Category: Constitution – Courts – Law – Justice

Janice Rogers Brown for Chief Justice

According to Stuart Taylor (link via Volokh), there’s some good news about Judge Janice Rogers Brown, Bush’s nominee “to the nation’s second-most-powerful court, the U.S. Court of Appeals for the District of Columbia Circuit, which has the last word on the legality of many federal environmental, health, and safety regulations.” Taylor doesn’t think it’s good news, but I do, because it seems that Brown has:

  • • Expressed approval of constitutional theories that might well (as I read them) doom Bush’s own signature Medicare prescription drug benefit and proposed Social Security “personal accounts,” along with the rest of the Medicare and Social Security programs and many workplace safety and environmental laws.
  • • Called for the Supreme Court to return to its pre-1937 pattern of sweeping away many federal and state economic regulations by imposing severe limits on Congress’s power to regulate interstate commerce and by reviving long-dead precedents such as Lochner v. New York, a now-infamous 1905 decision that conservative legal hero Robert Bork (among many others) has denounced as an “abomination.”
  • • Portrayed the federal government as a “leviathan” that is “crushing everything in its path” and fostering “a debased, debauched culture which finds moral depravity entertaining and virtue contemptible.”
  • • Declared that “in the heyday of liberal democracy, all roads lead to slavery. And we no longer find slavery abhorrent. We embrace it. We demand more. Big government is not just the opiate of the masses. It is … the drug of choice for multinational corporations and single moms; for regulated industries and rugged Midwestern farmers and militant senior citizens.” And senior citizens, Brown has said, “blithely cannibalize their grandchildren [to] get as much ‘free’ stuff as the political system will permit them to extract.”

Right on, Judge. May you be confirmed to the appellate court and rise to the Supreme Court.

The Constitution in Exile

The Volokh Conspiracy has a flock of posts about the so-called Constitution-in-Exile movement. The thrust of the posts is to downplay the notion, current in left-wing circles, that there is such a movement. Orin Kerr said this in December:

In a book review in the latest issue of The New Republic, Cass Sunstein renews his claims that “[t]here is increasing talk [among conservatives] of what is being called the Constitution in Exile — the Constitution of 1932, Herbert Hoover’s Constitution before Roosevelt’s New Deal.” Sunstein has suggested this a number of times before (see, e.g., here and here), and the claim has been repeated recently by The New York Times and by my colleague Jeffrey Rosen. The suggestion is that influential conservative lawyers express their goal for the courts as being the restoration of “the Constitution in Exile.”

The odd thing is, I can’t recall ever hearing a conservative use the phrase “the Constitution in Exile.” I asked a couple of prominent conservatives if they had ever heard the phrase, and they had the same reaction: they had never heard the phrase used by anyone except Cass Sunstein and those discussing Sunstein’s claims.

As best I can tell, the phrase “Constitution in Exile” originally appeared in a book review by D.C. Circuit Judge Douglas H. Ginsburg in 1995 in the course of discussing the nondelegation doctrine in the journal Regulation.

Today David Bernstein adds:

I’m sure the legal blogosphere will be abuzz with discussions of Jeff Rosen’s N.Y. Times magazine piece on the purported “Constitution in Exile” movement….

First, I take issue with the whole idea that there is a “Constitution in Exile movement,” as such. [UPDATE: co-blogger Orin makes similar points here.] “Constitution in Exile” is a phrase used by Judge Douglas Ginsburg in an obscure article in Regulation magazine in 1995. From then until 2001, I, as someone who knows probably just about every libertarian and most Federalist Society law professors in the United States (there aren’t that many of us), and who teaches on the most libertarian law faculty in the nation, never heard the phrase. Instead, the phrase was pretty much ignored until 2001, when it was picked up and publicized by liberals. In October 2001, the Duke Law Journal, at the behest of some liberal law professors assumedly worried about what would happen to constitutional law under Bush appointees, published a symposium on the Constitution in Exile. Thereafter, other left-wingers, such as Doug Kendall of the Community Rights Council and Professor Cass Sunstein, began to write about some dark conspiracy among right-wingers to restore something called “the Constitution in Exile.”

Ginsburg’s coinage, regardless of its modest provenance, appears in a paragraph in which he neatly encapsulates what many conservatives and libertarians have said on countless occasions about the subversion of original meaning. Here’s the paragraph (source):

So for 60 years the nondelegation doctrine has existed only as part of the Constitution-in-exile, along with the doctrines of enumerated powers, unconstitutional conditions, and substantive due process, and their textual cousins, the Necessary and Proper, Contracts, Takings, and Commerce Clauses. The memory of these ancient exiles, banished for standing in opposition to unlimited government, is kept alive by a few scholars who labor on in the hope of a restoration, a second coming of the Constitution of liberty — even if perhaps not in their own lifetimes.

That presages Ginsburg’s 2003 speech, entitled “On Constitutionalism,” in which he elaborates on that paragraph, without using the phrase “Constitution in exile.”

In any event, dedication to the real Constitution of original meaning — the “Constitution in exile” — seems to be alive and well in The Federalist Society, in a few law schools, and in many places on the web, notably at The Volokh Conspiracy. If that isn’t a movement, it has all the makings of one.

The Broken Promise of Liberty

I have posted at Liberty Corner II “The Broken Promise of Liberty,” which is Part VI of my series “Practical Libertarianism for Americans.” Here are excerpts of Part VI:

If liberty is so wonderful, why don’t we enjoy it in full? Why are our lives so heavily regulated and legislated by so many federal, State, and local agencies at such a high cost? What happened to the promise of liberty given in the Declaration of Independence and Constitution? The answers to those questions are bound up in human nature and the nature of governance in a democracy….

In sum, it’s all about trust. You can trust in people to do the right thing because it’s to their benefit to do so, as it is in free markets and free societies. Or you can tie people down, economically and socially, in a morass of statutes and regulations….

Trust doesn’t mean an absence of rules, but the rules have only to be minimal, socially evolved rules of acceptable conduct, such as the Golden Rule or the last six of the Ten Commandments. The clearer and more intuitive the rules, the more likely they are to be enforced by self-interest, by fear of social opprobrium, and by pride in reputation — with swift, sure, and hard justice as a backup.

But none of that goes down well with the untrusting, who think that the road to happiness must be paved with hard-and-fast rules for everything and everyone (except those who break the rules, if they have certain racial, sexual, and socio-economic characteristics). Otherwise, how would people know what to do?…

What happens, then, is a ratcheting of government power, in response to demands for government to “do something,” and in furtherance of the ambitions of power-seeking politicians. There is no in-between solution. There is either a government of strictly limited powers — such as the one envisioned by the Framers — or there is, inevitably, socialism or something very close to it….

We have been following the piecemeal route to serfdom — adding link to link and chain to chain — in spite of the Framers’ best intentions and careful drafting. Why? Because the governed — or dominant coalitions of them — have donned willingly the chains that they have implored their governors to forge. Their bondage is voluntary, though certainly not informed. But their bondage is everyone’s bondage….

