Coyote Blog

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.

Brad Warbiany has a great suggestion in response to new FTC rules requiring that

Under the revised Guides, advertisements that feature a consumer and convey his or her experience with a product or service as typical when that is not the case will be required to clearly disclose the results that consumers can generally expect. In contrast to the 1980 version of the Guides "“ which allowed advertisers to describe unusual results in a testimonial as long as they included a disclaimer such as "results not typical" "“ the revised Guides no longer contain this safe harbor.

Brad has suggested this disclosure is in order:

Barack Obama, Sept 12, 2008
And I can make a firm pledge: under my plan, no family making less than $250,000 will see their taxes increase* "“ not your income taxes, not your payroll taxes, not your capital gains taxes, not any of your taxes.

* Results not typical. Families making less than $250,000 can expect to see rises in cigarette taxes, increased energy costs through cap and trade and/or gasoline taxes, soda taxes, and mandates to buy costly insurance plans they can't afford. They can expect to pay all the taxes levied on "corporations", as well as the cost of new regulations, who will pass those on in the cost of goods. Families can expect taxation through the form of inflation, eating away at the buying power of their paychecks. Firm pledges have not taken Viagra and should not be expected to last more than 4 hours.

Update: From Ann Althouse, couldn't have said it better myself:

The most absurd part of it is the way the FTC is trying to make it okay by assuring us that they will be selective in deciding which writers on the internet to pursue. That is, they've deliberately made a grotesquely overbroad rule, enough to sweep so many of us into technical violations, but we're supposed to feel soothed by the knowledge that government agents will decide who among us gets fined. No, no, no. Overbreath itself is a problem. And so is selective enforcement.

Here is my very simplistic take.  You will have to pardon me for referencing the actual text of the Constitution -- I know this is passe in our modern era (jeez, I am probably a tenther too).  The issue looks pretty straight-forward to me, for two reasons

• Congress shall make no law ... abridging the freedom of speech.  Doesn't say by whom or for what.  There are no modifiers.  Doesn't say "except when individuals organize themselves into a corporation."
• Congress shall make no law ... abridging ...the right of the people peaceably to assemble.  So Congress can make no law restricting free speech and it can make no law restricting assembly but somehow it can make laws restricting free speech of people who have assembled?

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"

Via Reason:

Because, unbelievably, Cartwright had previously been served with an Anti-Social Behaviour Order (ASBO)"”a civil order that is used to control the minutiae of British people's behaviour"”that forbade her from making "excessive noise during sex" anywhere in England.

This case sheds harsh light not only on the Victorian-style petty prudishness of our rulers, who seriously believe they can make sexually expressive women timid again by dragging them to court, but on the tyranny of Anti-Social Behaviour Orders themselves. Introduced by our authoritarian Labour government in 1998, anyone can apply for an ASBO to stop anyone else from doing something that they find irritating, "alarming," or "threatening."

Local magistrates' courts issue the orders, sometimes on the basis of hearsay evidence (which is permissible in "ASBO cases"). In short, the applicant for an ASBO does not have to go through the normal rigors of the criminal justice system in order to get a civil ruling preventing someone he doesn't like from doing something that he finds "alarming" or "dangerous." Once you have been branded with an ASBO, if you break its conditions"”by having noisy sex in your own home, for example"”you are potentially guilty of a crime and can be imprisoned.

The ASBO system has turned much of Britain into a curtain-twitching, neighbor-watching, noise-policing gang of spies. The relative ease with which one can apply to the authorities for an ASBO positively invites people to use the system to punish their foes or the irritants who live in their neighborhoods.

I don't really have much time to comment on this, but is there any need?  And for those smug enough to think this will never happen in the US, just look on college campuses today, where a number of universities are coming awfully close to creating a right not to be offended, and allowing students to define crime as anything that offends them.  And it almost goes without saying that such standards tend to be enforced unevenly, depending on the ideology of those who happen to be in charge.

A while back I wrote about how irritated I get when a state calls its sales tax a "transaction privilege" tax, and piously tells me that free interchange of goods and services is not a basic right but a privilege that can only be granted by an accommodating government.

Today, via Reason, we hear that "priviledge" word again, this time from Britain's Home Secretary Jacqui Smith, and again it is used in the context of "Kiss your rights goodbye"

Home Secretary Jacqui Smith said she decided to make public the names of 16 people banned since October so others could better understand what sort of behaviour Britain was not prepared to tolerate. [...]

"I think it's important that people understand the sorts of values and sorts of standards that we have here, the fact that it's a privilege to come and the sort of things that mean you won't be welcome in this country," Ms Smith told GMTV.

