To Save Constitutional Liberty, Save Marriage

With advocates' having finally managed to bring the issue of same-sex marriage to the Supreme Court, it is critical that those who believe in limited government understand one thing: If the Constitution does not allow the people of the United States to maintain the traditional definition of marriage, then it does not allow them to govern themselves.

One often hears the classic quotations of the American Founders, such as "our Constitution was made only for a moral and religious people," but we can go ol' John Adams one better: Plainly stated, there is no mechanism for limited government — not federalism, not separation of powers, not representative democracy — that can maintain freedom if the government cannot reflect, but can redefine, the culture of the governed.

Put differently, if the people of the United States cannot insert cultural notions into government that would be wholly inappropriate coming from elected officials, then elected officials will use government to change the culture to their advantage or their own liking. That could be same-sex marriage. It could be some vague "holiday tree" during a school celebration of the solstice. It could be the assumption of Big Gulp evil. Or it could be the elevation of "equity” above Truth and Justice.

Continue reading on the Ocean State Current...

This Same-Sex Marriage Bill is Not Marriage Equality

First a disclaimer. I've been asking questions about this and trying to get information from various sources, but I think the questions coming from me, a known conservative, leads the receiver to believe I'm being sarcastic with my questions. I'm not. I'm being truly honest, as is what I'll state below.

The same-sex marriage bill was brought up by State Rep. Art Handy yesterday. (Read the text here) This is the bill that we've been hearing about for some time that will come to a vote early in this legislative session. This is the bill that is being touted by Marriage Equality Rhode Island (MERI). This is the bill that they say is about human rights and fairness. However, I believe this bill does not go far enough.

Maybe I'm in disagreement with many on the right who want to keep marriage as defined as between one consenting adult man and one consenting adult woman, as I'm fine with the idea of any two consenting adults being able to marry, or engage in some legal, binding contract that affords them the same rights and responsibilities as the other people who can currently marry in Rhode Island.

However, that's not what this bill does. This bill does offer exceptions, and I don't see that as the stated goal of equality and basic human rights. Why not simply change it so that any two consenting adults can marry each other? That's it. No more qualifiers or exceptions on it at all. What am I talking about? Here:

15.1.2 No person shall marry his or her sibling, parent, grandparent, child, grandchild, stepparent, grandparents’ spouse, spouse’s child, spouse’s grandchild, sibling’s child, or parent’s sibling.

and here

15-1-5. Bigamous marriages void ... A person is prohibited from marrying if such person is: (1) A party to another marriage; or (2) A party to a relationship that provides substantially the same rights, benefits and responsibilities as a marriage whether entered into in this state or another state or jurisdiction, and such marriage or relationship has not been finally dissolved, unless the parties to the intended marriage will be the same as the parties to such other marriage or relationship.

My question on both of those is "why not?" Why are we not allowing any of those things to happen? Keep in mind, my definition is any two consenting adults. So the mentally incompent, children and anything non-human is out. The real key here is being able to give consent. So spare me the questions about marrying the family dog or a ham sandwich.

But why can't two brothers enter into the contractual relationship that gives them the same rights and responsibilities as a married couple? If it's incest that repulses you, when did repulsion become a reason for deciding the law? If some are repulsed by the gay lifestyle, should that be enough to not allow them to marry? If the argument is that we don't want incestuous relationships creating children, then the question is whether creating children is the purpose of marriage.

As for bigamy, why not? If all the parties involved are consenting and all current spouses consent, why not? If my wife wants an additional husband, and he and I are willing to agree to that as well, why should the state say that we can't do that?

If the whole goal here is to allow two people the same basic rights as a man and a woman are currently afforded in Rhode Island, why is it only gay or lesbian couples that are being added? That's not a human rights, that's picking and choosing certain groups of adults. It's really no different than what we currently have where the law has chosen who has particular rights and who doesn't. This law simply increases the number of people who will be included, but it sure isn't marriage equality.

If we're going to pass a same-sex marriage bill for the purposes of marriage equality, let's do it and do it right and include everyone.

Things We Read Today (44), Wednesday

Government's corrupt pension handling; the discount rate scam; fighting off the zoning inspector; government peeking doesn't count as privacy invasion.

Continue reading on the Ocean State Current...

Things We Read Today (42), Weekend

The lesson of current events and history; what the 2nd Amendment means; what that means for change; government control and healthcare insecurity; government control and economic stagnation; a couple positive notes.

Continue reading on the Ocean State Current...

Looking for Reasons

There are no words to capture the horror of the school shooting, this morning, in Western Connecticut. Beyond the wave of raw emotion that nobody who hears the news can fail to feel, there isn't ultimately one thing on which to focus that emotion. Things that go so terribly wrong have a multitude of causes, and a society's perspective on addressing each one has a distant reach — different principles and boundaries of appropriateness and inviolability.

So, some people turn to tears and gratitude that the whims of fate haven't touched them in a certain way, thus far. Some look to name the illness that is necessarily behind a final snap. Some rush to blame the circumstances, whether the security of a school or the instruments of the act, in this case, guns.

Continue reading on the Ocean State Current...

The Self-Censorship of the Community and a Loss of Rights

This is quite a thing to read, in a region and a nation that prides itself on tolerance and freedoms of expression and religion. A Tiverton family has spent recent years investing in a spectacular show of Christmas lights on their house, to the extent that they're finding the visitor traffic to be an opportunity for charitable collections.

Asked about the national news that Rhode Island's governor, Lincoln Chafee, has made by doggedly and ineptly refusing to call the festive tree in the State House a "Christmas tree," here's their response to Providence Journal reporter Richard Dujardin:

... the couple acknowledged that they, too, have been a bit cautious as to what they include in their Christmas display. There's no Christ child, and no crèche.

If it were only up to her, said Colleen, she would have included "Christmas with a capital C," a song that does call for keeping Christ in Christmas. But she said she was afraid some might think it too political.

"We don't want anything political because someone might then try to shut us down. That could hurt the charities and the kids."

"You have to remember that this is the town that once shut down the Easter Bunny," Larry piped in, referring to a 2007 controversy when the superintendent of schools banned a parents group from setting up a booth at a school fair where people could have their pictures taken with the Easter Bunny — on grounds it would be a violation of the separation of church and state.

"Personally I think there are more important things to worry about," said Colleen. "I worry about people who don't have enough food to eat, and kids who are seriously ill. If people worried more about those important things, the world would be a better place."

So, the aggressive efforts of secular zealots have accomplished a sense among the people that their public expression of religious belief — on their own property and in the context of a holiday that's explicitly about those beliefs — would be political and that political speech would be grounds for the government to prevent charitable and community-building activities.

Continue reading on the Ocean State Current...

U.S. Grant and the Left-Right Lines

Two lines of debate in the battle of Left versus Right cross frequently.

One is the question of whether history has an inexorable pull toward which it progresses, making it possible for there to be a "right side" of history that one can predict beforehand for a given issue.  The other is whether one's side on the issues of the day offers a direct parallel to the sides that one would have taken having born at another period in history.

Continue reading on the Ocean State Current...

Things We Read Today (15), Thursday

Issuing bonds to harm the housing market; disavowing movies in Pakistan and tearing down banners in Cranston; the Constitution as ours to protect; the quick failure of QE3; and Catholic social teaching as the bridge for the conservative-libertarian divide.

Continue reading on the Ocean State Current...

The Nanny State, Part 4

I'm hearing a bit of a buzz about this new law the General Assembly just passed about requiring a doctor's note or a parent's signature every other visit to a tanning bed for minors. My first thought was also as some are making this out, "More anti-business legislation." But then, it's really a decision on how harmful the tanning beds are. If you believe they are and that they cause skin cancer, then tanning beds are harmful to people. We've also decided as a society that we don't want to let minors make decisions for themselves about things that could be harmful to them. Other examples would include the drinking age for alcohol and the minimum age for purchasing cigarettes. Both have been deemed harmful to minors, so they're not allowed. Is a tanning bed at least as harmful to minors as those other two things? I don't know, you can decide that for yourself.

One thing that gets me about the bill is how it doesn't really have the guts one way or the other. If it's harmful, then ban it. If it's not, then leave it alone. Plus, look at the nightmare of enforcement that the law just created for the tanning studio operators. The minor needs the in-person parental signature at least every two visits. Oh great. So 17 year old Brittany comes in for her pre-prom tan and the person working has to figure out if this is an odd-numbered visit (first visit requires a signature too). Or is this an even-numbered one? Or what if there are multiple studios around? Can she go to each of them for her even-numbered visit and rack up the exposure without Mommy or Daddy knowing?

It also comes down to a parenting issue. But that would be similar for the alcohol and tobacco as well. If I'm doing my job, I should be able to instill values in my child to know what's bad for her to the point where she can make those decisions in a smart way for herself. If I can't, odds are that I'll probably just sign the paper anyway.

So come on Assembly, if you're going to take on an issue, let's do it. Enough of this half a loaf stuff.

Of Slippery Slopes

I figured I'd take some backlash for my post supporting the bill that would ban smoking in cars with young children. Even Justin offered his own criticisms. After having a few days to think about it all, I'm going to stick to my guns and try to respond.

It seems that one of the common threads was the "slippery slope." If we allow X, then eventually we'll allow Y and that's just going too far. So let's look at the slope a different way. Rather than looking downhill, let's look uphill. Many people took things to a ridiculous extreme such as "eating lots of chocolate cake" and "eating lollipops while driving." It seems that the concern is with the government "Extinguishing parents liberty to raise THEIR children", as one commenter mentioned. So let's take that to the other extreme.

Many of us believe in the Second Amendment, as in the right to keep and bear arms. I should be allowed to shoot my gun as well. What if it hits someone? Are you going to put me in jail for that? I mean, all I was doing was exercising MY rights.

I like to play baseball. I need to practice swinging a baseball bat. Maybe it hits someone while I'm swinging it. Maybe I choose to swing it as I'm walking down Main Street. I don't have a right to do that? What's next? Are you going to ban something as American as baseball?

All "slippery slopes" have a gray area. Some parts of the slope are black and white, Shooting someone with a gun or hitting them with a baseball bat is black and white. Most of us feel that's wrong. For others, smoking in a car with children present is a gray area. As another commenter mentioned, there is a line that we cross from one end, "shooting our child in the leg" to the other "feeding our child a Kit Kat." And lots of things in between. Where exactly is that line? For each of us, it is in a different place. For some people, spanking is on the "ok" side of the line, for others, it's not. For some people, smacking a child across the face is ok, and for others it's not. Clearly, smoking in a car feels ok to some people, where for others, it's not.

One of the things that also struck me here in the comments was how the vast majority of them were concerned with the parent's rights. How dare we take away the parent's rights to smoke in a car with children? How dare we challenge that person's rights to parent their child. I don't think a single commenter even mentioned the child's rights, which is exactly how I started the original post. Your rights end where mine begin. Your rights end when you start harming me.

So that leads to the question of how much harm is there. Someone even questioned whether second hand smoke is harmful at all and said the studies are unclear. Well, if you believe the tobacco lobbyists and corporations, smoking isn't even harmful. Do you believe that too?

Others wanted studies. Writing for Anchor Rising isn't a full time job for me, so I don't have time to do the kind of research I've done when I was in school. Sitting in libraries, researching and reading many studies and dissecting. I can run a few simple Google searches and come up with some things. Of course Google quickly comes back with multiple recommendations from doctors about banning smoking in cars, along with lots of other cities and a few states who have done it. But doing the next level of research, I come up with studies like:

• http://www.njgasp.org/2009TobaccoControl-Jonesetal.pdf
• http://www.njgasp.org/f_SF%20cars,kids,%20info,%20arguments.pdf
• http://www.cieh.org/uploadedFiles/Furniture/media/09%20Elaine%20Clark.pdf
• http://www.njgasp.org/PHLC_policy_paper_12-1-10.pdf

Like I said, this isn't exhaustive research and you can denigrate the studies linked all you want, like I said, I wish I had the time to do the proper digging.

However in the meantime, I'll take my chances with this altitude of the slope and re-state my support for Senator Sosnowski's bill.

Re: The Nanny State, Part 3, But...

Wow is that slope slippery!

Reading of Patrick's support for laws to adults for smoking in the car with children present makes me wonder two things. First, how common is the problem? I wouldn't even be comfortable asserting that "we've all seen" an example. Personally, I can't think of an example in the past decade or so. (Go back far enough, though, and I was an example.)

Maybe I just haven't been paying attention, but I'd like to see some sort of numbers, but I think we ought to know how big a problem we're trying to solve. Otherwise, such legislation looks mainly like pats on the back for the righteous.

Second, wouldn't it be safe to suggest that, in this day and age, children in the custody of people who would smoke in a small glass box with them are more likely than average to have larger problems than that which they inhale? It seems to me that a fine for the parents is not likely to have a net beneficial effects for the children we're ostensibly trying to help.

Is second-hand smoke worse than losing out on activities because insufficiently mature parents dread cigarette-free car rides with their children? Or what about car rides that replace the smoke with a highly tense and stressful atmosphere emanating from adults who think they need a cigarette?

I ask these things because Patrick is ceding a huge principle, here, when he writes, "when your choices affect children, it's people's responsibility to do something about it." Where is the limit there? Worse, yet, who gets to decide? England has provided a glimpse of that road, as it removes children from the homes of obese parents.

Personally, I'll go far enough with Patrick (perhaps to the disappointment of libertarian readers) and suggest that we do have the responsibility that he suggests. It's the "do something about it part" that requires reevaluation in our society. The something should be, first, taking the personal and often distasteful responsibility of passing judgment and imparting shame and, second, working toward the type of society in which people are more likely to choose to be good.

That's the harder part, because it requires us to restrict our own choices on matters in which we're perfectly capable of moderation... in everything that affects the whole jumbled mess of modern life and culture. I'm not saying that everything must be discarded, but we must be conscious of each decision we make, from our views on marriage to the music that colors our daily background.

It's as if, having chased the rabbit of tolerance and non-judgementalism down its hole, we're looking to the government to impose a sort of shame by proxy and by fee. One needn't rely on slippery-slope thinking to discern the danger in that.

The Nanny State, Part 3, But...

So here we go with the libertarianism again. The way I understand it, being a libertarian means that my rights end where yours begin and vice versa. Nothing I do should harm you and the same in return. So this is one place where the nanny state seems to be a good idea, especially when it comes down to protecting those who can't protect themselves, as in this case, one person's rights are going too far and affecting someone else.

The Providence Journal reports that State Senator Susan Sosnowski has sponsored a bill that will fine motorists for smoking in a car with children young enough to be in a restrained seat. The law would make this a secondary offense, meaning police may not pull the driver over just for smoking in the car with a child present.

I've long thought that when I see people smoking in the car with small children, it's a form of child abuse. You can often see the blue fog filling the car, and sometimes the car will have more than one smoker adding to the haze. Of course in the winter, the windows are rolled up and the the children are sitting back there breathing in that second hand smoke.

I imagine people may comment "Oh great, what's next, outlawing chocolate cake too? You're going to stop me from having dessert next?" No, that's not it at all. You can do whatever you want to your own body, if you're an adult. Eat yourself into oblivion. I wish you wouldn't, for your own sake, but that's your choice. However when your choices affect children, it's people's responsibility to do something about it.

I'm not sure a $25 fine for a secondary offense will be enough to stop people from "exercising their rights," but it's a good start, a good first step. I support Senator Sosnowski's efforts here and I hope this does get passed into RI law.

Woonsocket War Memorial: Rally and Defense Fund

... yes, even the self-described "stickler about church and state separation", Jim Baron, says it's a war memorial.

But the war memorial at Place Jolicoeur is different — materially, qualitatively and significantly different. It is different because it is not a religious symbol at all. Cross or no cross, it is not a religious symbol, it is a war memorial.

Its purpose — its reason for being, and for being where it is in the public square — has nothing to do with faith or religion. It is there to remember, and recognize the sacrifice of, the soldiers it honors: William Jolicoeur and Alexandre, Henri and Louis Gagne. The cross at the top is ancillary; it is, in effect, a decoration on the monument and what it denotes, any religious significance aside, is that this is a substitute for the graves these men will never have in their home city. They are buried on the faraway battlefields where they fell in service to their country.

The rally kicks off at 4:30 today and takes place at the memorial, 5 Cumberland Hill Road, Woonsocket. (From the south, take either Route 146 North or Route 295 North, then pick up Route 99 North. At the end of 99, take a left at the light and keep driving until you get to the fire station which will be on your left. Look for signs and police officers directing cars to parking areas.)

Last night, as Council President John Ward described it via e-mail, the Woonsocket City Council voted to establish

the creation of a separate account in order to accept donations to be used for the memorial defense costs and monument rehabilitation.

Those who are inclined to contribute to the fund will find information on the front page of the city's website.

The Woonsocket War Memorial Is Constitutional

The court decision most relevant to the Woonsocket's war memorial that displays a cross isn't the Cranston West prayer banner decision, it is the 2010 Salazar vs. Buono Supreme Court decision. The original issue in Salazar was whether the Federal Government could transfer to a private owner a parcel of land within the Mojave National Preserve in California, on which a cross had been placed in 1934 "to honor American soldiers who fell in World War I", in order to avoid any church-state entanglement issues.

In the plurality opinion that held that such a transfer was acceptable, Justice Anthony Kennedy also directly addressed the question of whether a cross could legally be displayed on public land as a war memorial...

The cross had stood on Sunrise Rock for nearly seven decades before the statute was enacted. By then, the cross and the cause it commemorated had become entwined in the public consciousness....

....a Latin cross is not merely a reaffirmation of Christian beliefs. It is a symbol often used to honor and respect those whose heroic acts, noble contributions, and patient striving help secure an honored place in history for this Nation and its people. Here, one Latin cross in the desert evokes far more than religion. It evokes thousands of small crosses in foreign fields marking the graves of Americans who fell in battles, battles whose tragedies are compounded if the fallen are forgotten.

This decision from just two years ago makes clear that bona fide war memorials that incorporate crosses on public lands are Constitutional, and there's no question that the cross in Woonsocket, "erected in 1921 and...dedicated to four men who lost their lives defending the United States", is part of a bona fide war memorial. (The succinct description of the memorial is from Tony Gugliotta of WJAR-TV).

A second court opinion worth reading on this matter is Judge Paul J. Kelly's 2010 circuit-court dissent in American Atheists v. Duncan, aka the Utah roadside memorials case. In his dissent, Judge Kelly described how the "reasonable observers" constructed by the courts in church-state cases have a history of being anything but...

The court’s decision continues a troubling development in our Establishment Clause cases -- the use of a “reasonable observer” who is increasingly hostile to religious symbols in the public sphere and who parses relevant context and history to find governmental endorsement of religion. Despite assurance from the Supreme Court that the Establishment Clause does not require us to “purge from the public sphere all that in any way partakes in the religious,” , the court’s “reasonable observer” seems intent on doing just that.

If the courts choose to ignore an opinion just two years old in order to declare the Woonsocket cross unconstitutional, then their rationale will be built upon an assumption that "reasonable" means growing ever-more cranky and irritated towards religious displays as time passes and that has been made to continually expand the scope of what is disallowed.

The Newest Hope for Limiting Political Expression in America -- and its Unintended Consequences

A top priority for liberals inside of government has become responding to the Supreme Court's 2010 Citizens United vs. FEC ruling, which prohibits government from banning political speech by corporations when the speech is independent of a campaign organization. Possible responses have come in two flavors.

One response (endorsed by Senator Sheldon Whitehouse at the end of last year) was a move to amend the Constitution to give government an enumerated power to limit the political activities of both corporations and individuals. This, so far, has not gained much favor with the public.

The second response, pubicly supported by Speaker of the House Nancy Pelosi this week, is an amendment to strip Constitutional rights from people when they act through corporations. Though presumably intended to be less egregious than the first solution -- hey, it's only "corporations" affected, and not individuals -- this answer to the perceived problem is not as clean as some of its supporters might hope. As Eugene Volokh of the Volokh Conspiracy explains...

...just as Congress could therefore ban the speech of nonmedia business corporations, it could ban publications by corporate-run newspapers and magazines -- which I think includes nearly all such newspapers and magazines in the country....State legislatures and local governments could do the same. All of them could seize corporate property without providing compensation, and without providing due process. All corporate entities would be stripped of all constitutional rights...

Given the scope of the "People's Rights Amendment" that has been proposed, Rhode Island liberals may want to consider, for example, what its impact would be on collective bargaining organizations, which would no longer be covered under the US Constitution's "no impairment of contracts" clause, allowing state governments to change the terms of contracts at will -- though this might actually be a feature and not a bug in the minds of some of RI's "pragmatic progressives"!

The Nanny State

Some readers have questioned my conservative credibility, and that's fine, no worries there. We're all somewhere on the spectrum. However, the philosophical spectrum isn't just bi-directionally linear. There are other forks in the road in different directions from being conservative or liberal, and one is libertarianism.

I won't claim to be a staunch or strict libertarian like some, but I'm right there with many facets of it. I want a smaller government and when the government thinks they know what is best for me, I want to push back.

Some of you may have heard that WPRO's Matt Allen started a petition which he sent to the RI Speaker of the House calling for the repeal of last year's new law regarding seat belts. The 2011 law made not wearing a seat belt a primary offense in RI. This means that the police may now stop you in your car even if your only offense is not wearing your seat belt. Prior to this law, they needed another reason to stop you.

I've been listening to Matt on the radio and of course this all makes sense. We're all adults, we're responsible for ourselves and should be treated like responsible adults. If someone doesn't want to wear a seat belt in their car, let them. It's not hurting anyone else. The opposition tells us that wearing a seat belt is safer and you'll have a better chance of surviving a car accident if you're wearing it. Great, got it. We are informed, we are aware of the risks.

Another argument that those in favor of the law will tell us, like Speaker Fox did in his response to Matt and included in Justin's Ocean State Current post on the topic:

crashes cost the nation about $230 billion each year in medical expenses, lost productivity, property damage and related costs. Rhode Island pays $767 million of these costs, which accounts for $732 for each Rhode Island resident per year.

If we want one end of the libertarian argument, we should also accept the other. Let's make a deal here. If you choose to not wear a seat belt and are involved in a car accident that requires you to receive medical attention, you're on your own. You work out what you can with your own insurance company but any other costs are yours and yours alone. Don't burden me with your medical costs because you chose to not wear the safety device. Similarly, I support motorcyclists' right to not wear a helmet. However when they crash, I think they should be on their own for their medical care. I don't want to have to support their dumb decisions.

I also have to question the Assembly's motives on this. Is it really about personal safety, or is it about money? I guess the Speaker has already admitted it's at least partially about money, as he cited that in the accident statistics. However others will just argue that this law makes sense because it makes us safer, with no mention of money. I know on the radio, Matt has been using the logic used for this law in other areas. Let me try that for one: Why is cigarette smoking legal at all? If we truly care about peoples' health and safety and not money, then shouldn't tobacco products be banned immediately?

Easy answer, it's all about the money.

Campaign Finance Reform Targeting National Organizations Worries Local Groups

Legislation under review in the General Assembly targets national organizations but has local groups fearing their speech (and donations) will be chilled.

EXCERPTS:

Providence (Ocean State Current) - The political stars appear out of line when RI Right to Life stands with the ACLU against a campaign finance reform proposal from Common Cause. Yet, there were their respective heads, Barth Bracy and Stephen Brown, sitting next to John Marion, telling the Judiciary Committee of the Rhode Island Senate that legislation he had ushered into being would be "extraordinary."

On the table was Senate bill 2569, companion of House bill 7859, "disclosure of political contributions and expenditures." The leaders of both chambers, as well as Governor Lincoln Chafee, had been so anxious to jump on this bandwagon that they held a joint press conference weeks earlier, even before the legislation had been finalized.

The bill would require "any person, business entity or political action committee" advocating for or against a candidate or referendum to report its "independent expenditures or electioneering communications" spending to the Board of Elections if it amounts to $250 or more. In addition to describing the expenditures, the reports would have to identify all donors who've given the group $1,000 or more within the previous 12 months. In existing campaign finance law, donor identification typically includes his or her address and employer.

The legislation further requires any communication --- in printed, audio, video, or digital form --- made in the course of a campaign to provide the name of the organization and its chief officer or treasurer, its address, and a statement of agreement and independence. Non-profit organizations would also have to list their top 5 donors from the past 12 months, regardless of the total amounts that they contributed.

Bracy described a recent incident at the State House when "peaceful pro-lifers" were "bullied and harassed, shouted down and pelted with condoms." If that is the price of supporting a particular cause "in the very rotunda of the State House," he suggested, it would chill participation to "ask them to post their names in newspapers so that people who disagree with them might take some form of retribution."

In defense of that provision, which Common Cause "firmly stands behind," Marion focused on the right of an organization's members and shareholders to know what campaign activities are being done on their behalf. He referred to a 2010 controversy in Minnesota involving Target Brands, Inc., when the company's $150,000 in campaign donations resulted in "1,800 protests in Target stores within a matter of days."

Public debate about the legislation has repeatedly cited the Supreme Court's 5-4 ruling in the case of Citizens United v. the Federal Election Commission. According to the legislative findings sections of S2569 and H7859, Citizens United allowed "unlimited political spending by outside groups via independent expenditures," which are "often extremely difficult or impossible to trace."

At the press conference and the Senate hearing on the bills, participants asked whether there has been any evidence that the "super PACs" that have emerged at the federal level are active in Rhode Island. Proponents responded that the legislation has been put forward in anticipation of future campaigns. Speaker of the House Gordon Fox told assembled members of the media at the conference, "This is a way of dealing with what has grown into an enormous problem that has tilted the scale."

The Appropriate Response to Totalitarians

The aggressive and heated response to Jessica Ahlquist, upon her success in leveraging the power of the federal government to impose her religious preferences on her community's public high school, is ignorant, unproductive, and completely at odds with the message of the prayer banner that the federal judge ordered removed and the broader faith espoused by those who wish it to remain. For all that, the impulse behind the excessive behavior is not a defense of religion, but of liberty.

Unfortunately, Ms. Ahlquist has made herself — with the assistance of her father and the Rhode Island ACLU — the focal point for her community's reaction to the ongoing project of eliminating Americans' right to self governance. It's easy to ascribe the objectionable statements and actions of students and adults, alike, to intolerance, but it's also simplistic. The depth and breadth of the emotions being expressed would be more productively attributed to the federal government's imposition of a small minority's worldview on every public entity in the nation, no matter how local and no matter how benign the transgression.

The appropriate response, therefore, is not personal, against the student, but political, against the structure and philosophy that has given special interests the power to govern above the heads of the governed by way of a small number of unelected judges. If Ahliquist v. the City of Cranston has pushed the secularist envelope, as many of us believe it has, then push it back the other way.

Reproduce the banner on t-shirts and posters. Wear the former to school and public meetings. Display the latter on any bulletin board open to the public or any area designated for students' self expression (lockers and such). Those who are so inclined could make a point of reciting the prayer before or during events and assemblies (taking care to be minimally disruptive, of course).

Our system of government is designed (or at least it used to be designed) to direct deep differences of opinion toward such activities on the local scale, rather than toward sectarian violence. The way to fight back against those who are not content with the slow process of changing minds is not to revert to barbarism, but to faithfully and doggedly model the power of civility in the public square.

East Coast Law Enforcement

Two items have found their way to my long list of stories on which to post, and it occurs to me that they're sufficiently related to be presented together. And fortunately, they are so stark that additional commentary is scarcely necessary.

One:

McKay is the young father who, seeing a local druggie breaking into his truck and stealing the tools he uses to pay the bills, confronted him, subdued him and held him for the police. When the police arrived, they found the bad guy had a knife, a billy club and — thanks to the unarmed McKay — a broken jaw.

Instead of thanking McKay for helping get an armed criminal off the streets, Swampscott officials charged him with a felony.

Anthony McKay lucked out and attracted the attention of the public, and the pressure led the DA's office to put the case in its "don't have time to prosecute" file — while leaving open the possibility that anybody who thinks to undertake some similar initiative to protect himself, his family, and his belongings mightn't be so lucky.

Two:

On his radio show this week, Derb discusses the case of Meredith Graves, the Tennessee nurse who, upon visiting the 9/11 memorial in New York and seeing the signs forbidding firearms, asked the staff if she could check her pistol (lawful and licensed in her home state). She was handcuffed, arrested, and now faces three and a half years in jail for firearms possession — for the crime of being unaware that the Second Amendment does not apply in New York City.

Mark Steyn, the author of that paragraph, goes on to relate how the Mayor Michael Bloomberg slandered Ms. Graves as a cocaine user, based on evidence that turned out to be aspirin powder.

Nothing is more threatening to the ruling class than the willingness of people to defend themselves.

Unconstitutional Judiciary Orders Destruction of Prayer

So U.S. District Court Judge Ronald R. Lagueux has decreed (PDF) that the 46-year-old, mildly Christian prayer banner at Cranston High School West be removed. Judging from his description of its installation, as an old paper banner practically painted into the wall, the ruling appears tantamount to a decree that the prayer be destroyed.

One could raise a parade of issues with Lagueux's legal argument. For example, among the cases in precedence that he cites as especially relevant is one in which the Supreme Court stated that a newly minted ordinance to place the Ten Commandments in every classroom of a district couldn't stand. The case in Cranston must, at the very least, be closer to the line; I'd argue that it pushes the line a bit in atheists' favor.

Another example arises in Legueux's explanation of why the student has standing to sue for the removal of the mural:

The plaintiff must have suffered 1) an injury in fact; 2) which is caused by the offending conduct; and 3) which is capable of being redressed by a favorable court decision.

It is obvious to suggest that, because all of the adverse reaction resulted not from the banner itself but from the effort to extinguish it, removing the banner will not eliminate the conduct, but arguably exacerbate it. Admittedly, Legueux doesn't rely on that portion of the three-part test, but rather, he simply assumes that standing exists. The cases that he cites in this portion of the ruling have mostly to do with the recitation of prayer. The most important question before him — whether an historically relevant display across which a student's eye may come from time to time causes the same effect and requires the same remedy as more direct and forceful impositions of religion addressed in the past — he simply skips over. Legueux fills in this blank with his heavy reliance on public reaction to the student's lawsuit but only thereby illustrates that it was not the presence of the banner that stands as the "offending conduct" creating "an injury in fact."

More important than the legal details, though, is that the ruling starkly raises a few key points in the ongoing debate. First, it makes clear how, as with other manifestations of leftist activism, treatment of atheism has a built in thumb on the scale.

On one hand, atheism is treated as if it were a religious belief in its own right so as to gain standing; the plaintiff, in this case, is "an avowed atheist." It undoubtedly is such, but the mindset with which the First Amendment is treated in the courts transforms atheism into the default religion of the state by affirming its central principle of negation. A Muslim might understandably "experience feelings of exclusion and ostracism," as Lagueux says of the young atheist's response to the prayer, by his school's endorsement of Christian concepts of God, but an atheist might respond thus to a school's broad suggestion that a deity exists and may be worth petitioning.

Just so, the Muslim might be made to feel included were his own vision of God included in school invocations, but only an atheist has beliefs that require that no others be invoked. One can observe this reality in municipalities that have striven for diversity in religious displays during the holiday season only to open the door to attacks on religion from atheist groups. Religious groups counterpoise each other by stating their own uplifting messages. God loves us thus. Life has meaning because.

"Freedom from religion" types don't put up posters extolling the virtues of humanity or honoring a life affirming statement from some key figure in the history of human reason, but rather by issuing arrogant declarations that they can spot the myths that less enlightened people believe to be true. Applied to the prayer banner in Cranston, this expression of the atheistic faith becomes the de facto message of the government. Lagueux admits that the values that the banner espouses are "commendable," but that "the reliance on God's intervention as the way to achieve those goals is not consistent with a secular purpose." That is only true if one begins with a framework for secularism that peremptorily excludes God and denies His ability to affect "worldly, as opposed to sacred" things, to take some language from the dictionary.

The "goal" of the prayer is to achieve such secular values as honesty, friendship, and a positive attitude. The view of secularism inserted into the law by judges like Lagueux is one in which the only means of achieving those ends that are acceptable in a public school are those adhering to the atheistic view that God's assistance is not necessary. Imagine some extreme circumstance that threatens the lives of everybody in the school building. By the judiciary's reasoning, the principal would be barred from leading the students in even the most ecumenical prayer, because it has transformed "separation" into a requirement that government entities cannot behave as if God exists or can have an effect in worldly matters.

If instilling kindness and helpfulness to students is a valid goal for a public institution, then it must be inconsistent with separation of church and state for the federal government to tell a local community that it cannot behave as if prayer is the only way — or even one of multiple ways — that students can acquire such traits.

Indeed, reading the ruling, one may wonder whether the judge's action, itself, can pass the Lemon test that Marc quoted yesterday:

According to the Lemon v. Kurtzman analysis, a governmental practice, or legislative act, must satisfy three tests in order to survive an Establishment Clause challenge. It must: "(1) reflect a clearly secular purpose; (2) have a primary effect that neither advances nor inhibits religion; and (3) it must avoid excessive government entanglement with religion."

The judge's purpose may be the secular maintenance of the Establishment Clause, but his decree clearly inhibits a community from even a mild remembrance of its religious past while advancing the cause of atheism. Moreover, he and judges before him have indisputably mired the federal government in religious entanglement, not the least by insisting that no public entity, no matter how far removed from Congress, no matter how uniform the opinion of the local population actually served, can pretend that God exists.

As a matter of law, we have a Constitutional amendment in the Bill of Rights saying that "Congress [i.e., the federal government] shall make no law respecting an establishment of religion." Entirely through the plying of the judicial arts, this simple restriction has led to a federal judge telling a small community organization that it must remove, and thus destroy, an expression of mildly Christian religion that has hung inconspicuously for half a century. If that is not entanglement, I don't know what would be.

The plaintiff suffered no harm from the presence of the banner (even Legueux called the "coercion" imposed by it "subtle indeed"), but from her own initiative not to build support, locally, to remove it, but to have the federal government step in and assert her religious beliefs as the default in the secular realm, even to the extent of excluding historically relevant artifacts within the school. It is not too great an extrapolation to see in this case the underlying reason for our national politics' divisiveness. Local, democratic action is no longer the most effective means of addressing difference of opinion; influence over the federal government and especially the selection of judges is.

And judges are content — even to the point of celebrating the act's courageousness — to place the government in stark opposition to the people of, by, and for whom it ostensibly exists.

Bending the Truth in Cicilline's Favor

In an illustration of how its methods can serve the politicians that the editors like — covering their fundamental dishonesty with a focus on minutia — PolitiFact Rhode Island has given David Cicilline a "half true" for this:

"Earlier this week, the Republican-controlled House of Representatives -- with the enthusiastic support of Sarah Palin, Texas Governor Rick Perry, and the Tea Partiers -- once again turned their backs on the 14 million unemployed Americans in our country," the letter says, "and instead chose to focus their efforts on expanding the rights of sex offenders, terrorists, child predators, and abusers to carry concealed weapons across state lines."

Reporter Lynn Arditi admits that the part about "choosing to focus their efforts" on these outcomes is completely false. That means that the specifics — on whether the bill would incidentally expand the rights of suspect citizens — must be graded on a curve to split truth down the middle, because she finds that only in some of those cases is there any evidence that Cicilline might have a point.

But the whole exercise of searching for examples of people to whom Cicilline's labels might apply is ridiculous. Under "domestic abusers," for example, Arditi finds a Pennsylvania case in which a killer had a legal handgun after a restraining order had previously been imposed and then withdrawn. It may seem like splitting hairs, but inasmuch as that is precisely what Cicilline's evidence does, one has to ask: Is it appropriate to say that the man was, in a legal sense, an "abuser" before he was a murderer? Ought every man against whom a woman requests and then withdraws a restraining order be considered a perpetrator of domestic abuse? (It's funny, by the way, how liberals' perspective would change were it a question of allowing voting rights.)

And so it goes. When it comes to abusers, predators, and sex offenders, Cicilline points out states with laws that don't count a particular conviction as sufficiently criminal to deny a concealed carry permit. In New Hampshire, for example, "an adult who lures a child into engaging in sex for pornography" is charged with a misdemeanor, which doesn't affect his or her gun rights. (That's Arditi's paraphrase of the law. I'm not sure what "luring" the child technically entails, although it's sure to be despicable, whatever its limits.) For the purposes of the PolitiFact analysis, in other words, the person would be a child predator by Rhode Island standards, New Hampshire would still grant a concealed carry permit, so a federal law allowing such permits to apply across state lines would expand the rights of a child predator.

But when it comes to the "terrorist" label, Cicilline points to Kentucky, which brands a misdemeanor charge of "terroristic threatening" on somebody who (in Arditi's words) "threaten[s] to seriously injure someone or to cause substantial property damage." Cicilline's logic, in this case, is that Kentucky might arguably call somebody a terrorist, whether or not the same definition would apply in Rhode Island, and still grant him or her a concealed carry permit. In other words, he's tilted his logical table always to roll a point in his favor.

Whatever one thinks of the issue (or politician) in question, this "half true" shows precisely why the entire PolitiFact project ought to be dismissed and abandoned. By presenting heated political rhetoric as subject to methodical analysis, the writers gloss over the very thing that makes it insidious. Most unfair accusations have some kernels of truth underlying them; that's what makes them harmful. It's the dishonesty layered on top that causes the problems and deserves the moral objection, and in PolitiFact's analysis that is a secondary consideration... at least when the editors want it to be.

Negative Outlook, but Still Able to Confiscate

Like a lot of conservatives, I'm sure, I find the prospect of our nation's credit begin downgraded, or at least given a negative outlook, as Fitch Ratings just applied to the United States, a somewhat hopeful sign that the game of government taxing, borrowing, and spending cannot go on in perpetuity. But as I watch the dance, my sense that the agencies are really grading the government's ability to confiscate resources through taxation only grows stronger.

We'd like to think that the ratings reflect how well a government is doing its job of being a government and how strong its underlying economy is, and those are surely factors. But the core criterion for grading the debt that a government sells is the likelihood that it will be able to take money from the people under its control and hand it over to its lenders. Sadly, the U.S. government sits atop a large nation of people who desire to forge a (taxable) living and who thus far have proven unable to elect a government that's willing to restrain itself.

In that context, a "negative outlook" is little more than a whisper of a hint that the government needs to change its ways. For it to bear the fruit of a lower rating, the prospects would have to be bleak for the government paying back its debt at all. The imagination reels at what a world in which that's a real possibility would look like; it's one thing for Greece to appear unable to pay its bills, but the U.S.? Yet, experience shows that reasonable adjustments will not be made when entrenched interests have so much motivation to fight against them. Only crisis will serve, and few wish to foster crisis when it remains possible to pretend there's no long-term threat.

Part of the problem, it seems to me, is that there's no up from AAA. Selling less debt would make it more likely that the government can and will pay back what it already owes, but with the might of the U.S. bureaucracy as a collection agency, such a shift would be a mere shading of likelihood.

Now *THIS* is Something to Protest About

In my wish that more people would pay attention to the "little things" that our government does, I wish they'd see things like this happening and react accordingly.

On Friday, the US House Judiciary Committee passed a bill that would require all Internet Service Providers (ISPs) to track all online activity for all of their customers. According to an article on cnet.com, ISPs would be

required to store to include customers' names, addresses, phone numbers, credit card numbers, bank account numbers, and temporarily-assigned IP addresses

How do you feel about that? Why not just invite the FBI into your house to sit down with you at the computer and ask them permission to use your computer?

Why is the House doing this? The title of the bill is "PROTECTING CHILDREN FROM INTERNET PORNOGRAPHERS ACT OF 2011." Makes sense right? When trying to chase down child pornographers, authorities could then figure out where the sites are that people get this stuff, where they trade the files and then simply track the IP addresses back to the people and arrest them. I mean, who could possibly be opposed to hunting down child pornographers and pedophiles?

