Posts tagged ‘first amendment’

Is the Forest Service Requiring Permits for Photography? Yes and No.

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.

The Progressive View of the First Ammendment

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

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

First up, here is David Bernstein

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

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

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

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

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

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

James Taranto also highlights parts of the decision

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

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

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

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

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

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

Counter-Proposal for Kevin Drum on Voting Rights

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

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

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

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

IRS and the Filibuster

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.

It's All About Control

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.

Wow, This Element of Law Sure Has Gotten Screwed Up

From the awesome Ken White at Popehat:

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.

Wait, what?

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.

Well, At Least TMZ Will Be OK

Via Walter Olson

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.

Free Speech -- We Were Just Kidding!

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.

More SLAPP-happy Lawyer Fun

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.

Charles Carreon Totally Loses It

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.

Then Charles Carreon drove over the cliff.

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).

Judicial Review

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.

I Have A Lot of Respect for Free Speech Lawyers

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.

Assemble Freely, and Lose All Your Rights

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.

The Government Considers This Blog Post Illegal

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.

For explanation, see here, but the key quote

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.

Radioactive Speech

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.

Corn Farmers and Hollywood Studios

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."

 

Cost Savings In Wisconsin

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.

Bruce at Q&O has more

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

  1. 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.
  2. 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.

Very Quick Thought on Corporate Speech Cases

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?

Playing the Cowbell in Prison

Will Blue Oyster Cult (gratuitous umlauts omitted) have to go on the lam now that the First Amendment does not extend to telling someone to commit suicide?

Update:  Don't be afraid, BOC.  I read it closer, and they are probably OK.  Only convincing a specific person to commit suicide is unprotected.  General advocacy appears OK.

Department of WTF

From Valley Fever

As we noted yesterday, more than 40 Arizona state legislators have signed on to a bill that would make the Colt single-action Army revolver the official state firearm. Early this morning, the Senate Appropriations Committeevoted 9-4 to advance the measure to a full Senate vote.

Seriously?  What a complete waste of time.  If we are going to start naming official state _____ where the blank is a commercially sold product, could we at least auction the rights, like the Olympics does?  I understand that there are passionate 2nd amendment defenders that somehow think this is a statement they need to make, but I am a passionate first amendment defender as well and I see no need for an official state microphone or printing press model.

First Amendment and Speech

I believe it is time for a public information notice reminding everyone the actual text of the First Amendment as it applies to speech:

Congress shall make no law ... abridging the freedom of speech

It does NOT say:

No citizen may ever experience any negative consequences from their speech

This is the reason the reminder seems necessary

Ground Zero Mosque and Limited Government

It appears that for a principled defense of property rights, the exercise of religion in America, and limited government we have to turn to ... liberal blogger Kevin Drum

We already know that a large majority of Americans are opposed to building it, but here are the results of an Economist poll on a slightly different question:

Whether or not you think the Islamic cultural centre and mosque should be built near the World Trade Center site, do you think that Muslims have a constitutional right to build a mosque there?

Technically, I think the wording of this question should have been turned around: not whether Muslims have the right to build a mosque on Park Place, but whether the government has the constitutional right to stop them from building a mosque on Park Place.

Still, I think everyone probably understands what this means, and it's just depressing as hell. It's one thing to oppose the mosque just because you don't like the idea, but to deny that Muslims even have a constitutional right to build it? That should be a no-brainer. Of course they do.

Seriously, this is from a man who probably does not think you have the Constitutional right to choose your own doctor. Why are Republicans ceding the high ground on this to Democrats? Well, it turns out that is the theme of my new column this week in Forbes.

...prospective mosque-banners would argue that I simply don't understand how utterly, deeply offensive the proposed location of this mosque is to them. But that is not the case. I am offended as well by what might be a laudatory memorial to a terrorist incident. But the question for me is, do we have a right not to be offended?

The irony is that for the last decade or so, conservatives have fought the political correctness movement over exactly this issue. Conservative commentators, rightly I think, were up in arms over the "hate speech" trial of Mark Steyn in Canada, and more recently the cancellation of Ann Coulter's Canadian speaking tour. In both cases Canadian government and university officials argued that Steyn's and Coulter's criticisms of radical Islam were too divisive, too defamatory to Muslims, and in general too offensive to be allowed public voice....

