Coyote Blog

Trump vs. Hawaii More Interesting Than I Thought

The Conservative and Progressive responses to the Supreme Court's Trump vs. Hawaii decision that upheld v3.0 of the travel ban are pretty predictable -- Progressive writers have argued that of course it violated the first amendment because Trump made clear any number of times that he was animated by distrust of Muslims, while Conservatives said it was clearly not just aimed at Muslims (he included Chad!) but anyway it was a bad precedent to infer intent from campaign speeches even before he was President.

What I didn't know until I read Eugene Volokh was that there are some really interesting precedents that make immigration law one of the few areas effectively outside the Bill of Rights.  I don't really like what I see in this, but it is an issue I never understood before.  You really need to read the whole thing to get the gist, but here is his summary:

The U.S. has nearly unlimited power to decide when foreigners are admitted to the country, even based on factors (such as ideology, religion, and likely race and sex) that would be unconstitutional as to people already in the country.

Janus v. AFSCME Council 31 In An Alternate Universe

In this case, a state worker was suing to prevent a public employee union from deducting an "agency fee" from his paycheck despite the fact that he did not want to join the union.  The union argued that the employee benefited from their collective bargaining and should have to pay something for it.  Apparently the case turned on First Amendment issues -- while technically the union could not spend these agency fees on political speech, the reality is that money is fungible and at some level almost everything a public union does is political.

As a quick background, I totally support private union bargaining as a fundamental right under the First Amendment, though we could argue whether current law overly tips the power balance toward or away from unions vs. a free market.  On the other hand, I have deep, deep doubts about public sector unions, largely because there is no real bargaining going on.  In most cases, the public sector unions and the officials they are nominally bargaining with are on the same side and opposed to taxpayer interests.

So I am not unhappy to see public unions take a hit here, but addressing my concerns should be a legislative issue (as exemplified by a number of "right to work" states that have banned this practice).  But this is a judicial case and should not be dealing with legislative issues but issues of the law, and the case confuses me because I could easily see the Right and the Left arguing opposite sides on legal issues of this case given a slightly different world.  After all, requiring employees to pay these fees is a condition of employment -- wouldn't we expect Conservatives to support the right of employers to freely set the conditions of employment?  If these are too onerous, Conservatives would argue people would just not work there.  In this world, wouldn't we expect, then, Progressives to argue against such open-ended freedom for employers to set work conditions on the argument that there is a power imbalance between employer and worker -- exacerbated because the employer is the state in this case -- and they can't easily fight these onerous conditions?  Huge swaths of employment law, written mainly from the Left, are dedicated to circumscribing allowed employment conditions.

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

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

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

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

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

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

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

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

In the late 1970's, I guess it was OK to mock Islam because Gary Trudeau sure did it a lot in his Doonebury comic.  I remember one panel where the Iranian Chief Justice was in the states for his college reunion, telling his old school mates he stayed in such great shape by "flogging" rather than jogging.

Today, though, the Left seems to feel that Islam is off-limits and even needs their protection.  It's OK to mock Indiana for not forcing every photographer to work gay weddings but God forbid anyone mock countries that kill gays just for being gay.   In Trudeau we have an icon of the 1960's radicals advocating for limits on free speech and for blasphemy laws.  Too bizarre for words.  Eugene Volokh has a good commentary on Trudeau's remarks.

Look, sometimes commentators like myself adopt a sort of feaux confusion on the actions of folks we disagree with.  But I am being honest here -- I really, really don't understand this.

I will say that I think this position tends to support a pet theory of mine.   Remember that I start with a belief that American Republicans and Democrats are not internally consistent on their politics, and not even consistent over time (e.g. Republicans opposed wars of choices in Kosovo under Clinton, supported them under Bush in Iraq, and then opposed them again under Obama in Libya).

