Coyote Blog

I will admit, I can get angry, especially when I believe someone has done me wrong.  But over time, I have learned to distrust this anger.  About twenty of twenty of the actions that I have most regretted in life or that have backfired on me have been undertaken during such periods of anger -- from yelling at innocent airline employees to writing scathing business letters that only make a situation worse.  I have learned to impose on myself a sort of count-to-ten rule, where if I am really ticked off about something, I force myself to wait 24 hours before I respond.  It works for me.

Attorney Charles Carreon needs to figure out a parallel strategy, or else he needs a business partner or family member who can perform an intervention for him.  Because last week, he totally lost it.

As you might remember from our last episode, Carreon was representing a web site called Funnyjunk where people post content strip-mined from other sites.  One of those sites, the Oatmeal, got mad about their cartoons ending up on this site without compensation, and called them out online.  No lawsuit, nothing unnatural, just good old American criticism.

I don't know enough about copyright law to know if Funnyjunk was in the right or wrong.  The Oatmeal could have tied it up anyway in copyright suits, but chose not to.  So of course Funnyjunk responded in asymmetric fashi0n by hiring Carreon to threaten the Oatmeal with a $20,000 lawsuit.  Apparently they were really sad and hurt by the Oatmeal's criticism, and argued that the Oatmeal abused their copyrighted name by using it online in the criticism (a hilarious charge given how the whole thing started).  By the way, in case anyone is confused about this, though this approach is tried constantly, courts have routinely held that there is no such copyright that bars someone from criticism or comment using one's name.

At this point, this all constituted irritating but fairly normal (unfortunately) behavior of people and lawyers online who don't really understand the First Amendment.

Then Charles Carreon drove over the cliff.

On Friday, he apparently sued not only the Oatmeal  (for criticizing him online, causing other people to hate him, and for violating his copyright in his own name) but also, get ready for this, the National Wildlife Federation and the American Cancer Society.  Why?  Because when the Oatmeal first got Carreon's demand letter, its proprietor said he would raise $20,000 for charity instead, and send Funnyjunk a picture of the money.  To date, nearly $200,000 has been raised for the two charities by Oatmeal fans who wanted to show their support.

Apparently, according to Carreon's suit  (I still can't believe he actually filed this), the money that was raised for these charities was tainted because it was raised in the name of making him look like a doofus.  Which, by the way, is exactly right.  I am not a huge fan of either charity (they use too much money in both cases for political activism rather than solving problems), but I gave $100 just to help hammer home the point that Charles Carreon is an idiot.

Perhaps this guy has no friends.  But if he does, one of them needs to be grabbing his collar and shoving him up against the wall and explaining in one syllable words how suing two prominent charities is NOT a path to success in the war to reclaim his reputation.  The guy basically kneecapped himself with his opening shot.   He will soon learn that while it may be increasingly against the law on college campuses to hurt someone's feelings with your speech, it is not illegal in the rest of America.  And he will also soon learn all about California's tough anti-SLAPP law, as he finds himself headed to Bank of America to take out a second mortgage on his home so he can pay the legal bills of those he has sued with the intent to suppress their speech.

Update:  Mr. Carreon, welcome to the Streisand effect.  Last Thursday, none of his first page Google results mentioned this incident.  Today, there are five.

Update #2:  Mr. Carreon claims his web site has been hacked.  Maybe.  But I will observe that for the web NOOB, "buying the cheapest Godaddy hosting account that is fine for my normal 12 visitors but crashes when I get 50,000 hits in an hour from Reddit" and "hacking" often look the same.

Update #3 and irony alert:  If you want to see something odd, check out the web site he and his wife run.  The site is full of very raw critiques that would easily land a desk full of lawsuits in the Carreon mailbox if the legal system routinely accepted the type of censorious lawsuits he himself is attempting to initiate.  If he takes the linked site down, the screenshot is here.  As an aside, I am constantly amazed at how liberals, including those who claim to be feminists, seem so obsessed with the sexuality of Conservative women and couch so much of their criticism in terms up to and including rape images (particularly oral sex).

There is an argument going around, mainly on the Left, that the Supreme Court cannot overturn the PPACA (aka Obamacare) because it is just too major and significant.  It's sort of OK to overturn minor legislation at the margins, but if Congress does something really big, it deserved the Court's respect and acquiescence.

