Applied Underwriters (AU) followed through on their threats to file suit against me for my posts, claiming they were defamatory. I hired an attorney who filed a motion to dismiss the claims, asserting among other things, that my statements were opinion and were protected by the First Amendment. However, the Court found that the manner in which my statements were made “could” be considered statements of fact and not mere opinions. As a result, the Court ruled that the case could go forward and denied my motion. I am happy to report, however, that AU and I have resolved our differences and the case is being dismissed. In the meantime, I have worked and will continue to work with AU on trying to better understand the program. While I continue to believe that the terms were not clearly explained to me during the sales process and that there is an unknown factor regarding my deposits that AU decides, I do have a better understanding of my program and my hope is that it will continue to work as they claimed. I still do not know when I am going to get the return of my deposits, if at all, but I will wait and see as it depends on my claims during the life of the program. But, more importantly, they provided me with workers’ compensation insurance when no other alternative was available, which allowed me to stay in business. My final word on this issue is that whenever you are procuring insurance, regardless of whether it is from AU or another company, take the time to understand the program and get a broker who will work with you to answer any questions you may have.
Posts tagged ‘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.
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.
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.
About a week or so ago I wrote a long and detailed post (with frequent updates as I discovered new information) about my extreme dissatisfaction with my workers compensation insurance from Applied Underwriters, a Warren Buffet-owned insurance company. I also wrote a shorter, parallel review on Yelp** (where Applied Underwriters already has an abysmal rating). For reasons I will guess at in the next post, Yelp keeps marking my post as "not recommended" despite the fact that it is one of the few that is not just a rant of the sort "this company sux" but actually has real details. There is a tiny almost invisible link at the bottom to see other reviews not recommended.
Yesterday, I received a letter from Applied Underwriters (Letter here (pdf)) demanding that I take down the Yelp review and my blog post or else they will sue me for libel. Based on my understanding of libel law, the content of my posts (which are all legally protected opinion), and recent court cases, Applied Underwriters has essentially no chance of ever winning such a suit. But my guess is that this is not their intention. I presume they are hoping that the fear of legal action, and the expense of legal defense, will cause me to stop my perfectly valid public criticism of their product.
I am seeking legal advice from a well-known First Amendment attorney, so Applied Underwriters will get my final response after I have had advice of counsel. But here are a few thoughts:
You can read the attorney's letter in full if you are a fan of such things, but if you read sites like Popehat much, you can pretty much predict what you will see.
The gist of their complaint, from the only paragraph of mine quoted in the letter, seems to be the word "scam". By the text of their letter, they seem to believe that "scam" is libelous because their company is well-rated financially and that they provide reasonable claims service. I concede both these facts. However, I called it a "scam" because there is a big undisclosed cost to their product that was never mentioned in the sales process, and that could only be recognized by its omission in the contract I signed -- that there is nothing in the contract committing them to any time-frame under which to return deposits and excess premiums I have paid, which may well amount to hundreds of thousands of dollars. This fact about the contract is confirmed by their customer service staff, who have said further that the typical time-frame to return such over-collections and deposits is 3-7 years after the contract ends, or at least 6-10 years after the first of the deposits was made.
If I had gotten any descriptions of their service terms wrong, I would have been happy to correct them. Hell, given that apparently Applied Underwriters will hold over $200,000 of my money for as many as ten years before they maybe return it to me, I am hoping I somehow have misunderstood. Unfortunately, their staff is pretty adamant that I understand these terms perfectly, and you will see that the letter sent by the attorneys does not attempt to refute any of the specific issues that drive my negative review. And of course none of this was ever disclosed in the sales process. The company attorneys point to the fact that I read the agreement and signed that I understood, but in fact this issue is only in the agreement by its omission. In its 10 pages of arcane boilerplate, the agreement never includes any clause giving them any legal obligation to return your deposits and excess premiums in an defined timeframe. It is that omission that I missed. Would you have caught it? Is this a substantial enough issue that you would expect disclosure in the sales process?
So is this a "scam"? I believe that this issue is costly enough, and hard enough to detect, and far enough outside of expected business practices to be called such. You may have your own opinion, but ask yourself -- When you enter into, say, a lease and have to put down a security deposit, is it your reasonable expectation that the landlord has the right in your lease to keep your deposit for 3-7 years (or more) after you move out? Oh, and by the way, how might your evaluation of something as a "scam" be affected by the knowledge that the company is threatening to sue anyone who writes a negative review?
