Gaddafi’s son says “oops, my bad”

Libyan government bombing raids on Brega were a “big misunderstanding” designed to scare off rebels, according to Saif al-Islam, son of Col Muammar Gaddafi. (source)

Well, I don’t know about you, but I am certainly very glad that he cleared that up. We can all move on now.

Boat “owners” withdraw from Somali waters after a rash of boat-sharing incidents

Unbelievable. So get this… these crybaby rich people have decided that they won’t sail their boats in the Gulf of Aden anymore because of too much “boat sharing” going on there. (source)

The problem is not the boat-sharers. Boat-sharing is the future of boating. These so-called “boat owners” miss the fundamental point that boats should be free. Boats are made of wood. Wood comes from trees. Trees are living things and thus should not be bought or sold. And, if boats aren’t free, well the ocean belongs to everyone. If you put your boat on the ocean, you should be prepared to share it with anyone else who might want to use it.

Of course, there is an option. If you don’t want your boats to be shared, then change your boating model. Only sail in closed swimming pools or navigable rivers within national boundaries. Is that so hard?

An owner of a popular boat-sharing location in Somalia criticized the international crackdown and condemnation of boat “hijacking,” as draconian and anti-freedom.

I don’t understand why people are mad at me, I didn’t take anyone’s boat. I run a legitimate luxury yacht brokerage catering to the large Somali yachting community. People bring me yachts that they want to share, and I help them share them with other people for a fee.

None of these yachts have any external signs that they are owned by anyone except the 13 year old, machine-gun-toting, shoeless boys who brought them here.

If any of these boats are stolen, I will gladly give them back to their proper owners, as long as they send me a proper legal notice with a copy of their title. Until then, how am I supposed to know if they belong to someone else or not?

Personally, I blame the people who think they “own” the boats. They could secure the boats better, thus making them impervious to boat-sharing. If they coated the boat in three-inch-thick steel, sort of like a floating “panic room,” then nobody would be able to share their boats.

Ultimately, the problem lies with the boat “owners.” They don’t recognize that their boating model is outdated, and trying to punish individual boat-sharers is nothing more than a blatant money grab.

Magic Underwear Hoops Dismissal

Brigham Young University has dismissed Brandon Davies– integral member of their #3 nationally ranked men’s hoops team, avg. 11.1 pts and 6.2 rebounds per game.

Davies committed a grievous offense to warrant such harsh action by BYU. Best player on the team or not, Davies was dismissed due to his failure to “live a chaste and virtuous life” as mandated by the schools honor code. This apparently unchaste sophomore was “caught” having sex with… wait for it… HIS GIRLFRIEND!

BYU coach Dave Rose gave comment:

“Everybody who comes to BYU, every student if they’re an athlete or not an athlete, they make a commitment when they come… a lot of people try to judge if this is right or wrong, but it’s a commitment they make. It’s not about right or wrong. It’s about commitment.”

Davies will meet this week with BYU’s honor board to discuss the possibility of him remaining at the school and/or his relationship with the basketball team going forward.

For all the gunners

GOD HATES ALITO! Westboro Baptist Church Wins – First Amendment is Preserved

The Supreme Court handed down its decision in Snyder v. Phelps, otherwise known as the “God Hates Fags” case.

To understand this case, you must unplug your emotional reaction to the speech that brought about the case in the first place. The fact is, nobody likes the Westboro Baptist Church. Or, more to the point, nobody worth a damn does. If you are one of the three people in America who does not know about Westboro, here it is: Westboro is a “church” made up of some lowlives from Kansas. These lowlives believe that there is a magic zombie who lives in space. By the way, the space zombie is Jewish. They think that the space zombie, and his father, who is the same person as the zombie, wrote a book. They also believe that this book says that homosexuals are bad. (mmmkay?).

As if that isn’t nutty enough, they also believe that the United States is too nice to homosexuals, and therefore this magic space zombie jew and his father (who is the same person as the magic space zombie jew) do bad things to America and Americans to punish us all for not killing homosexuals. To demonstrate this belief, the Westboro members go to funerals for soldiers killed in combat, and they hold up signs that say “GOD HATES FAGS” and “THANK GOD FOR DEAD SOLDIERS”.

Naturally, this chaps the ass of the families of the dead soldiers. It chaps my ass too. Were I the benevolent dictator of this country, I might very well have the Westboro followers rounded up, shoved into a wood chipper, and we would all live happily ever after. Of course, once I was done with that, my taste for blood would be unquenchable, and next thing you know, 100 million people would be run through the wood chipper before I got to half the people who piss me off.

