Archive for the ‘Individual Rights’ Category.

Gawker Was Always Vile

Even before the current unpleasantness, Gawker was always vile.  Here is Adam Weinstein in Gawker arguing that people who disagree with him should be jailed.  Incredibly, Weinstein has been held up in certain quarters as a voice of moderation and reasonableness in the current Gawker brouhaha

Those [climate] denialists should face jail. They should face fines. They should face lawsuits from the classes of people whose lives and livelihoods are most threatened by denialist tactics...

'm talking about Rush and his multi-million-dollar ilk in the disinformation business. I'm talking about Americans for Prosperity and the businesses and billionaires who back its obfuscatory propaganda. I'm talking about public persons and organizations and corporations for whom denying a fundamental scientific fact is profitable, who encourage the acceleration of an anti-environment course of unregulated consumption and production that, frankly, will screw my son and your children and whatever progeny they manage to have.

Those malcontents must be punished and stopped.

Deniers will, of course, fuss and stomp and beat their breasts and claim this is persecution, this is a violation of free speech. Of course, they already say that now, when judges force them into doing penance for comparing climate scientists to child-rapist and denial poster-boy Jerry Sandusky.

But First Amendment rights have never been absolute. You still can't yell "fire" in a crowded theater. You shouldn't be able to yell "balderdash" at 10,883 scientific journal articles a year, all saying the same thing: This is a problem, and we should take some preparations for when it becomes a bigger problem.

Incredibly, he makes this plea while arguing that it is wrong "to deny people the tools they need to inform themselves" --  which we will accomplish by throwing one side of the debate in jail?  Really?

I am so sick of this "First Amendment is not absolute" bullshit.  It is absolute when it comes to issues like debating the merit of a scientific conclusion or debating the political implications of scientific research.  It is absolutely absolute.  In sports terms, this is a pop fly hit to second base.  It is no where near the foul lines.   It is so far from the foul lines that people would look askance at an umpire who screamed "fair ball" when the fact was already so patently obvious.

And no: motives, funding sources, and even being demonstrably right or wrong does not affect this absolute First Amendment protection.

Which all leaves an interesting question for Gawker:  Under what First Amendment theory is outing salacious sexual details of private citizens who happen to work for Gawker's competition in order to gain advertising revenue somehow protected but discussing the shortcomings and political consequences of climate forecasts is not?  I think they are both protected, but the former sure looks closer to the foul line than the latter.

Bulk Data Collection is Like a Cockroach We Can't Kill

From Reason:

A judge of the Foreign Intelligence Surveillance Court has ruled that in light of the USA Freedom Act's passage, the National Security Agency (NSA) may resume bulk collection of American's telephone records. In May, the 2nd U.S. Circuit Court of Appeals had halted the process after finding that the Patriot Act never authorized such activity.

So "in light of" a law that basically ended authorization for the practice, and despite a court ruling that the original law never authorized the practice, the NSA is going to continue the practice.

Apparently John Roberts does all the FISA court judge appointments.  It may be that we can never prevent this court from being captured by the NSA, but it is at least time to try a different approach to choosing these up-to-now rubber stamp judges.  My memory may be off, but I don't think the FISA court has ever turned down a data hoovering request.

Remember When Liberals Were All About Keeping the Government Out of the Bedroom?

Yeah, neither do I.

Law professors Stephen J. Schulhofer and Erin Murphy are trying to update the criminal code when it comes to sex offenses, believing current definitions of rape and sexual assault are antiquated. The focus of their draft is on what constitutes consent. It adopts the "yes means yes," or "affirmative consent" model that was passed in California last year.

The California law applies only to college campuses, however. Schulhofer and Murphy aim to take that definition of consent — which says that before every escalation of a sexual encounter, clear and convincing consent must be given — to the state or federal level. No one actually has sex this way, requesting permission and having it granted perhaps a dozen times in a single encounter.

But the theory that millions of Americans are having sex wrongly has gained currency among campus activists. This new attempt to alter the American Law Institute's Model Penal Code, a highly influential document that has been adopted in whole or in part by many states' legislatures, is part of a push to bring authoritarianism into the bedroom.

I often argue that our political parties are not just internally inconsistent (ie they simultaneously hold positions whose logic essentially contradict themselves) but they are inconsistent across time.  This is a great example of the latter.

Corporate Surveillance Is Not What I Fear

The Left seems to be wasting its legitimate outrage about surveillance on the wrong targets.

At a base minimum, people should be able to walk down a public street without fear that companies they’ve never heard of are tracking their every movement — and identifying them by name — using facial recognition technology,” the privacy advocates wrote in a joint statement....

People simply do not expect companies they’ve never heard of to secretly track them using this powerful technology. Despite all of this, industry associations have pushed for a world where companies can use facial recognition on you whenever they want — no matter what you say. This position is well outside the mainstream.”

