Archive for the ‘Individual Rights’ Category.

Oppressors, Oppressed, Privilege, and Free Speech

A few days ago I wrote:

Speech codes are written by and for the privileged.  They are written by the oppressor to shut up the oppressed.  George Wallace did not need the First Amendment, black kids trying to go to the University of Alabama needed it.  So the progressive opposition to free speech (e.g BLM shouting down the ACLU over free speech) is either 1) completely misguided, as the oppressed need these protections the most or 2) an acknowledgement that progressives and their allies are now the privileged, that they are the ones in power, and that they wish to use speech codes as they have always been used, to shut up those not in power.  In our broader society the situation is probably #1 but on university campuses we may have evolved to situation #2.

Example of #1 (via Overlawyered)

A woman has been questioned by police and could face a hate crime prosecution after she waved a banner at Belfast’s Pride parade reading “Fuck the DUP”.

In a case that could have consequences for free speech and the right to offend across the UK, the Police Service of Northern Ireland (PSNI) says it will pass a file to the region’s public prosecution service (PPS) after Ellie Evans, 24, held up the placard at the August parade to protest against the party’s policies on gay marriage.

The investigation was prompted by a complaint from DUP politician Jim Wells, who told the Guardian that the slogan constituted “incitement to hatred and potential public disorder”.

Example of #2

A few months later, I received a letter from two Reed students of colour that was being distributed among alumni like a piece of samizdat. The students didn’t reveal their names for fear of being ostracised, but they described a campus that had been overtaken by militants who routinely shamed as racists anyone who didn’t agree with them. One of those singled out had been a freshman named Hunter Dillman who had been branded a racist after asking the organiser of a Latina student group an innocent question. He was ultimately hounded off campus.

The students said the Facebook shaming became even more virulent as the year went on. When another white student apologised to Amanda for being unable to attend a particular protest because he was behind on his schoolwork, Amanda accused him of being the kind of white guy who would ‘laugh at a lynching’. The students felt Amanda’s charge was so outrageous that they decided to take a big step: they would all ‘like’ the student’s apology on Facebook, even though they might be called racists as well. ‘As students of colour we felt that we had to do it’, one of them later told me. ‘It would have been 100 times worse if somebody white liked it.’

 

The Progressive Argument for Free Speech

A reader sent me a link to this critique, sort of, of free speech in the Daily Princetonian.  I say "sort of" because I thought the thinking and logic of the article was pretty muddled, so much so that I am not even totally sure what point they are trying to make, exactly, though it clearly is meant as a critique of Conservatives defending free speech.   Frankly I was pretty depressed that a Princeton philosophy major couldn't write in such a way as to make even their thesis clear.

Anyway, the comments are closed and I still feel enough of a connection to Princeton that I wanted to at least try to engage the students, so I wrote this back:

I didn't find your Daily Princetonian article of 9/25 particularly compelling, in part because you don't engage with defining an alternate regime if you toss out free speech.  "we don't need to hear any more form group x or y" is a fine policy for setting up your personal Twitter block list, but how does it work in a democracy?  Everyone assumes when they advocate for such controls that they and their fellow believers will be the ones controlling, but do you really believe that?  After the last election?  What if a President Lindsey Graham (god forbid) were to take your rules advocating for getting rid of hate speech and define hate speech as advocating for abortion rights?  The ACLU didn't famously defend the speech rights of the American Nazi party because it liked Nazis -- it defended them because they were justifiably afraid that the precedent of speech limitation might someday be used to restrict speech far more dear to them.

This is why I think Progressives are making a huge mistake in opposing free speech, on their own terms.

Speech codes are written by and for the privileged.  They are written by the oppressor to shut up the oppressed.  George Wallace did not need the First Amendment, black kids trying to go to the University of Alabama needed it.  So the progressive opposition to free speech (e.g BLM shouting down the ACLU over free speech) is either 1) completely misguided, as the oppressed need these protections the most or 2) an acknowledgement that progresives and their allies are now the privileged, that they are the ones in power, and that they wish to use speech codes as they have always been used, to shut up those not in power.  In our broader society the situation is probably #1 but on university campuses we may have evolved to situation #2.