If only that's all it was. Some amendments were offered such as making the data only to law enforcement agencies working on a child pornography case. That was rejected. Other amendments were offered and shot down, including limiting the subpoena powers to only enforcement agencies working on a specific child pornography case. That was rejected. An amendment was offered to give additional funds to the FBI for working on child pornography cases, that too was rejected. As Rep Jon Conyers stated, this bill is "mislabeled". Rep Zoe Lofgren offered one last amendment, to change the title of this bill to the

"Keep Every American's Digital Data for Submission to the Federal Government Without a Warrant Act of 2011."

That too was rejected.

CNet added:

To make it politically difficult to oppose, proponents of the data retention requirements dubbed the bill the Protecting Children From Internet Pornographers Act of 2011, even though the mandatory logs would be accessible to police investigating any crime and perhaps attorneys litigating civil disputes in divorce, insurance fraud, and other cases as well.

So let's assume for one millisecond that we can trust the government, we can trust every law enforcement agency to use this data properly and that all judges will only give out orders to access the data in cases that fit the intent. (Hang on while I get up off the floor and stop laughing...) But let's use that assumption. If you have all this data stored somewhere that tells credit card information, bank account information tied to the person who owns it and their address, isn't this some pretty valuable information? Anyone heard of "Anonymous" and the other associated hacker groups? This is exactly the type of treasure trove that those people will go after. As little faith that we have that the data would only be used appropriately, I have even less faith that the data would be completely safe and protected from compromise. Heck, we can't even keep our military drones safe from software infection. If remote-controlled and armed aircraft aren't perfectly safe from hacking attack, why would trillions of lines of data in logs be safe?

Lastly, maybe one of the most disappointing parts of this is who the sponsor is. Lamar Hunt of Texas. It isn't who the person is that makes this so disappointing, the disappointment is his party, Republican. The party of smaller government and leave citizens alone and respect privacy.

Below is how the committee vote went to pass this bill out of committee, 19-10.

Continue reading "Now *THIS* is Something to Protest About"

Sheldon Whitehouse Wants to Roll Back the First Amendment

Rhode Island junior Senator Sheldon Whitehouse thinks the First Amendment of the United States Constitution goes too far. He has used his Senate seat, from the state that traces its lineage to early freedom-of-speech advocate Roger Williams, to introduce a Constitutional Amendment that would carve out a First Amendment exception allowing the government to restrict campaign expenditures by individuals. The part of the amendment that would apply to the Federal government reads...

SECTION 1. Congress shall have power to regulate the raising and spending of money and in kind equivalents with respect to Federal elections, including through setting limits on --

(1) the amount of contributions to candidates for nomination for election to, or for election to, Federal office; and

(2) the amount of expenditures that may be made by, in support of, or in opposition to such candidates.

A nearly identical second section of the amendment to the First Amendment (to borrow a phrase oft-used during past debates over anti-flag burning amendments) would grant the same speech-limiting powers to the states. Under the Whitehouse regime, the government would be allowed to tell political candidates that they were over the limit on the number of communications they were allowed in an election cycle, i.e. that they had run too many ads, or sent out too many mailings in an attempt to communicate with voters.

According to Senator Whitehouse's website, his speech restriction amendment is a response to the US Supreme Court's "Citizens United" ruling, where the Court held that the First Amendment protected the right of corporations to buy advertising (or to produce books or movies or any other form of media) that supported or opposed the election of political candidates.

How we get from the belief that "corporations" have "too much" political speech, to giving the government sweeping new powers to restrict the peaceful political expression of individuals is far from clear -- though it is clear that Senator Whitehouse thinks that there's too much political speech out there right now, and that something needs to be done to limit it.

David and PolitiFact on the Same Wavelength

It's funny what different people find to be of interest in political documents. When I read the letter that David Cicilline sent to Monique regarding his vote against an amendment to Congressional legislation intended to ease rules of engagement restrictions for U.S. troops, what struck me were the careful words related to the right to bear arms (emphasis added):

I joined 141 other Democrats and 18 Republicans in voting against this amendment because it does nothing to change existing rules of engagement for American service members. Our men and women in uniform already possess the right to bear arms whenever they are in harm's way. Furthermore, when they are instructed on the rules of engagement, our troops are explicitly told that nothing prevents them from using deadly force to defend themselves. That's why a spokesman for U.S. Central Command, which oversees all American military operations in Iraq and Afghanistan, told the Wall Street Journal that H.AMDT. 318 "would likely not change a thing" about existing policy for the Armed Forces.

When are America's military personnel considered to be "in harm's way"? The amendment, itself, seems a little more broad:

The Secretary of Defense shall ensure that the rules of engagement applicable to members of the Armed Forces assigned to duty in any hostile fire area designated for purposes of section 310 or 351 (a) (1) of title 37, Unites States Code -- (1) fully protect the members’ right to bear arms; and (2) authorize the members to fully defend themselves from hostile actions.

That seems to me to ensure a right to bear arms for troops "assigned to duty" in a particular region, whether or not they happen to be within the "hostile fire area." In other words, a soldier with a little free time in Kabul would take the Second Amendment with him, even though he's not on the battlefield.

For its part, PolitiFact was more interested in the question of whether the amendment would actually change rules of engagement policy. So, the reporters turned to three military experts, at least one of whom appeared to be sufficiently ignorant of the subject as to address language that doesn't even appear in the amendment:

Victor Hansen, a professor at New England Law in Boston, described the language in Mica’s amendment -- "to proactively defend" -- as "loaded" and so broad that it was impossible to define for a practical purpose.

In the amendment that PolitiFact cites in the article, I see the language "fully defend." Happily, the Congressional record agrees with my eyes and not the experts.

Reading a little farther down, where PolitiFact paraphrases the question that it posed to U.S. Major Jason Waggoner, one gets the impression that "proactive" is actually the journalist's word. And, indeed, it appears ultimately to come from the title that Monique gave to her post, "Proactively Defending Himself: The Congressman from the First District Responds."

For the record, I doubt anybody disputes the rights of elected officials to "proactively defend" themselves against criticism. Furthermore, as wise as she is, I'm sure very few Americans would empower Monique to legislate via subject line.

What seems legitimately disputable is whether the amendment that Rep. John Mica (R, FL) proposed, and the U.S. House passed, is actually as ineffectual as Cicilline and PolitiFact claim. After all, PolitiFact's experts characterize the language as "vague" and allude to "years of 'arguments among lawyers' aver what [the amendment] means." In other words, it is defensible to argue that the amendment will have no effect, but it isn't exactly a statement of fact. Otherwise, there would be no possibility of legal disagreement.

To be sure, checking the C-SPAN video and transcript, one can see that the two Democrats who spoke in opposition to the amendment did not do so because it would do nothing, but because it would do something. As Rep. Robert Andrews (D., NJ) explained:

I frankly agree that there are very, very few circumstances I could imagine where we would not want our troops in the field to be fully armed to their complete comfort and satisfaction level. And so it's hard for me to imagine a circumstance where that's not the case.

But it's easy for me to understand a circumstance where the person in the field who is charged with the responsibility of achieving the mission and achieving maximum protection of his or her troops should have the authority to make that decision.

It's a simple matter to produce examples of rules of engagement articles that refer to the inviolable right to self defense, as the Wall Street Journal does, in the piece that Cicilline cites, but it remains true that they can vary in some particulars from commander to commander and zone to zone. Where are troops considered to be within a hostile area? What steps must they apply to determine their own safety and the threat posed by a possible attacker? The 1999 Marine Corps Combat Manual, for example, requires "defensive tactics to neutralize the threat" if an attacker is unarmed. It seems to me highly probable that Mica's language will have some effect on the balance of judgment of Marines who find lethal force necessary when no weapon is visible.

I'm not arguing the case for or against the amendment, here, but Cicilline's statement that this amendment would do nothing is incomplete. The more significant question in need of research and discussion is why he voted against it. Like his Democrat colleagues, he may not have wanted to dictate minute military policy from Washington. Like PolitiFact's experts, he may not have liked the prospect of years of litigation. But the representative makes neither point, so why was "no" his default position?

That question would be difficult for PolitiFact, with its mainstream-media resources (or even me, with a search engine and a couple of hours to squeeze in for posting on a Sunday), to answer. However, if there are so few questionable facts being flung around in political debate on welfare, employment, pensions, healthcare, and so on that PolitiFact has the space to side with Cicilline on this minor matter, then the reporters could have looked more deeply (and without leading their experts to embarrass themselves by commenting on inaccurate language).

My gut tells me that Cicilline was more concerned about how an affirmative vote on a bill using the phrase "right to bear arms" might look on some progressive tally sheet during election season than with passing superfluous legislation. I grade his letter as "half true" and PolitiFact's judgment as "false."

The Cop-Media Connection

The Rupert Murdock media eavesdropping controversy in England illustrates the general risk of giving an organization broad access to information and spy technology... even if that organization is the saintly Big Government:

Scotland Yard's assistant commissioner resigned Monday, a day after his boss also quit, and fresh investigations of possible police wrongdoing were launched in the phone hacking scandal that has spread from Rupert Murdoch's media empire to the British prime minister's office. ...

The crisis has roiled the upper ranks of Britain's police, with Monday's resignation of Assistant Commissioner John Yates - Scotland Yard's top anti-terrorist officer - following that on Sunday of police chief Paul Stephenson over their links to Neil Wallis, an arrested former executive from Murdoch's shuttered News of the World tabloid whom police had employed as a media consultant.

It's one thing if a private company offers a service that collects information. Misuse of that information could result in complete collapse of the business and its stocks. When government's involved, a few folks lose their jobs, but for the most part, the bureaucracy keeps on rolling.

Who Is Pulling the Trigger?

Given that the mainstream media has appeared less interested in this story than in such critical events as royal weddings and the accuracy of Republicans' references to history, Anchor Rising should help in the effort to prevent it from slipping through the cracks:

In Fall of 2009, the Obama Administration conceived Operation Fast and Furious, in which the ATF sold thousands of advanced weapons to Mexican drug cartels in order to track them once they were used in crimes. This policy perfectly dovetailed with Obama's gun control arguments. First of all, by selling guns to the cartels that the ATF could definitely trace back to the US (because they were bought from the ATF), the percentage of guns used in Mexican crimes traceable to American guns would increase. ATF supervisors rejoiced at their success when they found that these guns were being used for violence in Mexico.

At the very least, Attorney General Eric Holder, who is knee deep in this operation, should be forced out of office. The political repercussions for the Obama administration should also reach all the way up to the top office.

Drugs Taxed School Zone

Some folks have been astonished that I could be ambivalent about the movement to legalize marijuana. A large item on the negative side of the ledger is my suspicion of the manner in which it's being approached, particularly the necessary involvement of the government.

On that note, and without striking for highfalutin waters on a Friday afternoon, I have to remark how amusing I find it to picture a large pot greenhouse over on East Main in Middletown, just a block from the high school. Again, I'm not arguing that there's any reason for it not to be there, but I just remember the implementation of the Drug Free School Zone initiative back in my high school days. We all thought it very unfair that a dealer living a block from the school would face harsher penalties than one who lived another block or two away.

When the government's getting a slice of the action, though, the rationale for particular regulations begins to slip. It'll be interesting to see how far it all goes. I know I experienced an injury or two during high school athletics that might have been palliated with marijuana... not to mention the emotional distress of being a teenager.

The Prayer and the Regent

My patch column, this week, joins two topics related to education in Rhode Island:

The connection is indirect, to be sure, but the controversy over an old prayer banner in Cranston High School West brings to mind the Chafee administration - and not (only) because Rhode Island's new governor has me so worried that I think a school-system-wide prayer initiative might be beneficial.

Rather, what connects the items, in my mind, is an aspect of newly confirmed Board of Regents Chairman George Caruolo's not-so-surprising hesitance to embrace the reforms that Commissioner of Education Deborah Gist has been pursuing with such zest.

Once Again Re: The Direction of Imposition

This started out as a comment to my previous post on the topic, but it began to feel more like a post in its own right.

As usual, our left-leaning readers have got me all wrong. I have absolutely no problem with any religion having an exclusive prayer posted in public schools, even with required recitation each morning provided there is no national policy that prevents the same for other religions. That is, let some community somewhere implement daily Muslim prayers, as long as there is no longer an ACLU veto on Christianity elsewhere.

If God blesses a minority-religion community with smarter, better adjusted, and more economically productive young adults as a result, perhaps the rest of the country would benefit from the example. (Go ahead and argue against that proposition without founding your argument in some article of faith.)

For my own community — that in which I pay taxes and am registered to vote — I would advocate for support (maybe even encouragement) of individual exploration and articulation of beliefs, with all given equivalent rights to public expression, and the added proviso that traditions already in place require the democratic process (not threats of lawsuits or judicial fiats) to change. If there's a banner, if there's a traditional appearance by the Easter Bunny, if there's an annual Hanukkah festival, then the entire community should agree to ending it.

As much as it pains me to use the "m" word with reference to my own stance, you don't get much more moderate than the above. Unfortunately, ideologues have succeeded in convincing a broad swath of people (especially in the Northeast) that their extremism is the default for all right-thinking people.

Re: The Direction of Imposition

I've been at a loss as to how to respond to the comments to my post this morning about the Cranston school prayer banner, because those who advocate for the removal of the banner are so extreme in their beliefs (even those who are typically reasonable and moderate in their approach) that they appear to lack any sense of proportion or capacity for compromise on this issue. Fortunately, Mangeek has phrased the position in a way that facilitates my response:

I'm an atheist dues-paying member of a conservative Christian church (figure that one out).

It would be one thing if there was a prayer/religious group in the school that met weekly and put something like this up in their 'wall space', but it's not. When a school itself puts a banner up that starts with 'Heavenly Father', it's an overt endorsement of religion, and it gives people like me the willies.

I've also been omitting the (recent) McCarthyist addition of 'Under God' line from the pledge since I was twelve. When I was a scout leader, I made an effort to drop the 'God stuff' from our various daily oaths and sayings. I also allowed my scouts who weren't religious to stay back at the campsite during mandatory 'religious hours' at Yawgoog so we could engage in somber, silent reflection of the week's successes and failures.

Keep in mind, I'm in no way anti-religious, I'm anti-authoritarian, and putting 'heavenly father' banners up, adding 'God' to a pledge spoken at the opening of school, and mandating religious service attendance at camp all fall under the 'authoritarian' category for me.

You want religion in school? Fine, have it from students on the same terms that groups meet to discuss the environment or school governance, but keep it firmly separated from school administration.

By what conceivable measure is it possible to see the first of the following as more authoritarian than the second?

• A local school committee, with the apparent backing of a majority of town residents, keeping in place a banner that has been with the school since the very beginning, even though it hails from a time when it was acceptable to urge prayer in public
• A national advocacy organization (and certain commenters from Pawtucket, Providence, Arizona, and other places that are not the town in question) trying to use the expense of legal action as a means of bullying the district into taking the banner down on the grounds that a handful of residents do or might object to it

I'm especially confused about how Mangeek could choose the former as more authoritarian because he also believes it's authoritarian for a religiously founded private group (the Boy Scouts) to require prayers and attendance at some kind of religious service).

The Direction of Imposition with Cranston Prayer

The debate over a banner with a prayer in a Cranston public school — which the ACLU attempted to bully the district into moving with the threat of a lawsuit and which the school committee has voted to defend — makes very stark the contrast of the sides. On one side is the fact that public statements of religion were once part of the culture, and that this particular prayer is interwoven with the history of the school:

The students picked the school colors and the mascot and, following models from other schools in the district, a prayer and creed.

Originally, Bradley said, the prayer banner and creed were stored in the school building. In 1962, Bradley said, students started reciting the prayer instead of "Our Father" as part of their morning exercises. And, in 1963, when the auditorium opened its doors, the prayer and creed were affixed to the walls of the auditorium as a gift from the first graduating class.

On the other side is the assertion by an aggressive minority that merely being in the presence of such a banner somehow forces them to do something against their religious nonbeliefs:

"This prayer endorses religion. It endorses a specific religion," said [sophomore Jessica] Ahlquist, who is an atheist. The prayer, she says, "is discriminating against us."

For "a majority to say that you can take away a minority right, it's wrong," Ahlquist said. "It's also un-American."

There is no minority right being taken away. Students are not forced to recite the prayer. They are not forced to stand silent while others recite it. They are merely required to acknowledge that belief in God is a significant part of the school, city, state, nation, and civilization's heritage and, indeed, present culture and accept that they have no right to unilaterally erase its markers.

That's what really underlies the broader movement to strike religiosity from the public square: a claim to a special right to forbid the majority from acknowledging its shared faith, even to the degree that historical expressions thereof must be completely erased — wiped out. The zealotry of this movement is so strong that the ACLU will now harm real, present students in the Cranston district, as well as the employees and taxpayers of that community, by forcing the district to pay for a legal defense simply because the most local, discrete tier of government — where the inherent self-definition of democracy should be greatest — refuses to bow to a powerful national cult.

Opening the Gateway

Drug legalization isn't an issue about which I'm passionate; when it comes to marijuana, I'm pretty much ambivalent. The fact that Froma Harrop supports legalization does make me wonder whether the opposite view might be wiser. In that regard, Providence College history professor Richard Grace makes some reasonable points:

One wonders whether the real goal of the editorial and the column is to overshoot the mark deliberately, so that a compromise position could be broad toleration for marijuana while heavier substances would remain illegal. Would legal toleration of marijuana improve our society?

As a "gateway drug" marijuana leads many teenagers toward cocaine. A Columbia University study found that teenagers who smoke marijuana are 85 times more likely to move on to cocaine use than their peers who do not smoke marijuana. Those who think of marijuana as relatively harmless need to consider a Dec. 17 Journal report, "Reale gets 8 years in death of Colin Foote," about a much-publicized trial involving a fatal accident. Before sentencing the driver to a prison term, Judge Edwin Gale concluded: "I find that marijuana killed Colin Foote [the victim] . . . The defendant [Laura Reale] was high on marijuana at the time of that fatal crash."

If she had been using a legally available drug, would the result have been any different? Or, would the removal of drug-interdiction programs be more likely to produce more such accidents, more such wasted lives, more such grieving families?

To be sure, drug-induced accidents already occur, and drug related crimes are already a problem. Honestly, I wouldn't hazard to guess which way the needle would move upon legalization. Judging by stories from before I was born, my own experience as a teenager, and the experiences of acquaintances I've known since, there has never been much difficulty procuring marijuana.

It seems to me, too, that drawing a bright line of legality between pot and other drugs, like cocaine, would reduce the degree to which it's a "gateway." The question is what line it leads people across. Alcohol already introduces people to the practice of introducing foreign substances into the body to alter perceptions. The main difference with grass is that it introduces them to skirting the law to do so.

When One Group's Ascendency Must Prevent Another's

It's fascinating to hear people who wish to radically alter the law and culture by any means necessary and silence their opposition attempt to explain why the other side is the home of oppression and closed mindedness. One specimen of the genre, oddly not apparently online, comes courtesy David Adams Murphy.

After introducing his subject as a response to Providence Bishop Thomas Tobin's "anti-secularist blather," in a prior op-ed about Governor Lincoln Chafee's apparent aversion to public prayer, Murphy explains the First Amendment as intended, in part, "to keep any one faith from having ascendancy over another in government." How this is to be accomplished — that is, how the worldview of a majority of Americans (whatever that might be) is to be suppressed so as to give it equal weight to the worldview of a minority — he does not detail. Instead, Murphy elides all evidence that the Founders were religious believers, some of whom stressed the importance of religion if a democratic republic could hope to survive. He then whips out the secularist's cheat-sheet list of Christians' improprieties and atrocities.

Finally, Murphy presumes to declare Tobin's true purpose:

Why does the bishop call for religious influence on government? Because he desires a power to influence he doesn't deserve, but nevertheless enjoyed over Governor Chafee's nitwit predecessor. The unelected leader of this diocese, selected by the pope (who is nothing less than a bureaucratically appointed monarch), seeks to form public policy from his pulpit, dictate laws that conform with his interpretation of scripture, and doubtless funnel public monies to his church's coffers.

Doubtless. Of course, the fact that some sort of prayer has been a tradition long preceding Governor Carcieri does not come up for consideration. It would be far too much to expect the likes of Murphy to ponder the significance of the fact that a religion's political power, such as it is, derives mostly from its ability to persuade voters that its assessment of reality is correct and applies to a particular issue in such-and-such a way.

Murphy's central concern is clearly to disallow Christians to bring their religion to the table for public debate or even, one can justifiably suppose, into the voting booth. He therefore must paint their spiritual leaders as power-hungry descendants of barbarians and dictators and stir up the specter of insidious corruption in the modern day.

If Mr. Thomas Tobin, resident of Rhode Island, were Murphy's actual target, his string of vitriol and hostility would be manifestly inappropriate. One can conclude, therefore, that it isn't the bishop himself that Murphy fears and loathes, but the electoral majority that might agree with him. David Adams Murphy's declaration of "disgust" points mainly at the rest of us, and his insinuation is that we, his fellow Rhode Islanders, are mere op-eds or homilies away from burning witches and Joan D'Arc. We must be stopped. We must be prevented from hearing the seductive lure of clerics who ask us to acknowledge that political leaders are only human beings in need of guidance and humility about the extent of their authority.

In other words, Murphy's tones are those of the totalitarian, not Tobin's.

The Scope of Religious Freedom

A recent article (apparently not online) in The Rhode Island Catholic summarized same-sex marriage legislation introduced to the General Assembly as follows:

Both Chafee and House Speaker Gordon Fox support allowing same-sex couples to marry. Last Thursday, Rep. Arthur Handy and Sen. Rhoda Perry filed bills that would recognize "civil marriage" between same gender individuals, but giving religious institutions the opportunity not to participate.

Having some history following this issue, I thought to take a look at the actual language that the local diocesan newspaper treats as containing religious exemptions. Here's the text of the relevant paragraphs of H5012:

Protection of freedom of religion in marriage. – (a) Consistent with the guarantees of freedom of religion set forth by both the First Amendment to the United States Constitution and Article I, Section 3 of the Rhode Island Constitution, each religious institution has exclusive control over its own religious doctrine, policy, and teachings regarding who may marry within their faith, and on what terms. No court or other state or local governmental body, entity, agency or commission shall compel, prevent, or interfere in any way with any religious institution's decisions about marriage eligibility within that particular faith's tradition.

(b) Consistent with the guarantees of freedom of religion set forth by both the First Amendment to the United States Constitution and Article I, Section 3 of the Rhode Island Constitution, ordained clergy, ministers or elders as described and authorized in sections and 15-3-6 of the general laws to officiate at a civil marriage shall not be obligated or otherwise required by law to officiate at any particular civil marriage or religious rite of marriage.

The legislation also adds a paragraph distinguishing legally recognized marriages as civil marriages. Arguably, a hostile judge could find that language describing eligible "officials empowered to join persons in marriage" does not mean clergy have a right to perform civil marriage if they refuse to do so without regard to the gender of the spouses.

More importantly, the freedom-of-religion section of the bill is narrowly worded to protect "decisions about marriage eligibility within that particular faith's tradition." That includes the definition of marriage for activities related to the exercise of religion, but does not necessarily include the definition for activities related to employment within the religious organization or to receipt of services provided thereby. In other words, the fact that a church does not recognize same-sex marriage for the purposes of its religious rites does not mean that it will be permitted to do so when providing benefits to employees spouses or when determining what counts as marriage when distributing charitable services.

Religious faiths tend not to segment their religious activities apart from the way they live their lives in all capacities. That is, to believers charity is an expression of faith, as is one's interaction in the workplace. The government (and this particular legislation) does not share that broad view.

The Bully and the Protector

There's no question that technology creates all sorts of challenges and that cyberbullying is among them. Just think of the malice that would have been required to do something similar in the past: Nailing nasty fliers around town took a lot more effort than posting a Facebook page, indicating a greater pathology. Yet, the effect on the victim is similar.

Nonetheless, we should be wary opening the door for government too widely to address bullying, because of both what might slip through in the process and what doing so indicates about our culture:

"I don't think it's going to eliminate bullying, but it will put a big dent in it," said [Sen. John] Tassoni [D, Smithfield]. He refused to provide specifics about possible legislation.

The Rhode Island State Police, too, will again pursue a bill that would give law-enforcement officials the ability to subpoena information about Internet users without having to go through a judge, Tella said. State police will seek a measure that would require Internet services providers, such as Facebook and Google, to provide the name, address, and telephone numbers associated with an account in response to an administrative subpoena signed by a state police superintendent, or other high-ranking law-enforcement official.

Removing the judiciary from the process, shifting its authority in these matters to appointed officials in the executive, erodes protections against encroachment on citizens' liberty. Whatever the exceptions become, to the rules for subpoenas, will surely expand; cyberbullying, that is, will in short order become a very broad category of online activity.

Of course, the larger problem is that we're inviting such erosion by our very urge to involve government in the first place. It's a cycle: As we pass along the responsibilities of membership in a community to government, it becomes easier to conceive of government as the appropriate overseer, leading us to pass along more responsibilities.

Society once had stigma and cultural rules of behavior that helped enforce boundaries. With their evaporation, legal consequences are being substituted, but our system hasn't proven very effective at implementing objective, narrowly targeted laws.

To be sure, reasons beyond passivity exist for the shift. Social pressure must have had more weight when most people's lives were lived within a few miles. The black mark of a child's bad behavior could follow the parents to the workplace and social scene in more tightly woven communities. Homes are now often little more than rest stops in commuters' lives, so dirty looks at the corner convenience store are less apt to have a substantial effect.

A Possibility of New Precedent Affecting the Cranston West Banner

Would there be room in the public sphere -- specifically, within the the Cranston West High School cafeteria auditorium -- for a banner beginning with the words "Heavenly Father", if the most recent Establishment Clause precedent issued by the United States Supreme Court were to say that a relevant lower court decision was flawed, because...

The court’s decision continues a troubling development in our Establishment Clause cases -- the use of a “reasonable observer” who is increasingly hostile to religious symbols in the public sphere and who parses relevant context and history to find governmental endorsement of religion. Despite assurance from the Supreme Court that the Establishment Clause does not require us to “purge from the public sphere all that in any way partakes in the religious,” , the court’s “reasonable observer” seems intent on doing just that...

In my view, the court’s application of the endorsement test is incorrect to the extent it: (1) effectively imposed a presumption of unconstitutionality on religious symbols in the public sphere; (2) employed a “reasonable observer” who ignored certain facts of the case and instead drew unsupported and quite odd conclusions; and (3) incorrectly focused on the religious nature of the crosses themselves, instead of the message they convey.

According to this rationale, it is not obvious that the banner should be removed.

The passage above, however, is not a controlling Supreme Court precedent. It comes from the opening of a dissenting opinion issued this past Monday in the 10th Circuit case of American Atheists, Inc. v. Duncan, which considered the permissibility of roadside crosses placed as memorials by the Utah State Troopers association. Eugene Volokh, uberblogger and UCLA law professor with significant expertise in First Amendment issues, believes that there is a strong possibility that the US Supreme Court will take Atheists v. Duncan, and that at least five Justices lean towards an opinion in line with the dissent above. Volokh notes, for example, that in a recent Establishment Clause case, Justice Anthony Kennedy, a frequent swing vote on the Court, wrote that...

The goal of avoiding governmental endorsement does not require eradication of all religious symbols in the public realm.

Now, there are significant differences between the Utah and Cranston cases that should not be discounted; in the Utah case the government is not directly putting up memorials, it is allowing another organization to put them in a public space, while in Cranston, the city government is directly responsible for choosing what is displayed. Still, since a lasting legal resolution in Cranston may not be possible until the disposition of Atheists v. Duncan is final, the prudent course of action with regards to the Cranston West banner may be to put off immediate further action, until the Supremes have their say on the Utah memorials.

Global X-Ray Vision... Without a Warrant

Have you caught wind of this story?

Yasir Afifi, a 20-year-old computer salesman and community college student, took his car in for an oil change earlier this month and his mechanic spotted an odd wire hanging from the undercarriage.

The wire was attached to a strange magnetic device that puzzled Afifi and the mechanic. They freed it from the car and posted images of it online, asking for help in identifying it.

Two days later, FBI agents arrived at Afifi's Santa Clara apartment and demanded the return of their property — a global positioning system tracking device now at the center of a raging legal debate over privacy rights.

Even staunch libertarians on the reasonable side of the line to anarchy would probably agree that police agencies ought to have recourse to such technology, given justification. However, at least in some states, equation of GPS trackers with police stakeouts makes warrants unnecessary, and that's a clear violation of privacy rights.

When police tail suspects, there are natural property limits to what they can do. A GPS tracker goes wherever the car goes. That the officer observing the signal may be on public or government property does not mean that he or she should have unchecked access to a sort of global x-ray vision.

Extremists Among Us

You know, it's stories like this that make the ACLU — periodically correct positions notwithstanding — seem like an extremist group:

The ACLU claims [Woonsocket public schools' dress code] policy, adopted April 14, violates the right to free speech by prohibiting students from expressing their views on any topic.

"Uniforms may be useful in prison and the military," said John W. Dineen, a lawyer for the ACLU, "but they are totally out of place in our public schools and a diversion from the more challenging steps that must be taken in an effort to better those schools."

This is entirely in keeping with the mentality that has burdened our education system. The policy isn't a uniform, per se, but a narrow restriction on color and style, not unlike workplace dress codes, and if the people charged with educating children believe that it will decrease distractions and increase concentration, then the notion that there's a constitutional guarantee to wear anything while receiving a publicly funded education is absurd.

The children of the adults who've filed as plaintiffs should be embarrassed, and donors to the ACLU should question whether the organization isn't already overly flush with resources.

The People of Central Falls Should Fire Their Receiver

... only they can't, because the people who govern Rhode Island have decided that bond ratings justify a sort of economic martial law. They simply don't believe that democracy works. So, bond rating agencies' threat to devalue Rhode Island's ability to borrow more money (which it shouldn't be doing, anyway) has given a single man, retired judge Mark Pfeiffer, the right to do this without recourse for those subject to his dictats:

City taxpayers can expect a 10-percent property tax increase and higher taxes on the cars they own as the receiver appointed to reorganize the city’s troubled finances tries to close a $2.1-million deficit in last year’s city budget and a $6.3-million hole in the current one, the state receiver running the city’s finances announced Wednesday.

Anyone inclined to object that Central Falls is already at its 4.5% tax cap needn't worry, because:

The 10-percent supplemental bill is legal, Pfeiffer said, because the taxation cap legislation allows a municipality to exceed it if the governing council votes to ask the state for permission and if the state allows it.

Pfeiffer said the receivership state law gives him the power to act as the council, and he would do that when he asks the state Division of Municipal Finance to approve the increase.

Of course, the tax cap law — naively presuming that a "governing body" isn't a single man — requires a 4/5 vote of that body. Such is the distortion of language that one gets when the rules are suspended.

That suspension of rules, by the way, seems conspicuously to benefit a particular group. Note this tidbit from a sidebar to the current story:

[Judicially appointed receiver Jonathan] Savage was appointed May 19 after the city went to court for the state-law version of federal bankruptcy. Savage was replaced July 16 after a new state law put municipal receiverships under the Department of Revenue. [Spokesman Bill] Fischer said that was a mistake because under the old system Savage could have imposed new contracts on the city’s unions. The new law forbids that.

[Gubernatorial Spokeswoman Amy] Kempe disputed that, saying the law wasn't clear and had Savage tried to change contracts, it would have led to a months-long court battle.

So, before, Savage could have addressed unreasonable expenditures on and promises to labor — much like East Providence's School Committee did — and taken the likelihood of a lawsuit into consideration. The actions of the state government, however, have taken that off the table, so it's an historic tax increase without representation one of the poorest communities in Rhode Island at the behest of a very well paid dictator.

Injustice Seen Across the Political Board

By way of an update on the local situation, here's a press release from Tiverton Citizens for Change (TCC) President David Nelson:

Citing the important free speech issues involved in the case, the ACLU of Rhode Island today announced it has agreed to represent Tiverton resident David Nelson, the president of a local tax reform group, who has been sued for defamation by two Town Council members. Nelson, head of Tiverton Citizens for Change, was sued for making public comments alleging that Council members submitted "false" documentation to the State Department of Revenue relating to an unapproved proposal for a tax increase. The ACLU called the complaint against Nelson "a classic SLAPP suit designed to intimidate town residents from speaking out on political matters."

Nelson made the comment after the Town Council filed what it called an informal "checklist for eligibility" with the state to see if the Town could get permission to impose a tax increase beyond the 4.5% cap authorized by state law. The Town Council made this request without the knowledge of the town's Budget Committee, the entity officially authorized to recommend a budget to the Financial Town Meeting, and which had formally proposed a budget below the cap. Arguing that the request was never publicly authorized by the Town Council and was prepared on the state documents necessary to formally apply for a state waiver from the tax cap, Nelson publicly charged town officials with submitting "false documentation to the State to
facilitate a tax increase."

Last month, two Town Council members, Louise Durfee and Joanne Arruda, sued Nelson for punitive damages, calling his comments "false, defamatory and harmful to plaintiffs' reputation." Their lawsuit is also against unknown individuals the council members say participated in preparing and sending the letter. Interestingly, in a letter to state finance officials after the Town Council's actions came to light, the chair of the town budget committee also called the submission a "falsified document," but he has not been sued.

Nelson has filed a counter-claim for damages under the state's SLAPP suit law, and the ACLU has agreed to represent Nelson in getting the lawsuit against him dismissed. SLAPP suits ("Strategic Lawsuits Against Public Participation") refer to lawsuits brought to chill people from exercising their freedom of speech on matters of public concern.

Concerned about the use of SLAPP suits to try to stifle public debate on a variety of issues, the Rhode Island ACLU has succeeded in getting a number of similar suits dismissed since an anti-SLAPP statute was enacted in 1995. In the first such case handled by the ACLU, the R.I. Supreme Court ordered dismissal of a defamation suit brought against North Kingstown resident Nancy Hsu Fleming for critical statements she made about a private landfill. Shortly thereafter, the ACLU also helped the South Kingstown Neighborhood Congress in a suit filed against it for public comments its members made against a local developer's activities.

RI ACLU volunteer attorney Karen Davidson, who is representing Nelson, said today that the councilors' suit was "a classic SLAPP suit designed to intimidate town residents from speaking out on political matters. The SLAPP suit statute was enacted in order to prevent just this type of litigation, and we are hopeful for a quick dismissal of the suit." Nelson added: "Our bedrock constitutional rights allow us to express disagreement with elected officials and report on matters of public concern. l will not cower from this attempt to intimidate my public participation in local budget and taxation issues."

Honestly, it's difficult to understand what Durfee and Arruda are thinking, and the fact that support of Nelson spans from the ACLU to RISC suggests that they should reconsider. Several of us made comments in multiple venues calling out the documents sent to the state as "false," because they absolutely were. It was actually Town Administrator James Goncalo who submitted them, and when we brought the matter to the Town Council's attention, none but Jay Lambert thought it much worth discussing.

That doesn't mean that Durfee and Arruda were in on Goncalo's action, but as part of the generally fishy attempt to exceed the tax cap without actually voting to do so, the documents certainly fit a pattern. And that pattern, in my view, suggests that six out of seven current Town Councilors do not deserve their positions.

The two who filed the lawsuit should resign immediately and take a graceful exit from public office.

Strange Arguments Against an Armed Citizenry

Wheaton College philosophy of law professor Stephen Mathis argues against the belief that the Second Amendment seeks to ensure, in part, that the citizens of the United States cannot be bullied by their government — creating a "right to revolution," as he puts it. His points, however, are self contradictory and conceptually flawed.

First the contradiction. Seeking to show the context of the Second Amendment, Mathis writes:

One key point many people overlook, however, is that most of the Founders were against the idea of a standing military in peacetime, because a standing military gave the president too much power, thus making citizens less free. Consequently, a citizen's militia played the central role in national defense.

His next subsequent point begins from wholly different assumptions, though:

It is hard to imagine the stockpile of firearms an individual — or group of individuals — would need to mount an effective defense against the U.S. military, and the idea of an effective offense strains the imagination further.

That's certainly a problem for the modern-day revolutionary, but it hardly conflicts with the Founders' vision, as Mathis himself describes it. If the federal government has no standing army at all, then even the minimal stockpile of a gun over the mantle could be an effective defense against it. That the United States ultimately developed such a highly functional military hardly argues for the disarmament of its people.

This can be seen to be true upon addressing Mathis's major conceptual error:

... the right of revolution cannot be guaranteed in the Constitution, because we can engage in revolution only when we are willing to throw away the Constitution and start from scratch. ...

After all, if one is really committed to this understanding of the Second Amendment, one is also committed, by logical extension, to overthrowing the U.S. government altogether.

That's nonsense. It's very easy to imagine (especially in the current political reality) circumstances in which the "revolution" would be acting as a guarantor of the Constitution against leaders who have, themselves, effectively thrown it away. A single op-ed is too narrow a base from which to assert it as the case, but it seems likely that Mathis misses this point because he fundamentally sees the government as the natural inheritor and keeper of our Constitutional legacy. It's not; the people of the United States are.

That being the case, the possibility can hardly be discounted that the mighty American military would turn in support of a patriotic revolution that arises as a correction to tyrannical excess. And having at least some minimal weaponry above and beyond household items like knives and pitchforks surely gives the people an added sense of independence and confidence and makes it much less likely that a righteous cause could be swept away before the government's enforcers have reason to question the justice of their commander in chief's orders.

(Please note that I offer these arguments as theory, not as an expression of hope that such a revolution, much less an incitement toward it.)

Standing Up to That Old Time Political Bullying

Justin's post announcing Arruda and Durfee's despicable lawsuit against Dave Nelson here.

The following press release from the defendant was in my in-box this morning. Note well the second paragraph describing a demand that Dave rat out his fellow concerned citizens, apparently for the crime of behaving like ... concerned citizens.

A principle of democracy is public participation in local government. The right of such participation is found in the First Amendment, which includes the right of free speech. These fundamental rights are at the core of our political system and permeate our society. It seems that not everyone likes this-please read on.

About two months ago, and only 3 days before Tiverton's second FTM, I received a letter threatening legal action from Councilors Louise Durfee and Joanne Arruda's private attorney. This letter included a demand that I hand over names of people who received a letter to the editor from Tiverton Citizens for Change which highlighted tactics used by Tiverton's Town Council to request a 9% tax increase in the weeks before Tiverton's 2010 FTM. TCC views this as an attempt to intimidate, to silence the voice of dissent, stifle public debate and transform Tiverton's public debate into a lawsuit.

Durfee and Arruda filed this politically motivated civil suit, also known as a Strategic Lawsuit against Public Participation (SLAPP) suit, against me and Tiverton Citizens for Change in apparent retaliation to the April letter to the Editor which described 'false' documents filed with the State Department of Municipal Finance. The suit seems to be part of a larger strategy to intimidate and silence critics of Durfee and Arruda, and chill public debate.

The issue originates from Tiverton's Town Council's efforts to obtain an 'advisory' opinion from Rhode Island's Division of Municipal Finance by filing a Notice of Proposed Tax Rate Change which was not approved by the Town Council or Budget Committee. I, along with other TCC members spoke against this effort during an April 26 town Council Meeting. See our website
TivertonCC.com for the video of this meeting. The request was subsequently denied by Susanne Greschner, Chief of Division of Municipal Finance.