But it strikes me that the larger and more comprehensive a piece of legislation is, the more likely it is to run afoul of Constitutional restrictions.  And this is the case no matter what theory one holds about the Constitution.

I am not a Constitutional scholar nor a lawyer, but I would describe two schools of thought on the Constitution.  The first is that the Constitution gives the Federal government certain enumerated, defined powers beyond which it may not stray.  The second is that the Constitution gives citizens a number of enumerated, defined rights (e.g.  First Amendment freedom of speech) such that the Federal government can do most anything it wants as long as it does not trample on these defined rights.   (I would argue that the first interpretation was the clear meaning of its authors, and the second interpretation is probably the majority view today of average Americans today).

But under either interpretation, larger, more sweeping legislation is more rather than less likely to cross a boundary that circumscribes Federal power.  Whether such a boundary has been crossed by this legislation is another matter, but the argument that large legislation per se should be exempt from the possibility of being overturned on Constitutional grounds does not hold water.

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.

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.

There are cases in which I support jury nullification.  I cannot imagine sitting on a jury and voting to convict someone of violating a law I thought to be grossly unethical, no matter what the jury instructions were.

For explanation, see here, but the key quote

In response to Julian Heicklen’s motion to dismiss his indictment [for distributing pamphlets on jury nullification] on First Amendment grounds, federal attorneys have filed a response with the court.  Here is the federal government’s position: “[T]he defendant’s advocacy of jury nullification, directed as it is to jurors, would be both criminal and without Constitutional protections no matter where it occurred” [emphasis added].  This is really astonishing.  A talk radio host is subject to arrest for saying something like, “Let me tell you all what I think.  Jurors should vote their conscience!”  Newspaper columnists and bloggers subject to arrest too?

Next up -- it will be illegal to speak out against the President's ability to detain or assassinate Americans who he believes to be terrorists.

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.

What do corn farmers and Hollywood studios have in common?  They both have an uncanny ability to force self-serving legislation through Congress.  This week's bit of sucking up to Hollywood is the PROTECT IP act, currently under consideration in Congress:

An ideologically diverse group of 90 law professors has signed a letter opposing the PROTECT IP Act, the Hollywood-backed copyright enforcement/Internet blacklist legislation now working its way through Congress. The letter argues that its domain-blocking provisions amount to Internet censorship that is barred by the First Amendment.

Jointly authored by Mark Lemley, David Levine, and David Post, the letter is signed not only by prominent liberals like Larry Lessig and Yochai Benkler, but also by libertarians like Post and Glenn "Instapundit"Reynolds.

"The Act would allow courts to order any Internet service to stop recognizing [a] site even on a temporary restraining order... issued the same day the complaint is filed," they write. Such a restraining order, which they describe as "the equivalent of an Internet death penalty," raises serious constitutional questions.

The Supreme Court has held that it's unconstitutional to suppress speech without an "adversary proceeding." That is, a speaker must, at a minimum, be given the opportunity to tell his side of the story to a judge before his speech can be suppressed.

Yet under PIPA, a judge decides whether to block a domain after hearing only from the government. Overseas domain owners (and the speakers who might make use of their websites) aren't offered the opportunity to either participate in the legal process or appeal the decision after the fact. (Affected domain owners may file a separate lawsuit after the fact.) This, the professors say, "falls far short of what the Constitution requires before speech can be eliminated from public circulation."

 

This was a pretty amazing article on cost savings experienced already by one school district in Wisconsin after the collective bargaining agreement with government unions was voided.

Of course, there have already been substantial cost-savings as more sane work rules have been put in place and employees have to pay a larger (but still trivial) share of their pension and health care premiums.

But I thought this bit of self-dealing by the unions was pretty amazing and is the type of thing that did not make the news back in the whole Wisconsin brouhaha

"The monetary part of it is not the entire issue," says Arnoldussen, a political independent who won a spot on the board in a nonpartisan election. Indeed, some of the most important improvements in Kaukauna's outlook are because of the new limits on collective bargaining.

In the past, Kaukauna's agreement with the teachers union required the school district to purchase health insurance coverage from something called WEA Trust -- a company created by the Wisconsin teachers union. "It was in the collective bargaining agreement that we could only negotiate with them," says Arnoldussen. "Well, you know what happens when you can only negotiate with one vendor." This year, WEA Trust told Kaukauna that it would face a significant increase in premiums.