Which is why I shouldn’t be the dictator… nor should anyone else… Which is one of the reasons we have a First Amendment. If we have free speech, we have our greatest check on tyranny. It is the cornerstone of American liberty. And, as abhorrent as the Westboro asshats are, it is more abhorrent to take a chip out of that cornerstone.

At least that is what I believe.

Fortunately, eight justices on the United States Supreme Court agree with me.

Today’s decision is a warming reaffirmation of the First Amendment — from a Court that isn’t exactly made up of some of the most free-speech friendly legal minds we’ve ever had.

In this case, poor Mr. Snyder lost his son. The Westboro asshats protested at his funeral, although Mr. Snyder could not see them at the time.

Although Snyder testified that he could see the tops of the picket signs as he drove to the funeral, he did not see what was written on the signs until later that night, while watching a news broadcast covering the event. (Op. at 3)

So lets keep this fact in mind. As a commenter noted (before this addition), most Americans think that Westboro interrupted or disrupted the funeral. This is not the case. (And if it were, I think the case would have come out differently). The Westboro asshats had a right to be where they were, and they had a right to say what they said.

Nevertheless, Mr. Snyder sued for defamation, publicity given to private life, intentional infliction of emotional distress, intrusion upon seclusion, and civil conspiracy. The defamation claim and publicity given to private life claims were squashed at the trial court level on summary judgment. Snyder v. Phelps, 533 F. Supp. 2d 567, 570 (D.Md. 2008)

A jury found for Snyder on the intentional infliction of emotional distress, intrusion upon seclusion, and civil conspiracy claims, and held Westboro liable for $2.9 mil- lion in compensatory damages and $8 million in punitive damages. Westboro filed several post-trial motions, in- cluding a motion contending that the jury verdict was grossly excessive and a motion seeking judgment as a matter of law on all claims on First Amendment grounds. The District Court remitted the punitive damages award to $2.1 million, but left the jury verdict otherwise intact. Id., at 597.

In the Court of Appeals, Westboro’’s primary argument was that the church was entitled to judgment as a matter of law because the First Amendment fully protected West- boro’’s speech. The Court of Appeals agreed. 580 F. 3d 206, 221 (CA4 2009). The court reviewed the picket signs and concluded that Westboro’’s statements were entitled to First Amendment protection because those statements were on matters of public concern, were not provably false, and were expressed solely through hyperbolic rhetoric. Id., at 222––224. (Op. at 4)

Speech on a matter of public concern

The Supreme Court’s opinion begins with a discussion of the public vs. private concern distinction — because speech on a matter of public concern is entitled to the highest degree of First Amendment protection.

Whether the First Amendment prohibits holding West- boro liable for its speech in this case turns largely on whether that speech is of public or private concern, as determined by all the circumstances of the case. ““[S]peech on ‘‘matters of public concern’’ . . . is ‘‘at the heart of the First Amendment’’s protection.’’”” Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U. S. 749, 758––759 (1985) (opinion of Powell, J.) (quoting First Nat. Bank of Boston v. Bellotti, 435 U. S. 765, 776 (1978)). The First Amend- ment reflects ““a profound national commitment to the principle that debate on public issues should be uninhibi- ted, robust, and wide-open.”” New York Times Co. v. Sulli- van, 376 U. S. 254, 270 (1964). That is because ““speech concerning public affairs is more than self-expression; it is the essence of self-government.”” Garrison v. Louisiana, 379 U. S. 64, 74––75 (1964). Accordingly, ““speech on public issues occupies the highest rung of the hierarchy of First Amendment values, and is entitled to special protection.”” Connick v. Myers, 461 U. S. 138, 145 (1983) (internal quotation marks omitted). (Op. at 5-6)

The Court noted that while discerning private concern from public concern is often a difficult task, there are general guidelines for a court to follow. “Deciding whether speech is of public or private concern requires us to examine the ““‘‘content, form, and context’’”” of that speech, ““‘‘as revealed by the whole record.’’”” (Op. at 7). However, the vitriolic nature of the speech, or its offensiveness does not factor in to the equation.

Speech deals with matters of public concern when it can ““be fairly considered as relating to any matter of politi- cal, social, or other concern to the community,”” Connick, supra, at 146, or when it ““is a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public,”” San Diego, supra, at 83––84. See Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 492––494 (1975); Time, Inc. v. Hill, 385 U. S. 374, 387–– 388 (1967). The arguably ““inappropriate or controversial character of a statement is irrelevant to the question whether it deals with a matter of public concern.”” Rankin v. McPherson, 483 U. S. 378, 387 (1987). (Op. at 6-7)

The Court held that Westboro’s speech was on matters of public concern, and this is one of the more reassuring portions of the opinion. In the future, this will be used by defendants in free speech cases to demonstrate just how broad the definition of “matter of public concern” truly is.

