Social media prohibition held unconstitutional

By Andrew J. Contiguglia

The 7th Circuit court of appeals Wednesday declared an outright ban on social media usage by convicted sex offenders to be a violation of the First Amendment. At the crux of the arguments is the public’s right to be protected from convicted sex offenders and the offender’s right to send and receive information – a core, fundamental concept under the First Amendment. The 7th Circuit recognized this conflict, but ruled that an outright ban on such information, even to sex offenders, violates the First Amendment. The court stated,

The state initially asserts an interest in “protecting public safety, and specifically in protecting minors from harmful online communications.” Indiana is certainly justified in shielding its children from improper sexual communication. Doe agrees, but argues the state burdens substantially more speech than necessary to serve the intended interest. Indiana naturally counters that the law’s breadth is necessary to achieve its goal.

The Sate of Indiana agreed that the goal of its statute was to curtail communication between convicted sex offenders and minors. However, the Court did not believe the statute was tailored in a fashion to limit such conduct, but instead cast a broader net, restricting speech that did not meet the ends of the Indiana law.

Turning to the Indiana statute, the state agrees there is nothing dangerous about Doe’s use of social media as long as he does not improperly communicate with minors. Further, there is no disagreement that illicit communication comprises a minuscule subset of the universe of social network activity. As such, the Indiana law targets substantially more activity than the evil it seeks to redress. Even the district court agreed with this sentiment, stating the law “captures considerable conduct that has nothing to do” with minors. Indiana prevents Doe from using social networking sites for fear that he might, subsequent to logging on to the website or program, engage in activity that Indiana is entitled to prevent.

I have followed cases like this one for quite sometime. The general consensus among the appeals courts is any form of “blanket prohibition” on Internet, or social media usage, will be a violation of the First Amendment. This issue has not directly been decided by the US Supreme Court, but the consensus among the circuit courts of appeal, and many state supreme courts, indicates a blanket prohibition will likely be overturned.

Here’s the opinion.

Drunk Driving Permits

Councilor Danny Healy-Rae

In Ireland, County Kerry Councillor Danny Healy-Rae proposed changing the law to allow drunk driving permits to rural inhabitants. (source)

Crazy?

Crazier still, it PASSED!

Mind you, I don’t really think it is crazy. In fact, I think that Mr. Healy-Rae is brilliant. I don’t know much about Ireland’s drunk driving laws, but I know that ours are a constitutional abomination. Lawrence Taylor’s The DUI Exception to the Constitution is a must read.

I think that we should follow Healy-Rae’s move here, in the United States. We should restore sanity to the drunk driving laws.

Despite what MADD wants us to believe, drunk driving never was the “carnage” they want us to believe in order to justify their existence and their funding.

My co-Satyriconista, Charles Platt summed it up:

State laws used to [allow] police to make a judgment call about impairment, based on their observations. But that wasn’t good enough for Candy Lightner, whose daughter had been killed by a drunk driver. In the wearying tradition of family members who want to make the death of a loved one seem more meaningful by inconveniencing everybody else, Lightner started Mothers Against Drunk Driving. The name of this brilliant campaign guaranteed its success. Who could possibly disagree with Mothers (that most sacred category of human being) who wanted to protect their children from alcohol-crazed hit-and-run maniacs? Alas, it ended up criminalizing the people whom it was supposed to protect. (source)

As Platt and Taylor remind us, there was a time when the law punished “impaired” driving. Now, it doesn’t matter if you are “impaired” or not — it matters if a breathalyzer, calibrated to the “average” person says you have a certain blood alcohol content. That measurement is garbage, since if you do not match the “average” calibration, you’re already screwed. Even so, at one time, the law said that .15 BAC was ok. Then, not enough convictions for MADD, so the limit dropped to .12, then .10, then .08, and there are pushes to get it even lower.

Blood alcohol content does not measure “impairment” – it measures BAC, and does not even do it very well. Meanwhile, as Taylor eloquently informs us, we have a swelling body of precedent creating exceptions to our most important constitutional protections, because of this paranoid fear that a drunk driver is waiting (along with a terrorist and a child molester) around every corner.