Now, the collective bargaining agreement is gone, and the school district is free to shop around for coverage. And all of a sudden, WEA Trust has changed its position. "With these changes, the schools could go out for bids, and lo and behold, WEA Trust said, 'We can match the lowest bid,'" says Republican state Rep. Jim Steineke, who represents the area and supports the Walker changes. At least for the moment, Kaukauna is staying with WEA Trust, but saving substantial amounts of money.

This strikes me as an amazing example of self-dealing.  The union requires that their health care insurer get a monopoly, and then extract monopoly rents from the relationship.  You can be sure the union rank and file never saw a dime of these health care profits, which likely flowed to just a few union leaders plus the politicians who helped make it possible.

Bruce at Q&O has more

Standard disclaimer: I have no particular beef with unions per se, whose ability to organize workers is protected under the First Amendment's right to assembly.  My problems related to unions are

1. Government rules that tilt the balance of power in negotiation to unions, require that all employees (in certain non-right-to-work states) join unions or at least pay dues, etc.
2. Public unions are a different animal than private sector unions and I have turned pretty strongly against these.  The problem in public sector unions is that there is no adversary -- ie the politicians nominally negotiating with unions are often on the same side as the unions and cut horrible sweetheart deals that screw taxpayers.  Until we find a way to really represent taxpayers in public sector union negotiations as well as shareholders are represented in private sector negotiations, I tend to favor limits on public sector collective bargaining.

This whole argument about corporate personhood is an enormous distraction.

Corporations have certain rights not because they are legally persons, but because they are formed by and made up of persons.

Here is my simple formulation.  Inidividuals have the right to free speech.  Individuals have the right to association.  It is crazy to then posit that individuals, when they associate, no longer have free speech rights.   If five of us gather on a park bench, we have not somehow given up our speech or other rights by doing so.  And the fact that we may form a formal club or organization among us with bylaws and hierarchies does not change this fact one bit.

By the way, if the First Amendment does not apply to individuals who have assembled into a corporation, does the Fourth Amendment apply?  How about the Fifth?  or Sixth?  of Seventh?  or Eighth?

Will Blue Oyster Cult (gratuitous umlauts omitted) have to go on the lam now that the First Amendment does not extend to telling someone to commit suicide?

Update:  Don't be afraid, BOC.  I read it closer, and they are probably OK.  Only convincing a specific person to commit suicide is unprotected.  General advocacy appears OK.

From Valley Fever

As we noted yesterday, more than 40 Arizona state legislators have signed on to a bill that would make the Colt single-action Army revolver the official state firearm. Early this morning, the Senate Appropriations Committeevoted 9-4 to advance the measure to a full Senate vote.

Seriously?  What a complete waste of time.  If we are going to start naming official state _____ where the blank is a commercially sold product, could we at least auction the rights, like the Olympics does?  I understand that there are passionate 2nd amendment defenders that somehow think this is a statement they need to make, but I am a passionate first amendment defender as well and I see no need for an official state microphone or printing press model.

I believe it is time for a public information notice reminding everyone the actual text of the First Amendment as it applies to speech:

Congress shall make no law ... abridging the freedom of speech

It does NOT say:

No citizen may ever experience any negative consequences from their speech

This is the reason the reminder seems necessary

It appears that for a principled defense of property rights, the exercise of religion in America, and limited government we have to turn to ... liberal blogger Kevin Drum

We already know that a large majority of Americans are opposed to building it, but here are the results of an Economist poll on a slightly different question:

Whether or not you think the Islamic cultural centre and mosque should be built near the World Trade Center site, do you think that Muslims have a constitutional right to build a mosque there?

Technically, I think the wording of this question should have been turned around: not whether Muslims have the right to build a mosque on Park Place, but whether the government has the constitutional right to stop them from building a mosque on Park Place.

Still, I think everyone probably understands what this means, and it's just depressing as hell. It's one thing to oppose the mosque just because you don't like the idea, but to deny that Muslims even have a constitutional right to build it? That should be a no-brainer. Of course they do.

Seriously, this is from a man who probably does not think you have the Constitutional right to choose your own doctor. Why are Republicans ceding the high ground on this to Democrats? Well, it turns out that is the theme of my new column this week in Forbes.

...prospective mosque-banners would argue that I simply don't understand how utterly, deeply offensive the proposed location of this mosque is to them. But that is not the case. I am offended as well by what might be a laudatory memorial to a terrorist incident. But the question for me is, do we have a right not to be offended?