Unchecked democracy undermines liberty and its blessings. Unchecked democracy imposes on everyone the mistakes and mistaken beliefs of the controlling faction. It defeats learning. It undoes the social fabric that underlies civility. It defeats the sublime rationality of free markets, which enable independent individuals to benefit each other through the pursuit of self-interest. As “anonymous” says, with brutal accuracy, “Democracy is two wolves and a lamb voting on lunch.”…

The Framers understood human nature as a natural enemy of liberty. That is why they strove to check the passions of the mob and the power of government….

Human nature has overcome constitutional obstacles. The governed and their governors — locked in a symbiotic relationship that is built on a mistrustful worldview, economic illiteracy, and baser instincts — have conspired to undermine the Constitution’s checks and balances. People, given their mistrustful and ignorant nature, have turned to government for “solutions” to their “problems.” Government, in its turn, has seized whatever power is necessary to go through the motions of providing “solutions.” For rare is the legislator who doesn’t want to legislate, the executive who doesn’t want to act, and the judge who doesn’t want to exercise his judgment by interpreting the law rather than simply apply it….

The authors of the Declaration of Independence, were they writing it today, would be able to list “a long train of abuses and usurpations” by the federal government against the States and the people. Their list would rightly include these charges, once levelled against the British monarch:

…erected a multitude of new offices, and sent hither swarms of officers to harrass our people and eat out their substance….

…combined with others to subject us to a jurisdiction foreign to our Constitution and unacknowledged by our laws….

…[took] away our [State] charters…and alter[ed] fundamentally the forms of our governments….

[L]iberty has been vanquished in the mistaken belief (or hope) that government can effectively and efficiently make us better off, salve our woes, and put an end to social and racial divisions. To those ends, the governed and their governors, walking hand in hand, have taken liberty for a stroll down a slippery slope. Every step they have taken down that slope has made more problematic our journey back up the slope.

For earlier entries in the series, follow these links:

I. Introduction

II. Terminology

Addendum to Part II: Notes on the State of Liberty in American Law

III. The Origin and Essence of Rights

IV. Liberty and Its Prerequisites

Addendum to Part IV: More Hayek

V. The Economic Consequences of Liberty

Addendum to Part V: The Destruction of Income and Wealth by the State

Anything to Smear an Anti-Tax Group

AP headline:

Anti-Tax Group Hires Paroled Sex Offender

Followed by this:

A man who spent 18 years in jail after being convicted of raping eight children at a day care where he worked has been hired by an anti-tax group.

Gerald Amirault was convicted in 1986 of molesting and raping 3- and 4-year-old children at the Fells Acres day care center he and his family ran in Malden, a city north of Boston. Amirault, who maintains his innocence, was released on parole last year.

Citizens for Limited Taxation has hired Amirault as a researcher at its Marblehead office. Barbara Anderson, the anti-tax group’s executive director, said she believes Amirault was unjustly convicted and will be an enthusiastic employee.

But here’s the real story, from WSJ.com:

Friday, April 30, 2004 12:01 a.m. EDT

At 10 o’clock this morning, Gerald Amirault will walk out of his Massachusetts jail, a free man.

It is a joyous day for this prisoner, behind bars for 18 years after his 1986 conviction on charges of child sex abuse based on fantastical testimony dragged from pre-schoolers. Gerald’s mother Violet and his sister Cheryl served eight years before their convictions were overturned in 1995.

It is also a happy day for The Wall Street Journal. Readers of this page will be familiar with Dorothy Rabinowitz’s accounts of judicial abuse of the Amirault family and others falsely convicted of child sex abuse during a wave of irrational cases that swept the courts in the 1980s….

One of the reasons behind the district attorney’s decision last week not to oppose Mr. Amirault’s release on parole was that in order to have him classified as a “sexually dangerous person” there would have had to be a virtual re-trial of the entire Amirault case. The DA had to have been deterred by the prospect of parading into a courtroom with the incredible fantasies extracted from Mr. Amirault’s alleged victims–about secret rooms, magic drinks, animal butchery, assaults by a bad clown. Then-District Attorney Scott Harshbarger had offered them as “proof” of the Amiraults’ guilt.

No liberal bias at the Associated Press, right?

Too Many Chances

If this is true:

Sources told CNN that investigators were still trying to confirm whether Jessica Marie Lunsford was buried alive as well as other information John Evander Couey provided. Results of the full autopsy are expected in about a month.

Do you lefties out there still want to give people like Couey “another chance”? Hasn’t he — haven’t they — had more than enough chances? Here’s Couey’s rap sheet, and related thoughts, courtesy GenerationWhy?:

A search of PublicData.com reveals his convictions and the address in Homosassa, FL (listed as Marie Dixon’s address) where he was released as an “inactive offender” on May 6, 1997. Other tidbits from his rapsheet include:

Burglary/Forced Entry – residence – July 30, 1977 – sentenced to 10 years
Burglary/Forced Entry – residence – July 31, 1977 – adjudication withheld
Burglary – February 28, 1981 – sentenced to 7 years
Lewd/Lascivious conduct with child under 16 – April 8, 1991 – sentenced to 5 years
Forgery – April 9, 1995 – adjudication withheld
Hot checks – February 22, 2001 – sentence unknown

This says alot about our system. A man can harm a child in the most disgusting way and get a sentence less than he would if he broke into a house. It also shows a spotty history of parole/probation supervision:

Supervision start-end dates:
Dec 07, 1977 to Jan 19, 1978
Jul 22, 1980 to Jul 21, 1982 – during this time he committed his 3rd burglary
Jul 16, 1993 to Apr 5, 1996 – during this time he committed forgery
May 6, 1997 to Dec 07, 1998
Apr 24, 2001 to Apr 23, 2003

Basta!

"Next" Lives in Georgia, or Is Trying To

My final comment about the state-assisted murder of Terri Schiavo was to ask “Are You Next?” We now know who is next:

85 year-old Mae Margouirk of LaGrange, Georgia, is currently being deprived of nutrition and hydration at the request of her granddaughter, Beth Gaddy. Mrs. Margouirk suffered an aortic dissection 2 weeks ago and was hospitalized. Though her doctors have said that she is not terminally ill, Ms. Gaddy declared that she held medical power of attorney for Mae, and had her transferred to the LaGrange Hospice. Later investigation revealed that Ms. Gaddy did not in fact have such power of attorney. Furthermore, Mae’s Living Will provides that nutrition and hydration are to be withheld only if she is comatose or vegetative. Mae is in neither condition. Neither is her condition terminal.

Read all about it at Thrown Back (quoted above) and WorldNetDaily, which has more:

“Grandmama is old and I think it is time she went home to Jesus,” Gaddy told Magouirk’s brother and nephew, McLeod and Ken Mullinax. “She has glaucoma and now this heart problem, and who would want to live with disabilities like these?”…

Ron Panzer, president and founder of Hospice Patients Alliance, a patients’ rights advocacy group based in Michigan, told WND that what is happening to Magouirk is not at all unusual.

