Coyote Blog

"Shouldn't Princeton students have the same rights as their counterparts down the road at Mercer County Community College?"

Princeton is a private institution, and has a greater ability than state institutions to set its own codes of conduct for its students.  That being said, as one who wants Princeton to remain a strong institution, I don't understand what the university's interest is in limiting free speech.  Particularly booing at a play.  The only exception I might make to this are efforts to make sure that invited speakers or scheduled performances can actually be heard and aren't drowned out by protesters, but I don't get the sense that this is what is going on here.

This "unwanted verbal conduct" standard that a number of universities have adopted is absurd, and is only harming students by releasing them into the real world believing that the government will protect them from encountering any criticism.  In this sense, Princeton and other universities are creating students in the modern Islamic mold, teaching them they should somehow be immune to criticism and that they should react with rabid outrage at the first person who says anything negative about them.  The only difference is that these students are being taught to respond with lawyers rather than explosive backpacks, but the outcome in terms of stifled free speech is the same.

I just don't know why conservatives are so afraid to let folks like Khatami speak in the US.  Sure, he is a lying dictatorial human-rights-suppressing scumbag, but so what?  Its good to let people like this speak as much as they want.  They always give themselves away.  There were counter-protests and lots of debate about Iran in the news and on the nets, and that is as it should be.

I suppose conservatives real fear is that the press will, as they sometimes do, throw away their usual skepticism and cynicism and report his remarks as if they were those of a statesman rather than a thug on a PR mission.  But that's a different problem, and not a good enough excuse to suspend free speech, even for a man who granted it to no one else in his own country.  (I have never bought into the "media bias" critique, either conservative or liberal, in the press, because this seems to imply some active conspiracy exists to manage the news to some end.  Rather, I think it is more fair to say that reporters tend to apply too little skepticism to stories with which they are sympathetic.  For example, many reporters think homelessness is a big problem, so they were willing to uncritically accept inflated and baseless numbers for the size of the homeless population, numbers they would have fact-checked the hell out of if they had come from, say, an oil company to whom they are unsympathetic or skeptical of.)

On the same topic, I don't know why conservatives are so worried about this story of an increase in students from Saudi Arabia.   It used to be that we had confidence that people from oppressive countries would have their eyes opened by living in the US.  We have always believed that intellectually, freedom was more compelling than dictatorial control, and would win over hearts and minds of immigrants.  Our foreign policy with China, for example, is counting on engagement to change China.  Have we given up on this?

I sense I am in the minority on this (what's new) but I just don't understand the outrage directed at the decision to let Muhammad Khatemi into the US for some speaking engagements.  I guess I am enjoying the spectacle, though, of conservatives attacking McCain-Feingold for limiting free speech and then attacking the state department for letting a former head of state (albeit a fairly crazy one) into the country to, uh, speak.

The letter says that allowing
Mr. Khatemi to visit America "undermines U.S. national security
interests with respect to Iran and the broader Middle East." It also
says permitting Mr. Khatemi's "unrestricted travel through the United
States runs contrary to U.S. priorities regarding homeland security."

Taking the first part of this objection, I suppose they are arguing that granting this person a visa is somehow a reward, and we don't want to reward Iran.  Now, I will confess that Iran sucks, but I don't get how this rewards them or sets back our cause.  Yes, if he was received in the White House or by a prominent government official, I can understand it, and I would oppose doing so.  Besides, when our former head of state Jimmy Carter goes to other countries, the trips always seem to have the opposite effect that people fear here, as he tends to hurt rather than somehow advance his home country's interests every time.

As to the second part, I could understand it if someone had a legitimate concern that this was a terrorist leader and he would be spending his time visiting and organizing terrorist cells, but I have not seen anyone make that claim.  Besides, if I was in the FBI, I would love it if he was here to do that, and would follow him all over the place.  The CIA and FBI often leave known agents in place, because it is much easier to stay on top of the person you know about than the person you don't.  A high profile visit by Khatemi should be the least of our security concerns.

This just strikes me as one of those silly political loyalty tests that Democrats seem to like to conduct on domestic policy and Republicans conduct on foreign policy.  If you let this guy in, you are branded as a supporter of terrorism and fascism and whatever else. 

As I said just two days ago:

I am constantly irritated by efforts to ban a certain speaker from
speaking or to drown out their message with taunts and chanting.  If
you think someone is advocating something so terrible - let him talk.
If you are right in your judgment, their speech will likely rally
people to your side in opposition.  As I like to tell students who want
to ban speakers from campus -- Hitler told everyone exactly what he was
going to do if people had bothered to pay attention.

By the way, in explanation of the title of this post, I was reacting to something quoted from Rick Santorum.  Now, I often hesitate to react to comments by Santorum, because, like Howard Dean and a few others, he is sort of a human walking straw man.  But here goes:

On it, Mr. Santorum, who
has cut his deficit against his Senate challenger in Pennsylvania to
single digits, wrote that he should be granted a visa only if Iran
allows their people to hear "free American voices."

Mr. Santorum wrote: "We should insist, at a minimum, that the
Iranian people can hear free American voices. Iran is frightened of
freedom. They are jamming our radio and television broadcasts and
tearing down television satellite dishes in all the major cities of the
country. It seems only fair that we be able to speak to the Iranians
suffering under a regime of which Muhammad Khatemi is an integral part."

So now are we going to allow people free speech only if their country does so in a bilateral manner?  All you Americans of North Korean, Chinese, Iranian, Saudi Arabian, Venezuelan, etc. decent, Beware!   This logic betrays a theory of government that rights don't extend from the fact of our existence, but are concessions granted by the government.  By this logic, people have free speech only as long as the government allows it, and the government has the right to trade away an individual's free speech as a part of a negotiation.    

Most any reader of this site will know that I am a strong supporter of free and open immigration.  However, I am sad to see Cingular pull this particular ringtone off the market.  The ringtone went as follows:

The ringtone started with a siren, followed by a male voice saying in a
Southern drawl, "This is la Migra," a slang term for the Border Patrol.

"Por favor, put the oranges down and step away from the cell phone.
I repeat-o, put the oranges down and step away from the telephone-o.
I'm deporting you back home-o," the voice continued.

For years I have been a strong supporter of the complete freedom to engage in what is often called "hate speech."  Beyond the usual slippery-slope threat-to-free-speech argument, I have always thought it was important to let idiots publicly identify themselves.  I mean, what could be better than a cell phone ringtone that just shouts out "I'm a racist moron" to the world?  This is an even better idea than the comedian Gallagher's (he of the cuisinarted vegetables) idea for shoot-able stupid flags.  It is the same reason I allow free commenting on this site and love to get opposing email.

From the Washington Square News, campus paper of NYU:

American media outlets did not utilize their freedom of speech rights
after they chose not to reprint the George Bush cartoons that negatively
depicted the US President, panelists said last night at a
discussion held at the Kimmel Center.

The event, titled "Free Speech and the Bush Cartoons," displayed
easels with blank panels instead of the cartoons after NYU demanded
that the cartoons be removed from display if the public was admitted....

"Realistically, one can have a discussion on smallpox without actually
handing out the the live virus to the audience," university spokesman
John Beckman said. "Any institution has a responsibility that events on
its grounds go smoothly and without disruption."

The panelists expressed concern that all American publications, with
the exception of three, were unwilling to reprint the Bush cartoons....

Bostom said it is healthy to question a politicians, and Republicans should be
able to handle the publication of cartoons that parody them.

"The cartoons were a healthy dose of direct criticism [toward conservatives]," Bostom said.

Schwartz said fear was behind the media's motivation not to reprint the images.