Our bedrock constitutional rights allow us to express disagreement with elected officials and report on matters of public concern. l will not cower from this attempt to intimidate my public participation in local budget and taxation issues. I am vigorously fighting this blatant attempt to intimidate TCC and have filed a countersuit under the State's anti-SLAPP law protections.

Dave Nelson
President of Tiverton Citizens for Change

A Troubling Power Grab from the State

Between its efforts to scrub religious heritage from the public square, the ACLU does occasionally address issues of wider concern, and I agree with its Rhode Island head on the issue of the state's placing Central Falls in receivership:

Brown's problem with the receivership law is Article XIII of the state Constitution, which concerns home rule for cities and towns. It says the General Assembly can pass laws that affect city and town governments, “but which shall not affect the form of government of any city or town ..."

Stripping the mayor of his authority to govern does just that, Brown said.

Speaking for Department of Revenue leader Rosemary Booth Gallogly, spokeswoman Amy Kempe argued that the receivership law is legitimate, in this case, because the elected leaders of the city requested the takeover, but that argument skirts the point. After all, a politically connected mayor shouldn't have the power to ask the state to eliminate his city's governing council, and a city council shouldn't be able to have the state make the mayor a dictator for life. More generally (and less extreme), it should require the explicit consent of the governed for their elected leaders to change their offices, even if they're admitting themselves incompetent rather than declaring themselves all-powerful. For those examples not to be included, the state constitution would require a process — preferably involving a popular vote, at some level — for a city or town to make such requests.

Following this conclusion, one might be tempted to suggest that the appropriate action of the state is to allow Central Falls voters to drive the city into the ground, if they so choose, and hopefully thereby learn their lesson. That Moreau won his office by such a large margin suggests that they've got much learning to do. But here's the problem with that approach:

[The judiciary's appointment of a receiver with powers closer to bankruptcy proceedings] alarmed the nation's bond-rating agencies, which quickly demoted Central Falls' bond rating to junk-bond status and warned state officials that if it was that easy for a Rhode Island municipality to file bankruptcy, they might start downgrading all Rhode Island municipal debt to reflect that risk.

That is: The incompetence of a particular municipality's electorate could affect every other city and town in Rhode Island. I'd suggest, though, that this is a dangerous frame of mind. Bond raters are certain to prefer strong, centralized governments with the power to force large numbers of people to do whatever suits the collective. If anybody needed one, here's another indication of the (sometimes unavoidable) evil of debt.

Brown doesn't affirm the ACLU's intention to challenge the law and, in fact, expresses puzzlement over who would have standing to take the state to court on the matter. It seems to me that any resident of a Rhode Island city or town should have such standing. It's our constitution.

Taxman as Enforcer

Randy Barnett has been following litigation in response to the individual mandate of the healthcare legislation that the Democrats rammed through Congress. Noting that the Obama administration's reliance on a claim of Congress's taxation power proves that arguments against the legislation's claims of Commerce Clause authority were never "frivolous," Barnett explains that the law, itself, relies on the now-challenged self justification. In other words, for the Supreme Court to uphold the mandate, it would have to "look behind that characterization during litigation to ask if it could have been justified as a tax."

Even so, Barnett doesn't think the tax power argument will fly with the current Supreme Court (emphasis added):

Now, of course, the Supreme Court can always adopt these two additional doctrines. It could decide that any measure passed and justified expressly as a regulation of commerce is constitutional if it could have been enacted as a tax. But if it upholds this act, it would also have to say that Congress can assert any power it wills over individuals so long as it delegates enforcement of the penalty to the IRS. Put another way since every "fine" collects money, the Tax Power gives Congress unlimited power to fine any activity or, as here, inactivity it wishes! (Do you doubt this will be a major line of questioning in oral argument?)

But it gets still worse. For calling this a tax does not change the nature of the "requirement" or mandate that is enforced by the "penalty." ALL previous cases of taxes upheld (when they may have exceeded the commerce power) involved "taxes" on conduct or activity. None involved taxes on the refusal to engage in conduct. In short, none of these tax cases involved using the Tax Power to impose a mandate.

Of course, some not-insignificant portion of ObamaCare supporters ultimately believe that Congress does have unlimited power over individuals. It's encouraging to know, therefore, that there are folks with the interest and resources to fight on our behalf.

So When Will the ACLU Be Filing the Other Suit Necessary to Protect "Separation of Church and State" in Cranston?

The controversy surrounding the banner displayed at Cranston High School West which uses the words "Heavenly Father" and "Amen" has unintentionally revealed another issue concerning the principle of "separation of church and state" in the City of Cranston. As was reported by Maria Armental in the Projo, Cranston's School Committee maintains an official policy telling people where they should practice their religious observances; page 686 of the Cranston School Committee policy document says that...

The Cranston Public Schools reaffirms the basic American tradition of separation of church and state. Such a policy is the logical outcome of our pluralistic society. The proper setting for religious observance is the home and the place of worship.

Declaring a limited set of places where religious observances are appropriate is pretty heavy-handed stuff to be coming from government, and if the display of a decorative banner can be considered movement towards the establishment of a government religion in violation of the First Amendment, then the adoption by the government of an official policy listing a limited number of sites where religious observance is deemed to be "proper" is an equally egregious violation of that same First Amendment's protection of the free-exercise of religion.

You might expect an organization concerned about "the separation of church and state" to object to a government statement defining proper places for religious observance, with the same urgency that has been shown in the objections to the banner. Instead, Steven Brown, head of the local chapter of the ACLU has approvingly cited the government-created statement of limits on where religious observance should occur as a part of the rationale for removing or altering the Cranston West banner. Based on the asymmetry of their approach, it certainly seems as if the local ACLU believes that maintaining stringent standards of "separation of church and state" is a priority in cases where such standards can be used to push religion out of public view, but that in other cases, separation of church and state is not so much of a priority, if even one at all.

Offense Against Sharia as Disorderly Conduct; Conformity with Sharia as Excuse Under the Law

It's difficult to believe that this is real, but it appears to be:

Nearly a dozen uniformed police officers descend upon a few young men handing out English/Arabic copies of the Gospel of St. John on a public street outside an Arab festival in Michigan, take them into custody, and release them with instructions not to carry on their activities within five blocks of the event.

I came across the video in relation to a case out of New Jersey in which a state judge ruled that a Muslim husband who raped his wife (shortly before divorcing her) had no "criminal desire" because he truly believed his action to be permissible under the laws of his religion. An appellate court overturned the decision, but as the video above (and evidence from Europe) suggests, this cultural wrestling has only just begun.

Their Best Weapon Is That Which Ought to Target Them

Reviewing the background of hate-speech policies at the international level, Jacob Mchangama notes an interesting dynamic that one encounters in other areas of human interaction:

Human-rights agencies are sympathetic to hate-speech laws partly because international human-rights con­ventions at the United Nations were instrumental in globalizing and mainstreaming them. The U.N.'s International Cov­e­nant on Civil and Political Rights (ICCPR) recognizes a right to freedom of expression, but it also states that "any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law."

The first working draft, as early as 1947, included only incitement to violence — universally recognized as a permissible ground for restricting freedom of expression — but the Soviet Union, Poland, and France wanted to include incitement to hatred as well. This was met by resistance from most Western states; the U.S. representative, Eleanor Roosevelt, hardly a libertarian, called the prohibition of incitement to hatred "extremely dangerous." The U.K., Sweden, Australia, Denmark, and most other Western democracies opposed the criminalization of free expression, counseling that fanaticism should be countered through open debate instead.

But these objections did not impress the majority of the U.N.'s member states — Saudi Arabia asserted at the time that Western "confidence in human intelligence was perhaps a little excessive" — and the "incitement to hatred" language was kept in. So it was that a coalition of totalitarian socialist states and Third World countries, many of them ruled by authoritarians, succeeded in turning a human-rights convention into an instrument of censorship.

That's a sort of general broad-brush view of totalitarians' leveraging of notions of freedom; Mchangama subsequently offers a more specific instance:

The Holocaust was still fresh in the minds of those who drafted the hate-speech-related U.N. conventions during the 1950s and '60s, and fresh memories of Nazi atrocities helped them to get those conventions passed. A lax attitude to Nazi propaganda, their argument went, had helped pave the way for Nazi rule and the annihilation of millions of Jews. But justifying hate-speech laws with reference to the Holocaust ignores some crucial points. Contrary to common perceptions, Weimar Germany was not indifferent to Nazi propaganda; several Nazis were convicted for anti-Semitic outbursts. One of the most vicious Jew-baiters of the era was Julius Streicher, who edited the Nazi newspaper Der Stürmer; he was twice convicted of causing "offenses against religion" with his virulently anti-Semitic speeches and writings. Hitler himself was prohibited from speaking publicly in several German jurisdictions in 1925. None of this prevented Streicher from increasing the circulation of Der Stürmer, or Hitler from assuming power. The trials and bans merely gave them publicity, with Streicher and Hitler cunningly casting themselves as victims.

A modern tendency of people to try to be "on the right side of history" comes to mind in this context, because we're too inclined to count the wrong things as culpable. For simplified example, we see in retrospect how hate speech against a group contributed to the atrocities of the Holocaust, so we're apt to consider hate-speech laws to be a reasonable preventative measure. But this creates the opening for those who wish to silence ideological opposition to present themselves as victims and to cast their defense as a foresighted avoidance of potential atrocity.

Imagine a personification of two forces in history — we'll call them, I don't know, Good and Evil. The intent of Evil isn't to be mean or unpleasant, but to harm others, or at least to treat the harm of others as inconsequential. Sometimes that intention is accomplished by lamenting Evil's own strategies so as to benefit from the backlash against them, while painting Good with the tainted brush.

Shutting Down the Alternative

This is the sort of thing about which all Americans should strive to be aware:

Hot on the heels of recent threats from Vice President Joe Biden and Intellectual Property Enforcement Coordinator Victoria Espinel directed at sites offering unauthorized movies and music, last month U.S. authorities targeted several sites they claimed were connected to the streaming of infringing video material.

'Operation In Our Sites' targeted several sites including TVShack.net, Movies-Links.TV, FilesPump.com, Now-Movies.com, PlanetMoviez.com, ThePirateCity.org, ZML.com, NinjaVideo.net and NinjaThis.net. In almost unprecedented action, the domain names of 7 sites were seized and indications are that others — The Pirate Bay and MegaUpload — narrowly avoided the same fate. ...

Now, according to the owner of a free WordPress platform which hosts more than 73,000 blogs, his network of sites has been completely shut down on the orders of the authorities.

We're all interconnected, out here on the Internet, and it would be very easy to come up with pretenses to take out unquestionably legitimate Web sites with which the powers who be have problems. We're not to the point of virtual black helicopters, yet, but it's critical to have an eye on such developments.

Winging a "Prayer"

The banner has been on display at Cranston West High School since 1958. On it is a simple, innocuous prayer.

Our Heavenly Father,
Grant us each day the desire to do our best,
To grow mentally and morally as well as physically,
To be kind and helpful to our classmates and teachers,
To be honest with ourselves as well as with others,
Help us to be good sports and smile when we lose as well as when we win,
Teach us the value of true friendship,
Help us always to conduct ourselves so as to bring credit to Cranston High School West.
Amen.

It wasn't a problem until someone took offense--enter the ACLU:

Steven Brown, executive director of the local ACLU, said she “was extremely concerned and troubled … upon observing a display of a prayer on the wall.”....Brown said the banner violates the First Amendment and his letter asks the committee to remove it, along with anything similar that might be displayed in other Cranston schools.

“I understand that this prayer may have been posted in the auditorium for a long time,” said Brown. “However, the crucial protections of the Bill of Rights have been around even longer.”

Brown cited Supreme Court decisions upholding the separation of church and state and referred to the district’s policy which states that “The proper setting for religious observance is the home and the place of worship.”

Familiar argument, heard it before. The hypersensitivity to this stuff is ridiculous, but, as Brown says, it's been pretty much "established" that this is a no-go (agree or not). So it looks like the Cranston School Committee is resigned to remove the banner because doing so would lighten the mantle of persecution imposed upon any non-believers forced to casually glance at the banner from time to time while attending a function in the auditorium--and it costs a lot less than a lawsuit. However, School Committee Chair Michael Traficante did offer some thoughts:

School Committee Chairman Michael A. Traficante said he has been to the auditorium many times but has never noticed the prayer on the wall...Traficante said this is the first complaint that he’s aware of concerning the banner.

“If it’s a violation of the First Amendment, we have no choice but to remove it,” he said, but suggested that the language could be changed.

“It doesn’t need to say Heavenly Father,” Traficante said.

To this, Brown chuckled.

“A prayer is a prayer,” he said. “I’m not quite sure how one changes the words of a prayer.”

Well, how about like this, Mr. Brown?

We desire to do our best,
To grow mentally and morally as well as physically,
To be kind and helpful to our classmates and teachers,
To be honest with ourselves as well as with others,
To be good sports and smile when we lose as well as when we win,
To learn the value of true friendship,
To always conduct ourselves so as to bring credit to Cranston High School West.

That wasn't too hard.

Always That Last Leap

I would very much like to be won over by Ramesh Ponnuru's argument against libertarian reservations about the Civil Rights Act (recently in the public consciousness thanks to Republican U.S. Senate Candidate from Kentucky Rand Paul. But I cannot escape the conclusion that Ponnuru's dual structures of legalism and appeals to legislative judgment never quite eliminate the leap of just wanting it to be so — that is, just wanting Congress to have the power to compel private citizens acting in private capacity to determine the criteria by which they may act.

... Jim Crow was a deeply rooted social system with many facets that blurred the private-public distinction. Governments discriminated against citizens, and ordered the private sector to discriminate. Privately organized terrorism was allowed by the state. It was entirely reasonable for a constitutionally conscientious legislator to conclude that the only way for Congress to enforce the guarantee that states offer equal protection to all citizens was to uproot the whole system: Force the states to allow blacks to vote; require hotels and theaters to treat customers without regard to race; ban employers from considering race as well; end every part of the system that could be ended.

If this reasoning suffices to overcome constitutional scruples about the legislation, it should also suffice to overcome libertarian ones. One might believe that in general people should be free to hire or fire employees on whatever basis they wish, and set a high bar for the infringement of this freedom, while also believing that in the specific circumstances legislators faced in the 1960s this freedom had to be curtailed in order to end a wicked and coercive status quo.

Reading the essay, I was wholly with Ponnuru through this point and hoping that his considerable intellect would enable an a-ha against my libertarian tendencies, but then he goes on as follows:

Note, however, that this reasoning, depending as it does on the peculiar circumstances Congress faced, cannot justify just any congressional enactment in the name of equality. It would be implausible to argue, for example, that Congress had to outlaw age discrimination for the elderly to enjoy equal protection. Nor, I think, could a legislator argue with a straight face that requiring universities and employers to extend preferential treatment to black applicants would be justified as a way to enforce the Fourteenth Amendment.

Sure, the "peculiar circumstances" argument is plausible, and it's certainly one I would make against extensions of equality-by-dictat, but it's not quite adequate to the libertarian challenge. Ponnuru argues, essentially, that (owing to the 14th and 15th amendments) the Constitution gives Congress the power to pass such laws and that doing so remains a matter of legislative judgment. It may be implausible to say that Congress must include other forms of discrimination, but history has surely proven that legislators are perfectly capable of finding justification on other grounds.

After all, at root, the anti-discrimination movement takes as a given that all of the tendencies that they loathe are functions of "a deeply rooted social system." What libertarians would need — what I need, frankly — is a reason, in the law, that only matters of race — especially those tied to our national original sin of slavery — justify the governments telling people whom they must hire and with whom they must associate if they're inclined toward certain activities.

Furthermore, with the advantage of retrospect, it's still reasonable to wonder whether racial strife wouldn't have dissipated more rapidly had it come via the mechanism of private acts of condemnation.

Legal, but Gone

So, the Mojave Desert cross honoring American servicemen and -women has been stolen:

A cross erected on a remote Mojave Desert outcropping to honor American war dead has been stolen less than two weeks after the U.S. Supreme Court allowed it to remain standing while a legal battle continued over its presence on federal land.

Versions of the memorial have been vandalized repeatedly in the last 75 years and the motive this time was not immediately known, but the theft was condemned Tuesday by veterans groups that support the cross and by civil libertarians that saw it as a violation of the constitutional separation of church and state.

Among the generic suspects mentioned by National Park Service spokeswoman Linda Slater are "metal scavengers." It seems like a long way to go for metal, unless there was gold beneath the white paint.

"Free" Speech and "Positive Spaces" in Canada

A rowdy crowd (notice that, in the interest of avoiding "hate" speech, I didn't say "mob") succeeded in preventing Ann Coulter from speaking at the University of Ottawa Tuesday evening. Is it too obvious, by the way, to point out the irony that "hatred", the offense that Ann Coulter is purportedly guilty of, was not lacking on the part of those who so vigorously opposed her speech? Perhaps, if he is finished instructing Ms. Coulter as to what she can and cannot say, University of Ottawa Vice-President François Houle can clarify under what circumstances hatred and hate speech are acceptable.

But the gem of the story from the Ottawa Citizen is in bold.

Rita Valeriano was one of several protesters inside the hall who, with chants of "Coulter go home!", shouted down the International Free Press Society of Canada organizer who was addressing the crowd.

Valeriano, a 19-year-old sociology and women's studies student, said later that she was happy Coulter was unable to speak the "hatred" she had planned to.

"On campus, we promise our students a safe and positive space," she said.

First of all, there's the incongruity of the stated goal of a "safe and positive" campus with the "welcome" given to Ann Coulter, which seemed neither positive nor particularly safe. Secondly, should this even be a goal for a university? Ms. Valeriano's description conveys an unhealthy cross between Sesame Street and Stepford Town. Sesame Street is fine for children. But isn't it better for young adults to begin learning that the world is not always a safe and positive place? Further, and perhaps most importantly, what is being filtered out to achieve that goal?

Minimally, for one evening, it appears that speech was filtered. Under that circumstance, "safe and positive" can quickly restrict learning and even free thinking. This would be counter-productive, to say no worse, for an institution of higher learning.

Patrick Lynch Not Interested in Challenging the Federal Government's Power to Impose a Purchase Mandate on Individuals

According to Steve Peoples of the Projo's 7-to-7 newsblog, Rhode Island Attorney General Patrick Lynch (to no one's surprise, really) is not interested in joining a potential lawsuit by the states challenging the Federal government's power to require that individuals purchase something...

"I don't like a lot of the decisions that the legislature makes every day. Do I go up and sue them? And do you have the basis to do so, more to the point?" Lynch said in a late-morning interview, characterizing the looming lawsuits in a dozen states as "political posturing....But at the outset, moments after the vote, when they're crying and putting up [lawsuit threats] on Facebook in Texas first, there's a procedure that we go through as attorneys general when something is more substantive, and this seems to be a partisan driven mechanism," said Lynch, a Democratic candidate for governor.

"To me it's a moment that should be celebrated," he said of Sunday's health-care vote.

Will Patrick Lynch be Getting a Phone Call Tonight...

...and do we have a new issue in both the Rhode Island Attorney General's and the Governor's races, based on this facebook post from the Attorney General of Texas (h/t NRO)...

Texas attorney general Greg Abbott Facebooks: "I am organizing a conference call tonight for AGs across the country. We will discuss our litigation strategy about the healthcare bill. I will update you on Facebook after the conference call."

The Religion of the Irreligious

This essay by Alex Rose has loitered about my desk for better than a month, because I've been unable to decide whether it's worthy of response. One gets the strong impression that Mr. Rose's primary intention is to execute a faux-daring poke in the eye of an acceptably accosted group — traditionally religious people — to provoke a reaction and draw attention to himself. If that's the case, he's guilty of no more than ambition and a lack of imagination. Why the Providence Journal opinion page editors would step over the reams of local, national, and international material that they reject on a daily basis in order to contribute to the ignorance of their readers by offering them Rose's expression thereof is another question.

Whatever the answer, the fact that the piece of writing landed in my driveway on a winter Wednesday morning suggests that corrections that we might like to think unnecessary may, in fact, be required. Herewith, I'll run through the exercise expeditiously so that I can send Mr. Rose along with Tuesday's recycling. (Perhaps he'd appreciate that detail, inasmuch as recycling appears to be among his methods of writing.)

Indeed, the first clause [of the First Amendment], "[c]ongress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof," can be read as downright self-contradictory. For how are laws to protect religious institutions without explicitly honoring them?

Having twisted a word or two for laughs, myself, I can testify that it's possible to read just about anything as "self-contradictory." Usually, though, especially when handling the language of our well-educated forefathers, such a reading is evidence of misreading. In the case of the Bill of Rights, "establishment" is not meant as a synonym for "organization" — as in "a business establishment" — but as the act of establishing. Congress cannot establish a Church of the United States, which, absent the First Amendment, it could theoretically do without infringing the free exercise of other religions.

Rose's misreading is especially significant because he proffers it en route to suggesting precisely the sort of establishment of religion that a properly understood First Amendment would proscribe:

Let me be clear: I am in no way suggesting we impose any kind of legal sanctions that might threaten religious freedom. I do believe, however, that children have the right to be educated, that access to truth is as "inalienable" a birthright as the pursuit of happiness.

If what they learn in Sunday school is flatly at odds with the scientific worldview — and often it is — they are bound to be confused.

What they come away with is a very inconsistent picture of reality, one in which ghosts and miracles exist alongside natural selection and photosynthesis. Maybe some grown-ups can find ways of squaring the circle without any problem, but kids cannot, and the rift creates air bubbles in their understanding of how the world works.

As somebody who finds the plausibility of miracles' coinciding with photosynthesis to be such a simple matter that children could readily understand it (even if adults like Rose stumble on the concept), I'd suggest that "how the world works" cannot be comprehensively answered without some non-falsifiable assumption. Whatever its mechanics, either the universe runs on cold chance or some sort of intention, and that particular "yes" or "no" makes all the difference.

Joseph Anesta, of Cranston, put it very well in a letter to the editor appearing the following Wednesday:

Ironically, Mr. Rose clearly does have a god, the most jealous, vengeful, angry deity of all. His god is the State, and "thou shall have no other."

Secular statists like Alex Rose may permit their fellow Americans to quietly believe whatever they like, but in their view, workers have no essential right to their own property and parents have no essential right to convey their beliefs to their children. The government, on the other hand, is supposed to be perfectly within its reasonable boundaries when it determines the nature of reality and educates its children accordingly.

The most telling evidence of Rose's fundamentalism is his apparent confidence that his fellow adherents are destined always to be the ones wielding the power of the state. That would be threat enough to liberty to justify fear, but the greater danger is the more strongly believing faction that would surely seize the precedent.

When Caesar Claims What Is Not His

Joseph Bottum notes a piece of legislation in the United Kingdom that looms as a logical subsequent step for liberal legal and cultural trends in the United States:

... the bill's most controversial provision would enjoin churches and other religious bodies from discriminating on the basis of gender or sexual orientation in the selection of personnel, save in cases where said personnel regularly spend more than half their time "leading worship services or explaining doctrine."

According to Simon Caldwell in Britain's Catholic Herald, the Bishops' Conference of England and Wales has prepared a briefing to protest the measure. A senior Queen's Counsel has informed the bishops that the bill's pertinent clause will make it "unlawful to require a Catholic priest to be male, unmarried or not in a civil partnership, etc., since no priest would be able to demonstrate that their time was wholly or mainly spent either leading liturgy or promoting and explaining doctrine . . . the Bill fails to reflect the time priests spend in pastoral work, private prayer and study, administration, building maintenance, and so on."

The Christian Science Monitor has more information, or for an experience of the what-government-thinks-of-you sort, check out the "easy read" document (PDF) available on the U.K. government's official page for the bill.

The practice has already entered Western society, of course, but at a certain point religious leaders — if they truly believe what they preach — have to face the consequences for civil disobedience and proclaim that they have no intention of complying with unjust laws. Sure, the rabid secularists will smear with words like "bigotry," but let them then go out and proclaim a belief in religious liberty. Let them then attempt to justify the creeping sharia that's slowly permeating the West.

Let the politicians imagine, in short, the front-page pictures of men and women in religious clothes being taken away in handcuffs because they continued to believe what they've long professed. Such laws are either a bluff or a travesty. Are ostensibly democratic and freedom-loving governments going to begin shutting down churches for hiring according to their doctrine? Or will they satisfy themselves with pushing charitable arms out of communities, as Massachusetts pushed the Catholic Church out of adoption?

Either way, the broader society must be made to see this brand of "progress" for what it is. Whether that witness begets reconsideration really ought to be of secondary consideration to people who believe in the primacy of supernature.

It's Not About Trusting Special Interests; It's About Not Trusting the Government

Ed Achorn puts the recent campaign-finance ruling from the Supreme Court in precisely the right light:

The problem (as the Founders well understood) is that there is no safe way for Congress to parcel out a "fair" amount of speech to the people who "deserve" it most. When they overleap constitutional bounds and seize such power, politicians invariably favor their own free-speech rights, while limiting the rights of those who might criticize them (which is precisely what McCain-Feingold did).

Politicians like to control the message. They do not want others to challenge them or cast doubt on their utopian schemes.

Politics is dirty, and democracy is messy. Passing laws that deny reality does not make the reality go away; it makes it possible for self-interest to corrupt the process.

The International Noose Tightens

How long, do you suppose, until history encounters its first global totalitarian regime?

U.S. Rep. Barney Frank said a bank tax and other tough new measures would be introduced by the individual countries but in a coordinated way to prevent bankers from moving from one place to another to escape regulation.

"Lenin might have been able to put socialism in one country, but tough bank regulation in one country ain't going to happen because we will lose people," said Frank, a Massachusetts Democrat who heads the U.S. House Financial Services Committee, a key spot for any American decisions.

Expect "coordination" to expand in the authority that it entails and in the issues that it covers. This really is the sort of thing against which the United States should stand, on the global scene. Sadly, our current regime is likely a driving force behind it.

That also implies the possibility that the rest of the world will allow us to go first so as to drive our businesses away and then curtail their own enthusiasm.

On Citizens United v. FEC Supreme Court Decision: Reflections from April 30, 2005 on Correcting the Bizarre Incentives Created by Campaign Finance Reform Laws

A nearly five year old blog post, reposted here in response to this week's Supreme Court decision about free speech:

Andrew has a terrific, focused posting entitled First They Came for the Radio Talk Show Hosts... that gets to the heart of the latest fallout from campaign finance reform here in Rhode Island. Once again, we have an example of how legislation has unintended consequences that, in this case, affect our freedom of speech.

Dating back to the post-Watergate reforms in the 1970's, I continue to be amazed at how people think it is possible to construct ways to limit the flow of money into politics. And so we have concepts such as hard money, soft money, donation limits by individuals, donation limits by corporate entities, political action committees, 527's, etc.

Like water flowing downhill, money simply finds new ways to flow into politics after each such "reform." Does any rational person really think all these limitations have reduced the influence of money on politics? Surely not. Have all these limitations changed behavioral incentives for people or organizations with money? Quite clearly, as the 527's showed in the 2004 elections. But all we have done is made the flow of money more convoluted and frequently more difficult to trace. Are we better off for all the changes? Hardly. And, the adverse and unintended consequences will only continue into the future.

What can we do differently? Here is an alternative, and arguably more straightforward, view of the world:

1. Government has become a huge business, which means there is a lot of money for various interest groups - of all political persuasions - to grab, some for legitimate reasons and much in the form of pork. Money flows into politics to buy influence because so much is at stake financially. While no one wants to talk about it openly, the flow of large sums of money into politics is yet another unfortunate price we pay for allowing government to become such a pervasive part of our lives. If we truly had limited government, the pressure to buy influence would be much reduced. It is nothing but foolish ignorance to seek limits on the flow of money without first reducing the structural incentives that currently give people an economic reason to buy influence.

2. Since money is going to flow into politics, one way or another, then we should stop setting up barriers to free speech like Morse notes have come out of the latest campaign finance reform law. Rather, why not take all limits off political contributions in America in exchange for requiring ALL details about such contributions be posted in a standardized report format on the Internet within 24 hours of receipt by either an individual politician or by a political party? Total transparency and accountability, unlike today. If a George Soros or a Richard Scaiffe contributes vast monies, anyone paying attention will see it and the public scrutiny will be immediate. No more PAC's, no more 527's, no more hard versus soft money distinctions, etc. Eliminate the incentives to play fundraising games like the alleged misdeeds by Hillary Clinton's Senate campaign.

Such reform even has the potential to weaken the power of incumbents in both parties and create real competition in our political races. Think about Eugene McCarthy in 1968 and Ronald Reagan's various campaigns where each challenged the status quo and all of which were the result of having committed financial sponsors. Today many candidates have to be wealthy so they can spend their own money. Limiting the pool of candidates does not result in a better pool of candidates.

Total transparency and accountability in politics, with the potential for greater competition. Should not those be the policy objectives underlying our campaign finance laws? And, if successfully implemented, wouldn't that be a novel concept?

Of course, it is sadly ironic that achieving such transparency, accountability and competition will only happen if our incumbent politicians vote for new laws. Yet, given their own self-interest, our politicians have no incentive to support such changes and that lessens our freedom as American citizens. Yet another price we pay for big government.

Numerous links to commentaries about the Supreme Court decision can be found in the Extended Entry. If you do nothing else, listen to the Cato Institute video.

Continue reading "On Citizens United v. FEC Supreme Court Decision: Reflections from April 30, 2005 on Correcting the Bizarre Incentives Created by Campaign Finance Reform Laws"

Dr. King

Aside, from his obvious importance in the civil rights movement, Dr. Martin Luther King Jr. was one of this nation's great, effective orators and writers. His "I Have a Dream" speech and "Letter from a Birmingham Jail" are, respectively, great examples of his talent and ability to call upon central tenets of our nation's founding--upon the promises made, and too often unfulfilled--to help make the case for his righteous cause. But he also had an ability to be both sincerely empathetic, as heard and seen in his "Eulogy For The Young Victims Of The Sixteenth Street Baptist Church Bombing", while explaining the deeper meaning of actions and events that occurred during the struggle in which he engaged.

The Federal Church of the United States of America

By now, you're likely to have heard Martha Coakley's interpretation of the First Amendment's application to the matter of abortion. In conversation with radio talk host Ken Pittman, the Democrats' candidate for U.S. Senate spoke as follows:

Ken Pittman: Right, if you are a Catholic, and believe what the Pope teaches that any form of birth control is a sin. ah you don't want to do that.

Martha Coakley: No we have a separation of church and state Ken, lets be clear.

Ken Pittman: In the emergency room you still have your religious freedom.

Martha Coakley: (...uh, eh...um..) The law says that people are allowed to have that. You can have religious freedom but you probably shouldn't work in the emergency room.

Kathryn Jean Lopez suggests that Coakley's view of more profound relevance:

Coakley betrays a prevalent tendency of the liberal mind: If we go by what she said to Pittman, Coakley believes that religious liberty is not something endowed by our Creator, but something the law allows, something the state can change depending on who is in power, or what's polling well. If she were his student, Richard W. Garnett of Notre Dame's law school has a few questions he would want to ask Coakley: Is religious freedom a concession by the State? Or is religious freedom really about the fact that government is limited in its scope and competence, and that some realms of life stand outside the circumscribed authority that a free people is willing to grant its government?

The problem may even go more deeply than the hypothetical options suggest. If the Party of Death has its way, the freedom to be true to your religion will translate into a right to select from a list of careers in which the government has determined your beliefs will not interfere with worldviews of which it approves. This, simply put, is a religious establishment by the federal government.

Making America Just Another (Subordinate) Country

Amid political battles locally and race scandals nationally, let's not lose sight of the newly immune global-government police force operating within the United States. A recent column by Andrew McCarthy is must-reading on the topic, as he explains why the Obama administration is disinclined to explain why the president would quietly remove protections of the American people against the International Criminal Police Organization (Interpol):

Here's how the game works. International-law professors, jurists, and bureaucrats announce some piety that they think everyone should follow (e.g., the death penalty is an unconscionable human-rights violation). Once enough of them have followed it for long enough (in recent years, "long enough" seems to have become "ten minutes" . . . or the time it takes to announce these new international standards), the piety is deemed — at least by transnationalists — to be universally binding. In their view, it thus becomes the obligation of every nation to fall into line, changing their laws to whatever extent is necessary to do so. That is, the sensibilities of the "international community" (i.e., the elites of the global Left) void the democratic self-determinism of the American people. ...

This is surely another reckless gesture designed to eviscerate America's special status and self-determinism — to make us just one of 192 other countries, no better, no different, no superpower. The president knows that Americans don't share his view of America, which is a big reason behind his tumbling approval ratings. Saying out loud that we need to immunize Interpol — to put it above the U.S. Constitution — in order to be more like Kenya, Thailand, Zimbabwe, etc., would not go over well. That would bode ill for the administration's agenda to subjugate the U.S. to such transnationalist schemes as the Law of the Sea Treaty and the International Criminal Court. Better to say nothing.

Jim Taricani on the TSA Subpoenaing Bloggers About Their Sources

The Associated Press is reporting that the Transportation Security Agency is trying to force a pair of bloggers who reported on changes to TSA security procedures following Umar Farouk Abdulmutallab's attempted bombing of a Christmas Day flight to Detroit to reveal their sources...

As the government reviews how an alleged terrorist was able to bring a bomb onto a U.S.-bound plane and try to blow it up on Christmas Day, the Transportation Security Administration is going after bloggers who wrote about a directive to increase security after the incident.

TSA special agents served subpoenas to travel bloggers Steve Frischling and Chris Elliott, demanding that they reveal who leaked the security directive to them. The government says the directive was not supposed to be disclosed to the public.

Frischling said he met with two TSA special agents Tuesday night at his Connecticut home for about three hours and again on Wednesday morning when he was forced to hand over his lap top computer. Frischling said the agents threatened to interfere with his contract to write a blog for KLM Royal Dutch Airlines if he didn't cooperate and provide the name of the person who leaked the memo.

I asked WJAR-TV's (NBC10) Jim Taricani, who was sentenced to six-months of home confinement in 2004 for refusing to reveal the source of a videotape he received in connection with a Federal corruption investigation and who supports the passage of a Federal shield law for journalists, what he thought of the subpoenas. His reply was that...

These subpoenas are a perfect example for the need of a federal shield law that includes bloggers.

The "Free Flow of Information Act" that has passed the House of Representatives does not provide a privilege for bloggers. The bill pending in the Senate also does not include a privilege for bloggers.

In my opinion, bloggers are comparable to the pamphleteers of Colonial days, when the Founding Fathers fashioned the Freedom of Press clause in the First Amendment.

When bloggers gather, analyze and dispense information about our government, they should, in my opinion, be provided with a privilege to protect the sources of their information.

The British Judiciary Defines the Jews

In the continuing series of stories that show Western (especially European) governments to believe it to be their right to define the boundaries of religious practice, David Goldman describes a case in which a British court found that an Orthodox Jewish school could not follow the practice of matrilineal descent in its admissions policies:

JFS is a state school, one among seven thousand religious schools funded by the British government, but the ruling in the case applies equally to private schools. Justice Munby, presiding in the first case, opened his ruling with these words: "The content of a religious faith and the nature of its beliefs, observances, and practices is, for a secular court, a matter of fact to be proved in the usual way by evidence." What was to be proved, in a practical matter, was whether the Jewish religion might be practiced in the United Kingdom.

Munby ultimately decided for the school, but having determined that a secular court could judge whether a religious organization's decision was factually in keeping with its stated beliefs, he opened the way for an appeals court to come to a different conclusion about whether the practices suggested by those beliefs are legal:

Even more redolent of Kafka was the subsequent contrary ruling of the appeals court, which overturned Munby's decision with the brief, bland assertion that Jewish religious law was racist, equating the Jewish doctrine of matrilineal descent with South African apartheid: "If it were otherwise, a person who honestly believed, as the Dutch Reformed Church of South Africa until recently believed, that God had made black people inferior and had destined them to live separately from whites, would be able to discriminate openly without breaking the law."

On first glance, the decision seems to be a consequence of the West's method of fighting racism through government, rather than cultural, structures, and that has surely been contributing to the sequentially falling barriers protecting individual and collective liberty, but even so, an additional intellectual barricade had to fall, in this case. The distinction now lost was that one cannot convert from being black, but one can convert to Orthodox Judaism. If one believes attendance of an Orthodox Jewish school to be of such merit as to pursue lawsuits for admission, one can follow the steps to become officially Jewish.

Not good enough, says updated British law. Personally, I think a group ought to be free to set policies for its community however it likes, and everybody else ought to be free to lampoon and shun it, but even an entry hatch of conversion is not sufficient inclusiveness for the soldiers of tolerance.

A Federalist Christmas

My monthly column in the current Rhode Island Catholic reviews the Commerce Clause, government spending, and the Fourteenth Amendment as contributors to trends that are transforming Christmas into a private affair:

The underlying assumption that an atheist should feel as at home as an orthodox Roman Catholic in any corner of the nation is at odds with the brilliant experiment that the Founders initiated. True civic freedom — truly representative government — must include the right to construct a community that reflects its members' unique values. Furthermore, a dynamic society requires that its citizens be able to escape from communities with uncongenial values to others that are substantively different, without disclaiming their national identity.

Americans who want their towns to resemble a Norman Rockwell vision of the Christmas season have no right to threaten or disenfranchise the skeptics and gadflies in their midst. The gadflies, in turn, should have no recourse to the swamps of Washington, D.C., for a Grinch's veto.

A resident of any town, state, or nation should have recourse to due process should he or she feel that the government is not adequately representing him or her. Secularists wish to make their "due process" a quick run through the courts to align the government with their beliefs, while disallowing their religious neighbors any due process less dramatic than a constitutional amendment at the national level.

Arlene Violet: "Brown University over-reacts to Young"

Rhode Island political junkies will recall that Chris Young was literally dragged away by police from a microphone at the Brown University health care forum starring Congressman Patrick Kennedy ten days ago and then criminally charged.

Ahlene has an excellent analysis of the incident and its First Amendment implications in Thursday's Valley Breeze. Excerpt:

... In a free society, somebody who voices an unpopular view in a strident voice at a public forum where audience participation is encouraged shouldn't be dragged into court. No warning was given to this speaker of such a dire consequence. He was merely told that he had 15 seconds, an admonition most people don't take literally as opposed to shorten your remarks. Ironically, an audience member right before him went up to the microphone twice with rather longwinded rhetoric with impunity. Moderators handle this eventuality often by gently coaxing the participant to ask the question succinctly. Warnings as to the "rules" governing the discourse are announced before the open session of questioning. Neither approach was unequivocally used here.

Brown University needs to make amends. It should drop the charges. As a bastion to the First Amendment it puts itself in the untenable position of pushing a prosecution which is the antithesis of the First Amendment freedom of speech and freedom of religion. ...

Rhode Island's Attorney General Endorses a Broad and Constitutionally Sensible View of the Second Amendment

At the time of Sondra Sotomayor's Supreme Court nomination hearings, Anchor Rising noted that Rhode Island Attorney General Patrick Lynch had not joined an amicus brief offered by other state Attorney Generals in the case of McDonald v. Chicago in support of the position that the Second Amendment is protected from state-government abridgement via the Fourteenth Amendment ("No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States").

Since that time, the RI Attorney General has signed on to the brief, which makes its case for the incorporation of Second Amendment rights in no uncertain terms…

As history has proven, the right to bear arms provides the foundational bulwark against the deprivation of all our other rights and privileges as Americans—including rights that have already been incorporated against the States by this Court. Accordingly, the Court should hold that the Second Amendment also secures a “fundamental” right that can no more be abrogated by local government than by the federal government....