"Coming to this country is a privilege. If you can't live by the rules that we live by, the standards and the values that we live by, we should exclude you from this country and, what's more, now we will make public those people that we have excluded. [...]

Ironically enough, among the banned is American conservative radio host Michael Savage.  I don't enjoy Savage's schtick, but my sense is that he would very much share Ms. Smith's view on borders, that we need to filter those we allow in the country based on various ideological and cultural screens.  In fact, my sense is that Smith and Savage are very closely alligned on this, and differ only in how they would define the filters.

I must say that it is deeply depressing to see the UK implementing content-based speech screens on immigration and even visitation.

Ward Churchill's civil suit to be reinstated to his teaching post is apparently in court.  Churchill is arguing that the nominal reasons for his termination (mostly shoddy academic work) were not alone enough to have normally justified his termination, and that he was in fact fired for his remarks about 9/11.  This is an important distinction, because tenured professors can generally not be fired for exercise of first amendment rights, no matter how wacky their statements.

In a post that spawned a number of angry emails, I actually said I thought Churchill was fired improperly.  There is plenty of evidence that the Native American studies department at Colorado, and gender/racial studies departments in general, have never enforced any sort of academic rigor, and it is hypocritical to suddenly discover such rigor for this case.  Churchill has been rewarded and promoted historically for much of the same work he is nominally getting fired for now.  Further, examples are legion of heads of various elite university racial and gender studies departments who exercise the same or less academic rigor as Churchill but whom no one is criticizing.   As I mention in my earlier post, Cal State Long Beach hired a paranoid schizophrenic who had served prison time for beating and torturing two women as the head of their Black Studies department.

Frankly, Colorado is getting exactly what they hired.  They weren't looking for a research mastermind.  They were looking for a politically correct hire to fill a void and create a department that made them look nice and progressive on paper.  And that is exactly what they got.

Update: Here is a good example of the academic standards in many racial and gender studies departments, where political activism substitutes for scholarship.  Churchill, by being slack on his research work and publishing but making high-profile and incendiary statements in public, was merely following the template of many such department heads.

Yeah, I think the title is worded awkwardly, but I am trying to curb my enthusiasm for ending sentences with prepositions  (I will continue to boldly split infinitives that no man has split before).

Anyway, in the spirit of this post and this one, I try from time to time to reinforce my support for free speech as an absolute right by publicly supporting the speech rights of those with whom I disagree.  Today's case is the public University of Nebraska-Lincoln deciding to un-invite former terrorist William Ayers to speak on campus.  The reason given was the current weak-ass excuse often used to reverse the invitation of controversial speakers, "we can't gaurantee security." 

Though I would never have hired the guy, Ayers is a professor at a real public university, and what he has to say is particularly relevant given his ties to Barack Obama.  I find the behavior of Nebraska's conservative politicians to be especially absurd here -- after months of calling for more discussion and disclusore of Ayers and his ties to Obama, they want to prevent Ayers from speaking publicly?

Update:  In an odd coincidence, at about the same time I was writing this post, the NY Times blog was posting on split infinitives.

Anyone who flies regularly and has not thought of at least five ways they could easily beat airport security isn't really trying.  Jeffrey Goldberg actually tries a few:

Suspicious that the measures put in place after the attacks of September 11 to prevent further such attacks are almost entirely for show"”security theater is the term of art"”I have for some time now been testing, in modest ways, their effectiveness. Because the TSA's security regimen seems to be mainly thing-based"”most of its 44,500 airport officers are assigned to truffle through carry-on bags for things like guns, bombs, three-ounce tubes of anthrax, Crest toothpaste, nail clippers, Snapple, and so on"”I focused my efforts on bringing bad things through security in many different airports, primarily my home airport, Washington's Reagan National, the one situated approximately 17 feet from the Pentagon, but also in Los Angeles, New York, Miami, Chicago, and at the Wilkes-Barre/Scranton International Airport...

Schnei­er and I walked to the security checkpoint. "Counter­terrorism in the airport is a show designed to make people feel better," he said. "Only two things have made flying safer: the reinforcement of cockpit doors, and the fact that passengers know now to resist hijackers." This assumes, of course, that al-Qaeda will target airplanes for hijacking, or target aviation at all. "We defend against what the terrorists did last week," Schnei­er said. He believes that the country would be just as safe as it is today if airport security were rolled back to pre-9/11
levels. "Spend the rest of your money on intelligence, investigations, and emergency response."

