Girl Drink Drunk

By J. DeVoy

The greatest Kids in the Hall clip of all time.

Elena Kagan on the First Amendment – troubling, to say the least.

By J. DeVoy

From the Citizens United v. FEC oral arguments, Kagan argues that a statute banning books is valid as long as it is not applied.

Future post: Obama’s shockingly poor record on civil liberties, including things like giving INTERPOL agents unprecedented diplomatic immunity in the United States, the continued cyber-surveillance of average citizens, and renewing the Patriot Act despite his expressed desire to change or repeal it, which never happened despite his supersonic-speed backtracking.  His blasé attitude about the First Amendment, evidenced by the Kagan nomination, is just another data point to this end.

For those of you who maintain hope in Mein Obama for whatever reason, please send my thoughtcrime to flag@whitehouse.gov.

Supremes incorporate Second Amendment in Chicago weapons ban case

By J. DeVoy

Today the Supreme Court held that the Second Amendment applies equally to states as well as federal laws.  McDonald v. Chicago, ___ U.S. ___ (2010).  In a predictable 5-4 split  decision, the court held that restrictions on the individual right to bear arms cannot trammel the second amendment — essentially a death knell to complete arms bans around the nation, though the court did not strike down Chicago’s anti-weapons laws.

The decision is a fitting comeuppance for a nanny state that even banned foie gras for a while.

Beyond Garcetti: Public employees and the Pickering-Connick test

By J. DeVoy

I’ve previously written about the landmark public employee speech case Garcetti v. Ceballos, 547 U.S. 410 (2006), which provides a threshold inquiry as to whether state actors may punish employees for their speech.  Generally, speech made pursuant to employees’ work duties is not protected, while private speech is.  Among the Federal Courts of Appeals, there is growing dissension as to how fact-intensive this inquiry should be.  If, however, an employee is not speaking as a public official, another test is applied: The Pickering-Connick balancing test.

Public employees’ political speech is protected by the First Amendment’s guarantee of free speech, but this is not an unlimited right.  Public employees may be subject to discipline prescribed in the relevant collective bargaining agreement for private speech and even expression about matters of public concern, particularly if made in a disruptive manner.  See generally Connick v. Myers, 461 U.S. 138 (1983); Pickering v. Bd. of Educ., 391 U.S. 563 (1968).  In Pickering, the Supreme Court held that controversial and factually inaccurate statements made by a teacher could not be the basis for his dismissal because they were a matter of public concern and did not outweigh the government’s interest in effective administration.  391 U.S. at 574-75.  Although the means for determining whether speech is of public concern are not clearly established by the court, it is clear that speech of a public concern is protected by the First Amendment and cannot be the basis for adverse employment action where the government does not reasonably believe it jeopardizes the imposition of discipline and its efficient administration. Id.  As the speech that the court found to be of public concern in both Connick and Pickering related to political issues, there is a relationship between speech’s political content and the public’s interest in it.  462 U.S. at 154; 391 U.S. at 574-75.

In Pickering, the public concern at issue was the raising, collection and allocation of school taxes, a political matter affecting the entire community. Id. at 571.  The manner in which it was raised did not disrupt government operations, undermine supervisory discipline, or otherwise affect workplace harmony; if it had to an extent that outweighed the public’s interest in the speech, the First Amendment would not protect it. Id. at 569-70, 574-75.  The factors for determining whether a statement is a matter of public concern-its “content, form and context, as revealed by the whole record”-are established in Pickering’s successor case, Connick. 461 U.S. at 147-48.  In that case, the questionnaire circulated by Myers had some extremely limited public concern based on its content, form and context, as it related to employment abuses in an ongoing political race, but was not protected because her supervisor reasonably believed it undermined his disciplinary authority and jeopardized office harmony because of the personal attacks it contained. Id. at 153-54.

Combined, these cases comprise the Pickering-Connick test.  When a public employee makes a statement, its content, form and context is examined in the totality of the record to determine if it is a matter of public concern, and the employee’s expression cannot be reasonably believed to cause harm to workplace harmony, discipline or operations.  Because of the many forms employee speech and matters of public concern may take, the Supreme Court did not deem it appropriate or feasible to promulgate a general standard by which all statements are judged.  Id. at 154, citing Pickering, 391 U.S. at 569.