Under this Court’s established Due Process jurisprudence, all “fundamental” rights under the Bill of Rights are enforceable against state and local governments—including the Second Amendment. The fundamental nature of the right to keep and bear arms, as necessary to the protection of all other rights, has been deeply embedded in the American conscience at every stage of our history: It was imported into the colonies from English law, sparked the American Revolution, animated the Founding spirit of this Nation, and drove the adoption of the Fourteenth Amendment and other post-Civil War measures designed to protect recently-freed slaves from both government and private oppression.

The addition of Attorney General Lynch's signature to the brief helps bring the total number of state AGs who support the Second Amendment to 38.

If we live in a system based upon the rule of and not the rule of lawyers, it is obvious that, if the the 14th Amendment extends the protections of Amendments 1 and Amendments 3 through 8 to state governments, then the protections of Amendment 2 must also be similarly extended. Whatever other disagreements you may have with him, it is a good thing that Rhode Island's current Attorney General has taken a public stand in support of this position.

"Smart" Like a Fox

At least I'm not alone in my concern that the "smart grid" craze opens up new horizons of privacy infringement:

Smart grid technology -- including new "smart meters" being attached to businesses and homes -- is designed in part to provide consumers with real-time feedback on power consumption patterns and levels. But as these systems begin to come online, it remains unclear how utilities and partner companies will mine, share and use that new wealth of information, experts warn.

"Instead of measuring energy use at the end of each billing period, smart meters will provide this information at much shorter intervals," the report notes. "Even if electricity use is not recorded minute by minute, or at the appliance level, information may be gleaned from ongoing monitoring of electricity consumption such as the approximate number of occupants, when they are present, as well as when they are awake or asleep. For many, this will resonate as a 'sanctity of the home' issue, where such intimate details of daily life should not be accessible."

According to the study, examples of information that utilities and partner companies might be able to glean from more granular power consumption data include whether and how often exercise equipment is used; whether a house has an alarm system and how often it is activated; when occupants usually shower, and how often they wash their clothes.

It's far too easy to imagine such information tempting government officials to find ways of "checking on" peculiar energy usages. Maybe that consistently high energy consumption in the basement zone of residential lot 57 is related to an elaborate toy train track setup, but maybe it's an illegal marijuana nursery. Best to check.

And even apart from government, it mightn't be long before targeted direct-mail campaigns begin filling mailboxes based on information learned via energy usage. No doubt detergent companies and out-of-the-home laundry services would be interested in the frequency of families clothes washing. For example.

Everyone a Bomb Builder

I've got mixed feelings about this odd little story out of Tiverton:

James R. Lapre, 24, of 320 Hurst Lane, Tiverton, was charged with disorderly conduct and with threatening to place a bomb in a public place (a felony) after police took him into custody, then searched his residence and discovered makeshift bomb-making materials.

Police said that a co-worker Mr. Lapre had invited to his home said he saw there a section of PVC pipe, nails, and other materials that he lifted and described as heavy.

Police said that when the co-worker asked what the pipe and materials were for, Mr. Lapre told him that he was going to leave the bomb at their boss's business if he was laid off. The co-worker told the employer, who reported the matter to Tiverton police.

My first reaction is to think of Arlo Guthrie's line about "using up all kinds of cop equipment that they had hanging around the police officer's station" in "Alice's Restaurant":

Armed with a search warrant, Tiverton police officers and detectives, along with representatives from the Federal Bureau of Investigation (FBI), the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), Rhode Island State Police, the Rhode Island Fire Marshall's office, the Rhode Island Emergency Management Agency (RIEMA), and tactical and bomb squad units, surrounded Mr. Lapre's Hurst Lane residence.

More seriously, though, the incident seems to reside along a fine line of civil liberties. Consider this excellent comment from the first link above:

What you will need to make a bomb:
1. PVC Pipe
2. Nails
3. Items that when lifted can be described as heavy

What combination of legally purchased items are required in order for one to be arrested for credibly building a bomb? And should bomb-building be a criminal offense, anyway, given the Second Amendment? Working in construction, I've probably got everything I'd need to put together a makeshift bomb, if I cared to learn how to combine them for that purpose; does that mean that an army of acronyms could bang down my door if I make an off-hand quip that somebody ought to "blow up" this or that?

No Sympathy for the Demented

Not to go all social conservative on you, but I have to believe that there are (or should be) more pressing issues for the head of a civil liberties organization than protecting an industry set on selling the sexual objectification of children. But there goes the ACLU's Steven Brown:

Legislation passed last week to make sex-trafficking of minors a felony is so broad, he told the Senate Judiciary Committee, that it could make criminals of people who profit from sexually-explicit art depicting minors. ...

The allegedly offending language in the human-trafficking legislation defines "sexually-explicit performance" as "an act or show, intended to arouse, satisfy the sexual desires of, or appeal to the prurient interests of patrons or viewers, whether public or private, live, photographed, recorded or videotaped." Anyone found guilty of such an offense would face up to 40 years in prison and a $40,000 fine, or both.

"Theoretically, it could be a theater owner," the state's chief civil libertarian told Political Scene. Or "somebody who takes photographs of minors deemed to appeal to prurient interests ..."

Personally, I'd have stricken the phrase about "prurient interests," and been clearer about the meaning of "sexually-explicit," but several other factors make it unnecessary, even odd, to fear for theater owners who behave in ways that we'd all agree oughtn't be criminal:

• It's fanciful to imagine that the judiciary, as constituted for the foreseeable future, will seek to interpret art as "intended" for the purpose of arousal.
• Legal precedent providing first amendment protection to pornography ensures the first point, and if producers must take extra care with actual children, well, I'd be hard-pressed to explain why an artistic statement requires the use of actual children for sexual purposes.
• I continue to believe that it should be deemed appropriate for states to be more stringent, in their rules, than is the federal government. If Rhode Islanders don't wish to allow the public display of children in sexually explicit situations, then there are 49 other states in which peddlers of filth could display their sickness.

Kennedy and Obama vs. Catholic Church and Fox

Something's been gnawing at me since Andrew posted video of Congressman Patrick Kennedy proving once again why we should all hope his handlers keep him well away from any real power, and it took a revistation of Ed Achorn's concern about the Obama administration's jihad against Fox News to jar the pest loose. Here's Achorn:

The White House's declaration of enemy status for Fox seems to reflect a growing disrespect throughout our society for free speech, the wellspring of America's greatness and generous spirit. A president of all Americans, even those who disagree with him, should have the grace and bigness to realize that.

Ominously, growing numbers of Americans seem to think that it is illegitimate for anyone to have an opinion at variance with their own. And that those who disagree — or would report facts that challenge their viewpoint — become a fit target for retaliation, punishment, abuse, even the coward's art of slander.

Kennedy's dismissing the Church's easily foreseeable objection to the probability that the Democrats' version of healthcare reform will fund abortions as a "red herring," and his declaration that the bishops are sowing "dissent and discord" is precisely in the line of Achorn's criticism.

An Argument for the Second Amendment

Sometimes news out of Europe suggests the possibility that another revolution may be coming, such as this story from England:

On Monday afternoon, the mother gave birth to a girl by Caesarean section.

And 28 hours later, social workers arrived at the maternity ward to take the baby into care, after serving child protection papers on the patents.

Yesterday morning, a meeting of the Children’s Panel of Dundee Council decided the three youngsters still living at home should also go into care.

They are expected to be removed from the family home before the end of the week.

The family called "social services" over one child's developmental problems, and the government turned around and imposed weight limits and exercise regimes. (A picture of the family shows them to be heavy, but hardly unbelievably so.)

As Mark Steyn notes, the children are being take based on social worker "fears" of what their future "might" entail, and measuring parents on a literal scale is not many steps removed from assessing them on other grounds. Unhealthy can be a state of mind, and if the government controls healthcare, and if (through the efforts of Congressman Patrick Kennedy) it defines and covers emotional and intellectual well being, bureaucrats and social workers might not see much difference between being overweight and being, say, religious.

I'll tell you this: Any social workers who come to take my children away had better come armed, and everybody who approved the decision on up the chain of command had better lock their doors. If this is the government's wing under which our society is preparing to nestle, it would be an act of patriotism — of moral imperative — to cut it off.

Can't Be "Private, But"

A comment from Joe Bernstein, to yesterday's post on assisted suicide, points us toward a deeper conversation:

I am pro-life on the issue of abortion, but on this I believe that if someone with all their mental faculties intact makes a decision to commit suicide due to a hopeless, painful, or tortuous medical situation it is not a crime for someone else with the correct credentials to help them make sure they go out with the least discomfort to themselves and the least trauma to their loved ones.

Sticking a gun in your mouth and pulling the trigger is a surefire way to accomplish suicide, but not everyone can do it, and it leaves a scene families will never be able to put out of their minds.
I sat with my grandmother who lived with us, and my father many years later as they declined in severe pain due to terminal cancer-neither considered suicide, in one case due to religious belief, and in the other case, just the opposite.

I agree with Patrick here. What I don't want to see is the demonic social engineers that infest this administration set up a bureaucracy for this kind of thing. It is a private matter.

The problem is that, once you introduce restrictions such as judging mental faculties and credentialing assistants, the matter is no longer private, strictly speaking. Indeed, it is the argument of the Wesley Smith essay to which I linked that assisted-suicide ideologues are not inclined to dwell very long, on an individual basis, determining whether somebody is mentally fit to enlist their services, and they're certainly not inclined to report questionable cases to the authorities.

Moreover, the "private matter" boundary is anything but an impermeable barrier. Take this story as allegory:

The case came to the attention of Minnesota authorities in March 2008 when an anti-suicide activist in Britain alerted them that someone in the state was using the Internet to manipulate people into killing themselves.

Last May, a Minnesota task force on Internet crimes searched Melchert-Dinkel's computer and found a Web chat between him and the young Canadian woman describing the best way to tie knots. In their search warrant, investigators said Melchert-Dinkel "admitted he has asked persons to watch their suicide via webcam but has not done so." ...

The report also said Melchert-Dinkel checked himself into a hospital in January. A nurse's assessment said he had a "suicide fetish" and had formed suicide pacts online that he didn't intend to carry out.

Few people are as overtly demented as Melchert-Dinkel, of course, but if we're going to determine who is or is not fit to kill themselves, we're also going to have to determine who is or is not fit to make that judgment and to assist. Either determination ultimately draws arbitrary, debatable lines that will not withstand the human slide toward tragedy that is nigh upon inevitable when our society pushes "compassion" in advance of the tragic.

Killing in the Name of the Law

Put assisted suicide on the long list of issues that ought to be left to the states, but that I'd oppose in my own. In the name of civil liberties that conflict with the (until recently) long-standing moral consensus of our culture, we're building a giant trap that will at some point close on us all — probably too slowly to cause alarm — and leave us absolutely free to drug ourselves into a stupor for a neighborhood orgy as a sendoff to a middle-aged friend who'll be visiting the city death dispenser because public healthcare won't cover his methadone anymore. As for practicing religion, speaking our minds on politics during campaign season, and engaging in productive economic activity... well, a culture's got to draw the "unfree" line somewhere.

But back to states' rights and euthanasia — sorry, assisted suicide. The problem with the state-by-state experiment model is that those who advocate for the creation of innovative culturally discordant laws have incentive to make their ill effects difficult to trace, and so we get a scenario such as Wesley Smith describes here:

These advances would not have happened but for a powerful myth promoted by assisted-suicide advocates and helped along by a compliant media: the notion that Oregon's experiment with legalized assisted suicide has been a success, in which problems and abuses are rare or nonexistent. It is true that the annual statistical reports published by the Public Health Division (henceforth OPHD) of Oregon's Department of Human Services have revealed very few problems. But there's a reason for that: The reporting system was designed by the authors of the assisted-suicide legislation to be incapable of vigorous policing and in-depth data gathering.

As a result, nobody knows precisely what is going on in Oregon. The data in the state-published reports are based overwhelmingly on self-reporting by death-prescribing doctors — who are as likely to admit violating the law on this matter as they are to tell the IRS that they have cheated on their taxes. Indeed, as the bureaucrats charged with publishing the annual report admitted to an investigative committee from the British House of Lords, the OPHD engages in only very limited and random checking of the information it receives. Moreover, the department has no budget or authority to investigate apparent violations of the law, and all documentation relied upon in writing the annual report is destroyed once the report has been published. Dr. Kathleen Foley, perhaps the nation's premier palliative-care doctor, and suicide-prevention expert Dr. Herbert Hendin wrote in the Michigan Law Review last year that the OPHD "does not collect the information it would need to effectively monitor the law and in its actions and publications acts as the defender of the law rather than as the protector of the welfare of terminally ill patients."

The cliché of the distopia is a sepia-hued society in which everybody fears to act — fears to do anything but work and support the government. The reality, I prognosticate, will be much more a colorful pictures of people free to indulge their darkest notions but undermined wherever they seek to build something positive.

Unfree Energy

Is this the future of energy?

Planners envision installing a new kind of power meter in homes - a wall-based unit that can monitor how much electricity is being used by various appliances and turn them off when demand for energy is higher, and thus costlier to consume. The project also would upgrade the utility’s computer systems so it can integrate more renewable energy. ...

"There's a lot of opportunities for us to improve our knowledge of what's using power, and making it easier for us to shut off the power when we're not around," said Bob Gilligan, a GE vice president. "Most consumers aren't really aware of how much energy they're using at any time of day."

A consumer unit that monitors energy in the house, giving the homeowner more information and control, would be a worthwhile product, but this sounds like more of a top-down initiative with some disconcerting possibilities for the future:

The smart grid would help integrate additional clean energy into the grid through computers that could quickly manage Maui's power needs, adding and subtracting alternative power sources when desired.

"It will give the utility another knob to turn when wind suddenly calms on an afternoon, or when people are coming home and turning on their air conditioning," said Devon Manz, an engineer at GE's Global Research Center.

Maybe there are two distinct components to this "smart grid" — the appliance-monitoring device and the new knob back at the power company's office — but even if that's the case, it's a short step to computers' rationing energy through appliance-specific restrictions.

The Cross as Symbol

The Mojave Cross boxed in plywood so as not to offend may be the perfect symbol of tyrannical multiculturalism. Erected 75 years ago in memory of the nation's World War I casualties — and with strong visual correlation with the plain crosses that have a long cultural pedigree along roads — the cross has been the subject of a separation of church and state dispute that has reached the Supreme Court. Moreover, it fittingly reflects the zealous drive to rid America of any public reminder of Christian heritage.

A new twist, though, has the potential to unite religious and libertarian conservatives:

Several conservative justices seemed open to the Obama administration's argument that Congress' decision to transfer to private ownership the land on which the cross sits ends any government endorsement of the cross and takes care of the constitutional questions.

"Isn't that a sensible interpretation" of a court order prohibiting the cross' display on government property? Justice Samuel Alito asked.

The liberal justices, on the other hand, indicated that they agree with a federal appeals court that ruled that the land transfer was a sort of end-run around the First Amendment prohibition against government endorsement of religion.

The argument against permitting religious symbols on public land is that it implies an endorsement of the represented beliefs. Even if we accept that as a plausible argument, the idea that the endorsement is furthered by divesting of the land in order to avoid destruction of the symbol is perverse. It also illustrates the dangers of permitting government ownership of anything: the opportunity to force beliefs — or disbelief — is too attractive for fanatics not to erase and rewrite.

Wasn't John Adams Against Treason and Sedition?

I'm a little slow to this one, but inasmuch as it hasn't gotten much coverage, it's worth a little catch-up:

The Justice Department is investigating a group of lawyers working for the American Civil Liberties Union (ACLU) for taking pictures of covert CIA agents at Guantanamo Bay and handing them over to known al Qaida operatives. The lawyers, representing several detainees charged with organizing the September 11, 2001, attacks, have been accused of participating in an elaborate scheme to "out" as many as forty covert CIA agents, by tracking them to their homes and photographing them.

The ACLU lawyers are accused of conspiring in what is being called the "John Adams Project," along with the National Association of Criminal Defense Lawyers (NACDL), and using lists and data from "human rights groups," European researchers and news organizations that were involved in tracking international CIA-chartered flights and monitoring hotel phone records. The John Adams Project allegedly developed a list of 45 CIA employees, which the ACLU team tailed and photographed surreptitiously; often as they were leaving their homes.

The ACLU proclaims confidence "that no laws or regulations have been broken." The rest of us can increase our confidence that such advocates for "civil liberties" incline toward one side of a larger cultural struggle, with a decidedly wrong-for-you, right-for-us tilt.

How Dare You Catch Us?

So ACORN is suing the young pair whose investigative journalism finding casual attitudes toward the importation of teenage sex slaves among its employees crippled the organization. The suits may or may not succeed under a Maryland law forbidding the capture of private conversations, but I'd prognosticate that ACORN will be more harmed than hurt by the effort, and that its targets will not experience much by way of harm, as conservatives and other reform-minded folks chip in to help them.

Here Are Yer Angry Mobs!!!

Dana Loesch has some pictures of the "angry mobs" showing up at the Health Care Town Halls (you know, where there is supposed to be an open discussion, yada yada yada). Here's an example:

Scary!

Peggy Noonan:

The leftosphere and the liberal commentariat charged that the town hall meetings weren’t authentic, the crowds were ginned up by insurance companies, lobbyists and the Republican National Committee. But you can’t get people to leave their homes and go to a meeting with a congressman (of all people) unless they are engaged to the point of passion. And what tends to agitate people most is the idea of loss—loss of money hard earned, loss of autonomy, loss of the few things that work in a great sweeping away of those that don’t.

People are not automatons. They show up only if they care.

What the town-hall meetings represent is a feeling of rebellion, an uprising against change they do not believe in. And the Democratic response has been stunningly crude and aggressive. It has been to attack. Nancy Pelosi, the speaker of the United States House of Representatives, accused the people at the meetings of “carrying swastikas and symbols like that.” (Apparently one protester held a hand-lettered sign with a “no” slash over a swastika.) But they are not Nazis, they’re Americans. Some of them looked like they’d actually spent some time fighting Nazis.

The End Game of a "Public Option"

Given the political philosophies of some of the strongest supporters of a "public healthcare option," it would be reasonable to suspect that this sort of invasion is a desired outcome, not an unfortunate development, in the quest to engineer a healthcare and well-being system for the people's own good:

The Children's Secretary set out £400million plans to put 20,000 problem families under 24-hour CCTV super-vision in their own homes.

They will be monitored to ensure that children attend school, go to bed on time and eat proper meals.

Private security guards will also be sent round to carry out home checks, while parents will be given help to combat drug and alcohol addiction.

Targeting root causes is a productive principle for organizing a social response, but the unavoidable conclusion is that people very often turn out, themselves, to be the root causes of their own problems. Two routes around that reality exist: claim an ever-more-invasive right of public manipulation of their lives to force them to live by an imposed definition of "correctly," or guide them philosophically toward a worldview that tends to contribute to the desired conclusions and behaviors. The latter is a much more extensive project, and typically requires that public coercion not be central to implementation — the exceptions coming only when government inaction is tantamount to favoring the other side and to be indulged only to the most minimal degree possible.

Unfortunately, the latter approach has been systematically targeted and decried as "oppressive" by movements that (surprise, surprise) wind up advocating for the former approach.

(via Mark Steyn in the Corner)

Free Speech and the Fourth of July in Florida

In yet another blow to the nascent movement by local officials from Rhode Island to Florida to regulate freedom of speech and freedom of the press at Fourth of July celebrations, city officials of Port St. Lucie, Florida have apologized to members of the Treasure Coast Tea Party (h/t Instapundit)…

"It was not our intent to interfere or cast dispersions on the tea party," said City Manager Don Cooper, who took responsibility for what he called a "bone-head decision."

According to an editorial in Scripps Treasure Coast Newspapers online, the apology was offered regarding the City's requirement that tea party members set up their booth in a separate section from other booths present at the parade, in a section behind a disclaimer sign…

At the Fourth of July festival at the city's Civic Center, officials segregated the anti-tax group Treasure Coast Tea Party and a church from commercial vendors and exhibitors in what the city termed "Section B," an area in which some might find the views expressed by such groups as offensive....The city erected a sign at Section B stating that the city does not "endorse, support or condone" the views expressed by groups in that area, with the implication that the city opposes such views.

Going further, the sign added, "We are required to make this space available to avoid the cost of litigation." implying, again, that the city would rather not allow such views to be expressed.

This should provide a heads-up to officials in Bristol for next year; telling people that Constitutions may be passed out to the public, but only if it's done in officially sanctioned areas, probably won't work as a compromise.

I Hope I'm Not Going Soft, But...

...I think the Rhode Island Chapter of the ACLU is right, as I said a year ago, about the town of Narragansett's "orange-sticker" policy for regulating house party nuisances being unconstitutional.

I know the penalty of having an orange sticker placed on your door is a small one, but in our system of government, no penalty, no matter how small, can be applied by the government in the absence of some form of due process which allows citizens to make their case about whether law-enforcement actions were justified or not. And that's a major part of the ACLU argument here...

The “unruly gatherings” ordinance violates the plaintiffs’ right to procedural due process. Both liberty and property interests are implicated. The act of affixing a 10 inch by 14 inch orange sticker to the front door of a rental property is left to the sole discretion of the police with no opportunity for a hearing either before or after the posting of the orange sticker.

Confiscating the Constitution

If nothing else, this illustrates how the celebration of an event can become more about the tradition of celebrating than about the event itself:

In a temper-filled tempest, the Bristol Fourth of July Committee has barred the Rhode Island Tea Party from taking part in the annual Independence Day parade next year — or any other year.

Marina Peterson, treasurer of the organization — it opposes government spending and new taxes — said she was told "not to waste the stamp to send in an application" to appear again in the Bristol parade, which the town says dates to 1785 as the oldest continuously observed Fourth of July celebration in the nation.

In the latest march, on Saturday, Tea Party sympathizers handed out copies of the U.S. Constitution as they ran alongside the organization’s first-ever float, a replica of the Beaver, the British ship ransacked by Colonists during the Boston Tea Party, in 1773.

Sounds to me — especially with the RI Tea Party's account in mind — like a local somebody wanted an excuse to exert petty power over a disfavored group — disfavored by those in the staid, corrupt establishment — and took the handouts as an excuse. A more reasonable, civilized approach to dealing with a new participant's inadvertent rule breaking would be a sort of probation at next year's parade. Otherwise one ends up with shocking symbolism like this:

"They endangered public safety," he said. [Float Committee Chairmain Jim] Tavares said he personally confiscated some of the handouts.

Confiscating the Constitution... at the nation's oldest Independence Day parade. Tea Party Treasurer Marina Peterson says that the rules prohibit "solicitation," which does not describe complimentary copies of our founding legal document. Mr. Tavares calls that word games. I expect King George would have agreed; the rules listed online state that "Soliciting along the parade route is illegal unless a license has been obtained from the Fourth of July Committee." Apparently, safety concerns are alleviated through payment of a license tax.

Incidentally, the Bristol Fourth of July Committee's Web site has a wealth of information, such as the general chairman's and parade chairwoman's email addresses.

ADDENDUM:

The conversation continues here and here.

Shield Speech in General

Bloggers have an awkward perspective when it comes to shield laws protecting journalists' sources. The difficulty arises with the following statement from Channel 10 reporter Jim Taricani, as described by Projo columnist Ed Fitzpatrick:

As he concluded his comments Thursday, Taricani said, "The Founding Fathers carved out a very special place for freedom of the press. They wanted the press to watch over government." Now, he said, "We have judges in the courts making these rulings about our use of confidential sources," and "it flies in the face of what the Founding Fathers wanted the press to do in this country."

It would be reasonable to state that the Founding Fathers wanted the people to watch over the government, with the press as a tool for accomplishing that end. The question is, therefore, what the substantial distinction is between a run-o'-the-mill citizen and one who has undertaken the profession of journalism. It isn't the same distinction as a lawyer, priest, psychiatrist, or other doctor deserves when sensitive information is necessary for the performance of an occupation. For each of them, the information is presumed to be private under an oath, and all have professional associations (after a fashion) that provide career-ending incentive against breaking that oath. Journalists cannot be prevented from practicing journalism if they run afield of standards.

Moreover, the very purpose of giving sensitive information to a journalist is to disseminate it. When that dissemination is, itself, a crime, the journalist is an accessory, just as would be any citizen who assists another in distributing information illegally. It's easy to forget, but leaks and such can themselves potentially harm the nation and become the sort of government activity over which we all must remain vigilant.

Teetering between journalism and regular communication, bloggers illustrate the conundrum: Somebody with the intent to break the law with a leak could easily contrive for somebody else to set up a Web log specifically for the purpose of furthering his intent. Is the government to set standards for how much blogging one must do before receiving immunity? We would rapidly trample First Amendment rights in the name of protecting them.

If it is, for whatever reason, necessary for the law to more explicitly protect journalists from being made to divulge sources of information that was given to them legally — if embarrassingly for some powerful party — then it's difficult to see why every citizen oughtn't have the same protections.

Society Needs Religious Organizations That Transcend the Political

The Roman Catholic Church has been under veritable government attack in Connecticut, and its travails highlight the need for religious organizations, Catholic and otherwise, to be selective and to tread carefully with political activism:

The Roman Catholic Diocese of Bridgeport sued Connecticut officials in federal court Friday, after being told it needs to register as a lobbyist to hold rallies and use its Web site to oppose legislation.

The move is the latest chapter in tensions between the Catholic Church and the state over issues including gay marriage, emergency contraception and giving parishioners more control over church finances.

As I've suggested before, the Church should undertake some institutional introspection and then strongly delineate its role in American society. Having done so, it should stand its ground, whatever tricks or overreaches government officials should attempt. That means proving itself not to be a lobbyist and providing concrete examples of its approach to society's challenges apart from government intervention; the more religious and other groups permit of (even foist on) government, the more those groups are going to become petitioners, rather than coequals.

The dangers of a strategy that is more accommodating of big government initiatives are visible in the Church's current legal battle in Connecticut:

The ethics office, the diocese says, is claiming the diocese acted as a lobbyist by taking part in a March 11 rally at the state Capitol against a church finances bill, which would have given church lay members more power over parish finances. The bill was actually withdrawn by Judiciary Committee leaders before the rally and officially killed a week after the protest.

The diocese also says ethics officials are further claiming that the diocese acted as a lobbyist when it made statements on its Web site urging members to contact their state lawmakers to oppose the finances bill and another bill on same-sex marriage.

Consider the precedents. In one instance, a powerful apolitical organization under unconstitutional attack from its state government held a show of its influence. In the other instance, the Church communicated how its teachings would apply to its members activity as engaged citizens. It tightens the totalitarian clamp to permit the principle that an aggressive government can require registration of and the imposition of lobbying regulations on its targets as they defend themselves.

Ban Legislation Crawling

With emphasis on the likelihood that it would stick, Governor Carcieri should veto this nonsense:

Five years after a college student was struck and killed by a bus during a pub crawl in Newport, Rhode Island lawmakers have voted to impose a statewide ban on such events with the onus on bar owners to enforce the rule or risk losing their liquor licenses.

Cynthia Needham's writing muddies the issue, here, although the relevant point is clarified farther down the page:

In May 2004, a 21-year-old Fairfield University student, Francis J. Marx V, fell in the path of a bus bringing University of Rhode Island students to Narragansett after a pub crawl.

The people on the bus were the ones who had been pub crawling, so unless the General Assembly has information that the bus driver him or her self had been drinking, the evening's itinerary was irrelevant. (Even if he or she had, the nature of the event would have been largely irrelevant.) It could have been members of a senior center returning from a late night bridge party; would that sort of event have thereafter been banned?

As I began by saying: Governor Carcieri should veto this legislation with the statement that legislators should not presume to meddle so minutely with the lives of their constituents, especially when they (the GA totalitarians) so clearly lack the brainpower to target details that are actually relevant to a presumed problem.

Moreover, the governor should take the opportunity to announce a much lower threshold for vetoes until the truly critical issues — notably, the budget and pension reform — have been addressed.

"Free Speech" Zones in Providence

First of all, ya gotta love the name. Some spin meister someplace was on all sixteen cylinders when s/he thought of that term for curbing the speech of protesters by herding them away from the action.

"Free speech zones" have featured at the national conventions of both the Democrat and Republican parties, where the phrase and the practice attained national prominence. While we will probably never know, therefore, the partisan affiliation of the spin meister who originally coined the term, it should be noted that it was organizers of a democratic convention (2004 in Boston) who ratcheted the concept up to the next level of physically caging protesters. (The elephants have, so far, refrained from emulating.)

Fast forward to free speech channeling efforts here and now.

Foreseeing a large turnout of protesters, the city has marked certain designated areas for demonstrations and is asking protest groups to register prior to the start of the annual gathering of the U.S. Conference of Mayors, which opens here Friday.

Under no circumstance should any protester headed for the US Conference of Mayors in our capitol city register with anyone. Sure,

There will not be any penalty for protesters that fail to register

but the fact of the matter is that the request is being made by a person of authority. The concept of opting out may not be readily apparent to everyone. I wonder, therefore, if it is constitutional to even make such a request. Certainly, the concept of requiring a protester to first register is unconstitutional. For the ease of reference of civil liberty types, the registration form has been placed, bold as brass, on the City of Providence's "First Amendment and Protest Information for the US Conference of Mayors Annual Meeting" webpage. "First Amendment and Protest Information" - it sounds like they hunted out that spin meister to name this page.

As for the "free speech" zones, renamed "public viewing" areas (aren't zoos also public viewing areas?), if the city is relying on the precedent set by national political conventions of restricting protesters to such areas, it could be a dubious proposition. However deplorable the establishment of free speech zones at political conventions may be, such events take place on private property. The property owner or lessee is presumably free to dictate where a visitor may or may not go on the premises and even to refuse entry to certain visitors. Accordingly, it seems to this highly amateur armchair non-attorney that such restrictions could apply to the public right-of-way only for very narrow reasons.

Providence officials have repeatedly used the word "safety" as they have set up "public viewing areas" and issued the request for protesters to register; safety, then, must be one of the few bases for such restrictions. It is important, however, that officials not abuse that word or exaggerate concerns of danger. Under such circumstances, "safety measures" can quickly cross the line from prudent to smothering and, thereby, leave the arena of public safety for the world of silence-your-opponent politics.

An Interesting Convergence of Issues

This story confounds categorization:

Eastern District of Michigan judge Lawrence P. Zatkoff handed down the decision, in a case involving an alleged violation of the constitutional separation of church and state. The issue is whether a government-owned company, AIG, can market sharia-compliant insurance products. (To be sharia-compliant, an investment vehicle must be created and structured in ways that do not violate Islamic law.) In a well-reasoned and cogently argued opinion, Judge Zatkoff refused to dismiss the case prior to factual discovery. ...

The problem with all of this public largesse is that AIG sponsors, pays for, and aggressively markets sharia-compliant insurance products. The practice of sharia finance has created lucrative advisory positions for often radical imams, who get paid to guarantee the religious "purity" of sharia-compliant products. Such vehicles typically follow the Muslim principle of zakat and donate a slice of their profits to charity. Unfortunately, many of the charities receiving these funds have links to terrorism. Mr. Murray objects to his funds' being used to legitimate and promote sharia law, when that is the same law that calls for jihad. For that matter, sharia allows Saudis, Iranians, Sudanese, Somalis, Afghans, Taliban members, and other adherents to justify the following: the execution of apostates who decide to abandon the faith; the criminalizing of "Islamophobic blasphemy"; the punishment of petty crimes with amputations, floggings and stonings; and the repression of “non-believers” from practicing their respective religions freely and openly.

On one hand, a private business should be able to develop, operate, and market whatever products it likes (provided doing so does not directly support our nation's enemies). On the other hand, AIG is not alone, now, in being a not-so-private company, and the government ought not be in the position of financing the adherence to religious law. It's a precarious balance, and the conceit of mere mortals to maintain it is apt to become hamartia.

Herman Melville functions out of context here:

So, when on one side you hoist in Locke's head, you go over that way; but now, on the other side, hoist in Kant's and you come back again; but in very poor plight. Thus, some minds for ever keep trimming boat. Oh, ye foolish! Throw all these thunder-heads overboard, and then you will float light and right.

Starboard side, we carry the notion that the government should not interfere with freedoms of association and religion. Port side, we've now hung the principle that the government can become a controlling investor in industry. Express no surprise when when find the deck taking on water.

The Back Door to Silence

Given the hour, perhaps this news excuses a cliché: first, they came for the Christians:

A local pastor and his wife claim they were interrogated by a San Diego County official, who then threatened them with escalating fines if they continued to hold Bible studies in their home, 10News reported.

Attorney Dean Broyles of The Western Center For Law & Policy was shocked with what happened to the pastor and his wife.

Broyles said, "The county asked, 'Do you have a regular meeting in your home?' She said, 'Yes.' 'Do you say amen?' 'Yes.' 'Do you pray?' 'Yes.' 'Do you say praise the Lord?' 'Yes.'"

The county employee notified the couple that the small Bible study, with an average of 15 people attending, was in violation of County regulations, according to Broyles.

Broyles differentiates between these meetings and religious assemblies, and in so doing, he may be highlighting a path to oppression of which citizens should be aware:

"For churches and religious assemblies there's big parking concerns, there's environmental impact concerns when you have hundreds or thousands of people gathering. But this is a different situation, and we believe that the application of the religious assembly principles to this Bible study is certainly misplaced," said Broyles.

Obviously, large-group concerns apply regardless of the topic inspiring assemblage. A political rally, for example, could create parking problems and affect the environment just as well; translate this story to that context, and overly enthusiastic government administrators could effectively strangle grassroots opposition groups before they've begun.

(via Hit & Run)

The Nature of the Prostitution Business

The other afternoon, Dan Yorke was discussing, on 630AM/99.7FM WPRO, the human trafficking side of Rhode Island's legal prostitution business, and several callers put forward the argument maintaining the occupation's legality in Rhode Island prevents a slide down the slippery slope of interference in our bedrooms. The obvious response that came to mind was that the slope seems otherwise no better preserved in Rhode Island than in the 48 states that explicitly outlaw whore-biz.

Until I'd read a recent story about an intervention program in Chicago to help women escape that life, a larger point lingered just beyond the edge of articulation. Here's the key statement:

Over the years, the department has discovered, more than 40 percent of the women in the jail have worked as prostitutes at some point in their lives. Prostitution was not a choice but rather a consequence of all the other failures in their lives, the staff says.

Selling sex, in other words, is an industry that tends toward depravity and abuse. It draws in and destroys the vulnerable.

What the ratio might be of such women to those who take up the trade as an economic calculation — the old "put myself through college" claim — I won't hazard to guess. As a matter of morality, I'd suggest that all who perform such acts are behaving immorally, but our pluralistic society ought at least to be sufficiently confident to declare it illegal to profit directly from this particular moral failing in our fellow human beings.

The ACLU is Wrong on Legislative Immunity

The Rhode Island Chapter of the American Civil Liberties Union has filed a legal brief supporting former Senate President William Irons’ claim that the Rhode Island Constitution's Ethics Amendment cannot be applied to the official acts of state legislators, because such an application would conflict with “speech-in-debate” immunity also granted to legislators at the Constitutional level.

However, the ACLU's brief (as well as in much other discussion on this issue) ignores an basic facet of the law being considered in this case, that in its rulings on speech-in-debate related issues, the United States Supreme Court has expressly declined to extend legislative immunity to laws intended to regulate legislative conduct (short version of the history available here, longer version available here). The people of Rhode Island, in the 1980s, chose to step into this unresolved area of the law and settle the issue of what the limits on legislative immunity are through a Constitutional amendment, the most definitive mechanism of government that is possible. Since the Constitutionality of laws regulating legislative conduct had been expressly left open by the Supreme Court, no conflict with the speech-in-debate clause requiring an alteration of the plain meaning of the Ethics Amendment can have been created.

The ACLU's brief warns of dire consequences, if the applicability of the Ethics Amendment to the official acts of legislators is upheld…

In sum, there are no acceptable limits to the Ethics Commission’s “implied limitation” argument, and it should be rejected for this reason alone. This Court, therefore, cannot, should not, and must not allow the Ethics Commission to drag this State into such uncharted territory...

At best, the Ethics Commission’s argument that the Ethics Amendment impliedly limited the Speech in Debate Clause is a launch down a slippery slope of eroding the civil liberties of all Rhode Islanders who come before the Ethics Commission, not just Mr. Irons.

This conclusion completely misses the most important issue at stake; it is the Rhode Island Superior Court's decision that judicial opinions based on non-existent precedent outrank plain Constitutional language that is dragging the state towards uncharted territory.

But should we really be surprised that the ACLU has a blind spot when it comes to defending nearly unlimited powers for the judicial branch of government?

When Big Brother Starts to Come Together

Such gradual expansions of programs appear innocent from up close and always present legitimate claims of practicality, but they create channels for illegitimate power awaiting application:

Law enforcement officials are vastly expanding their collection of DNA to include millions more people who have been arrested or detained but not yet convicted. The move, intended to help solve more crimes, is raising concerns about the privacy of petty offenders and people who are presumed innocent.

Until now, the federal government genetically tracked only convicts. But starting this month, the FBI will join 15 states that collect DNA samples from those awaiting trial and will also collect DNA from immigrants who have been detained - the vanguard of a growing class of genetic registrants.

Ironically, perhaps, the example of "a man found guilty of loitering for the purpose of prostitution" indicates a direction in which this program could head. If, say, the federal government begins attributing terroristic intent to gatherings of citizens with particular views, and if the action that triggers DNA collection is mere arrest or detainment, a broadly interconnected police and security system could begin amassing DNA information about a targeted political minority.

Approaching the matter from another direction reveals another spectrum of concerns. Who's to say where DNA-related technology will go? Imagine that an individual targeted by the law is known to have a genetic susceptibility to a chronic health problem; investigators would thereby have a means of narrowing their search. Suppose technology advances to the extent that DNA can be collected casually and analyzed on the spot, or that there proves to be genetic correlation for certain beliefs.

Speculation in this line rapidly moves toward science fiction, but so, too, does reality. DNA is the key to our biological constitution, and when it's clear how knowledge of it may be used as a tool for oppression, it's likely to be too late.

The Path Toward Suppression of the Opposition

As Andrew McCarthy points out, government surveillance experienced a justifiable increase after "attacks that claimed more American lives than Pearl Harbor and capped a series of atrocities stretching back several years." As many on the left and right have been deliberate in emphasizing, however, that enhancement bears close watching.

Indeed, the greatest argument against all such steps is that, while the official first requesting such authority may use it for the stated purposes, those who come after may take advantage of increased apathy and abuse the power, stretching it beyond intent. Mr. McCarthy suggests that we might not have to wait long to see that process in action:

For eight years, we've been treated to hysterical rhetoric from Democrats, including Barack Obama, about the scourge of "domestic spying." Now that the Obama administration is openly calling for domestic spying — the real thing, not the smear used against President Bush — they're suddenly silent.

The Department of Homeland Security (DHS), in coordination with the FBI, has issued an intelligence assessment on what it calls "Rightwing Extremism." It is appalling. The nakedly political document announces itself as a "federal effort to influence domestic public opinion." It proceeds, in what it acknowledges is the absence of any "specific information that domestic rightwing terrorists are currently planning acts of violence," to speculate that "rightwing" political views might "drive" such violence — violence, it further surmises, that might be abetted by military veterans returning home after putting their lives on the line in Iraq and Afghanistan. And for good measure, in violation of both FBI guidelines and congressional statutes, the Obama administration promises scrutiny of ordinary Americans' political views, speech, and assembly.

"Appalling" is certainly the apt term. Among the ideas that might land one on a watch list is apparently a preference for "state or local authority" on various matters. And in keeping with the view that state and local governments are mainly organs for the insinuation of federal power, the Department of Homeland Security "will be working with its state and local partners over the next several months to ascertain with greater regional specificity the rise in rightwing extremist activity in the United States, with a particular emphasis on the political, economic, and social factors that drive rightwing extremist radicalization."