Look, I am all for these folks campaigning for better privacy protections on businesses, but really, isn't this the wrong target.  Seriously, Target is tracking me in order to ... what?  Make me a targeted discount offers and rearrange their stores to better match my shopping habits?

Look, the government has guns and prisons.  They can take my money and my assets.  What the government can do to me makes the fear of being in Pepsi's marketing data base seem like a pure joke.

Every day I leave my house I have to pass this damn government surveillance cactus not a hundred yards from my home, tracking my face and license plate.

click to enlarge click to enlarge

There are at least two more of these in walking distance of my house.

I have news for you folks on the Left -- the government doesn't give a crap about your privacy, but is willing to beat on private corporations for a while (which really pose you zero harm) to divert you from the real threat, which is them.  And in the end, despite all their rhetoric, they will likely let private corporations do whatever they want as long as the government gets a backdoor into the data.

It is the latter that worries me the most.  I couldn't care less what Wal-Mart knows about my shopping habits.   But I do care that data they gather could be funneled into Uncle Sam's greedy hands.

Things I Would Never Have Believed When I Was Young -- College Students Taking Offense Like Southern Baptists

I grew up in the Deep South (in Houston -- for outsiders, Texas acts like the South when one is east of I-35 and then is more like the West).  Though my immediate family was fairly open-minded, I was surround by a scolding Southern Baptist culture that seemed deeply offended by everything -- dancing, drugs, drinking, youth behavior, movies, TV, games -- you name it.  I remember visiting aunts and uncles and cousins who were in a perpetual state of being offended.  And it carried over into the whole political culture of the place -- it seemed there was always some debate about book or textbook passage that needed to be banned to save the delicate eyes and impressionable brains of the children.

Going to college in the Ivy League was a breath of fresh air.  I never cottoned much to the authoritarian command and control favored by many at college, but I loved the liberal atmosphere of tolerance for most any speech or behavior.

Little would I have believed it, but college students today now sound exactly like my Southern Baptist aunt.  They are humorless and scolding and offended by virtually everything.  Many of the same pieces of literature those good Texas Baptists were trying to censor from school curricula in my day because they conflicted with religious doctrine are now being censored by good campus Progressives because they might be triggering.   What a bizarre turn of events.

Ian McEwan had a nice line in his graduation speech at Dickinson:  "“being offended is not to be confused with a state of grace — it’s the occasional price we all pay for living in an open society.”

Fighting for the Right to Control Other People's Property

Deborah Vollmer appears to be a nightmare neighbor in this story from the Washington Post (via Maggie's Farm).  She is absolutely hell-bent on preventing her neighbor from doing anything to their house that she would not do to it.  If her neighbor's aesthetics don't match hers, she takes them to court.

“Some people may question my motives,” Vollmer said. “But what’s happening in this town, these developers, tearing down old homes. I’m standing up for my rights. . . . And then this whole thing just kind of evolved” from that...

What could possibly be driving this woman? Friend and Chevy Chase resident John Fitzgerald said that her stubborn streak has roots deep in her past. Vollmer forged her career defending the rights of those without means. And that, he said, inculcated in her a desire to protect principles until the bitter end.

What right or principle is she fighting for?  The right to micro-manage her neighbor's property.  Read the article, this woman seems to be a total nightmare, all because she wants everyone else's house to look exactly like hers.

She should move to California.  She would fit right in.  She would be a perfect candidate to sit on the California Coastal Commission, for example.

We have a sort-of similar fight brewing here in Phoenix where a few local residents were trying to prevent another resident from tearing down and rebuilding his tired old house, which happened to have been designed by Frank Lloyd Wright's studios.  I appreciate Mr. Wright's work, but also know he designed some unlivable crap.  He was an artist, experimenting, and sometimes the experiments were not great.  He was also a businessman, always short of money, and sometimes his projects did not get his full artistic attention.  In my view, this was such a house.

I have the same answer for Ms. Vollmer that I do for those Wright house enthusiasts -- if you want to control a piece of property, buy it.  If you don't have the money, encourage other people to chip in.  But if you can't get enough people who similarly value your vision for the property to fund its acquisition, don't take the shortcut of using your influence with the government to impose the cost on taxpayers, or worse, on the individual property holder.

Obama Extends War With Eastasia Hours After Declaring He Has Never Been At War With Eastasia

Via Zero Hedge:

Just when we thought the absurdity that marks every single day of Obama's reign could not possibly be surpassed, we learned that 4 hours (3 hours and 47 minutes to be precise) after the US president vowed to sign a new law banning bulk data collection by the NSA (named, for purely grotesque reasons, the "USA Freedom Act"), the Obama administration asked the secret Fisa surveillance court to ignore a federal court that found bulk surveillance illegal and to once again grant the National Security Agency the power to collect the phone records of millions of Americans for six months.