I do not advocate driving while too impaired to do so. I’ve done it. I worked my way through a few years of college by driving a taxi. I’d lease the cab for 36 hours, and sometimes I would drive for all 36 of them. Yes, I would swing in to Logan Airport and pick up some unsuspecting family after being awake and driving for 35 straight hours. If they had any idea how impaired I was, they would have jumped from the cab while I was weaving and swerving down Storrow Drive. Meanwhile, if a cop pulled me over for suspicion of driving while intoxicated, I’d blow a perfect 0.00 on the breathalyzer. If you talk on a cell phone (hands free or not) you are just as “impaired” as if you were over .10. Meanwhile, every car comes with a handsfree bluetooth hookup. Even minivans designed to be full of screaming children.

Put an over-stressed mother behind the wheel of a minivan full of screaming kids, yakking on her cell phone or the same mother, after a restful night’s sleep and three glasses of wine at dinner, and I guarantee you, you’re more likely to be killed by her in the first scenario.

Drunk driving laws have very little (if anything) to do with safety. They are about cheap political points. How do you say no to a grieving father shrieking “STOP THE DEATH ON OUR HIGHWAYS!” You can’t, not if you want to get re-elected in the age of 24 hour news.

But… half kidding, but half serious, why not have an alcohol permit?

You get your license. You drive for a few years. After you drive for 5 years, you get to go to the DMV and take a test. You drink until your BAC measures .10. Then, you drive an obstacle course. Make the test rigorous. Maybe even require you to come back a few times. You pass? You get a .10 permit. Crank it up every year or so until you are actually “impaired.” If you can show that you can drive, consistently, with a .20 BAC, then fine, drive with a .20 BAC.

But, along with that permit, you must buy a purple flashing light that goes on your roof. And, you must drive at 25% lower than the speed limit.

That way, the people who cower in terror at the boogeyman of the drunk driver, can see the “drunk” driver coming a mile away. They can pull over and let him pass if they are really afraid. Or, since he’s going so slowly, pass him.

Either that, or return the law to the state that it was in when it made sense — driving “while impaired” is illegal. Driving “while having measurable alcohol in your system” is not longer illegal. MADD goes out of business. We get rid of the DUI exception to the Constitution. Everyone wins.

H/T: Teresa

Happy Christmas. Fuck You.

Denham Springs, Louisiana resident Sarah Childs was in a dispute with her neighbors. So she exercised her First Amendment rights and created a special holiday message just for them.

The neighbors were not happy about this and complained. A lot. And Miss Sarah fought back. Source.

I’ve composed this Christmas poem just for her.

‘Twas the month before Christmas and all through the ‘hood
The neighbors all gossiped that Sarah’s no good.
Angry and tired her response did not linger
A Holiday light show comprised of a finger.

“Outrageous! Offensive! How dare she!” They whined
They called the cops and so she was fined.
She took down the show and felt quite dejected
Until the ACLU interjected.

The attack on free speech is a thing that’s quite shitty
So Sarah fought back and they sued the city.
The cops and the mayor remained so undaunted
that Miss Sarah’s steps from then on were haunted.

“I know what we’ll do!” Said the city with glee.
“We’ll make her sorry! You wait and see!”
A citation here and a ticket there
So much to the point that it’s hard not to care.

A wonderful plan was retaliation
Until they got nailed for a rights violation.
The lights went back up this time on the double
And this for poor Sarah was nothing but trouble.

The neighbors began to snivel and wail
This time they tried to throw her in jail!
The lights came down alas one more time,
It seemed all was lost- those fiends! That slime!

But the judge took her side and told the city to suck it
That First Amendment-ain’t no way you can duck it.
And all through the town her message rang true,
“Happy Christmas to all and to all a fuck you!”

Federal Circuit’s COCKSUCKER Decision Sucks

As many long-time readers know, Section 2(a) of the Trademark Act is one of my pet peeves. This is the section of the Trademark Act that gives pretty much unfettered discretion to a trademark examiner to deny a trademark registration on the basis that the mark itself is “immoral” or “scandalous.” The Federal Circuit just decided In Re Fox, in which it reaffirmed some very bad law, and in which it lacked the integrity to address some Constitutional fictions upon which most 2(a) denials are based.