This is what truly floors me about the Ground Zero controversy: Republicans all over the country are standing up and begging House Speaker Nancy Pelosi and President Barack Obama to void the property rights of a private entity, shut down the construction of a church, and do so to protect some mythical right not to be offended, a right that, until recently, conservatives argued did not exist. Do Republicans really want to encourage the federal government to tear up property rights and First Amendment protections, all in the name of hurt feelings? If conservatives set this precedent today, they are almost certainly not going to like how it is used tomorrow.

Postscript: I notice something in this poll that I have seen several times lately.  Traditionally, poll results for independents always fell somewhere between Republicans and Democrats.  In this poll, as in several others I have seen, Independent responses actually fell outside of these bounds.  Increasingly independents are shedding the "moderate" label and actually pacing the two political parties.  I find this encouraging, though it is probably too much to hope for that this is the leading indicator of some type of radical ideological restructuring of the Coke and Pepsi parties.

The Most Irritating Use of My Tax Money

I find many of the uses politicians make of the money they take from me to be irritating.  But perhaps the worst of them all is to use my money to fund their own election campaigns when they can't get enough people to voluntarily contribute.  Which is why I am happy to see the Supreme Court put a injunction on Arizona's politicians take tax money to re-elect themselves law.

Today the Supreme Court blocked "matching funds" for candidates under Arizona's Clean Elections Law while it decides whether to hear a First Amendment challenge to the system. Under the law, participating candidates receive one taxpayer dollar for each dollar spent by their privately funded opponents (or by groups sponsoring messages for their benefit) above a certain threshold. The Goldwater Institute and the Institute for Justice, representing politicians and activists who are challenging the law, argue that it penalizes people for exercising their right to freedom of speech by using taxpayer money to undermine the impact of their message. In January, U.S. District Judge Roslyn O. Silver agreed, concluding that Arizona's campaign finance system "burdens"¦First Amendment rights, is not supported by a compelling state interest, is not narrowly tailored, and is not the least restrictive alternative." Last month the U.S. Court of Appeals overturned Silver's decision and lifted her injunction against the delivery of matching funds. Today's stay effectively reinstates the injunction until the Court either rejects the case or accepts and decides it.

"The Supreme Court's decision today will allow the 2010 Arizona election to occur without the government placing its thumb on the scale in favor of those politicians who receive government subsidies," says Institute for Justice senior attorney Bill Maurer. "The purpose of this law was to limit individuals' speech by limiting their spending. But the First Amendment does not permit the government to restrain Americans from robustly exercising the right of free speech."

Creating the American Pravda

It is a beautiful day here, so I really don't have the time or desire right now to summarize the absolute mess that is the FTC discussion draft for the "reinvention of journalism," reinvention being a synonym apparently for government takeover.  Almost every proposal is fraught with unintended (or perhaps intended but hidden) consequences, faulty economics, and unprecedented attacks of the first amendment.  If you don't have the time to read it, I will try to summarize it next week, but just open it and scroll the bold headers with the proposals.  Its really outrageous.  Here are just some quick highlights:

  • Substantial narrowing of fair use, with particular focus on how search engines and other online sites (e.g. blogs) use and/or have to pay for access to news sites
  • Expansion of news copyrights on breaking news - ie certain papers will own the copyrights to certain news events if they are the first mover on it
  • Increased government funding of news organizations along multiple vectors, from subsidies to guaranteed loans to income tax checkoffs to lower postal rates to Americorps programs for for journalists.
  • Simultaneously reduce private funding of journalism through taxes, including a tax on advertisers
  • Shift the organizational model of journalism from profit corporations (which rely on satisfying individuals to get their revenue) to non-profit organizations dependent on the government for funding
  • New taxes on and licensing of the Internet.   New taxes on broadcast spectrum to subsidize print media (shifting money from media that are more hostile to the administration to print media and non-profits that are more sympathetic to the administration).

