news, I suppose, is that Arizona has made its new immigration law more palatable with a few changes.

The first concerns the phrase "lawful contact," which is contained in this controversial portion of the bill: "For any lawful contact made by a law enforcement official or a law enforcement agency"¦where reasonable suspicion exists that the person is an alien who is unlawfully present in the United States, a reasonable attempt shall be made, when practicable, to determine the immigration status of the person"¦"  Although drafters of the law said the intent of "lawful contact" was to specify situations in which police have stopped someone because he or she was suspected of violating some other law "” like a traffic stop "” critics said it would allow cops to pick anyone out of a crowd and "demand their papers."

So now, in response to those critics, lawmakers have removed "lawful contact" from the bill and replaced it with "lawful stop, detention or arrest." In an explanatory note, lawmakers added that the change "stipulates that a lawful stop, detention or arrest must be in the enforcement of any other law or ordinance of a county, city or town or this state."

"It was the intent of the legislature for "˜lawful contact' to mean arrests and stops, but people on the left mischaracterized it," says Kris Kobach, the law professor and former Bush Justice Department official who helped draft the law.  "So that term is now defined."

The second change concerns the word "solely."  In a safeguard against racial profiling, the law contained the phrase, "The attorney general or county attorney shall not investigate complaints that are based solely on race, color or national origin."  Critics objected to that, too, arguing again that it would not prevent but instead lead to racial profiling.  So lawmakers have taken out the word "solely."

"There were misstatements by the opponents of the law that this was written to permit some consideration of race in the enforcement of this law," says Kobach, "and that's not the case at all."

It is hard for me to separate in my mind whether the problem I have with what remains is really with this law or with the individuals whom I know to be tasked with its enforcement.  Sheriff Joe Arpaio has a history of pulling over every Mexican he runs into with a broken tail light on his crime sweeps, so in actual practice, the requirement of there being some other crime involved doesn't do much to make me fear profiling any less.  But its hard for me to say that checking immigration status of people arrested or detained is unreasonable, so it may be I am just uncomfortable with the overzealous enforcements and Sheriff Joe's patented crime sweeps.  (I am still opposed to the socialist definition of property rights that conservatives have adopted in the law).

I thought Megan McArdle had an interesting point:

If the immigration problems in Arizona are really so serious that they merit deep intrusions upon the liberty of citizens who happen to resemble illegal immigrants, than they are serious enough to intrude on the liberty of everyone.  Don't make the cops check the status of anyone who they "reasonably suspect" is illegal; make them check the status of everyone, no matter how blond-haired, blue-eyes, and fluent in standard American english they may be.  If you forget your license at home, the police detain you, just like they detain anyone of mexican descent, while someone fetches it.  If you can't produce a birth certificate, passport, or similar, then you wait in the pokey until they can verify your legal status.  No police discretion.  No profiling.

We can illustrate McArdle's point with an example, where our sheriff's descended on a local business and zip-tied and detained anyone who looked Hispanic until they could produce proof of immigration status.  No Anglos at this location were treated the same way:

Deputies from the Maricopa County Sheriff's Office raided a Mesa landscaping company early Wednesday morning, arresting nearly three dozen people suspected of being in the country illegally.

The raid on offices of Artistic Land Management, on Main Street just west of Dobson Road, happened about 4:30 a.m., according to one worker who was handcuffed and detained before being released when he produced documentation that he was in the country legally"¦.

Juarez estimated about 35 workers were handcuffed with plastic zip-ties while deputies checked for documents. Those who could provide proof they were in the country legally were released, while others were put on buses and taken away.

This is something the bill supporters just don't want to deal with -- the ugly sight of all the brown skinned workers at a location separated out from their peers and zip-tied until they can produce the proper government papers.

Daniel Griswold of Cato offered what I thought was an excellent framework for thinking about immigration and immigration reform:

Requiring successful enforcement of the current immigration laws before they can be changed is a non sequitur. It's like saying, in 1932, that we can't repeal the nationwide prohibition on alcohol consumption until we've drastically reduced the number of moonshine stills and bootleggers. But Prohibition itself created the conditions for the rise of those underground enterprises, and the repeal of Prohibition was necessary before the government could "get control" of its unintended consequences.