So here is my theory to explain many party political positions:   Consider an issue where one party is really passionate about something.  The other party might tend to initially agree.  But over time there is going to be pressure for the other party to take the opposite stand, whether it is consistent with some sort of party ideological framework or not.   After 9/11, the Republicans staked out a position that they thought that Islam as practiced in several countries was evil and dangerous and in some cases needed to be subdued by force of arms.  In my framework, this pushed Democrats into becoming defenders of modern Islam, even at the same time that domestic politics was pushing them to be critical of Christian religion as it affected social policy (i.e. abortion and later gay marriage).  Apparently, the more obvious position of "yeah, we agree much of the Islamic world is illiberal and violent, but we don't think we can or should fix it by arms" is too subtle a position to win elections.   I fear we have gotten to a point where if either party is for something, they have to be in favor of mandating it, and if they are against something, they have to be in favor of using the full force of government to purge it from this Earth.  And the other party will default to the opposite position.

The counter-veiling argument to this is two words:  "drug war".  This seems to be a bipartisan disaster that is generally supported by both parties.   So my framework needs some work.

Eugene Volokh is writing about a case against an attorney who defrauded his firm.  The details are not important, what caught my eye is what is highlighted below:

Once again, this case does not turn on the bare fact that Attorney Siderits wrote-down his time; this case is about Attorney Siderits abusing his write-down discretion and lying to his law partners in order to collect almost $47,000 in bonuses to which he was not entitled. Attorney Siderits cannot seriously contend that firms must have a written policy forbidding stealing and lying before a misconduct charge for one of these actions can be sustained.

That certainly makes sense, but it does not apply at the California EDD, which administers (among other things) the state unemployment insurance program.  We terminated an employee for accepting money from a customer to provide a service, then pocketing the money and not providing the service.  I call this "theft", and had assumed all would understand that stealing from customers is a firing offense.   When California sent out its unemployment paperwork, we said this employee had been fired "for cause", which in many states means that they are ineligeable for full unemployment payments.

However, after some back and forth, I was eventually informed by the EDD that since I did not have an explicit policy in the employee manual that said "employees may not steal money from customers", then they could not recognize that she was fired for cause.  Even if I had put that in the manual, it probably would not have counted because the next thing EDD asked for is something in writing proving, with the employee's signature, that she had read that passage.   And from past experience with the EDD, my guess is that they likely would not have accepted firing on the first offense, but would have insisted we needed to have her steal from multiple customers, with written warnings each time, before we terminated her.

Basically, what this all means is that while the law technically says people can't be paid unemployment if fired for cause, California has made the standards of proof so absurd that this requirement is meaningless.  Everyone is going to get unemployment.

As it turns out, there is a silver lining from this lack of diligence by the state.  My business is seasonal and I can only offer summer work.   Most of my employees are happy with this, as they like to take the winter off (many are retired).  One is not supposed to collect unemployment if he or she is not actively seeking work, but my employees have discovered that California does zero dilligence to check this.  So some of them lie and say they are looking for work over the winter when they are not, and collect unemployment.  I know of two couples who spend their winter in Mexico but still collect their California unemployment like clockwork.   Not only is California not dilligent about it, but when I tried to report someone I knew who was collecting unemployment but not even in the country, I was threatened by the EDD official that I was risking substantial personal liability by submitting such a claim and opening my self up to civil suits and even prosecution for harassing the worker.  So of course I dropped it.

So what is the silver lining?  California is so eager to hand money in the off-season to support my employees' seasonal vacations that my unemployment insurance premium rate is already the worst possible.  My rates can't go any higher.  So if they insist on giving state money to a thief, it's not coming out of my pocket.

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.

Via Eugene Volokh:

Year	Food spending as share of disposable income
1929	23.4%
1939	21.3%
1949	22.1%
1959	17.8%
1969	13.7%
1979	13.4%
1989	10.9%
1999	10.2%
2000	9.9%
2001	9.9%
2002	9.8%
2003	9.8%
2004	9.7%
2005	9.8%
2006	9.9%

My sense is the same pattern would emerge for gasoline prices, electricity (if you had it), phone service (if you had it), cross-country transportation, air conditioning, etc.

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.