Anyway, I take responsibility for my own failure as a consumer here. But in a free society it is perfectly reasonable to communicate issues one has with a product or service to help others avoid similar mistakes. Which is what I have done.
** I have problems with Yelp as well. What is linked is not my original review. My original review linked to my blog post. Yelp took it down. I will tell that saga in a future post.
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.
Via Reason, a college rugby team has been banned because, gasp, they sang boorish songs when drunk:
The University of Mary Washington permanently cancelled its student rugby team after evidence surfaced that team members had engaged in sexist chanting at an off-campus house party. All members of the team were also required to attend sexual assault training.
But while UMW's rugby team has 46 players, only 8 of them were even in attendance at the party—meaning that not only did a public university punish a few students for engaging in inappropriate (though constitutionally-protected) speech, it also punished other students who had nothing to do with said (again, constitutionally-protected!) speech.
The microaggression unfolded last November at a house party near the Fredericksburg, Virginia, campus, according to Jezebel's Erin Gloria Ryan. Some students, likely drunk, sang a demeaning song about raping corpses and "wiggling it" inside whores—inappropriate stuff, to be sure, though not really targeted at a specific entity in a threatening way. The chant apparently has its origins in rowdy "pub" songs. It's a curious tradition, though not one intended to inspire actual malice, it seems.
I played rugby for several years (for Harvard Business School, of all places) and never encountered a rugby club that did not have a repertoire of raunchy pub songs. It was a tradition, which I presume was copied from the mother country, that teams would share in singing of these songs over many drinks after a match. While often crude and offensive, they were known to all to be so. I can't remember anyone being somehow confused between what was in those songs and what was a correct way to comport oneself in society. We sang crude songs for a few hours, and then went back to crafting strategies for water meter manufacturers.
Leaving aside the first amendment issues and whether there is really any harmful behavior here, think for a moment about the nature of crime and punishment here. College rugby teams have comported themselves as such for literally scores of years without any blowback except for occasional disdain from the blue bloods (the inciting of which is probably half the reason for the exercise in the first place). No laws or written rules were broken and the team was comporting themselves in a way that had been at least implicitly tolerated for generations. Then all of a sudden the team is disbanded. No advance warning, no discussion in advance that such behavior would now be treated in the future as illegal.
A follow-up to this article is here.
The news has been zooming around the Internet that the US Forest Service (USFS) is going to require permits to take pictures on public lands. It was the first I had heard of this, which is odd in one sense because I actually operate tens of thousands of acres of US Forest Service lands, and in fact operate the ones with the most visitation (on the other hand, we are often the last to hear anything from the USFS).
So, knowing that the Internet can be a huge game of "telephone" where messages quickly get garbled, I went to the regulation itself. As usual, that did not help much, because it is so freaking hard to parse. Reading between the lines, here is what I think is going on:
- The regulations don't apply to all USFS lands, but to the federally-designated wilderness areas they manage. Even this is confusing, since the permitting authority does not apply just to wilderness areas, but to anywhere in the USFS. But even the wilderness areas constitute a lot of land, and often the most scenic.
- Apparently, the regulations have been in place for 4 years and this is just an extension and clarification
- Ostensibly, the regulations apply only to commercial filming, but how the USFS is going to distinguish between a commercial photographer and well-equipped amateur, I have no idea. The distinction seems to lie in what the photography will be used for, and since this use happens long after the individuals have left the land, I am not sure how the USFS will figure this out. Is the US Government going to start suing magazines for nature pictures, claiming a copyright on the scenery? What happens if I take it for my own use, then discover I have an awesome picture and decide to sell it. It is hard to write laws that depend on reading people's minds in determining if an act is legal.
The Federal Wilderness Act gives the government a lot of power to limit uses in a designated wilderness area. Motorized vehicles and tools are banned, as were bicycles more recently. My company operates in only one wilderness area, a canoe run at the Juniper Springs recreation area in Florida. If a tree falls across the stream, we have to float down in canoes and take it out with hand axes. We have to open and inspect coolers of those going down the run to make sure no banned items are in them. In other words, wilderness areas definitely have a higher level of restrictions than the average public land.