The ““content”” of Westboro’’s signs plainly relates to broad issues of interest to society at large, rather than matters of ““purely private concern.”” Dun & Bradstreet, supra, at 759. The placards read ““God Hates the USA/Thank God for 9/11,”” ““America is Doomed,”” ““Don’’t Pray for the USA,”” ““Thank God for IEDs,”” ““Fag Troops,”” ““Semper Fi Fags,”” ““God Hates Fags,”” ““Maryland Taliban,”” ““Fags Doom Nations,”” ““Not Blessed Just Cursed,”” ““Thank God for Dead Soldiers,”” ““Pope in Hell,”” ““Priests Rape Boys,”” ““You’’re Going to Hell,”” and ““God Hates You.”” App. 3781––3787. While these messages may fall short of refined social or political commentary, the issues they highlight——the political and moral conduct of the United States and its citizens, the fate of our Nation, homosexual- ity in the military, and scandals involving the Catholic clergy——are matters of public import. The signs certainly convey Westboro’’s position on those issues, in a manner designed, unlike the private speech in Dun & Bradstreet, to reach as broad a public audience as possible. And even if a few of the signs——such as ““You’’re Going to Hell”” and ““God Hates You””——were viewed as containing messages related to Matthew Snyder or the Snyders specifically, that would not change the fact that the overall thrust and dominant theme of Westboro’’s demonstration spoke to broader public issues. (Op. at 8)

Outrageousness of Speech is no impediment to its protection

This part of the opinion is heartening too, although it has a bit of a sour note in it. Although it affirms some strong First Amendment principles, it also seems to unnecessarily go out of its way to make it clear that this is a fact-based ruling, and that it should not be broadly interpreted.

But, lets dwell on the good part first:

Simply put, the church members had the right to be where they were. Westboro alerted local authorities to its funeral protest and fully complied with police guidance on where the picketing could be staged. The picketing was conducted under police supervision some 1,000 feet from the church, out of the sight of those at the church. The protest was not unruly; there was no shouting, profanity, or violence.

The record confirms that any distress occasioned by Westboro’s picketing turned on the content and viewpoint of the message conveyed, rather than any interference with the funeral itself. A group of parishioners standing at the very spot where Westboro stood, holding signs that said “God Bless America” and “God Loves You,” would not have been subjected to liability. It was what Westboro said that exposed it to tort damages. (Op. at 11-12)

And after setting up that “viewpoint discrimination ball,” the court tees it off hard here:

Given that Westboro’s speech was at a public place on a matter of public concern, that speech is entitled to “special protection” under the First Amendment. Such speech cannot be restricted simply because it is upsetting or arouses contempt. “If there is a bedrock principle underly- ing the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” Texas v. Johnson, 491 U. S. 397, 414 (1989). Indeed, “the point of all speech protection . . . is to shield just those choices of content that in someone’s eyes are misguided, or even hurtful.” Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U. S. 557, 574 (1995).

The jury here was instructed that it could hold Westboro liable for intentional infliction of emotional distress based on a finding that Westboro’s picketing was “outrageous.” “Outrageousness,” however, is a highly malleable standard with “an inherent subjectiveness about it which would allow a jury to impose liability on the basis of the jurors’ tastes or views, or perhaps on the basis of their dislike of a particular expression.” Hustler, 485 U. S., at 55 (internal quotation marks omitted). In a case such as this, a jury is “unlikely to be neutral with respect to the content of [the] speech,” posing “a real danger of becoming an instrument for the suppression of . . . ‘vehement, caustic, and some- times unpleasan[t]’ ” expression. Bose Corp., 466 U. S., at 510 (quoting New York Times, 376 U. S., at 270). Such a risk is unacceptable; “in public debate [we] must tolerate insulting, and even outrageous, speech in order to provide adequate ‘breathing space’ to the freedoms protected by the First Amendment.” Boos v. Barry, 485 U. S. 312, 322 (1988) (some internal quotation marks omitted). What Westboro said, in the whole context of how and where it chose to say it, is entitled to “special protection” under the First Amendment, and that protection cannot be overcome by a jury finding that the picketing was outrageous.

For all these reasons, the jury verdict imposing tort liability on Westboro for intentional infliction of emotional distress must be set aside. (Op. at 12-13)

This is a hell of a victory for free speech. We live in a political environment where the Right wing wants to limit all speech that criticizes the war and the Left wants to limit all speech that hurts anyone’s feelings. With that backdrop, this decision will make very few people happy. Veterans and Republicans will go all Walter Sobchak about Vietnam and 9/11. The PC crowd and the Democrats will whine into their tofu and lentils as they piss and moan that the First Amendment should not protect speech that makes someone feel bad. Most average Americans will say, “that just doesn’t seem right.”