The irony is that for the last decade or so, conservatives have fought the political correctness movement over exactly this issue. Conservative commentators, rightly I think, were up in arms over the "hate speech" trial of Mark Steyn in Canada, and more recently the cancellation of Ann Coulter's Canadian speaking tour. In both cases Canadian government and university officials argued that Steyn's and Coulter's criticisms of radical Islam were too divisive, too defamatory to Muslims, and in general too offensive to be allowed public voice....

This is what truly floors me about the Ground Zero controversy: Republicans all over the country are standing up and begging House Speaker Nancy Pelosi and President Barack Obama to void the property rights of a private entity, shut down the construction of a church, and do so to protect some mythical right not to be offended, a right that, until recently, conservatives argued did not exist. Do Republicans really want to encourage the federal government to tear up property rights and First Amendment protections, all in the name of hurt feelings? If conservatives set this precedent today, they are almost certainly not going to like how it is used tomorrow.

Postscript: I notice something in this poll that I have seen several times lately.  Traditionally, poll results for independents always fell somewhere between Republicans and Democrats.  In this poll, as in several others I have seen, Independent responses actually fell outside of these bounds.  Increasingly independents are shedding the "moderate" label and actually pacing the two political parties.  I find this encouraging, though it is probably too much to hope for that this is the leading indicator of some type of radical ideological restructuring of the Coke and Pepsi parties.

I find many of the uses politicians make of the money they take from me to be irritating.  But perhaps the worst of them all is to use my money to fund their own election campaigns when they can't get enough people to voluntarily contribute.  Which is why I am happy to see the Supreme Court put a injunction on Arizona's politicians take tax money to re-elect themselves law.

Today the Supreme Court blocked "matching funds" for candidates under Arizona's Clean Elections Law while it decides whether to hear a First Amendment challenge to the system. Under the law, participating candidates receive one taxpayer dollar for each dollar spent by their privately funded opponents (or by groups sponsoring messages for their benefit) above a certain threshold. The Goldwater Institute and the Institute for Justice, representing politicians and activists who are challenging the law, argue that it penalizes people for exercising their right to freedom of speech by using taxpayer money to undermine the impact of their message. In January, U.S. District Judge Roslyn O. Silver agreed, concluding that Arizona's campaign finance system "burdens"¦First Amendment rights, is not supported by a compelling state interest, is not narrowly tailored, and is not the least restrictive alternative." Last month the U.S. Court of Appeals overturned Silver's decision and lifted her injunction against the delivery of matching funds. Today's stay effectively reinstates the injunction until the Court either rejects the case or accepts and decides it.

"The Supreme Court's decision today will allow the 2010 Arizona election to occur without the government placing its thumb on the scale in favor of those politicians who receive government subsidies," says Institute for Justice senior attorney Bill Maurer. "The purpose of this law was to limit individuals' speech by limiting their spending. But the First Amendment does not permit the government to restrain Americans from robustly exercising the right of free speech."

It is a beautiful day here, so I really don't have the time or desire right now to summarize the absolute mess that is the FTC discussion draft for the "reinvention of journalism," reinvention being a synonym apparently for government takeover.  Almost every proposal is fraught with unintended (or perhaps intended but hidden) consequences, faulty economics, and unprecedented attacks of the first amendment.  If you don't have the time to read it, I will try to summarize it next week, but just open it and scroll the bold headers with the proposals.  Its really outrageous.  Here are just some quick highlights:

• Substantial narrowing of fair use, with particular focus on how search engines and other online sites (e.g. blogs) use and/or have to pay for access to news sites
• Expansion of news copyrights on breaking news - ie certain papers will own the copyrights to certain news events if they are the first mover on it
• Increased government funding of news organizations along multiple vectors, from subsidies to guaranteed loans to income tax checkoffs to lower postal rates to Americorps programs for for journalists.
• Simultaneously reduce private funding of journalism through taxes, including a tax on advertisers
• Shift the organizational model of journalism from profit corporations (which rely on satisfying individuals to get their revenue) to non-profit organizations dependent on the government for funding
• New taxes on and licensing of the Internet.   New taxes on broadcast spectrum to subsidize print media (shifting money from media that are more hostile to the administration to print media and non-profits that are more sympathetic to the administration).