As to the First Amendment issues, well folks like Ken White at Popehat have taught me that it is very very dangerous for the uniformed (ie me) to pontificate on complex First Amendment issues. I am sure the USFS would say that they are not interfering with free expression, just banning a use that could be dangerous in the wilderness. There are a few problems with this:
- The USFS hasn't explained why taking pictures threatens the natural operation of ecosystems
- The USFS has undermined their own argument by making exceptions based on the purpose of the filming. Apparently only commercial filming hurts ecosystems, not amateur photography. And apparently commercial filming that has positive messages about the USFS are OK too. Its just commercial filming that goes into a beer company ad that hurts ecosystems. You see the problem. If it's the use itself that is the problem, then the USFS should be banning the use altogether. By banning some photography but not all based on the content and use of that photography, that strikes me as a first amendment issue.The best parallel I can think of is in Venezuela. There, the government claimed a paper shortage required it to shut down certain printing to conserve paper, and then proceeded to shut down only the newspapers it did not like. I suppose it could claim that it was not censoring anyone, just taking steps to deal with the newsprint shortage. Similarly the USFS claims it is not limiting anyone's first amendment rights, it is just protecting the wilderness form a dangerous use.
A few years ago, the USFS tried to reverse an expensive mistake it had made. The US government issues lifetime senior passes that allow free entry and half off camping for seniors. This is an expensive giveaway, paid for by taxpayers. But the USFS had gone further, requiring that concessionaires like our company also accept the pass and give half off to seniors. While giving half off to seniors at government-run campgrounds had to be funded by taxpayers, concessionaires only have use fees to fund operations. So to give half off to seniors, prices have to be raised to everyone else. The senior discount requirement was raising prices (and still does) $4-$5 a night for every other camper.
Well, long story short (too late!) the US Forest Service folded under the organized pressure of senior groups. And my guess is that they will do so again here. Unlike with the National Park Service which has a clear mandate and strong public support, few people get misty-eyed about the USFS, which means they are always sensitive to bad news that might hurt them in the next budget fight.
PS -- Is someone going to go back and bill Ansel Adams' estate? Isn't he exactly the sort of commercial nature photographer that this rule is aimed at?
Update: I have talked to a number of people in the know on this. Apparently what began as a desire merely to stop high impact filming in the wilderness -- full Hollywood movie sets with catering trucks, etc. -- has gotten taken over by a large group in the USFS that is at best skeptical and at worst hostile to commercial activity. They would explain these rules, at least in private, by saying that anything commercial is by definition antithetical to the very concept of wilderness that they hold in their heads, and that thus all commercial activity needs to be banned in the wilderness because it is inherently corrupting.
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.
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.
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.
Glen Reynolds brings us this bit from a letter to the WSJ about the IRS and 501c4's:
For example, if an IRS official subjects citizens to incredibly burdensome demands for irrelevant information just to harass them for their political or religious beliefs, no 501(c)(4) group could later criticize that official’s nomination to be IRS commissioner, without engaging in restricted activity. That’s because the IRS’s proposed regulation defines even unelected government officials, like agency heads and judges, as “candidates” if they have been nominated for a position requiring Senate confirmation. The IRS’s proposed rules are an attack on the First Amendment that will make it easier for the government to get away with harassing political dissenters and whistleblowers in the future.
The part about classifying Senate-confirmed officials as "candidates" seems to be part of the same initiative as the changes to the filibuster to make it easier for the President to confirm controversial judges and administrators. I wonder if this is a general effort or battlespace preparation for a specific confirmation battle.
I can't think of any justification for the FDA's shutdown of 23andme's genetic testing service except one of pure control. It is yet another case where you and I are not smart enough or sophisticated enough to be trusted with information about our own bodies. Because we might use the information in some way with which Maya Shankar might not agree.
Let me be clear, I am not offended by all regulation of genetic tests. Indeed, genetic tests are already regulated. To be precise, the labs that perform genetic tests are regulated by the Clinical Laboratory Improvement Amendments (CLIA) as overseen by the CMS (here is an excellent primer). The CLIA requires all labs, including the labs used by 23andMe, to be inspected for quality control, record keeping and the qualifications of their personnel. The goal is to ensure that the tests are accurate, reliable, timely, confidential and not risky to patients. I am not offended when the goal of regulation is to help consumers buy the product that they have contracted to buy.