Or, as the Guardian's Spencer Ackerman, who spotted this glaring page out of Josef Stalin's playbook, summarized it:

According to Ackerman, this latest travesty by the administration "suggests that the administration may not necessarily comply with any potential court order demanding that the collection stop."

For Those on the Left Who Want to Remove First Amendment Protections for Hate Speech, Consider President Lindsey Graham

So you think that "hate speech" or speech that makes someone uncomfortable or mocks someone or criticizes some particular group should not be protected under the First Amendment.  For those on the Left (who seem to disproportionately hold this opinion), I ask you to define anti-hate-speech laws in a way that you will be entirely comfortable if, say, President Lindsey Graham (God forbid) were to inherit the power to enforce them.

A President Graham might consider speech mocking Christianity or Jesus to be hate speech.  And if mocking Christianity is hate speech, wouldn't support for gay marriage or abortion be as well?  What about mocking the military, or police -- isn't that hate speech?

If you ban some speech but not other speech, someone has to be in charge of what is in the "ban" category.  When most people advocate for such a ban, they presume that "their guys" are going to be in charge of enforcing it, but outside of places like Detroit and Baltimore, sustained one-party rule in this country just does not happen.  That is why most calls for speech restriction are so short-sited -- they assume that people of a like mind will always be in charge of wielding these restrictions, and that is a terribly historical assumption.

Why It Is Particularly Unseemly That Hillary Clinton Keeps Attacking the Citizens United Decision

I think any opposition to free speech, particularly as exercised in an election, is unseemly, but Hillary Clinton's attacks on the Supreme Court's Citizens United decision are particularly so.

Why?  Well to understand, we have to remember what the Citizens United case actually was.  Over time, the decision has been shorthanded as the one that allows free corporate spending in elections, but this was not actually the situation at hand in the case.   I could probably find a better source, but I am lazy and the Wikipedia summary is fine for my purposes:

In the case, the conservative lobbying group Citizens United wanted to air a film critical of Hillary Clinton and to advertise the film during television broadcasts in apparent violation of the 2002 Bipartisan Campaign Reform Act (commonly known as the McCain–Feingold Act or "BCRA").[2] Section 203 of BCRA defined an "electioneering communication" as a broadcast, cable, or satellite communication that mentioned a candidate within 60 days of a general election or 30 days of a primary, and prohibited such expenditures by corporations and unions.

Yes, the Supreme Court generalized the decision to all corporations and unions (good for them) but the narrow issue in the case was whether an independent non-profit group could air a negative film about Hillary Clinton in the run-up to an election in which she was a candidate.

So when Hillary Clinton derides the Citizens United decision, she is arguing that the government should have used its powers to suppress a film critical of her personally.   She is trying to protect herself from criticism.

Two Steps Back for Free Speech in Nevada

Until now, Nevada has had one of the strongest anti-SLAPP protection laws in the US.  As a reminder, SLAPP suits are ones aimed at silencing speech by intimidating it with legal threats and overwhelming it with legal defense costs.  Anti-SLAPP laws provide legal protection to speech through a variety of means, including the ability to get quick dismissals of suits whose sole intention is to quash legal speech and in the best cases reimbursement of attorneys fees.

As you can imagine, politicials, the wealthy, and the powerful don't like these suits.  Nevada is in the process of gutting these protections.  Ken White has the story.

I have a new-found interest in such matters, as I was threatened by a major corporation this week with a libel suit if I did not remove my negative reviews of them on Yelp and on this blog.  More on that in the next post.

 

Should I Just Give Up Expecting Consistency in Public Discourse

I generally have refused to even participate in the debate over Indiana's RFRA because most of the discourse is so incredibly ill-informed that it is impossible to have a serious discussion.  But I would like to make one observation:

Here is Ruth Marcus with as good a proxy for the anti-RFRA position as I can find:

Hold whatever religious views you want: about whether women should drive, or the morality of having children out of wedlock, or whatever. Your church gets to choose (and enforce its rules). You can practice whatever your church may preach. But if you operate a business, you shouldn’t be allowed to discriminate against people based on who they are, or whom they love.

OK, that is clear enough -- if you have a business that serves the public, you must accommodate all the public equally.  You can't decide not to do business with some group of people.  But this leaves me with a question -- many of the opponents of Indiana's RFRA, from Apple Computer to the NY Times editorial page to the governor of Connecticut (which has its own RFRA, lol) called for businesses to boycott the citizens of Indiana.  Why isn't such a boycott, essentially a refusal to do business with anyone from the state of Indiana irrespective of his or her position on the RFRA, illegal/immoral under exactly Marcus's logic?  Most folks see boycotts as an important first amendment right, a way to express displeasure with a group using the power of markets, without government coersion.  But it seems to be proscribed by Marcus's definition.   Am I missing something here?