Here is the intro that was missing from the report:  "The New York Times and Newsweek can't figure out a profitable business model in the Internet age.  We propose the government step in with all means at its disposal to limit competition to these print media companies and create new government subsidies for their business.  Once their companies' profitability is absolutely dependent on these government mandates and subsidies, the Federal government will have a powerful source of leverage to protect itself from criticism in these outlets.  Once we have this situation in place, we will have a strong inventive to quash more independent outlets and maximize the market share of media companies beholden to the government.  In a large sense, our recommendations build off the success of the tobacco settlement experiment, where a few large companies agreed to pay the government large percentages of their future profits, and then the government worked diligently to quash new tobacco competitors to maximize the market share of those companies paying it settlement money."

Update: South Bend Seven makes an interesting comparison to campus newspapers.

I had a dinner conversation last night with my Massachusetts mother-in-law.  She is pretty interesting to talk to because she is a pretty good bellwether for Democratic talking points on most issues.  She was opposed to the recent Supreme Court speech decision removing limits on third party advertising near an election  (I think she misunderstood the scope of that decision but that is not surprising given the shoddy reporting on it, up to and including Obama getting it wrong in his State of the Union).   She advocated strict campaign spending restrictions (both in terms of amount of money and length of the campaign season) combined with term limits.

We could have gone a lot of places with the discussion, but we ended up (before we terminated the conversation in the name of civility) discussing whether restrictions on money were equivalent to restrictions on speech.  She of course said they were not, and said under strict monetary controls I still had freedom of speech - weren't we still talking in the car?

It is hard to reach common ground when one person is arguing from a strict rights-based point of view while the other is arguing from a utilitarian point-of-view.   Essentially she knows in her heart that she is restricting speech, but wishes to do so to reach a better outcome.  I made a couple of utilitarian arguments, including:

• I pointed out that when the stakes of government are so high, money and influence never goes away.  Just as in any economy, when you ban money, a barter economy arises.  So if we ban large campaign spending, then the quid pro quo becomes grass roots efforts and voter mobilization.  Groups like the UAW become more powerful (we are seeing that already).  They are trading their member's votes for influence.  Connected companies like GE are doing the same thing, trading their support for legislation that is generally hostile to commerce for specific clauses in said legislation that exempts GE and/or makes the laws even more punishing on their competition.  The problem with all this activity is it is hard to see and totally unaccountable -- at least with advertisements we see people out in the open with their agendas.
• I observed that it was smart to add term limits to her plan, as otherwise her recommendations would be the great incumbent protection act.  But by limiting money, immediate advantage is given to people who already have name recognition and celebrity.  Think we have too many actors and athletes running for office?   Well be prepared for a flood with stricter campaign finance restrictions

However, I tend to shy away form utilitarian arguments.  The best arguments I have against the notion that money can be restricted without restricting speech are:

• Her comment that I still had freedom of speech (ie I am talking freely in the car) with strict campaign cash restrictions ignores the actual wording of the First Amendment, which reads "Congress shall make no law ... abridging the freedom of speech."  Her test, which is "Am I still able to speak in some forum even if I can't in others" is not a valid test for conformance to the First Amendment.  Otherwise, speech could be restricted at will as long as there was some narrow safe harbor where one could express his opinion.    The better test is whether the proposed law, ie a restriction on how much and when a person can spend money advertising his or her opinions, abridges or reduces freedom of speech.  And I think it is hard to deny that everyone has less freedom, in the form of fewer options and reduced scope, after such legislation.
• One interesting test is to broaden the question -- Does restricting spending on something (in this case speech) constitute a restriction on one's underlying right to the activity (e.g. speaking freely).  I was tempted to ask her (she is a strong and vocal abortion rights supporter) whether she would therefore consider the right to abortion to be untouched by Congress if a law were passed to limit each person's spending on abortion to $5 a year.   Abortion would still be entirely legal  -- all government would be doing is putting on some spending restrictions.   Obviously one's scope and options to get an abortion would be limited -- only those who happened to have a doctor in the family could perhaps get an abortion -- just as under her speech plan only those who had a large newspaper in the family could speak fully and freely before an election.

Ilya Shapiro:

Well of course they aren't "” but that's constitutionally irrelevant:  Corporations aren't "real people" in the sense that the Constitution's protection of sexual privacy or prohibition on slavery make no sense in this context, but that doesn't mean that corporate entities also lack, say, Fourth Amendment rights.  Or would the "no rights for corporations" crowd be okay with the police storming their employers' offices and carting off their (employer-owned) computers for no particular reason? "” or to chill criticism of some government policy.

