Free Markets, Free People

Legal Affairs

Dissent and Hate Speech

Apparently signs equal threats to some of our police:

An Oklahoma City police officer wrongly pulled over a man last week and confiscated an anti-President Barack Obama sign the man had on his vehicle.

firstamendment-757857The officer misinterpreted the sign as threatening, said Capt. Steve McCool, of the Oklahoma City Police Department, and took the sign, which read “Abort Obama, not the unborn.”

Chip Harrison said he was driving to work when a police car followed him for several miles and then signaled for him to pull over.

”I pulled over, knowing I hadn’t done anything wrong,” Harrison said in a recent phone interview.

When the officer asked Harrison if he knew why he had been pulled over, Harrison said he did not.

”They said, ‘It’s because of the sign in your window,’” Harrison said. 

When did cops start pulling people over for political bumper stickers or signs?

Anyway, Harrison tried to explain what the sign meant, they disagreed and he was issued a a slip of paper that said he was a part of some sort of investigation. They took his sign. Later, he’s contacted by the police saying the policeman misunderstood and asking him if he wanted his sign back. They had contacted the Secret Service about the sign, and they had told the police it wasn’t a threat. Except apparently they were blowing smoke:

”The Secret Service called and said they were at my house,” Harrison said.

”When I was on my way there, the Secret Service called me and said they weren’t going to ransack my house or anything … they just wanted to (walk through the house) and make sure I wasn’t a part of any hate groups.”

Harrison said he invited the Secret Service agents into the house and they were “very cordial.”

”We walked through the house and my wife and 2-year-old were in the house,” Harrison said.

He said they interviewed him for about 30 minutes and then left, not finding any evidence Harrison was a threat to the president.

Walk through my house? Uh, get a warrant.

Hate groups? They knew what the sign was about, what was the rest of this about?

Which segues nicely into the next portion of the post – hate speech.

Eugene Volokh has a very interesting post up about a UCLA Chicano Studies Research Center study titled Hate Speech on Commercial Talk Radio.

It’s a fascinating post which demonstrates how hard certain groups are working another angle aimed at talk-radio (and read the comments, where commenters take the study’s assertions aparat). Hate-speech is a lever that various groups on the left have been trying to enable for years. From the study, here’s their definition of hate speech:

Types of Hate Speech

We identified four types of speech that, through negative statements, create a climate of hate and prejudice: (1) false facts [including “simple falsehoods, exaggerated statements, or decontextualized facts [that] rendered the statements misleading”], (2) flawed argumentation, (3) divisive language, and (4) dehumanizing metaphors (table 1).

Hate speech or controlled speech

Hate speech or controlled speech

 

Then the examples:

Table 1. Analysis of Hate Speech from The John & Ken Show

EXAMPLE
“And this is all under the Gavin Newsom administration and the Gavin Newsom policy in San Francisco of letting underage illegal alien criminals loose” (from the July 21, 2008, broadcast).

TARGETS
Vulnerable group: foreign nationals (undocumented people).
Social institutions: policy and political organizations (city policy and mayor’s office).

FALSE FACTS
The sanctuary policy preceded Gavin Newsom’s tenure as San Francisco’s mayor, and neither Newsom nor the sanctuary policy supports “letting underage illegal alien criminals loose.”

FLAWED ARGUMENTATION
Guilt by association is used to make the hosts’ point. Undocumented youth and those who are perceived as their endorsers at the institutional level are stigmatized by being associated with criminality.

DIVISIVE LANGUAGE
Criminalized undocumented youth and their perceived validators (Gavin Newsom and the sanctuary policy) are depicted as a threat to San Francisco citizens, setting up an “us versus them” opposition.

ANALYSIS The language depicts the hosts’ targets (undocumented people, city policy, and Mayor Gavin Newsom) as dangerous, criminal, and collusive. In addition, the focus of that policy (undocumented people) becomes reduced to “underage illegal alien criminals.”

Talk about over-analysis. The bottom line is this matrix of assessment is based in pure biased opinion disguised as objectivity. Hate speech, in this case, is nothing more than saying “letting underage illegal alien criminals loose” is wrong.

As Volokh says:

The vagueness and potential breadth of the phrase “hate speech” is a pretty substantial reason — though just one among many — to resist the calls for a “hate speech” exception to the First Amendment. And the vagueness and potential breadth is also a reason to be skeptical of uses of the phrase even outside the law: It’s very easy to define “hate speech” as you like (or leave it undefined, as some arguments do), and use it to condemn people who express a wide range of views that you disapprove of.

One of the most defining phrases in the history of America free speech is “I may not agree with what you say, but I will defend to the death your right to say it.”

It has never been “I don’t like what you say and it sounds like “hate speech” to me so you should be silenced”.