“This is happening in hospices all over the country,” he said. “Patients who are not dying – are not terminal – are admitted [to hospice] and the hospice will say they are terminally ill even if they’re not. There are thousands of cases like this. Patients are given morphine and ativan to sedate them. If feeding is withheld, they die within 10 days to two weeks. It’s really just a form of euthanasia.”

But some people don’t understand slippery slopes.

(Thanks to The Corner‘s K.J. Lopez for the lead, via Verity at Southern Appeal.)

The Case Against Campus Speech Codes

The per curiam opinion of the U.S. Supreme Court in Brandenburg v. Ohio (1969):

The appellant, a leader of a Ku Klux Klan group, was convicted under the Ohio Criminal Syndicalism statute for “advocat[ing] . . . the duty, necessity, or propriety [445] of crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform” and for voluntarily assembl[ing] with any society, group, or assemblage of persons formed to teach or advocate the doctrines of criminal syndicalism. Ohio Rev.Code Ann. § 2923.13. He was fined $1,000 and sentenced to one to 10 years’ imprisonment. The appellant challenged the constitutionality of the criminal syndicalism statute under the First and Fourteenth Amendments to the United States Constitution, but the intermediate appellate court of Ohio affirmed his conviction without opinion. The Supreme Court of Ohio dismissed his appeal sua sponte “for the reason that no substantial constitutional question exists herein.” It did not file an opinion or explain its conclusions. Appeal was taken to this Court, and we noted probable jurisdiction. 393 U.S. 94 (196). We reverse.

The record shows that a man, identified at trial as the appellant, telephoned an announcer-reporter on the staff of a Cincinnati television station and invited him to come to a Ku Klux Klan “rally” to be held at a farm in Hamilton County. With the cooperation of the organizers, the reporter and a cameraman attended the meeting and filmed the events. Portions of the films were later broadcast on the local station and on a national network.

The prosecution’s case rested on the films and on testimony identifying the appellant as the person who communicated with the reporter and who spoke at the rally. The State also introduced into evidence several articles appearing in the film, including a pistol, a rifle, a shotgun, ammunition, a Bible, and a red hood worn by the speaker in the films.

One film showed 12 hooded figures, some of whom carried firearms. They were gathered around a large wooden cross, which they burned. No one was present [446] other than the participants and the newsmen who made the film. Most of the words uttered during the scene were incomprehensible when the film was projected, but scattered phrases could be understood that were derogatory of Negroes and, in one instance, of Jews. [note 1] Another scene on the same film showed the appellant, in Klan regalia, making a speech. The speech, in full, was as follows:

This is an organizers’ meeting. We have had quite a few members here today which are–we have hundreds, hundreds of members throughout the State of Ohio. I can quote from a newspaper clipping from the Columbus, Ohio, Dispatch, five weeks ago Sunday morning. The Klan has more members in the State of Ohio than does any other organization. We’re not a revengent organization, but if our President, our Congress, our Supreme Court, continues to suppress the white, Caucasian race, it’s possible that there might have to be some revengeance taken.

We are marching on Congress July the Fourth, four hundred thousand strong. From there, we are dividing into two groups, one group to march on St. Augustine, Florida, the other group to march into Mississippi. Thank you. [447]

The second film showed six hooded figures one of whom, later identified as the appellant, repeated a speech very similar to that recorded on the first film. The reference to the possibility of “revengeance” was omitted, and one sentence was added: “Personally, I believe the nigger should be returned to Africa, the Jew returned to Israel.” Though some of the figures in the films carried weapons, the speaker did not.

The Ohio Criminal Syndicalism Statute was enacted in 1919. From 1917 to 1920, identical or quite similar laws were adopted by 20 States and two territories. E. Dowell, A History of Criminal Syndicalism Legislation in the United States 21 (1939). In 1927, this Court sustained the constitutionality of California’s Criminal Syndicalism Act, Cal.Penal Code §§ 11400-11402, the text of which is quite similar to that of the laws of Ohio. Whitney v. California, 274 U.S. 357 (1927). The Court upheld the statute on the ground that, without more, “advocating” violent means to effect political and economic change involves such danger to the security of the State that the State may outlaw it. Cf. Fiske v. Kansas, 274 U.S. 380 (1927). But Whitney has been thoroughly discredited by later decisions. See Dennis v. United States, 341 U.S. 494, at 507 (1951). These later decisions have fashioned the principle that the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action. [note 2] As we [448] said in Noto v. United States, 367 U.S. 290, 297-298 (1961), “the mere abstract teaching . . . of the moral propriety or even moral necessity for a resort to force and violence is not the same as preparing a group for violent action and steeling it to such action.” See also Herndon v. Lowry, 301 U.S. 242, 259-261 (1937); Bond v. Floyd, 385 U.S. 116, 134 (1966). A statute which fails to draw this distinction impermissibly intrudes upon the freedoms guaranteed by the First and Fourteenth Amendments. It sweeps within its condemnation speech which our Constitution has immunized from governmental control. Cf. Yates v. United States, 354 U.S. 298 (1957); De Jonge v. Oregon, 299 U.S. 353 (1937); Stromberg v. California, 283 U.S. 359 (1931). See also United States v. Robel, 389 U.S. 258 (1967); Keyishian v. Board of Regents, 385 U.S. 589 (1967); Elfbrandt v. Russell, 384 U.S. 11 (1966); Aptheker v. Secretary of State, 378 U.S. 500 (1964); Baggett v. Bullitt, 377 U.S. 360 (1964).

Measured by this test, Ohio’s Criminal Syndicalism Act cannot be sustained. The Act punishes persons who “advocate or teach the duty, necessity, or propriety” of violence “as a means of accomplishing industrial or political reform”; or who publish or circulate or display any book or paper containing such advocacy; or who “justify” the commission of violent acts “with intent to exemplify, spread or advocate the propriety of the doctrines of criminal syndicalism”; or who “voluntarily assemble” with a group formed “to teach or advocate the doctrines of criminal syndicalism.” Neither the indictment nor the trial judge’s instructions to the jury in any way refined the statute’s bald definition of the crime [449] in terms of mere advocacy not distinguished from incitement to imminent lawless action. [note 3]

Accordingly, we are here confronted with a statute which, by its own words and as applied, purports to punish mere advocacy and to forbid, on pain of criminal punishment, assembly with others merely to advocate the described type of action. [note 4] Such a statute falls within the condemnation of the First and Fourteenth Amendments. The contrary teaching of Whitney v. California, supra, cannot be supported, and that decision is therefore overruled.

Reversed.

With that precedent in mind, I have to ask why it is permissible for a publicly funded university to have a speech code of any kind.

Favorite Posts: Academic Freedom and Freedom of Speech

It Made My Day

From Snopes.com:

Claim: Thief who tries to rob a gun shop is shot dead by those in the store.

Status: True.