"The New York Times claims not to run the pictures because of the
matter of taste," Schwartz said. "But, in fact, everyone knows they're
perfectly willing to offend people who they don't fear will have the NSA wiretap them."

NYU's decision to bar the public from seeing the cartoons illustrated
an apprehension towards free speech, and its actions were chilling and
absurd, Lukianoff said.

"If you want to talk about an image, you might want to show them," said
Lukianoff, who later pointed behind him at the blank easels and yelled,
"This is censorship!"

Lukianoff said people easily feel harassed by ideas contrary to their own.

"Nobody has a right not to be offended," Lukianoff said.

Midway through the discussion, Republican students who had gathered outside
to protest, unfurled a white banner with red letters that said,
"Freedom of Speech Does Not Equal Freedom to Hate."

Leaf said it is unhealthy for the academic community to avoid discussing sensitive issues.

"Part of being in a modern world and part of being in a university
means being able to talk about these subjects seriously," Leaf said.

People are afraid to talk and publish the cartoons, and we shouldn't
have to worry about dancing around sensitive issues, Leaf said.

During the discussion, Schwartz criticized conservatism, saying
that it forces its followers to imprison themselves in dogmatic
traditions.

"The philosophy I subscribe to is objectivism, which believes reason is man's only knowledge," he said.

Schwartz said that the violent uprisings were motivated by partisanship and not reason.

"Partisanship is blind obedience in rejection of reason," Schwartz said. "If
you base your arguments on partisanship, then it leaves no room for your
argument. It leaves you with no other option but force."

Schwartz said the attacks were not just in defense of Conservatism. 

"This is an attack on the free, rational mind," he said.

CAS junior James Ferguson said it was unfair that so much time was spent on attacking conservatism.

"To demonize a political party is not going to help anything," Ferguson said.
"When did free speech turn into a hateful generalization of conservatism?"

CAS junior Muniba Hassan said the panel will provoke hatred of conservatives,
which has caused many of her Republican friends to be afraid to walk home
at night.

"They used free speech as a way to hide their partisan agenda," Hassan said.

OK, I may have substituted a few words to make a point about the bankruptcy of NYU's censorship, and the double standards they hold since they clearly would not have made the same decision with the alternate facts I have inserted.  Real article here.  Here is a hint to prospective college students:  Distrust any college whose administrators equate exercising first amendment rights to spreading a deadly virus.  More here at FIRE, which continues to do great work.

PS-  If you have not seen the Danish cartoons, spend 10 seconds clicking here.  You will not believe how bland they are.

I must say I was not at all surprised that the Solomon amendment (requiring private universities that accept federal funds to also accept military recruiters) was upheld by the Supreme Court.  I predicted months ago that the left had made its bed on this issue with its strong support of Title IX.

Various law school faculties argued in the case that the Solomon Amendment unconstitutionally violated their rights to freedom of association (by taking away their choice of who can and cannot recruit on campus) and of speech (by forcing the university to support speech, such as military recruiting pitches, that it does not agree with).  I must say that I am both sympathetic and unsympathetic to their argument.  Sympathetic, because there are in fact free speech and association issues here.  The majority opinion notwithstanding, its impossible to make a razor-sharp distinction between prohibitions on "conduct" and prohibitions on expression.  I can't accept Robert's blanket statement that "unlike a parade organizer's choice of parade contingents, a law
school's decision to allow recruiters on campus is not inherently
expressive."  What if, say, Al Qaeda wants to set up a booth?  My accepting their booth would sure as hell be a form of expression, one that I am sure the Right would blast me for. 

I do understand that there is money involved, and the fatuous answer is that "well, they can just turn down federal funds."  Bullshit.  Like it or not (and I don't) the feds have made themselves so ubiquitous, particularly in certain research areas where they have crowded out all private funding, that it is unrealistic to tell them to take a hike.  Though I must say that it is interesting to see the left, which built this huge federal machine, hoist on their own petard.  Besides, the majority opinion said that the funding tie-in was not necessary to pass constitutional muster -- that the government had the power to just straight out compel private universities to accept military recruiters.

However, mostly I am unsympathetic.  Why?  Because these very same ivy league and faculty intellectuals have felt free in the past to step all over the free speech and association rights of the rest of us in similar ways.  As George Will asked in recent column, it would be fascinating to see what percentage of these same people who brought this suit in turn vehemently support, say, McCain-Feingold?  Or, public funding of election campaigns. 

As a business person, this ship sailed years ago.  Freedom of association no longer applies to business people.  The reason?  Well, freedom of association implies the reverse right of not associating with anyone you choose.  But there are phone-book-sized bodies of legislation today with detailed regulations telling me all the people and circumstances in which I cannot choose whom I associate with, or don't associate with (via employment decisions, for example).  For example, my business employs RV'ers who live full-time on the road and form a large transient labor force.  I have tons of applications every year from Canadian and Mexican citizens who would like to work for me, but I cannot hire them.  On the other side of the coin, I have had to actually go to court from time to time to justify why I chose not to hire or to fire someone who is a woman, or older, or handicapped.

And forced speech with which I don't agree?  My company has to, by law, maintain bulletin boards full of posters, messages, statements, etc. that I don't necessarily agree with but are legally required to post on my property as communication to workers.  And these bulletin boards have to be made a bit larger every year.  I don't have to accept any federal money to be absolutely required, at the penalty of heavy fines, to post these communications.

I would be a bit more enthusiastic in my support for these law faculty if I didn't suspect that they have been the very people out in the forefront of trashing my first amendment rights as a business person.

Postscript: By the way, is this even a problem anyway?  At Harvard Business School, the largest recruiters eschewed campus altogether, and conducted all their interviews at offsite hotels.  I would think the military could pretty easily work around these law schools prohibitions. 

Over the past few days, I have posted a lot on first and fourth amendment issues, from wiretaps and detentions to free speech to prosecutorial abuses.  It turns out I could have saved my self a lot of time and just linked this great interview with former Judge Andrew Napolitano.

We are in a fit of
constitutional chaos when the government views constitutional guarantees as
discretionary. As Americans, we order our lives on the belief that we have
extraordinary freedoms. We believe those freedoms don't come from the
government. They come from our humanity. The government doesn't give freedom; the government
under the Constitution is restrained from interfering with it. I can
basically say whatever I want about the government. I can basically travel
wherever I want to go. I can basically worship however I see fit. If the
government comes to the view that those freedoms are discretionary, no matter
how noble the stated [reason to restrict them] may be, then we're in a state of
constitutional chaos. We will not be able to order our lives based on freedom.
We won't know who will be prosecuted or who'll just be swept away.

On the Patriot Act:

Let's put aside all of
the procedural problems with enacting it. Forget about the fact that there was
no debate. Forget about the fact that most members of Congress didn't even have
an opportunity to read it. It is a direct assault on at least three amendments
to the Constitution: the First Amendment, the Fourth Amendment, and the Fifth
Amendment. The PATRIOT Act legitimates the notion that if we
give up certain freedoms, the government will keep us safer. I reject that
notion from a moral and legal point of view. I also reject it from a practical
point of view. It doesn't work. The government doesn't need our freedoms to
keep us safer. No one"”no lawyer, judge, or historian"”can point to a single
incident in American history where national security was impaired because
someone insisted on their right to free speech or their right to privacy or
their right to due process.