Here is the intro that was missing from the report:  "The New York Times and Newsweek can't figure out a profitable business model in the Internet age.  We propose the government step in with all means at its disposal to limit competition to these print media companies and create new government subsidies for their business.  Once their companies' profitability is absolutely dependent on these government mandates and subsidies, the Federal government will have a powerful source of leverage to protect itself from criticism in these outlets.  Once we have this situation in place, we will have a strong inventive to quash more independent outlets and maximize the market share of media companies beholden to the government.  In a large sense, our recommendations build off the success of the tobacco settlement experiment, where a few large companies agreed to pay the government large percentages of their future profits, and then the government worked diligently to quash new tobacco competitors to maximize the market share of those companies paying it settlement money."

Update: South Bend Seven makes an interesting comparison to campus newspapers.

Speech and Spending

I had a dinner conversation last night with my Massachusetts mother-in-law.  She is pretty interesting to talk to because she is a pretty good bellwether for Democratic talking points on most issues.  She was opposed to the recent Supreme Court speech decision removing limits on third party advertising near an election  (I think she misunderstood the scope of that decision but that is not surprising given the shoddy reporting on it, up to and including Obama getting it wrong in his State of the Union).   She advocated strict campaign spending restrictions (both in terms of amount of money and length of the campaign season) combined with term limits.

We could have gone a lot of places with the discussion, but we ended up (before we terminated the conversation in the name of civility) discussing whether restrictions on money were equivalent to restrictions on speech.  She of course said they were not, and said under strict monetary controls I still had freedom of speech - weren't we still talking in the car?

It is hard to reach common ground when one person is arguing from a strict rights-based point of view while the other is arguing from a utilitarian point-of-view.   Essentially she knows in her heart that she is restricting speech, but wishes to do so to reach a better outcome.  I made a couple of utilitarian arguments, including:

  • I pointed out that when the stakes of government are so high, money and influence never goes away.  Just as in any economy, when you ban money, a barter economy arises.  So if we ban large campaign spending, then the quid pro quo becomes grass roots efforts and voter mobilization.  Groups like the UAW become more powerful (we are seeing that already).  They are trading their member's votes for influence.  Connected companies like GE are doing the same thing, trading their support for legislation that is generally hostile to commerce for specific clauses in said legislation that exempts GE and/or makes the laws even more punishing on their competition.  The problem with all this activity is it is hard to see and totally unaccountable -- at least with advertisements we see people out in the open with their agendas.
  • I observed that it was smart to add term limits to her plan, as otherwise her recommendations would be the great incumbent protection act.  But by limiting money, immediate advantage is given to people who already have name recognition and celebrity.  Think we have too many actors and athletes running for office?   Well be prepared for a flood with stricter campaign finance restrictions

However, I tend to shy away form utilitarian arguments.  The best arguments I have against the notion that money can be restricted without restricting speech are:

  • Her comment that I still had freedom of speech (ie I am talking freely in the car) with strict campaign cash restrictions ignores the actual wording of the First Amendment, which reads "Congress shall make no law ... abridging the freedom of speech."  Her test, which is "Am I still able to speak in some forum even if I can't in others" is not a valid test for conformance to the First Amendment.  Otherwise, speech could be restricted at will as long as there was some narrow safe harbor where one could express his opinion.    The better test is whether the proposed law, ie a restriction on how much and when a person can spend money advertising his or her opinions, abridges or reduces freedom of speech.  And I think it is hard to deny that everyone has less freedom, in the form of fewer options and reduced scope, after such legislation.
  • One interesting test is to broaden the question -- Does restricting spending on something (in this case speech) constitute a restriction on one's underlying right to the activity (e.g. speaking freely).  I was tempted to ask her (she is a strong and vocal abortion rights supporter) whether she would therefore consider the right to abortion to be untouched by Congress if a law were passed to limit each person's spending on abortion to $5 a year.   Abortion would still be entirely legal  -- all government would be doing is putting on some spending restrictions.   Obviously one's scope and options to get an abortion would be limited -- only those who happened to have a doctor in the family could perhaps get an abortion -- just as under her speech plan only those who had a large newspaper in the family could speak fully and freely before an election.