I suppose supporters of the boycott would argue that it is OK to refuse business based on political opinions but not on race or gender or sexual orientation.  But supporting the legality of gay marriage is a political opinion.  Now what?

Try as I might, I can only think of two internally consistent positions on this issue:  1.  Businesses have the freedom to accommodate whomever they want; or 2.  All businesses, perhaps as a part of the state business license requirements, must accommodate all comers no matter what.  Number one leads to some ugly, but probably rare, incidents.  Number two causes a lot of friction with other first amendment rights such as speech and religion.

Any other position must take the form of "it is legal to refuse accommodation based on some things but illegal to refuse accommodation based on other things."  There is no way to derive a dividing line between the two based on first principles, so the line becomes a political football, with no viewpoint neutrality.   Basically, accommodation law is whatever the politician of the moment says it is.  Unfortunately, this seems to be what most folks are advocating.

On Displaying the Confederate Battle Flag

The Supremes are going to discuss whether displaying a confederate battle flag on your custom license plate is protected by free speech.

In 1980 when I went up north to school I had a Confederate battle flag on my wall.  I keep calling it the battle flag because in fact the flag you are thinking about (the one on the Dukes of Hazard's car) is not actually the flag of the Confederate nation.  Most folks could not describe the original Confederate flag under torture (here it is).

So the flag you are thinking about, and the Supremes are considering, was actually based on the battle flags of certain state militias, like that of Virginia and Tennessee.  It was also used by the Confederate Navy, and was incorporated into a redesign of the official Confederate flag late in the war.

Anyway, there were a couple of reasons a young Texan might put up this flag in his northern dorm room.  First, it is awesome looking.  There are a lot of bad flags in the world, but this is a great-looking flag.  Second, at the time it represented the southern pride of a lot of us who found ourselves displaced and living in that odd northeastern college culture.  It never represented (at least at the time) anything racist for me.  For southerners (many of us raised, without knowing it, on the Lost Cause school of Civil War historiography) it represented pride and pluck and scrappy determination.

Anyway, I don't remember getting any pushback on the flag at the time.  Over the years, though, I came to recognize that the flag was seen by many as a symbol of racism.  Part of that was my increasing awareness but a large part was shifts in society and its perceptions -- remember the Dukes of Hazard was a real, popular network show that could likely never get made today.   I suppose I could have retained the flag as a symbol of what I thought it was a symbol for, and just ignored other peoples' opinion.  But at some point, I realized that other peoples' good opinion of me had value and that I needed to acknowledge how they saw the flag and put it away in a box.

Which brings me back to license plates.  If a state is going to create a license plate program where people can make statements with their license plates, then people should be able to make the statement they want to make.  I know there are folks in the south who honestly still cling to the symbolism I used to attach to the Confederate battle flag.  But let's leave those folks aside.  Let's assume for a moment that everyone who wants to display this symbol on their car is a racist.  Shouldn't we be thrilled if they want to do so?  Here would be a program where racists would voluntarily self-identify to all as a racist (they would even pay extra to do so!)  What would be a greater public service?

I make this same argument when people want to ban speakers from campus.  If people are willing to come forward with evil thoughts and intentions and announce them publicly, why wouldn't we let them?  It's is fine to want to eliminate evil from the Earth, but shilling banning hateful speech doesn't do this -- it only drives evil underground.

Postscript:  I actually started thinking about this driving down I-40 from Knoxville to Nashville yesterday.  In a bend in the road, on a hill, there is a large home.  Their land goes right out to the bend in the highway, and on that bend they have put up a huge flag pole with a big Confederate battle flag.  You can see it from miles in each direction.  I didn't get a picture but there are plenty on the web. From searching for it, there are apparently similar installations on private land in other states.  As I drove, having nothing else to do, I thought a lot about what message they were trying to send.  Was it just southern pride?  Were they really racists?  If they weren't racists, did they know that many would think them as such?  And if so, did they even care -- was this in fact just a giant FU?

 Update:  Fixed the typo in the last line.  Did I mean chilling?  Not even sure.  Banning is what I meant.

Argumentation

I strive to treat people I disagree with as intelligent persons of goodwill.  I don't always succeed.  It helps that many, even the majority, of my friends and family disagree with me politically.

A reader sent me Evil Greedy Stupid Sheep: 4 Modern Ways to Win An Argument.  The only quibble I have is the word "modern".  I am pretty sure that if we had better historical sources we would find people accusing Ramses or Sargon of being evil and in the pay of grain merchants.

I would add a fifth category to this I would call "out-group".    I don't have to listen to you because you are from group X.  There is a famous quote from WWII from a man I believe was in the British Foreign Office, who, when asked about stories of Nazi atrocities, said that they needn't take seriously a bunch of "wailing Jews."