Or how about Fifth Amendment rights?  Can the mayor of New York exercise eminent domain over Rockefeller Center by fiat and without compensation if he decides he'd like to move his office there?

So corporations have to have some constitutional rights or nobody would form them in the first place.  The reason they have these rights isn't because they're "legal" persons, however "” though much of the doctrine builds on that technical point "” but instead because corporations are merely one of the ways in which rights-bearing individuals associate to better engage in a whole host of constitutionally protected activity.

That is, the Constitution protects these groups of rights-bearing individuals. The proposition that only human beings, standing alone, with no group affiliation whatsoever, are entitled to First Amendment protection "” that "real people" lose some of their rights when they join together in groups of two or ten or fifty or 100,000 "” is legally baseless and has no grounding in the Constitution. George Mason law professor Ilya Somin, also a Cato adjunct scholar, discusses this point here.

The Bill of Rights were originally restrictions on government power.  Period.  Many people do not want to read them this way today, because they have a strong interest one way or another in the increase in government power.

Take the First Amendment.  "Congress shall make no law..."  In other words, there can be no justification of any kind for the government taking away free speech, press, association, religion, etc.

Unfortunately, forces have been at work for decades from both political parties to undermine this hard and fast protection.  Our most recent assault comes from the Democrats in the guise of the hate crimes bill:

Republican Sam Brownback offered an amendment to the Senate version which said the bill could not "construed or applied in a manner that infringes on any rights under the First Amendment" and could not place any burden on the exercise of First Amendment rights "if such exercise of religion, speech, expression, or association was not intended to plan or prepare for an act of physical violence or incite an imminent act of physical violence against another."

With that amendment, GOP Senators supported the final bill. However when the bill went to the conference committee, key changes were made to the Brownback amendment by the Democrat controlled committee:

Where Brownback had insisted, and the full Senate had agreed, that the bill could not burden the exercise of First Amendment rights, the conference changed the wording to read that the bill could not burden the exercise of First Amendment rights "unless the government demonstrates "¦ a compelling governmental interest" to do otherwise.

That means your First Amendment rights are protected "” unless they're not.

"A compelling governmental interest" leaves the door wide open for your free speech rights to be trampled on the government's whim. Where the First Amendment was designed as a limit on government power (as was the entire Constitution), this law is a blatant attack on those limits and an attempt to expand government power.

So, the government's power is checked unless there is a "compelling governmental interest" in not having its power checked. We're doomed.

Over the last few years, Republicans have tried to wrap themselves in the flag of the First Amendment, arguing that they were the true defenders of free speech against political correctness.  But while the left certainly has attacked speech on certain fronts, the right has been no less busy, particularly in areas related to sex, crime, and security.   One example, via Overlawyered:

Two Lee County, Florida men face possible prison sentences of five years because their MySpace pages show them making hand gestures that prosecutors say are associated with street gangs. "Their prosecutions are the first under a state law passed last year that criminalizes the use of electronic media to "˜promote' gangs." The bill's sponsor, state legislator Rep. William D. Snyder, R-Stuart, says in response to charges that the measure violates the First Amendment by criminalizing expression: "none of our freedoms are absolute, and the freedom of expression is not absolute"

Laws that require the goodwill and ethical functioning of its participants, without oversight, always worry me.  The companion argument to this is when someone says (and this is popular among Democrats nowadays) all this infrastructure in the government that does not work will be fine when we get our own smart people running it.

It never, never works.  Here is yet another example:  All that extra post-9/11 investigatory power?  Trust us, we only use it on the bad guys.

The Maryland State Police classified 53 nonviolent activists as
terrorists and entered their names and personal information into state
and federal databases that track terrorism suspects, the state police
chief acknowledged yesterday.

Police Superintendent Terrence B.
Sheridan revealed at a legislative hearing that the surveillance
operation, which targeted opponents of the death penalty and the Iraq
war, was far more extensive than was known when its existence was
disclosed in July....

Said the unrepentant leader of this efort:

"I don't believe the First Amendment is any guarantee to those who wish to disrupt the government," he said.

Reading my history, disrupting the government was not the last thing they were trying to protect, it was the first thing. 