What the FDA wants to do is categorically different. The FDA wants to regulate genetic tests as a high-riskmedical device that cannot be sold until and unless the FDA permits it be sold.
Moreover, the FDA wants to judge not the analytic validity of the tests, whether the tests accurately read the genetic code as the firms promise (already regulated under the CLIA) but the clinical validity, whether particular identified alleles are causal for conditions or disease. The latter requirement is the death-knell for the products because of the expense and time it takes to prove specific genes are causal for diseases. Moreover, it means that firms like 23andMe will not be able to tell consumers about their own DNA but instead will only be allowed to offer a peek at the sections of code that the FDA has deemed it ok for consumers to see.
Alternatively, firms may be allowed to sequence a consumer’s genetic code and even report it to them but they will not be allowed to tell consumers what the letters mean. Here is why I think the FDA’s actions are unconstitutional. Reading an individual’s code is safe and effective. Interpreting the code and communicating opinions about it may or may not be safe–just like all communication–but it falls squarely under the First Amendment.
I know that libertarians want to kill the FDA altogether. That is never going to happen. But what might be more realistic is to shift their governing law from validating that medical treatments are safe and effective to just safe.
Brad Warbiany has more, including real life examples of how 23andme's service has been useful to his family.
NYPD Officer Craig Matthews complained about an illegal quota system for stops and arrests. As anyone familiar with NYPD culture could predict, he experienced retaliation from his superiors for doing so. When he sued, the NYPD hit him with an argument that's outrageous but very likely legally correct: it's your job to report misconduct, so the First Amendment doesn't prohibit us from retaliating against you for doing so.
The Association of Lawless Broomstick-Fetishist Brown-Person-Groping Can't-Shoot-Straight Thugs has a point. Because their employer is the government, public employees have limited First Amendment rights to be free of employer retaliation for their speech. But in in Garcetti v. Ceballos the Supreme Court said that right protects speech on matters of public concern unless the speech is part of a job duty:
We hold that when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.
Thus in Garcetti the Court said a Deputy DA had no right to be free of retaliation for pointing out perjury in an arrest warrant application because doing so was his job. I explained how this doctrine works — and how courts have made an exception for professors at public colleges — in this post.
The result is that an entity like the NYPD can argue that its officers are required by their job to report unlawful activity by their superiors and fellow officers, and that therefore their act of reporting such misconduct enjoys no First Amendment protection.
Can websites be forced to change to accommodate the disabled — by using “simpler language” to appeal to the “intellectually disabled or by making them accessible to the blind and deaf at considerable expense?
Apparently, the White House is gearing up to force costly changes on websites in the name of ADA compliance. The implications could be staggering, and in certain scenarios would basically force me to certainly close down this site, and likely close down many of my business sites.
Generally, the First Amendment gives you the right to choose who to talk to and how, without government interference. There is no obligation to make your message accessible to the whole world, and the government can’t force you to make your speech accessible to everyone, much less appealing to them. The government couldn’t require you to give speeches in English rather than Spanish …
But now, the Obama administration appears to be planning to use the Americans with Disabilities Act (ADA) to force many web sites to either accommodate the disabled, or shut down.
The First Amendment is nearly the last portion of the Bill of Rights that courts seem to take seriously -- treating all the others as if the Founders were just kidding. The 9th and 10th went early. The 2nd has been nibbled away at. The 4th has become a bad joke under the last several Administrations. We abandoned the 6th somewhere out in Guantanamo Bay and the 5th has fallen victim to the drug war. (The 3rd is still alive and well, though!)
But today freedom of speech is under fire by those who increasingly claim [some] people have a right not to be offended that trumps free speech. Just who has this new right and who does not (certainly white males don't seem to have it) is unclear, as well as how one can ever enforce a standard where the victim has full discretion in determining if a crime has been committed, are left unexplained.
We have seen this theory of speech gaining adherents in Universities, for example, so while its continued gains are worrisome though not entirely unexpected. The one thing I never saw coming in the increasingly secular west was how much momentum anti-blasphemy laws would gain, and how much these laws would be pushed by the Left**.