“[n]o trademark by which the goods of the applicant may be distinguished from the goods of others shall be refused registration on the principal register on account of its nature unless it[] (a) [c]onsists of or comprises immoral, deceptive, or scandalous matter.” 15 U.S.C. § 1052.

One of the most absurd elements of a 2(a) denial is that the evidentiary standard is so open to abuse. An examiner may prove “immorality” or “scandalousness” by simply establishing that the mark is “vulgar.” In re Boulevard Entm’t, Inc., 334 F.3d 1336, 1340 (Fed. Cir. 2003). Essentially, if the examiner finds a single online dictionary or chat board where someone says “that’s vulgar,” then that is usually enough for the examiner, the TTAB, and the Federal Circuit.

So, another 2(a) denial is just a “ho hum” event. But, this portion of the opinion shows just how little respect the Federal Circuit has for Constitutional issues. I mean, come on guys, at least try and make it look like you didn’t just mail it in.

The prohibition on “immoral . . . or scandalous” trademarks was first codified in the 1905 revision of the trademark laws, see Act of Feb. 20, 1905, Pub. L. No. 58- 84, § 5(a), 33 Stat. 724, 725. This court and its predeces- sor have long assumed that the prohibition “is not an attempt to legislate morality, but, rather, a judgment by the Congress that [scandalous] marks not occupy the time, services, and use of funds of the federal government.” In re Mavety Media Grp. Ltd., 33 F.3d 1367, 1374 (Fed. Cir. 1994) (quotation marks omitted). Because a refusal to register a mark has no bearing on the applicant’s ability to use the mark, we have held that § 1052(a) does not implicate the First Amendment rights of trade- mark applicants. See id. (Op. at 2)

I find it outrageous not just because the court is wrong, but because the court was so glib and dismissive of the First Amendment.

Trademarks propose a commercial transaction; speech that proposes a commercial transaction is “commercial speech” and thus subject to First Amendment protection. Virginia State Bd. Of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748, 762 (1976). Trademarks convey messages about the type, cost and quality of the product or service associated with the mark. See Friedman v. Rogers, 440 U. S. 1, 11 (1979). The trademark is a tightly targeted bit of expressive activity that seeks to persuade a potential customer to choose one product over another, either due to the identification of goods or to the communicative element of the trademark itself.

Thus far, all USPTO decisions regarding the constitutionality of Section 2(A) rely upon the improperly decided case In re Robert L. McGinley, 660 F.2d 41 (Fed Cir. 1981).

McGinley is where we get the idea that since trademark applicants are still free to use the trademarks, then there is no abridgment of speech if your trademark is denied registration due to its content. However, this reasoning is simply shoddy and contrary to a body of First Amendment jurisprudence. For example, in striking down New York’s “Son of Sam” law, which prohibited criminals from profiting from writing books about their crimes, the Supreme Court held “[a] statute is presumptively inconsistent with the First Amendment if it imposes a financial burden on speakers because of the content of their speech.” Simon & Schuster v. New York State Crime Victims Bd., 502 U.S. 105, 115 (1991). In the Son of Sam case, the authors were still free to write, but were denied the financial benefits of their labors. That was the end of that law. This appears to completely dispense with the McGinley reasoning.

Bad Frog Brewery, Inc. v. New York States Liquor Authority, 134 F.3d 87 (2d Cir. 1998) analyzed a similar issue. In that case, the appellant sought to use a trademark of a frog giving the finger. The Second Circuit held that since trademarks are commercial speech, prohibition on use of so-called “offensive” trademarks did not advance the stated governmental purpose of protecting children from vulgarity or promoting temperance, nor was it narrowly tailored to serve that purpose. Not binding on the Fed. Cir., but I think that the Fed. Cir. is the wrong place to challenge McGinley. There is no indication that the Fed. Cir. will ever admit that it was wrong in McGinley, and every time it gets a chance, it doubles down.

Finally, there can be no clearer authority for the death of Section 2(a) than Lawrence v. Texas. (“The fact a State’s governing majority has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice.”)

“Morality” is not a valid reason to confer or deny a governmental benefit – instead the government must articulate a reason why registration of a mark might be harmful, and then apply that reason to the particular circumstances at hand, in a narrow manner. The government has done none of this in this case, nor in any other 2(a) denial.

2(a) Delendum Est!