Illegal immigration is the Prohibition debate of our day. By essentially barring the legal entry of low-skilled immigrant workers, our own government has created the conditions for an underground labor market, complete with smuggling and day-labor operations. As long as the government maintains this prohibition, illegal immigration will be widespread, and the cost of reducing it, in tax dollars and compromised civil liberties, will be enormous.

It turns out that after excoriating the Arizona law as being too intrusive, Democrats have responded with ... something even more intrusive.

Sometimes I just love the Democrats.  After fomenting a near meltdown over the Arizona immigration law, with charges of nazism and cries of "show me you papers!" flying hither and yon, the Democrats introduce an immigration framework with what?

Improved papers, of course.

Yes, the Dems screwed the pooch and included a national ID card in their proposed legislation.  And a biometric one at that.   As someone characterized it, it's a "super Social Security card".  Remember when you were assured that your SS card/number was not for identification purposes and never would be.  Well Bunky, that was as true as most of the promises politicians make.

Democratic leaders have proposed requiring every worker in the nation to carry a national identification card with biometric information, such as a fingerprint, within the next six years, according to a draft of the measure.

As a final note, for years I have asked strong exclusionist conservatives how they square their opposition to immigration with their desire for freedom of contract and exchange.  After all, if commerce is free, do I not have the right to hire anyone I want for a job, no matter where that person was born.  Why do Conservatives want to require that all workers have government licenses before they can be hired?  It turns out that the ACLU makes the same point in response to the above proposal (from the link above, emphasis added):

"Creating a biometric national ID will not only be astronomically expensive, it will usher government into the very center of our lives. Every worker in America will need a government permission slip in order to work. And all of this will come with a new federal bureaucracy "” one that combines the worst elements of the DMV and the TSA," said Christopher Calabrese, ACLU legislative counsel.

Note to Conservatives-- when the ACLU, founded by Marxists and which to this day resists recognizing property rights, gets out ahead of you on the rights to free exchange and commerce, you are in trouble.

Update:  More from Brad Warbiany and Matt Welch

I don't know that I have ever seen a clearer example of the disconnect of thinking between libertarians and authoritarian political thinking than in this brief paragraph from Dahlia Lithwick.  She is writing about a court case reviewing whether it should be a crime to deny police your identification.  She writes, making fun of libertarians:

It would be easier to credit the Cato and ACLU arguments if we didn't already have to hand over our ID to borrow a library book, obtain a credit card, drive a car, rent videos, obtain medical treatment, or get onto a plane. So the stark question then becomes this: Why are you willing to tell everyone but the state who you are? It's a curious sort of privacy that must be protected from nobody except the government.

Really??  It is strange to her that we would treat privacy uniquely with the one and only organization in this country that can legally use force against us, legally take our money without our permission, and legally throw us in prison?  Is she really so blinded by a love for state authority that she can't tell the difference between a transaction at Blockbuster, which we can choose not to patronize if we don't like their terms of sale, and an interaction with police, where there is not even a hint of it being an arms-length, consensual, balanced interaction.

There is an largeand growing body of evidence that police take advantage of their power mismatch with citizens and abuse their power in multiple ways, large and small.  These abuses have likely always existed, but were covered up by police officers standing up for each other.  Only the advent of portable video cameras has started to really document what really goes on in these interactions.  Just read a few posts at this site to get a flavor.  And cops sure don't like when you ask them for their ID, as they hate anything that might impose accountability on them:

And in today's daily contempt-of-cop story, Ft. Lauderdale Police Officer Jeff Overcash did not appreciate a man asking him for his badge number, so he pulled out his handcuffs and arrested him.And it was all caught on video.