I stand by my no-McCain vow I made years ago after his role in campaign speech limitation.  But Obama does not look like a very promising alternative:

The Obama campaign disputes the accuracy of the advertisement, which is
fine. It has also threatened regulatory retaliation against outlets
that show it, which isn't fine. Instead of, say, crafting a response
ad, Obama's team had general counsel Robert F. Bauer send stations a
letter [pdf]
arguing that "Failure to prevent the airing of 'false and misleading
advertising may be 'probative of an underlying abdication of licensee
responsibility.'" And, more directly: "For the sake of both FCC
licensing requirements and the public interest, your station should
refuse to continue to air this advertisement."

In particular, I would love to see Obama actually say what positions that are ascribed to him on gun control are false, and what his actual, specific positions are.  A vague, gauzy support for the second amendment does not necessarily mean he has walked away from his earlier positions.  In fact, I am sure that McCain would say he supported the First Amendment but I would certainly feel comfortable pointing out how he fails to do so in the details.

Last year, a University of Delaware student was banned from campus and ordered to undergo psychological testing before he could return.  This was the administration's reaction to another student's complaint about certain content on his website, which was described as "racist, sexist, anti-Semitic, and homophobic."

Now, I have a guess that I would not have thought much of this student's professed opinions, but the first amendment is there to protect speech we don't like from punishment by government bodies such as the state-run University of Delaware.  So it is good to see that the US District Court for Delaware granted this student summary judgment on his free speech claim.

In particular, I was happy to see this:

The court also noted that speech is constitutionally protected when it does not cause a substantial disruption on campus"”even
if an individual student feels so upset by the speech that she feels
threatened by it, and even if university administrators strongly
dislike what is being said. That is, the complaining student's
reaction, together with the administrative trouble involved in dealing
with the situation, was not enough to show a substantial disruption
requiring punishment for Murakowski's protected speech.

This is important.  While it seems odd, college campuses have been the vanguard for testing new theories for limiting free speech over the last several years.  One popular theory is that offense taken by the listener is sufficient grounds to hold speech to be punishable.   This definition kills any objective standards, and therefore is a blank check for speech limitation, something its proponents understand all too well.  It is good to see a higher court very explicitly striking down this standards.

After digging a First Amendment hole for itself in the Plame affair, the New York Times seems to still be hell-bent on narrowing the very First Amendment protections that probably kept its employees out of jail in the early 70's.  Specifically, the Times frets that the US is out of step with Europe in having a much broader view of freedom of speech:

Six years later, a state court judge in New York dismissed
a libel case brought by several Puerto Rican groups against a business
executive who had called food stamps "basically a Puerto Rican
program." The First Amendment, Justice Eve M. Preminger wrote, does not
allow even false statements about racial or ethnic groups to be
suppressed or punished just because they may increase "the general
level of prejudice."

Some prominent legal scholars say the United States should reconsider its position on hate speech.

"It
is not clear to me that the Europeans are mistaken," Jeremy Waldron, a
legal philosopher, wrote in The New York Review of Books last month,
"when they say that a liberal democracy must take affirmative
responsibility for protecting the atmosphere of mutual respect against
certain forms of vicious attack."

In the 1970's, members of my family worked in the oil industry, and we received numerous death threats of varying believability, and several of our friends received letter bombs or had family members kidnapped.  Many of these attacks and threats were directly traceable to certain media shows that featured editorial attacks on the oil industry.  So is the Times suggesting that the media should hold off on its criticism of the oil industry because this criticism created an atmosphere of hate in which these attacks were conducted?

No freaking way, because these calls to limit criticism and "hate speech" always have an ideological filter.  There is never a suggestion that the speech bans be even-handed.  Criticism of African Americans is outlawed, but exactly parallel language about white folks is A-OK.  Criticising Islam is out, but Christianity is a fine target.  Death threats against Haitian activists must be avoided at all costs, but death threats against corporate executives are no reflection on free speech or the media.  The article is quite explicit that by their definition, hate speech only applies to "minorities," which you can translate to mean "groups the political class has decided to protect."  You may be assured that members of the political class will find a way to get themselves included in this definition, so they can be free of criticism,

Kudos to Harvey Silvergate, who even makes the exact same point I have made about Hitler a number of times:

"Free speech matters because it works," Mr. Silverglate continued.
Scrutiny and debate are more effective ways of combating hate speech
than censorship, he said, and all the more so in the post-Sept. 11 era.