Even if public employees’ statements thread the narrow Garcetti needle and constitute private speech, the Pickering-Connick test must still be overcome for the statements to have First Amendment protection.  This is an imprecise, fact-intensive standard that leads to cases being decided individually.  Though this approach is ideal for employees, as it gives each instance of speech the potential to be spared from employer discipline, it has unpredictable results – especially when the speech and circumstances at issue are dissimilar from other cases.  Indeed, each workplace and its chain of command are unique, and the disruptive effects of speech may vary greatly from one circumstance to another.

The Pickering-Connick standard is also sympathetic to public employers, as speech is protected if it is of a public concern and not reasonably believed by the employer to jeopardize the imposition of discipline and the employer’s efficient administration.  Therefore, if the court find that the employer reasonably believed the speech compromised these goals, the employee’s speech is not protected by the First Amendment, and he or she is subject to appropriate discipline.  This yields a balancing act between the public significance of the speech, how it was made, and the reasonableness of the public employer’s belief.  Employees are protected by the test’s requirement for employer beliefs to be reasonable, but this falls short of a full guarantee of constitutionally protected speech, as the employer retains discretion to punish employees for speech it reasonably believes threatens workplace order and efficacy.

Offices of Child Rape Cult Raided in Belgium

A bizarre cult of child-rapists had its Belgian offices raided today. (source) A bunch of old pederasts in black dresses got pissed off about it.

Romantic Advice

.XXX becomes a reality

By J. DeVoy

After six years of teasing, ICANN finally delivers on a .xxx top-level domain for sites displaying adult content.

The domains, which will be available by 2011, already have 110,000 pre-registrations through ICM Registry.

Truth in advertising

By J. DeVoy

Awesome

Speaking of awesome, hat tip for this goes to the publisher of Siouxsie Law.

Surprise, surprise!

By J. DeVoy

Joran Van Der Sloot, the suspected killer of Natalie Holloway and Flores Ramírez, claims that he is being showered with affection while behind bars.  We’ve previously discussed this phenomenon here. If true, Van Der Sloot joins the ranks of Scott Peterson, Ted Bundy and the preppy killer, Robert Chambers, in receiving amorous advances and even wedding proposals while incarcerated for heinous crimes.

Human psychology is a dark and scary thing.

SDNY grants summary judgment to YouTube in Viacom suit

By J. DeVoy

The United States District Court for the Southern District of New York has granted YouTube’s motion for summary judgment in its ongoing litigation with Viacom.  The opinion, available here, held that the video website was protected by the DMCA’s safe harbor provision against copyright infringement claims, and is protected when working with copyright holders to help defend their rights online.

Nebraska town has had enough of the damn imm’grints

Fremont, Nebraska has decided that it is tired of being overrun by immigrants. The town passed a law banning illegal immigrants from working or renting property. (source).

Because, you know, the first thing that illegal immigrants look for when they hop the border is how to get to fucking Nebraska.

The town anticipates that it will have to cut back on services in order to defend the ordinance from legal challenges. The town has 25,000 residents and only 4.4% are foreign born. Out of those 1100 people, I wonder how many are part of this horde of illegals that threatens the Fremont way of life?

Scientists discover new BP oil spill doomsday scenario

By J. DeVoy

Buried below the Gulf of Mexico’s floor with millions of barrels of oil is a 15-20 mile large lake of explosive methane gas – and it’s being agitated by efforts to plug the ongoing oil spill.   The gas is estimated to be stored at an astounding 100,000 psi, a pressure that current engineering cannot contain.  By way of comparison, a car’s tires are inflated to about 30 psi; the power of a .30-06 gunshot tops out around 6,000 psi, and the oil leaking from the Deepwater Horizon explosion was initially pressurized at about 20,000 psi.

There are signs that the underground methane bed is under stress already.

According to worried geologists, the first signs that the methane may burst its way through the bottom of the ocean would be fissures or cracks appearing on the ocean floor near the damaged well head.

Evidence of fissures opening up on the seabed have been captured by the robotic submersibles working to repair and contain the ruptured well. Smaller, independent plumes have also appeared outside the nearby radius of the bore hole itself.

And what could ensue is the stuff of nightmares.

 If the bubble escapes, every ship, drilling rig and structure within the region of the bubble will instantaneously sink. All the workers, engineers, Coast Guard personnel and marine biologists measuring the oil plumes’ advance will instantly perish. 