~McQ

Be An Irresponsible Idiot And Make Millions

I‘m always a little amazed at stories like this.  I’m not sure why, given they happen quite often.  

A Manhattan jury awarded $2.33 million to a man who lost his leg after drunkenly stumbling onto the path of an oncoming subway train.

Now, you’d think, given that sentence, that there’s no way a jury could hold the subway folks liable because this drunk stumbled in front of their train right? Heck, he had a blood/alcohol level of .18. That’s smoked folks. That’s twice the legal limit if you’re on a highway. But check out the reasoning his attorney used and, obviously, the jury bought:

According to Dibble’s lawyer, Andrew Smiley, NYC Transit rather than Dibble bore primary responsibility for the accident because the subway driver had time to stop the train but did not.

Smiley added that Dibble’s drunkenness did not excuse the driver, who said in a court deposition that he mistook Dibble for an inert object.

“They don’t get a free pass as to why the person was on the tracks. They are trained to be able to look out for people on the tracks … and people are known to be intoxicated by night,” the lawyer said.

“Trained to be able to look out for people on the tracks”?  Uh, even if that’s true, how does that excuse Dibble of responsibilityfor being on the track?

That comes in the second line – “people are known to be intoxicated by night”?

No kidding? So tell me Mr. Smiley, had your client been on the road in the same condition, do you supposed a state trooper would have just said,  “aw forget it, sir. People get drunk at night. Take it easy?”

And you can bet your house (or the bailout you’re getting for it) that the state trooper would have only held one person responsible for the state Mr. Dibble was in at the time he stopped him.

In this case, my guess is two things happened. One – Mr. Smiley made sure that Mr. Dibble appeared in court looking as pathetic as one could look and used that to play on the sympathy of the jury. Emotional theater. And, two, the MTA was represented by lawyers (not victims) and was thus easy to ignore emotionally. And besides, I’m sure the New Yorkers felt the MTA had deep pockets or insurance or something with which to pay this pathetic creature, right? Of course if their fares go up because of this, they’ll be the first to bitch as well.

But back to the trial. This was my favorite part:

The jury ruled Tuesday that Dibble was 35 percent responsible for the accident, so his monetary compensation was also reduced by 35 percent — from $3,594,943 to $2,336,713.

Really? Good thing I wasn’t on that jury because at worst, it would have been a hung jury. I, unlike this bunch, would have found Mr. Dibble 100% responsible for being where he was and in the condition he was in when the train hit him, and he wouldn’t have gotten a red cent.

If that makes me a cruel and heartless you know what, well so be it.

~McQ

Foreclosure Imminent? Call ACORN

Of course part of the huge and porky “stimulus” bill was billions to Community Development Block Grants (CDBG) program. Of the the past beneficiaries of that program has been our old buddies at ACORN. But, you say, the election is over – ACORN can’t collect taxpayer money for fraudulent voter registration anymore.

Never fear, ACORN has found itself a new line of work. Civil disobedience:

The community organizing group Acorn unveiled the campaign with a spirited rally on Friday at a Brooklyn church and will roll it out in at least 22 other cities in the coming weeks. Through phone trees, Web pages and text-messaging networks, the effort will connect families facing eviction with volunteers who will stand at their side as officers arrive, even if it means risking arrest.

“You want to haul us out to jail? Fine. Let the world see how government has been ineffective,” Bertha Lewis, Acorn’s chief organizer, said in an interview. “Politicians have helped banks, but they haven’t helped families in the way that it’s needed, and these families are now saying, enough is enough.”

Yes friends, your hard earned money (or that which has been borrowed from the Chinese or printed on that nifty little printing press the government has) is now going to fund ACORN’s civil disobedience shenanigans.

While no one likes to see anyone lose their home, if you’re a believer in private property, then you understand the concept that you have to pay for someone else’s property or they have recourse. ACORN, dealing on emotion and your money, have unilaterally decided that’s just wrong and intends to demonstrate that by attempting to disrupt lawful procedures to foreclose homes. Instead of using the money to help the family that is losing the home to find other accomodations and by doing so ameliorate the trauma, ACORN has decided to add to the trauma instead.

Acorn’s strategy is modeled on a movement the group led in the 1980s, when squatters occupied and set out to renovate thousands of abandoned city-owned buildings in New York, Philadelphia and Detroit, among other cities. The motivation was to solve what Ms. Lewis has called “the working family’s housing crisis.”

In cities like Orlando, Fla., which has one of the nation’s highest foreclosure rates — and Boston, Houston, Baltimore, Oakland, Calif., and Tucson, Ariz. — Acorn organizers have been creating networks to alert a homeowner’s neighbors when an eviction has been scheduled or deputies are on the way. Some volunteers will summon friends and relatives to converge at the home, while others will be in charge of notifying the news media. Organizers are also recruiting lawyers willing to defend for no fee those who are arrested.