As I grew up, I thought we might actually be getting beyond this.  You know - the sixties and tolerance and racial understanding and all that.  But it turns out that tolerance does not mean the end of out-groups, it simply means that the out groups are changing.  "Check you privilege" is the common campus shorthand nowadays for "shut up white male."  Males, whites, the religious, the well off -- these are the new out-groups whose origins are used to automatically invalidate anything they say.

How Do I Get To Qualify for Tolerance from the Left?

The Left has absolutely bent over backwards to make sure we understand that Islamic terrorists are not representative of the Muslim religion or Islam in general.  Further, they seem really quick to excuse or at least ignore a lot of really awful illiberal behavior by Islamic nations, including systematic abuse and near-enslavement of women, execution of gays, harassment of any non-Muslims, or even of Muslims from competing sects, etc.   We need to be tolerant, dontcha know.

So why is it that all this absolute cascade of bad behavior by various Muslims is not representative of true Islam but a tiny tiny few American males who are violent sex offenders are somehow totally representative of the entire gender, such that all men have to constantly humble ourselves, avoid speaking certain facts, apologize and bear guilt, go to college re-education programs, etc?

Techniques to Aid Authoritarians: The Supposed Statute of Limitations on Outrage

In the Fast and Furious and IRS scandals, the Administration has purposefully dragged its feet on disclosures.  The strategy is to let as much time pass so that when bad revelations eventually come out, the heat from the original scandal is gone.  Defenders of the Administration will then argue the revelations are "old news", as if there is some statute of limitations on outrage.  This strategy has driven Republicans crazy.

So what do Conservatives do when the torture report comes out after months and months of foot-dragging trying to prevent its release? You got it, they scream "old news".  Scott Johnson:

I confess that I do not understand the rationale supporting the publication of the Democrats’ Senate Select Committee study of the CIA’s detention and interrogation program. On its face, it seems like ancient history (of a highly tendentious kind) in the service of a personal grudge. It is not clear to me what is new and it is not clear that what is new is reliable, given the absurd limitations of the committee’s investigation.

By the way, I want to make one observation on this line from attorney John Hinderaker:

Similarly, the report confirms that the Agency’s enhanced interrogation techniques were used on only a small number of captured terrorists, 39 altogether. These enhanced techniques include the “belly slap” and the dreaded “attention grasp.”

Most important, it appears that waterboarding really was the most extreme sanction to which any of the terrorists were subjected (and only three of them, at that). Given all the hoopla about CIA “torture,” one might have expected to learn that far worse happened at the Agency’s dark sites. But, as far as the report discloses, the Agency stuck almost exclusively to its approved list of tactics, all of which the Department of Justice specifically found not to be torture.

Were some of the captured terrorists treated roughly? Absolutely. Their lives must have been miserable, and deservedly so. Some of the 39 were placed in stress positions for considerable lengths of time, doused with water, fed poor diets, left naked in cells. In one instance, a terrorist was threatened with a power drill. In another case, an interrogator told a terrorist that his children may be killed. There were two instances of mock execution.

A few observations:

  • The fact that they were "terrorists" seems to justify the mistreatment for him.  But how do we know they were terrorists?  Because the Administration said so.  There was no due process, no right of appeal, no ability to face witnesses, no third party review, none of that.  A branch of the Administration grabbed the guy, said you are a terrorist, and started torturing them.  I am not saying that they did this without evidence, but I am sure Mr. Hinderaker know from his own experience that every prosecutor thinks every person he or she tries is guilty.  That is why both sides get to participate in the process.
  • "Terrorist" is an awfully generic word to give us automatic license to torture people.  My sense is that there are all kinds of shades of behavior lumped under that word.  Conservatives like Mr. Hinderaker object, rightly, to a wide range of sexually aggressive actions from unwanted kissing to forced penetration being lumped under the word "rape".  But my sense is we do the same thing with "terrorists".
  • In my mind the casualness with which he can accept these kinds of treatments for people he does not like is morally debilitating.  It is a small step from accepting it for one to accepting it for many.  It is like the old joke of a debutante asked if she would have sex for a million dollars and saying "yes", then getting asked if she would have sex for $20 and responding "what kind of girl do you think I am?"  We've already established that, we are just haggling over price.
  • For those on the Right who say that all this stuff about due process does not apply because the "terrorists" were not citizens, then welcome to the Left!  Individual rights are innate -- they are not granted by governments (and thus by citizenship).  The Right generally says they believe this.  It is the Left whose positions imply that rights are favors granted by the state to its citizens.

Morally Lost

Much of the Conservative pushback on the torture report today has been to argue that the torture was actually much more useful in terms of information gathering than the Senate report concludes.  Who gives a cr*p?  Are these really the same folks who lecture me about morality for wanting to allow gay men to marry, but are A-OK with torture?