On 3 February 1990, David Zaback attempted to hold up H&J Leather & Firearms Ltd., a gun shop located in Renton Highlands near Seattle, Washington. About 4:40 p.m. that day, he entered the crowded shop and announced his intention to rob it by Gun telling everyone to put their hands on the counter and saying if anybody moved, he’d kill them. He then spotted a uniformed policeman having coffee with Wendall Woodall, the shop’s owner. What happened next is less than clear in terms of who shot first, but there was an exchange of gunfire between David Zaback, the would-be robber; Timothy Lally, an 18-year veteran of the King County police force; and Danny Morris, one of the shop’s clerks.

Zaback, who had fired three times, was shot three times in the chest and once in the arm. He died in the hospital about four hours after the shooting. No one else was injured during the incident, and no charges were subsequently laid against Lally or Morris.

Lally and Morris should have been given a cut of the money taxpayers didn’t have to spend on Zaback’s trial, appeals, and imprisonment.

Reversed Causality

Jim VandeHei of The Washington Post — writing in the usual, no-liberal-bias mode of that “august” rag — complains:

Fortune 500 companies that invested millions of dollars in electing Republicans are emerging as the earliest beneficiaries of a government controlled by President Bush and the largest GOP House and Senate majority in a half century.

MBNA Corp., the credit card behemoth and fifth-largest contributor to Bush’s two presidential campaigns, is among those on the verge of prevailing in an eight-year fight to curtail personal bankruptcies. Exxon Mobil Corp. and others are close to winning the right to drill for oil in Alaska’s wildlife refuge, which they have tried to pass for better than a decade. Wal-Mart Stores Inc., another big contributor to Bush and the GOP, and other big companies recently won long-sought protections from class-action lawsuits.

Republicans have pursued such issues for much of the past decade, asserting that free market policies are the smartest way to grow the economy. But now it appears they finally have the legislative muscle to push some of their agenda through Congress and onto the desk of a president eager to sign pro-business measures into law. The chief reason is Bush’s victory in 2004 and GOP gains in Congress, especially in the Senate, where much of corporate America’s agenda has bogged down in recent years, according to Republicans and Democrats.

“These are not real high-profile, sexy issues like the war or Social Security, but these are issues that have huge economic consequences,” said Charles R. Black Jr., a GOP lobbyist and one of the president’s top fundraisers. “And there is more to come on that score.”

The implication, of course, is that Bush’s corporate supporters were buying favors. That’s not how it works. You support the candidate who’s most aligned with your interests, not because you can buy favors from that candidate but because you don’t have to buy favors from that candidate.

As for Bush’s “pro-business” bias, it’s a pro-growth, pro-jobs bias. But liberals wouldn’t understand that. It’s too complex for their allegedly nuanced minds to grasp. They’d rather have welfare and crime.

The McCain-Feingold Insurrection

I have joined it. See the sidebar.

(Thanks to Josh’s Weblog for the tip.)

Good News, Bad News for Free Speech

Many bloggers will like this rule being considered by the Federal Election Commission (via The Volokh Conspiracy):

No expenditure results where an individual, acting independently or as a volunteer, without receiving compensation, performs Internet activities using computer equipment and services that he or she personally owns for the purpose of influencing any Federal election, whether or not the individual’s activities are known to or coordinated with any candidate, authorized committee or party committee.

That’s the “good” news. The bad news it that such a rule might be required in the first place. Whatever happened to this quaint concept:

Congress shall make no law…abridging the freedom of speech…. [Amendment I, Constitution of the United States of America]

If it was good enough for little Jemmy Madison, it should be good enough for the intellectual pipsqueaks who now prowl the corridors of Congress.

Killing Free Speech in Order to Save It

UPDATED THRICE BELOW

We all know about McCain-Feingold. Now we have the slippery logic of Prof. Geoffrey R. Stone of the University of Chicago Law School. Stone is a colleague of Cass Sunstein, a fellow traveler on the road to thought control.

Stone is debating Eugene Volokh at Legal Affairs Debate Club, on the topic “Forget Free Speech?” Stone slides this immodest proposal into his rather slick “defense” of free speech:

I agree that private employers are different. Even in employment discrimination law, we recognize that it would be inappropriate for the law to intrude too deeply into personal relationships. Thus, small employers are exempt. Similarly, we don’t make it unlawful for a person to refuse to date a person of another race. Thus, the law shouldn’t concern itself with individuals who decide not to buy the Dixie Chicks’s records because they dislike their political views.

But the logic of this doesn’t extend to a decision, for example, by General Motors to refuse to employ people who oppose the war in Iraq. Large corporations have substantial market power, and I see no reason to allow them to leverage that market power in this way any more than we let them discriminate on the basis of religion….

To the point about using antidiscrimination laws to promote tolerance of people of other races, religious, and ethnicities, I would say the same about political differences. Isn’t that the view that Lee Bollinger championed as a primary function of the First Amendment itself? Certainly, a more “tolerant society,” a less polarized society, one in which citizens come to understand, in Jefferson’s words, that not “every difference of opinion is a difference of principle,” is something to which we should aspire. And, as for the Klansman, perhaps tolerating his presence in the workplace would be good both for him and for us. No?

So, let’s just take another big slice out of liberty and prosperity by placing yet another burden on the private sector, the burden of being an equal-viewpoint employer. Why should General Motors, regardless of its size, be required to operate under such constraints? General Motors ought to be able to hire persons whose performance will help the bottom line, and thus help society. If an employee says something that embarrasses General Motors and potentially hurts its bottom line, General Motors ought to be able to fire that person — no ifs, ands, or buts.

But in the world of Sunstein and Stone, we can — and must — legislate and regulate our way to a “tolerant society.” Hah! Notice how well it worked when forced busing was used to integrate schools?

Stone, slippery lawyer that he is, doesn’t give a hoot about Klansmen. What he really wants is to make it illegal for employers to fire anyone for saying anything that seems critical of government policy (Republican policy, in particular). When that’s done, he can take up the cudgels for the Dixie Chicks and go after radio stations that refuse to play their songs.

What Sunstein and Stone mean by “free speech” is “forced listening.” Reminds me of the brainwashing scene in the movie 1984. They’ll like the results as long as they get to play Big Brother.

UPDATE: Yep, Big Brother. Here’s Stone in a later installment of the debate:

Even if I concede arguendo that private discrimination on the basis of viewpoint need not be equated with private discrimination on the basis of race, religion, or gender, we have to be concerned about private discrimination that begins seriously to threaten the marketplace of ideas. The point isn’t that such private discrimination would be unconstitutional, but that the government should step in and prohibit such discrimination through legislation if it begins to warp public debate.

In other words, if I’m in control of government and I decide that “private discrimination on the basis of viewpoint” has threatened “the marketplace of ideas,” I should step in to prohibit such discrimination when, in my infallible judgment, it begins to “warp” public debate. I therefore decree the following:

  • An employer can’t fire anyone who makes a public statement critical of the employer.
  • A right-wing radio talk-show host who has a huge audience must give equal time to left-wing ideas.

What Stone and his ilk don’t seem to understand (or choose to ignore) is that government involvement (choosing sides) warps the public debate. For every employer who fires a critical employee and for every popular right-wing talk-show host there are legions of protestors and political opponents whose messages the mainstream media amplify, with gusto. That’s the marketplace of ideas in action. Or do Stone and his ilk favor the suppression of the mainstream media? I doubt it very much. They’re just looking for a pseudo-legal justification for the suppression of speech they don’t like.