"The world didn't suffer because too many people read "˜Mein Kampf,' " Mr. Silverglate said. "Sending Hitler on a speaking tour of the United States would have been quite a good idea."

I will add that I am also happy to be out of step with Europe in terms of any number of other policies, including American libel law, or laws that make it ever so much easier to start a business, and European tolerance for a cozy business-political elite that, whatever their party, focuses on keeping their elite wealthy and powerful.

After digging a First Amendment hole for itself in the Plame affair, the New York Times seems to still be hell-bent on narrowing the very First Amendment protections that probably kept its employees out of jail in the early 70's.  Specifically, the Times frets that the US is out of step with Europe in having a much broader view of freedom of speech:

Six years later, a state court judge in New York dismissed
a libel case brought by several Puerto Rican groups against a business
executive who had called food stamps "basically a Puerto Rican
program." The First Amendment, Justice Eve M. Preminger wrote, does not
allow even false statements about racial or ethnic groups to be
suppressed or punished just because they may increase "the general
level of prejudice."

Some prominent legal scholars say the United States should reconsider its position on hate speech.

"It
is not clear to me that the Europeans are mistaken," Jeremy Waldron, a
legal philosopher, wrote in The New York Review of Books last month,
"when they say that a liberal democracy must take affirmative
responsibility for protecting the atmosphere of mutual respect against
certain forms of vicious attack."

In the 1970's, members of my family worked in the oil industry, and we received numerous death threats of varying believability, and several of our friends received letter bombs or had family members kidnapped.  Many of these attacks and threats were directly traceable to certain media shows that featured editorial attacks on the oil industry.  So is the Times suggesting that the media should hold off on its criticism of the oil industry because this criticism created an atmosphere of hate in which these attacks were conducted?

No freaking way, because these calls to limit criticism and "hate speech" always have an ideological filter.  There is never a suggestion that the speech bans be even-handed.  Criticism of African Americans is outlawed, but exactly parallel language about white folks is A-OK.  Criticising Islam is out, but Christianity is a fine target.  Death threats against Haitian activists must be avoided at all costs, but death threats against corporate executives are no reflection on free speech or the media.  The article is quite explicit that by their definition, hate speech only applies to "minorities," which you can translate to mean "groups the political class has decided to protect."  You may be assured that members of the political class will find a way to get themselves included in this definition, so they can be free of criticism,

Kudos to Harvey Silvergate, who even makes the exact same point I have made about Hitler a number of times:

"Free speech matters because it works," Mr. Silverglate continued.
Scrutiny and debate are more effective ways of combating hate speech
than censorship, he said, and all the more so in the post-Sept. 11 era.

"The world didn't suffer because too many people read "˜Mein Kampf,' " Mr. Silverglate said. "Sending Hitler on a speaking tour of the United States would have been quite a good idea."

I will add that I am also happy to be out of step with Europe in terms of any number of other policies, including American libel law, or laws that make it ever so much easier to start a business, and European tolerance for a cozy business-political elite that, whatever their party, focuses on keeping their elite wealthy and powerful.

The list of topics banned from criticism is increasing in Canada.  First it was Islam, and then it was homosexuality.  Now, it is making activist professors at public universities immune from criticism.  By order of the Canadian government:

That Mr. Boissoin and The Concerned Christian Coalition Inc. shall
cease publishing in newspapers, by email, on the radio, in public
speeches, or on the internet, in future, disparaging remarks about gays
and homosexuals. Further, they shall not and are prohibited from making
disparaging remarks in the future about Dr. Lund or Dr. Lund's
witnesses relating to their involvement in this complaint. Further, all
disparaging remarks versus homosexuals are directed to be removed from
current web sites and publications of Mr. Boissoin and The Concerned
Christian Coalition Inc.

That fact that I vociferously disagree with Mr. Boissoin (I am in fact thrilled, for example, that gays will be able to marry soon in California), I whole-heartedly support his right to publicly voice his opinions, even if it makes some people feel bad.  Dr. Lund, as I understand it, as a professor at a state university, is a government employee, and a vociferous one at that.  All limitations on speech are bad, but this decision has crossed that critical line of protecting government employees from criticism, what we would think as the absolute solid heart of the First Amendment (while simultaneously restricting religious beliefs, just for extra credit).