The PATRIOT Act encourages what the
government calls "national security letters""”basically, self-written search
warrants. It violates the Fourth Amendment, which prohibits self-written search
warrants. The PATRIOT Act and two of its predecessors, the Foreign
Intelligence Security Act of 1977 [FISA] and the Electronic
Privacy Act of 1986, authorized the government to obtain search warrants by
bypassing [longstanding tradition in] the courts. Today an FBI agent investigating a
person need only satisfy her or himself that the person under investigation is
a threat to national security. The agent doesn't have to demonstrate evidence
to a judge

On the regulatory state:

[The FDR era] began, in my view,
the dark part of American history where the federal government believed that it
could solve any problem that was national in scope, irrespective of whether it
was a federal problem. A federal problem is one arising
under the 18 specific enumerated powers given to the federal government under
the Constitution. A national problem is something
that exists in New Jersey and California and Texas and Illinois. But just
because it's national doesn't mean it's federal and therefore can be addressed
by the federal government....

In terms of the
government control of our lives, in terms of the percentage of our income that
the government takes from us, in terms of the types and the areas of human
behavior we let the government regulate, we are infinitely less free. And as
Jefferson once said, it is in the natural order of things that the government
should be greater and human
liberty lesser.

Women have
much more freedom. African Americans have much more freedom. Gays have much
more freedom. The discrimination that was rampant, and often caused by the
government, 40 or 50 or 60 years ago"”there's been progress in those areas. But
the destruction of federalism, the centralization of power in Washington, the
belief that Washington can regulate all aspects of our lives will, if not
checked, lead us to a totalitarian form of government. Freedom is the power and
ability to obey your own free will and conscience rather than the free wills
and consciences of others.

The interview also has a very useful short summary of the history of FISA and the Patriot act, and demonstrates how the incremental assaults on the fourth amendment have added up.  I encourage you to read it all.  In addition to this interview, Reason also had a good debate on the Patriot Act here.

If this post had a subtitle, it would be "give 'em enough rope to hang themselves with."  This week has brought one of those perfect examples of why free speech is important, and why it is especially important to let even stupid and evil people voice their opinions.  In what, incredibly, represents a moderation of the response to the Danish cartoons by Muslims (at least vs. shooting priests):

Iran's best-selling newspaper has launched a competition to find the
best cartoon about the Holocaust in retaliation for the publication in
many European countries of caricatures of the Prophet Mohammad....

The
daily paper Hamshahri said the contest was designed to test the
boundaries of free speech -- the reason given by many European
newspapers for publishing the cartoons of the Prophet.

"A serious
question for Muslims ... is this: 'does Western free speech allow
working on issues like America and Israel's crimes or an incident like
the Holocaust or is this freedom of speech only good for insulting the
holy values of divine religions?'" the paper said on Tuesday.

Why would anyone want to stop them from doing this?  It will be thoroughly educational to see who steps up and declares their position on this.  Whenever people want to ban hate speech, I always try to point out that Hitler was telling everyone in the 1920's just what he wanted to accomplish, if only anyone really listened.  Hateful screwed-up people need to be put on the record with their most egregious work.  Censoring them only tends to moderate the public view of them and disguise the true dangers they may pose.  In fact,it is sometimes the case that when the media refuses to publish the most hateful or violent of speech, they are actually doing so because they have sympathy for the speaker, whose public image they are concerned about tarnishing, rather than just protecting the sensitivities of the speaker's targeted victims.

...And boy were they a letdown!  Hell, I have had members of my own immediate family portrayed far worse than this in political cartoons.  I have just about lost all patience with those who try to "understand" and "explain" and "sympothize" with the violence that has erupted, ostensibly due to the publication of these cartoons.  There is no excuse for the recent violence, and I am tired of tiptoeing around the sensibilities of Muslims who are quick in their own turn to denounce anything Western in the most inflammatory and grotesque of terms. 

I am particularly flabbergasted that those who lead the charge to soften the criticism of Muslim violence are the same people who are most flipped out about the influence of fundamentalist Christians in this country.  I'm not particularly thrilled with the legislation that some of the Christian right tends to propose, but my God even the often egregious Pat Robertson is a bastion of secular reasonableness when compared to many Middle Eastern Muslim leaders.

Anyway, the controversy may at least serve some purpose, in forcing Western media to confront its own double standards in criticizing or not criticizing religions  (as a note, let me make clear that I am for having an open season on anyone believing anything, as long as one has his facts straight).

Jeff Goldstein is always a good read, particularly on this topic:

even now
you have Kos commenters contorting themselves
into positions of self-righteous progressive onanism that are a wonder
to behold"”suddenly, free speech is not a universal right worthy of the
crafting of puppet heads and the defacing of Starbucks' windows, but
instead is a culture-specific gift that needs to be filtered through
the religious precepts of the culture of the Other.  Unless, of course,
that "Other" happens to be, say, Evangelical Christians.  In which
case, such extremists MUST BE SHOUTED DOWN with free speech.

Pretzel logic, clearly"”and the dilemma that is at the root of an
incoherent philosophical system that favors the sociology of group
identity over the universality of individual rights.  Ironically,
George Bush, each time he argues that freedom is universal, is acting
in a manner far more progressive than self-styled progressive
activists.

Again:  note the crux of the debate, as framed by the voices for
Muslim protest, and take care to listen for the broad-stroked
rhetoric"”usually this kinds of gambit is more carefully crafted by
those who have, through years of experience, perfected its vocabulary,
cadence, emotional appeals, and key words"”of the "tolerance" movement,
the justifying force that cynically underpins all identity politics:

"The
12 cartoons ... have caused an uproar in the Muslim world and drawn a
new cultural battle over freedom of speech and respect of religions."

Translation:
"Free speech is good so long as it tolerates our right, as an identity
group, to dictate which free speech is authentic and allowable.
Otherwise, y'know, we get to torch shit."

But of course, freedom of speech"”reduced (for purposes of this
debate) to its core, animating mandate and protection"”is PRECISELY the
ability to look religion in its pious face and flip it the bird.
Freedom of speech includes the freedom to criticize religion, just as
freedom of religion is supposed to protect the rights of the religious
not to have their religion established for them by a government"”a
counterbalancing right that is lacking in theocratic states and in
religions where pluralism is denied legitimacy.

Nearly every day brings new evidence of what a threat to free speech campaign finance "reform" laws have become.  I found this bit from Brian Anderson very depressing, but not surprising:

Consider what's going on in Washington State as an early warning.
Early in 2005, the Democrat-controlled legislature passed"”and
Democratic governor Christine Gregoire signed"”a bill boosting the
state's gasoline tax a whopping 9.5 cents per gallon over the next four
years, supposedly to fund transportation projects. Thinking that their
taxes were already plenty high... some citizens organized an initiative campaign,
as Washington law allows, to junk the new levy: No New Gas Tax.

Two popular conservative talk radio hosts, Kirby Wilbur and John
Carlson, explained why the gas tax was bad news and urged listeners to
sign the 225,000 petitions necessary to get the rollback initiative on
the November ballot, though they played no official role in the
campaign and regularly featured on their shows defenders as well as
opponents of the tax hike. With the hosts' help, the petition drive got
almost twice the needed signatures, but the ballot initiative, strongly
opposed by labor unions, the state's liberal media, environmental
groups, and other powerful interests, narrowly lost.

Meantime, however, a group of pro-tax politicians sued No New Gas
Tax, arguing that Wilbur's and Carlson's on-air commentaries were
"in-kind contributions" and that the anti-tax campaign had failed to
report them to the proper state authorities. The suit sought to stop
NNGT from accepting any more of these "contributions" until it
disclosed their worth"”though how the initiative's organizers could
control media discussions or calculate their monetary value remained
unclear. The complaint also socked NNGT with civil penalties,
attorneys' fees and costs, and other damages...