What the marketplace of ideas needs is less government involvement, not more.

UPDATE II: Stone, in his most recent volley, adds this:

My argument does not meet any of the conditions for McCarthyism (unless you think I am being intentionally manipulative in order to score partisan political gain).

He said it.

UPDATE III: And Eugene Volokh nails him:

It does sound, though, like the definition of “McCarthyism” that’s being suggested is mighty convenient for its users….After all, under this definition exactly the same criticisms—with exactly the same level of substantive merit—would be “McCarthyism” when used by one side and quite proper when used by the other.

Cheney says that voting for Kerry would endanger the nation. That’s McCarthyism, because it comes from this bad administration. Nancy Pelosi says that voting for Bush would endanger the nation. That’s just fine, if you think Democrats are open-minded, unself-righteous (except, of course, when they’re harshly deriding the Bush Administration), attentive to separation of powers and the rule of law, interested in debate, and sophisticated and introspective, with complex views of faith and suitable appreciation for gray areas. Oh, and also respectful of international law and filibusters.

Such use of the term “McCarthyism,” which seems to presuppose what it’s trying to show—which is that one’s targets are bad people—isn’t terribly useful for sober analysis. Wouldn’t it have been more profitable to instead discuss, for instance, whether voting for Bush or Kerry would indeed endanger the nation? That was actually a pretty important question a few months ago.

As best I can tell, public debate about the Administration, the war, civil liberties, and the best ways to fight terrorism has been quite vibrant. If there’s a “substantial chilling effect on the willingness of individual citizens to criticize the government,” I haven’t noticed it. The 2004 Democratic election campaign, for instance, didn’t seem to be unduly obsequious to the Bush Administration. Nor do I see much evidence of “an exaggerated sense of fear in the public,” or even attempts to create such a fear. The world is a dangerous place and I have no reason to think that people are any more fearful of terrorism than they ought to be.

So I think free speech in America is pretty healthy. There are some exceptions; I have long, for instance, criticized hostile environment harassment law, a vague, broad, and viewpoint-based set of speech restrictions. Likewise, some media responses to supposedly unpatriotic speech have indeed been misplaced; Bill Maher, for example, got a bum deal. And, sure, many people in many places—government, universities, the media—are smug and closed-minded, and too often try to name-call people into submission. That ought to be fought. Still, things today are pretty good.

And tomorrow? No-one can tell for sure, but fortunately there are plenty of people and organizations who will fight future attempts at repression, whether from the left or from the right. Geof, I know you’ll be one of them, and I’m very glad about that.

In other words, if you really favor free speech, you favor it for everyone,* not just the lefties favored by Stone.
__________
* I make an exception for overtly traitorous speech, which I come to in a future post about legal absolutism.

Crime and Punishment

Crime, like charity, begins at home, and home is therefore the first line of defense against crime.

A second line of defense is necessary and — in these times — essential to the general welfare. That line of defense is justice, administered by the community through the state.

The linch-pin of justice is punishment by law. The operative word is “punishment” — not “correction” or rehabilitation.” Crime is not deterred or prevented by the promise of rehabilitation. (Who commits a crime in the hope or fear of being rehabilitated?)

Even though deterrence seems to work generally, it doesn’t always work. For sociopaths and psychopaths who are undeterred by the concept of punishment, the answer is punishment of a kind that will ensure that they can no longer do harm to others: life in prison or death at the hands of the state.

There are those who equate death at the hands of the state with murder. This is nonsense and sentimental clap-trap on a par with counseling unilateral disarmament or pacifism in the face of an invading horde. By such reasoning, we would not have (finally) risen to the task of removing Herr Hitler from the scene. How many sob-sisters (of whatever gender) would wish that we had stayed on the sidelines while Hitler applied the “final solution”?

Justice serves civilization and social solidarity. First, of course, it deters and prevents wrong-doing. Second, it meets the deep, common need for catharsis through vengeance, while protecting the innocent (and all of us) by replacing mob rule with due process of law.

Justice — to serve its purposes — must be swift, sure, and hard. That is, it must work and be seen to work, by the just and unjust alike.

Related posts:
Does Capital Punishment Deter Homicide?
Libertarian Twaddle about the Death Penalty
Abortion and Crime
Saving the Innocent?
Saving the Innocent?: Part II
More on Abortion and Crime
More Punishment Means Less Crime
More About Crime and Punishment
More Punishment Means Less Crime: A Footnote
Clear Thinking about the Death Penalty
Let the Punishment Fit the Crime
Another Argument for the Death Penalty
Less Punishment Means More Crime
Crime, Explained

Protecting Your Civil Liberties

Judge Won’t Order Schiavo Tube Reinserted

The ACLU, of course, applauds the decision:

Howard Simon, executive director of the American Civil Liberties Union (news – web sites) of Florida, praised the ruling: “What this judge did is protect the freedom of people to make their own end-of-life decisions without the intrusion of politicians.”

But Terri Schiavo didn’t make her own “end-of-life” decision. It’s her putative husband’s decision, not hers.

UPDATE: Timing is everything. Terri Schiavo suffered the heart attack that brought on her “persistent vegitative state” in 1990. She received “continuing neurological testing, and regular and aggressive speech/occupational therapy through 1994.” Why did Michael Schiavo wait until May 1998 before petitioning a court for the removal of his wife’s feeding tube?

And on what basis did Judge George W. Greer in February 2000 decide that Terri Schiavo would have chosen to have her feeding tube removed? He made a god-like decision to kill Terri Schiavo, pursuant to Michael Schiavo’s petition. His decision was predicated not on Terri Schiavo’s expressed wishes — which are undocumented — but on his view that Terri Schiavo cannot be healed.

A month later, as if to prove himself right, Judge Greer refused to allow “swallowing tests” on Terri Schiavo. Then, in April 2001, he refused to entertain testimony from a former girlfriend of Michael Schiavo that he had lied about Terri Schiavo’s wishes. Why? Because the testimony would have been “untimely.” Judge Greer had already made up his mind to kill Terri Schiavo, you see.

UPDATE II: Donald Sensing (One Hand Clapping) has a post about Judge Andrew Napolitano’s take on the case:

[Napolitano] said that the relevant transcripts, which he has examined, reveal that the Florida courts ruled that it was Terri’s actual desire, based on testimony by Michael Schiavo and others, all of whom were cross-examined, that she had legitimately expressed a desire not to be kept alive in the medical condition she came into….

Napolitano didn’t discuss the fact the Florida law allowed for acceptance in this case of hearsay testimony that Terri had expressed a desire not to be kept alive in her present condition.

Hearsay testimony. How convenient. The next steps down this slippery slope will go something like this:

1. A family will petition a court to end the life of an aged parent who is sentient but in declining health.

2. The family will produce as evidence for their petition a sociological study on a par with Kenneth Clark’s phony “doll test,” on which the Supreme Court relied in Brown v. Board of Education (1954). The study will “prove” that persons over the age of 80 have a death-wish.

