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civil liberties Archive

Friday

20

December 2013

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COMMENTS

A&E/Duck Dynasty Fight Demonstrates How the Marketplace of Ideas Has Devolved

Written by , Posted in Culture & Society

In perhaps one of the most boneheaded business decisions ever made, A&E decided to sabotage its rating juggernaut, Duck Dynasty, in a fit of PC rage over comments from Phil Robertson about homosexuality in an article by GQ. Robertson, in a manner one might expect from a plainspoken outdoorsman from Louisiana, rather crudely expressed his personal inability to relate to same sex attraction through comparison of the various sexual organs involved. While both logically unconvincing of anything and potentially distasteful to the prudish, the statement hardly represented an attack on anyone.

He also he expressed the rather orthodox Christian view that homosexuality is a sin. More specifically, he listed homosexuality among a host of other sins he sees as plaguing the nation, but since adulterers have no grievance group, homosexuality is the only one we’ve heard a big stink about. He also prefaced the discussion with this:

“You put in your article that the Robertson family really believes strongly that if the human race loved each other and they loved God, we would just be better off. We ought to just be repentant, turn to God, and let’s get on with it, and everything will turn around.”

And then he followed up with:

“We never, ever judge someone on who’s going to heaven, hell. That’s the Almighty’s job.”

And in a separate statement he added:

“However, I would never treat anyone with disrespect just because they are different from me. We are all created by the Almighty and like Him, I love all of humanity. We would all be better off if we loved God and loved each other.”

How bigoted and closed-minded of him. Oh wait, no, I’m confusing him with those who think silencing others is the best response to hearing anything disagreeable.

I don’t bring up Phil Robertson’s views because I necessarily share them. Some I do and some I don’t, but I’m not starting with the same set of principles as Phil Robertson, so I frequently reach different conclusions. What I did want to talk about, however, was the entirely inappropriate response to his expression from both sides.

First, the attacks on Phil Robertson seem to align with a troubling trend regarding the manner in which the modern left is engaging in political discourse. Which is to say, they aren’t. Rather than debate opponents, they ostracize them. They turn any expression of opposing views into de facto evidence of some moral deficiency (or, if they’re in academia, into evidence of a mental disorder) on part of the speaker that absolves anyone else of the need to hear, process or think critically about what they have to say. Even the mere act of organizing to express views and advance common interests is evidence of some nefarious conspiracy or shady behavior.

These are sad developments for American political discourse that undermine the functioning of our republican system. But the response from the right doesn’t always hit the mark, either.

In defending Phil Robertson from A&E’s boneheaded decision, some – including politicians like Sarah Palin and Bobby Jindal – have cited the First Amendment. This is a red herring that serves only to confuse the issue. The First Amendment protects the right of the people to speak without infringement by government. It says nothing of how other private citizens can respond to speech. If anything, the First Amendment is firmly on A&E’s side, as it protects the right of association, which includes the right to not associate, at their pleasure.

Unfortunately, the right of association is not universally supported by either the courts or the left, which while cheering A&E’s self-destructive overreaction, also oppose the right of other businesses to choose their own clientèle, so long as those clientèle belong to a PC-approved victim group (hint: that excludes Christians). Nevertheless, it is the freedom to associate that matters here. A&E ought to be able to fire whomever they please to advance the chosen vision of their brand.

Part of the problem is linguistic. “Free speech” has evolved to refer to more than just the First Amendment right to speak without government interference, but also the general public desire to encourage a marketplace of ideas through respect for different points of view. Some of then erroneously used the First Amendment as a stand-in for the latter definition of “free speech,” when it really only applies to the former. Thus confusion is unfortunate, as it undermines their case.

Dragging the First Amendment into the discussion of A&E decision to punish Phil Robertson for expressing a widely held religious view that singled out no person or group of people for proposed harm allows those who freely cheer the silencing of opponents to correctly point out that the government did not silence Robertson (indeed, no one did), and therefore A&E is in the right. But that’s not the issue. The issue should be our troubling and growing acceptance of a culture of intimidation that not only seeks to shout down those who utter views not considered politically correct, but which actively seeks to bring them personal harm in retaliation.

The First Amendment itself may not be implicated by A&E’s suspension of Robertson, or with the groups which frequently call for similar responses in other cases, but the principles and desire to promote a healthy and robust civic and political culture which led to the amendment’s inclusion in the Bill of Rights are at the very center of the matter.

Tuesday

11

December 2012

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COMMENTS

Reuters Doesn’t Understand What a Right Is

Written by , Posted in Labor Unions

For the title of dishonest headline of the day I submit this gem from Reuters: “Michigan votes to restrict union rights.”

And how did Michigan “restrict union rights”? By telling people they don’t have to join a union if they don’t want to?

In reality, what Michigan’s new Right to Work law does is enhance individual rights – in particular the rights to earn a living and free association, which both protects our right to associate with others and our right not to associate with others however we may see fit. The law ends the long-standing political handout to unions of forced membership by protecting true individual rights.