Though I have to give props to the TSA for supporting first Amendment rights, I am not sure their concern over free speech and privacy was driving this encounter:

On another occasion, at LaGuardia, in New York, the
transportation-security officer in charge of my secondary screening
emptied my carry-on bag of nearly everything it contained, including a
yellow, three-foot-by-four-foot Hezbollah flag, purchased at a
Hezbollah gift shop in south Lebanon. The flag features, as its
charming main image, an upraised fist clutching an AK-47 automatic
rifle. Atop the rifle is a line of Arabic writing that reads Then surely the party of God are they who will be triumphant.
The officer took the flag and spread it out on the inspection table.
She finished her inspection, gave me back my flag, and told me I could
go. I said, "That's a Hezbollah flag." She said, "Uh-huh." Not "Uh-huh,
I've been trained to recognize the symbols of anti-American terror
groups, but after careful inspection of your physical person, your
behavior, and your last name, I've come to the conclusion that you are
not a Bekaa Valley"“trained threat to the United States commercial
aviation system," but "Uh-huh, I'm going on break, why are you talking
to me?"

It turns out, incredibly, that most airport employees are not screened.  Because, you know, it would be grossly unfair to subject airport staff to the same sort of time-wasting indignities to which we all must acquiesce.  Also, many commercial flights have a belly-full of US mail which I am pretty sure is not inspected in any way.

This weekend, I had a conversation with a group of people about the upcoming election.  As is typical in a fairly diverse group, at least one woman said that she was voting for Obama to protect "women's rights."  When pressed, this seemed to boil down to support for abortion rights. 

Boy, I am sure glad that I am a man, where my rights are not narrowly defined around the availability of a single out-patient surgical procedure.  I get to define my rights to include free speech, commerce, property, gun ownership, immunity from arbitrary search and seizure, and habeus corpus.  Even in the narrow world of medical care, I can aspire broadly to rights such as the ability to use medications not necessarily labeled safe and effective by the FDA, the ability to contract for whatever procedures I want even if the government is not willing to pay for them, and the abilty ride my motorcycle with or without a helmet as long as I am willing to bear the cost and consequences of my actions.

I will confess that this broader view of my rights makes voting more difficult, as neither the Coke nor the Pepsi party consistently protects my rights defined this broadly.

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.

This is cross-posted from Climate-Skeptic, but it is very much in the spirit of the Canadian tribunals and University speech codes.  There are increasing efforts, mainly on the left, to make the world a better place by limiting speech of those who don't agree with them.

John McCain put his name to the campaign finance bill that, in effect, allows only the media, not other private citizens, unlimited free speech in the run-up to the election.  So I think it is hilarious that the media seems to be lined up against McCain in the next election. 

There is nothing in any law book that says the media has to be unbiased.  In fact, today's notion of an unbiased media is a relatively new concept.  Most newspapers of the 19thy century had a clear political orientation, something that is still the case to some extent in Britain today.  It was absurd to give such a limited group a monopoly on political speech close to an election.  I have opposed this law from day 1, but I do find it funny that McCain himself maybe its first victim. 

Cross-Posted From Climate Skeptic. 

In
1497, Savonarola tried to end the Italian Renaissance in a massive pyre
of books and artwork (the Bonfire of the Vanities).  The Renaissance
was about inquiry and optimism, neither of which had much appeal to
Savonarola, who thought he had all the answers he needed in his
apocalyptic vision of man.  For him, how the world worked, and
particularly the coming apocalypse, was "settled science" and any
questioning of his world view was not only superfluous, it was evil.

A popular anti-immigrant tactic in Arizona is to try to ban day laborers from public places.  Though it's not how I would choose to sell my labor, many people choose to advertise and sell their labor from street corners and in public spaces.  And many of these folks, contrary to common perceptions, are legal residents of this country.

Here is a bit of good news:

A federal judge on Monday issued a temporary order blocking the town
of Cave Creek from enforcing a law aimed at stopping day laborers from
gathering on streets to look for work.

In her ruling, U.S. District Judge Roslyn Silver found that the
ordinance is an unconstitutional restriction of free speech, and that
the possibility of irreparable harm exists.

"Plaintiffs, as day laborers, face not only the loss of First
Amendment freedoms, but also the loss of employment opportunities
necessary to support themselves and their families," Silver wrote in
the ruling.

Three trends on college campuses all came together in the case of Keith Sampson:

• Rampant political correctness
• A newfound "right" for protected groups to be free from being offended, a right that now seems to trump free speech
• The fetishization of symbolism over substance, and the belief that other people's reactions to an act is more important than the nature of that act itself.