In the rape discussion, those who show skepticism about false stories of rape are considered, unfairly, rape apologists.  But these folks I am hearing today are truly torture apologists.  It is sickening.  If Conservatives were truly just in a Bismarkian blood and iron mode, I guess at least they would be internally consistent.  But many of these guys are neo-Conservatives, who are essentially advocating torture as a means to spreading our positive values around the world.

Conservatives, correctly I think, criticized the Obama Administration for blaming the Libyan embassy attack on YouTube video.  They argued that he should have been standing up in front of the world and explaining free speech and educating the world on why we don't punish folks for its exercise, even when we disagree with them.  All fine, except how does advocating for torture play into this bully pulpit theme?

Where the "Right Not to Be Offended" Will Lead Us

From Reason: (emphasis added)

Actress Veena Malik was sentenced this week to 26 years in prison by a Pakistani court for reenacting her wedding with her husband on a morning TV show. Her husband, Asad Khattak, as well as Mir Shakil-ur-Rahman, the owner of Geo TV, which aired the program, and Shaista Whidi, who hosted it, all received 26 year sentences as well.

The program caused controversy when it first aired several months ago, leading the TV station to run apologies in Pakistani newspapers. The court primarily objected to the use of religious music in the mock wedding. "The malicious acts of the proclaimed offenders ignited the sentiments of all the Muslims of the country and hurt the feelings, which cannot be taken lightly and there is need to strictly curb such tendency," the court ruling said.

Oregon Student Miles Sisk Gets Butt-Hurt over Criticism, Ken White Gets Hilarious

I am not even going to excerpt it.  You need to read Ken Whites satirical take on Miles Sisk demanding that bloggers who made animated GIF's critical of student government be thrown into concentration camps, or something.

How are people like this going to actually survive in the real world?  They are going to leave college and just sort of explode, like deep sea creatures brought up to the surface.  Someone please tell me that Miles Sisk is actually a clever performance artist.

Update:   OK, one little excerpt:

Sisk has not provided any evidence that the mean bloggers have made threats of harm as opposed to trite gifs and memes about banal student politics. "If a privileged kid who is a student leader at a good university feels he has to demand that the state protect him from criticism, what possible hope do most Americans have of governing themselves?" asked Yale historian Margaret Scott. "Freedom is hard. Self-governance is hard. Living together without resorting to tyranny is hard. Our founders pledged to each other 'our lives, our fortunes, and our sacred honor' to achieve those goals. This kid won't pledge to put up with someone mocking student government with a Parks & Recreation screencap."

Scientists agreed that Sisk's lack of fortitude — which was described as "pusillanimous," "snivellingly serfish," "contemptibly spineless," and "typical for a sophomore" — marked the rise of an American citizen unable to carry the burdens of representative government, individual rights, or unregulated daily interactions with other humans. "It's not just his craven thirst for totalitarian rule," agreed Duke professor Wil Trent. "It's also the abject ignorance. Running a society together requires a baseline of civic literacy. When even a student leader at a good university is ignorant of the most basic rights of other citizens — game over, man. Game over."

Missing the Point

John Hinderaker says that Democrats have been unsuccessful in their anti-Koch brother campaign because only 25% of Americans have a negative opinion of the Kochs and that has not changed much in 6 months.

But that strikes me as missing the point.  The Democrats have raised tens of millions of dollars from those 25% inflaming them with anti-Koch rhetoric.  They will outspend Republicans this year largely on the back of a campaign that, for example, never failed to mention the Kochs in almost every email sent out.  Further, they have succesfully turned the words "Koch Brothers" into some sort of boogeyman.  The media even here in Red state Arizona breathlessly discusses every contact a Republican candidate has with Koch Brothers-funded organizations while never ever mentioning any large backers on the Democratic side.  Despite the fact that Democrats have raised more so-called "dark money" than Republicans, nearly 100% of the media stories on dark money are about Republicans.  Further, by successfully (and asymmetrically) making public life a living hell for prominent Republican supporters, the Democrats are doing important battle space preparation for future elections, giving second thoughts to future potential Republican donors.

That, in my mind, is a political success.

(Of course, it is a disaster for liberty, and demonstrates EXACTLY why anonymous speech and donations have to remain legal.  The campaign waged right from the floor of the Senate by Democrats like Harry Reid to vilify private citizens who have been out-front and transparent about exercising their free speech is an insult to liberty).

Bundy Ranch the Wrong Hill for Libertarians to be Dying On

Here is something I find deeply ironic:  On the exact same day that Conservatives were flocking to the desert to protest Cliven Bundy's eviction from BLM land, San Francisco progressives were gathering in the streets to protest tenant evictions by a Google executive.   To my eye, both protests were exactly the same, but my guess is that neither group would agree with the other's protest.  I think both protests are misguided.