The folks who wrote the first amendment were thinking about this dynamic.  Had they instead decided to write a speech code, it likely would not have been good.  It might well have banned the criticism of slavery, for example, if Jefferson and his Virginians had anything to say about it.  But they didn't create a speech code, thank god.  In fact, I am trying to think of any time in history I would have been comfortable with the ruling elite locking down the then-current norms of their society into a speech code, and I can't think of one.  What gives you confidence, vs. the evidence of all history, that you can do so today with good results?

OK, I Am Failing the Ideological Touring Test Here

I pride myself on being able, generally, to craft arguments on various issues along any of Arnold Kling's three axes of political discourse.  But I can't come up with an argument for why college students (likely Progressives on the oppressor-oppressed axis) would be legitimately afraid of the beach ball (via Maggies Farm).  My libertarian axis explanation of course is that having found that the "those guys' speech scares us" approach has been successful at shutting down speech of their opponents in the past, they are rationally pursuing a proven winning strategy.  But what is the Progressive argument here?

How The Left Is Changing the Meaning of Words to Reduce Freedom -- The Phrase "Incite Violence"

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

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

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

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

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

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

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

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

Speech Restrictions Will ALWAYS Be Enforced Assymetrically

One of the larger problems with speech restrictions is that they will always be interpreted and enforced asymmetrically.  Don't believe me?  Consider this tweet from the Left during the Obama Administration:

My guess is that these folks would not enforce this speech rule in the same way during the Trump Administration as during the Obama Administration.

Arizona State Legislature Considering Yet Another Awful Law, This Time Allowing Police Prior Restraint on Speech

It is hard to pick out the most egregious example of bad legislation that has been considered by our state legislature, but this one is certainly close:

Claiming people are being paid to riot, Republican state senators voted Wednesday to give police new power to arrest anyone who is involved in a peaceful demonstration that may turn bad — even before anything actually happened.

SB1142 expands the state’s racketeering laws, now aimed at organized crime, to also include rioting. And it redefines what constitutes rioting to include actions that result in damage to the property of others.

But the real heart of the legislation is what Democrats say is the guilt by association — and giving the government the right to criminally prosecute and seize the assets of everyone who planned a protest and everyone who participated. And what’s worse, said Sen. Steve Farley, D-Tucson, is that the person who may have broken a window, triggering the claim there was a riot, might actually not be a member of the group but someone from the other side....

There’s something else: By including rioting in racketeering laws, it actually permits police to arrest those who are planning events. And Kavanagh, a former police officer, said if there are organized groups, “I should certainly hope that our law enforcement people have some undercover people there.’’

“Wouldn’t you rather stop a riot before it starts?’’ Kavanagh asked colleagues during debate. “Do you really want to wait until people are injuring each other, throwing Molotov cocktails, picking up barricades and smashing them through businesses in downtown Phoenix?’’

This is the sort of law that is almost guaranteed to be abused and enforced in an asymmetrical manner.  This is one of those laws where the "Am I comfortable giving my political opponent this sort of power" test is particularly useful.  Conservatives rightly complained about the Obama Administrations asymmetric IRS scrutiny on Tea Party groups, but this law would create a far greater potential for abuse.  We no longer have Sheriff Joe any more (which is one reason I don't join so many others in complaining about the election of 2016) but does anyone doubt that Arpaio would have used this law to shut down every pro-immigrant protest he could learn about in advance?