3. A court will approve the petition.

4. The court’s decision will become a controlling precedent.

5. Say “goodnight,” Gracie.

FINAL UPDATE: Yankee from Mississippi, in a post titled “This Is All I’ll Say,” says it best:

I think that with the current structure of the law, there is no legitimate way to save [Terri Schiavo’s] life. And by legitimate, I mean any way that would not seriously call into question the competency and institutional credibility of our justice system. Whether or not this should be the law is, of course, an entirely different matter. Perhaps once everyone is done fighting for and over this poor woman, they will get down to actually solving the problem, one way or the other.

The way to solve the problem, in my opinion, is to enact a “presumption of life” amendment to the U.S. Constitution. That amendment would require documentary evidence of a person’s wish to die when the alternative is life on a feeding tube or respirator. The amendment would authorize Congress to specify, by law, a simple and legally binding testatmentary form that could be executed in the presence of impartial witnesses. A properly executed form would be uncontestable.

My Kind of Justice

UPDATED BELOW

An Iranian serial killer who murdered at least 20 children has been executed in front a large crowd of spectators. Eugene Volokh goes along with it. So do I. Coincidentally, a friend sent this today:

LOL, as they say.

UPDATE: Volokh recants. I don’t. He and his conscience, Mark Kleiman, simply assume that we’re stuck with the sorry state to which criminal justice has descended in this country. But that’s giving up on the game before it has started. It’s not possible to return to swift, certain, and harsh justice — that is, to justice that punishes and deters crime — without trying to do so.

Bankruptcy Reform Update

I’ve updated an earlier post about the bankruptcy-reform bill that’s making its way through Congress. An e-mail from a reader prompted the update.

Oops. I remembered a point I meant to make in the first update, so now there’s a second update.

And a third one.

A Quasi-Jacksonian Solution

UPDATED BELOW

This:

The Pentagon is seeking to enlist help from the State Department and other agencies in a plan to cut by more than half the population at its detention facility in Guantánamo Bay, Cuba, in part by transferring hundreds of suspected terrorists to prisons in Saudi Arabia, Afghanistan and Yemen, according to senior administration officials….

The White House first embraced using Guantánamo as a holding place for terrorism suspects taken in Afghanistan, in part because the base was seen as beyond the jurisdiction of United States law. But recent court rulings have held that prisoners there may challenge their detentions in federal court.

Indeed, the Pentagon has halted, for the last six months, the flow of new terrorism suspects into the prison, Defense Department officials said. In January, a senior American official said in an interview that most prisoners at Guantánamo no longer had any intelligence value and were not being regularly interrogated.

The proposed transfers would represent a major acceleration of Pentagon efforts that have transferred 65 prisoners from Guantánamo to foreign countries.

Reminds me of this:

On March 3, 1832, Chief Justice Marshall handed down the unanimous opinion of the Court. The Cherokee Nation was sovereign. Georgia law no longer applied to the Cherokee. Justice Story wrote “The Court has done its duty. Now let the Nation do theirs.” At some point, Andrew Jackson supposedly said “Marshall made the ruling, let him enforce it.”

It seems that the White House has taken my advice, after a fashion.

UPDATE:

Judges are still getting into the act:

A federal judge on Saturday prohibited the government from transferring 13 Yemeni prisoners from the military’s detention facility at Guantánamo Bay, Cuba, until a hearing could be held on their lawyers’ fear that they might face torture if sent to another country.

With results like this:

Authorities have begun legal action against two Frenchmen for alleged terrorist-related activity following their release from the U.S. military prison at Guantanamo Bay, Cuba, judicial officials said Saturday.

The Bankruptcy Bill in Perspective

UPDATED THRICE, BELOW

The bankruptcy-reform bill, as described in an article by Stephen Laboton of The New York Times:

The Senate assured final passage of the first major overhaul of the nation’s bankruptcy laws in 27 years on Tuesday….

The bill would disqualify many families from taking advantage of the more generous provisions of the current bankruptcy code that permit them to extinguish their debts for a “fresh start.” It would also impose significant new costs on those seeking bankruptcy protection and give lenders and businesses new legal tools for recovering debts.

…The senators…voted 69 to 31 to limit debate and cut off any effort to kill the legislation by filibuster.

Final passage of the measure is now an inevitable formality.

Good.

Of course, there’s the usual hand-wringing from the usual sources:

“This bankruptcy bill is mean-spirited and unfair,” said Senator Edward M. Kennedy, Democrat of Massachusetts. “In anything like its present form, it should and will be an embarrassment to anyone who votes for it. It’s a bonanza for the credit card companies, which made $30 billion in profits last year, and a nightmare for the poorest of the poor and the weakest of the weak.”

Hmmm….In other words, it’s okay for some people to rack up credit-card debt and then dishonor their obligation to repay that debt. (Think of it as a financial Chappaquiddick.) The result, of course, is that other people wind up subsidizing the deadbeats through higher prices and interest rates.

And how does Teddy K. know how much profit credit-card companies ought to make? The market should determine that, not Senator Stumblebum. If the profits of credit-card companies are “too high” it’s only because banking regulations restrict competition. But Teddy and his ilk never saw a regulation they didn’t like. Teddy has himself to blame for those “high” profits that he finds so offensive.

The bottom line: Bankruptcy reform will make goods, services, and credit somewhat cheaper for responsible citizens. And it will make responsible citizens out of many who otherwise would have racked up too much debt, knowing there was an easy way out it. Seems like a win-win situation to me.

UPDATE: And if you think otherwise, you’re just another addict of the regulatory-welfare state. As I have written:

Unless Americans become aware of the extremely high and largely hidden cost of the regulatory-welfare state, they will remain addicted to it. For reliance on government is an addictive drug — and a very expensive one. We swallow each dose in the hope that it will make us secure, and when that dose doesn’t make us secure we swallow another dose, in the hope that that dose will make us secure. And on and on. In the end, we are left with nothing but a costly addiction to government that impairs our liberty therefore ruins our economic health.

What Americans have failed to understand, is that there is less risk of coming to harm in a free-market economy — where individuals have an incentive to take care of themselves — than there is of coming to harm in the regulatory-welfare state. (See my series of posts on “Fear of the Free Market,” in three parts; my post on “Free Market Healthcare“; and my post on “Why Class Warfare Is Bad for Everyone.”) Free people do not stay mired in poverty and tend not to repeat their mistakes, if they are allowed to learn from those mistakes. (See my posts about income inequality.)

The price of addiction (from the same post):

  • Real GDP (in year 2000 dollars) was about $10.7 trillion in 2004.
  • If government had grown no more meddlesome after 1906, real GDP might have been $18.7 trillion (see first chart above).
  • That is, real GDP per American would have been about $63,000 (in year 2000 dollars) instead of $36,000.
  • That’s a deadweight loss to the average American of more than 40 percent of the income he or she might have enjoyed, absent the regulatory-welfare state.
  • That loss is in addition to the 40-50 percent of current output which government drains from the productive sectors of the economy.