Jonathon Turley has a good article on this topic in the Washington Post, as linked by Reason
Ken at Popehat has a roundup of creeping ant-blasphemy law over the last year (it is hard for me to even write that sentence seriously, it sounds so Medieval)
**It is in fact insane that the Left has so many people coming out in favor of protecting Islam from blasphemy. I know it is not everyone, but it is just amazing that a good number of people who call themselves liberal can excuse violence by a misogynist culture that is meant to suppress speech in the name of Gods and Churches. We have actual children of the sixties arguing that threats of violence are sufficiently good reason to suppress speech and that a religion that basically enslaves women needs laws that protect it from criticism (these same children of the sixties that all protested the Christmas bombings of Cambodia are also launching drone strikes willy nilly on civilians and claiming that the President can assassinate Americans solely on his say-so, but those are different topics.)
This all goes to prove my long-time conviction that the political parties have very little foundation in any real morality, and that they tend to simply take positions opposite of the other party. Since Conservatives staked out the anti-Islam position, the Left feels the need to find some way to be pro-Islam. Weird, but I can't think of any other explanation. The only exceptions to this rule are 1) expansions of Presidential power and 2) taking the drug war to new stupid extremes. Both parties seem unified in supporting these two things, at least when their guy is in office.
Apparently the co-owner of the Miami Heat Ranaan Katz does not like to be criticized by the plebes. So like many rich guys nowadays, he sued a blogger who he felt was saying hurtful things about him, because as we all know the First Amendment has a built in exception for college students and billionaires who have a right not to be offended by other peoples' speech. So far, this is just the usual SLAPP nuttiness, up to and including a rallying of support by attorneys willing to help out pro bono. This latter can usually solve the problem, as these suits gain their strength not from any legal merit but from the ability to intimidate ordinary people unfamiliar with the legal system and without the resources to hire top attorneys to defend themselves.
But, as with the case of serial moron Charles Carreon, Katz and his attorneys then proceeded to drive right over the cliff. Because they then sued the attorney's representing the blogger on the brilliant theory that by providing legal advice to the blogger, the attorneys made themselves parties to the bloggers "crimes." Seriously. By which theory Jerry Sandusky's attorneys will soon be serving time for child abuse.
I will admit, I can get angry, especially when I believe someone has done me wrong. But over time, I have learned to distrust this anger. About twenty of twenty of the actions that I have most regretted in life or that have backfired on me have been undertaken during such periods of anger -- from yelling at innocent airline employees to writing scathing business letters that only make a situation worse. I have learned to impose on myself a sort of count-to-ten rule, where if I am really ticked off about something, I force myself to wait 24 hours before I respond. It works for me.
Attorney Charles Carreon needs to figure out a parallel strategy, or else he needs a business partner or family member who can perform an intervention for him. Because last week, he totally lost it.
As you might remember from our last episode, Carreon was representing a web site called Funnyjunk where people post content strip-mined from other sites. One of those sites, the Oatmeal, got mad about their cartoons ending up on this site without compensation, and called them out online. No lawsuit, nothing unnatural, just good old American criticism.
I don't know enough about copyright law to know if Funnyjunk was in the right or wrong. The Oatmeal could have tied it up anyway in copyright suits, but chose not to. So of course Funnyjunk responded in asymmetric fashi0n by hiring Carreon to threaten the Oatmeal with a $20,000 lawsuit. Apparently they were really sad and hurt by the Oatmeal's criticism, and argued that the Oatmeal abused their copyrighted name by using it online in the criticism (a hilarious charge given how the whole thing started). By the way, in case anyone is confused about this, though this approach is tried constantly, courts have routinely held that there is no such copyright that bars someone from criticism or comment using one's name.
At this point, this all constituted irritating but fairly normal (unfortunately) behavior of people and lawyers online who don't really understand the First Amendment.
On Friday, he apparently sued not only the Oatmeal (for criticizing him online, causing other people to hate him, and for violating his copyright in his own name) but also, get ready for this, the National Wildlife Federation and the American Cancer Society. Why? Because when the Oatmeal first got Carreon's demand letter, its proprietor said he would raise $20,000 for charity instead, and send Funnyjunk a picture of the money. To date, nearly $200,000 has been raised for the two charities by Oatmeal fans who wanted to show their support.