Politicians Are Going to Use "Fake News" Panic as A Wedge to Enhance Censorship

This is simply a terrible idea and demonstrates the point I made after the last election, that "fake news" is the new "hate speech" -- in other words, an ill-defined, amorphous term that will be the excuse for censorship.  Every politician thinks that every criticism of themselves is "fake news".   Note the absolute relish with which the millennial Endgadget author greets this awful idea:

Fake news and hate speech are sadly unavoidable on social media, but that might change soon... in Germany, anyway. Late last week, Thomas Oppermann — chairman of the German Social Democratic Party — proposed a stringent law meant to hold companies like Facebook responsible when fake news makes the rounds. As reported by Der Spiegel(and translated by Deusche Well), Oppermann's plan would require Facebook to actively combat fake news all day, everyday. Here's the fascinating bit: if a fake news item pops up and Facebook can't address it within 24 hours, it would be subject to a €500,000 (or $522,575) for each post left untouched.

Oh, it gets better. Facebook and other "market-dominating platforms" would be required to to have teams in Germany dedicated to fielding reports of fake news and hate-filled posts. Fortunately for Oppermann — and German web users, most likely — the push to penalize companies for letting false, misleading or malicious content run wild has received plenty of support from the other major party in German politics, too. The country's Christian Democratic Union hates all of that stuff just as much, prompting one senior party member to promise definitive action "at the beginning of next year." The CDU has also proposed legislation (with backing from Chancellor Angela Merkel, no less) that would make it illegal to post fake news entirely.

The Term "Fake News" Joins "Hate Speech" As A New Tool for Ideological Speech Suppresion

The term "hate speech" has become a useful tool for speech suppression, mostly from the Left side of the political aisle.  The reason it is such a dangerous term for free speech is that there is no useful definition of hate speech, meaning that in practice it often comes to mean, "confrontational speech that I disagree with."   I think most of us would agree that saying, "all black men should be lynched" is unambiguously hateful.  But what about saying something like "African Americans need to come to terms with the high rate of black on black violence."  Or even, "President Obama plays too much golf."   I would call both the latter statements opinions that, even if wrong, reasonably fit within the acceptable bounds of public discourse, but both have been called hate speech and racist.

The Left's new tool for speech suppression appears to be the term "fake news."  Certainly a news story that says, "American actually has 57 states" would be considered by most to be fake.  We understand (or most of us outside places like the New York Times, which still seems to get fooled) that sites like the Onion are fake.   But, as I suspected the very first time I heard the term, "fake news" also seems to be defined as "political sites with which I disagree."  Via Reason:

But Zimdars' list is awful. It includes not just fake or parody sites; it includes sites with heavily ideological slants like Breitbart, LewRockwell.com, Liberty Unyielding, and Red State. These are not "fake news" sites. They are blogs that—much like Reason—have a mix of opinion and news content designed to advance a particular point of view. Red State has linked to pieces from Reason on multiple occasions, and years ago I wrote a guest commentary for Breitbart attempting to make a conservative case to support gay marriage recognition....

Reporting on the alleged impact of fake news on the election is itself full of problems. BuzzFeed investigated how well the top "fake" election news stories performed on Facebook compared to the top "real" election news stories. The fake stories had more "engagement" on Facebook than stories from mainstream media outlets. There's basic problems with this comparison—engagement doesn't mean that people read the stories or even believed them (I know anecdotally that when a fake news story shows up in my feed, the "engagement" is often people pointing out that the story is fake).

There's also a problem when you look at the top stories from mainstream media outlets—they tend toward ideologically supported opinion pieces as well. Tim Carney over at The Washington Examinernoted that two of the top three stories are essentially opinion pieces:

Here's the top "Real News" stories: "Trump's history of corruption is mind-boggling. So why is Clinton supposedly the corrupt one?" As the headline suggests, this is a liberal opinion piece, complaining that the media doesn't report enough on Trump's scandals.

No. 2 is "Stop Pretending You Don't Know Why People Hate Hillary Clinton." This is a rambling screed claiming that people only dislike Clinton because she is a woman.