And that is the price of privilege — of ceding liberty piecemeal in the mistaken belief that helping this interest group or imposing that regulation will do little harm to the general welfare, and might even increase it.

Those who favor the regulatory-welfare state — in any of its manifestations — effectively favor the ill fortune of all their fellow citizens. That is either grossly immoral, grossly ignorant, or grossly stupid — take your pick.

UPDATE II: Those who believe the canard that medical bills are a major cause of bankruptcy should read this post by Gail Heriot at The Right Coast, and follow the links. Even if medical bills were a major cause of bankruptcy (which they’re not), the cause of high medical costs in the United States is an artifact of the regulatory-welfare state:

  • High demand is fuelled by taxpayer-subsidized healthcare facilities, laws mandating access to emergency rooms, and government “insurance” programs (e.g., Medicare and Medicaid). “Free” care and subsidized premiums discourage self-rationing.
  • High demand is further fuelled by tax laws that encourage employers to offer subsidized health-insurance plans, many of which must render certain legally mandated benefits. Self-rationing is discouraged by the low premiums and co-payments that result from employer subsidies.
  • On the supply side, there’s restrictive licensing (favored by the various “unions”: doctors, hospitals, etc.) and slow FDA approval of new drugs.

Artificially high demand plus artificially low supply equals higher healthcare costs for all, including those persons who actually need healthcare.

The solution to the minuscule problem of bankruptcies caused by medical bills — and to the real problem of high medical costs — isn’t laxer bankruptcy laws, it’s less government interference in health care.

UPDATE III: The inestimable David Broder, reliable purveyor of leftish conventional wisdom, doesn’t like the bill (my comments bolded in brackets):

This “reform,” which parades as an effort to stop folks from spending lavishly on themselves and then stiffing their creditors by filing for bankruptcy protection, is a perfect illustration of how the political money system tilts the law against average Americans….[It is an effort to discourage deadbeat-itis, whatever else it may be. You can’t take that away, David. As for the “political money system,” money always talks; the answer to “money in politics” isn’t the impossible dream of less money, it’s less government power.]

Few policy battles draw enough public and press interest for the legislators to feel real scrutiny — Social Security being a current example. Most are in a netherworld, where media coverage is cursory and interest groups’ pressure determines the outcome. That’s how bankruptcy reform made it through the Senate, and why it will soon pass the House and be signed into law by President Bush. [Oh, do you really think so? Smacks of sour grapes to me. Lots of things get passed by Congress without a lot of media coverage. You win some, you lose some.]

The recent decade’s rise in the number of bankruptcy cases has been dramatic, and it is not difficult to find cases of abuse. But most bankruptcy petitions are filed by people with real financial problems, often the result of family illness, divorce or loss of jobs. [But “they hired the money,” as Silent Cal used to say. Personal responsibility implies prudent planning.] This bill will make it harder for everyone — chiselers and innocent victims alike — to get a clean start on their future without the overhang of mounting interest payments on unpaid credit cards and other debt…[As I said above: good. There’ll be one less moral hazard on the golf course of life.]

[W]hen an amendment was offered to restrict so-called “asset protection trusts,” used by wealthy individuals to shelter their portfolios from creditors, it was rejected. Five states — Alaska, Delaware, Nevada, Rhode Island and Utah — have changed their laws to let people who live anywhere in the country establish trusts of unlimited size that cannot be reached by federal bankruptcy proceedings. The amendment would have limited this “millionaires’ loophole” to $125,000.

But Sen. Charles Grassley of Iowa, the bill’s chief sponsor, intent on blocking any amendment that might prove indigestible in the House, said, “This is an issue that just needs more time for us to determine whether there is an abuse that needs to be corrected.” With no more debate, it was rejected.

These amendments came from the liberal camp — senators such as Edward Kennedy, Russ Feingold, Richard Durbin and Charles Schumer — and were easily dismissed by the Republican majority. Even more instructive was what happened when a conservative, Republican Sen. John Cornyn of Texas, tried to put a little balance into the bill.

As attorney general of Texas, Cornyn said the Enron bankruptcy case “opened my eyes to a very real abuse in the current bankruptcy system,” the loophole that allows corporations to go “judge-shopping” for jurisdictions with permissive standards. Enron, which had 7,500 employees in Houston, filed for bankruptcy in New York, where it had 57 workers, because New York, along with Delaware, is known as being lenient on big business.

Congress recently passed a law restricting plaintiffs in class-action suits from judge-shopping in the state courts, and Cornyn argued that it should also require corporate bankruptcy cases to be filed in their principal place of business. Citing cases of Polaroid, K-Mart, WorldCom and Enron, he said the judge-shopping loophole “serves to unfairly enable corporate debtors to evade their financial commitments.”

No one rose to dispute Cornyn. So what happened? He withdrew the amendment, without a vote, “out of respect to the managers of this bill who say that amendments to this bill would endanger its ultimate passage.” [I agree that no one should get a special break when it comes to honoring debt. Absolutely, no question. But let’s take half a loaf rather than none. The present version of bankruptcy reform may not be perfect, but it’s a step in the right direction. The alternative of no reform is worse, unless you’re a class-baiting liberal like Broder.]

Treasonous Blogging?

Tom W. Bell of Agoraphilia posts about and links to an article he has submitted to several law reviews. The title is of the article is “Treason, Technology, and Freedom of Expression.” Here are some excerpts of the abstract and concluding section:

The power to punish treason against the U.S. conflicts with the First Amendment freedoms of speech and of the press. Far from a question of mere theory, that conflict threatens to chill public dissent to the War on Terrorism….After World War II, the United States won several prosecutions against citizens who had engaged in propaganda on behalf of the Axis powers. Today, critics of the War on Terrorism likewise face accusations of treason. Under the law of treasonous expression developed following World War II, those accusations could credibly support prosecutions. Any such prosecutions could win convictions, moreover, unless courts narrow the law of treasonous expression to satisfy the First Amendment….

In terms of abstract doctrine, the law of treason condemns anyone who owes allegiance to the U.S., who adheres to U.S. enemies, and who gives them aid and comfort by an overt act to which two witnesses testify. As courts have applied that doctrine, however, it threatens any citizen or resident of the U.S. who publicly expresses disloyal sentiments. The Internet has made it cheap, easy, and dangerous to publish such sentiments….Even if no prosecutions for treason arise, the alarmingly broad yet ill-defined reach of the law of treason threatens to unconstitutionally chill innocent dissent….

As courts have interpreted it, the law of treason allows for the punishment of an indeterminate but wide range of disloyal public expressions that help enemies of the U.S. That interpretation both subverts the original meaning of the constitution’s treason clause and violates the strict scrutiny test applied to content-based restrictions on expression. To save the law from unconstitutionality, courts should in cases of treasonous expression interpret the “adhering to [U.S.] enemies” element of treason as nothing broader than “being employed by enemies of the U.S.” Perhaps courts should demand a still less restrictive variation on the law of treason. Perhaps they should do away with the law of treasonous expression altogether. At the least, though, they should limit liability for treasonous expression to defendants employed by enemies of the U.S. Anything broader than that would, by wounding our First Amendment rights, do far more to harm the U.S. than disloyal expressions would.