In the case of Cliven Bundy, I agree with John Hinderaker, right up to his big "But...."

First, it must be admitted that legally, Bundy doesn’t have a leg to stand on. The Bureau of Land Management has been charging him grazing fees since the early 1990s, which he has refused to pay. Further, BLM has issued orders limiting the area on which Bundy’s cows can graze and the number that can graze, and Bundy has ignored those directives. As a result, BLM has sued Bundy twice in federal court, and won both cases. In the second, more recent action, Bundy’s defense is that the federal government doesn’t own the land in question and therefore has no authority to regulate grazing. That simply isn’t right; the land, like most of Nevada, is federally owned. Bundy is representing himself, of necessity: no lawyer could make that argument.

It is the rest of the post after this paragraph with which I disagree.  He goes on to explain why he is sympathetic to Bundy, which if I may summarize is basically because a) the Feds own too much land and b) they manage this land in a haphazard and politically corrupt manner and c) the Feds let him use this land 100 years ago but now have changed their mind about how they want to use the land.

Fine.  But Bundy is still wrong.  He is trying to exercise property rights over land that is not his.   The owner gave him free use for years and then changed its policy and raised his rent, and eventually tried to evict him.  Conservatives and libertarians don't accept the argument that long-time tenancy on private land gives one quasi-ownership rights (though states like California and cities like New York seem to be pushing law in this direction), so they should not accept it in this case.   You can't defend property rights by trashing property rights.   Had this been a case of the government using its fiat power to override a past written contractual obligation, I would have been sympathetic perhaps, but it is not.

I would love to see a concerted effort to push for government to divest itself of much of its western land.  Ten years ago I would have said I would love to see an effort to manage it better, but I feel like that is impossible in this corporate state of ours.  So the best solution is just to divest.  But I cannot see where the Bundy Ranch is a particularly good case.  Seriously, I would love to see more oil and gas exploration permitted on Federal land, but you won't see me out patting Exxon on the back if they suddenly start drilling on Federal land without permission or without paying the proper royalties. At least the protesters in San Francisco likely don't believe in property rights at all.  Conservatives, what is your excuse?

I suppose we can argue about whether the time for civil disobedience has come, but even if this is the case, we have to be able to find a better example than the Bundy Ranch to plant our flag.

The Progressive View of the First Ammendment

I didn't really pay all that much attention to the Supreme Court's election speech case yesterday.   But as I learn the reasoning that is driving the dissent by the four Justices on the Left, I am left deeply worried about the future of speech rights.

I really haven't put much time in understanding how Progressives justify strong speech protections for non-political activity (e.g. pornography) while eschewing them for political speech (in the form of multiple types of limits on the amount and timing of speech one is allowed prior to an election).  Justice Breyer, in writing for the minority in in McCutcheon, lays out what I suppose is the Progressive position.

First up, here is David Bernstein

But how can liberals, who so expansively interpret other constitutional provisions, narrow the First Amendment so that campaign finance no longer gets protection?

Justice Breyer’s dissent today shows the way, as he revives the old Progressive conception of freedom of speech as serving instrumental purposes (which he calls “First Amendment interests”), rather than protecting individual rights or reining in potential government abuses.  And once we identify those “First Amendment interests,” we must limit freedom of speech to ensure that they are advanced.

Thus, Justice Breyer, writes, “Consider at least one reason why the First Amendment protects political speech. Speech does not exist in a vacuum. Rather, political communication seeks to secure government action. A politically oriented ‘marketplace of ideas’ seeks to form a public opinion that can and will influence elected representatives.”  Just to make sure he’s not being too subtle, Breyer goes back to the source, Justice Brandeis, citing his opinion in Whitney for the proposition that freedom of speech is protected because it’s ”essential to effective democracy.”

Further showing off his affinity for the Progressive statism of a century ago (noted by Josh Blackman and me here), Breyer turns constitutional history on its head, by declaring that the purpose of the First Amendment was not to prevent government abuses, but to ensure ”public opinion could be channeled into effective governmental action.”  ...

Breyer adds that “corruption,” by which he means individuals engaging in too much freedom of speech via campaign donations, ”derails the essential speech-to-government-action tie. Where enough money calls the tune, the general public will not be heard. Insofar as corruption cuts the link between political thought and political action, a free marketplace of political ideas loses its point.”

This strikes me as both tortured and dangerous.  Once one posits that that there is some ill-defined, un-measurable value like "promotion of positive government action" can be balanced against free speech, then the government gets a nearly unlimited ability to limit speech.

James Taranto also highlights parts of the decision

In making the case for the constitutionality of restrictions on campaign contributions, Breyer advances an instrumental view of the First Amendment. He quotes Justice Louis Brandeis, who in 1927 "wrote that the First Amendment's protection of speech was 'essential to effective democracy,' " and Brandeis's contemporary Chief Justice Charles Evans Hughes, who in 1931 argued that " 'a fundamental principle of our constitutional system' is the 'maintenance of the opportunity for free political discussion to the end that government may be responsive to the will of the people" (emphasis Breyer's).