The real target of the suit was clearly Wilbur and Carlson, or, more
accurately, their corporate employer, Fisher Communications. If NNGT received the "contributions," that meant Fisher had sent
them by broadcasting Wilbur's and Carlson's support for the initiative.
Washington law limits contributions in the last three weeks of a
political campaign to $5,000. Depending on how one measured the dollar
worth of on-air "contributions," Fisher could thus face big fines and
criminal sanctions if it let Wilbur and Carlson keep talking about the
gas tax. "Thankfully, Fisher assured us that we could keep
talking about the subject on the air, and we did," Wilbur says. The
judge ruled in favor of the pro-tax pols, though he finessed the $5,000
limitation problem by ruling only on the "contributions" that occurred
prior to the campaign's last three weeks.

I find this offensive.  And expect similar "in-kind" donation logic to be coming to a blog near you.  And while Democrats may short-sightedly cheer as long as this logic is applied against conservative talk radio, this "in-kind" logic is a Pandora's Box that will be very hard to close.  For example, lets say my wife's reading club organizes 200 women to go out to a 3-hour rally to support Hillary Clinton.  In doing so, the club just mobilized 600 "man"-hours for Ms. Clinton, which at $10 an hour, which is a low value for a professional person's time, is worth $6000.  Have they violated the law?  Or, lets say a lawyer who normally bills $300 an hour spends all day Saturday and Sunday marching in a rally for George Bush.  Is he over the limit?

We are in the absolutely terrifying and historically unprecedented position of having had Congress pass a law that no citizen (except a few media people and a few government licensed political groups) can criticize a member of Congress by name within 60 days of an election.  And the Supreme Court signed off on this travesty!

I think that that FIRE, the Foundation for Individual Rights in Education, does a really nice job defending speech across the political spectrum on campuses.  I was struck in particular by this post on their blog, about Worcester Polytechnic Institute, a private university in Massachusetts.   Speech rights at private institutions (such as on the job) are often an area where "civil rights" groups trip over themselves.

I thought FIRE did a nice job with its WPI analysis:

as a private institution, WPI is not bound by the U.S. Constitution, and WPI
takes full advantage of that by stripping its students of their First Amendment
rights. WPI doesn't try to hide this fact, either. Unlike many private
universities, its website makes no promises that students will have the
constitutional rights that they enjoy in society at large. Moreover, it prominently
advertises that "[s]tudents enter WPI voluntarily"¦If they do not like some
of the rules, regulations, traditions, and policies of WPI, they do not have to
enter," and
that "membership in this particular academic community is freely sought and
freely granted by and to its members, and"¦within this membership group certain
specific behaviors that may be accepted by society in general cannot be accepted
within an academic community without hindering the explicit goals of that
academic community." 

 

As a private institution, Worcester is acting within its rights: it
advertises its repression and censorship right up front.  WPI doesn't promise
you free speech, and you won't get it. That's why FIRE doesn't rate WPI a "red
light""” when a private university states clearly and consistently that it holds
a certain set of values above a commitment to freedom of speech, FIRE does not
rate that university. But we still think you should know what to expect when you
get there.

Good for FIRE.  It achnowleges that WPI as a private institution has the right to set its own rules and terms and conditions, as long as those are clear up front.  FIRE doesn't like these rules (I don't particularly either) but it limits itself to speaking out against them, rather than filing legal actions as it might in the case of public universities which, by law and by court precedent, can't place artifical limits on first ammendment rights.

Last week I wrote here and here about free speech and the defeat of the bill to protect such speech online.  Matt Welch has more, and wonders as I did why Democrats, who applaud themselves for their staunch support of free speech, have suddenly abandoned the cause:

I was reminded of that neat bit of self-delusion yesterday when reading news
that House Democrats had followed The New York Times' odious
advice to kill
the Online
Freedom of Speech Act, which would have exempted weblogs from Federal
Election Commission campaign finance rules. Once again, the party supported by
people who truly do believe they and they alone care deeply about free speech
has casually stomped on the freedom to speak.

The bill itself would have placed an extra layer of statutory protection over
what should already be (but isn't) protected by the First Amendment"”the right to
buy political advertisements online. As the mess of appalling FEC rules
currently stand, nobody can
legally purchase a broadcast, satellite, or cable advertisement that even
mentions a candidate for federal office within 60 days of a general election (30
days for a primary), unless he or she sets up or joins a political action
committee (PAC) and agrees to abide by the heavy regulations that govern PACs'
funding and disclosure....

I am a friend of free speech, they assure us at every turn, but we
need to draw lines, because when yucky people spend money to communicate a
political message through the news media, it's just like child pornography,
reckless endangerment, and intellectual property theft. Combine this attitude
with a general cluelessness about the unintended speech-impairing
consequences of FEC rule-making, and you get the obscene sight of the New
York Times editorial board, which bathed itself and Judith Miller in the holy
waters of the First Amendment in 15
different editorials, arguing with a straight face that "The bill uses
freedom of speech as a fig leaf."

While I took some shots at the NY Times myself, observing that they seem to be just like every other business facing a new source of competition:  They are running to the government to get the state to quash the upstarts.  However, I missed the wonderful irony that Welch found.  Consider the First Amendment:

Congress shall make no law respecting an establishment of religion, or
prohibiting the free exercise thereof; or abridging the freedom of
speech, or of the press; or the right of the people peaceably to
assemble, and to petition the government for a redress of grievances.

It is indeed amazing that the NY Times believes that these words protect them from cooperating with a criminal investigation and allow them to ignore subpoenas, but believes that these same words do NOT protect political speech on the Internet. 

Extra credit work for those who support campaign finance limitations:  Find the clause in the First Amendment language above the differentiates between speech that was paid for and speech that was not paid for.

I suppose a large number of Americans must support the free speech restrictions embodied in McCain-Feingold and other campaign finance laws, or they wouldn't have passed.  The logic of such laws is apparently to reduce the influence of "big-monied interests" in elections, I suppose by being able to saturate media with their point of view.

So here is my question - have you ever met anyone (other than John Kerry with his Iraq vote) who thought that they had been duped or unduly influenced by election advertising?  Have you met anyone who says "yep, I voted for the guy with the most ads instead of what I believed in?"

The fact is that I have never met such a person, even among those who support campaign speech restrictions.  Their position is always that they are of course too smart to be gulled by the ads but "a lot of other people are not as smart".  But who are these other people?  They are like the friend of a friend who swears his grandmother put her cat in the microwave to dry it off.  They don't exist.  The fact is that no one thinks that they personally are unduly influenced by campaign ads, but they think everyone else is. 

Here is a rule of thumb:  When supporters of a law take the position that "This law is not necessary for me but for all those people who are not as smart as I am", it is a bad law.

I think maybe its time for me to stop reading the news.  What else can a good libertarian do when Republicans oppose free trade, support government intervention in the economy, and spend tax money like drunken sailors while Democrats vote for new restrictions on free speech?

The latter occurred yesterday, as the House failed to get the 2/3 majority necessary to pass the Online Freedom of Speech Act, mostly on the strength on opposition from Democrats (you know, those principled supporters of civil liberties).  Politicians have again shown themselves ready to trash the Constitution in order to limit the speech of those potentially critical to themselves.  Apparently, there is reason to hope, since bill sponsors are trying to bring the bill to the floor in a more routine process that would require only a majority vote for passage (which the bill appears to be able to garner).

My only problem with this initiative is that it falls far short of the mark of protecting all Americans.  Right now, only the major media outlets have full free-speech rights in an election.  This bill would extend free speech to the Internet.  Here's an idea:  Why don't we give everyone back their first amendment rights, as I wrote here:

These past few weeks, we have been debating whether this media
exemption from speech restrictions should be extended to bloggers.  At
first, I was in favor.  Then I was torn.
Now, I am pissed.  The more I think of it, it is insane that we are
creating a 2-tiered system of first amendment rights at all, and I
really don't care any more who is in which tier.  Given the wording of
the Constitution, how do I decide who gets speech and who doesn't - it
sounds like everyone is supposed to:

Congress shall make no law respecting an establishment of religion, or
prohibiting the free exercise thereof; or abridging the freedom of
speech, or of the press; or the right of the people peaceably to
assemble, and to petition the government for a redress of grievances.