Here is an excerpt from his story:

IN November, I was found guilty of "racial harassment" for reading a public-li brary book on a university campus.

The book was Todd Tucker's "Notre Dame vs. the Klan: How the Fighting
Irish Defeated the Ku Klux Klan I was reading it on break from my
campus job as a janitor. The same book is in the university library.

Tucker recounts events of 1924, when the loathsome Klan was a dominant
force in Indiana - until it went to South Bend to taunt the Irish
Catholic students at the University of Notre Dame.

When the
KKK tried to rally, the students confronted them. They stole Klan robes
and destroyed their crosses, driving the KKK out of town in a downpour.

I read the historic encounter and imagined myself with these
brave Irish Catholics, as they street-fought the Klan. (I'm part-Irish,
and was raised Catholic.)

But that didn't stop the Affirmative
Action Office of Indiana University-Purdue University Indianapolis from
branding me as a detestable Klansman.

They didn't want to hear
the truth. The office ruled that my "repeatedly reading the book . . .
constitutes racial harassment in that you demonstrated disdain and
insensitivity to your co-workers."

A friend reacted to the finding with, "That's impossible!" He's right. You can't commit racial harassment by reading an anti-Klan history....

But the $106,000-a-year
affirmative-action officer who declared me guilty of "racial
harassment" never spoke to me or examined the book. My own union - the
American Federation of State, County and Municipal Employees - sent an
obtuse shop steward to stifle my freedom to read. He told me, "You
could be fired," that reading the book was "like bringing pornography
to work."

I have argued many times on this page that there is a dangerous new rights theory gaining traction in today's college campuses.  That theory holds that there exists a freedom (mostly for people in "protected" groups -- women, minorities, etc) from being offended or even being criticized, and that this trumps free speech. 

For years I have supported the legality of what is called hate speech -- not because I agreed with it, but because I thought its expression, no matter how contemptible, should be legal.  Free speech should have no content tests.  I also argued that there was a slippery slope.  If making racist remarks is illegal today, perhaps just criticizing a woman or an African American might be illegal tomorrow.

Enter Priya Venkatesan, former English teacher at Dartmouth.  Ms. Venkatesan was hired by Dartmouth to teach all kinds of odd (but always trendy) socialist eco-feminist babble.  Such courses seem to be a staple of colleges today.  I remember a number of such professors at Princeton, but it was no big deal as long as the course were clearly labeled and one could avoid them.  After all, if people really were attracted to such drivel, it just left more spots open for the rest of us in classes that actually prepared us for the real world. 

The problems began, though, when Ms. Venkatesan's students refused to blindly agree with her  (apparently, they did not attend the University of Delaware indoctrination course that explained why you are not allowed to criticize anyone but white males).

The agenda of Ms. Venkatesan's seminar, then, was to
"problematize" technology and the life sciences. Students told me that
most of the "problems" owed to her impenetrable lectures and various
eruptions when students indicated skepticism of literary theory. She
counters that such skepticism was "intolerant of ideas" and "questioned
my knowledge in very inappropriate ways." Ms. Venkatesan, who is of
South Asian descent, also alleges that critics were motivated by
racism, though it is unclear why.

After a winter of discontent, the snapping point came
while Ms. Venkatesan was lecturing on "ecofeminism," which holds, in
part, that scientific advancements benefit the patriarchy but leave
women out. One student took issue, and reasonably so "“ actually,
empirically so. But "these weren't thoughtful statements," Ms.
Venkatesan protests. "They were irrational." The class thought
otherwise. Following what she calls the student's "diatribe," several
of his classmates applauded.

Ms. Venkatesan informed her pupils that their behavior
was "fascist demagoguery." Then, after consulting a physician about
"intellectual distress," she cancelled classes for a week. Thus the
pending litigation.

Litigation, exposure of the names behind anonymous course evaluations, and email threats from Ms. Venkatesan follow.  More from Lubos Motl.

Postscript:  By the way, it is just astounding to me that anyone with an over-room-temperature IQ could passionately believe that technological progress is bad for women.  One might argue that way society is organized still under-utilizes women and/or puts artificial roadblocks up to a woman's progress, but get some perspective!

Pre-modern life for women was horrible.  Because of the biological complexities of child-rearing alone, they died young far more often than men and their physical vulnerability caused them to be marginalized in virtually every society of every culture of the world until at least 1750 and really until 1900.  The whole women's movement is built on a platform of technology that only begins with the pill and encompasses a thousand things from automobiles to computers that reduce the importance of size and physical strength in getting ahead in the world. 