After citing Jean-Jacques Rousseau's (!) views on the shortcomings of representative democracy, Breyer quotes James Wilson, one of the Founding Fathers, who argued in a 1792 commentary that the First Amendment's purpose was to establish a "chain of communication between the people, and those, to whom they have committed the exercise of the powers of government." Again quoting Wilson, Breyer elaborates: "This 'chain' would establish the necessary 'communion of interests and sympathy of sentiments' between the people and their representatives, so that public opinion could be channeled into effective governmental action."

And here's how Breyer sums it all up: "Accordingly, the First Amendment advances not only the individual's right to engage in political speech, but also the public's interest in preserving a democratic order in which collective speech matters."

What is democratic "order"?  What the hell is "collective" speech?  This is the kind of thing I would expect dictators-masquerading-as-elected-officials to spout as an excuse for suppressing dissent.  After all, doesn't dissent interfere with order?  How can we have collective speech when there are these folks out there disagreeing so much?   Again from Taranto:

It's important to note that when Breyer refers to "collective" rights, what he does not have in mind is individuals exercising their rights by voluntarily collecting themselves into organizations. In fact, the prevailing left-liberal view, most notably with respect to Citizens United v. FEC (2010), is that collections of individuals, at least when they take corporate form, have (or should have) no rights.

The only "collective" that matters to Breyer is the one from which you cannot opt out except by the extreme measure of renouncing your citizenship: "the people" or "the public" as a whole. In Breyer's view, the purpose of the First Amendment is to see that (in Chief Justice Hughes's words) "the will of the people" is done. Individual rights are but a means to that end. To the extent they frustrate it, they ought to be curtailed. You will be assimilated.

Citizens United and Turkey

So now that the Turkish incumbents have been re-elected, the government will allow Twitter to be turned back on in the country.

I think that the vast, vast majority of Americans would agree that this turning off of a communications vehicle several weeks before an election was a pretty transparent dodge to protect incumbent politicians, and that most of us would oppose such steps -- even be outraged by them.

So why the hell was McCain-Feingold's ban on 3rd party ad-based communications 60 days prior to an election any different?   These two steps seem absolutely identical to me, but my guess is most everyone agrees the Turkish actions were bad but the Citizens United decision that overturned the McCain-Feingold restrictions was met with much wailing and gnashing of teeth.

On Firefox and Wedding Photographers

The OK Cupid website is protesting the Mozilla CEO's past donations to anti-gay-marriage campaigns by asking visitors to use something other than Firefox to browse their site.  Readers will know that I have actually led a past Equal Marriage effort in Arizona, so while sympathetic to the cause here, I don't think I would go so far as to block a browser to my website.  Establishing this precedent that I would boycott services and products based on the political views of company employees (which is the issue here, Mozilla does not have any official position on gay marriage that I know of), I could consume my whole life doing research.  And then I would be stuck with questions like "Are the gay marriage opinions of the Firefox CEO better or worse than Google/Chrome's enabling of censorship in China?  As I have told some folks before, if I really wanted to do do business only with those who agree with me politically, I would find myself stuck for life listening to a couple of Rush albums and watching Firefly and Wire reruns all day.

But anyway, OK Cupid is a private company and I presume they do this with their owner's approval so all's fair in conducting commerce or choosing not to conduct commerce.  Except that just a few weeks ago everyone was arguing that photographers should be forced to serve gay weddings even when they do not wish to do so.  Is this any different?  If we are going to establish a public accommodation standard that a business cannot turn away customers based on political or religious preferences, then don't we have to enforce that in a value-neutral way?

Counter-Proposal for Kevin Drum on Voting Rights

Kevin Drum argues that rules preventing voting in many states by felons are unfair.  After all, we don't deny them their first amendment rights for having been in prison, right?

Well, unlike Drum, I put voting further down the list of essentials for a free society, well behind property rights and the rule of law (see here and here).  If I wanted to get worked up about post-incarceration loss of rights, I would address the increasingly draconian post-incarceration restrictions on those convicted of even trivial "sex" crimes (treating 17 years olds that sent a nude selfie the same as a rapist).

However, let's talk voting.  Yes we do not deny ex-cons their first amendment rights.  But we do deny them their second amendment rights.  So I offer this compromise:

I propose this bipartisan compromise: Voting and gun ownership rights for convicted felons should be identical. Set them wherever you think is fair, but make them consistent. I am not sure this is really a very fair comparison -- after all, a politician can do a heck of a lot more damage than a gun -- but as I said, I am willing to compromise.

Judge Finds That NSA Domestic Spying Likely Unconstitutional