I
have come to the conclusion that arguing over who gets the media
exemption is like arguing about whether a Native American in 1960's
Alabama should use the white or the colored-only bathroom:  It is an
obscene discussion and is missing the whole point, that the facilities
shouldn't be segregated in the first place.

By the way, I don't want to ever hear from the NY Times again about some company that is being monopolistic.  The NY Times has opposed the Online Free Speech Initiative from the very beginning in a transparent attempt to quash a competitive media that is stealing readers from it at a very fast clip.  I'm sure they hate having this type stuff on the Internet.  And this is the same NY Times that was one of the very few supporters of the Kelo decision because they were in the midst of getting a new HQ via an eminent domain landgrab.  Reason number 635 I don't agree with giving the press more rights than the rest of us have.

I have written a number of times about the broader implications of a privacy right embodied in decisions like Roe v. Wade.  In particular, I have wondered how such a right can cover abortion decisions, but not a range of other individual decisions.  I make this argument not as someone who wants to use regulatory precedent to ban abortions, but just the opposite:  I would like to see the privacy right in Roe v. Wade broadened to invalidate more areas of government intervention in individual lives.  I have discussed the conundrum that liberals face in defending this privacy right while opposing privacy rights in other areas of individual decision making (here and here).

Well, I did something last night I should have done long ago, and I bet very few others have actually done:  I read in its entirety, including supporting and dissenting opinions.  Five years ago, I would have been cowed into silence on commenting in detail on such decisions by the legal intelligentsia, who will likely insist that as a private citizen I am not trained or experienced enough to understand what's really going on in these opinions.  To which I say today:  Take a hike.  The US Constitution is successful, and the European one is not, in no small part because the US Constitution fits on the back of a cereal box (rather than being 9000 pages long) and is accessible to every American. 

Anyway, reading Roe v. Wade, I was struck most by just how much careful tightrope walking the majority opinion goes through to avoid just the dilemma I mentioned above: How to grant an unlimited, unassailable right to an abortion (at least in the first trimester) with no possibility of state intervention without at the same time invalidating half the regulatory structure of the US Government, from the FDA to the DEA to the NHTSA.  In the rest of this post, I will discuss the basis the Justices claim for this distinction, which I found to be uncompelling.

The first, most interesting observation for me was that none of the judges, either in the decision or the dissent, were willing to grant a strong and/or broad privacy right.  The majority opinion uses the interesting term "zones of privacy", which immediately set off alarm bells for me since the term is so similar to the "free speech zones" term I find repugnant (the whole country should be a free speech zone, not little patches of ground with ropes around them).  Apparently, these "privacy zones" fairly narrowly include marriage, sex and procreation, children's education and pregnancy.  I can't think of any compelling reason that those decisions and interactions between two adults should be "private" while eating, smoking, taking drugs and medications, getting breast implants, negotiating a wage, wearing a seat belt, using a tanning booth, getting a tattoo, or using a motorcycle helmet are not "private". 

The key phrase the Justices use is "compelling state interest".  What I find fascinating in this decision, and really I guess in most recent Supreme Court Jurisprudence, is that that somehow the 9th amendment, which retained to the people all powers and rights not specifically enumerated for the government, has gained this modifier.  Effectively the 9th amendment has been rewritten "The enumeration in the Constitution, of certain rights,
shall not be construed to deny or disparage others retained by the
people, unless some random politician can demonstrate a compelling state interest and then the government can do whatever the hell it wants".   

Rehnquist actually notes something similar in his dissent:

If the Court means by the term "privacy" no more than that the claim of
a person to be free from unwanted state regulation of consensual
transactions may be a form of "liberty" protected by the Fourteenth
Amendment, there is no doubt that similar claims have been upheld in
our earlier decisions on the basis of that liberty. I agree with the
statement of MR. JUSTICE STEWART in his concurring opinion that the
"liberty," against deprivation of which without due process the
Fourteenth
[410
U.S. 113, 173]

Amendment protects, embraces more than the rights found in the
Bill of Rights. But that liberty is not guaranteed absolutely against
deprivation, only against deprivation without due process of law. The
test traditionally applied in the area of social and economic
legislation is whether or not a law such as that challenged has a
rational relation to a valid state objective.

In some strange way, the Fourteenth Amendment, which was originally meant to add increased protection to citizens, has been turned around to justify government interventionism, just as long as some sort of "due process" has been followed.  Rather than buttress the 9th amendment, this modern interpretation of the 14th seems to gut the 9th amendment.

Just what is "a compelling state interest"?  Could there possibly be a more amorphous term, abusable term?  More importantly, who defines
it?  Remember that whoever gets to define compelling state interest becomes our de
facto ruler.  I think there is a really good reason that the framers of the Constitution did now write that "the government has all powers that there is a compelling state interest to have".  This line would have made the document a license for totalitarianism, but for some reason, our courts have basically rewritten the Constitution to read just this way. The only thing stopping us from being a totalitarian state today are judges that are willing to read "compelling state interest" narrowly.  And these judges just slow the process of creeping statism.  It only takes one decision, like Kelo, to expand the definition of state interest, and all case law afterward seem to follow this expanded view of government.  This statism is like entropy or time, a process that only proceeds in one direction, towards expansion of government power, never to its narrowing.  The Left in particular has gotten good at using the Stare Decisis concept to try to disallow revisiting any decision that expanded the scope of government (Roe v. Wade interestingly again being the one exception, since it is a limitation rather than expansion of state power).

This reading of the 9th and 14th amendment, and this concept of "valid state interest" appear to stem out of the Lochner case, which will be my next reading project.  I will try to report back next week.  However, even without reading this case, I will say that I have no patience for legal scholars who say that some bad outcome came from this case, which was based on a precedent in this case, which came out of that case, etc.  Have you ever taken a document, and copied it, and then made a copy of the copy, and then a copy of that copy, etc. for 20 or so generations?  On the 20th or so generation copy you will find spots and lines and such that were not in the original, but just appeared and then strengthened over time through generations of copying. In some cases, the original writing may be illegible. Sometimes, you have to ignore all the copying and go back to the original.  This is my position as an ordinary citizen on Supreme Court cases - at some point I get exasperated by these government powers that appear and evolve over time through generations of court cases - I just want to go back to the original (ie the Constitution) and point out that those powers are not supposed to be there.

However, you I hope see the quandary in which all this leaves abortion supporters on the left.  Much of their philosophy and political agenda rests on this notion of "a compelling state interest" in nearly every facet of human endeavor.  The left pushes constantly for expansion of government regulation into every corner of our lives.  They are trying to walk a line, a line so narrow I don't think it even exists, between there being no state interest in 16 year old girls getting abortions without their parents' knowledge or consent and there being a strong state interest in breast implants, painkillers, seat belt use, bike helmets, tobacco use, fatty foods, etc.  They somehow have to make the case that that a woman is fully able to make decisions about an abortion but is not able to make decisions, without significant government regulation and intervention, about her retirement savings, the wages she accepts for her work, her use of a tanning booth, and her choice of painkillers. I personally think she can handle all these, and more.