The video shows Brennan Hamilton walking up to Overcash in a calm manner with a pen and notepad in his hand. Overcash, who is leaning against his squad car with other cops, then pulls out his handcuffs and arrests Hamilton.

Overcash charged him with resisting arrest without violence and disorderly intoxication.

Alex Tabarrok makes a good point.   Based on these arguments, Lithwick must be A-OK with Arizona's new immigration laws, right?

Update:  It is interesting that while sneering at slippery slope arguments, she proves their merit.

The slippery-slope arguments"”that this leads to a police state in which people are harassed for doing nothing"”won't really fly, although I guarantee that you'll hear more and more of them in the coming weeks.

But in the immediately proceeding lines she wrote:

Is there something about stating your name or handing over a driver's license that differs from being patted down or frisked, which is already constitutional for Terry purposes?I, for one, would rather hand over my driver's license to a cop than be groped by one.

This is a perfect illustration of the slippery slope, almost textbook.  Libertarians certainly opposed current pat down and frisking rules, but since these are legal, Lithwick uses their legality to creep the line a little further.  And then the legality of these ID checks will in turn be used to justify the legality of something else more intrusive.

One of the things I have always found frustrating and confusing is the number of folks who call themselves "civil libertarians" who simultaneously have not problem with economic and nanny-state hyper-regulation.  In fact, ACLU types are often at the leading edge of calls for more regulation on safety or prices or property or whatever.

I have never been able to understand how the two are not inextricably linked.  How can bright-line protections of freedoms of choice and action be essential in one sphere of our lives but unimportant in others?  Here is just one example of how they work together, from none other than our egregious Sheriff, Joe Arpaio:

Arrest records from crime sweeps conducted by the Maricopa County
Sheriff's Office add substantial weight to claims that deputies used
racial profiling to pull Latino motorists over to search for illegal
immigrants....

even when the patrols were held in mostly White areas such as
Fountain Hills and Cave Creek, deputies arrested more Latinos than
non-Latinos, the records show. In fact, deputies arrested among the
highest percentage of Latinos when patrols were conducted in mostly
White areas.

On the arrest records, deputies frequently cited minor traffic
violations such as cracked windshields and non-working taillights as
the reason to stop drivers.

"These are penny-ante offenses that (police) almost always ignore. This
is telling you this is being used to get at something else, and I think
that something else is immigration enforcement against Hispanic
people," Harris said....

Brian Withrow, an associate professor of criminal justice at Wichita
State University, said racial profiling is very difficult to prove.

States have thousands of traffic laws on the books, so police can
almost always find a reason to stop someone. The U.S. Supreme Court has
ruled that police can legally use minor traffic violations as a
"pretext" to stop someone they suspect of other crimes. Withrow said
the only way to prove racial profiling is by looking at large numbers
of traffic stops to see if "patterns and practices" of selective
enforcement exist. Otherwise, it's difficult to tell whether police are
stopping motorists for legitimate reasons or merely based on race or
ethnicity.

Withrow agreed that the arrest records alone are inconclusive. But
he found it troubling that they show that Latinos were arrested more
frequently than non-Latinos even when the patrols took place in mostly
White areas such as Fountain Hills.

"That tells me that that is who is being targeted," Withrow said.

Megan McArdle observes (via data from the ACLU) that over 900,000 Americans have their name on various terrorist watch lists.  One could argue that this is perhaps four orders of magnitude off the actual number of active terrorists running around the country.  How can such a travesty occur?  Well, its the government, and McArdle points out, unsurprisingly, its an incentives issue.

Can some smart lawyer from the ACLU find a way to void this list on due process or maybe 14th amendment grounds?

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.