.... Uh, never.  Except of course at Colorado College, according to Amanda Udis-Kessler, Colorado College's Director of Institutional Research and Planning:

Social inequality is deeply grounded in a lack of respect-for women,
people of color, lesbian and gay people, and others. When we choose to
curtail our freedom to disrespect others in order to build a meaningful
society, we have made a mature and wise choice-and one that college
should help us learn.

The rest of the post is a roundup of the fallout over the punishment by the university of a parody of a campus feminist publication.  Basically, the argument boils down to the feminists feeling "dissed" and arguing that being dissed is a sufficient reason to curtail speech if one is in a protected group.   But remember this plea by the Colorado College feminists:

But please stop fabricating a story about humorless, offended feminists silencing men's free speech.

Oh, okay.

There are enough cases of this new theory of speech running around, that speech may be curtailed if someone in a protected group feels hurt or challenged by the speech, for real concern.  It is the same theory at the heart of the kerfuffle in Canada over the human rights commission's attack on conservative magazines and bloggers, and the same theory in the recent New Mexico decision that a photographer cannot choose not to photograph gay marriages.

Every decade or so, enemies of free speech adopt a new strategy for trying to curtail the First Amendment.  The current effort consists of attempting to define a "right not to be offended", and college campuses are a leading laboratory for this approach (see here and here).

Chris Robinson was recently brought up on trial at the University court for violating this right not to be offended of some of the women at Colorado College (you may notice that this "right not to be offended" seems to be enforced suspiciously asymmetrically, like all speech restrictions).  He has fired back with a marvelous editorial, of which I include one short excerpt:

Hyper-sensitivity in service to a purported greater good became the
justification for an authoritarian lock-down on speech. It's the same
logic every time: the state comes down hard on behalf of "community."
Changing the rhetorical justification only masks the tyranny. The
effect of this on citizens, in the words of John Adams, is "reducing
their minds to a state of sordid ignorance and staring timidity."...

The simple fact that we were brought before a Soviet-style show
trial has already sent a message to campus, and it is a clear one,
namely that every other potential bearer of heterodox views
should think long and hard about expressing them for fear of ending up
in the same situation as us. In order to avoid even the possibility of offending one group or another, nobody outside the "approved" ideological categories will say anything.

This
is precisely the chilling effect that the First Amendment is
specifically designed to guard against, and to sanction it is a
fundamental violation of the mission of this college. Transparently
selective enforcement against ideologically disallowed speech is
categorically the same as those abhorrent thought-control missions
carried out by the Saudi Ministry of the Propagation of Virtue and the
Prevention of Vice, a perfect example of what John Adams called "the
most mischievous of all doctrines, that of passive obedience and
non-resistance." It's Orwell and Kafka, together at last.

Bonus judos to Mr. Robinson for recognizing that as a private institution, Colorado College can legally implement whatever speech restrictions it likes, and so frames the question as an issue of "should it" rather than "can it?"

For all our problems in this country with protecting individual liberties, we at least still have pretty free reign in criticizing public figures.  Unfortunately, the same cannot be said of Canada.  I am not really that sympathetic to all that gets written on these Canadian web sites, but I support their right to say it.

Do not be too complacent, however.  I am absolutely positive that there are many prominent people in this country who are scheming to bring exactly this sort of regime to the US.  In fact, it is already being tested at various college campuses, where a newfound right "not to be offended" has begun to trump free speech, at least so far as offense is defined and felt by the ruling elite on campus.

It turns out, according to Barack Obama, (who hales from the party that doesn't believe in questioning anyone's patriotism) that I am not a "Patriot Employer."  This is from the text of Senate Bill S. 1945 of which he is a co-sponsor  (My snark is interspersed in italics):  Patriot Employers are to be given tax breaks over unpatriotic employers (I presume this means that their tax rates will be raised less in an Obama presidency than those of other folks) with "patriot employers" defined as such:

(b) Patriot Employer- For purposes of subsection (a), the term
`Patriot employer' means, with respect to any taxable year, any
taxpayer which--

  `(1) maintains its headquarters in the United States if the taxpayer has ever been headquartered in the United States,

OK, I guess I can comply with this.  Though I am not sure the best way to begin an Obama "kindler gentler foreign policy" is to tell the nations of the world that we will be taxing their company's income in the US at a higher rate than our own companies.