As a final note, it is more clear to me why abortion supporters fear a re-hearing of Roe v. Wade by the Court.  I must say that before reading the decision, I was taken in by their public comments that their fear was of conservatives reversing the decision on ideological grounds.  Having read the decision, though, their fear must be more fundamental:  Roe v. Wade in some sense stands athwart the inexorable march of government interventionism that the left generally applauds.  As such, a rehearing, however the case is decided, could only be a setback for the left:  Either Roe v. Wade is overturned, and the left is hoist on its own petard of creeping government intrusiveness, or Roe v. Wade is confirmed, and in fact is used as a precedent to strengthen the privacy right and thus provide a basis for overturning other statist regulatory infrastructure.  I am rooting for the latter.

Several times on this blog I have found myself defending "hate speech".  Not because I agreed with it, but because I am deeply concerned that the effort to label certain speech "hate speech" is part of a general campaign to limit first amendment rights.  If speech limiters are successful in establishing the principal that certain speech is so bad that it is not protected by the first amendment, then we are suddenly at the mercy of whoever is in charge of defining "bad" for our speech rights.  Universities, ironically at the forefront of the "free speech" movement of the 60's, have been at the forefront of "hostile environment" limitations on speech in this decade.

There are many such examples.  The group FIRE, which fights speech limitations on campus, has a blog and a university rating system that is a great resource.  One recent example from their files is of Mr. J. Daniel at William Patterson University in New Jersey.  A couple of facts first, and then a fantastic letter in his defense from Rutgers professor Norman Levitt.  The background:

Mr. Daniel was one addressee of a mass mailing from Prof. Scala publicizing a
film she was about to show, a documentary that presented a positive view of
lesbian relationships. Mr. Daniel, who espouses religious doctrines deploring
homosexuality, responded with a request not to be sent similar notices in the
future, along with a few brief sentences summarizing his general views. It is
notable that he did not threaten Prof. Scala directly or by implication, nor did
he deny her right to show the film. He did not publicize the exchange. He did
not use the incident to launch a campaign of ridicule or vilification against
homosexuals or anyone else. He merely counterposed his ideas to those she was
presumably promoting, in a purely private way and in response to an unsolicited
message directed to him.

What Prof. Scala actually did was engage her university president in a joint effort to censor and punish Mr. Daniel.  I have read Mr. Daniel's comments, which I don't happen to agree with.  However, the response he got to his very reasonable actions is very scary.  Prof. Levitt describes the rest:

Prof. Scala, however, seems to regard disagreement with her position as a
punishable offense. In this respect, she has embraced peculiar dogmas that have
become all too prevalent on campuses throughout the nation. These hold that
there are certain groups who, by reason of a presumed history of oppression, are
to be safeguarded from opinions that they find distressing or uncomfortable. The
rights of others to hold, or at least to express, such dissonant views are
supposedly nullified by the new-minted "right" of the protected groups to be
shielded from discomfort and distress. Both the ethic of free speech and the
constitutional guarantees that bolster it are supposedly trumped by the duty to
shield the tender sensibilities of the officially recognized victim class. If,
by chance, someone utters a sentence or two, even in the context of private
discussion, that affronts these sensibilities, terms like "harassment" and
"hostile environment" are immediately trotted out to justify retribution against
the offending speaker. In short, the assumption is that colleges and
universities have both the right and the positive duty to require students,
faculty, and employees to uphold official doctrine on these matters, if only by
silencing themselves if they happen to disagree.

Wow, I wish I could write like that.  There is much more, all on point and very well written here.

The NJ Attorney General has chimed in and said... wait for it ... that Ms. Scala is entirely in the right and that Mr. Daniel is probably guilty of harassment and discrimination under NJ law as well for expressing his opinions.

By the way, if you think that Professor Levitt was exaggerating for saying that speech is condemned merely if it hurts the feelings of someone in a protected group, here is a very typical quote from a college speech code (I just grabbed the first one I found on the FIRE site):

The Albertson College
Student Handbook's harassment policy states that "[a]ny comments or conduct
relating to a person's race, gender, religion, disability, age or ethnic
background that fail to respect the dignity and feelings of the individual are
unacceptable." The Handbook also provides that "[a]ll inappropriate behaviors
may not be specifically covered in the misconduct definitions, and students will
be held accountable for behaviors considered inconsistent with the standards and
expectations described in this handbook."

Just to prove this is not an aberration, here is another:

The Rhodes College Policy on Discrimination and Harassment states
that "[f]reedom of expression does not include the right to intentionally and
maliciously aggravate, intimidate, ridicule or humiliate another person." Now,
we at FIRE know that all too many university administrators believe this
statement to be true; this is apparent from the way speech codes are enforced on
campuses across the country. However, few colleges and universities are bold
enough to make an explicit statement about free expression that directly
contradicts U.S. Supreme Court precedent. The administrators of Rhodes College
need to read the Supreme Court's decision in , in which the Court upheld
Hustler's right to publish a parody suggesting that Jerry Falwell's first sexual
experience was a drunken tryst in an outhouse with his own mother. Parody and
satire"”which often intentionally and maliciously ridicule and humiliate their
targets"”enjoy the strongest constitutional protection.

Update:  By the way, here is the whole text of the email in question.  Don't agree with him, but I have a hard time seeing anyone threatened and certainly can't fathom kicking the guy out of school and threatening him with prosecution for it.  More evidence that the promotors of diversity don't actually want diversity.

I have argued several times in the past that banning "hate speech" has been an entry point for limitations on free speech on college campuses all over the country.  Now, it appears that the British Parliament may use it as an excuse to put restrictions on speech of all all their countrymen:

MPs gave the Racial and Religious Hatred Bill a third reading by 301 votes to 229, a majority of 72.

Shadow minister Dominic Grieve said the bill would not improve race relations.

But Minister Paul Goggins said: "I believe we need to
take on the hate mongers, whether they are terrorists or whether they
are extremists."

The bill would create a new offence of incitement to
religious hatred and would apply to comments made in public or in the
media, as well as through written material.
The plans, which have failed to make it through
Parliament twice before, cover words or behaviour intended or likely to
stir up religious hatred. Jews and Sikhs are already covered by
race-hate laws.

I can't think of anything more dangerous than placing any such restrictions on speech, especially when the standards against which speech will be judged are so ambiguous and open to interpretation.  As someone who often utters statements and supports concepts that many consider "extreme" (and here), it is very worrisome to see politicians attempting to ban "extreme" speech.

There are so many ironies in this I can hardly count them, but here is one:  The left typically are primary supporters of these prohibitions on hate speech.  Under the British law, half the management of organizations such as Planned Parenthood who often criticize the religious right and religious organizations could probably be heaved in jail.

Update:  Can't happen in the US? Check out this article on allowing native Hawaiians to secede.

Today, on the final day of their 2006 term, the Supreme Court ruled in the Olek vs. New London case:

Washington --  The Supreme Court on Thursday ruled that
local governments may seize people's advertising space -- even
against their will -- for alternate advertisers who promote economic development or higher taxes

It
was a decision fraught with huge implications for a country with many
areas, particularly the rapidly growing urban and suburban areas,
facing countervailing pressures of government budget deficits and free speech
rights.

The 5-4 ruling represented a defeat for some Connecticut
residents whose advertisements in the local paper against recent property tax hikes were rejected by the city council in favor of ads for several pro-taxation groups.

As a result, cities have wide power to replace advertising that might favor lower taxes or oppose certain community projects with messages more in the public interest.

Local officials, not federal judges, know best in
deciding whether speech will benefit the community,
justices said.

"The city has carefully formulated an economic
development that it believes will provide appreciable benefits to the
community, including -- but by no means limited to -- new jobs and
increased tax revenue," Justice John Paul Stevens wrote for the
majority.  "We established in Kelo that local governments have broad power to seize property when that seizure serves to maximize taxation, and certainly this applies equally well to unwanted advertising that might work against maximizing tax revenues."