If you are not familiar with the Institute for Justice, the IJ is like the ACLU but from an alternate universe where the ACLU was not founded by a Stalinist and actually believed in property rights.  The IJ represented Ms. Kelo in her fight against eminent domain to aid Pfizer in Connecticut, and often takes on stupid government licensing programs.  For example, the IJ is representing some folks in New Mexico who think that it will not materially harm public safety if they do interior design without a government license:

If you need a license to arrange flowers
in a vase, it stands to reason that you'd need a license to arrange
furniture in a house"”not to mention picking paint and window
treatments. Or so the state of New Mexico (along with four other
states) seems to think. To be fair, you can do interior design in New
Mexico without a license; you just can't call it interior design, or
call yourself an interior designer, which makes it hard for potential
customers to find you. Today two people who in most states would call
themselves interior designers filed a federal lawsuit objecting to the
state's protectionist censorship on First Amendment grounds.

In the past, the IJ has also fought for the right of hair braiders and casket salesmen to operate without a state license.

I generally stay far away from the back-bench spitball fights that seem to go with Supreme Court confirmations (except for Harriet Meier's, but she was so spectacularly bad a choice I felt the need to chime in).  So I am late to the party in noting that apparently Alito came under some fire for being a member of the Concerned Alumni of Princeton.  Apparently, he has been tagged as a racist, sexist, blah, blah, blah for being a member of this organization.

First, it is worth observing the the Republicans asked for this guilt-by-organizational association stuff.  Long before the Federalist Society membership attack by Democrats was the attack on Dukakis as "a card carrying member of the ACLU".  This is just as dumb as can be.  I, for example, support the ACLU in a number of their endeavors at the same time I have grave problems with certain aspects of their work, particularly their refusal to acknowledge property rights as on equal footing with speech and privacy (which I guess is not surprising since they were founded by a Stalanist).  I am sure it is possible that Alito supports some of the goals of CAP without wanting to make Princeton all-male again.

My second reaction is just to laugh.  While at Princeton, it was always fun to take a shot at CAP for being racist or sexist, since their most public positions always seemed to be about opposing women on campus or affirmative action or similar stuff.  Then and since, though, I have gotten to know a bunch of folks in CAP and have found its really just a bunch of very conservative (little c) folks concerned that Princeton isn't the same as when they were there.  I sometimes agree with them, for example when they oppose political-correctness driven speech limitations, and sometimes disagree with them, particularly when they oppose any sort of dynamism in the school.  In general, I classify them as humans were classified in the Hitchhikers Guide to the Galaxy:  Mostly harmless.

My problem with CAP is that Princeton, like most of the Ivy League, needs to be more dynamic, not less.  Princeton has done a good job adjusting themselves to many challenges over the last 30 years:  Princeton has gone from no women to being majority women.  It has good representation from most ethnic groups, and it has all the money it could possibly need to make sure any student it wants in the University can afford to go.  Its got every building and piece of equipment a student could ever need, plus a few more.

But here is the real problem, as I see it:  Over the last 30 years, the undergraduate population at Princeton, as with all of the Ivy League, has hardly grown.  The University has become hugely wealthy over this time, has built tons of facilities, but it has all gone to increasing the educational and capital intensity for the same 5000 students.  The challenge as I see it is how do you make this same education available to say 15,000 people at a time instead of 5,000 without changing the heart of the institution. 

Because they aren't creating any new Ivy League schools, while an ever larger portion of the population has the wealth and basic education background and the drive and expectations to want an Ivy-League-quality college experience.  The result is that the admissions process has gotten to be crazy.  Ask any Ivy Leaguer who went to college 20 years or more ago, and ask them "Could you get admitted today" and they will probably answer "no" or at least "I'm not sure".  Education consultants - I have met these folks - are making fortunes coaching kids from the age of 9 or so on how to get a resume built that is Ivy-League-admittable, complete with an oddball hobby selection aimed at catching the admissions board's eye.  Everyone plays piano, so kids started trying the harp and banjo to be different, but even that is overdone so now its probably the bagpipes or something.  Football is out, and lacrosse is probably overdone now, so how about falconry?  Out west, private universities like USC are thriving by being able to offer top educations to much larger numbers of people.  The Ivy League needs to figure out how to do this as well.