But then, there will be a few of us who recognize that without free speech, we are not America. A few of us realize that freedom means having to tolerate opinions that you despise. I hope that a few of my readers are among that group, and that you go out and evangelize the good word that came down today, and you realize that Westboro Baptist Church and its merry band of asshats just did more for the cause of freedom than every man and woman who died in any American military adventure since 1953.

For that reason, the Westboro Baptist Church is the first entity to receive both the First Amendment Bad Ass award and the Asshat award in a single blog post. May their members choke to death on both.

Supreme Court makes corporations slightly less impervious to FOIA disclosures

By J. DeVoy

In FCC v. AT&T Inc., No. 09-1279 – released today – the Supreme Court seems to have taken a position that will unite the politically liberal, who believe the right of privacy should be upheld for individuals, and the conservatives who doubt the propriety of any rights not enumerated in the Constitution or its amendments.

This case arises from a dispute between the Federal Communications Commission (FCC) and telecom giant AT&T, which was resolved with a consent decree in 2004.  CompTel, a trade organization representing some of AT&T’s competitors, submitted a Freedom of Information Act (FOIA) request to the FCC, seeking pleadings and other documents produced in its investigation of AT&T and subsequent settlement.  AT&T opposed CompTel’s request, and the FCC decided to withhold some of AT&T’s information from disclosure based on FOIA exemption 4, 5 U.S.C. § 552(b)(4), which protects trade secrets and commercial or financial information.

AT&T, however, wanted more information protected from disclosure under FOIA exemption 7(C), 5. U.S.C. § 552(b)(7)(C), which exempts “records or information compiled for law enforcement purposes” that “could reasonably be expected to constitute an unwarranted invasion of personal privacy” from disclosure.  While the FCC did not apply exemption 7(C) to AT&T itself, it concluded that exemption 7(C) could be properly invoked protect the privacy interests of individuals identified in AT&T’s submissions.  Nonetheless, the FCC did not invoke this exemption, as it was not designed to withhold information that was merely embarrassing information about a corporation, even if individuals were named in the submissions.

AT&T appealed the FCC’s decision to the Third Circuit.  The Circuit court concluded that the root of this personal privacy – the “person,” as defined in 5 U.S.C. § 551(2) -embodies corporations and, thus, so too should the notion of personal privacy within FOIA exemption 7(C). See 582 F.3d at 497.  After all, if a corporation is a “person” under the law, shouldn’t it be accorded the full protection of personal rights?  In some ways this would be congruent with Citizens United — but personhood, apparently, does not convey the full palate of personal rights to corporations.

The Supreme Court, led by Chief Justice Roberts (and with Justice Kagan sitting out, just like people warned Obama she would have to do) disagreed with this view of personal privacy.  The Justices’ first step was to delineate the line between a person and what was personal:

“Person” is a defined term in the statute; “personal” is not. When a statute does not define a term, we typically “give the phrase its ordinary meaning.” Johnson v. United States, 559 U. S. ___, ___ (2010) (slip op., at 4). “Personal” ordinarily refers to individuals. We do not usually speak of personal characteristics, personal effects, personal correspondence, personal influence, or personal tragedy as referring to corporations or other artificial entities. This is not to say that corporations do not have correspondence, influence, or tragedies of their own, only that we do not use the word “personal” to describe them.

And, as the corporation is a legal fiction – rather than an actual person – this makes sense.  Just because a corporation is treated as a person for a variety of reasons, including economy and administrability, does not necessarily mean it receives all of the protections of an individual.  And thus the court held that though a “person,” traditional and legal notions of what is “personal” are beyond what a corporation qua person may enjoy:

In drafting Exemption 7(C), Congress did not, on the other hand, use language similar to that in Exemption 4. Exemption 4 pertains to “trade secrets and commercial or financial information obtained from a person and privileged or confidential.” 5 U. S. C. §552(b)(4). This clearly applies to corporations—it uses the defined term “person” to describe the source of the information—and we far more readily think of corporations as having “privileged or confidential” documents than personally private ones. So at the time Congress enacted Exemption 7(C), it had in place an exemption that plainly covered a corporation’s commercial and financial information, and another that we have described as relating to “individuals.” The language of Exemption 7(C) tracks the latter.

The Government has long interpreted the phrase “personal privacy” in Exemption 7(C) accordingly.

In a devilish display of wit, the Court concluded its opinion on this note:

We trust that AT&T will not take it personally.

So, to those who feared the collapse of society as a result of Citizens United, fear not — or fear slightly less.  So long as statutory construction persists and we have jurists who do not roll “person” and “personal” into a shared meaning, there will be some curbs on what corporate power, even if limited to FOIA exemption 7(C).