Unions should be allowed to exist in a free society just like any other voluntary group, but they should have to earn their membership by providing a worthwhile service, not through forced conscription. The legal system should not weight the system in their favor as it has done, and correcting that distortion is not a “restriction” on union rights, as the Reuters spinmeisters would have us believe.

Now that unions will have to actually work to get new members and keep their existing ones, they might be more accountable and actually spend more than just a tiny share of their dues on representing their members – the supposed reason unions exist – rather than primarily on cushy union salaries and lining the pockets of politicians.

Sunday

8

July 2012

0

COMMENTS

Overgovernment: Sad Feet Edition

Written by , Posted in The Courts, Criminal Justice & Tort, The Nanny State & A Regulated Society

The latest edition of Overgovernment comes from, big surprise, the People’s Republic of Michael Bloombergistan New York, where dancing is a criminal offense:

It was nearly midnight when Stern and Hess, a film-industry prop master, headed home last July from Jazz at Lincoln Center’s Midsummer Night’s Swing. As they waited for the train, a musician started playing steel drums on the nearly empty platform and Stern and Hess began to feel the beat.

“We were doing the Charleston,” Stern said. That’s when two police officers approached and pulled a “Footloose.”

“They said, ‘What are you doing?’ and we said, ‘We’re dancing,’ ” she recalled. “And they said, ‘You can’t do that on the platform.’ ”

…When Hess began trying to film the encounter, things got ugly, Stern said.

“We brought out the camera, and that’s when they called backup,” she said. “That’s when eight ninja cops came from out of nowhere.”

Hess was allegedly tackled to the platform floor, and cuffs were slapped on both of them. The initial charge, according to Stern, was disorderly conduct for “impeding the flow of traffic.”

“There was nobody on the platform. There were, like, three people,” she said.

The charges, including resisting arrest, were later dropped. The couple has filed a Manhattan federal court suit against the city for unspecified damages.

“If you are surrounded by good musicians, that’s going to make you want to dance,” Stern said. “The musician who is playing is legal, but . . . we’re illegal?”

After you have consumed your government allowed allotment of sugary soda, you may only slowly shuffle back to your domicile of origin. Remember, Nanny Bloomberg is watching.

Thursday

16

September 2010

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COMMENTS

Another IJ Challenge To Licensing Laws

Written by , Posted in The Nanny State & A Regulated Society

The Institute for Justice does a great job challenging licensing laws, which are an illegal interference on the part of the government on a person’s right to earn a living in the profession of their choice, and the right of citizens to utilize the services of anyone they judge to be competent.

Their latest work involves a couple in D.C. who are prohibited by law from giving tours of the city because they do not have a license.

As I probably made clear already, I support the elimination of all such laws. But I do have one slight quibble with this case.  The video gives the impression that IJ is arguing this case on first amendment grounds (I haven’t looked into it to confirm).  On the one hand, I understand perfectly this choice from a legal point of view.  It likely gives them the strongest chance of success.  But I can’t shake my concern at the impression it gives to viewers.  Specifically, that it’s ok for government to protect business cartels through licensing, just so long as the practice of that business does not involve expression or first amendment issues.

In the video, for instance, the narrator says that “In America, you’re not supposed to need the government’s permission to speak.”  This is true, but it’s needlessly particular. In America, you’re not supposed to need the government’s permission to engage in any trade. Too many people have forgotten this (particularly in the political classes), so I wish this video did a little bit more to emphasis that, even as I understand perfectly well why the legal strategy might focus on the first amendment angle.

Tuesday

14

September 2010

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COMMENTS

Right Ruling, Wrong Reason

Written by , Posted in The Courts, Criminal Justice & Tort

The Ninth Circuit recently struck down a local ordinance that banned tattoo parlors within the city of Hermosa Beach, California.

In Anderson v. Hermosa Beach, decided September 9, the panel struck down a local ordinance that basically imposed a total ban on tattoo parlors within the city of Hermosa Beach, California.  Municipal Code section 17.06.070 provides zoning for a wide variety of businesses, but not these.  So in Hermosa Beach, you could operate an “adult” business, gun shop, or fortune teller (or, ideally, some combination of all three), but you couldn’t run a tattoo parlor.

The plaintiff owns a tattoo parlor in Los Angeles and wanted to open one in Hermosa Beach, but his request for a permit was denied.  He sued, arguing that the ban violated the First Amendment.  The district court ruled that tattooing was not protected expression, at least on the part of the tattooer, largely because the tattooee decides what he or she wants on his or her body.  That court therefore applied the “rational basis” test, and that meant Anderson lost.

On appeal, the Ninth Circuit said its first task was “to determine whether tattooing is (1) purely expressive activity or (2) conduct that merely contains an expressive component.”  In other words, is it like writing, which always expresses something, or more like burning a draft card, which might express something (e.g. I don’t want to get shot) or might not (if you are just trying to start a fire?).  The court found there was no dispute that a tattoo itself is protected “speech” even if it doesn’t consist of words.  Disagreeing with other courts, it then held that the process of tattooing someone must also be protected, because you can’t separate the process from the tattoo itself.