  `(2) pays at least 60 percent of each employee's health care premiums,

So the #1 determinant of patriotism is not commitment to individual rights but paying 60% of employee health care costs.  I guess I am so unpatriotic

And, just from a practical standpoint, 90% of my employees are seasonal, hired for about 4 months of the year.  To be patriotic, I have to pay their health care costs all year long?  Also, since most of my employees are retired, they are on Medicare or an employee retirement medical plan.  If they pay $0 in premiums and I pay $0 of that, do I get credit for 60%?  Maybe the government can mandate a solution for zero divided by zero, like they did for the value of pi years ago

  `(3) has in effect, and operates in accordance with, a policy requiring neutrality in employee organizing drives,

I presume neutrality means that in a hypothetical union drive, I do not express my opinion (and likely opposition) to said unionization drive?   I am told that this also entails allowing card checks rather than hidden ballot voting.  In other words, patriotism is being defined here as 1) giving up your free speech rights and 2) opposing hidden ballot voting.  Uh, right.  Besides, if a union organized our company, as unlikely as that would be, I would probably have to do a Francisco d'Anconia on the place.

  `(4) if such taxpayer employs at least 50 employees on average during the taxable year--

`(A) maintains or increases the number of full-time
workers in the United States relative to the number of full-time
workers outside of the United States,

In other words, we don't want American companies growing overseas.  This could also be called the "give up international market share act."  This implies that it is unpatriotic for US-based Exxon to explore for oil in Asia and that it is more patriotic to let the Chinese national oil company do it.  This implies that it is more patriotic for Coke to lose market share in Germany than to gain it.  This means that it is more patriotic for Mattel to buy its toys in China from Chinese companies rather than run the factories themselves (and thereby be accountable themselves for product quality and working conditions).

This is beyond stupid.  We LIKE to see US companies doing well overseas.  If we have to import our raw materials, we feel more comfortable if it is US companies doing the extraction.  Don't we?  In the name of patriotism, do we really want to root for our domestic companies to fail in international markets?

`(B) compensates each employee of the taxpayer at
an hourly rate (or equivalent thereof) not less than an amount equal to
the Federal poverty level for a family of three for the calendar year
in which the taxable year begins divided by 2,080,

90% of my workers are retired.  They work for me to supplement their income, to live our in nature, and to stay busy.  They need me to pay them based on the poverty line for a family of three, why?  I will tell you right now that if I had to raise wages this much, most of my employees would quit.  Many of them force me to give them fewer hours so they can stay under the social security limits for income.  I discussed what rising minimum wages often force me to do here, but just as an illustration, a $1 an hour across the board wage increase would easily wipe out all the money I make in a year and put me into a loss position.  In which case the lowered tax rate would not do me much good anyway.

  `(C) provides either--

  `(i) a defined contribution plan which for any plan year--

`(I) requires the employer to make
nonelective contributions of at least 5 percent of compensation for
each employee who is not a highly compensated employee, or

`(II) requires the employer to make
matching contributions of 100 percent of the elective contributions of
each employee who is not a highly compensated employee to the extent
such contributions do not exceed the percentage specified by the plan
(not less than 5 percent) of the employee's compensation, or

`(ii) a defined benefit plan which for any plan
year requires the employer to make contributions on behalf of each
employee who is not a highly compensated employee in an amount which
will provide an accrued benefit under the plan for the plan year which
is not less than 5 percent of the employee's compensation, and

Uh, I am not sure why it is unpatriotic for an employee to save for themselves, but I think 401k plans are a nice benefit.  I would certainly offer one except for one tiny fact - ALL MY EMPLOYEES ARE ALREADY RETIRED!!  They are over 65.  They are drawing down on their retirement, not contributing to it.

This is at the heart of the problem with all US labor law.  Folks up in Illinois write laws with a picture of a steel mill in mind, and forget that employment and employees have infinite variations in circumstances and goals. 

So I am unpatriotic, huh.  But if forcing companies to contribute to emplee retirement plans is patriotic, why is hiring folks once they are retired to give them extra income in retirement unpatriotic?  In fact, maybe I could argue that 100% of the wages I pay go to retirement spending

`(D) provides full differential salary and
insurance benefits for all National Guard and Reserve employees who are
called for active duty, and

In other words, we of the government are not going to pay our employees (ie reservists on active duty) what they are worth and are not going to give them benefits, so to be patriotic you need to do it for us.  We in Congress are not really very patriotic and don't support the troops, so you need to do it for us.

All kidding aside, I would do this in my company if it was applicable, but I really resent being piously told to do so by several Senators who don't really model this behavior themselves.

  `(5) if such taxpayer employs less than 50 employees on average during the taxable year, either--...

blah, blah.  Basically the same stuff repeated, though slightly less onerous.