If any of my fellow Rhode Islanders who happen to be of public employ — specifically those of the officious, wormy, power-grubbing sort — would like to bring the Anchor Rising contributors in for questioning, presumably you know where to find us.

The Fundamental Dishonesty of an Antidemocratic Movement

If one knows the history of the same-sex marriage debate, the opening paragraph of this editorialized report in the DesMoines Register strikes an odd note:

Basic fairness and constitutional equal protection were the linchpins of Friday's historic Iowa Supreme Court ruling that overturned a 10-year-old ban on same-sex marriage and puts Iowa squarely in the center of the nation’s debate over gay rights.

The redefinition of marriage in Iowa took a peculiar path, indeed, beginning in 1996:

1. The Supreme Court of Hawaii declared a right to same-sex marriage.
2. Although the state legislature ultimately circumvented the court, the federal government passed the Defense of Marriage Act to limit the ruling's implications for other states.
3. Individual states, including Iowa, passed laws affirming that marriage is definitionally a relationship between people of opposite sex, typically with the intention of securing the protection of the public policy exception interpreted to exist to the full faith and credit clause of the Constitution. In essence, if a state explicitly does not recognize same-sex relationships as marriage, the Constitution cannot force it to treat as valid a same-sex marriage enacted in another state, so states like Iowa made their understanding of marriage explicit.
4. The Iowa judiciary has taken that statutory affirmation of preexisting principles as an occasion to redefine marriage in the state according to the judges' preference.

In a direct way, the judges of Hawaii exported their activism across state lines not in spite of laws designed to prevent such a thing, but because of those laws. The process does nothing so clearly as illustrate the extent to which democracy is becoming an (at most) dilatory control on the implementation of the social system preferred by the powerful. All that is required is for the powerful to couch their diktats in some mutable principle introduced in a high-level legal source (e.g., the Constitution); the most common such principle is "equal protection," but there may be others that are as yet unexplored.

In an interesting conversational thread on RI Future, commenter Brassband points to this mechanism when he questions the following sentences from the Iowa court's ruling (PDF, page 16):

The process of defining equal protection, as shown by our history as captured and told in court decisions, begins by classifying people into groups. A classification persists until a new understanding of equal protection is achieved. The point in time when the standard of equal protection finally takes a new form is a product of the conviction of one, or many, individuals that a particular grouping results in inequality and the ability of the judicial system to perform its constitutional role free from the influences that tend to make society’s understanding of equal protection resistant to change.

As a matter of grammar, what the court argues, here, is that a society may consider groups to be different in some legally allowable way until a particular individual or several individuals perceive discrimination and take the matter to the courts, and the judges — "free from the [social] influences" under which we ordinary humans labor — declare in their favor. Rhode Island College professor Thomas Schmeling subsequently puts that perspective in the company of a fundamentally sacerdotal yet "well-respected theory" that judges rule based on hunches that are justified in the fact that a jurist "not only has his/her own preferences but is also acquainted with constitutional principles, precedents, the views of other (and higher) court judges, so it's not totally subjective." Schmeling goes on to state the matter in terms of his own take:

... I think the Court here is actually making a sensible point, one which which you may well agree. Here's my read:

1. The legislature creates a classification. (let's use bans on interracial marriage as an example). That classification will remain until two things happen:

a. somebody becomes convinced that the classification creates an inequality (one that violates equal protection) and challenges it in court.

b. A court invalidates it.

Now, the legislation presumably embodies society's understanding of what "equal protection" requires, which (as in the case of bans on interracial marriage) may be nothing more than its irrational prejudices. If the courts do nothing more than reflect that understanding, it will never find any classification violative of equal protection and the court will have failed to fulfill its duty. (Do you agree so far?)

If the legislature's/society's judgement/prejudices accurately reflect the principle embodied in the Constitution's equal protection clause (state or federal...there might be a difference)...there is no problem.

However, if the legislature's/society's judgement departs from an accurate understanding of equal protection, that's a problem. To do its job, the court must obviously get beyond this judgement. To do this, the court must be "free from the influences that tend to make society's understanding of equal protection resistant to change". That is, the court should not simply reflect the views of the people and/or the legislature, it must uncover the "true" principle behind the equal protection clause, and use that principle to judge the classification.

If the members of the court simply say "I think equal protection clause should embody MY prejudices", I think we'll agree that the court has departed from its proper role.

If, on the other hand, the Court adopts a principled interpretation of the clause (which must, of necessity be independent of the prejudices of the judges AND of the prejudices of the legislature/society), the court has fulfilled its proper role.

Consider for a moment who has been excluded from the interpretation of equal protection's "'true' principle": the judges' personal views don't apply, the relevant legislators' personal views don't apply, the people's personal views (as expressed democratically) don't apply, and certainly the personal views of those who penned the Fourteenth Amendment back in 1868 don't apply. So from whence — by whom — is it determined that the true meaning of the equal protection clause requires that the true meaning of marriage be something other than what it has always been understood to be — a relationship between men and women?

Ah, there's the nub. The reality is that, like the interstate process of bouncing judicial rulings, the whole thing is a performance to enact the preferences of an elite class as written into the "hunches" of judges. On the page following the above quotation, the Supreme Court of Iowa states:

The same-sex-marriage debate waged in this case is part of a strong national dialogue centered on a fundamental, deep-seated, traditional institution that has excluded, by state action, a particular class of Iowans.

The whole dance — costumes, streamers, stage props, and all — is a distraction from the truth that the "particular class of Iowans" are not excluded by "state action," but by definition and by the way in which they choose to live their lives.* They are excluded by the fact that humankind has recognized a natural distinction of the intimate relationships into which men and women enter and sought to guide those relationships in the direction of social health — as understood not through contrived experiments, but by centuries of observation and social evolution — through an institution called "marriage," which it acknowledges and privileges as something unique.

Our nation's founders pursued representative democracy as a means of layering social control such that the most basic and profound questions would not become subject to immediate battles of power, but would require engagement of the process and efforts toward persuasion. Progressives' broad-based campaign has been to corrupt process for their own ideological benefit, and it will spell calamity whether the masses respond with a forceful expression of the only forms of power that remain to them or by stepping back and watching their civilization collapse out of an aversion to conflict.

---

* I am not invoking, here, the "homosexuality is a choice" declaration. I'm merely pointing out that — quite reasonably — homosexuals opt to form their lives around their affections rather than a traditional family structure.

Fitzpatrick Not for Censorship

Ed Fitzpatrick has emailed to correct my impression that he would prefer the Supreme Court to make a narrow ruling that bans Hillary: the Movie: "I am totally against banning this film."

I had read the "narrow ruling" sentence as suggesting one that would ensnare this movie without enabling the broad control that the cited government lawyer claims for campaign finance reform legislation. Fitzpatrick meant it more generally, as "one that wouldn't have big implications for other cases, such as scuttling McCain-Feingold or setting a horrible precedent for 1st Amendment law."

Ed Fitzpatrick's Pick-and-Choose Censorship

Most of us on the right have opposed campaign finance reform, as enacted, and it wouldn't be outlandish to suggest that the issue cost McCain votes and good will for his bid for president. Folks on the left, particularly in the mainstream media, tend to have a sunnier view. Of course, media types tend to like the idea of freedom of speech, so there's bound to be a conflict somewhere along the way.

A skeptical reader couldn't help but catch an interesting admission of inner conflict in Ed Fitzpatrick's most recent column about court proceedings to determine whether the right-wing flick Hillary: The Movie is a campaign ad or a work of free expression:

I'm hoping the high court issues a narrow ruling, but that might prove difficult because the government's lawyer pushed his arguments pretty far.

Chief Justice John G. Roberts Jr. asked whether it would matter if a 500-page book contained one sentence saying, "Vote for X," and he asked about "a sign held up in Lafayette Park saying vote for so-and-so." The lawyer said Congress would have the power to ban the book or the sign before elections if corporate money paid for them. ...

Ultimately, I see greater danger in allowing the government to suppress such films, books or signs — no matter how political they are.

Based on his implying that he'd like the movie banned, but without applying a broader, consistent principle, Mr. Fitzpatrick would like to empower the Supreme Court to determine what is and is not political speech, based mainly on content. Too many people see the judiciary as a mechanism for applying rules that nobody would be so gauche as to promote as legislation. (Although, perhaps I write too soon on that last count...)

ADDENDUM:

Stating that he is in no way for government censorship, Ed corrects my impression.

A Step Towards State-Run Media in the US?

This is a tad frightening...

With many U.S. newspapers struggling to survive, [Democratic Senator Benjamin Cardin] on Tuesday introduced a bill to help them by allowing newspaper companies to restructure as nonprofits with a variety of tax breaks...

Cardin's Newspaper Revitalization Act would allow newspapers to operate as nonprofits for educational purposes under the U.S. tax code, giving them a similar status to public broadcasting companies.

Under this arrangement, newspapers would still be free to report on all issues, including political campaigns. But they would be prohibited from making political endorsements.

Reed and Whitehouse Oppose Free Speech

Via Ocean State Republican, via Club for Growth, we learn that Rhode Island's delegation provided two of the mere eleven U.S. Senators who broke with eighty-seven of their peers by voting against a Republican amendment preventing "the Federal Communications Commission from repromulgating the fairness doctrine."

Here's where political calculations come into play: The amendment was to a bill "to provide the District of Columbia a voting seat and the State of Utah an additional seat in the House of Representatives." Inasmuch as the two issues are essentially unrelated, some Senators surely voted for or against the amendment based on their expectations about whether the bill itself will pass. It's not inconceivable that a Senator or two hope that this amendment will provide cover for voting for or against the bill.

Of course, that makes it no less shameful that both of RI's Senators — including our blue-blooded advocate for a Truth Commission — implicitly backed the idea that the government ought to manipulate public debate.

Does anyone in Washington, D.C. believe in liberty?

Continuing the earlier discussion about the Detroit bailouts, there is a broader debate taking shape:

Obama Chief of Staff Hopes to Exploit the Economic Crisis to Expand the Growth of Government: In earlier posts I have emphasized the risk that the combination of economic crisis and unified Democratic control of Congress and the White House would lead to a vast expansion of government. It looks like key Obama advisers and congressional Democrats are thinking along the same lines. As Obama Chief of Staff Rahm Emanuel puts it, the crisis is "an opportunity to do things you could not do before...You never want a serious crisis to go to waste." The WSJ article from which the quote comes makes clear that the "things" Emanuel has in mind are government policies that "pick winners" by subsidizing particular industries on a massive scale - as Congress is already doing with the finance industry, auto industry and others

Given the serious flaws in this kind of central planning, it is highly unlikely that even a well-intentioned federal government could do a better job than the market in choosing which industries to fund. On this point, F.A. Hayek's critique of government planning is still relevant - even more so than I thought when I defended Hayek's continuing relevance earlier this year. In the real world, of course, it is highly unlikely that government planning decisions will be determined by experts whose only concern is the public good. Rather, politically powerful industries will use their influence to lobby for bailouts and other government assistance that will probably be denied to the politically weak - irrespective of the true merits of helping the industries in question.

Interest group pressure has already played a key role in the congressional vote on the finance industry bailout, and it is likely to be equally important in structuring the massive future bailouts to come. Once Obama takes office, we are likely to see some $500 billion to 1 trillion in additional bailout spending - and that may be just for starters. Interest groups will play a major role in allocating this money, and they are already ramping up their lobbying efforts.

The end result will probably be an enormous transfer of resources from taxpayers and wealth-producing industries to interest groups with political leverage. That is likely to serve the interests of those groups and of the political leaders in charge of doling out the government largesse. But it will also impede economic growth by transferring resources away from productive firms to those that are failing.

Go to the article itself and follow the links.

Here are excerpts from one of them:

Jesse Larner has an interesting and much talked-about article on F.A. Hayek in the left-liberal journal Dissent...Larner gives Hayek credit for his pathbreaking critique of socialist central planning. But he argues that Hayek's thought is largely irrelevant today.

To very briefly summarize Hayek's two most important ideas, he argued that socialism can't work as an effective system for producing and distributing goods because it has no way of aggregating the necessary information about people's wants and needs. By contrast, the price system of the market is a very effective method for collecting and using information about people's preferences and the relative value of different goods. Hayek's 1945 article "The Use of Knowledge in Society" is the best short statement of this argument. Hayek also argued that government control of the economy under socialism necessarily leads to the destruction of democracy and personal freedom. The central planners' control of the economy enables them to crush potential opposition and strangle civil society. This, of course, was the main argument of Hayek's most famous book, The Road to Serfdom (1944).

Larner concedes the validity of both of these Hayekian claims. But he suggests that they are largely irrelevant today because the modern left has mostly abandoned central planning and because Hayek failed to recognize that "collectivism" could be a "spontaneous, nongovernmental, egalitarian phenomenon," not just a totalitarian order imposed by the state. He also suggests that "Hayek doesn’t seem to grasp that human beings can exist both as individuals and as members of a society, without necessarily subordinating them to the needs of an imposed social plan (although he acknowledges that the state can legitimately serve social needs, he contradictorily views collective benefits as incompatible with individual freedom)."

Larner makes some defensible points. For example, he is right to imply that Hayek's arguments are more compelling as a critique of full-blown central planning than of more modest forms of government intervention. It is also true that full-blown economic central planning has a lot less support among left-wing intellectuals today than fifty or sixty years ago. Nonetheless, Hayek's ideas are far more relevant to our time than Larner thinks.

I. The Persistence of Central Planning in Left-Wing Thought.

Although the modern mainstream left no longer favors central planning of the entire economy, many left-wingers do favor government control of large parts of the economic system. Most European leftists and a good many American ones favor government control of the health care industry, which constitutes some 10-15% of the economy in advanced industrialized society. Some forms of government planning are favored not only by left-wingers but also by many moderates and conservatives. For example, government owns and operates some 90% of the schools in Western Europe and the United States. However much we take public education for granted, it still represents the socialization of a vast swathe of the economy.

In addition, many mainstream liberals such as Cass Sunstein and Supreme Court Justice Stephen Breyer (as well as some conservatives and moderates) favor giving broad regulatory authority to "expert" government bureaucrats. This is not quite the same thing as government ownership of large enterprises. But it has important ideological affinities with it, to the extent that both policies rely on central planning by expert government bureaucrats. Hayek's arguments in "The Use of Knowledge in Society" are certainly relevant as potential critiques of these various forms of planning - both those that involve government ownership of large enterprises in health care and education and those that rely on regulations administered by expert bureaucrats. If Hayek is right, all these planners and experts don't know as much as they think they do, and certainly can't aggregate knowledge as effectively as the free market can.

Finally, it's worth noting that even full-blown socialism isn't as completely dead as Larner assumes. For details, see my September 2007 post on "Why the Debate Over Socialism Isn't Over."

Fundamentally, most liberals and leftists still look to the state to plan large portions of the economy and other aspects of our lives. So too do many conservatives and moderates, as witness the rise of "big government conservatism" under George W. Bush. Today's advocates of government planning are more modest in their ambitions than the mid-twentieth century socialists whom Hayek criticized. But they are not modest enough to make his arguments irrelevant.

II. Hayek and "Voluntary" Collectivism.

Larner also criticizes Hayek for ignoring the possibility that "collectivism" could be voluntary rather than imposed by the state. He suggests that Hayek was wrong to ignore the thought of socialist anarchists such as Proudhon and Kropotkin, who favored communal enterprise without state control.

Much depends on what is meant here by "collectivism." To the extent that it simply means voluntary cooperation between individuals and groups in civil society, Hayek not only didn't ignore it, he was a great advocate of it. Throughout nearly all his major works, Hayek stressed the importance of voluntary social cooperation and repeatedly emphasized that individuals can't progress or even survive for long without civil society institutions and traditions that are the product of cooperation. Hayek's famous theory of "spontaneous order" was of course based on the idea that society progresses through the development of social norms and customs produced by voluntary cooperation in civil society. Hayek favored free markets and strict limits on government power in large part because he thought that they fostered such voluntary cooperation better than government planning does. Far from denying that "human beings can exist both as individuals and as members of a society, without necessarily subordinating them to the needs of an imposed social plan," Hayek wrote that:

[T]rue individualism affirms the value of the family and all the common efforts of the small community and group . . . [and] believes in local autonomy and voluntary associations . . [I]ndeed, its case rest largely on the contention that much for which the coercive action of the state is usually invoked can be done better by voluntary collaboration.

Some relevant earlier writings can be found here:

"Who You Gonna Call?" The Little Platoons
Sometimes What is New is Old: Misguided Incentives Drive Public Sector Taxation
Thoughts on the Law & Social Order
On the meaning of social justice
Moving Beyond Loyalty to the Rule of Law Mixes Law & Politics
The Radically Different Visions of Tax-Eaters Versus Taxpayers

ADDENDUM

Obama's rewriting of history continues. It is smart politics and the media will comply with repeating the mantra, likely leading to myths becoming viewed as historical facts.

Stop Idea Rationing Now

Call it "star wars" for the "thought police."

In response to a plea from Peter Kirsanow for folks to begin advocating against the "Fairness Doctrine" before it becomes an immediate threat, a Corner reader suggested that we come up with a name that doesn't validate the Orwellian evocation of "fairness."

I suggest "idea rationing." The phrase is accurately descriptive, and it adds the chilling implication that doctrine advocates believe that ideas ought to be held in short supply.

A too-clever phrase would make light of a serious topic, when what we're combating is an attempt to make political censorship sound like a mild corrective.

Academic Theatrics as Indication of the Future

This is shocking:

DeHayes would not provide the exact contents of the messages, which he said were found on a computer in the Memorial Union, the student life building, and at Swan Hall. In an interview yesterday, he would say only that they were a "characterization" of Obama.

DeHayes said a student brought the messages to his attention. As the computers are accessible to the public, he pointed out that the messages weren’t necessarily left by a member of the university community.

On campus yesterday, more than a dozen students interviewed said neither they nor their peers knew about the messages. Some, including junior Hadyn Serby, 20, had seen the provost's e-mail and said that was the first they heard of the incident. Others, among them sophomore Bianca Parker and junior Jalesia Terry, both 20, hadn't seen the provost's message, perhaps, they said, because they sometimes overlook the multiple university-wide e-mails they get or those messages automatically go to their e-mail accounts' junk boxes.

So somebody put a stupid message on a couple of computers (I'm picturing an open Word document with the note typed in), and rather than simply deleting them and instructing folks responsible for the computers to keep an eye out for that sort of thing, the "provost and vice president for academic affairs" proceeds to ensure that the messages' existence receives the greatest possible audience.

As a matter of sensible leadership, that's bad enough, but Donald DeHayes when further to the point of involving the police and giving a stunning example of the totalitarian mindset:

In his e-mail, DeHayes wrote, "While each of us is entitled to our own political views, none of us should be allowed to openly and maliciously insult others on the basis of race or religion without consequences."

DeHayes said he has asked the campus police to investigate the matter, and they are working to determine where the messages came from. While he said in his e-mail that the messages "may rise to the level of a hate crime," he characterized them as "hate speech" in the interview yesterday afternoon.

There should be consequences, but they should be to wallow in obscurity and be insulted when caught in the act. Instead, this ostensible educator corrupts the minds of young adults by trampling with impunity the presumption of free speech — probably because he has a foggy understanding of the principle, himself.

Tools for Future Subjugation

Alright, so let's allow that David Richardson pushed the envelope to an imprudent degree — that it was wrong of him to harass customers to his store for the reason that they were speaking Spanish. Mark my words: Such precedent will expand until it crowds out our freedom:

Providence storeowner David C. Richardson has signed a public apology for demanding to see a customer's Social Security card last March after hearing the customer speak Spanish with a friend. Richardson signed the apology and agreed to give $500 to charity after two human-rights commissions found probable cause that he discriminated against the customer. ...

The encounter, during the sale of an $18 plumbing supply, made national headlines. Richardson's store, Rhode Island Refrigeration, has since closed.

Once our society stops defending people's right to be boorish, we're apt to find the adjective to be more subjective than we might like.

Separation of Advocacy and State

Tiverton's public hearing on charter-related questions potentially to be placed on the next ballot didn't let out until after 11:00, Monday night, although many in the audience (including the Providence Journal's Gina Macris) left after the headline-grabbing debate over the future of the financial town meeting had ended. I stayed so late — despite dying stealth-blogger-gear batteries and a lack of worthwhile reading material — out of interest in the penultimate question, the passage of which would result in the insertion of the following language in the town charter (with the deleted text removed, per Monday night's vote, I believe):

No officer or employee of the Town, including the School Department, shall use, or cause to be used, Town property, goods, money, grants, or labor to influence the outcome of or encourage or discourage elector voting with respect to, an election, ballot question, Financial Town Meeting, or referendum; the foregoing shall not prohibit the distribution or publication of election, ballot question, Financial Town Meeting, or referendum information by the Town Clerk, the Board of Canvassers, or a Charter Review Commission.

During the discussion period, Town Council President Louise Durfee let it be known that she had consulted an ACLU attorney who believed the question to be sufficiently broad that a suit could be brought against the town on First Amendment grounds even before the rule had been invoked in response to an alleged violation. Inasmuch as she must file a W2 with the town, and is therefore an employee, she is concerned that she might be restricted from offering her opinion to a constituent while waiting in line at CVS on the grounds that she had expended town "labor" to promote her side.

Thus do lawyers leverage their own proclivity for distorting plain understanding to argue that reformist legislation might be subject to invidious interpretation beyond the scope of its language. By constitutional law, the argument goes, all town employees must be free to speak their minds, and some judge might interpret the above language in contravention of that right, so the law must be unconstitutional.

One needn't be a lawyer (indeed, it might help not to be) to comprehend that no judge could produce such an interpretation because the First Amendment forbids it. The language clearly does not explicitly propose a restriction of free speech, and I believe that a fair reading cannot do otherwise than conclude that it doesn't implicitly do so.

To illustrate this point, I asked Ms. Durfee whether she is currently permitted to respond if a constituent in line at CVS asks her whether she believes there to be a God. Her response, in concert with Councilor Brian Medeiros, was that, as a secular servant of the people, her opinion on theology is irrelevant. It is not. That only seems to be the case because church/state boundaries in the law have been so thoroughly traversed, thereby illustrating the legal delineation of public "labor," specifically by precedent allowing public officials to express opinions on religion, whether in the course of their duties or in their private lives.

If Louise Durfee, as an always-on-duty public servant, can speak her mind about religion despite clear proscriptions against her implementing such views via the resources and privileges available by virtue of her office, then certainly she could offer her views on a budget despite a charter rule intended to "prohibit the use of Town resources to influence the outcome of a voting contest."

Second Amendment Ruling, In Sum

Local law student and IT worker Brian Mekdsy offers a summary of the recent Second Amendment ruling by the Supreme Court on his new (to me) blog, Libertarian Observer.

The FISA Compromise, Part 2

RI Future diarist "forsanri" has posted a long item purportedly taking Congressman James Langevin to task for supporting the Foreign Intelligence Surveillance Act reform that passed the House and is pending in the Senate. After an incoherent shot at Anchor Rising involving aluminum siding salesmen and carpenters (I didn't get it), four points are made in response to an e-mail that Congressman Langevin sent out explaining his position on the new and improved FISA. I'm going to skip the "first point" for now and focus on the final three.

1. The "second point" made in the post is that Congressman Langevin has made a false claim that the new FISA law requires a court-order for conducting surveillance on Americans, wherever they are in the world. This point is based on a factual error made by Forsanri, an error that is directly evident in the portions of the law he excerpted. Forsanri's argument is that an "emergency authorization" provision in the law will allow for a significant volume of non-court approved surveillance of US citizens…

1) AUTHORITY FOR EMERGENCY AUTHORIZATION- Notwithstanding any other provision of this Act, if the Attorney General reasonably determines that--

`(A) an emergency situation exists with respect to the acquisition of foreign intelligence information for which an order may be obtained under subsection (c) before an order authorizing such acquisition can with due diligence be obtained, and
`(B) the factual basis for issuance of an order under this subsection to approve such acquisition exists,

The Attorney General may authorize such acquisition if a judge having jurisdiction under subsection (a)(1) is informed by the Attorney General, or a designee of the Attorney General, at the time of such authorization that the decision has been made to conduct such acquisition and if an application in accordance with this section is made to a judge of the Foreign Intelligence Surveillance Court as soon as practicable, but not more than 7 days after the Attorney General authorizes such acquisition.

Here is Forsanri's analysis…

So, boys and girls, if Attorney General Mukasey says "this is an emergency," he may, without any notification conduct surveillance without a warrant.

Mostly, this shows that Forsanri needs to read more carefully the text that he excerpts. The law makes clear that the Attorney General must immediately notify a FISA judge, i.e. "a judge having jurisdiction under subsection (a)(1)", when an emergency acquisition is authorized, then make the full application for a warrant within seven days. How exactly does an immediate requirement to notify a FISA judge constitute surveillance "without any notification"?

Note also that the new FISA rules involve tougher procedures than what must be followed in "probable cause" cases in the realm of law-enforcement (in probable cause cases, law-enforcement agents are not required to concurrently seek a warrant). Based on the existence of the probable cause exception, does Forsanri 1) make the blanket statement that it is inaccurate to say that searches within the U.S. require a warrant and 2) want to see the exception repealed?

2. The "third point" in the post relates to the situation I discussed with Matt Allen of WPRO radio (630 AM) on Wednesday afternoon: what happens when a non-United States person under surveillance on foreign soil unexpectedly contacts a United States person, in or outside of the United States. Forsanri doesn't go as far as demanding that the intelligence operative hang up and stop listening until a warrant is obtained, but he does want a judge from an American domestic court to eventually review the information collected.

The question here is what exactly is this judge expected to do?

There is no "chain rule" in the FISA law; because foreign surveillance target X contacts American citizen Y doesn't mean that all communications sent or received by citizen Y automatically become fair game. The government still has to go through the FISA procedures for citizens and obtain a warrant to conduct any direct surveillance of Y. So what else does Forsanri want to empower judges to do? Should judges be able to order intelligence agencies to disregard information collected from legally established surveillance operations, when the targets of surveillance make unexpected contacts? Under what principle does anyone claim that it should be left to judges to determine which contacts have intelligence value and which should be ignored?

3. Finally, the "fourth point" from Forsanri's post concerns the immunity provision for telecommunications companies who have assisted and continue to assist the government with electronic foreign intelligence gathering. Unable to get a provision requiring court approval for foreign intelligence operations written into law, the hard-left has taken to suing telecommunications companies who have cooperated with the government, hoping that the telcos will react with a cover-our-butts attitude and demand to see court-orders before co-operating with the government on foreign electronic surveillance operations in the future.

By itself, this is not justification for an immunity provision in surveillance law. What does provide justification for immunity is the fact that telecommunications companies are required by law to co-operate with executive branch requests for information while simultaneously being subject to legal goalposts that can move in unpredictable directions. As the prime example of this, recall the specific reason (neglected in Forsanri's analysis) why a revision of the Foreign Intelligence Surveillance Act became necessary in the first place. In April of 2007, a FISA judge, in a decision without precedent and never released to the public, ruled that any electronic communications routed through the US -- including communications between two non-United States persons, both outside of the US, that just happened to pass through US-based equipment -- had to be treated according to domestic intelligence-gathering rules and therefore could not legally be brought under surveillance in the absence of a court order.

Potentially, this ruling means that foreign nationals communicating with other foreign nationals outside of the US have a cause of action in an American court for communications with other foreign nationals outside of the US, for communications occurring between 1978 and mid-summer 2007 (when the passage of the Protect America act closed the suddenly-created FISA loophole). By acceding to telecom immunity, the President and the Congress are making sure that accountability for the form and execution of foreign surveillance law is where it belongs, not with risk-avoiding decision-makers at telecommunications giants, but with the government branches that are accountable to the public. If advocates of maximal domestic court involvement in foreign surveillance operations want to make their preferred surveillance procedures law, they should make a persuasive public case for changing the law, instead of seeking to punish those who are do their best to co-operate with the law in its current form.

2nd Amendment Protects an Individual Right to Bear Arms...

...so says the Supreme Court, in a 5-4 decision. Ed Whelan of National Review's Bench Memos summarizes the ruling here.

Recorded Without a Warrant

Andrew was recorded last night on the Matt Allen Show without anybody's having secured a warrant, as far as I know (segment streamable by clicking here, or download). The topic was the FISA compromise that he's been addressing 'round here.

The FISA Compromise, Part 1

Congress and the President seem poised to agree on a revision of the Foreign Intelligence Surveillance Act, the law that sets the terms that American intelligence agencies must follow when gathering electronic intelligence. A major issue that had stalled reform was deciding how to treat foreign nationals outside of the boundaries of the United States who made unexpected contact with someone inside of the United States. Until February, the Federal government had been operating under a bright-line rule; anyone outside of the United States could be surveilled without a warrant, regardless of where the party on the other end of the communication was located.

In revising the law, Congressional Democrats began from a position that surveillance could be conducted in the absence of a court order only when both parties were outside of the United States, but this created foreseeable problems. What would happen when a known terrorist under surveillance unexpectedly contacted someone within the US? Would the intelligence agency be expected to immediately hang up on the call to comply with the law?

Responding reasonably to the possible contingencies, Congressional Dems mellowed their position and have agreed to maintain the one-end-outside rule in close to original (though a more verbose) form. One last time, here's the original exemption…

Sec. 105A: Nothing in the definition of electronic surveillance under section 101(f) shall be construed to encompass surveillance directed at a person reasonably believed to be located outside of the United States.

The new section, contained in the bill passed by the House and sent to the Senate, will read…

(a) Authorization- Notwithstanding any other provision of law, upon the issuance of an order in accordance with subsection (i)(3) or a determination under subsection (c)(2), the Attorney General and the Director of National Intelligence may authorize jointly, for a period of up to 1 year from the effective date of the authorization, the targeting of persons reasonably believed to be located outside the United States to acquire foreign intelligence information.

(b) Limitations- An acquisition authorized under subsection (a)--
(1) may not intentionally target any person known at the time of acquisition to be located in the United States;
(2) may not intentionally target a person reasonably believed to be located outside the United States if the purpose of such acquisition is to target a particular, known person reasonably believed to be in the United States;
(3) may not intentionally target a United States person reasonably believed to be located outside the United States;
(4) may not intentionally acquire any communication as to which the sender and all intended recipients are known at the time of the acquisition to be located in the United States; and
(5) shall be conducted in a manner consistent with the fourth amendment to the Constitution of the United States.

A bit of a trade has occurred. Section (3) will limit the surveillance powers of American intelligence agencies to non-United States persons only, whereas the original law extended to United States persons (means citizens or legal residents) outside of the US. On the other hand, section (4) makes clear that the communications of a non-United States person within the United States can be observed (though the terms of surveillance are limited by later provisions in the act) without court approval if he or she is communicating with someone outside of the United States, which wasn't entirely clear in the original. But most importantly, the essential, sensible original rule is preserved: no court order is needed to monitor the communications of non-United States persons communicating to or from foreign soil, and the Steyn paradox is no longer a problem…

If the U.S. government intercepts a call from Islamabad to London about a plot to blow up Big Ben, it can alert the Brits. But, if the U.S. government intercepts a call from Islamabad to New York about a plot to blow up the Chrysler Building, that's entirely unconstitutional and all record of it should be erased.

Following the new law doesn't require an intelligence agency to hang-up when the targets of foreign surveillance unexpectedly contact a party within the US.

2. The bulk of the remainder of the bill is about “minimization” procedures. According to Andrew McCarthy of National Review Online, the price for the reasonable parts of the bill was agreeing to make intelligence agency “minimization” procedures subject to court approval. McCarthy explains the meaning of minimization…

The attorney general and the director of National Intelligence will now have to submit their “targeting” and “minimization” procedures to FISA Court review. The judges will have to be satisfied that foreign surveillance is not a pretext for spying on Americans, and that information incidentally collected on Americans in the course of monitoring aliens is used only for pre-approved intelligence or law-enforcement purposes.

There is a legitimate worry that this trade could be the beginning of laying the groundwork for a rebuilding the “wall of separation” between foreign intelligence gathering and law-enforcement that help contribute to the September 11 attack.

3. The other provision of this bill gaining major attention is the immunity provision for telecommunications companies who have assisted and continue to assist the government with electronic foreign intelligence gathering, which I will explain in Part 2...

Narragansett's Loud Party Ordinance Being Challenged

It's difficult to see any way that the town of Narragansett's orange sticker anti-partying ordinance, in its current form, will survive the Constitutional challenge filed by the ACLU. Under the ordinance, police are instructed to affix a notice to a home where they determine a too-loud party is occurring. Penalties will follow any subsequent noise-related calls to houses with stickers attached. According to Mark N. Schieldrop of the South County Independent…

If police respond to a house that has a sticker, $300 will be fined for a first offense, $400 for the second and $500 for a third offense – the maximum under state law for misdemeanors. Repeat offenders can face evictions and landlords can be fined.

The legal problem, reported concisely by WLNE-TV's (ABC 6) Robert Goulston, is that…

…there is no hearing or court-process involved before students, including landlords, are fined or ordered to do community service.

In the American system of government, no branch of government is allowed to impose a penalty -- and small as it seems, just the affixing of a sticker on private property is a penalty -- in the absence of a public proceeding where defendants are allowed to call witnesses and present evidence. That is one of the meanings of the right to "due process of law".

Narragansett's loud-party ordinance can probably be made procedurally compliant by 1) creating a hearing process where stickees are allowed to argue their case and 2) having police officers issue summonses to hearings, rather than publicly posting the orange stickers, as the first step in enforcement against violations.

Beauty in the Public Square

I must say that I'm sympathetic to RI State Council on the Arts Director Randall Rosenbaum's point regarding arts in the public square:

Artists and advocates such as Rosenbaum emphasize that art is not just about being obviously beautiful; it's also about opening the people's eyes to new interpretations of beauty.

I happen to think that the public square would be much edified by a beautiful artistic interpretation of the Trinity.

Turning the Nanny State to Your Advantage

Since it looks like the red light cameras are a go again, I wonder if some local entrepreneurial band will take a cue from Britain's The Get Out Clause and turn nanny-statism to their advantage:

Unable to afford a proper camera crew and equipment, The Get Out Clause, an unsigned band from [Manchester, England], decided to make use of the cameras seen all over British streets.

With an estimated 13 million CCTV cameras in Britain, suitable locations were not hard to come by.

They set up their equipment, drum kit and all, in eighty locations around Manchester – including on a bus – and proceeded to play to the cameras.

Afterwards they wrote to the companies or organisations involved and asked for the footage under the Freedom of Information Act.

"We wanted to produce something that looked good and that wasn't too expensive to do," guitarist Tony Churnside told Sky News.

"We hit upon the idea of going into Manchester and setting up in front of cameras we knew would be filming and then requesting that footage under the Freedom Of Information act."

Only a quarter of the organisations contacted fulfilled their obligation to hand over the footage – perhaps predictably, bigger firms were reluctant, while smaller companies were more helpful – but that still provided enough for a video with 20 locations.

"We had a number of different excuses as to why we weren't given the footage, like they didn't have the footage. They delete after a certain amount of time, so if they procrastinate for long enough, they can claim it's been deleted," Mr Churnside said.

Here's a link to the video. As they say, "good on you" boys.

Silencing the Iconic

I see that the following news item on the legendary Brigitte Bardot caught Jay Nordlinger's eye, as well:

The headline was arresting: "Brigitte Bardot on trial for Muslim slur." She had incited "racial hatred." Oh my goodness, how? What did she say? I prepared for the worst. BB had said, "I am fed up with being under the thumb of this population, which is destroying us, destroying our country, and imposing its acts." That's it: For that, on trial as a criminal. ...

Ladies and gentlemen, when I hear about Brigitte Bardot, or Mark Steyn and Ezra Levant in Canada, I am grateful to live in a free country. For all my complaining about America, I am grateful. And I know you are, too.

The differences between the United States and other Western nations aren't always directly before us, but sometimes we are gifted with reminders.

The Right to Know What's Happenin' With Chariho

It looks like the attempt by the National Education Association to place restrictions on school committee members' communication with the public in the Chariho district has come to an end. NEA Assistant Executive Director Peter Gingras, who last year filed a Labor Relations Board complaint against the Chariho School Committee making the vague assertion that Committeeman William Felkner's publishing of the Chariho School Parents Forum blog constituted an attempt "to communicate directly with bargaining unit members represented by the union", has notified the LRB that he wishes to withdraw the complaint.

Over at CSPF, Committeeman Felkner has posted a letter written by Hopkinton resident Mary Botelle which eloquently describes the multiple flaws in the premise of the NEA complaint…

1. Freedom of speech and assembly are guaranteed to all citizens. In this era, websites provide an electronic form of assembly and the written word replaces the spoken word. Therefore, Chariho School Parents' Forum, managed by William Felkner, provides parents and taxpayers with a method of making their concerns and opinions known…
2. Section 16-2-9.1 of the General Laws entitled Code of Basic Management Principles and Ethical School Standards (copy enclosed) provides the standards to be followed by school committees.

   It is to be noted that subsection (4) and (5) refer to communication with the public:

   (4) Accept and encourage a variety of opinions from and communication with all parts of the community.

   (5) Make public relevant institutional information in order to promote communication and understanding between the school system and the community.

   Therefore, it is clear that the committee should invite the community to participate so that decisions made will reflect the will of the community, and to provide information so that the community will be properly informed.

To its credit, the LRB never appeared to take the complaint very seriously. However the process dragged on, in part, because Chariho Superintendent Barry Ricci and the Chariho school board's lawyer seemed unable to summon any enthusiasm for defending the free speech and due process rights of school committee members, or for defending the right of the public to be given as much information as possible about school committee proceedings. The lesson here is to be wary of the nexus between government bureaucrats and labor unions; they sometimes act under the assumption that they can agree to bargain away the Constitutional rights of the general public. Expect this issue to pop-up in Rhode Island in various forms over the next few years.

The Early Reviews Are In: Senator Whitehouse's Big Surveillance Speech Was a Flop

Even liberal law professors are not impressed with the speech that Senator Sheldon Whitehouse gave last Friday criticizing the President's use of executive power to conduct intelligence gathering. This is from Georgetown Law Professor Marty Lederman…

Senator Sheldon Whitehouse of Rhode Island has been one of the very best, most careful and most thoughtful legislators in recent months on a wide range of legal issues relating to the Gonzales DOJ, the war on terror, NSA surveillance, and the like.

Therefore it's with some regret that I write here to take issue with his latest speech on the Senate floor, expressing his outrage in response to reading classified OLC memos on the NSA surveillance questions. I am confident that there is much in those memos that gave Senator Whitehouse plenty of reason to be shocked and dismayed, and I hope that he will continue to make more of them public. In this case, however, I think Senator Whitehouse has primarily aimed his criticisms at the wrong targets, sorry to say.

…and this is from Yale Law Professor Jack Balkin…

Whitehouse doesn't like the Protect America Act any more than I do. But he should direct his fire at the Congress that produced it last summer in a shameless display of capitulation to demagoguery and fear mongering.

Professor Matthew Franck of Radford University offers a conservative critique of the speech here.

Why Telecom Immunity Matters

I owe Monique an answer to a question she asked a few weeks ago on my view of including in Foreign Intelligence Security Act reform legislation an immunity provision for telecommunications companies who cooperate with executive branch surveillance requests.