Of course, every time I raise this idea at any Princeton forum, I get only negative reactions, being accused of trying to change the very fiber of the university.  You don't have to be born in 1930 to be conservative about the the university and change.  But I keep at it, noticing that the responses I get are identical to those heard when the University went coed.

update:  Well, Joe, I'm not really a big Joe Biden fan.

Reason reports that the ACLU is jumping into the fray to try to prevent Las Vegas from levying a special sales tax on strippers (emphasis added)

A Nevada bill that would impose a
10 percent tax on strip club dancing will be struck down in
court if lawmakers pass it, an American Civil Liberties Union
lawyer said on Wednesday.

"You can not have a special tax aimed at First Amendment
activity based on content," said Allen Lichtenstein, general
counsel of the ACLU of Nevada.

"Adult entertainment, which is protected by the First
Amendment, is being targeted to bear the burden of taxes where
other businesses are not," Lichtenstein said, referring to the
bill. "To single out a particular business based on content and
tax it with a special tax is unconstitutional."

Don't get me wrong, I am certainly happy that the ACLU has suddenly discovered the rights of taxpayers, but they seem a bit late to the party.  I mean, states that charge the same tax to every business, especially the same sales tax rate, are the exception.  States all charge special hotel rates, rent car taxes, airport fees, long distance surcharges, etc etc.  For example, here are just a few of the special unique industry-specific taxes on the California BOE site (by the way, you know you live in a socialist state when your tax department is called the "Board of Equalization"):

• Alcoholic Beverage Tax
• Alternative Cigarette Tax Stamp Program (ACTS)
• California Cigarette & Tobacco Products Licensing Act of 2003
• California Tire Fee
• Cigarette and Tobacco Products Tax
• Emergency Telephone Users Surcharge
• Energy Resources Surcharge
• Integrated Waste Management Fee
• Natural Gas Surcharge
• Tax on Insurers
• Oil Spill Response, Prevention and Administration Fee
• Underground Storage Tank Maintenance Fee
• Childhood Lead Poisoning Prevention Fee
• International Fuel Tax Agreement (IFTA)
• Interstate User Diesel Fuel Tax (DI) Program
• Motor Fuels
• Aircraft jet fuel tax
• Diesel fuel tax
• Motor vehicle fuel license tax
• Motor vehicle fuel tax
• Use fuel tax
•  Hazardous Substance Tax
• Environmental Fee
• Facility Fee
• Generator Fee
• Disposal Fee
• Tiered Permitting Fee
• Activity Fee
• Occupational Lead Poisoning Prevention Fee
• Ballast Water Management Fee
• Rent car taxes (by city and county)
• Hotel/motel special tax (by city and county)

This is far from a complete list, but you get the idea. This article from the Tax Policy Center explains that narrow industry specific excise taxes have a very long history in this country.  And this completely leaves off the issues of subsidies that are targeted at particular industries, such as the billions in direct subsidies received by farmers, not to mention the additional billions in price supports they get as well.  (Reason, by the way, has done some entertaining research on the millions of dollars of farm subsidies received by the family of Farm-aid founder John Cougar Mellancamp).  I am eager to see the ACLU begin tackling these other "special taxes" on "particular businesses".

I am not sure what motivated the ACLU to finally join the taxpayer cause, other than perhaps a personal financial interest their leadership team might have in this particular tax, but I for one am happy to welcome them to the cause.

Update: I am still having fun trying to imagine how the ACLU, the supposed protector of individual rights that has never had a problem up 'till now with our class warfare tax rates that are zero on some Americans and 40+% on others, suddenly had an epiphany about unequal levels of taxation when it comes to taxing strippers.  I have this visual picture in my head of the local head of the ACLU slipping a five into an entertainers g-string but getting mad when he couldn't get the two extra quarters in there to pay the tax.

Update #2: By the way, for all the flippancy in my post about the ACLU, they are absolutely right in this case, if way too narrowly focused.  I criticize the ACLU often because of the 21 policy areas it considers critical to individual rights, none have anything to do with property rights or economic freedom.  However, the ACLU is a strong and consistent defender of free political speech during a time when speech is under attack from all sides of the political spectrum.  The ACLU realized early on something the left still won't acknowledge, that it is impossible to separate regulation on spending for speech from restrictions on speech itself. 