Since when did patriotism equate to "rolling over to the latest AFL-CIO wish list?"

Gene Nichol of William & Mary has resigned, pointing to the university's opposition of his First Amendment defense of a campus sex workers' show as a major reason for leaving.  Which is all well and good -- I for one compliment him on supporting the speech rights of controversial people and performers. 

However, before we go declaring Mr. Nichol a martyr for free speech, FIRE reminds us that less than six months ago Mr. Nichol spearheaded this far more comprehensive violation of free speech:

This fall, The College of William & Mary launched a Bias Incident Reporting System
"to assist members of the William and Mary community"”students, staff,
and faculty"”in bringing bias incidents to the College's attention." In
its initial incarnation, the system was fraught with constitutional
problems, from both free speech and due process standpoints. The system
initially allowed
for anonymous reporting, providing that "[a] person reporting online
may report anonymously by leaving the personal information fields
blank." The definition
of "bias" was overbroad and encompassed constitutionally protected
expression: "A bias incident consists of harassment, intimidation, or
other hostile behavior that is directed at a member of the William and
Mary community because of that person's race, sex (including
pregnancy), age, color, disability, national or ethnic origin,
political affiliation, religion, sexual orientation, or veteran
status." The homepage
for the system even contained an explicit misstatement about the First
Amendment, stating that the First Amendment did not protect
"expressions of bias or hate aimed at individuals that violate the
college's statement of rights and responsibilities."

...a group calling itself "Free America's Alma Mater" published an advertisement in William & Mary's student newspaper, The Flat Hat,
skewering the new program. "Welcome to the new William & Mary's
Bias Reporting System, where W&M now invites you to shred the
reputation of your neighbors"¦anonymously," the ad read. "Prof
gave you a bad grade? Upset at that fraternity brother who broke your
heart? Did a colleague vote against you for tenure? Now you can get even!!
Anonymously report anything that offends you to the William & Mary
Thought Police at http://www.wm.edu/diversity/reportbias/."

This earlier episode reveals that Mr. Nichol clearly does not believe that all speech is protected.  In this light, the episode with the sex workers becomes one of taste rather than first amendment privileges, a mere quibble over where the censorship line (that Mr. Nichol believes should exist) is going to be drawn.

Which reminds me of the old joke:  A man approaches a beautiful woman at a party, and says "Would you sleep with me for a million dollars?" and she says, "Yes."  He then asks "would you sleep with me for $10?" and she screams "what kind of girl do you think I am?"  He retorts "We already established that.  Now we are just haggling over price."

Ezra Levant has posted YouTube videos of his interrogation by an oily little Canadian bureaucrat called "a human rights officer."  He has done it in a series of post, so go to his site and keep scrolling.  Apparently, in Canada, free speech is not a human right but "freedom from criticism" is, at least for certain politically connected groups  (threatening violence at the drop of a hat also seems to help gain one this "freedom from criticism" right.  Levant is being hauled in by the government for publication of those Danish cartoons that barely register at 0.1 on a criticism meter that goes to 10. 

This exchange really resonated with me:

Officer McGovern said "you're entitled to your opinions, that's for sure."

Well, actually, I'm not, am I? That's the reason I was sitting
there. I don't have the right to my opinions, unless she says I do.

For all of you who left the US for Canada for more freedom from Bush and the Iraq war, have at it.  Because Bush will be gone and we will be out of Iraq long before Canada (as well as Europe) catch up to the US in terms of its protection of [most] individual rights, like free speech.

via Maggies Farm

Update, from Mark Steyn:

Ms McGovern, a blandly unexceptional bureaucrat, is a classic example
of the syndrome. No "vulnerable" Canadian Muslim has been attacked over
the cartoons, but the cartoonists had to go into hiding, and a gang of
Muslim youths turned up at their children's grade schools, and Muslim
rioters around the world threatened death to anyone who published them,
and even managed to kill a few folks who had nothing to do with them.
Nonetheless, upon receiving a complaint from a Saudi imam trained at an
explicitly infidelophobic academy and who's publicly called for the
introduction of sharia in Canada, Shirlene McGovern decides that the
purely hypothetical backlash to Muslims takes precedence over any
actual backlash against anybody else.