To understand why telecom immunity is an important issue, you need to start from one basic fact: real surveillance is not like what happens during an episode of 24. When the National Security Agency or some other spy agency listens in on a foreign telephone call, they don't do it by having Chloe O'Brian clandestinely tap into the worldwide communications network without anyone else knowing. Unlike the fictional CTU, real American intelligence agencies go through the front door; they probably even ask for some technical assistance from the telecom to set things up. That's why a significant part of the substance of the FISA legislation currently being debated by Congress describes circumstances under which telecom companies are required to cooperate with the government's requests for assistance.

Under the threat of privacy lawsuits, however, telecommunications companies are likely only to comply with surveillance requests if they can be given ironclad assurances that the requests do not run afoul of the law. On the surface, this is not a bad thing, but because the House's version of FISA reform treats only communications where both ends are outside of the United States as legitimate targets for foreign intelligence gathering, such assurances, regardless of the location of the target, are impossible to give in the absence of a court order.

Here is the problem, which the Democrats in Congress seem determined to ignore: what happens when a foreign surveillance target, located in a foreign country, unexpectedly makes contact with someone within the United States? Under the bill passed by the House last week, if any suspicion exists at the start of a surveillance operation that a party being monitored might contact someone inside of the US, the agency must to stop listening the moment a cross-border communication occurs, unless a court-order is already in hand. So unless telecommunications companies working with the NSA or some other US intelligence agency are willing to accept promises that cannot possibly be guaranteed -- namely, that foreign citizens under surveillance in foreign countries will never contact the United States -- court orders will be required for any foreign surveillance operations seeking to make use of American telecommunications hubs.

There are at least two ways that Congress could mitigate this problem. One would be to make it clear that as long as one party is outside of the United States, communications involving that party are to be treated under the rules of foreign intelligence gathering, no court order ever necessary. Or Congress could give telecommunication companies immunity in cases where they are complying with requests signed off by the Attorney General, reducing the legal risk they would bear in cooperating with executive branch requests for information. So far, House Democrats have been unwilling to pass either of these provisions, showing less interest in encouraging private institutions to cooperate with the government in fighting terrorism than in injecting the court system as strongly as they can into foreign surveillance operations.

Andrew McCarthy has more details on FISA reform in a Human Events article available here.

The Militia and the Second Amendment

Roger Williams University Law Professor Carl T. Bogus argues against the existence of an individual right to bear arms in Tuesday's Projo…

The traditional view is that the [second amendment] grants people the right to keep and bear arms only within the constitutionally-mandated militia — that it guarantees the states armed militia to provide for their own security.

But Professor Bogus errs in suggesting that a militia is something created by a state. The militia exists, whether states choose to effectively utilize it or not, as Georgetown University Law Professor Randy Barnett explains with this powerful example…

On September 11th of 2001, however, the United States came under aerial attack by planes piloted by foreign nationals. Two planes struck the World Trade Center destroying it and, with it, thousands of innocent civilians inside. Another struck the Pentagon killing hundreds of members of the armed forces. A fourth plane, United Flight 93, was heading for the nation’s capital with the likely target being the White House. It was stopped from reaching its target, but not by the Army, Navy, or even the Air Force. Nor was it stopped by the National Guard or the armed constabulary of the District of Columbia. After all, these official personnel cannot be everywhere the nation is threatened. No, unlike [in the War of 1812], this time the White House was saved from possible destruction by the heroics of members of the “unorganized militia” who, after learning on their cell phones of the attacks by other planes, acted in concert to protect the capital from a second successful attack in the same morning at the cost of their own lives.

The second amendment isn't a grant of a right to state governments. It is a guarantee of the right of individuals to prepare themselves to defend their country and their countrymen, under the most dire of circumstances.

The Wiretap Law & Joe Klein II

I may have been wrong about the Dems reaching the outskirts of reasonableness on the issue of Foreign Intelligence Security Act reform.

The text of the Democratic FISA reform bill that passed the House in mid-November empowers the Director of National Intelligence and the Attorney General, without a court order, to authorize the surveillance of non-United States persons located outside of the United States suspected of having contacts within the United States -- but only for 45 days. The relevant section is Section 105C…

Sec. 105C: (b) Emergency Authorization -- Notwithstanding any other provision of this Act, the Director of National Intelligence and the Attorney General may jointly authorize the emergency acquisition of foreign intelligence information (as defined in paragraph (1) or (2)(A) of section 101(e)) for a period of not more than 45 days if --

(1) the Director of National Intelligence and the Attorney General jointly determine that--
(A) an emergency situation exists with respect to an authorization for an acquisition under section 105B before an order approving the acquisition under such section can with due diligence be obtained;
(B) the targets of the acquisition of foreign intelligence information under this section are persons reasonably believed to be located outside the United States who may be communicating with persons inside the United States;

Under this law, after the 45 days have run out, an intelligence agency would have to cease surveillance immediately if a party under surveillance contacts the United States -- even when that party is a non-United States person, located outside of the United States -- unless the operation had been given prior sanction by the courts.

But what about the section 105A(a)(2) exception discussed in the previous post, which seems to create a seven-day good-faith grace period in cases where non-United States persons unexpectedly have contact with parties inside of the US? Wouldn't 105A(a)(2) override any other provision and allow surveillance to continue for a week, while the proper warrants were obtained?

The answer may be no, because of one little adverb…

Sec. 105A: (a)(2) If electronic surveillance referred to in paragraph (1) inadvertently collects a communication in which at least one party to the communication is located inside the United States or is a United States person, the contents of such communication shall be handled in accordance with minimization procedures adopted by the Attorney General that require that no contents of any communication to which a United States person is a party shall be disclosed, disseminated, or used for any purpose or retained for longer than 7 days unless a court order under section 105 is obtained or unless the Attorney General determines that the information indicates a threat of death or serious bodily harm to any person.

To understand the problem, consider the following not unreasonable scenario. American intelligence agents know that a terrorist leader is running a terrorist cell from his base in Farawayistan. They have evidence that his cell has contacts in the United States, but are not sure who or where they are. To try to learn more about them, the DNI and AG authorize monitoring of the cell-phone traffic into and out of Farawayistan.

Now, what happens if the terrorist leader doesn't make a call to his American contacts until 46 days after the start of the operation?

The monitoring of the call between Farawayistan and the United States cannot be claimed to have been "inadvertent" if discovering the identities of a terrorist group's American contacts was a goal of the surveillance. Therefore, by the letter of the law, the seven-day grace period from 105A(a)(2) does not apply, returning us to where this debate began: in order to conduct effective surveillance, i.e. to not be required to hang-up in situations where the targets of foreign surveillance unexpectedly contact the United States, while fully complying with the law, American intelligence agencies will have to obtain court orders when monitoring the communications of foreign nationals on foreign soil.

Fortunately, there does seem to be a straightforward solution available here. Drop the notion of "inadvertently" from the 105A(a)(2) exception and create a broad rule that says whenever a foreign national under surveillance contacts the United States, an intelligence agency has 7 days in which they are allowed to continue surveillance; at the end of the seven days, the government must either have obtained a warrant, if surveillance is to continue, or else be required to destroy the information related to the United States person that was listened in upon. Then drop everything from sections 105B and 105C that might imply that court orders are ever necessary to conduct surveillance of foreign nationals who are outside of the borders of the United States.

ADDITIONAL INFORMATION:

Congressman Peter Hoekstra, ranking Republican on the House Intelligence Committee, had an article in yesterday's National Review Online explaining his opposition to the Democratic version of FISA reform .

The Wiretap Law & Joe Klein

Time Magazine columnist Joe Klein is taking a bit of a beating from the left side of the blogosphere for his reporting on the Foreign Intelligence Surveillance Act legislation passed by the House of Representatives on November 15th. Here is a once-modified version of what Klein wrote to touch off the controversy…

The Democratic strategy on the FISA legislation in the House is equally foolish....Unfortunately, Speaker Nancy Pelosi quashed the House Intelligence Committee's bipartisan effort and supported a Democratic bill that -- [Rush Limbaugh] is salivating -- House Republicans believe would require the surveillance of every foreign-terrorist target's calls to be approved by the FISA court, an institution founded to protect the rights of U.S. citizens only....

(In the original version of this story, Joe Klein wrote that the House Democratic version of the Foreign Intelligence Surveillance Act (FISA) would require a court approval of individual foreign surveillance targets. The bill does not explicitly say that. Republicans believe it can be interpreted that way, but Democrats don't.)

The best way to figure out what the proposed law means (and if either version of Klein's description was accurate) is to recap its evolution.

The temporary electronic surveillance law that the United States is currently operating under says that…

Sec. 105A: Nothing in the definition of electronic surveillance under section 101(f) shall be construed to encompass surveillance directed at a person reasonably believed to be located outside of the United States.

This makes clear that the monitoring of any communication involving one party outside of the United States is to be treated as a foreign intelligence operation, outside of the jurisdiction of the court system. If an intelligence agency is listening in on someone who is located in a foreign country, and the person under surveillance unexpectedly calls a contact in New York City, right now, no court approval is required to keep listening.

The current section 105A expires in February. In October, the Democrats proposed this as a permanent replacement…

Sec. 105A: (a) Foreign to Foreign Communications -- Notwithstanding any other provision of this Act, a court order is not required for the acquisition of the contents of any communication between persons that are not United States persons and are not located within the United States for the purpose of collecting foreign intelligence information, without respect to whether the communication passes through the United States or the surveillance device is located within the United States.

Unlike the present law, this law would have placed only communications where both parties were outside of the United States beyond the jurisdiction of the courts. And somewhat distressingly, situations involving parties outside of the United States communicating with parties inside of the United States were not explicitly treated. A new subsection under section 105A appeared, on its surface, to set some rules for cases where only one party to a commuication was outside of the U.S…

Sec. 105A: (b) Communications of Non-United States Persons Outside of the United States -- Notwithstanding any other provision of this Act other than subsection (a), electronic surveillance that is directed at the acquisition of the communications of a person that is reasonably believed to be located outside the United States and not a United States person for the purpose of collecting foreign intelligence information (as defined in paragraph (1) or (2)(A) of section 101(e)) by targeting that person shall be conducted pursuant to --
(1) an order approved in accordance with section 105 or 105B; or
(2) an emergency authorization in accordance with section 105 or 105C.

...but in reality, it didn't. The "emergency authorizations" section 105C (as well as the "orders" section 105B) applied, as did the new section 105A, only to situations where both ends of a communication involved non-United States persons outside of the United States…

Sec. 105C: (b) Emergency Authorization -- Notwithstanding any other provision of this Act, the Director of National Intelligence and the Attorney General may jointly authorize the emergency acquisition of foreign intelligence information for a period of not more than 45 days if --

(1) the Director of National Intelligence and the Attorney General jointly determine that...
(B) the targets of the acquisition of foreign intelligence information under this section are persons reasonably believed to be located outside the United States;
(C) the targets of the acquisition are reasonably believed to be persons that are not United States persons;

The proposed revisions offered no guidance on what legal procedures were to be followed when a target of surveillance located outside of the United States unexpectedly called a "United States person" inside of the United States. The new, narrower scope of the law could easily have been interpreted by the courts to mean that intelligence agencies were expected to immediately cease surveillance on communications that crossed the border -- even communications originating from known terrorist cells -- until a warrant was in order.

House Republicans saw this loophole in the Democratic proposal as a problem. They prepared an amendment to the bill that would have made clear that surveillance of electronic communications could continue, without a court order, any time that an acknowledged al-Qaida operative located outside of the United States contacted someone within the United States. Rather than have to vote on this amendment, the Democratic leadership pulled their bill off of the floor.

But the version of the bill that passed on November 15th (on a mostly party line vote) contained an even broader version of Republican amendment. The House-approved version starts off with the language of the initial Democratic version of section 105A (a), expressly placing communications involving two ends outside of the United States into the realm of foreign intelligence gathering not subject to court approvals. Then, through yet another subsection, the bill addresses situations involving foreign surveillance targets who unexpectedly make a contact within United States. The bill says that intelligence agencies may continue to listen and that they have seven days to get court approval of surveillance of the party within the United States…

Sec. 105A: (a)(2) TREATMENT OF INADVERTENT INTERCEPTIONS -- If electronic surveillance referred to in paragraph (1) inadvertently collects a communication in which at least one party to the communication is located inside the United States or is a United States person, the contents of such communication shall be handled in accordance with minimization procedures adopted by the Attorney General that require that no contents of any communication to which a United States person is a party shall be disclosed, disseminated, or used for any purpose or retained for longer than 7 days unless a court order under section 105 is obtained or unless the Attorney General determines that the information indicates a threat of death or serious bodily harm to any person.

Finally, it appears that the Democratic Congress has entered the realm of the reasonable on this issue! I am still of the opinion that communications crossing the border should simply be treated as foreign communications, but allowing seven days to obtain a warrant is an acceptable compromise.

Finally, back to Joe Klein. He did appear to mis-state the scope of the Democratic proposals. Even the original version would not have required court orders for all foreign surveillance targets, only those that made direct contact with persons in the United States and/or United States persons. But Klein's bashers are also being a tad disingenuous. If there was any major liberal/progressive objection to the original Democratic FISA bill on the grounds that it was a bad idea to require American intelligence agencies to cease surveillance operations when a foreign surveillance target unexpectedly called someone within the United States, that objection wasn't made very forcefully. Liberals seem to willing to accept either version of the bill, showing less of an interest in the content of surveillance law, than in just passing something that isn't President Bush's.

Senator Whitehouse Dodges the Telecom Immunity Issue

Remember "I voted for it before I voted against it" from the 2004 Presidential campaign? Well, according to a report from the Dow Jones Newswire (via CNN), Rhode Island Senator Sheldon Whitehouse has come up with a version for the year 2007. The issue is whether telecommunications companies who have cooperated with the government's electronic surveillance requests based on executive branch assurances that the requests were legal should be granted immunity from lawsuits…

Lawmakers on the Senate Judiciary Committee approved 10-to-9 Thursday a bill authorizing the federal government's warrantless wiretapping program without a clause offering immunity to telephone companies that may have cooperated with the program.

Just minutes before the vote, the committee had voted 11-to-8 in favor of immunity for the phone companies.

Democratic Sens. Dianne Feinstein, D-Cal., and Sheldon Whitehouse, D-R.I., voted with the nine Republicans on the panel in favor of preserving the immunity clause.

But in a strange twist that left many wondering what had happened, just minutes after this vote, Committee Chairman Patrick Leahy, D-Vermont, called for a separate vote to approve the bill without the section of the legislation with the immunity provisions.

The committee approved Leahy's call 10-9, along party lines.

Under the Senate procedures governing this particular bill, Democratic Majority Leader Harry Reid now decides exactly which text, i.e. the version with or the version without the immunity provision, will be considered by the full Senate.

In short, Senator Whitehouse punted on the issue -- and lived up to a prediction I made earlier in the year about this sentence from a February Projo report...

New U.S. Sen. Sheldon Whitehouse’s position is less clear,

...becoming a recurring theme for Senator Whitehouse's term of office.

Senator Whitehouse Dodges the Telecom Immunity Issue

Remember "I voted for it before I voted against it" from the 2004 Presidential campaign? Well, according to a report from the Dow Jones Newswire (via CNN), Rhode Island Senator Sheldon Whitehouse has come up with a version for the year 2007. The issue is whether telecommunications companies who have cooperated with the government's electronic surveillance requests based on executive branch assurances that the requests were legal should be granted immunity from lawsuits…

Lawmakers on the Senate Judiciary Committee approved 10-to-9 Thursday a bill authorizing the federal government's warrantless wiretapping program without a clause offering immunity to telephone companies that may have cooperated with the program.

Just minutes before the vote, the committee had voted 11-to-8 in favor of immunity for the phone companies.

Democratic Sens. Dianne Feinstein, D-Cal., and Sheldon Whitehouse, D-R.I., voted with the nine Republicans on the panel in favor of preserving the immunity clause.

But in a strange twist that left many wondering what had happened, just minutes after this vote, Committee Chairman Patrick Leahy, D-Vermont, called for a separate vote to approve the bill without the section of the legislation with the immunity provisions.

The committee approved Leahy's call 10-9, along party lines.

Under the Senate procedures governing this particular bill, Democratic Majority Leader Harry Reid now decides exactly which text, i.e. the version with or the version without the immunity provision, will be considered by the full Senate.

In short, Senator Whitehouse punted on the issue -- and lived up to a prediction I made earlier in the year about this sentence from a February Projo report...

New U.S. Sen. Sheldon Whitehouse’s position is less clear,

...becoming a recurring theme for Senator Whitehouse's term of office.

Senator Whitehouse Supports Telecom Immunity, So Far

One issue being considered as part of the reform of the Foreign Intelligence Surveillance Act is whether telecommunications companies that have complied with customer information requests from the government should be granted immunity from privacy lawsuits. According to The Hill, an overwhelming majority of the Senate Intelligence Committee has approved an immunity provision…

The Senate Intelligence Committee last month approved a bill by a 13-2 vote that includes a provision to extend liability protections for companies that allegedly participated in the [Terrorist Surveillance Program] after the Sept. 11 attacks, provided that the firms can show they had authorization from the government. A corresponding FISA bill in the House, which is still awaiting floor action, does not include an immunity provision.

The Senate rules that this particular bill must follow to reach the floor require it also to be approved by the Judiciary committee.

The Hill article mentions that there are three Democratic Senators who sit on both the Judiciary and Intelligence committees; two of them voted for the bill with immunity provision, one voted against…

Two wildcards on the Democratic side will be Sens. Sheldon Whitehouse (R.I.) and Dianne Feinstein (Calif.), who both voted for the bill with the immunity provisions in the Intelligence Committee. Another Judiciary Committee Democrat who also sits on the Intelligence Committee, Sen. Russ Feingold of Wisconsin, has vowed to strike the immunity language during the markup.

Can We At Least Agree on Banning the Hyperbole?

Over on his blog, America's Report Card (named after a novel he published, not the scope of topics he addresses) Professor John McNally has put up a post claiming that PINHEADS (all caps in the original) have succeeded in getting When I Was a Loser, the now-controversial collection of essays he edited, banned from…well, he doesn't really say where it's been banned from.

When I Was a Loser has been removed from the Cumberland school-system curriculum. There's no doubt there. But does removal from the curriculum constitute banning in any meaningful sense of the word?

A couple of years ago, a local Michigan school board refused to allow the teaching of a Bible-based course that treated the Bible as a work of literature and history. Would it be fair to say that the Frankenmuth, MI School board voted to ban the Bible, or would that description confuse the issues more than clarifying them?

The claim that When I Was a Loser has been banned obviously depends on some form of fallacy, but you'll have to ask Justin to find out exactly which one is involved.

Justin provides the type of fallacy committed by Professor McNally. It is...

The fallacy of persuasive definition.

The Latest, Not Greatest, Proposed Revisions to Electronic Surveillance Law, Part 2

1. The Democratic leadership pulled its version of surveillance reform off of the House floor yesterday, according to National Public Radio, after the Republicans proposed the following change to the Democrats proposed change to the Section 105A "exception"…

What threw the bill into limbo was a motion by Lamar Smith (R-TX) to send the bill back to committee for an amendment. That amendment would allow any form of surveillance of Osama bin Laden, al-Qaida or other designated terrorist groups. Smith says it revealed a fatal flaw in the Democrat's legislation.

If the Republican amendment had passed, the revised law would have allowed American intelligence agencies to authorize electronic surveillance without court system involvement when…

1. The party under surveillance was a "non-United States person" outside of the United States, communicating with another "non-United States person" outside of the United States, or
2. The party under surveillance was outside of the United States and associated with a known terrorist group.

The Democratic leadership supported item 1, but did not want members of their party to have to vote on item 2. Draw your own conclusion about what that means, though you might want to start with the Baltimore Sun's reporting…

It was the most recent embarrassment for Democrats in efforts to update laws governing domestic spying by the National Security Agency and other U.S. agencies.

2. Here is a strange and underreported facet of this story: The proceedings of the Foreign Intelligence Surveillance Act court are shrouded in such secrecy, no one, save for a few privleged government officials, has been allowed to read the ruling where the court decreed expanded jurisdiction for itself! Here's Andrew McCarthy of National Review Online on the secret ruling that triggered the need for the temporary legislation we are now operating under...

Imagine if a public official, safe in the shadows of anonymity, penned a directive that radically rewrote American intelligence-collection law — statutes enacted by our democratically elected officials and signed into law by elected presidents (including elected Democrat presidents, hyper-sensitive to privacy concerns).

Imagine that, rather than having such a critical national security decision made in the light of day, the anonymous public official issued the directive in secret — insulated from any political process in which the people whose lives hang in the balance were free to determine the appropriate line between liberty and security.

Imagine that we were not just barred from learning the name of the official; we were actually foreclosed from reading the directive under which we were now ruled....

Earlier this year — in the middle of an armed conflict against an international terror network which is promising renewed, 9/11-style attacks against the Homeland — an anonymous judge of the secret FISA court issued a classified ruling which radically altered decades-old, bedrock assumptions of foreign-intelligence law. The stealth directive deeply damaged the ability of the United States to investigate and prevent terrorist attacks.

We have not been permitted to learn the name of the judge. We have not been permitted to read the ruling — a ruling that so rocked the political branches that it became the subject of emergency curative legislation this summer. Legislation that is set to expire in about four months … after which we could once again be living not under FISA but under the secret whims of the FISA court.

Specifically, the judge ruled that our intelligence community now needs the permission of a federal judge before it can conduct electronic surveillance on non-Americans outside the United States who are communicating with other non-Americans outside the United States.

Mr. McCarthy is a former Federal prosecutor who prosecuted the first World Trade Center bombing case, so he is very familiar on this area of the law, but if you are skeptical about taking him at his word, note this otherwise curious qualifier in the Los Angeles Times pro-Democratic position editorial on the proposed new law…

Only this year, after the election of a Democratic Congress, did Bush shift ground and agree to allow the program to be supervised by the secret federal court created by FISA.

This acceptance of judicial oversight proved to be short-lived. When the court found fault with aspects of the program -- reportedly ruling that FISA required the government to seek a court order for "foreign-to-foreign" communications that are routed through the United States -- Bush pressed Congress to do much more than close what everyone agreed was a loophole created by advances in technology.

Reportedly?

Which procedure makes more sense for protecting civil liberties: Having elected representatives debate the procedures for surveillance and set the rules out in the open -- like we're doing right now, in case you haven't noticed -- or letting unelected, unaccountable judges set procedures in secret rulings that the public is not even allowed to read after-the-fact?

The Latest, Not Greatest, Proposed Revisions to Electronic Surveillance Law, Part 1

Here's a quick primer on the latest version of electronic surveillance law moving through Congress. Warning: there's some heavy (and not very well written) legalese in the portions of the new law excerpted below.

At the moment, foreign electronic surveillance is being conducted under a reasonably clear rule written into a temporary law (it expires in February) stating that no court-system involvement is required when one party (citizen or non-citizen) is believed to be outside of the United States…

Sec. 105A: Nothing in the definition of electronic surveillance under section 101(f) shall be construed to encompass surveillance directed at a person reasonably believed to be located outside of the United States.

Democrats want to limit the "exception" to cases where both parties are non-"United States persons" located outside of the United States...

Sec. 105A (a): Foreign to Foreign Communications -- Notwithstanding any other provision of this Act, a court order is not required for the acquisition of the contents of any communication between persons that are not United States persons and are not located within the United States for the purpose of collecting foreign intelligence information, without respect to whether the communication passes through the United States or the surveillance device is located within the United States.

...and also make explicit that intelligence agencies need to obtain court orders before conducting electronic surveillance in all cases not covered by section (a)...

Sec. 105A (b): Communications of Non-United States Persons Outside of the United States -- Notwithstanding any other provision of this Act other than subsection (a), electronic surveillance that is directed at the acquisition of the communications of a person that is reasonably believed to be located outside the United States and not a United States person for the purpose of collecting foreign intelligence information (as defined in paragraph (1) or (2)(A) of section 101(e)) by targeting that person shall be conducted pursuant to --

(1) an order approved in accordance with section 105 or 105B; or

(2) an emergency authorization in accordance with section 105 or 105C.

Reconciling section (a) with section (b) essentially requires court approval for any continuing foreign intelligence gathering operation. Without a court order in hand, an intelligence agency would have to cease surveillance immediately to comply with the law if a surveillance target unexpectedly contacted the U.S., or even contacted a resident alien outside of the U.S. The problem with this, as Mark Steyn has put it, is that…

If the U.S. government intercepts a call from Islamabad to London about a plot to blow up Big Ben, it can alert the Brits. But, if the U.S. government intercepts a call from Islamabad to New York about a plot to blow up the Chrysler Building, that's entirely unconstitutional and all record of it should be erased.

Wouldn't a rational surveillance reform seek to avoid creating situations where American intelligence agencies could run afoul of the law, just by diligently doing their jobs?

Religious People Have the Right To Assemble Too

Someone needs to tell the facilities manager at the Rhode Island State House that the government can’t deny members of religious groups the right to assemble when the same right is extended to secular groups. From Elizabeth Gudrais in last Wednesday's Projo…

Marco Schiappa, associate director for facilities management with the Department of Administration, told the State Properties Committee yesterday morning that a state policy — apparently both longstanding and long ignored — prohibits use of the State House or its grounds for religious purposes.

“We’ve either got to change the procedures, or we’ve got to stick to the procedures,” he told the committee.

Schiappa said he discovered the policy after assuming his current job six months ago. Because policy has conflicted with practice for so long, Schiappa recommended that the committee approve the Sept. 1 day of prayer, but offered this warning: “We want to make it clear that this may not be something that will be allowed in the future”…By the end of the day, Schiappa said he had asked lawyers whether changing it to allow religious events would cause any legal problems in light of the constitutional prohibition on establishment of religion. If not, Schiappa said, he expected the policy would be changed, subject to approval by Department of Administration Director Beverly Najarian.

Mr. Schiappa should be equally as concerned with running afoul of the Constitutional provision (that he seems unaware of) preventing government from interfering with the free exercise of religion.

In reality, it is highly unlikely that anything will come of this. Limiting the right to assemble because a demonstration has been deemed "religious" by the government is so clearly unconstitutional, even the ACLU opposes it…

Steven Brown, executive director of the ACLU’s Rhode Island chapter, called the policy “unconstitutional to the nth degree” and said his group “would be prepared to sue in a minute” if the state began enforcing it.

Brown said the State House was explicitly opened to demonstrations with a religious theme after a 1974 lawsuit over the state’s rejection of a group’s request to hold a prayer service in the rotunda to condemn cuts to the state’s welfare program by Gov. Philip W. Noel.

“In light of that history,” Brown said, “to see a policy that explicitly prohibits what a federal court said was constitutionally required is pretty shocking.”

However, the response from the Diocese of Providence on this matter is very, very disappointing…

The Roman Catholic Diocese of Providence declined to take a strong stance against the policy. “The state has every right to regulate the use of their buildings and their grounds,” diocese spokesman Michael Guilfoyle said.

Render unto Caesar and all, but the Diocese is wrong to take the position that public expression based on faith is somehow not worthy of the same protections from government extended to public expression based on any other motivation.

Finally, Monday’s Political Scene column from the Projo listed a few other prohibitions regarding demostrations at the state house that are not currently being enforced…

Just this year, the nonprofit advocacy group Ocean State Action has broken just about every rule on the list.

For instance: “No music allowed in the State House during normal business hours, 8 a.m. to 6 p.m., Monday through Friday.”

The group often begins or ends protests in the rotunda with a song. The group also assists Marriage Equality Rhode Island in sponsoring protests in favor of same-sex marriage, protests that usually include music.

Also: “Sleep-outs on the State House grounds are prohibited.”

Ocean State Action helped coordinate an overnight demonstration, including tents, to protest proposed budget cuts.

It is unclear why the religious group provision was the only provision that caught Mr. Schiappa’s eye.

England Continues to Ask for Calamity

Hot on the heels of news that gun crimes are up since Britain banned guns comes this controversy:

The database, which goes live next year, is to contain details of every one of the 11 million children in the country, listing their name, address and gender, as well as contact details for their GP, school and parents and other carers. The record will also include contacts with hospital consultants and other professionals, and could show whether the child has been the subject of a formal assessment on whether he or she needs extra help.

It will be available to an estimated 330,000 vetted users. Some of those allowed to check records, such as head teachers, doctors, youth offender and social workers, are uncontroversial, but critics have questioned why other potential users, such as fire and rescue staff, will have access to the database.

The concern is that, with so many children listed, and with so many people able to access it (with however many more able to find ways to break into it, I'd add), this database will be ripe for misuse. Apparently, the government already gets that, though:

The security fears are fuelled further by the admission that information about the children of celebrities and politicians is likely to be excluded from the system.

England Continues to Ask for Calamity

Hot on the heels of news that gun crimes are up since Britain banned guns comes this controversy:

The database, which goes live next year, is to contain details of every one of the 11 million children in the country, listing their name, address and gender, as well as contact details for their GP, school and parents and other carers. The record will also include contacts with hospital consultants and other professionals, and could show whether the child has been the subject of a formal assessment on whether he or she needs extra help.

It will be available to an estimated 330,000 vetted users. Some of those allowed to check records, such as head teachers, doctors, youth offender and social workers, are uncontroversial, but critics have questioned why other potential users, such as fire and rescue staff, will have access to the database.

The concern is that, with so many children listed, and with so many people able to access it (with however many more able to find ways to break into it, I'd add), this database will be ripe for misuse. Apparently, the government already gets that, though:

The security fears are fuelled further by the admission that information about the children of celebrities and politicians is likely to be excluded from the system.

A Greater Toll than You Know

It would seem that our discussion of civil rights and E-ZPass toll booths was not far fetched:

Generally mounted inside a vehicle's windshield behind the rearview mirror, E-ZPass devices communicate with antennas at toll plazas, automatically deducting money from the motorist's prepaid account.

Of the 12 states in the Northeast and Midwest that are part of the E-ZPass system, agencies in seven states provide electronic toll information in response to court orders in criminal and civil cases, including divorces, according to an Associated Press survey. ...

"You bring up the I-Pass records [in court] and it destroys credibility," said Levy, who has used such records two or three times for such purposes.

There remains a certain appeal to the argument that those who don't do things for which they don't want to get caught have nothing to fear. But again, the range of things for which it is advisable not to get caught can shift. Somewhere down the road, the lawyer may ask you: "So just where were you heading across the Newport Bridge on May 21st if not to make a donation of time by attending an event on behalf of that upstart candidate?"

What the New Wiretap Law Means

An NSA agent listens into a cell phone call between parties in Great Britain and Iran. This is what he hears…

All materials and personnel are in place. We await further orders.

Immediately, the party in Great Britain receives a return call…

Begin operations in 2 hours. All primary targets are to be destroyed.

Now, the NSA monitor detects a third transmission, originating with the party in Great Britain, to a party in Providence, Rhode Island. The message is…

…but wait, should the NSA keep listening at this point? A number of Democrats in Congress and ACLU-types say not necessarily, arguing that when foreign calls reach the United States, any government agency involved in surveillance has to hang up, unless they have previously obtained a warrant for the party on the American side -- even if they didn’t know the identity of the party on the American side before the call was made.

This is the central issue involved in the changes to the wiretapping law signed by the President on Monday. The new law makes clear that phone calls and other electronic communications that involve one party beyond the borders of the United States are to be treated according to the rules governing foreign intelligence gathering. 181 Democrats in the House and 28 in the Senate voted against this. Mark Steyn has best described the strangeness of the minority position on this issue…

If the U.S. government intercepts a call from Islamabad to London about a plot to blow up Big Ben, it can alert the Brits. But, if the U.S. government intercepts a call from Islamabad to New York about a plot to blow up the Chrysler Building, that's entirely unconstitutional and all record of it should be erased.

All four members of Rhode Island’s Congressional delegation; Senators Jack Reed and Sheldon Whitehouse, and Congressmen Patrick Kennedy and James Langevin, voted to require the government to cease surveillance in certain situations where phone or other electronic communication trails originating in foreign countries unexpectedly lead to contacts in the United States.

2. The new statutes not only adapt intelligence law for cases where one party is outside of the United States, but as an OpinionJournal editorial from July 27 pointed out, they also clarify the handling of certain cases where both ends of a call are outside of the United States…

If an al Qaeda operative in Quetta calls a fellow jihadi in Peshawar, that call may well travel through a U.S. network. This ought to be a big U.S. advantage in our "asymmetrical" conflict with terrorists. But it also means that, for the purposes of FISA, a foreign call that is routed through U.S. networks becomes a domestic call. So thanks to the obligation to abide by an outdated FISA statute, U.S. intelligence is now struggling even to tap the communications of foreign-based terrorists.

3. The Boston Globe states that the new law allows the executive branch to conduct "oversight-free surveillance", but that’s not true, even at the most basic level. According to the text of the law…

`(h)(1)(A) A person receiving a directive issued pursuant to subsection (e) may challenge the legality of that directive by filing a petition with the pool established under section 103(e)(1). (Note: The “person” referred to above would basically be the employee of a telecom company. The “pool” would be the Foreign Intelligence Surveillance Act (FISA) Court, the special court designated by Congress to hear domestic surveillance cases.)

`(B) The presiding judge designated pursuant to section 103(b) shall assign a petition filed under subparagraph (A) to one of the judges serving in the pool established by section 103(e)(1). Not later than 48 hours after the assignment of such petition, the assigned judge shall conduct an initial review of the directive. If the assigned judge determines that the petition is frivolous, the assigned judge shall immediately deny the petition and affirm the directive or any part of the directive that is the subject of the petition. If the assigned judge determines the petition is not frivolous, the assigned judge shall, within 72 hours, consider the petition in accordance with the procedures established under section 103(e)(2) and provide a written statement for the record of the reasons for any determination under this subsection.

Re: On-the-Spot License Suspension

On the spot... after a trial... whatever. I don't think a 5% reduction is worth taking the step of granting a police officer with a tube the power of judge, jury, and executioner.

If we're serious about curtailing drunk driving, let's not revoke licenses at all, or at least without multiple warnings (unless death or injury results). Instead, we should reregister drunk drivers' license plates so that they somehow convey the offense, perhaps with different colors or symbols related to the number of incidents — say, one red bottle for each. We could even go so far as to give police officers more discretion in pulling over drivers based on these plates.

I've heard that Ohio did something like that, once, but that it was abandoned after too many important people were seen driving around with their shiny new tags. That's an outcome that would simply have to be resisted, but it does offer a different context for considering the on-the-spot revocation: I wonder whether the suddenness of the penalty, all within one traffic stop, mightn't give police officers (who are human, after all) incentive not to test or to pull over "important people" in the first place.

On-the-Spot License Suspension

Utilitarian or libertarian? Choose your side, with respect to this Bruce Landis article in today’s Projo…

In 41 states, if you drink, drive and fail the breath test, your license is suspended on the spot.

And that, a national study released yesterday said, is the way to cut drunken-driving deaths: quick punishment, it said, brings a significant, measurable reduction in the death rate.

In Rhode Island, one of the nine states without such a law, it can take weeks or months to suspend the license of a drunken driver…

The study found that the pre-conviction suspension laws reduced alcohol-related fatal accidents by 5 percent, which they estimate would have saved at least 800 lives per year in the United States.

The study’s central point is that immediate punishment is essential to effectiveness.

Note: All “driving is a privilege” based arguments will immediately be ridiculed. The government doesn’t have the power to create "privileges" that it can choose to bestow upon some citizens, but not others.

Reporter Banned from a National Press Club/Council on American Islamic Relations Event

This report from Fox News seems worthy of a raised eyebrow or two…

The Council on American Islamic Relations held a symposium at the National Press Club in Washington Tuesday. The Washington Times reports CAIR National Board Chairman Parvez Ahmed characterized Bush administration policies as driven by fear, and is irrational and divisive.

All this occurred after CAIR had banned some media outlets who allegedly had given it unfavorable coverage. A reporter from the Washington Times was thrown out after the meeting began.

Is there more to this story that’s not being reported? Or do reporter ejections from National Press Club events occur frequently enough to make this a non-event?

Either way, banning reporters sure doesn’t seem to be consistent with the National Press Club’s stated mission…

The Club shall provide people who gather and disseminate news a center for the advancement of their professional standards and skills, the promotion of free expression, mutual support and social fellowship.

Reverend Barry Lynn Defends the Censorship of Religious Newspapers

In a letter to the editor in Saturday’s Projo, Reverend Barry Lynn, Executive Director of Americans United for Separation of Church and State, defended his organization’s position in favor of government censorship of print media. Americans United has filed an IRS complaint against the Diocese of Providence for publishing Bishop Thomas Tobin's criticism of Rudolph Giuliani’s public stance on abortion in its weekly newspaper, the Rhode Island Catholic. Writing that “free speech is not a plausible defense” (of course, to censors, it never is), Rev. Lynn cited a 1992 court case that he believes set a precedent limiting the content that religious newspapers are allowed to publish…

In 1992, a church in New York ran newspaper ads advising people not to vote for Bill Clinton. The IRS revoked the church’s tax-exempt status, and the church sued to get it back. A federal appeals court ruled unanimously against the church, rejecting its free-speech argument.

However, for this precedent to apply, you have to accept the view that newspaper op-eds are forms of paid political advertising, implying -- if you really believe in treating religious and non-religious organizations without bias -- that secular, corporate-owned media should also be prohibited from editorializing on political candidates since campaign finance laws expressly prohibit corporations from making expenditures “expressly advocating the election or defeat of one or more clearly identified candidate(s) or the candidates of a clearly identified political party”.

In other words, if Rev. Lynn believes that the IRS should crack down on the Rhode Island Catholic for using Mayor Giuliani’s name in an op-ed, shouldn’t he also believe that the FEC should crack down on the Belo Corporation for doing the same?

The only way to apply the 1992 precedent to Bishop Tobin's op-ed without making a case that all political discourse on American op-ed pages needs to be shut down is to assert that diocesan newspapers like the Rhode Island Catholic are not entitled to the full range of First Amendment protections enjoyed by "real" newspapers, i.e. that religious newspapers are second-class media organizations entitled to fewer first-amendment protections than non-religious ones. Does advocating for restrictions on the free-press rights of religious newspapers sound like a reasonable interpretation of the “separation of church and state” to you, or does it sound more like Americans United for Separation of Church and State represents a fringe that believes not so much that government should be neutral towards religion, but that government should actively discourage the expression of religious belief in public?

Americans United for Suppressing Religious Speech

According to a Mike McKinney entry on yesterday’s 7-to-7 blog, a group called Americans United for Separation of Church and State has called for an Internal Revenue Service investigation of the Diocese of Providence because of Bishop Thomas Tobin’s letter published in the Rhode Island Catholic criticizing Republican Presidential candidate Rudolph Giuliani's position on the issue of abortion. From the Americans United press release…

The Internal Revenue Service should investigate the Roman Catholic Diocese of Providence, R.I., for opposing Republican presidential candidate Rudolph W. Giuliani, says Americans United for Separation of Church and State.

In a June 13 complaint to the IRS, Americans United Executive Director Barry W. Lynn said Bishop Thomas J. Tobin, writing in the diocesan newspaper, Rhode Island Catholic, appears to have violated federal tax law by attacking Giuliani and stating that he “would never support a candidate who supports legalized abortion”....

Americans United’s letter to the IRS noted that federal tax law forbids non-profits to use organizational resources to support or oppose candidates for public office. In a revenue ruling scheduled for issuance June 18, for example, the IRS states that leaders of non-profits endanger their organization’s tax-exempt status by making “partisan comments in official organization publications"....