Apparently, according to Carreon's suit (I still can't believe he actually filed this), the money that was raised for these charities was tainted because it was raised in the name of making him look like a doofus. Which, by the way, is exactly right. I am not a huge fan of either charity (they use too much money in both cases for political activism rather than solving problems), but I gave $100 just to help hammer home the point that Charles Carreon is an idiot.
Perhaps this guy has no friends. But if he does, one of them needs to be grabbing his collar and shoving him up against the wall and explaining in one syllable words how suing two prominent charities is NOT a path to success in the war to reclaim his reputation. The guy basically kneecapped himself with his opening shot. He will soon learn that while it may be increasingly against the law on college campuses to hurt someone's feelings with your speech, it is not illegal in the rest of America. And he will also soon learn all about California's tough anti-SLAPP law, as he finds himself headed to Bank of America to take out a second mortgage on his home so he can pay the legal bills of those he has sued with the intent to suppress their speech.
Update: Mr. Carreon, welcome to the Streisand effect. Last Thursday, none of his first page Google results mentioned this incident. Today, there are five.
Update #2: Mr. Carreon claims his web site has been hacked. Maybe. But I will observe that for the web NOOB, "buying the cheapest Godaddy hosting account that is fine for my normal 12 visitors but crashes when I get 50,000 hits in an hour from Reddit" and "hacking" often look the same.
Update #3 and irony alert: If you want to see something odd, check out the web site he and his wife run. The site is full of very raw critiques that would easily land a desk full of lawsuits in the Carreon mailbox if the legal system routinely accepted the type of censorious lawsuits he himself is attempting to initiate. If he takes the linked site down, the screenshot is here. As an aside, I am constantly amazed at how liberals, including those who claim to be feminists, seem so obsessed with the sexuality of Conservative women and couch so much of their criticism in terms up to and including rape images (particularly oral sex).
There is an argument going around, mainly on the Left, that the Supreme Court cannot overturn the PPACA (aka Obamacare) because it is just too major and significant. It's sort of OK to overturn minor legislation at the margins, but if Congress does something really big, it deserved the Court's respect and acquiescence.
But it strikes me that the larger and more comprehensive a piece of legislation is, the more likely it is to run afoul of Constitutional restrictions. And this is the case no matter what theory one holds about the Constitution.
I am not a Constitutional scholar nor a lawyer, but I would describe two schools of thought on the Constitution. The first is that the Constitution gives the Federal government certain enumerated, defined powers beyond which it may not stray. The second is that the Constitution gives citizens a number of enumerated, defined rights (e.g. First Amendment freedom of speech) such that the Federal government can do most anything it wants as long as it does not trample on these defined rights. (I would argue that the first interpretation was the clear meaning of its authors, and the second interpretation is probably the majority view today of average Americans today).
But under either interpretation, larger, more sweeping legislation is more rather than less likely to cross a boundary that circumscribes Federal power. Whether such a boundary has been crossed by this legislation is another matter, but the argument that large legislation per se should be exempt from the possibility of being overturned on Constitutional grounds does not hold water.
According to Ken and Popehat, Eugene Volokh is defending Crystal Cox in a free speech case. Here is some background on Ms. Cox. In discussing Volokh's defense, Ken makes the same point I have on many occasions:
Crystal Cox is not a sincere supporter of free speech. Crystal Cox is not a defender of the First Amendment. Crystal Cox supports free speech for Crystal Cox, but for her own critics, Crystal Cox is a vigorous (if mostly incoherent) advocate for broad and unprincipled censorship.
This should not surprise us. As I mentioned before, free speech cases often involve defending vile speech by repugnant people. Nearly as often, those repugnant people are no respecters of the rights of anyone else. Do you think the Nazis who marched at Skokie, if they had their way, would uphold the free speech rights of the religious and ethnic minorities who protested them? Do you imagine that Fred Phelps' church, given its choice, would permit the blasphemous and idolatrous freedoms it rails against?
No. We extend constitutional rights to people who, given the opportunity, would not extend the same rights to us. That's how we roll.
Crystal Cox is no different. Eugene Volokh and the Electronic Frontier Foundation are appealing the judgment against her to vindicate (through however flawed a vessel) important free speech issues.