I made this prediction way back in February of 2005:

I resisted the call by a number of web sites at the beginning of the
year to make predictions for 2005.  However, now I will make one:  We
will soon see calls to bring a tighter licensing or credentialing
system for journalists, similar to what we see for lawyers, doctors,
teachers, and, god help us, for beauticians.  The proposals will be
nominally justified by improving ethics or similar laudable things,
but, like most credentialing systems, will be aimed not at those on the
inside but those on the outside.  At one time or another, teachers,
massage therapists, and hairdressers have all used licensing or
credentialing as a way to fight competition from upstart competitors,
often ones with new business models who don't have the same
trade-specific educational degrees the insiders have....

Such credentialing can provide a powerful comeback for industry insiders under attack.  Teachers, for example, use it every chance they get to attack home schooling and private schools,
despite the fact that uncertified teachers in both these latter
environments do better than the average certified teacher (for example,
kids home schooled by moms who dropped out of high school performed at
the 83rd percentile).  So, next time the MSM is under attack from the blogosphere, rather than address the issues, they can say that that guy in Tennessee is just a college professor and isn't even a licensed journalist.

So here we go, here are a few recent such calls for licensing of journalists.  The first via Hot Air:

Supporters of "citizen journalism" argue it provides independent,
accurate, reliable information that the traditional media don't
provide. While it has its place, the reality is it really isn't
journalism at all, and it opens up information flow to the strong
probability of fraud and abuse. The news industry should find some way
to monitor and regulate this new trend....

The premise of citizen journalism is that regular people can now
collect information and pictures with video cameras and cellphones, and
distribute words and images over the Internet. Advocates argue that the
acts of collecting and distributing makes these people "journalists."
This is like saying someone who carries a scalpel is a "citizen
surgeon" or someone who can read a law book is a "citizen lawyer."
Tools are merely that. Education, skill and standards are really what
make people into trusted professionals. Information without
journalistic standards is called gossip.

But that one is downright sane compared to this, from Cleveland's Voice for Social Justice (have you noticed how "social justice" always seems to require forcefully silencing people?):

For every champion of journalism who write stories about Walter Reed or
Extraordinary Rendition Flights, there are two reporters at Channel 19
who care very little about society. For every Seymore Hersh there are five Michelle Malkins or Ann Coulters.   With citizen journalists spreading like wildfire in blogs, we seem to have one Froomkin created, there are five extremist blogs proclaiming the assaults on homeless people everyday....

The Society of Professional Journalists must start licensing
journalists or the government will start doing it for them. We need to
start taking this practice seriously and separate the real journalists
from the fakes. The decisions made by journalists have consequences for
ruining people's lives or for causing grief, suicide or even murder.
The genocide in Rhwanda were carried out using the radio commentators
to urge citizens to kill Tutsis. If journalists want to be taken
seriously they must figure out how to separate the real from the
O'Reilly types. They must set up a structure to license journalists
with an enforcement mechanism to strip bad journalists from practicing
their craft.

This is from the weblog of a bunch of media students:

It scares me to think that the field I will going pursuing when I
graduate might be confused with entertainment reporting "“ things like
"Who Ben Affleck is dating now" and "Will Brad and Jen get back
together." Certainly, these things are news to a select few. I will
not, however, get into the whole tabloid issue. I seems to have sparked
some intense debate with that one a few weeks ago. But, I am worried
that with the onslaught of weblogs and internet news, many readers and
listeners will get confused and think what they're reading and watching
is actually news. I have nothing against web loggers, even though they
are a threat to my future career. But, all of this leads me to question
the professionalism of journalism.

Should we license journalists? This has been a question that has
been debated back and forth for awhile. Many journalists are against
the idea because they believe that that would mean licensing
information and licensing free speech. But I think we need to look at
the issues at hand right now. The news is getting out-of-hand. The
public is being onslaught with an enormous amount of information due to
our increasing rush of technology and it has to be hard for them to
differentiate between real news and opinions being costumed as news.
This is why we need to start seriously considering licensing
journalists. It may be the only real hope for the future of
journalists. With licenses, we can hold on to whatever ethical and
moral characteristics we have left in the news business. There will be
no more "parading reporters" and no more "video news releases." Who
thinks we should pursue this? Who thinks the entire idea is ridiculous?

Some countries are seriously considering it.  Brazil and Indonesia are looking into licensing their journalists.  Here's an article
from Indonesia - even though it's agaist thh idea of licensing it's
still a good example of how serious this debate is becoming

Its good we are taking lessons on free speech and the media from Indonesia and Brazil.  I probably should not make fun of the typos and grammar errors in this post by a "media student" since I make such mistakes all the time.  Of course, I am not a "licensed journalist."

This is not a new issue.  In the early 1980's, the US vigorously resisted attempts by the UN to implement a variety of euphemisms that boiled down to licensing requirements for international journalists.

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.