He was joined by Justice Anthony Kennedy, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer.

At
issue was the scope of the Fifth Amendment, which allows governments to
take private property through eminent domain if the property is for "public
use."  The majority observed that using advertising space in favor, rather than against, public policy certainly qualified as "public use".

Fred Olek and several other homeowners in a
working-class neighborhood in New London, Connecticut, filed suit after
city officials announced plans to remove their newspaper advertisements opposing the upcoming ballot initiative to raise property taxes.

New London officials countered
that the tax initiative served a public purpose of boosting
economic growth that outweighed the homeowners' speech rights, even
if the area wasn't located in North Korea or Cuba.

Justice Sandra Day O'Connor, who has
been a key swing vote on many cases before the court, issued a stinging
dissent. She argued that "This makes me so mad, I could, I could... aw, forget it.  I'm retiring this year to a Pacific island anyway, so y'all are free to screw up this country as much as you want".

Justice Scalia wrote a separate dissent, making the argument that "I have no problem with government limitations on speech per se, but given the fact that 3 readers of this paper lived out of state, such powers per Raich reside with Federal and not local authorities"

Local authorities were careful to point out that Olek was fully compensated at market rates for the removed advertising.  Olek shot back that he was in no way compensated for his loss of free speech rights or participation in the democratic process.  Justices in the majority were unpersuaded by Olek's argument, however, pointing out that in Kelo, the homeowners were in no way compensated for their emotional attachment to their homes nor for their loss of the right to dispose of their property as they wished, "so there".

Via the AP wire:

The
House on Wednesday approved a constitutional amendment that would give
Congress the power to ban desecration of the American flag, a measure
that for the first time stands a chance of passing the Senate as well.

By a
286-130 vote - eight more than needed - House members approved the
amendment after a debate over whether such a ban would uphold or run
afoul of the Constitution's free-speech protections.

Approval
of two-thirds of the lawmakers present was required to send the bill on
to the Senate, where activists on both sides say it stands the best
chance of passage in years. If the amendment is approved in that
chamber by a two-thirds vote, it would then move to the states for
ratification.

Why is it there is so much obsession of late with freakin icons?  The Left gets bent out of shape that some books were mishandled in Cuba and the Right is back on its no flag-burning kick.  The US Flag is a piece of cloth, that has meaning to the extent that one respects what it stands for.  Legislating against burning flags will do nothing to increase respect for what the flag stands for, and in reality helps undermine those values.  No one who loves the US thinks less of our country when they see someone burning flag -- they think less of the flag-burners.

A hundred years ago, the Constitution was modified to allow income taxes, an amendment that was sold to the public as but a small, small exception to constitutional protections.  We see now what has been driven since through this small crack.  Lets not do the same with free speech - we cannot create an exception to our strong Constitutional protections of free speech.

The Online Coalition, put together to fight FEC restrictions to free speech rights as they apply to bloggers, has posted their official response to the FEC.  (hat tip:  Captains Quarters)

This is one of those efforts that leave me torn.  In effect, the rulemaking process is considering whether the media exemption in campaing finance laws should be extended to bloggers.  My point of view is that the media exemption should be extended to everyone.  That, 1) limits to money spent are the equivalent to limits on speech and 2) it is particularly insidious to create multiple classes of citizen, where one class of citizen (exempt media) have more political speech rights than others.

So, while I agree with their comments on blogging narrowly, I disagree when they make broader statements, like this one:

Finally, your rules should be informed by the regulatory purpose of the Federal Election Campaign Act. Your rule should address corruption, the appearance of corruption, the involvement of foreign nationals, or the use of the corporate or labor forms of organization and their "aggregations of wealth" in ways that drown out the views of others.

What does that last part I bolded mean?  Why is the Republican Party or one of George Soros's organizations proper aggregations of wealth for the political process but corporations and labor unions improper?

Anyway, campaign finance reform is one big hypocritical unconstitutional mess.  Let anyone give whatever they want to whomever with the only proviso of full disclosure over the Internet of all sources of funds.

Every Memorial Day, I am assaulted with various quotes from people thanking the military for fighting and dying for our right to vote.  I would bet that a depressing number of people in this country, when asked what their most important freedom was, or what made America great, would answer "the right to vote."

Now, don't get me wrong, the right to vote in a representative democracy is great and has proven a moderately effective (but not perfect) check on creeping statism.  A democracy, however, in and of itself can still be tyrannical.  After all, Hitler was voted into power in Germany, and without checks, majorities in a democracy would be free to vote away anything it wanted from the minority - their property, their liberty, even their life.   Even in the US, majorities vote to curtail the rights of minorities all the time, even when those minorities are not impinging on anyone else.  In the US today, 51% of the population have voted to take money and property of the other 49%.

In my mind, there are at least three founding principles of the United States that are far more important than the right to vote:

• The Rule of Law. For about 99% of human history, political power has been exercised at the unchecked capricious whim of a few individuals.  The great innovation of western countries like the US, and before it England and the Netherlands, has been to subjugate the power of individuals to the rule of law.  Criminal justice, adjudication of disputes, contracts, etc. all operate based on a set of laws known to all in advance.

Today the rule of law actually faces a number of threats in this country.  One of the most important aspects of the rule of law is that legality (and illegality) can be objectively determined in a repeatable
manner from written and well-understood rules.  Unfortunately, the massive regulatory and tax code structure in this country have created a set of rules that are subject to change and interpretation constantly at the whim of the regulatory body.  Every day, hundreds of people and companies find themselves facing penalties due to an arbitrary interpretation of obscure regulations (examples I have seen personally here).

• Sanctity and Protection of Individual Rights.  Laws, though, can be changed.  In a democracy, with a strong rule of law, we could still legally pass a law that said, say, that no one is allowed to criticize or hurt the feelings of a white person.  What prevents such laws from getting passed (except at major universities) is a protection of freedom of speech, or, more broadly, a recognition that individuals have certain rights that no law or vote may take away.  These rights are typically outlined in a Constitution, but are not worth the paper they are written on unless a society has the desire and will, not to mention the political processes in place, to protect these rights and make the Constitution real.

Today, even in the US, we do a pretty mixed job of protecting individual rights, strongly protecting some (like free speech) while letting others, such as property rights or freedom of association, slide.

• Government is our servant.  The central, really very new concept on which this country was founded is that an individual's rights do not flow from government, but are inherent to man.  That government in fact only makes sense to the extent that it is our servant in the defense of our rights, rather than as the vessel from which these rights grudgingly flow.

Statists of all stripes have tried to challenge this assumption over the last 100 years.   While their exact details have varied, every statist has tried to create some larger entity to which the individual should be subjugated:  the Proletariat, the common good, God, the master race.  They all hold in common that the government's job is to sacrifice one group to another.  A common approach among modern statists is to create a myriad of new non-rights to dilute and replace our fundamental rights as individuals.  These new non-rights, such as the "right" to health care, a job, education, or even recreation, for god sakes, are meaningless in a free society, as they can't exist unless one
person is harnessed involuntarily to provide them to another person.
These non-rights are the exact opposite of freedom, and in fact require
enslavement and sacrifice of one group to another.

Don't believe that this is what statists are working for? The other day I saw this quote from the increasingly insane Lou Dobbs (Did you ever suspect that Lou got pulled into a room a while back by some strange power broker as did Howard Beale in Network?):

Our population explosion not only detracts from our quality of life but threatens our liberties and freedom as well. As Cornell's Pimentel puts it, "Back when we had, say, 100 million people in the U.S., when I voted, I was one of 100 million people. Today, I am one of 285 million people, so my vote and impact decreases with the increase in the population." Pimentel adds, "So our freedoms also go down the drain."