I agree with Eugene Volokh when he observes that the Opus comic rejected by the Washington Post is pretty dang tame.  I found the cartoon to be poking fun more at men and male attitudes than at Islam.  I don't think there is any way the Post can argue now that their editorial policy is symmetric across all religions.  They are tiptoeing around Islam in a way they never would with Judaism or Christianity.  If they are scared of violent reprisals, they should just say so. 

One of the great things about modern English is that it is bottom-up and open-source.  Years ago, the Oxford English Dictionary took the approach of documenting what English is, rather than the French approach of dictating what the language should be.  As a result, the language evolves based on how ordinary people are using it.  Which is perhaps why the word in many languages for new trends and technologies is often the English word (much to the consternation of the French). 

I tend to agree with Eugene Volokh's definition of "what is a word."  Then think how different this might be in statist cultures, where a word is only a word when the government says it is.

PS-  I acknowledge that this makes English harder to learn for people whose first language is less idiomatic.

Update: Much more here

I wrote before that I thought the definition of interstate commerce in Raich was crazy, but maybe there is an upside.  Under this ridiculously broad definition of interstate commerce (where growing marijuana in your backyard for persona consumption was called interstate commerce), couldn't a real estate development with tenants who are multi-state corporations also qualify?

To this end, Eugene Volokh writes that Congress is already considering legislation to control eminent domain for private development in the aftermath of Kelo:

Sen. Cornyn (R-TX) Proposes Limits on Eminent Domain:

Sen. Cornyn is introducing a federal bill (S. 1313, "The Protection of Homes, Small Businesses, and Private Property Act of 2005") that would bar "economic development" takings:

(a) . . .  The power of eminent domain shall be available only for public use.

(b) . . .  In this Act, the term "public use" shall not be construed to include economic development.

(c) . . . This act shall apply to (1) all exercises of eminent
domain power by the Federal Government; and (2) all exercises of
eminent domain power by State and local government through the use of
Federal funds.

Part C is in there to help it pass constitutional muster, but maybe Raich makes this unnecessary.

PS- I am mostly kidding here - I in no way want to condone Raich.

I know this will come as a shock to many people, but grand jury testimony is supposed to be secret and stay that way.  I mention this, because lately, "sealed" and secret court records seem to inevitably end up in the media.  The most prominent example is yesterday's leak of Balco grand jury testimony, though the Clinton-related grand juries seemed to be sieves as well.

There are real reasons for secrecy in grand jury proceedings.  The most obvious is that grand juries have often been used to build cases against organized crime figures, and those testifying may be risking their life to do so.  More recently, with the enormous power of the press to convict people even before they go to trial, sealed testimony can help protect reputations as well as the presumption of innocence.

Now, I am not a lawyer, and I would love to hear what Volokh has to say.  I suspect there are those who would argue, as they did in the (admittedly different) case of the release of Jack Ryan's divorce records, that transparency in the legal system is more important than individual privacy.  This may or may not be true legally, but I think it would hurt the grand jury process, and anyway, I don't think this is what happened here - the Balco testimony looks to have been leaked illegally.  By the way, I am tired of the notion that journalistic privilege stemming from the first amendment trumps legal compliance with any other laws.  I know the press loves having this, sortof like the double-O license to kill, but I don't buy it.

UPDATE#1

Hey, maybe I can be a lawyer.  Here is Eugene Volokh talking about journalistic privilege today!

UPDATE#2

I forgot to mention that there is an exception to secrecy - the witness may publicly discuss their own testimony.  Again, however, I do not think this is the case here.  I don't think Giambi released these details about his own testimony, and the format of the article - with both sides of the Q&A, is pretty clearly from the transcript of the hearings.  Besides, if Giambi were going to voluntarily go public with this admission, he is much more likely to get paid $10 million to tell it to Barbara Walters than he is to anonymously leak it to the SF Chronicle.

Hello to Arizona Watch, which seems to focus on politics and news here in AZ.  Anyone with links all over their site to Cato, Eugene Volokh, Virginia Postrel, and Assymetrical Information can't be all bad!