The rather casual assumption that publishing a newspaper equals partisan political activity raises a number of significant questions…

1. If the form of Bishop Tobin’s missive had been a Projo op-ed instead of a Rhode Island Catholic op-ed, would the organization still believe an IRS investigation was necessary, or does Americans United take the position that religious newspapers are second-class media organizations with fewer rights than secular newspapers?
2. The Belo Corporation, though not a non-profit, is also not a political action committee, and therefore not allowed to use organizational resources to support or oppose political candidates. Does this mean that Americans United also believes that mentions of political candidates on the editorial pages of Belo newspapers (such as the Providence Journal) should be treated as partisan political activity, or, does AU believe, again, that religious organizations have fewer rights than non-religious organizations to express themselves through the free press?
3. One of the most controversial provisions of the McCain-Feingold campaign finance reform package is the ban on any organization, save for certain types of PACs, from engaging in political advertising that mentions the names of political candidates 60 days or less before an election. Since Americans United for Separation of Church and State believes that the publishing of a religious newspaper should be treated as political activity subject to campaign finance laws, do they also believe that Diocesan Newspapers should be banned from making any mention of political candidates' names in the 60 days before an election? Or do they believe that getting some form of prior government approval of the content of their newspaper before publishing would be enough to satisfy the law?

Finally, let me offer a crass political note to Mayor Giuliani and his supporters: There is a potential mini-sister Souljah moment forming here, if Mayor Giuliani takes a stand against Americans United for Separation of Church and State's pro-censorship position towards religious organizations, even as he continues to disagree with the content of the speech that AU would like to suppress.

Americans United for Suppressing Religious Speech

According to a Mike McKinney entry on yesterday’s 7-to-7 blog, a group called Americans United for Separation of Church and State has called for an Internal Revenue Service investigation of the Diocese of Providence because of Bishop Thomas Tobin’s letter published in the Rhode Island Catholic criticizing Republican Presidential candidate Rudolph Giuliani's position on the issue of abortion. From the Americans United press release…

The Internal Revenue Service should investigate the Roman Catholic Diocese of Providence, R.I., for opposing Republican presidential candidate Rudolph W. Giuliani, says Americans United for Separation of Church and State.

In a June 13 complaint to the IRS, Americans United Executive Director Barry W. Lynn said Bishop Thomas J. Tobin, writing in the diocesan newspaper, Rhode Island Catholic, appears to have violated federal tax law by attacking Giuliani and stating that he “would never support a candidate who supports legalized abortion”....

Americans United’s letter to the IRS noted that federal tax law forbids non-profits to use organizational resources to support or oppose candidates for public office. In a revenue ruling scheduled for issuance June 18, for example, the IRS states that leaders of non-profits endanger their organization’s tax-exempt status by making “partisan comments in official organization publications"....

The rather casual assumption that publishing a newspaper equals partisan political activity raises a number of significant questions…

1. If the form of Bishop Tobin’s missive had been a Projo op-ed instead of a Rhode Island Catholic op-ed, would the organization still believe an IRS investigation was necessary, or does Americans United take the position that religious newspapers are second-class media organizations with fewer rights than secular newspapers?
2. The Belo Corporation, though not a non-profit, is also not a political action committee, and therefore not allowed to use organizational resources to support or oppose political candidates. Does this mean that Americans United also believes that mentions of political candidates on the editorial pages of Belo newspapers (such as the Providence Journal) should be treated as partisan political activity, or, does AU believe, again, that religious organizations have fewer rights than non-religious organizations to express themselves through the free press?
3. One of the most controversial provisions of the McCain-Feingold campaign finance reform package is the ban on any organization, save for certain types of PACs, from engaging in political advertising that mentions the names of political candidates 60 days or less before an election. Since Americans United for Separation of Church and State believes that the publishing of a religious newspaper should be treated as political activity subject to campaign finance laws, do they also believe that Diocesan Newspapers should be banned from making any mention of political candidates' names in the 60 days before an election? Or do they believe that getting some form of prior government approval of the content of their newspaper before publishing would be enough to satisfy the law?

Finally, let me offer a crass political note to Mayor Giuliani and his supporters: There is a potential mini-sister Souljah moment forming here, if Mayor Giuliani takes a stand against Americans United for Separation of Church and State's pro-censorship position towards religious organizations, even as he continues to disagree with the content of the speech that AU would like to suppress.

URI Student Senate to College Republicans: You Are Free to Express Any Opinion (That We Approve Of), In Any Manner (That We Approve Of)

One of these things is not like the others…

1647: Rhode Island adopts its first code of laws. In stark contrast to codes enacted in colonies like Maryland or Massachusetts around the same time, the code imposes no penalties for “blasphemy” or uttering “any reproachful words or speeches”.

One of these things just doesn’t belong…

1842: Rhode Island adopts its first state constitution by popular referendum. The constitution includes guarantees of freedom of speech and freedom of the press. Here’s the freedom of the press clause…

The liberty of the press being essential to the security of freedom in a state, any person may publish sentiments on any subject…

Can you tell which thing is not like the others…

1920: Rhode Island native (and Harvard Law professor) Zechariah Chafee publicly criticizes the Sedition Act of 1918, an attempt to limit criticism of the government of the US…

One of the most important purposes of society and government is the discovery and spread of truth on subjects of general concern. This is possible only through absolutely unlimited discussion…

Before I finish my song…

2007: The Organizations Advisory and Review Committee of the University of Rhode Island Student Senate votes to derecognize the URI College Republicans, because of their staging of a satire questioning whether any race or gender limited scholarship can be consistent with an anti-discrimination policy. The Student Senate’s position is that is has the right to treat URI Republicans differently from other organizations, because of an opinion they have expressed, unless they offer a public apology.

Randal Edgar of the Projo has some details…

The College Republicans at the University of Rhode Island say their ad for a “White Heterosexual American Male” scholarship was just a satirical prank, intended to voice the group’s opposition to affirmative action….

The scholarship has drawn attention from more than the three dozen students who applied for it.

Among them is the Student Senate, which told the College Republicans last month to apologize for the ad and for handing out scholarship applications. Also interested is URI President Robert L. Carothers, who recently told the Senate to back off. Forcing the Republicans to apologize, or make statements that “are not their own,” could deny them their constitutional rights, he wrote in a recent memo to the student body.

As of yesterday, the Student Senate was standing its ground....

Student Senate President Neil Leston said the student government got involved after a letter to the editor in the college paper suggested the ad was discriminatory and had violated the Senate’s bylaws. He said the number of students who applied for the scholarship — about 40 according to the Republican club — suggests that some people took the ad seriously.

“The big issue is they did not identify it as satire and that becomes problematic,” he said.

When Neil Leston and the rest of URI’s student Senators are deciding how to vote, will they also be considering a resolution of protest against the many other scholarships sanctioned by the University of Rhode Island that are limited by race or gender? Here are two examples from the official URI webpage…

• Robert L. Carothers and Patricia Ruane Scholarship: Income from endowment for scholarships to minority students.

• Mary Braga Scholarship: Income from endowment for a scholarship to a female undergraduate in the College of Arts and Sciences of Portuguese descent. Preference will be given to a Rhode Island resident and to the older student. The dean of the College of Arts and Sciences will determine the recipient.

If the question never crosses the minds of URI's student solons, that could explain why the URI Republicans thought they needed a satire to bring their point home. Whether the URI Student Senate likes it or not, some people believe that non-discrimination policies should be truly race and gender neutral. And in the United States, those people have the right to express that opinion.

The Foundation for Individual Rights in Education has more detail on the case here.
"One of these Things" written by Joe Raposo and Jon Stone.

Post Office Sides with Time Warner Against Free Speech

Whether you're left, right or independent, PAY ATTENTION:

Earlier this year, the Postal Regulatory Commission (PRC) rejected a postal rate increase plan offered by the U.S. Postal Service. Instead they opted to implement a complicated plan submitted by media giant Time Warner. (Click here for a timeline)

Under the original plan, all publishers would have a mostly equal increase (approx. 12 percent) in the cost for mailing their publications. The Time Warner plan overturned this level playing field to favor large, ad-heavy magazines like People at the expense of smaller publications like In These Times and The American Spectator. It penalizes thousands of small- to medium-sized outlets with disproportionately higher rates while locking in privileges for bigger companies.

A lot of your favorite ideological websites are outgrowths of the smaller mags that are being affected: National Review has The Corner, The New Republic has The Plank, for instance. If you want to let the Post Office know that you disagree with this move, SIGN THE PETITION.

In Allentown, Not So Crazy About Card Checks

Well we're waiting here in Allentown
For the Pennsylvania we never found
For the promises our teachers gave
If we worked hard
If we behaved

So the graduations hang on the wall
But they never really helped us at all
No they never taught us what was real
Iron and coal
Chromium Steel

And we're waiting here in Allentown
But they've taken all the coal from the ground
And the union people crawled away.

So goes a portion of Billy Joel's '80s hit "Allentown", a working man's song about how life was changing in a union town. With the news that the House of Representatives has passed the "Employee Free Choice Act", which really seeks to strip away the right of workers to vote up or down on unionization via secret ballot and requires a so-called "card check," Joel's song came to mind. For the heck of it, I thought that, instead of me rehashing (and here and here) why this was so wrong, it might be worth finding out what the local newspaper of a union town--like Allentown--had to say. The Morning Call of Pennsylvania's Lehigh Valley is the Allentown hometown newspaper. After editorializing that "[i]t was a cynical and misleading vote, one that was more about politics than it was about helping workers," the paper explains:

Union leaders say employer intimidation contributes to this decline. They cite statistics that workers who try to organize fellow employees stand a one-in-five chance of losing their jobs. They complain about employers hiring consultants who specialize in pressuring workers into not supporting unions. It happens.

However, the solution this legislation proposes would replace one form of coercion with another. In doing so, it does away with one of democracy's most hallowed tools to preserve freedom of choice — the secret ballot. In its place, it would allow unions to organize workplace simply by getting a majority of employees to sign authorization cards — the so-called card check. In place of a boss leaning on a worker not to vote for the union, it puts face-to-face peer pressure from a labor organizer to unionize. Pressure can work both ways, and without the protection of privacy, workers could subject themselves to harassment, or worse, from just another source. It happens.

This isn't the way to make the workplace fair. The National Labor Relations Act already makes it illegal for employers to bully their workers into not supporting unions. There are legitimate questions about whether the act's enforcement provisions are adequate to protect workers' rights. In fact, the Employee Free Choice Act would give the National Labor Relations Board more power to penalize employers when they fire workers for trying to organize — something that gets to the heart of labor's concern. Paired with a secret ballot, it would allow workers to vote according to who they think made the better case — labor or management.

The union bosses and their Democratic friends have sought to use legitimate concerns about the shortcomings of the NLRB as an opportunity to strengthen their control over the rank and file--both current and prospective. As the Call's editorial staff wrote, this was indeed "cynical and misleading." And entirely unsurprising.

'60's Era Campus Free Speechniks: Fought the Old Boss, became the New Boss

What happens when young co-eds "fight the power" and win a loosening of on-campus speech codes? Why, they seek to reimpose them when they become "the power." As Greg Lukianoff and Will Creeley of the Foundation for Individual Rights in Education (FIRE) explain in a campus free speech expose in today's Providence Phoenix (Via N4N):

College administrators didn’t decide to start cracking down on student speech just because of Facebook’s popularity. Despite the fact that such institutions rely on free and open exchange to serve their societal functions, universities both public and private have been policing student speech for decades. While we do ourselves no favors imagining that there was ever a time in collegiate history that students’ rights were perfectly respected, the campus free-speech movement of the 1960s and ’70s was highly successful. The sad irony is that many from the generation that fought so hard for free speech in the ’60s and ’70s were the pioneers of speech codes and PC restrictions in the ’80s and ’90s and that we still see today.

Yes, it's only "free speech" if they agree with it. Yet, there is a reason behind the speech codes: "In an attempt to prevent these claims, educational institutions have adopted a corporate risk-management posture." By this, they explain:

...speech codes are maintained by schools in no small part due to a deeply held fear of civil liability for harassment lawsuits arising from Title IX of the Education Amendments of 1972. Title IX prohibits discrimination — including sexual harassment — in any education program receiving federal funding. Plaintiffs in meritorious sexual-harassment lawsuits stand to win large damage awards, and the sheer number of those suits has become quite significant. Even when the claim is truly frivolous, the cost of mounting a defense is substantial.

Remembering Dr. King

In remembrance of Dr. Martin Luther King, Jr., take some time to read his "I Have a Dream" speech. Also, there are quite a few pieces extolling the inherent conservatism (and Republicanism) of Dr. King. For instance, the Heritage Foundation held a lecture in 1993 concerning "The Conservative Virtues of Dr. Martin Luther King" and posted a piece about "Martin Luther King's Conservative Legacy" last year. Then there is a new piece by Francis Rice explaining "Why Martin Luther King Was Republican." Finally, Andrew Busch responds to some criticism he received on an earlier piece he had written on Dr. King and Conservatism.

I suppose it could appear as if I'm overly-politicizing here. Yet, my intention is to present the conservative viewpoint on Dr. King in hopes of showing that he did indeed speak to--and for--all Americans.

Habeas Provisions of the Military Commissions Act Upheld, But Narrowly

Judge James Robertson of the U.S. District Court for the District of Columbia (a Clinton appointee, for those keeping score at home) has upheld the section of the Military Commissions Act relating to the Habeas Corpus rights of foreign nationals held as unlawful enemy combatants by the government of the United States, at least in certain narrowly defined circumstances. The Judge ruled that Congress has authority to establish Habeas Corpus procedures for foreigners captured and held outside of the United States that are different from those that must be applied otherwise. In the ruling, however, Judge Robertson emphasized that he was only addressing cases where the petitioner was neither an American resident, nor within the US when apprehended, nor being held within the United States…

As the government argues in its reply brief, his connection to the United States lacks the geographical and volitional predicates necessary to claim a constitutional right to habeas corpus. Petitioner has never entered the United States and accordingly does not enjoy the “implied protection” that accompanies presence on American soil....

My ruling does not address whether and to what extent enemy aliens may invoke other constitutional rights; I find only that the Suspension Clause does not guarantee the right to petition for habeas corpus to non-resident enemy aliens captured and detained outside the United States.

Judge Robertson’s use (creation?) of the “geographical and volitional predicates” criteria does leave the door open for a future court to apply Constitutional Habeas Corpus protection to non-citizen residents of the United States, including illegal aliens.

In another part of the ruling, Judge Robertson discussed whether moving Habeas Corpus jurisdiction out of the normal Federal court system constituted a suspension in and of itself. I didn’t understand whatever point the Judge was trying to make…

Congress’s removal of jurisdiction from the federal courts was not a suspension of habeas corpus within the meaning of the Suspension Clause (or, to the extent that it was, it was plainly unconstitutional, in the absence of rebellion or invasion…)

So the MCA was either 1) not a suspension of Habeas Corpus and therefore constitutional or 2) an unconstitutional suspension of Habeas Corpus. It's safe to say that we knew, going in to the case, that the MCA was either constitutional or it wasn't. How does re-stating this fact provide information that might be useful for this case or future ones?

Finally, I’m uncomfortable with the Judge's blithe statement that the events of September 11, 2001 did not constitute an invasion…

Neither rebellion nor invasion was occurring at the time the MCA was enacted,

…but that the events of December 7, 1941 clearly did. In discussing the suspension of Habeas Corpus that followed the attack on Pearl Harbor as one of the four Habeas suspensions in American history, Judge Robertson tells us…

All four congressionally authorized executive suspensions [of Habeas Corpus] occurred during times of indisputable, and congressionally declared, rebellion or invasion.

If the point the Judge is trying to make that there is a difference between the full-out declaration of war that followed Pearl Harbor and the “authorization to use military force” that followed September 11, then the Judge may have a compelling point, but that only explains "congressionally declared", not "indisputable". By including "indisputable", the judge is injecting his personal opinions of the motivations and capabilities of violent international organizations into his ruling on a point of law. That goes beyond the role of a judge.

A Washington Post report on the ruling is available here.

Re: NYC Bureaucratic Heroes: Spare the Trans-fats, Save the World

In what may come as encouraging news to New York City resident Kathy Ramirez, the London Evening Standard reports that even if a McDonald’s opens nearby, it is possible not to eat at it.…

McDonald's is closing its outlet in a town known for quality food and healthy, local produce.

The fast food chain in Tavistock, Devon, simply wasn't being used enough by locals.

So after seven years struggling to make ends meet in a town that has won many accolades for the quality of its food, McDonald's will finally shut up shop on Saturday.

Continue reading "Re: NYC Bureaucratic Heroes: Spare the Trans-fats, Save the World"

NYC Bureaucratic Heroes: Spare the Trans-fats, Save the World

OK, I'll admit that I'm glad that there is a smoking ban in restaurants (though bars...I'm not so sure), but NY City is taking this too far. Banning trans-fats?

...New York has planted a flag on what could be the next front in community health wars.

It is becoming the first city in the country to ban all restaurants from using artificial trans fats, while requiring hundreds of eateries to post food calorie counts right on their menus.

City health officials created the unprecedented new requirements Tuesday. Restaurants will get a grace period to make both changes, but by mid-2008, Dunkin' Donuts will have to find a substitute for the 3.5 grams of trans fat in its Boston Kremes and tell customers up front that the snacks contain 240 calories.

But the city's gigantic food-service industry has opposed parts of both new rules, and some restaurant companies have hinted that they might challenge them in court...

The city's health commissioner, Thomas Frieden, said the changes will help fight the twin epidemics of obesity and heart disease. Trans fats, listed on food labels as partially hydrogenated vegetable oil, are believed to be harmful because they wreak havoc with cholesterol levels.

Mayor Michael Bloomberg, who banned smoking in bars and restaurants during his first term, said the changes could save lives.

"We're not trying to take away anybody's ability to go out and have the kind of food that they want in the quantities that they want, but we are trying to make that food safer," he said.

Pretty soon, Mayor Bloomberg and his administration will soon be requiring all people to walk around in those inflatable sumo wrestling outfits so that they won't get bumps and bruises, thus making them safer. There are multiple problems with this lunacy. First is the short-term economic impact on restaurants:

...some restaurant cooks have worried about tinkering with tried-and-true recipes. Concerns have been raised about whether there is enough trans-fat-free cooking oil on the market to supply the city's thousands of friers...

...Big fast-food companies had complained about the calorie provision, too, saying it would clutter menu boards with health data already available on fliers, charts and Web pages...

...Frieden acknowledged that finding substitute ingredients for baked goods will take experimentation.

"There are real challenges for certain products," he said.

Menu changes cost money, food could taste worse and the prices could rise because of a trans-fat-free cooking oil shortage. Quick, head for the futures market! Second is the fact that, well, cooking oil with trans-fats is legal:

"This isn't over," said Dan Fleshler, a spokesman for the National Restaurant Association, which represents the industry. "We don't think that a municipal health agency has any business banning a product the (U.S.) Food and Drug Administration has already approved."

Finally, well, I just can't set this up:

Kathy Ramirez, a 26-year-old New York mother who takes her toddler to McDonald's every week, approves of New York's new restaurant rules.

"It's hurting us, all this fat, but the kids really like it," said Ramirez, pointing to 3-year-old Amber, who had just finished her dinner. "It would be better to know what we're getting."

Hmm. You take your toddler to Micky D's every week, you know the food is full of fat and your happy that the government is stepping in to let you "know what [you're] getting." Instead of making healthier choices on your own, your perfectly happy to let the government do it for you. BaaaaaaaaaaaaaaaBaaaaaaaaaaaa.

Justice Stephen Breyer, No Friend of the First Amendment

Here is Supreme Court Justice Stephen Breyer, not really making a whole lot of sense as he discusses how he interprets the Constitution, on Fox News Sunday…

If the text is clear, you follow the text. If the text isn't clear, you have to work out what it means. And that requires context.

The freedom of speech. Do you know what it means? Basically. But you don't know its entire content, and it doesn't tell you itself. Those words, "the freedom of speech," "Congress shall pass no law abridging the freedom of speech." Neither they, the founders, nor those words tell you how to apply it to the Internet.

This is a flawed example of whatever point Justice Breyer is trying to make, since there is nothing unclear about applying the principle of freedom of speech to the Internet. Written articles are speech, whether they are distributed on newsprint or via the Internet. Video and audio recordings are speech, whether they are transmitted over a broadcast network or over the Internet. And Congress is Congress, whether it is trying to regulate a newspaper, a television station, or the Internet. Ergo, Congress should pass no law abridging the freedom of speech on the Internet.

So on what basis does Judge Breyer believe that the rules for the Internet should be different from the rules for any other speech-transmission medium?

Brown University Let's the Evangelicals Back In

After telling the Reformed University Fellowship that they wouldn't be allowed on campus just, well, "because," Brown University has had a change of heart. But they still haven't been forthcoming as to why the RUF was banned in the first place.

Yesterday, Ethan Wingfield, president of the Reformed University Fellowship, said he was pleased at the Brown administration's decision. "I think it is fantastic. It is an absolutely positive step. I'm glad we are back in contact and talking and working on a resolution."

The campus religious group, which has about 100 members, is affiliated with Trinity Presbyterian Church, an evangelical congregation in Providence.

Restoration of the fellowship's status as a campus group means that its members can hold meetings on campus, advertise meetings and use campus space for speakers.

While Wingfield said he was pleased with the university's new tack, he said he is also disappointed because he believes the university wasn't specific about why the group was suspended in the first place.

"We still haven't been told why we were suspended," said Wingfield.

Leaders of the group say they were given different reasons for the action. At first they were told that Trinity Presbyterian, the local sponsor, had withdrawn support, which it had not, according to the Rev. David Sherwood, Trinity pastor.

Then they were told that it was because the group's former leader had been late in submitting the paperwork required to be established as a campus organization. The third reason given, according to fellowship leaders, was the most puzzling, they said. The Rev. Allen Callahan, Protestant chaplain, asserted they were "possessed of a leadership culture of contempt and dishonesty that has rendered all collegial relations with my office impossible."

...The Rev. Ms. Cooper Nelson has laid out four steps that the fellowship must take to be reinstated, including filing forms on time and communicating with "full transparency" to the Rev. Mr. Callahan.

Wingfield said the standards set by the Rev. Ms. Cooper Nelson are not onerous and are pretty much what is expected of other campus organizations which seek university sanction and use of university facilities. "All we want to do is be on campus," said Wingfield, who said the fellowship is looking forward to reinstatement, "as soon as we can get this resolved."

Kudos to the RUF for sticking it out. If they hadn't gone public, I think Brown would have been happy to have swept it under the rug. Of course, given this outcome, I now wonder whether it is the RUF or the University that was "possessed of a leadership culture of contempt and dishonesty."

Brown University: Not a Bastion of Free Speech

Yesterday, I read in the ProJo about how Brown University had rather suspiciously banned an on-campus student evangelical group.

Leaders of the group say they were given different reasons for the action. At first, they were told it was because their local sponsor, Trinity Presbyterian Church, had withdrawn its support, which it hadn’t. Then they were told that it was because the group’s former leader had been two months late in September 2005 when he submitted the group’s application to be recognized as a campus organization. But the third reason is one that group leaders say is most baffling: the Rev. Allen Callahan, Protestant chaplain, asserted they were “possessed of a leadership culture of contempt and dishonesty that has rendered all collegial relations with my office impossible.”

Student leaders said they still don’t know what he meant, and wrote a0 long letter to the chaplain’s office seeking elaboration. There’s been no response.

“We were disappointed that the university administration should treat us so lightly that they wouldn’t even acknowledge our letter,” said the fellowship’s president, Ethan Wingfield, a senior philosophy major. “We felt disrespected.”

The F.I.R.E. organization has taken up the students' cause, but the group has yet to get a concrete explanation as to why it has been barred. Arlene Violette also had one of the students on her show yesterday (I didn't catch his name, but it may have been Wingfield) and he did state that the local chapter of the ACLU was helping the students.

Now I've discovered (via Instapundit and Judith Weiss) that Brown also cancelled a talk by Nonie Darwish last week. Darwish is an Egyptian who has gotten publicity for her willingness to talk (and she's written a book) about the radical Muslim culture in which she grew up. According to Adam Brodsky of the NY Post:

MUSLIMS are often accused of not speaking out sufficiently against terrorism. Nonie Darwish knows one reason why: Their fellow Muslims won't let them.

Darwish, who comes from Egypt and was born and raised a Muslim, was set to tell students at Brown University about the twisted hatred and radicalism she grew to despise in her own culture. A campus Jewish group, Hillel, had contacted her to speak there Thursday.

But the event was just called off.

Muslim students had complained that Darwish was "too controversial." They insisted she be denied a platform at Brown, and after contentious debate Hillel agreed.

Weird: No one had said boo about such Brown events as a patently anti-Israel "Palestinian Solidarity Week." But Hillel said her "offensive" statements about Islam "alarmed" the Muslim Student Association, and Hillel didn't want to upset its "beautiful relationship" with the Muslim community. Plus, Brown's women's center backed out of co-sponsoring the event, even though it shares Darwish's concerns about the treatment of women. Reportedly, part of the problem was that Darwish had no plans to condemn Israel for shooting Arab women used by terrorists as human shields, or for insufficiently protecting Israeli Arab wives from their husbands.

In plugging their ears to Darwish, Brown's Muslim students proved her very point: Muslims who attempt constructive self-criticism are quickly and soundly squelched - by other Muslims.

Is there a pattern here? Brown did an admirable job of justified self-flagellation in their investigation into the role that the University played in slavery (though some dispute portions of it). Perhaps they should start a new investigation into why there is a pattern of silencing those whose views--on the face of it--seem to run counter to the on campus conventional wisdom.

Distorting the Military Commissions Act II

Alas, another Rhode Island blogger has lost herself in the progressive fever-swamps because of the Military Commissions Act. Now Sheila Lennon of the Projo?s Subterranean Homepage News is claiming that the Military Commissions Act can be used to prevent American citizens from petitioning for a writ of Habeas Corpus...

Yes, anyone can not (sic, I think Ms. Lennon meant "now") be "disappeared" at the pleasure of the President. This abrogation of the most basic right to challenge the legality of your detention is unconstitutional. The Supreme Court must overturn it.

Her fears are based on Keith Olbermann's inaccurate MSNBC rant against the MCA. But despite Olbermann's delusions, it is not true that the MCA means that anyone can be made to disappear at the pleasure of the President, because...

1. The MCA does not apply to American citizens.
2. Everyone -- even aliens -- detained under the MCA has an express right to be represented by a defense counsel of their own choosing. This is from section 949c of the MCA...

   (3) The accused may be represented by civilian counsel if retained by the accused, but only if such civilian counsel

   (A) is a United States citizen;
   (B) is admitted to the practice of law in a State, district, or possession of the United States or before a Federal court;
   (C) has not been the subject of any sanction of disciplinary action by any court, bar, or other competent governmental authority for relevant misconduct;
   (D) has been determined to be eligible for access to classified information that is classified at the level Secret or higher; and
   (E) has signed a written agreement to comply with all applicable regulations or instructions for counsel, including any rules of court for conduct during the proceedings.

3. And nothing in the MCA prevents someone improperly detained under the MCA from challenging the claim (with the help of his or her defense counsel) that he or she is not an American citizen in a regular civilian court, outside of the MCA system.

Furthermore, Ms. Lennon's claim that the MCA is unconstitutional makes no sense. As Adam J. White explained in the Weekly Standard, all that the MCA does is restore the scope of Habeas Corpus to the scope established in the 1950 case of Johnson v. Eisentrager, a precedent ignored by the Court its 2004 Rasul v. Bush ruling. Because you disagree with something doesn't make it unconstitutional. What exactly is the argument that the Supreme Court was "wrong" in interpreting existing Habeas Corpus statutes one way in 1950, but "right" when interpreting them differently in 2004?

I hope liberals are beginning to realize how much the hysteria over the MCA undercuts the claim that they are the reality-based community. But there is always hope! If bloggers like Ms. Lennon would pay more attention to the right-blogosphere, they would be less likely to make such gross errors of fact.

Distorting the Military Commissions Act

(UPDATE: The first paragraph of this post has been modified to reflect RI Future's timely correction of their original post.)

Over at RI Future, they are attempting to propagate the progressive fever-swamp fantasy they repeated the erroneous assertion (since corrected) that the Military Commissions Act affects the right of American citizens to petition for a writ of Habeas Corpus. As we've explained here and here in detail, it's not true. The MCA applies only to aliens, not citizens.

And while we're on the subject, is there anybody on the progressive left willing to join the long-term campaign to help bring about the right of citizens in North Korea or Iran to petition their own governments for Habeas Corpus, or do the progs regard those issues as "none of our business"?

The Military Commissions Act & American Citizens

1. How does the Military Commissions Act of 2006, recently passed by Congress, impact the right of American citizens to petition for a writ of Habeas Corpus?
In a word (two actually), it doesn't. Here is the first line of the act after the definitions are finished...

(a) Purpose- This chapter establishes procedures governing the use of military commissions to try alien unlawful enemy combatants engaged in hostilities against the United States for violations of the law of war and other offenses triable by military commission.

Most of what follows in the bill is part of the chapter defined above. Nothing in the bill applies to American citizens.

2. So what's the controversy?
Yale law professor Bruce Ackerman wrote a Los Angeles Times column where he said the MCA "authorizes the president to seize American citizens as enemy combatants" and hold them indefinitely...

BURIED IN THE complex Senate compromise on detainee treatment is a real shocker, reaching far beyond the legal struggles about foreign terrorist suspects in the Guantanamo Bay fortress. The compromise legislation, which is racing toward the White House, authorizes the president to seize American citizens as enemy combatants, even if they have never left the United States. This grants the president enormous power over citizens and legal residents. They can be designated as enemy combatants if they have contributed money to a Middle Eastern charity, and they can be held indefinitely in a military prison.

But since the MCA applies only to aliens, Professor Ackerman is wrong. His column can only be described as hysterical.

3. Bruce Ackerman is a Yale law professor. You are a yahoo-blogger. Why should anyone listen to you?
Because even Bush-bashers who don't like the MCA very carefully parse their language to exclude American citizens from the discussion when lamenting its passage. Here's Senator Patrick Leahy commenting on the bill...

And I agree with more than 30 former U.S. Ambassadors and other senior diplomats, who say that eliminating habeas corpus for aliens detained by the United States will harm our interests abroad, and put our own military, diplomatic, and other personnel stationed abroad at risk.

And here is Andrew Cohen, speaking very carefully in his Washington Post blog...

There will be a whole new class of residents who can be thrown in jail by the President and have to stay there indefinitely without ever having to face charges or get a trial.

Note that Mr. Cohen is careful to say residents, not citizens.

And there are other honest liberals, like Columbia Law Professor and Findlaw columnist Michael C. Dorf, who think that the MCA stinks, but don't write about a suspension of Habeas Corpus rights of American citizens in their criticism of it.

4. What might have led Professor Ackerman to believe that the MCA applied to citizens?
I can only speculate. The definitions section of the bill does contain language that includes a rather vague designation of "unlawful enemy combatant" that could apply to citizens?

`(1) UNLAWFUL ENEMY COMBATANT- (A) The term `unlawful enemy combatant' means--

`(i) a person who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents who is not a lawful enemy combatant (including a person who is part of the Taliban, al Qaeda, or associated forces); or

`(ii) a person who, before, on, or after the date of the enactment of the Military Commissions Act of 2006, has been determined to be an unlawful enemy combatant by a Combatant Status Review Tribunal or another competent tribunal established under the authority of the President or the Secretary of Defense.

But the bill also gives an express definition of alien...

`(3) ALIEN- The term `alien' means a person who is not a citizen of the United States.

Nothing that follows in the MCA allows someone who is not both an "unlawful enemy combatant" and an "alien" (see question 1 above) to fall under its jurisdiction. In other words, even if the President designates me as an unlawful enemy combatant, nothing in the MCA applies to me because I am not an alien.

5. So where does that leave the state of law regarding American citizens who participate in terrorist attacks against the United States?
Right in the same place we were before the MCA was passed, in a tug of war between the President and the courts, with Congress hiding from the issue.

There has been one case of an American citizen being designated an enemy combatant while on American soil, the case of Jose Padilla, who was arrested in Chicago in 2002 and detained as an enemy combatant.

As Michael Dorf explains, the not-entirely-clarifying results of the case have been an Eleventh Circuit Court of Appeals ruling that the President had the power to hold [Padilla] in military custody and the Supreme Court declining to hear a Habeas Corpus appeal filed by Padilla. The Supreme Court declined taking the case because the government transferred Padilla to civilian custody during the appeal process, rendering the question Habeas Corpus moot and leaving the fundamental question of Habeas Corpus rights unresolved.

The way our system of government is supposed to work, it is Congress' responsibility to pass a law that clears up this ambiguity. Until they do, it will continue to be treated on an ad-hoc case-by-case basis by the courts.

The Military Commissions Act and the Writ of Habeas Corpus

An attorney by the name of Adam J. White had an article in yesterday's Weekly Standard where he explained how the Military Commissions Act passed by Congress last week affected the right to petition for a Writ of Habeas Corpus. Here's the outline of his explanation...

1. The Constitution establishes the right of American citizens to petition the courts for a Writ of Habeas Corpus, i.e. the right of American citizens to have the courts determine if they have been unlawfully imprisoned.
2. Congress has the power to extend Habeus Corpus rights to a wider population than American citizens by statute, which it has done at various times in its history.
3. In the 1950 case Johnson v. Eisentrager, the Supreme Court ruled that statutory extensions to Habeas Corpus "did not extend habeas relief to alien military personnel held overseas" (Mr. White's description).
4. In the 2004 case Rasul v. Bush, the Supreme Court ignored its own Eisentrager precedent and ruled that statutory extensions of the Writ of Habeas Corpus did extend habeas relief to foreign combatants being held at Guantanamo Bay.
5. Part of Congress' purpose in passing the Military Commissions Act was to restore the scope of Habeas Corpus to what had been established by the Supreme Court in Eisentrager.

In the end, the Military Commissions Act was a response to the Supreme Court's inconsistent interpretation of a Congressional statute, not an improper attempt to alter a fundamental Constitutional right.

In case you were wondering, all four of Rhode Island's Congressional Representatives; Senators Jack Reed and Lincoln Chafee, and Congressmen James Langevin and Patrick Kennedy, voted against the Military Commissions Act.

Appeals Court Temporarily Reinstates Warrantless Wiretapping

The Associated Press is reporting that the Sixth Circuit Court of Appeals has lifted a lower court stay on the National Security Agency's "warrantless wiretapping program", formally called the Terrorist Surveillance Program. This circuit court ruling allows the program to operate while the appeal of the original stay is being considered...

The Bush administration can continue its warrantless surveillance program while it appeals a judge's ruling that the program is unconstitutional, a federal appeals court ruled Wednesday....

The program monitors international phone calls and e-mails to or from the United States involving people the government suspects have terrorist links. A secret court has been set up to grant warrants for such surveillance, but the government says it can't always wait for a court to take action.

This is one of the easier-to-comprehend issues associated with civil liberties and the War on Terror. It is purely a matter of definition. Should electronic communication crossing the border be treated according to the rules that govern the executive branch's domestic powers or the rules that govern its international powers? Or, as Mark Steyn wrote a few weeks ago...

If the U.S. government intercepts a call from Islamabad to London about a plot to blow up Big Ben, it can alert the Brits. But, if the U.S. government intercepts a call from Islamabad to New York about a plot to blow up the Chrysler Building, [should that be] entirely unconstitutional?

Continue reading "Appeals Court Temporarily Reinstates Warrantless Wiretapping"

Favoring the Non-Participatory

If one presses, as in the comments to a post by Don Hawthorne, it is possible to get a straightforward answer. Writes Bobby Oliveira of the Constitutional requirement that religion be banned from the public sphere:

Since everyone will not choose to participate, based on belief systems, you cannot allow some belief system to obtain an advantage because they choose to participate. Therefore, no one gets to participate.

The first thing to note, given timing, is that Bobby has provided a particularly apt bit of evidence for my suggestion in the previous post that liberal demands are increasingly exposing themselves as tyranny. Somehow, in the metamorphosis of the "living Constitution," the mandate for "free exercise of religion" and "freedom of speech" transforms into a requirement that nobody is free to express their religious beliefs in the hopes of affecting the public sphere. Call it "the tyranny of the non-participatory."

The second thing to note, related to the first, is the impossible mind bending that such post hoc legal reasoning as Bobby's requires of those who know better than the authors of the Constitution how to constitute a country. After all, isn't it possible that some groups benefit from universal non-participation of religion in the public debate? I'm thinking, for instance, of those whose religion, such as it is, nigh upon requires them to pollute public airwaves and the entire culture with pornography and graphic violence. For another instance, consider those who speak as if they've a positive right to federal funds for morally questionable research. Why is it appropriate to give them an advantage in the government sector?

The answer is that it is not. Thus rationalize those who would bind their inconveniently disagreeable, and incompatibly religious, fellow citizens.

The Case for Wiretapping

Mark Steyn makes the argument for warrantless wiretapping when one-half of the call is outside of the US as well as can be done in two sentences...

If Judge Taylor's ruling stands, if the U.S. government intercepts a call from Islamabad to London about a plot to blow up Big Ben, it can alert the Brits. But, if the U.S. government intercepts a call from Islamabad to New York about a plot to blow up the Chrysler Building, that's entirely unconstitutional and all record of it should be erased.

Governor Carcieri and the Cutting Edge of Constitutional Jurisprudence

Well we�re on the subject of campaign finance reform (see the comments in the post below), it should be noted that Governor Donald Carcieri�s most recent veto has placed him on the right side of the U.S Supreme Court�s interpretation of the First Amendment. Scott Mayerowitz describes the campaign finance bill vetoed by Governor Carcieri in today's Projo�

Governor Carcieri vetoed legislation that would have changed campaign-finance laws -- limiting each political party to donating $25,000 to a "group" of candidates during a calendar year.

Current law allows parties to give up to $25,000 to each candidate. This bill would have capped party contributions to candidates at $1,000.

According to the Supreme Court�s decision in Randall v. Sorrell (2006), issued just this Monday, Governor Carcieri vetoed a bill that was clearly unconstitutional.

In Randall (�the Vermont Campaign Finance Law Case�), the court overturned the Vermont legislature�s attempt to impose very strict limits on state election campaign donations and expenditures. In a 6-3 decision, the Court ruled 1) that �well-established precedent makes clear that the expenditure limits violate the First Amendment� and 2) that the �low maximum levels and other restrictions� embodied in the Vermont law �impose burdens upon First Amendment interests that�are disproportionately severe�.

One of the �other restrictions� considered by the Court involved contributions made by political parties. The court held specifically that it is unconstitutional to place contribution limits on parties that are no greater than the limits on individuals�

Act 64�s insistence that political parties abide by exactly the same low contribution limits that apply to other contributors threatens harm to a particularly important political right, the right to associate in a political party�.

We recognize that we have previously upheld limits on contributions from political parties to candidates, in particular the federal limits on coordinated party spending�.But the contribution limits at issue in Colorado II were far less problematic, for they were significantly higher than Act 64�s limits�.they were much higher than the federal limits on contributions from individuals to candidates, thereby reflecting an effort by Congress to balance (1) the need to allow individuals to participate in the political process by contributing to political parties that help elect candidates with (2) the need to prevent the use of political parties �to circumvent contribution limits that apply to individuals.��.Act 64, by placing identical limits upon contributions to candidates, whether made by an individual or by a political party, gives to the former consideration no weight at all.

We consequently agree with the District Court that the Act�s contribution limits �would reduce the voice of political parties� in Vermont to a �whisper.��.And we count the special party-related harms that Act 64 threatens as a further factor weighing against the constitutional validity of the contribution limits.

Governor Carcieri�s veto illustrates the strength of the separation of powers system; when one branch of government -- in this case the Rhode Island legislature -- tries to impose limits on a guaranteed right, there exist other co-equal branches of government who can stop it from happening.