The campaign, called Home Defenders, enlisted about 500 participants during meetings held Friday and Saturday in New York and five other cities. Ms. Lewis and other organizers said that they believed the number will reach into the tens of thousands within weeks.

Yessiree, just what we need – a taxpayer funded organization with obvious socialist roots attempting to deny the proper property owner’s rights while a sympathetic press looks on. ACORN’s model isn’t even a righteous model. As noted, the buildings in question in the ’80s were abandoned. The foreclosed houses aren’t abandoned, just empty. The quickest way to get in one, beside taking it unlawfully, is to buy it or rent it.

ACORN, however, would much rather spend its funds making a splash than a difference. But I’m not sure what else you’d expect from a bunch of marxist community organizers.

~McQ

Lawyering The War on Terror

If there is one sure way to roll back any gains the US has made in the War on Terror over the past eight years, it would be to shift the focus from military and intelligence gathering, to a crime fighting stance. That is exactly the position the Obama DOJ appears to be taking:

The Justice Department, probably more than any other agency here, is bracing for a broad doctrinal shift in policies from those of the Bush administration, department lawyers and Obama administration officials say.

Eric H. Holder Jr., whom the Senate is expected to confirm on Monday as the nation’s 82nd attorney general, plans to take the oath of office that evening to demonstrate a quick start, which will include overseeing the creation of a new detention policy for terrorism suspects.

Mr. Holder will have to contend with that and other issues rapidly. Lawyers inside and outside the department say he will face crushing time constraints. Chief among them is a pledge by President Obama to close the detention facility at Guantánamo Bay, Cuba, within a year. Mr. Holder and a department task force must find a solution to the question of what to do with the remaining prisoners there and any apprehended in the future.

“This will be a sea change of what went on before,” said an Obama administration lawyer, noting that the principal authority over detention policies will move from the Defense Department under the Bush administration to the Justice Department.

What to do with the GITMO prisoners is a piddling concern compared to how the administration plans to fight terrorism. Released prisoners can potentially be tracked. The hands of national security however, once tied, are difficult to free. handcuff-terroristFighting terrorism as if it were an issue of law enforcement will potentially, and dangerously, bind our hands in that endeavor:

The department has to decide by next month whether it will reverse course from the Bush administration, which had repeatedly invoked the so-called state secrets doctrine to shut down legal challenges to several lawsuits dealing with national security. Officials also face a February deadline on whether to extend habeas corpus rights to detainees at Bagram Air Base in Afghanistan.

Above are two prime examples of how the policy switch advantages the enemy at the expense of the citizens. In the first, the folly of fighting terrorism through the courts could not be clearer. It is nearly impossible to build a public case based on state secrets. In the law enforcement model, the prosecution is not allowed to have secrets, and defendants are entitled to see the evidence against them as well as to confront all witnesses. That is because our nation is founded on the principle that the people, from whom the government derives its power, should enjoy the benefit of presumptions and the government should be required to make its case. When trying to confront our nation’s enemies, however, we do not want to allow them the same benefit. By engaging them in courtroom battles rather than in military/intelligence ones, we do just that.

Specifically, allowing state secrets to become part of a legal case allows the enemy to see what cards we’re holding. It is a surefire way to devalue our national intelligence. Indeed, any time sensitive information is available to more than a few people it eventually becomes public, and lawyers sworn to secrecy are no different (see e.g. Lynne Stewart). Yet, despite these dangers, the Obama DOJ may be considering backing off the positions staked out by the previous administration:

The case dealing with the state secrets doctrine, which allows the government to rebuff lawsuits by invoking national security concerns, involves al-Haramain Islamic Foundation. A federal trial judge in San Francisco ruled that the government could not invoke the doctrine to block a lawsuit by al-Haramain, which has asserted that the government illegally listened in on its conversations.

The Bush administration used the doctrine to block more than two dozen lawsuits. In timing that was a bit of a surprise, the Justice Department lawyers who have handled the lawsuit filed a motion with the court an hour before Inauguration Day that held to the same position.

Some Obama administration figures regarded the filing before midnight on Jan. 19 as a rear-guard action to make it more difficult to reverse course.

The Justice Department has to file a new brief by Feb. 13. Jon B. Eisenberg, who represents al-Haramain, said the schedule meant that “Holder and company have to decide pretty quickly if they want to keep opposing this case with the state secrets doctrine.”

If the DOJ opts to forego the state secrets doctrine as a defense, then it will be left with two undesirable choices: (1) make national intelligence discoverable in a court of law, or (2) drop the case altogether and set the defendant free. Neither choice is satisfactory, but both are the inevitable outcome of pursuing terrorism under the rubric of law enforcement.