What about all those businesses that aren’t expressive? Are they not worth protection? The fact that the First Amendment has to be used here just goes to show how far we’ve fallen in the protection of basic economic rights. Everyone has a right to pursue an honest living, and to engage in trade of mutual consent. That is why this ban should have been struck down. Unfortunately, the courts long ago decided that economic liberties do not deserve the same level of protection as other rights thanks to the infamous footnote four. Hence why they had to bend over backwards and use the First Amendment in such a manner.

The outcome of this case was right, but the reasoning would not need to be so complicated if the courts would simply recognize economic liberties once again.

Tuesday

14

July 2009

0

COMMENTS

Whatever Happened To Property Rights?

Written by , Posted in The Courts, Criminal Justice & Tort

The title is, quite obviously, rhetorical.  I know what happened to property rights.  FDR and the Progressives wrote them right out of the constitution without the need for so much as a single amendment.  Decisions like this just always drive home the loss:

Pharmacists are obliged to dispense the Plan B pill, even if they are personally opposed to the “morning after” contraceptive on religious grounds, a federal appeals court ruled Wednesday.

In a case that could affect policy across the western U.S., a supermarket pharmacy owner in Olympia, Wash., failed in a bid to block 2007 regulations that required all Washington pharmacies to stock and dispense the pills.

Family-owned Ralph’s Thriftway and two pharmacists employed elsewhere sued Washington state officials over the requirement. The plaintiffs asserted that their Christian beliefs prevented them from dispensing the pills, which can prevent implantation of a recently fertilized egg. They said that the new regulations would force them to choose between keeping their jobs and heeding their religious objections to a medication they regard as a form of abortion.

…Although the courts have yet to pronounce judgment on other aspects of the lawsuit, the unanimous ruling on the free-exercise clause could portend further judgments, as the case moves forward, that a patient’s right to timely medication supersedes a pharmacist’s personal convictions.

Of course someone shouldn’t be forced to sell something in their store that they find violates their religious beliefs.  That, however, misses the point.  They shouldn’t have to sell something in their store that they don’t want to sell, no matter the reason.  That liberty is a simple extension of one of our most fundamental human and natural rights: the right to dispose of our property (which includes our bodies, among other things) as we see fit.

There is, on the other hand, no individual right to walk into any given store (pharmacy) and find a specific product (Plan B pill).  Nor is there any right to “timely medication,” whatever that means.  “Rights” such as those, which place positive burdens on others, are not rights at all.

Monday

6

July 2009

0

COMMENTS

Are We LoJacking Ourselves With Our Cell Phones?

Written by , Posted in Liberty & Limited Government

An article in the New York Times discusses police use of cell phone data.  At issue is the ability of many police departments to track the movements of individual users without ever obtaining a warrant.

..The frequency and ease with which law enforcement agencies access cellphone data to track people is difficult to assess. Civil liberties groups recently obtained data from the Justice Department through a lawsuit showing that in some jurisdictions, including New Jersey and Florida, courts often allow federal prosecutors to track the location of cellphone users in real time without search warrants.

Investigators seeking warrants must provide a judge with probable cause that a crime has been committed. But investigators often obtain cell-tracking records under lower standards of judicial review — through subpoenas, which are granted routinely, or through an intermediate type of court order based on an argument that the information requested would be relevant to an investigation.

In what would be the highest-level court decision on the issue so far, a federal appeals court in Pennsylvania is expected to rule this summer on whether search warrants are required for the most basic cellphone tracking data — the electronic footprints that cellphone users leave behind in company records, often without realizing it.

…The data obtained by the civil liberties union provides a rare glimpse into crime-fighting techniques that law enforcement agencies are reluctant to talk about. Since Sept. 12, 2001, federal prosecutors in New Jersey have gained access to cellphone tracking information without warrants in 98 investigations resulting in 83 prosecutions.

As often happens, the law has not quite caught up with technology.  Legislators need to clarify the rules on whether or not the police can force phone companies to turn over these records without a warrant.  I do not believe they should be able to.

I’m am not comforted by those officials in the article who “argue that people who obey the law have nothing to fear from cellphone tracking.” I’ve seen too many stories of rogue prosecutors who, once they have a target in their sights, refuse to ever let go, regardless of any exonarating facts later discovered.  I’m also concerned about how this kind of data could be used if law enforcement is given free access to it.  For the moment they seem content to request data only for specific cases, but can we count on that always being the case? What happens when someone gets the bright idea to analyze movement patterns and how it relates to various crimes? I can easily foresee a future where simply walking past a particular location at a particular time – a street corner known for late night drug sales, for instance – makes one a suspect in the eyes of law enforcement.

So what should be done?  As I said before, legislators need to make perfectly clear the responsibility of phone companies. It may not be necessary to say that a warrant is required if they are at least willing to clarify and clearly state that phone companies are free to refuse any request that is not accompanied by a court order.  The market would then decide the level of privacy users really want.  If they value a company that promises not to turn over records without a warrant then they’ll have that choice.  Otherwise, those who believe that the innocent have nothing to fear will be free to purchase contracts with companies that are more cooperative with law enforcement.

The important thing, in either case, is to remove the cloud of confusion phone companies face when dealing with the police.  Clarifying their obligations is an important step to ensuring our continued liberty.