So in an environment where "fake news" is policed by third parties that rely on expert analysis, we could see ideologically driven posts from outlets censored entirely because they're lesser known or smaller, while larger news sites get a pass on spreading heavily ideological opinion pieces. So a decision by Facebook to censor "fake news" would heavily weigh in favor of the more mainstream and "powerful" traditional media outlets.

The lack of having a voice in the media is what caused smaller online ideology-based sites to crop up in the first place. Feldman noted that he's already removed some sites that he believes have been included "unfairly" in Zimdars' list. His extension also doesn't block access to any sites in any event. It just produces a pop-up warning.

Tellingly, in a quick scan of the sites, I don't see any major sites of the Left, while I see many from the Right (though Zero Hedge is on the list and writes from both the Left and the Right).   Daily Kos anyone?  There are conspiracy sites on the list but none that I see peddle conspiracies (e.g. 9/11 trutherism) of the Left.

This is yet another effort to impose ideological censorship but make it feel like it is following some sort of neutral criteria.

Canada May Fine Me $42,000

Via Steven Green at Instapundit, comes this story of a comedian getting fined $42,000 by Canada for telling a joke:

Canadian comedian Mike Ward was fined a whopping $42,000 by Quebec’s Human Rights Tribunal for jokes he made about a disabled boy.

The child, Jérémy Gabriel, who suffers from Treacher Collins Syndrome, is a bit of a national celebrity in Canada after he sung for the pope in 2006 essentially because everyone thought he did not have long to live. Ward’s joke was a rant about how the child was supposed to die, that he “stole a wish” and is unkillable.

Hmm, I believe I have made this same joke about Keith Richards at least a hundred times in the context of messing up my dead pools.  I better not travel to Canada.

Hillary Clinton and "Intent" -- Can the Rest Of Us Get A Mens Rea Defense From Prosecution?

Yesterday, the FBI said that Hillary Clinton should not be prosecuted because, though she clearly violated laws about management of confidential information, she had no "intent" to do so.  Two thoughts

  • Even if she had no intent to violate secrecy laws, she did - beyond a reasonable doubt - have intent to violate public transparency and FOIA laws.  She wanted to make it hard, or impossible, for Conservative groups to see her communications, communications that the public has the right to see.  In violating this law with full intent, she also inadvertently violated secrecy laws.  I don't consider this any different than being charged for murder when your bank robbery inadvertently led to someone's death.
  • If politicians are going to grant each other a strong mens rea (guilty mind or criminal intent) requirements for criminal prosecution, then politicians need to give this to the rest of us as well.  Every year, individuals and companies are successfully prosecuted for accidentally falling afoul of some complex and arcane Federal law.   Someone needs to ask Hillary where she stands on Federal mens rea reform.

What's The Deal With the State of New York and Free Speech?

Sorry, I am a bit late on this but it came out while I was out of the country.  While the New York AG is going after ExxonMobil and a number of think tanks to try to prosecute them, or at least intimidate them, for their past speech on climate issues, apparently the state of New York is also going after college students who want to boycott Israel.

I have never thought much of the BDS movement -- while like most western governments Israel certainly has its flaws, I find it bizarre that the BDS movement treats Israel like it's the worst government on Earth.  In particular, I am amazed that BDS folks frequently, while they condemn Israel, act as apologists for neighboring Arab nations whose human rights records are objectively far worse.

All that being said, if they don't want to have anything to do with Israel and want to advocate for others to take the same approach, they are welcome to do so in a free country.  But now there is this:

Continuing Gov. Andrew Cuomo's crusade against New Yorkers who don't support Israel, state Sen. Jack Martins (R-Nassau County) wants to ban public colleges and universities from funding pro-Palestinian student groups. A new bill sponsored by Martins would require state and city schools to defund any campus organization that supports efforts to "boycott, divest from, and sanction" (BDS) Israel over its treatment of Palestinians. The BDS movement has become popular on U.S. and U.K. campuses.