I disagree with the compromise position Bell offers in the final sentence. If it’s treason, it’s treason. An unpaid traitor can do just as much harm to the nation as can a paid traitor.

It would be better to do away with the law of treasonous expression altogether than to draw an arbitrary line between paid and unpaid traitors. If a person’s treachery goes no further than expressions of hatred for America or sympathy with America’s enemies, let that person suffer the consequences in the forum of public opinion.

We bloggers are already facing enough trouble, given the strong possibility that our freedom of expression may be throttled by the strict application of the McCain-Feingold Act. The last thing that we (bloggers) need is an inquisition into our views about the War on Terrorism.

I do detest the extremists of the left and right who portray America as the villain of the piece. But I defend their right to do so — as long as they aren’t doing it on my dime.

Here We Go Again

Back on September 18, in “Time to Regulate the Blogosphere?,” I wrote that the thought of regulating the blogosphere

must have crossed the minds of some highly placed Democrat sympathizers in the “mainstream” media when the blogosphere started shredding the threadbare remnants of Dan Rather’s reputation for honest reporting. But the blogosphere is protected by the First Amendment, isn’t it?

There’s stark evidence that the blogosphere can be regulated, if the feds want to do it. Look at the airwaves, which the feds seized long ago, and which the feds censor by intimidation. Look at the ever-tightening federal control of political speech, which has brought us to McCain-Feingold. It’s all in the name of protecting us, of course.

I followed that with a post on October 13, in which I quoted from an AP story (link no longer works):

FEC May Regulate Web Political Activity

Oct 13, 7:55 AM (ET)

By SHARON THEIMER

WASHINGTON (AP) – With political fund raising, campaign advertising and organizing taking place in full swing over the Internet, it may just be a matter of time before the Federal Election Commission joins the action. Well, that time may be now.

A recent federal court ruling says the FEC must extend some of the nation’s new campaign finance and spending limits to political activity on the Internet.

Long reluctant to step into online political activity, the agency is considering whether to appeal.

But vice chairwoman Ellen Weintraub said the Internet may prove to be an unavoidable area for the six-member commission, regardless of what happens with the ruling.

“I don’t think anybody here wants to impede the free flow of information over the Internet,” Weintraub said. “The question then is, where do you draw the line?”…

LGF (via Freespace) now points to this (from CNET News.com):

The coming crackdown on blogging

March 3, 2005, 4:00 AM PT
By Declan McCullagh
Staff Writer, CNET News.com

Bradley Smith says that the freewheeling days of political blogging and online punditry are over.

In just a few months, he warns, bloggers and news organizations could risk the wrath of the federal government if they improperly link to a campaign’s Web site. Even forwarding a political candidate’s press release to a mailing list, depending on the details, could be punished by fines.

Smith should know. He’s one of the six commissioners at the Federal Election Commission, which is beginning the perilous process of extending a controversial 2002 campaign finance law to the Internet.

In 2002, the FEC exempted the Internet by a 4-2 vote, but U.S. District Judge Colleen Kollar-Kotelly last fall overturned that decision. “The commission’s exclusion of Internet communications from the coordinated communications regulation severely undermines” the campaign finance law’s purposes, Kollar-Kotelly wrote.

Smith and the other two Republican commissioners wanted to appeal the Internet-related sections. But because they couldn’t get the three Democrats to go along with them, what Smith describes as a “bizarre” regulatory process now is under way.

CNET News.com spoke with Smith about the Bipartisan Campaign Reform Act of 2002, better known as the McCain-Feingold law, and its forthcoming extrusion onto the Internet.

Q: What rules will apply to the Internet that did not before?
A: …Do we give bloggers the press exemption? If we don’t give bloggers the press exemption, we have the question of, do we extend this to online-only journals like CNET?

How can the government place a value on a blog that praises some politician?
…The FEC did an advisory opinion in the late 1990s (in the Leo Smith case) that I don’t think we’d hold to today, saying that if you owned a computer, you’d have to calculate what percentage of the computer cost and electricity went to political advocacy.

It seems absurd, but that’s what the commission did. And that’s the direction Judge Kollar-Kotelly would have us move in….

How about a hyperlink? Is it worth a penny, or a dollar, to a campaign?
I don’t know. But I’ll tell you this. One thing the commission has argued over, debated, wrestled with, is how to value assistance to a campaign….

Then what’s the real impact of the judge’s decision?
The judge’s decision is in no way limited to ads. She says that any coordinated activity over the Internet would need to be regulated, as a minimum….

(Editor’s note: federal law limits the press exemption to a “broadcasting station, newspaper, magazine or other periodical publication.” )

How do you see this playing out?
There’s sensitivity in the commission on this. But remember the commission’s decision to exempt the Internet only passed by a 4-2 vote.

This time, we couldn’t muster enough votes to appeal the judge’s decision. We appealed parts of her decision, but there were only three votes to appeal the Internet part (and we needed four). There seem to be at least three commissioners who like this.

Then this is a partisan issue?
Yes, it is at this time. But I always point out that partisan splits tend to reflect ideology rather than party. I don’t think the Democratic commissioners are sitting around saying that the Internet is working to the advantage of the Republicans.

One of the reasons it’s a good time to (fix this) now is you don’t know who’s benefiting. Both the Democrats and Republicans used the Internet very effectively in the last campaign.

What would you like to see happen?
I’d like someone to say that unpaid activity over the Internet is not an expenditure or contribution, or at least activity done by regular Internet journals, to cover sites like CNET, Slate and Salon. Otherwise, it’s very likely that the Internet is going to be regulated, and the FEC and Congress will be inundated with e-mails saying, “How dare you do this!”

What happens next?
It’s going to be a battle, and if nobody in Congress is willing to stand up and say, “Keep your hands off of this, and we’ll change the statute to make it clear,” then I think grassroots Internet activity is in danger….

Senators McCain and Feingold have argued that we have to regulate the Internet, that we have to regulate e-mail. They sued us in court over this and they won.

If Congress doesn’t change the law, what kind of activities will the FEC have to target?
We’re talking about any decision by an individual to put a link (to a political candidate) on their home page, set up a blog, send out mass e-mails, any kind of activity that can be done on the Internet….

Why wouldn’t the news exemption cover bloggers and online media?
Because the statute refers to periodicals or broadcast, and it’s not clear the Internet is either of those. Second, because there’s no standard for being a blogger, anyone can claim to be one, and we’re back to the deregulated Internet that the judge objected to. Also I think some of my colleagues on the commission would be uncomfortable with that kind of blanket exemption….

Imagine that: unregulated political speech. What a concept. Perhaps we need a constitutional amendment to protect it. We could even call it the First Amendment, because of its importance.

God damn McCain, Feingold, Congress, the President, and the U.S. Supreme Court! (Oops, am I allowed to say that?)

Favorite Posts: Academic Freedom and Freedom of Speech