As horrible as that is, what would follow is an event so potentially horrific that it equals in its fury the Indonesian tsunami that killed more than 600,000, or the destruction of Pompeii by Mt. Vesuvius.

But wait, there’s more.

The ultimate Gulf disaster, however, would make even those historical horrors pale by comparison. If the huge methane bubble breaches the seabed, it will erupt with an explosive fury similar to that experienced during the eruption of Mt. Saint Helens in the Pacific Northwest. A gas gusher will surge upwards through miles of ancient sedimentary rock—layer after layer—past the oil reservoir. It will explode upwards propelled by 50 tons psi, burst through the cracks and fissures of the compromised sea floor, and rupture miles of ocean bottom with one titanic explosion.
The burgeoning methane gas cloud will surface, killing everything it touches, and set off a supersonic tsunami with the wave traveling somewhere between 400 to 600 miles per hour.

The state most exposed to the fury of a supersonic wave towering 150 to 200 feet or more is Florida. The Sunshine State only averages about 100 feet above sea level with much of the coastline and lowlands and swamps near zero elevation. A supersonic tsunami would literally sweep away everything from Miami to the panhandle in a matter of minutes. Loss of human life would be virtually instantaneous and measured in the millions. Of course the states of Texas, Louisiana, Mississippi, Alabama and  southern region of Georgia—a state with no Gulf coastline—would also experience tens of thousands, if not hundreds of thousands of casualties.

Refining the contours of the First Amendment in public sector unions – Davenport v. Washington Education Association

By J. DeVoy

In 2007, the United States Supreme Court upheld a Washington law requiring public sector union members to opt-in for their association dues to be used by the union for election-related activities and speech. Davenport v. Wash. Educ. Ass’n, 551 U.S. 177 (2007).  Without this mandated opt-in, the public union was prohibited from devoting a member’s fees to any electoral purpose. Id. at 190.  The court limited its holding to public sector unions, although the text of the statute could facially be applied to both public and private unions. Id.

Since private-sector unions collect agency fees through contractually required action taken by private employers rather than by government agencies, Washington’s regulation of those private arrangements presents a somewhat different constitutional question. Id.

This portion of the holding reinforces the unique role of public sector unions, especially when balancing constitutional concerns.  Because public unions are governed by the state and their employees act with the government’s imprimatur, their actions are within the reaches of the United States Constitution and Bill of Rights. See Id.

I. Private Sector Precedent

Precedent from disputes between private unions and their members indicates that this is not a universal proposition: union members are not given a unilateral veto over union expenditures and activities because they disagree with their money being spent in a certain fashion.  In Communications Workers v. Beck, 487 U.S. 735, 762-63 (1988), the Supreme Court authorized the union to spend dues money pursuant to its obligations as a bargaining representative over a represented non-member’s objection.  Expenditures were only authorized over objection for that purpose, though, and could not be made for the union’s political goals. Id.

Similarly, in Ellis v. Brotherhood of Railway Clerks, 466 U.S. 435, 450-51 (1984), the Supreme Court held that expenses for materials reporting on the union’s activities as representatives’ exclusive bargaining representatives can be paid with the dues of nonmembers despite their objection.  The court specifically struck down the rebate mechanism used by the union in Ellis, which provided that the union would repay represented non-members who objected to a union political expense their share of the total expense. Id. at 443.  Though the Ellis court considered the potential for anticipatory dues reductions for represented nonmembers, or holding dues in escrow, it ultimately provided no conclusive guidance on those provisions’ legality, finding it sufficient to strike down the union’s rebate provision. Id.

II. Into the Public Sector

This trend came to a head in Abood v. Detroit Board of Education, 431 U.S. 209 (1977),  where the Supreme Court prohibited the public union’s use of nonmember fees for purposes outside of collective bargaining, contract administration and grievance adjustment – even when alternative uses were not strictly political.  Abood is remarkable for extending the Beck and Ellis decisions to public unions.  While the prior decisions concerned private unions, the Supreme Court found the principles within those opinions applied identically to public sector unions; the role of the government in the unions’ representation and their members’ employment was immaterial in such situations.

The Abood decision was further solidified in Chicago Teachers Union v. Hudson, 475 U.S. 292, 306-08 (1986).  In Hudson, the union controlled the entire process of collecting, administering and reducing members’ agency fees, despite being an interested party at every step of that transaction. Id. at 308.  The court found that there were inadequate protections where the union did not disclose its expenditures for collective bargaining purposes, but instead revealed only the amount it had spent on purposes that did not benefit “dissenting nonmembers.” Id. at 306-07.