Martins' bill would also prohibit the funding of campus groups that support economic boycotts of any American-allied nation, although this bit seems designed to distract from his true goal: preventing anti-Israel sentiment on campus. In an interview with the New York Daily News, Martins referred to calls to boycott Israel as "hate speech" and "anti-Semitism" and said the state legislature has "no choice but to step in and prevent taxpayer dollars being used to promote" such sentiment.

If a state institution is going to fund student groups, then it needs to do so in a viewpoint neutral manner.

The only teeny tiny good part of this story is that perhaps a few campus Leftists who want to ban everything that they consider hate speech might have an epiphany that giving the government this sort of power is a bad idea, since one can never guarantee that one's own fellow travelers are going to be writing the hate speech definitions.

Citizens United Haters, Is This Really What You Want? John Oliver Brexit Segment Forced to Air After Vote

A lot of folks, particularly on the Left, despise the Citizens United decision that said it was unconstitutional to limit third party political speech, particularly prior to an election (even if that speech was made by nasty old corporations).  The case was specifically about whether the government could prevent the airing of a third-party produced and funded documentary about one of the candidates just before an election.  The Supreme Court said that the government could not put in place such limits (ie "Congress shall make no law...") but Britain has no such restrictions so we can see exactly what we would get in such a regime.  Is this what you want?

As Britain gears up to vote in the EU referendum later this week, broadcasters are constantly working to ensure their coverage remains impartial. One such company is Sky, which has this week been forced to delay the latest instalment of John Oliver's Last Week Tonight HBO show. Why? Because it contains a 15-minute diatribe on why the UK should remain part of Europe.

Instead of airing the programme after Game of Thrones on Sky Atlantic on Monday night, like it does usually, Sky has pushed it back until 10:10pm on Thursday, just after the polls close. Social media users are up in arms about the decision, but in reality, Sky appears to be playing everything by the book.

Sky's decision allows it to adhere to Ofcom rules that come into effect during elections and referendums. "Sky have complied with the Ofcom broadcasting restrictions at times of elections and referendums that prohibit us showing this section of the programme at this moment in time. We will be able to show it once the polls close have closed on Thursday," a Sky spokesperson told Engadget.

In March, the regulator warned broadcasters that they'd need to take care when covering May's local elections and the subsequent Brexit vote. Section Five (which focuses on Due Impartiality) and Section Six (covering Elections and Referendums) of Ofcom's Code contain guidelines that are designed stop companies like Sky from influencing the public vote. Satirical content is allowed on UK TV networks during these times, but Oliver's delivery is very much political opinion based on facts, rather than straight humour.

By the way, the fact vs. satire distinction strikes me as particularly bizarre and arbitrary.

When will folks realize that such speech limitations are crafted by politicians to cravenly protect themselves from criticism.  Take that Citizens United decision.  Hillary Clinton has perhaps been most vociferous in her opposition to it, saying that if President she will appoint Supreme Court judges that will overturn it.  But note the specific Citizens United case was about whether a documentary critical of .... Hillary Clinton could be aired.  So Clinton is campaigning that when she takes power, she will change the Constitution so that she personally cannot be criticized.  And the sheeple on the Left nod and cheer as if shielding politicians from accountability is somehow "progressive."

 

Dear Republicans, Could We Get A Little Consistency?

Republicans were rightly horrified that various government agencies, including a number of state attorneys general, were harassing private entities like Exxon-Mobil and CEI over their speech about climate change.  They pointed out that even if formal charges were never brought, the intrusive and public investigatory process by powerful government actors had an inherently chilling effect on free speech.

Kudos to Republicans!  They are defending the free speech of private actors from government harassment.

Oh, wait, no they are not.

The chairman of the Senate Commerce Committee demanded on Tuesday that Facebook explain how it handles news articles in its “trending” list, responding to a report that staff members hadintentionally suppressed articles from conservative sources.