What??

In a society with a rule of law protecting individual rights, how does having a diluted vote reduce your freedom?  The only way it does, and therefore what must be in the author's head, is if one looks at government as a statist tug of war, with various parties jockeying for a majority so they can plunder the minority.  But in this case, freedom and rule of law are already dead, so what does a dilution of vote matter?  He is arguing that dilution of political power reduces freedom -- this country was rightly founded on just the opposite notion, that freedom requires a dilution of political power.

At the end of the day, our freedoms in this country will only last so long as we as a nation continue to hold to the principle that our rights as individuals are our own, and the government's job is to protect them, not to ration them.  Without this common belief, all the other institutions we have discussed, from voting to the rule of law to the Constitution, can be subverted in time.

So to America's soldiers, thank you.  Thank you for protecting this fragile and historically unique notion that men and women own themselves and their lives.

Campus liberals rightly get a lot of heat for their attacks on free speech and expression at universities via speech codes and the like.  I have piled on a number of times.  However, the impulse restrict speech you don't agree with is not limited to liberals (though it may be more prevalent due to leftist control of most campuses).  Take this story via Volokh:

Vince Finaldi points me to the affidavit justifying the arrest of a student for asking a rude question at an Ann Coulter speech.  If the facts in the affidavit are accurate, then it looks like the student has an excellent First Amendment defense.

Basically, the student asked Ms. Coulter her opinion of a married man and woman engaging in sodomy.  Granted that he asked the question in a fairly profane manner, but he seems to have followed the Q&A rules by getting up, asking his question, and quietly waiting for the reply from his seat.  So why are the police hauling him away?

I could easily have chosen nearly any university in the country as the example for this post, but I will choose my alma mater Princeton. 

Like many universities, Princeton has a speech code.  Like many universities, Princeton's speech code is an affront to the First Amendment and an open license to selectively apply administrative punishments based on political beliefs.

The Princeton speech code says, in part:

Abusive or harassing behavior, verbal or physical, which demeans, intimidates, threatens, or injures another because of his or her personal characteristics or beliefs, is subject to University disciplinary sanctions...

And further defines sexual harassment as:

verbal or physical conduct [that] has the effect of unreasonably interfering with an individual's work, academic performance, or living conditions by creating an intimidating, hostile, or offensive environment.

This is the worst kind of arbitrary legislation.  In no part of the guidelines are any of these terms defined.  In fact, both as written and as practiced, the definition of these terms is left entirely up to the victim, with outrageous consequences.  Basically we have gotten to the point where hurting someones feelings, or even disagreeing with them, is a crime. 

This would be bad enough if enforced even-handedly, but in practice, speech codes become a tool of the University faculty and administration to squelch speech they don't agree with.  One of my pet peeves is the term "hate speech", which is used frequently in political diatribes by both the left and the right.  While this term may have at one point had some utility in narrowly describing the most extreme racism, today in its common usage it has come to mean "speech I don't agree with".  In a similar manner, campus speech codes are effectively enforced as banning speech that the ruling orthodoxy of the university does not agree with.  If a gay rights activist and a conservative Christian get into an
argument on campus and use similar invective against each other, you
can bet only one is probably going to get sanctioned.  And, given the typical politics of universities today, you can guess what speech is protected and what is sanctioned. 

Here is my rule of thumb:  unless speech meets the (narrow) definition of libel, no legally or
administratively actionable harm can be claimed as a result of it.  Or, as we were taught as kids, sticks and stones will break my bones but names will never hurt me.  In the adult world, this should translate to:  Physical assaults are actionable, verbal assaults are not. 

The Princeton Tory has a nice article on these policies, as well as the really bad idea to extend this to a "social honor code".  And, the Foundation for Individual Rights in Education (FIRE) is the leading defender of free speech on campus and has a great web site.

Postscript:  Speech limitations are a very slippery slope.  So much so that I have never encountered speech or expression by adults aimed at other adults that I would limit.  Nazis, communists, birchers, pornographers, racists, revolutionaries, militia, muslims, atheists:  Have at it.  Even Congressmen.  And even this.

Update:  One other thought.  I have never understood why so many people think that the right approach to people who have stupid, awful ideas is to keep them from being heard.  This applies not only to speech codes but the increasingly frequent attempts to ban speakers from campus or, if that is unsuccessful, drown their speech out with chants and interruptions.  Why?  I have always thought that Sunlight is the Best Disinfectant not just for government proceedings but for bad ideas as well.  Let them be heard and ridiculed.  After all, Hitler "called his shots" more than a decade before he began his horrible reign.  The world would have been better off if he had been listened to carefully in those early years.

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

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

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

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

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

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

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

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

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

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

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

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

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

Note that this has become, by accident, my growing post on the Canadian Sponsorship scandal.

The Right (justly) is criticized by the Left for interfering with First Amendment rights by trying to legislate morality in broadcast television. 

However, I find that most people who claim to be free speech supporters, well, aren't.  Here are a couple of examples.

First, the San Francisco Board of Supervisors, the very heart of the American left, is attempting to regulate political speech by licensing and regulating bloggers, (not to mention trying to reinvigorate the Fairness Doctrine).

OK, so if both the Left and Right are threatening free speech in GWB's Amerika, then I guess we need to run off to Canada.  However, now we get to watch Canada's ruling party suppressing reporting on its malfeasance, trying to hold off public disclosure long enough to call elections to keep their jobs.  Even Karl Rove might fear to try that.

UPDATE:  Captains Quarters reports that at least one Canadian web site that linked to their story on the Canada mess is being threatened with legal action by the Canadian government.  Here is the original story, with a description of what's going on.  Are you tired of Enron-like financial scandals where you have to take someone's word for it that illegal things are happening, because all the financial shenanigans are too complicated to understand?  Well, this will be a relief, because it is pretty easy to understand that this is bad:

The sponsorship program eventually became a huge slush fund into which over $250
million was poured, over $100 million of which was paid in fees and commissions
to these five advertising firms, with little or any evidence of work done or
value for money.

In exchange for these large contracts for little or no work, Brault kicked
back generously to the Liberal Party, putting Liberal organizers on his payroll
while they continued to perform party work (including, at one point, Prime
Minister Jean Chrétien's brother, Gaby Chrétien), paying invoices to other
companies for work actually done for the Liberal Party, and giving large
donations -- in cash -- to the Liberal Party through Renaud or Liberal Party
organizer (and close associate of Public Works Minister Alfonso Gagliano) Joe
Morselli.

Update #2:  Winds of Change has more detail about what is going on and the context of the Sponsorship program.  I remember a while back GWB rightly caught hell for using government funds to promote administration policies.  The sponorship program seems to have gone way beyond this:

An important note the Captain missed - the $250 million Sponsorship Program was
concentrated in Quebec, where it was used to undermine the separatist Bloc
Quebecois. I'll note for the record that I don't really have an issue with that
aspect of it, though the Bloc sure does; they're Canada's 3rd largest federal
party.

This scandal may well put the separatists in power in Quebec, leading to yet another separation test for Canada.  Its not clear to me how hard, if at all, the rest of the country would fight separation.

Update #3: More on Canadian (non)free speech here.

Update #4: San Francisco officials claim blogs are exempted and some of the quotes in the original article are suspect.  However, to be fair to the original author, there is nothing in writing that blogs are exempted from the regulation - only a verbal assurance.  When evaluating these verbal assurances, remember that when the nationa income tax was initially passed, the country was given the verbal assurance that the tax would never ever apply to more than then richest 1% of taxpayers.