Although the union discounted nonmembers’ annual dues by 5%, the court found there was no adequate explanation for doing so, and thus such a reduction did not pass constitutional muster. Id. at 307.  Indeed, the 95% of agency fees still paid by nonmembers may have gone to speech they opposed and did not authorize.  The Supreme Court ultimately established three requirements for public unions’ collection of agency fees:

-The union must provide an adequate explanation of the basis for the fee

-The union must provide a reasonably prompt opportunity to challenge the amount of the fee before an impartial decision-maker, and

-The union must have an escrow for the amounts reasonably in dispute while such challenges are pending. Id. at 310.

The “adequate explanation” required by Hudson is commonly referred to as a “Hudson packet.”  Davenport, 551 U.S. at 177.  It must be supplied to all nonmembers represented by the union and, under Washington’s law, was supplied biannually to nonmembers represented by a public union. Id.

An important distinction between union purposes arises from these holdings.  While there is a First Amendment issue where unions spend represented nonmembers’ dues on political purposes over their objections, these same represented nonmembers have no First Amendment interest in the union’s operation as a contract administrator and collective bargaining agent.  As noted in Abood, this distinction arises in the public union context because involuntary political support through money may “interfere in some way with an employee’s freedom to associate for the advancement of ideas, or to refrain from doing so, as he sees fit.” 431 U.S. at 222.

Fortified in Hudson, this position coalesced into the three requirements set forth by the Supreme Court.  By requiring information explaining agency fees’ bases to be sent to all represented employees, the Supreme Court ensured that the represented would be apprised of how their dues were spent – especially on political matters, to which nonmembers could object.  The additional requirements, of a challenge to the fee before an independent decision-maker and escrow for funds in dispute, further protected the First Amendment rights of nonmembers.  The first of these provisions, requiring objections be heard before an impartial decision-maker, upheld the due process rights of nonmembers in exercising their First Amendment rights, assuring that their will would not be thwarted by union control.  The second assures that neither represented nonmembers’ dues nor interest on them can be applied toward political aims – speech, ultimately – with which the represented non-member disagrees.

III. How Davenport Was Decided

These provisions are found in the Washington statute at issue in Davenport.  By requiring represented non-members to opt-in to political spending within unions, and acting in concert with provisions for information about fees to be distributed and amounts in dispute being held in escrow, the protections the Supreme Court previously established were preserved by the statute.

From a policy perspective, opt-in is more favorable to represented non-members who may otherwise object to a union’s political spending.  Under this regime, their political autonomy is presumed, though they can assent to the union’s political speech and financially contribute to it.  In contrast, the de facto opt-out system established in prior case law benefits unions, as represented non-members must object to the use of their funds for the union’s political goals.  Although the Supreme Court has ratified this practice as valid with some qualifications, it places the burden of seeking political autonomy on the represented non-member.  Even if these non-members have no interest in politics, the presumed contribution of agency fees effectively takes money out of their pockets that otherwise would not have gone to political speech or association.

Audience participation post: “steal” or “sell”?

By J. DeVoy

Certainly many readers have seen this video of a 15-year-old who wants a baby.

Many years after its release, it is now the contentious subject of debate on Facebook. At 0:16, she says “If I can’t support it then I guess I’m gonna s[unknown] it.”

Is she saying “steal” or “sell”?  In the video, you can see her tongue move to the back of her top row of teeth, as if making a “t” sound.  Contextually, it makes sense: If she can’t support the child, she’ll steal for it — as would any parent.

But here’s just the audio, where it’s much less clear whether she’s saying “steal” or “sell”.  Much like the first JFK/Nixon debate, as people have completely different reactions based on video or audio recordings.  Contextually, “sell” is also plausible.  In some cases, selling things that one can’t afford, like cars, houses and luxury items, is rational; such thinking would be consistent with the thought processes of teenagers committed to a course of action, however destructive it is, without grasping its consequences — in this case, selling a baby.  (Really, it’s like selling the Mona Lisa: So obviously illegal that virtually nobody would buy it.)  The nonchalance of just selling a baby is funnier on some depressing level, too.

So is she saying steal?  Or sell?