In a letter, the chairman, Senator John Thune, Republican of South Dakota, asked Facebook to describe the steps it was taking to investigate the claims and to provide any records about articles that its news curators had excluded or added. Mr. Thune also asked directly whether the curators had “in fact manipulated the content,” something Facebook denied in a statement on Monday.

“If there’s any level of subjectivity associated with it, or if, as reports have suggested that there might have been, an attempt to suppress conservative stories or keep them from trending and get other stories out there, I think it’s important for people to know that,” Mr. Thune told reporters on Tuesday. “That’s just a matter of transparency and honesty, and there shouldn’t be any attempt to mislead the American public.”

Ugh.  What does Thune want, a revival of odious equal time rules, but now applied to the Internet?  This is just stupid.

Speech Restriction Stories I Have Read in Just the Last 24 Hours

NY state attorney general (and others) pursuing potential criminal and civil charges against ExxonMobil for its climate change advocacy

US Virgin Islands AG (really) going after non-profit CEI for its climate change advocacy

Elizabeth Warren wants the SEC to ban companies from "saying whatever they want about Washington policy debates," a demand inspired by her frustration that financial firms are publicly disagreeing with her on the impact of her desired regulations

California AG Kamala Harris demanding non-profit donor lists, presumably so she can harass and intimidate the ones she does not like

California AG Kamala Harris has raided the home and seized video footage of an independent advocated/journalist  who did secret sting videos of Planned Parenthood, the exact same sort of advocacy journalism pursued legally (without legal harassment) by any number of Leftish groups in California and elsewhere  (I doubt Ms Harris plans to raid the home of PETA activists who trespass on farms to secretly film chicken and pig breeding).

It turns out there are strong speech protections in this country, except when you are a professional, and then there are none.

And of course, I still am fighting against a libel lawsuit meant to force me to remove this product review.

Update, add this one:  Tenured Marquette professor faces termination based on blog post with which University disagrees

When the student replied that he has a right to argue his opinion, Ms. Abbate responded that “you can have whatever opinions you want but I can tell you right now, in this class homophobic comments, racist comments and sexist comments will not be tolerated. If you don’t like that you are more than free to drop this class.” The student reported the exchange to Marquette professor John McAdams, who teaches political science. Mr. McAdams also writes a blog called the Marquette Warrior, which often criticizes the Milwaukee school for failing to act in accordance with its Catholic mission.

Mr. McAdams wrote on his blog that Ms. Abbate was “using a tactic typical among liberals now. Opinions with which they disagree are not merely wrong, and are not to be argued against on their merits, but are deemed ‘offensive’ and need to be shut up.” His blog went viral, and Ms. Abbate received vicious emails. She has since left Marquette.

But now Marquette is going after Mr. McAdams. In December 2014, the school sent him a letter suspending his teaching duties and banning him from campus while it reviewed his “conduct” related to the blog post. “You are to remain off campus during this time, and should you need to come to campus, you are to contact me in writing beforehand to explain the purpose of your visit, to obtain my consent and to make appropriate arrangements for that visit,” Dean Richard Holz wrote.

Lol, the university is going to prove he was wrong to write that universities avoid dialog in favor of saying "shut up" by telling him to  ...  shut up or be fired.

By the way, since nowadays it seems that supporting someone's free speech rights is treated the same as agreeing with that person, I will remind folks that having led a pro gay marriage ballot initiative briefly in Arizona, I am unlikely to agree with someone who thinks it should be banned.  But so what?  I would have absolutely no problem arguing with such a person in a rational way, something that faculty member Ms. Abbate seemed incapable of doing.  While I might disagree with him on any number of issues, Professor McAdams was totally right to call her out.  Besides, is the Left's goal really to take all opinion with which they disagree and drive it underground?  Force folks underground and you never know what will emerge some day.  Things like.... Trump supporters.

It is amazing to me that universities have become the least viable place in the US to raise and discuss controversial issues in the light of day.