But it is one thing for me to blog that everyone, including Illinois Nazis and Crystal Cox, should have free speech rights. It's quite another to actually spend days of one's time on a pro bono basis actually handling her legal work. So kudos to Volokh -- we all know the sewers need to be cleaned out from time to time but few of us actually will jump in and do it.
My new column is up at Forbes, and discusses the proposal by a number of Congressmen for a Constitutional Amendment to strip corporations of speech and other rights. The post is hard to excerpt but here is just a bit:
This is why this proposed Amendment is so absurd. In effect, it would mean that we all enjoy the full range of Constitutional rights, except when we agree to assemble and cooperate -- then we lose them all. If I as an individual bake bread in my kitchen for resale, I could still petition the state to modify regulations relevant to my activity. If I then join together with my neighbor in a cooperative venture to bake and resell bread, does it really make sense that I would then lose my right to petition the government?
Worse, the proposed Amendment does not limit its scope to just the First Amendment. It means that individuals, when on corporate property, might have no protection from unreasonable searches and seizures; corporations would have no guarantee of due process or of a jury trial in civil suits; corporate assets would no longer be protected from eminent domain seizure without compensation. Under this provision, the Federal government could seize Apple Computer if it so desired (or even quarter troops in the Apple offices!). This all sounds like a stalking horse for Socialism, which might seem overwrought until one realizes that Bernie Sanders is the sponsor of a similar proposal in the Senate....
Of all the possible approaches to reducing the ability of private citizens to manipulate government policy to their personal benefit, this is in fact likely the worst. As mentioned above, there are many different avenues to exercising influence and power, of which election spending and advertising is just one. But election spending is the most transparent of all of these approaches. This proposed amendment would in effect substitute highly visible advertising and electioneering with backroom deals and political patronage that is far more hidden from the public eye. A cynical person might argue that this is exactly the goal.
There are cases in which I support jury nullification. I cannot imagine sitting on a jury and voting to convict someone of violating a law I thought to be grossly unethical, no matter what the jury instructions were.
In response to Julian Heicklen’s motion to dismiss his indictment [for distributing pamphlets on jury nullification] on First Amendment grounds, federal attorneys have filed a response with the court. Here is the federal government’s position: “[T]he defendant’s advocacy of jury nullification, directed as it is to jurors, would be both criminal and without Constitutional protections no matter where it occurred” [emphasis added]. This is really astonishing. A talk radio host is subject to arrest for saying something like, “Let me tell you all what I think. Jurors should vote their conscience!” Newspaper columnists and bloggers subject to arrest too?
Next up -- it will be illegal to speak out against the President's ability to detain or assassinate Americans who he believes to be terrorists.
We have reached the point that one only needs to mention "radiation" and people go nuts with fear, no matter what the context or concentration (witness all the morons buying Iodine tables in the US after the Japanese nuclear accident).
There are folks today who are trying to do the same thing in the world of First Amendment rights, making any mention of violence, no matter in what context, the cause of a major league freakout.
Witness this story you have probably seen already, about the professor in Wisconsin who had a Mal Reynolds (Firefly) poster that had a quote from one of the show's episodes:
You don't know me, son, so let me explain this to you once: If I ever kill you, you'll be awake. You'll be facing me. And you'll be armed.
To call this a threat is absurd. In fact, in its original context, it was an anti-threat. It was a statement of old-fashioned honor by a character who lived in a violent world. And of course it is freaking fiction, and has no more relevance as a threat to real-life visitors to the professors offices than a picture of the Governator saying "I'll be back."
Not to mention the fact that such actions against speech are seldom enforced in a content-neutral sort of way. One wonders how many Che Gueverra (a real life killer) posters the university tolerates, or how many "well-behaved women seldom make history" (arguably encouraging women to break the law) bumper stickers can be found in the parking lot. The professor also had a poster taken down that explicitly advocates against violence, and had that poster taken down as well. One wonders how many similar posters with eye-catching graphics one might find around campus advocating against violence against women or violence in Darfur.
What do corn farmers and Hollywood studios have in common? They both have an uncanny ability to force self-serving legislation through Congress. This week's bit of sucking up to Hollywood is the PROTECT IP act, currently under consideration in Congress:
An ideologically diverse group of 90 law professors has signed a letter opposing the PROTECT IP Act, the Hollywood-backed copyright enforcement/Internet blacklist legislation now working its way through Congress. The letter argues that its domain-blocking provisions amount to Internet censorship that is barred by the First Amendment.