Similarly, extending habeas corpus rights to prisoners detained on the battlefield is an exercise in futility. Of course, that ship sailed with the ruling in Boumediene v. Bush. I’m not sure what argument the government could make that any prisoners under the control of the U.S., regardless of where they are being held, are not entitled to some sort of habeas proceeding. And since the very procedures deemed constitutionally valid by the Supreme Court in Hamdi were struck down as inadequate in Boumediene, I don’t know what options are actually left to the Obama administration other than the unsavory prospect of field executions.

Again, these are the inevitable results of waging war as if we were fighting crime. The two arenas are decidedly distinct, and the tactics and strategies of one do not translate well into the other. If we insist on treating terrorists as criminals, cloaked with the protections of our Constitution and privy to the secrets that ensure our security, then we invert the promise of a national defense. The end result is to allow the enemy to be in control of our security interests rather than the other way around.

Recipe for Realignment

Damon Linker at The New Republic has a thoughtful post about how President Obama can win and end the culture war. It goes against the intuitions of most of the Left, but I think he’s figured out something that has eluded almost all of them — a way to unravel some of the most significant bonds that have held the Republican coalition together for the last several decades.

While I think he’s right about same-sex marriage (social conservatives are losing ground steadily), I find his thoughts on abortion particularly cogent.

How could Obama — how could liberals, how could supporters of abortion rights — both win and end the culture war, once and for all? By supporting the reversal or significant narrowing of Roe, allowing abortion policy to once again be set primarily by the states — a development that would decisively divide and demoralize the conservative side of the culture war by robbing it of the identity politics that holds it together as a national movement.

If that sounds strange to you, read the whole thing.

I have said for years that overturning Roe v Wade, and thereby sending the issue back to the states, would effect a political realignment in this country.

Conservatives can’t enact a federal ban on abortion through Congress, RvW or not; whatever Republican politicians may say to win primaries, that would be mass political suicide and they know it. For social conservatives, there is one reachable goal — overturning RvW through the slow process of controlling Supreme Court appointments — meaning conservatives need to control the White House and the Senate for long, preferably unbroken stretches of time. That means that social conservatives expend a disproportionate amount of energy on the very top levels of national politics, allowing them to leverage their energy through GOTV efforts.

But like a dog chasing a car, they don’t have a clear idea of what they would do with it if they got it. If RvW were overturned or significantly narrowed, suddenly abortion would be a state-by-state fight.

It’s much easier to direct their energy into Senate races and presidential elections to win the broad-brush fight against RvW than to convince the state-level electorate on the nitty-gritty details of pro-life policy.

In the vast majority of states, social conservatives wouldn’t be able to put any but the most basic restrictions on the practice – perhaps limiting partial-birth abortions in some, third-trimester abortions in fewer. The options of limiting state funding for abortions, and requiring minors to obtain parental consent or at least knowledge, are both available under current constitutional law.

Virtually no one opposes abortions when the mother’s life is at stake, and while I haven’t looked at the state-by-state poll data, I doubt there’s a state in the union that would ban abortions even in cases of rape and incest. Finally, let’s put something simply: whether principled pro-lifers like it or not, there’s just not enough voter support to really punish women who undergo abortions. Practical pro-life politics would target doctors and institutions, not customers/patients.

And then? Then the fire would die down. Unlike taxes and spending or environmental issues, there are only a few ways to move the ball in either direction on abortion. Once elections make clear the basic outlines of what is achievable on such a narrow issue as abortion, the issue’s potency as a politically unifying force will diminish.

See, when there’s no way to compromise, the radicals control the conversation. So we have two starkly divided camps, each internally united by the near-fiat Supreme Court decision. If specific policy decisions were made by the people and representatives of each state, the camps would begin breaking down visibly based on actual policy preferences, roughly based on gradients of moderation.

At that point, those outside the mainstream have little choice but to begin the hard work of changing hearts and minds, and working through regulation and appropriations. That’s the moderating force of democracy.

The full effects on the national political scene are hard to predict, but they would be wide-ranging.

  • A powerful wedge issue would lose a great deal of potency, allowing people who are otherwise uncomfortable fits in their political coalitions to move between parties, or become less reliable partisan allies of politicians who take a hard line.
  • We would see moderation at both the federal and state levels, although evangelicals and Catholic groups would probably become more energetic for a while at the state level at the expense of federal efforts.
  • And finally, we would do the good work of returning policy and political focus to more local levels of government, and convert a great deal of energy spent on politics into energy spent on private education and outreach.

Whether the parties to this culture war want it to end is another matter.