 

 

Does the ACLU Still Support the First Amendment?

The ACLU has always been an important but imperfect organization.  Historically, its biggest problem IMO has been its Stalinist origins and its resulting complete silence on, even at times hostility towards, property rights.   But it was always wonderfully absolutist in protecting free speech.  One of my first blog posts, which I can't seem to find, 10+ years ago was a post congratulating the ACLU to the distasteful but necesary task of defending the free speech rights of neo-Nazis.

Unfortunately, the rising opposition to free speech on the Left seems to be infecting the ACLU.  Via Ronald Collins:

Wendy Kaminer is an ardent free-speech advocate; she is currently a member of the advisory board of the Foundation for Individual Rights in Education (FIRE). Ms. Kaminer Kaminer was a member of the board of the ACLU of Massachusetts from the early 1990s until June 2009. She was also a national board member of the ACLU from 1999 until her term expired in June 2006. As to the omission of any reference to protecting First Amendment free-speech freedoms in the 2016 Workplan, she stated:

I’m not at all surprised that the ACLU’s 2016 work plan doesn’t include an explicit commitment to protecting freedom of speech. At the national level, ACLU has been exercising its right to remain silent on key free speech issues for years, in apparent deference to progressive support for restricting speech deemed racist, sexist, homophobic or otherwise exclusionary. Still, while it’s unsurprising, the ACLU’s withdrawal from free speech battles that could eventually lead the U.S. to adopt a Western European approach to regulating “hate speech” is indeed alarming. As threats to free speech intensify — on campus (thanks partly to arguably unconstitutional federal mandates) and in the remarkable tendency of some liberals to blame the victims of violence for giving offense to their murderers (remember Charlie Hebdo) — the ACLU’s timidity in protecting speech looks more and more like complicity in censoring it.

Here is how Harvey A. Silverglate, co-founder of FIRE and a former member of the Board President of the ACLU of Massachusetts, replied:

Sadly, it comes as no surprise that the national ACLU Board and Staff are nowhere to be seen in the increasingly difficult battle to protect First Amendment freedom of expression rights. This is especially so in areas where the ACLU, more and more, pursues a political or social agenda where the overriding importance of the goal transcends, in the eyes of ACLU’s leadership, the needed vitality of free speech principles neutrally and apolitically applied. Fortunately, some ACLU state affiliates still carry the free speech battle flag, but they are a diminishing army in a war that is getting more and more difficult, even though more and more important, to wage.

 

Federal Anti-SLAPP Statute -- Why It Is a Great Idea

Apparently, several lawmakers have proposed a Federal anti-SLAPP lawsuit.  This is a fabulous idea and long overdue.

I will say this is not a theoretical case for me.  I have to walk softly here because I am still in litigation, but I am currently being sued for defamation by a major corporation over a review of their services I posted hear and at Yelp  ( I won't name them but a quick search of my site for my being sued will get you there).   The suit is pretty transparently aimed at suppressing criticism, and only because I have some independent resources have I been able to pay the legal bills so far and stick to my guns.  Right or wrong has little to do with the suit -- I have every expectation of prevailing if this ever goes to trial, especially since the State of California just declared their product illegal in that state over many of the same issues I raised in my review. -- this is about making criticism of the company so expensive and scary that the average person won't attempt it.

Apparently, We can Only Reproduce in a Few States

Kevin Drum featured this chart on "reproductive rights" by state.

blog_reproductive_rights_state

Since I am pretty sure most states have an unfettered right to actually reproduce, I presume the issue at hand here is the right not to reproduce using certain tools such as abortion (and certainly this is confirmed when one digs into the criteria behind these rankings).

I would like to congratulate the Left on acknowledging that any right to reproduce must include the right not to reproduce.   In fact, since the scores here are driven entirely by the right not to reproduce, I would infer that Drum and the Left sees the right not to reproduce as absolutely critical to reproductive rights.