Why Mr. Straight Talk is Straight No More

A quote reported by Charles Bakst in yesterday�s Projo from Senator John McCain shows how Mr. Straight Talk has sadly morphed into Mr. Blatant Hypocrisy�

McCain joined in denouncing the Club for Growth's strident advertising effort: "I don't think that that's exactly what American politics should be all about, and why don't we have a little less of the negative and a little more of the positive?"

This is shameless. Via the campaign speech regulations he has shepherded through Congress, Senator McCain has done as much to tilt campaign discourse towards the negative as has any living American.

Under the McCain-Feingold rules, civic groups that run ads in favor of candidates they support are under the constant threat of having their efforts declared �illegally coordinated electioneering communications�. The resulting possibility of endless litigation has had a chilling effect on positive advertising.

There are, on the other hand, no limits on how much money can be spent on ads run by civic groups that discuss why a particular candidate is no good, so long as no explicit message to vote for or against anyone is conveyed. That's why third party ads often include a message suggesting that you call a candidate�s office to voice your displeasure; the contact-the-candidate message establishes that the ad has a primary purpose other than suggesting who people should vote for.

So if Senator McCain wants to blame someone for the absence of positive third-party campaign ads, he should look first into the mirror. He cerainly should not treat the public as utterly ignorant of the effects that his law has had on political discourse in this country. The Senator's weak civil liberties position on this issue is a large part of why he has no shot at the Republican Presidential nomination in 2008.

Is John McCain a "Pro-Bill of Rights" Republican?

Senator John McCain is coming to Rhode Island to stump for Senator Lincoln Chafee. Senator Chafee describes himself as a �pro-Bill of Rights Republican�, while Senator McCain is less keen on the importance of the Bill of Rights.

Would you classify the following statement as "pro-Bill of Rights"�

I would rather have a country safe from terrorism than one where quote First Amendment rights are being respected that has become vulnerable.

Then what do you think of this one�

I would rather have a clean government than one where quote First Amendment rights are being respected that has become corrupt.

The second statement is a direct quote from Senator McCain.

I would have hoped that Senator Chafee was accepting Senator McCain�s support in spite of rather than because of his troubling record on limiting political speech, but that does not appear to be the case. The Chafee camapaign�s announcement of Senator McCain�s appearance touts Senator McCain�s campaign campaign finance reform �achievements��

U.S. Senator John McCain will be the honored guest at a Summer Picnic held on June 17th at the Exeter, RI home of U.S. Senator Lincoln Chafee and his wife Stephanie.

Senator McCain chairs the Senate Committee on Indian Affairs, and serves on the Armed Services, and Commerce, Science, and Transportation Committees. Senator McCain ran for President in 2000. In the Senate, McCain has successfully overseen important campaign finance reforms and has been a fierce deficit hawk.

In the words of Federal Election Commision chairman Bradley Smith, Senator McCain's campaign finance reforms have created a legal regime where the average American gets �less protection talking about your congressman than for Internet pornography sites or burning a cross outside a church or topless dancing."

Those interested in handicapping the 2008 Presidential race should be aware that Senator McCain�s record concerning the limitation of political speech is going to be as big a problem for him as the �religious right� or immigration policy when it comes to surviving the Republican primary process.

Power to the People

This post isn't going to gain me friends in the minority community, but here goes nothing. Donna Fishman's column in today's Projo regarding voter initiative illustrates the reason I squint every time the words "affirmative" and "action" are phrased together.

First, understand my history. I'm an African American male who has excelled in areas where African Americans, much less African American males, have historically been on the outside looking in. I was usually the only brown face in my elementary and secondary school classes. Further, I have firsthand knowledge of implicit, explicit, and every other type of racism out there. Yet, when direct democracy is billed as an anti-ethnic tool of "the man," enough's enough.

Voter initiative gives regular Joes like you and me the power legislate change without having to pander to special interests, as often do the legislators whom we've recently seen being more interested in kickbacks than kick-starting the programs/policies constituents desire. But, Fishman says:

Although voter initiative is dressed up in politically correct slogans — such as "One vote per person," "Let your voice be heard," and "Majority rules" — voter-initiative referenda often result in the unequal treatment of minorities. � After affirmative action is lost, gay rights will be the next to go. English-only referenda have also been passed by majority voters who are against ethnic minorities' and immigrants' rights.

My goodness, is the sky falling as well? First of all, voter initiative would not take away anything that legislators can do now. Instead, questions will be presented to the public as they have for nonbinding and binding referenda as well as constitutional amendments — one of which, the re-enfranchisement of former felons, directly and positively affects minorities in Rhode Island. So it is the height of misinformation to espouse the idea that voter initiative will adversely affect any and all minorities.

Furthermore, as a member of a minority, I'm sick and tired of leaders playing to fears and to my ethnic affinity. Voter initiative isn't some bogeyman bent on destroying the civil liberties of minorities. Voter initiative will empower average Americans with an authority unlike they are able to exert today. Sounds much like the intent behind affirmative action: bestowing rights upon people who had been formerly barred from certain opportunities. The difference is that, whereas affirmative action sought to level the playing field with a temporary and imperfect solution resulting in new opportunities for some and new headaches for all, voter initiative can keep people engaged and empowered and encourage the utilization of our civic rights in a way differing from any means currently at our disposal — without any "ism" baggage.

So, if giving power to the people is anti-affirmative action, sign me up.

Dueling Wiretap Impressions

Here's the New York Times on yesterday's NSA wiretap hearing...

In a rare glimpse into the inner workings of the secretive court, known as the Foreign Intelligence Surveillance Court, several former judges who served on the panel also voiced skepticism at a Senate hearing about the president's constitutional authority to order wiretapping on Americans without a court order. They also suggested that the program could imperil criminal prosecutions that grew out of the wiretaps.

Here's the Washington Times, on the same hearing, same subject...

A panel of former Foreign Intelligence Surveillance Court judges yesterday told members of the Senate Judiciary Committee that President Bush did not act illegally when he created by executive order a wiretapping program conducted by the National Security Agency (NSA).

The five judges testifying before the committee said they could not speak specifically to the NSA listening program without being briefed on it, but that a Foreign Intelligence Surveillance Act does not override the president's constitutional authority to spy on suspected international agents under executive order...

The judges, however, said Mr. Bush's choice to ignore established law regarding foreign intelligence gathering was made "at his own peril," because ultimately he will have to answer to Congress and the Supreme Court if the surveillance was found not to be in the best interests of national security.

Senator Specter, could you please post the actual hearing testimony on the Senate Judiciary Committee website so the American people can learn what was really said?

Confronting Afghanistan

The President needs to make sure he is in synch with the American people's fully justified negative reaction to the case of the Afghan man facing a death sentence for converting to Christianity or else he will face a loss of public confidence that will be bigger than what followed from the Dubai Ports World deal.

Fortunately, he seems to be aware of and concerned about the problem�

Bush said in a speech that a young democracy is growing in Afghanistan, but he's concerned about the case.

"We expect them to honor the universal principle of freedom," Bush said. "I'm troubled when I hear, deeply troubled when I hear, the fact that a person who converted away from Islam may be held to account. That's not the universal application of the values that I talked about.

Who Speaks for Free Speech in New England?

In a Washington Post op-ed, William Bennett and Alan Dershowitz (yes, you read that pairing right) state an obvious but important point about the response of Western media elites to the Dutch cartoons depicting the image of Mohammed that have sparked riots in the Europe, the Middle East, and Africa�

So far as we can tell, a new, twin policy from the mainstream media has been promulgated: (a) If a group is strong enough in its reaction to a story or caricature, the press will refrain from printing that story or caricature, and (b) if the group is pandered to by the mainstream media, the media then will go through elaborate contortions and defenses to justify its abdication of duty. At bottom, this is an unacceptable form of not-so-benign bigotry, representing a higher expectation from Christians and Jews than from Muslims.

The authors single out the Boston Globe for its selective defense of the practice of self-censorship�

The Boston Globe, speaking for many other outlets, editorialized: "[N]ewspapers ought to refrain from publishing offensive caricatures of Mohammed in the name of the ultimate Enlightenment value: tolerance."

But as for caricatures depicting Jews in the most medievally horrific stereotypes, or Christians as fanatics on any given issue, the mainstream press seems to hold no such value. And in the matter of disclosing classified information in wartime, the press competes for the scoop when it believes the public interest warrants it.

Rhode Islanders can take pride in the fact that their state's major daily, the Providence Journal, is not a media outlet whom the Globe spoke for. Here is an excerpt from the Projo February 5 editorial on the cartoon controversy�

Well, we dislike disparagement of religious figures, too. Still, in fervently supporting the right to free expression, we do so even when it offends people, including us�

The West's values of freedom of speech and tolerance clash with the totalitarianism of Islamists. In the West, ideas are put to the test of debate; Islamic fundamentalists condemn speech they don't like, and seek to tightly control thought. Unwilling to brook dissent, they see no hypocrisy in raging against insults to Muslims while applauding cartoons that vilify Jews or Christians, of which there are many in the press of Islamic countries.

The West must not cower before such extremists. We must continue to respect and defend the rights of the individual. This is a culture war worth fighting.

The Coercive Role of Government

D. W. MacKenzie wrote in the October 2002 issue of The Freeman: Ideas on Liberty, the monthly publication of the Foundation for Economic Education, about the coercive role of government:

I am government...

Coercion is both my vocation and my avocation; it is in my very nature to compel others to do that which they otherwise would not do. My nature should then be of great concern to you as I impinge on your liberty. My nature affects your life profoundly. Indeed, there is little in your life that escapes my grasp. I am also a mystery to many. Some see me as benevolent, though I murdered 119 million people in the twentieth century. Some see me as omniscient, though I face an insurmountable knowledge problem in trying to comprehend the society I seek to control. Some see me as an absolute necessity, though people have lived in societies without me. But those whom I use seldom recognize any of this. These naive convictions grant me an unwarranted place in society. These misconceptions have imposed great hardships on ordinary people, though they have served an elite of rulers well...

I benefit few at the expense of the many. Small groups organize easily, and large ones do not. Hence if I serve any interests other than those of actual rulers, I serve narrow interests. I grant monopoly privileges to influential industrialists and trade associations. I do this with tariffs and import restrictions that hobble foreign competitors. I do this with regulations that place burdens on new businesses. I do this with licensing laws that restrict access to professions. Of course, these interests pay me to get what they want. Sometimes they pay me simply to leave them alone.

My form is difficult to comprehend as well. I am vast and complex. No one can fathom me in all my complexity. I comprise a gargantuan array of agencies, statutes and regulations, and discretionary policies. No one would have the time or the intellectual capacity to know me fully even if he were to try. There is little point in trying anyway. One person can do nothing to me. No significant election has ever turned on a single vote, so voters have no obvious incentive to learn about me...

I am responsible for all the worst unnatural tragedies and unnecessary burdens that mankind has endured. Yet it seems that no one knows how to stop me. How can this be? My true nature is not easy to discern. When tragedy strikes, I am called into action. If I raise taxes to fund the effort to deal with crises, all can see my costs clearly. If I instead expand my authority to conscript resources, I hide my true costs, thus causing many to overestimate the net benefit of my actions. This instills unduly favorable beliefs about me in many minds.

...There have been successful efforts to restrain me for extended periods of time...In such places, people have prospered. But I have often succeeded in making strong comebacks. Some seek to limit my power with constitutional rules. However, there are strong reasons to doubt the efficacy of these rules. Persons who have power to enforce constitutional rules also have the power to flout them.

Why then do I ever fail?...There must be an answer, because I do sometimes falter...my failures are relatively uncommon. As difficult as the issues here are, they are vitally important to you because the continued success of free societies hinges on them. What is more important to you than that?

And here is why America's Founding was different, even though we have lost our way in recent decades.

Jack Reed�s Reservations about the Free Exercise of Religion and His Vote Against Samuel Alito

Senator Jack Reed has announced his opposition to confirming Judge Alito to the Supreme Court and voted to filibuster the nominee. According to a statement by Senator Reed, first amendment concerns play a prominent role in his opposition�

The first amendment protects Americans' religious liberties through two clauses that work in tandem: the free exercise clause and the establishment clause. I worry that if confirmed, Judge Alito would upset the careful balance the Founders sought in constructing the first amendment. In fact, Judge Alito seems to interpret the establishment clause as a rarely applicable part of the first amendment. He applies the free exercise clause on a much broader basis, often interpreting establishment clause cases as free exercise cases. He seems to see a plaintiff's complaint of establishment clause violations as attempts to block the free exercise of religion.

In other words, Senator Reed opposes Judge Alito because he believes that Judge Alito believes too strongly in the free exercise of religion. An example of what this means comes from the Senator�s criticism of Judge Alito�s opinion in Child Evangelism Fellowship v. Stafford Township (2004).

CEF had requested permission to distribute materials in the Stafford schools, in the same way that other groups, including the Cub Scouts, the Ocean County Girl Scouts, the Long Beach Island Foundation of the Arts and Sciences, the Ocean County Library, Stafford Township Volunteer Fire Company #1, the Stafford Basketball Club, Pop Warner football, and the PTA, were allowed to distribute materials. However, the school administration denied CEF�s request (and denied CEF�s request to participate in a back-to-school night) arguing that religious organizations do not have the same rights of free speech and public access enjoyed by non-religious organizations.

Judge Alito -- and the panel of third circuit Judges who heard the case -- disagreed. Alito wrote an opinion stating that Stafford could not treat CEF differently from other organizations simply because CEF was a religious organization.

Senator Reed stands by the position of the school district; strict government regulation of religious organizations, to the point of banning religious organizations from public access granted to non-religious organizations, is permissible in the public sphere. Reed, apparently, thinks that treating religious organizations as the equals of non-religious organizations would upset his "careful balance".

Is the contrary view -- that religious organizations should enjoy the same freedom of speech enjoyed by non-religious orginazations -- really a radical position that justifies a filibuster? Is Senator Reed really representing Rhode Island when he embraces discrimination based on religious beliefs?

Sheldon Whitehouse and the Appearance of Corruption

As Rhode Island�s Attorney General, Sheldon Whitehouse joined an amicus brief in support of upholding campaign finance reform laws. The reason? According to the brief, it was �essential to the health of our national democracy� to attack �the causes of cynicism and distrust that undermine our political discourse�.

Sometime between joining that brief and now, Whitehouse appears to have changed his mind. His response to Guy Dufault's personal attack on Governor Don Carcieri shows a decided lack of concern about cyncism and distrust undermining political discourse. According to Monday�s Political Scene column in the Projo�

Former Attorney General Sheldon Whitehouse does not intend to return the more recent $2,000 Dufault contributed to his Senate campaign. Why?

This response from Whitehouse spokesman Michael Guilfoyle: "Sheldon does not condone what Guy said and he doesn't believe there is any room in the political dialogue for the politics of personal destruction....It was a terrible mistake, and Guy is paying a considerable price."

But "this is between Guy Dufault and Don Carcieri," Guilfoyle said.

One side works in the public interest while another side uses the politics of personal destruction to pursue special interests. And Sheldon Whitehouse views it as a personal conflict and can�t choose between the two.

Courts approved campaign finance limitations on political activity because they found a compelling government interest in preventing the appearance of corruption. Does Sheldon Whitehouse really believe that taking big money from a lobbyist prepared to use rumor and innuendo to advance his interests is unrelated to the appearance of corruption? If Whitehouse is still interested in preventing the appearance of corruption, he should exhibit some personal responsibility in this matter and give Dufault's money back.

Apparently, leadership to Whitehouse doesn't mean taking responsibility yourself; it just means placing limits on other people.

Political Scene reports that Whiltehouse�s primary Matt Brown has returned recent campaign contributions from Dufault, as has lieutenant governor and gubernatorial candidate Charles Fogarty.

Storm Clouds Brewing on the Horizon

What a delight to read Andrew's posting about freedom of speech bursting forth in the town of Coventry!

And what concern all of us should have as we read his posting about potential government regulations which seek to squash the fundamental American right to speak our minds. Here are some earlier postings on this important issue:

Correcting the Bizarre Incentives Created by Campaign Finance Reform Laws

The Looming Threat of Government Regulation to Blogsphere, Brought to Us by Campaign Finance Reform

Will FEC Draft Regulations Lead to Greater Regulatory Control Over Blogging Community?

More on Potential FEC Restrictions on Blogging Community

FEC Hearings on Blogging Regulations

Why We Blog

I don't know a single American politician today who says we should have opposed funding fax machines for Solidarity nearly 25 years ago in Communist Poland, thereby providing the oppressed Polish people with a way to get the truth out to other freedom-loving people around the world.

Now ask yourself this question: If lifting restrictions on the speech of the Polish people was okay then, why are some of today's politicians in America voting against ensuring a similar lack of restrictions on our speech by opposing the Online Freedom of Speech Act?

To reinforce Andrew's concern, read the postings again in the category of Rhode Island Politics and ask yourself if our state would be better off with citizens knowing less about all those issues.

The Online Freedom of Speech Act & The Blog Boomlet in Coventry

There are about a dozen blogs written by residents of the town of Coventry (see the blogroll in the extended entry below). Their content includes a healthy amount of coverage of the civically unhealthy dispute between Coventry�s town council president Frank Hyde and acting town administrator Richard Sullivan. Hyde is accused of trying to force some hirings and firings that are supposed to be under the control of the town manager (including maybe trying to force Sullivan to resign from his acting position). There is an emergency town council meeting scheduled for tonight with election of officers and hiring a new town manager on the agenda. The bloggers, of course, have their own opinions on all of these matters.

The blog boomlet in Coventry is a perfect example the kind of activity that the first amendment�s freedom of the press was designed to protect -- criticism of the conduct of government officials. Yet our current Congress may attempt to restrict this kind of online political speech. The pro-regulation crowd in Congress continues to argue that only established, corporate media is covered by freedom of the press and that all other political speech is subject to regulation.

Coventry may provide the clearest example of how this is the wrong attitude. If Mighty Isis or the Duck or E-Town wants to say that �we need to get Mr. Hyde out of office and believe that Henry Jekyll would be the best replacement� then they should be free to spread that opinion as far and as wide as possible, without fear of the government defining their speech as a coordinated in-kind campaign contribution and claiming the right to regulate it.

A couple of weeks ago, Congress attempted exempting the Internet from campaign finance regulation through the Online Freedom of Speech Act, but the measure failed. According to the Daily Kos, an alternative proposed by notoriously pro-regulation-of-speech Congressmen Marty Meehan and Christopher Shays is ambguous at best, refusing to expressly extend media protection to blogs.

James Langevin, the Congressman representing the bloggers of Coventry, voted against the Online Freedom of Speech Act, leaving the threat of regulation in the air.

One final �only in Rhode Island� thought on this. In pursuing a campaign-finance complaint against the Republican party, Board of Elections chairman Roger Begin attempted to clear a proposed settlement with members of the state�s Democratic leadership. The politcos he talked to were not affiliated with the BOE in any way. Given the behavior of the State Board of Elections, is it unreasonable to believe that bringing political speech in the blogosphere under government regulation will ultimately give William Murphy or William Lynch or Joeseph Montalbano the power to stifle new-media criticism of their actions?

Continue reading "The Online Freedom of Speech Act & The Blog Boomlet in Coventry"

Scaling the Wall?

This leaves me with nothing to say, except to hope that it's a fluke, not an indication of trends:

STATE SEN. Marian Walsh (D.-Dedham) has filed legislation requiring churches in Massachusetts to submit annual reports to the state detailing their collections, expenditures, funds on hand, investments, real-estate holdings, etc.

The proposed law would apply to all religions, and their churches, synagogues, mosques, temples, tents or storefronts. But the clear impetus for the bill was two cataclysmic events in the Roman Catholic Church: the long-running sexual-abuse scandal and the closure of many venerable parishes in the Boston Archdiocese.

FEC Hearings on Blogging Regulations

FEC hearings on blogging have begun. A previously mentioned posting entitled Will FEC Draft Regulations Lead to Greater Regulatory Control Over Blogging Community? provides background information.

A subsequent posting is entitled More on Potential FEC Restrictions on Blogging Community.

Michael Krempasky testified today before the FEC on potential issues arising from placing regulations on blogging:

Today you consider rules that will affect millions of people. Not just the eleven million blogs currently indexed by the search engine Technorati, but the millions of people who currently have the freedom to take a few minutes, join the blogosphere and add their voice to our political conversation.

I�ll focus my testimony this morning on the media exemption. My hope is that the Commission will take specific and discrete steps to ensure that no blogger, no amateur activist, and no self-published pundit ever need consult with legal counsel in fear of the regulatory might of the federal government.

Our current campaign finance regulations touch nearly every area of political participation by associations, corporations, candidates, political parties and individuals. But one group is notably and, for practical purposes, completely exempt � the news media. The Commission is now considering the proper scope of that exemption. As it has asked, "Should the exemption be limited to entities who are media entities and who are covering or carrying a news story, commentary, or editorial?"

With respect, the question properly formed should have been, "can the exemption be limited?" The answer must be an emphatic no. There is no doubt that bloggers are media entities. Nor is there any doubt that the tradition of citizen journalists is a long accepted part of our national culture. From before very founding of our country, individuals and relative unknowns have contributed to this great conversation...

Time and time again, it is the new media � these bloggers � that fill the information gap. The vast resources of the blogosphere as a whole, its expertise, creativity and motivation � dwarf any newsroom in the country. Indeed, free of the constraints of bureaucratic hierarchies and concerns of column inches, blogs can provide news coverage that is both faster and more in depth than anything the mainstream media can hope to provide...

This very rulemaking is an even better case in point. What newspaper or television station could afford to devote time and space every day to covering the actions or potential actions of a relatively small government agency? None did, and none could. Meanwhile, bloggers wrote thousands of words about the Commission�s rulemaking, educating their readers and encouraging them to participate in the process.

There is no doubt that the Commission recognizes the difficulty in extending the media exemption to these citizen journalists. It is imperative that it does so. What goal would be served by protecting Rush Limbaugh�s multimillion dollar talk radio program � but not a self-published blogger with a fraction of the audience? How is the public benefited by allowing CNN to evade regulation while spending corporate dollars to put campaign employees on the airwaves as pundits, while forcing bloggers to scour the Record and read Commission advisory opinions?

Worse yet, if the Commission were to adopt a policy of examining individual blogs on a case-by-case basis, how is that to be distinguished from a government license to publish free of jeopardy � only granted (or denied) after the fact? Unlike previous Commission investigations in the offline world, these cases would affect not large corporations or interest groups with the ability to hire the best firms in Washington, but instead unsophisticated and unfounded individuals poorly suited to navigate the Commissions regulatory process...

The Commission should extend the media exemption to bloggers and other online publishers with the broadest possible terms. The American people, when given the chance tend to make choices that best serve them. The more voices, the more outlets, the more "media entities" � the more informed our public � and our voters will be.

Here is some further information posted on the same blog site and this links to all their FEC postings.

Here is a news article on the day's testimony.

The Kelo Decision Revisited: An Ironic Twist

The Kelo decision by the Supreme Court has stirred a lot of controversy, as noted in an earlier posting.

The following twist comes from Justice Souter's home state of New Hampshire:

Could a hotel be built on the land owned by Supreme Court Justice David H. Souter? A new ruling by the Supreme Court...might allow it. A private developer is seeking to use this very law to build a hotel on Souter's land...

Justice Souter's vote in the "Kelo vs. City of New London" decision allows city governments to take land from one private owner and give it to another if the government will generate greater tax revenue or other economic benefits when the land is developed by the new owner.

On Monday June 27, Logan Darrow Clements, faxed a request to Chip Meany the code enforcement officer of the Towne of Weare, New Hampshire seeking to start the application process to build a hotel on 34 Cilley Hill Road. This is the present location of Mr. Souter's home.

Clements, CEO of Freestar Media, LLC, points out that the City of Weare will certainly gain greater tax revenue and economic benefits with a hotel on 34 Cilley Hill Road than allowing Mr. Souter to own the land.

The proposed development, called "The Lost Liberty Hotel" will feature the "Just Desserts Caf�" and include a museum, open to the public, featuring a permanent exhibit on the loss of freedom in America. Instead of a Gideon's Bible each guest will receive a free copy of Ayn Rand's novel "Atlas Shrugged."...

"This is not a prank" said Clements, "The Towne of Weare has five people on the Board of Selectmen. If three of them vote to use the power of eminent domain to take this land from Mr. Souter we can begin our hotel development."...

The Just Desserts Cafe in the Lost Liberty Hotel, proposed to be built on what would have been called - one week ago - Justice Souter's private property, free from theft by the government.

How ironic.

But, then again, maybe all of us are approaching this with the wrong thought process. Since government itself neither creates economic value nor generates tax revenue, why don't we we interpret the Kelo decision in a more creative way:

Any time a government agency decides to take away our families' private property, let's make that agency's physical location the replacement target to convert from a government building to a private sector entity that generates lots of tax revenue.

This approach would have several benefits: First, it would save our homes. Second, it would shrink the size of government. Third, it would accelerate the further reduction of our taxes.

Sounds about as logical as the Kelo decision, no? And in doing so, we would simply be abiding by the laws of our land. Any takers?

Extending/Expanding the Patriot Act

We are at war. We are a land of liberty. We have a federal government whose appetite for meddling seems to be growing.

Two recent news articles have raised questions about the extension of the Patriot Act:

Patriot Act Push Angers Some on Right: A Senate panel vote riles conservatives concerned about the reach of federal power

Conservatives, liberals align against Patriot Act

These articles relate to an earlier posting entitled FBI Asks Congress For Power to Seize Documents.

There are people who have the expertise necessary to judge the merits of the arguments on these issues. I am not one of them.

What I do know is that a public debate about these issues is more than appropriate.

FBI Asks Congress For Power to Seize Documents

Let's be careful before we say yes too quickly to this request:

The FBI on Tuesday asked the U.S. Congress for sweeping new powers to seize business or private records, ranging from medical information to book purchases, to investigate terrorism without first securing approval from a judge.

Valerie Caproni, FBI general counsel, told the U.S. Senate Intelligence Committee her agency needed the power to issue what are known as administrative subpoenas to get information quickly about terrorist plots and the activities of foreign agents.

Civil liberties groups have complained the subpoenas, which would cover medical, tax, gun-purchase, book purchase, travel and other records and could be kept secret, would give the FBI too much power and could infringe on privacy and free speech...

The [USA Patriot] act was passed shortly after the Sept. 11, 2001, attacks. However administrative subpoena power was not in the original law. The proposed new powers, long sought by the FBI, have been added by Republican lawmakers, acting on the wishes of the Bush administration, to the new draft of the USA Patriot Act.

Committee chairman, Kansas Sen. Pat Roberts, noted that other government agencies already had subpoena power to investigate matters such as child pornography, drug investigations and medical malpractice. He said it made little sense to deny those same powers to the FBI to investigate terrorism or keep track of foreign intelligence agents.

But opponents said other investigations usually culminated in a public trial, whereas terrorism probes would likely remain secret and suspects could be arrested or deported or handed over to other countries without any public action...

Right and Wrong in Abortion Protests

Joseph Manning's pro-life activities in Cranston evoke mixed feelings in me:

Joseph Manning agreed to take down the baby outfits he had hung in the trees.

They were part of an antiabortion display he puts up three days a week outside the Women's Medical Center on Broad Street.

"That said the whole thing," he said. "You know what I'm saying? The baby suits waving in the trees."

But Manning, 74, won't remove his signs, as many as 11 at a time, some that depict bloody, dismembered fetuses.

I do sympathize with parents' desire to preserve what innocence in their children they can:

The clinic, which provides medical services, including abortions, is at the corner of Betsey Williams Drive, a street with enough children to hold its own Halloween parade.

Bobby Raposa sees the display from behind his picket fence. "I don't like it at all," he said, motioning toward his daughter, who was playing in the yard. "She shouldn't have to learn this at age five, but I have to explain this because these people have pictures of dead babies on the street."

The town would have a right to demand that pornographic posters be removed, even if they were displayed in protest of a bordello. (Of course, for the time being, such a business would be operating illegally; perhaps if Rhode Island's sex workers unionize...) I'd also speak against a thrice-weekly open-air presentation of graphic images of terrorists' beheaded victims, for example. But Mr. Manning does have a point:

Told of the neighbor's concerns that children were seeing his signs, he motioned toward the clinic and said: "I understand. I relate. But there are children being killed in here. If you go on a scale of things, one is much worse."

If a business were somehow legally euthanizing disabled kindergarteners, would our focus really be on protesters' inappropriate signage? Of course, the broader society wouldn't need graphic images to be disgusted by such a thing (at least not at present); the act itself screams in bold letters. Which makes me wonder whether Mr. Manning oughtn't apply the same principle to abortion. How about one big sign with bold letters reading:

There are children being killed in here.

That would avoid the reflexive turning away, and personally, I would find it much more shocking, in its bare truth. It would also force those who object to address the message itself, not its delivery — unless they were to do so by requesting that it not be so blunt. That, actually, is one disturbing aspect of the Providence Journal's report:

Elizabeth and Peter McStay were working in the yard in front of their house, white with green shutters. Peter McStay said, "it's a tough thing. It's a free country, but you don't have the right to infringe upon my way of life."

Exactly wrong. We can only allow ours to be a free country to the extent that we have the right to infringe upon each other's way of life. Put differently, we can only dislodge government authority from the capillaries of our personal lives if we are allowed to influence each other through other means — if we are free, as individuals, to get as far under each other's skin as the boundary between public and private will permit.

Me, I find it a discouraging sign that the apparent compromise between Manning and the town was to sacrifice the symbolism of flapping baby clothes for the gratuity of photographic gore.

Limited Government to Protect Equal Rights

When Mac Owens first signed on as a contributor to Anchor Rising, he sent me a speech that he had given on February 23, 2002, at the North Kingston Town Committee's Annual Lincoln Dinner. The current collection of issues, both nationally and in Rhode Island, makes it particularly appropriate for posting now. (I'm told, by the way, that Lincoln Chafee, in attendance, blushed when Owens suggested that Republicans should aspire to be more than merely pale imitations of the Democrats.)

Tonight, your main speaker will talk to you about the upcoming elections of 2002. These off year elections are certainly important and worthy of discussion. But at the same time, it is occasionally useful to return to our origins, "to recur to first principles." That is what I wish to do with the time allotted me. What are the principles of the Republican Party? What do Republicans believe in? What differentiates Republicans from Democrats?

Although some here tonight may disagree, let me offer a suggestion as to what these differences are. The modern Democratic Party was founded by FDR. Its central idea is that government's job is to adjudicate the distribution of resources among competing claimants. Democrats increasingly view the United States, not as a community of individuals, but as an array of groups whose demands must be met. But since government produces nothing on its own, certain favored groups prosper at the expense of others. The modern Democratic Party invokes the language of rights, but what Democrats really mean by the term are privileges or claims to resources that are granted by government. They certainly don't mean by rights what the Founders meant when they used the term.

On the other hand, the Republican Party was founded on the basis of principles invoked by Abraham Lincoln. He himself recurred to the principles of the American Founding, specifically the Declaration of Independence, so we can say that the principles of the Republican Party are the principles of the nation. In essence these principles hold that the only purpose of government is to protect the equal natural rights of individual citizens. These rights inhere in individuals, not groups, and are antecedent to the creation of government. They are the rights invoked by the Declaration of Independence — life, liberty, and the pursuit of happiness — not happiness, but the pursuit of happiness.

Continue reading "Limited Government to Protect Equal Rights"

American Crusade for Life Unhallowed

Miguel Guanipa's voice of reason has been trapped on my To Post list for a while:

Wherever there are children who dare recite the Pledge of Allegiance in a public school, judges who think the Ten Commandments should be displayed in the halls of justice, school principals who dare recite a prayer at a commencement affair, or citizens who dare suggest that offensive sexually explicit material should be removed from the hands of sexual predators, there you will inevitably find the ACLU valiantly persevering in its culturally dissonant crusade against them, until the cautionary voices of reason are finally silenced.

A General Cloud of Suspicion

Dan Yorke railed against this possibility on Wednesday:

Under pressure from law-enforcement officials who want to use the roadblocks again, Governor Carcieri is deciding whether to ask the state Supreme Court to reconsider a 1989 decision that sobriety checkpoints violate the state Constitution.

If Carcieri goes along with Attorney General Patrick Lynch, who wants him to put the question back before the court, it would open the possibility of a reversal that would allow checkpoints after a 15-year ban.

Rhode Island is one of just eleven states that currently have such bans in place. However, Yorke pointed out that we're at least that unique in amount of corruption. And a general ability to pull over cars without any reason for suspicion whatsoever would be a power-abuser's dream. It would also seem to create a ready source of revenue for an already corpulent governing system. Note the statistics in Tennessee:

Elder, Lynch, MADD and other proponents cite a massive, 12-month demonstration project in Tennessee in which nearly 145,000 vehicles were stopped at 882 checkpoints during 12 months in 1994 and 1995.

Only 773 drivers, less than 1 percent, were arrested on drunken-driving charges, hundreds were arrested on other charges and 7,351 were given other traffic citations.

Yes, it's absolutely true that about 94% of people stopped pulled away with no penalty but lost time. That said, of the remaining 6%, around 91% were arrested or cited for violations that had absolutely nothing to do with the reason such stops are allowed. Those don't sound like "police roadblocks to fight drunken driving" to me; they sound like general searches without probable cause that sometimes happen to catch drunk drivers.

Still, part of Yorke's anger came from the apparent apathy of his audience. So, in the event that the ban looks likely to collapse, I propose a compromise: police may set up roadblocks, but they are completely forbidden from busting drivers or their passengers for any violation not having to do with alcohol. (With exceptions for those rare instances in which they come across a car with a corpse in the backseat.)

You Can't Remove the Commandments

Although I have more to say about this issue (and will hopefully do so in the near future), the Providence Journal editorial page's position on the removal of the Ten Commandments from Roger Williams Park is worth a separate cheer:

It would be as easy to expunge our Judeo-Christian heritage as it would be to erase our classical heritage -- seen in everything from the Greek-inspired love of argument, reasoning and scientific analysis to the handsome columns that adorn our public places. The Ten Commandments are part of our common inheritance; they helped shape our laws and culture.

The few fanatics who are bothered by a Ten Commandments monument in a city park would cite the First Amendment's "Establishment Clause," which supposedly guarantees the absolute separation of church and state. The actual language of the amendment, however, and the conduct of Americans for centuries suggest that something far different was stated and intended: that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."

(I do have to admit, though, that it sometimes seems that the editorial position of the paper depends mostly on who was able to make it to the relevant meeting.)

Something to Ponder over Christmas Break

In a move that is surprisingly redolent of politics as usual, the Student Organization Advisory and Review Committee of the University of Rhode Island Student Senate threw a controversial proposal into the agenda of the senate's final meeting that delayed the re-recognition of student groups until next semester, according to The Good 5¢ Cigar:

A controversial proposal from Student Organization Advisory and Review Committee Chairman Evan Duggan-Lever would change the way groups are recognized and funded by the senate.

"The old system is old and busted," Duggan-Lever said. "It doesn't contain any guidelines or contain anything that allows the [SOARC] committee to decide what should be recognized."

The proposed changes would bring the recognition process in line with Rhode Island laws and recent court rulings, Duggan-Lever said.

Some among the senators wondered whether the delay would be unnecessarily disruptive for student groups. Not to worry:

"All of the groups stand to benefit [from the proposed changes]," Duggan-Lever said. "The only groups that don't stand to benefit are groups that are illegal."

That's curious: what sort of group that was previously recognized could possibly be illegal? Well, I can't find any further information, online, but another piece in the latest Cigar might give some indication:

Several student groups currently recognized by the University of Rhode Island Student Senate are being asked to change their bylaws because they do not comply with procedures and standards set forth by the senate.

One such group is the Intervarsity Christian Association, Student Organization Advisory and Review Committee Chairman Evan Duggan-Lever said. It is recognized as a Level III group currently, he said, which is the lowest level and allows the group to ask the Memorial Union for meeting space and also ask the senate for contingency funds.

Apart from a minor issue — already addressed — having to do with regulations for electing official leadership, the far greater affront is one that readers might have guessed from the group's name:

Another bylaw problem was an "article of faith" which required members to show their religious principles to join the group. This, Duggan-Lever said, is not allowed by senate regulations and as such was required by SOARC to be removed.

The group, however, still intends to continue the practice, Secretary Hope Aswell said.

"For our leadership, we want them to hold Christian values," Aswell said, "because it is a Christian group."

Hope Aswell — with her magnificent name — doesn't apparently understand the game. In the America that is currently germinating on the country's campuses, it's fine for believers to, well, believe — if only because, as Duggan-Lever puts it, "We can't determine what is in someone's head." However, as a constitutional matter, they have to effectively deny those beliefs, or at least make those beliefs subordinate to the doctrine of tolerance.

Former group president Jillian Burger looks for reason for optimism in the likelihood that only people meeting the unspeakable criterion would manage to become nominated. And that's probably true... as long as the group remains quiet and innocuous enough that those who would take advantage of the universal right to join and lead it don't think a coup worth the effort.

Why Was Molly Little Searched?

On Sunday, Bob Kerr wrote about Rhode Island native Molly Little's experience with airport security. Here's the one sentence summary: Kerr believes she was hassled at the airport because she is a "peace" activist (quotes are mine).

Let me begin with the slight note of hypocrisy that Kerr ends with. Kerr writes

It might never be officially confirmed, but when an 18-year-old from Rhode Island with a mind of her own can be detained at an airport without explanation it's difficult to escape the feeling that somebody's out there taking names.

Why is the fact that Little is an 18-year old "her" relevant to this discussion? Is Kerr implying that Little should not have been searched because she is an 18-year old female? If demographic factors were used in deciding whom to apply extra scrutiny to, Kerr would be among the first to write about the evils of profiling. To maintain some intellectual honesty, and not just express generic liberal outrage, the above sentence should have been written about "a person with a mind of his or her own".

Still, the question of why Molly Little was stopped is a valid one. The government doesn't tell us the exact criteria that its airport screening systems use. There is a reasonable justification for this. If the exact criteria are known, the system is easier to beat. (If you want to sound tech-macho when describing this, say that "the system can be gamed".) Not knowing the exact criteria, what follows is pure speculation on my part.

Start with this article by Michael Pastore, dated August 30, 2004.

The U.S. Transportation Security Administration (TSA) will begin testing a new airport passenger-prescreening program to identify potential terrorists before the end of the year, and will also conduct a limited test to determine whether or not comparing passenger information to commercially available data can help to more accurately verify the identity of individuals.

The key here is the use of "commercially available data can help to more accurately verify the identity of individuals". Note the stated goal is not to determine if a person is a good guy or a bad guy, but to determine if they are who they say they are. This could conceivably create a problem in the case of Molly Little. Molly Little also writes under the name of Margaree Little. Is Molly a commonly used diminutive of Margaree? If not, an automated system comparing records from different sources might reach the conclusion that the same person was using two names, i.e. a real name and an alias.

Any risk factors that were flagged were probably enhanced by the fact that Portland is considered a high-risk point of travel. You don't think of Portland as high-risk? Mohammed Atta entered the US through Portland on September 11, 2001 AND was selected by the automated screeing program in place at the time.

Again, I am (for the purposes of this post) remaining neutral on whether this combination of checks, if they exist, are good things or bad things. I am pointing out that it is a little premature to jump to the conclusion that lists of peace protesters are being compiled.

Finally, there is one point in Little's story I don't understand at all. Little says the agent at the ticket counter said that members of the military are sometimes flagged by the screening system. This doesn't make sense. Why would our government want to use it scarce screening resources on members of its own military? There is still a missing piece to this puzzle.