Unfortunately, what the ACLU refuses to recognize is that all commerce, not just purchasing political ads or buying couch dances, is a form of communication and free expression.  The economy is nothing more than individuals, millions of times a day, communicating and reaching agreements to trade for mutual benefit.   Why is it any less of a restriction of free speech when the government places restrictions on this communication, say by restricting the range of wages I can offer an employee?  Or, more obviously, how can the government place regulations on what I can say about my company in an advertisement, but not on what I say about a political candidate?

The ACLU in this case seeks to evade sanctioning free speech in that dirty commercial world by apparently arguing that stripping is not commerce but artistic expression.  But by that logic, the government shouldn't be allowed to tax building and construction, for surely buildings are a strong and lasting form of art and expression.  Or how about cars - I certainly consider a Ferrari a much higher form of expression than a couch dance.  How can the government tax cars?  Or what about T-shirts with a political message -- can governments charge sales taxes on those?  What about the lawn service I pay to have a beautiful green lawn, which is the ultimate form of suburban expression?

At the end of the day, it is impossible to separate money and commerce and property from speech and expression.  Commerce is the most ubiquitous and important form of free expression we have in this country.  So far, the ACLU seems to acknowledge this fact only for topless dancers and politicians.  I wish they would extend their efforts to protect both free speech and free commerce to the rest of us.

Hans-Hermann Hoppe is finally able to tell his story of his academic inquisition at UNLV, all begun because one student in one of his lectures felt that his feelings had been hurt.  Kudos to the ACLU for supporting professor Hoppe.  Here was his crime (via this article comparing Hoppe's aggressive defense of himself with Lawrence Summers total capitulation):

Hoppe's
violation of thought control was the view that homosexuals, along with others
who tend not to have children, have a higher than average time preference rate.
They are willing to trade more future income for present gratification than
others, such as parents.

Neither of these
claims is at all unexceptionable "“ within economics. Both would be widely agreed
to within this profession. Certainly, neither would raise any untoward number of
eyebrows within this discipline.

By the way, I am officially declaring that the term "hate speech", as currently used, has joined the ranks of completely useless terminology.  This term is being used as a lever to attack the first amendment all over this country, and not just on campuses.  Like any assault on fundamental rights, it begins by defining a very narrow category of speech that is so offensive that people will accept an exception to first amendment protections.  Then, once that exception exists, the definition of hate speech is expanded to include, basically, "any speech I don't agree with".  That's why I am opposed to any exceptions to the first amendment, even for outlawing hate speech.  To be a true defender of the first amendment, you have to be ready to defend the speech rights of some of the most outrageous and grotesque people.

The results are in, and they were entirely predictable. McCain-Feingold has been a disaster. Its restrictions have in no way decreased the amount of money being spent in this election. Rather, it has funneled huge amounts of money into negative advertising attacking a person or position (legal) and away from supporting and illuminating the positives of candidates (illegal). It has shifted money from groups with high disclosure requirements (the political parties and candidates) and dumped it into groups with no reporting requirements.

Most troubling, it has created a Federal Bureaucracy around deciding what political speech is legal and what is illegal. Is advertising Fahrenheit 9/11 legal? Is a 60 minutes anti-Bush documentary using forged documents illegal? Is an anti-Kerry documentary by Sinclair illegal? As Jonathon Rauch puts it in Reason:

Now it is official: The United States of America has a federal bureaucracy in charge of deciding who can say what about politicians during campaign season. We can argue, and people do, about whether this state of affairs is good or bad, better or worse than some alternative. What is inarguable is that America now has what amounts to a federal speech code, enforced with jail terms of up to five years.

This is perhaps the worst assault on the first amendment since campus speech codes. Where is the ACLU? Oh yeah, they supported McCain-Feingold.

UPDATE

Another interesting article about the Sinclair situation here.