Which leads me to the following question:  Would the same folks agree that a right of association implies a right not to associate?  Because recent experience (e.g. with gay rights groups hounding bakers into bankruptcy because they would not make a wedding cake for a gay wedding) sure seems to imply the Left has a different attitude towards association rights.

Dear Conservatives: This Is Why We Hate All Your Civil Rights Restrictions in the Name of Fighting Terror

Because about 5 seconds after they are passed, government officials are scheming to use the laws against non-terrorists to protect themselves from criticism.

Twenty-four environmental activists have been placed under house arrest ahead of the Paris climate summit, using France’s state of emergency laws. Two of them slammed an attack on civil liberties in an interview with FRANCE 24....

The officers handed Amélie a restraining order informing her that she can no longer leave Rennes, is required to register three times a day at the local police station, and must stay at home between 8pm and 6am.

The order ends on December 12, the day the Paris climate summit draws to a close....

Citing the heightened terrorist threat, French authorities have issued a blanket ban on demonstrations – including all rallies planned to coincide with the climate summit, which Hollande is due to formally open on Monday.

This justification is about as lame as them come:

AFP news agency has had access to the restraining notices. It says they point to the “threat to public order” posed by radical campaigners, noting that security forces “must not be distracted from the task of combating the terrorist threat”.

Note that the police had absolutely no evidence that these folks were planning any violence, or even that they were planning any particular sort of protest.  This was a classic "round up the usual suspects" dragnet of anyone who had made a name for themselves protesting at green causes in the past.

Postscript:  Yes, I know that these protesters and I would have very little common ground on environmental issues.  So what?  There is nothing more important than supporting the civil rights of those with whom one disagrees.

And yes, I do have the sneaking suspicion that many of the very same people caught up in this dragnet would cheer if I and other skeptics were similarly rounded up for our speech by the government.  But that is exactly the point.  There are people who, if in power, would like to have me rounded up.  So it is important to stand firm against any precedent allowing the government to have these powers.  Else the only thing standing between me and jail is a single election.

Update:  Think that last bit is overly dramatic?  Think again.  I can guarantee you that you have some characteristic or belief that would cause someone in the world today, and probably many people, to want to put you up against the wall if they had the power to do so.  As proof, see:  all of history.

The Contradiction at the Heart of Speech Limitations Sought by Campus Progressives

Campus Progressives are becoming increasingly open about their opposition to unfettered free speech.  As a minimum, they seem to want restrictions on (and thus punishments for) speech they feel disparages ethnic minorities, homosexuals, various flavors of trans-gendered people, etc.  If pressed, many might extend these restrictions to other speech they don't like, e.g. climate skepticism or advocating for the Second Amendment.

What often confuses outsiders about these calls for speech restrictions is that they are generally asymmetrical -- eg it is OK to criticize Christians but not to criticize Muslims.  You can impugn the motives of rich white males but not of blacks or Hispanics.  Critics of these limitations will say, "aha, you are a hypocrite" but in fact Progressives are quite open about this asymmetry.  They argue from a framework where everything comes back to the powerful vs. the powerless.  In this framework, it is OK for the powerless to criticize the powerful, but the reverse is not allowed -- they call it "punching down".  Thus the need for asymmetric speech limitations to protect the powerless from the powerful.

But this is where we get to a massive contradiction.   Because whoever is in a position to enforce speech limitations is always going to be the person with power.  By definition.   The powerless don't write and succesfully enforce speech codes, or else if they do, we now have to call them powerful.  And historically, people in power always use speech limitations to protect their own power.  That is why the First Amendment exists, to protect minorities of any sort from the power of the majority.  If historically disenfranchised people suddenly start making speech codes stick that protect them from criticism, it only means that the in-group and out-group tags have been shifted and the new in-group is acting just like all the other in-groups have in the past.  That is why we don't rely on assurances of good behavior by people in power, we try to circumscribe them with Constitutional limitations.

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.

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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.