Jointly authored by Mark Lemley, David Levine, and David Post, the letter is signed not only by prominent liberals like Larry Lessig and Yochai Benkler, but also by libertarians like Post and Glenn "Instapundit"Reynolds.
"The Act would allow courts to order any Internet service to stop recognizing [a] site even on a temporary restraining order... issued the same day the complaint is filed," they write. Such a restraining order, which they describe as "the equivalent of an Internet death penalty," raises serious constitutional questions.
The Supreme Court has held that it's unconstitutional to suppress speech without an "adversary proceeding." That is, a speaker must, at a minimum, be given the opportunity to tell his side of the story to a judge before his speech can be suppressed.
Yet under PIPA, a judge decides whether to block a domain after hearing only from the government. Overseas domain owners (and the speakers who might make use of their websites) aren't offered the opportunity to either participate in the legal process or appeal the decision after the fact. (Affected domain owners may file a separate lawsuit after the fact.) This, the professors say, "falls far short of what the Constitution requires before speech can be eliminated from public circulation."
This was a pretty amazing article on cost savings experienced already by one school district in Wisconsin after the collective bargaining agreement with government unions was voided.
Of course, there have already been substantial cost-savings as more sane work rules have been put in place and employees have to pay a larger (but still trivial) share of their pension and health care premiums.
But I thought this bit of self-dealing by the unions was pretty amazing and is the type of thing that did not make the news back in the whole Wisconsin brouhaha
"The monetary part of it is not the entire issue," says Arnoldussen, a political independent who won a spot on the board in a nonpartisan election. Indeed, some of the most important improvements in Kaukauna's outlook are because of the new limits on collective bargaining.
In the past, Kaukauna's agreement with the teachers union required the school district to purchase health insurance coverage from something called WEA Trust -- a company created by the Wisconsin teachers union. "It was in the collective bargaining agreement that we could only negotiate with them," says Arnoldussen. "Well, you know what happens when you can only negotiate with one vendor." This year, WEA Trust told Kaukauna that it would face a significant increase in premiums.
Now, the collective bargaining agreement is gone, and the school district is free to shop around for coverage. And all of a sudden, WEA Trust has changed its position. "With these changes, the schools could go out for bids, and lo and behold, WEA Trust said, 'We can match the lowest bid,'" says Republican state Rep. Jim Steineke, who represents the area and supports the Walker changes. At least for the moment, Kaukauna is staying with WEA Trust, but saving substantial amounts of money.
This strikes me as an amazing example of self-dealing. The union requires that their health care insurer get a monopoly, and then extract monopoly rents from the relationship. You can be sure the union rank and file never saw a dime of these health care profits, which likely flowed to just a few union leaders plus the politicians who helped make it possible.
Standard disclaimer: I have no particular beef with unions per se, whose ability to organize workers is protected under the First Amendment's right to assembly. My problems related to unions are
- Government rules that tilt the balance of power in negotiation to unions, require that all employees (in certain non-right-to-work states) join unions or at least pay dues, etc.
- Public unions are a different animal than private sector unions and I have turned pretty strongly against these. The problem in public sector unions is that there is no adversary -- ie the politicians nominally negotiating with unions are often on the same side as the unions and cut horrible sweetheart deals that screw taxpayers. Until we find a way to really represent taxpayers in public sector union negotiations as well as shareholders are represented in private sector negotiations, I tend to favor limits on public sector collective bargaining.
This whole argument about corporate personhood is an enormous distraction.
Corporations have certain rights not because they are legally persons, but because they are formed by and made up of persons.
Here is my simple formulation. Inidividuals have the right to free speech. Individuals have the right to association. It is crazy to then posit that individuals, when they associate, no longer have free speech rights. If five of us gather on a park bench, we have not somehow given up our speech or other rights by doing so. And the fact that we may form a formal club or organization among us with bylaws and hierarchies does not change this fact one bit.
By the way, if the First Amendment does not apply to individuals who have assembled into a corporation, does the Fourth Amendment apply? How about the Fifth? or Sixth? of Seventh? or Eighth?