Talking to your kids about gay marriage

I used to have neighbors in Flori-duh, whose argument (to me anyhow) against gay marriage was “what am I supposed to tell my kids?“

Louis CK had a funny reply to that.

“It doesn’t have ANY effect on your life. What do you care? People try to talk about it like it’s a social issue. Like when you see someone stand up on a talk show and say ‘How am I supposed to explain to my child that two men are getting married?’ I dunno, it’s your shitty kid, you fuckin’ tell ‘em. Why is that anyone else’s problem? Two guys are in LOVE but they can’t get married because YOU don’t want to talk to your ugly child for five fuckin’ minutes?”

The issue came up with my daughter, yesterday. Age 4.

She asked what I was reading. I told her, “an article about a Supreme Court case” – 5 questions later, and it was time to make something up, or just tell her, and see if she got it.

I brought up one couple we know who are legally married (and happen to be my son’s “godfathers”). I told her “they are married, like mama and daddy, because they love each other.”

“Oh” she said.

I then told her about our cousin and his boyfriend of 25 years – who we also refer to as “cousin.” I said “they love each other just as much, but they are not allowed to get married, because they live in Las Vegas, which is in Nevada.”

“Oh. That’s not fair.”

There… conversation had. That wasn’t so hard.

I’m glad that my four year old understands the Equal Protection Clause better than some judges. When the gay marriage cases come before the Supreme Court, I’ll be impressed if Samuel Alito or Clarence Thomas are able to show as much intellect and wisdom as a girl who thinks that Santa Claus is a member of the First Amendment Lawyers’ Association.

The slow creep of the TSA / new site review

By J. DeVoy

Roosh, the celebrated love tourist and proprietor of Roosh V, has a new project titled Return of Kings.  In one of its first posts, he addresses the TSA’s gradual metamorphosis into a pseudo-police force accountable to no one but themselves.

Roosh’s experience is not as jarring as Amy Alkon’s.  However, it is jarring to read as a citizen of a country that professes to have and protect the Fourth Amendment.

With the flats of his hand he pressed through every inch of my torso. He lifted my shirt slightly and felt around my jean waistline. Then he ironed my legs and the side of my thighs. He didn’t touch my crotch area. [...] I had thought the pat down was going to be similar to how some nightclubs do it, but it was intimate enough that I’m sure the agent knows I’m not skimping on my deadlifts.

Roosh even comments on the TSA’s proclivity for stealing passenger’s possessions.  While not apropos to his article, it is worth noting that TSA agents have included alleged child molesters, proving once again that there is no bar too low for entry into the blue shirt brigade of losers and misfits.

Finally, a solution is proposed that is equal parts critique of the TSA’s inability to truly fulfill its stated mission and indictment on the complacency of cowed Americans:

It took about four minutes for my pat down procedure while the x-ray machine takes 15 seconds. If just 10% of flyers opt out, the whole thing shuts down and they’ll have no choice but to stop using them. The fact that most Americans don’t want to be inconvenienced for only four minutes tells me how much they care about having an increasingly authoritarian government.

Return of Kings looks to be a kind of introduction to Roosh’s school of lifestyle and travel advice.  If books such as “Bang Poland” and “Don’t Bang Denmark” don’t appeal to you, I feel bad for you.  However, if you’re weary of American culture that chides you for not thinking a costly, debt-financed B.A. from Bovine University is impressive, and skeptical of following the traditional path of a soul-crushing cube job to support a widening wife and your(?) insatiable-yet-ungrateful spawn, the site seems to be a soft introduction to the kind of subversive thoughts that have led others to ditch the American rat-race.

Is there room for exceptionalism in the case of anti-Semitic speech?

In Slate, William Saletan asks “How can we ban hate speech against Jews while defending mockery of Muslims?”

By “we” he does not mean America — but the entire West. Saletan correctly points out that it is, certainly, less tolerable to engage in “hate speech” that offends Jews than “hate speech” that offends Muslims. He thinks this is deeply hypocritical, calling for equal treatment of this kind of speech — ban it all or tolerate it all. This logic resonates with me as a free speech advocate. But, is it correct? Is there a rational basis, or even a compelling reason, for treating anti-semitic speech differently?

Many of the laws that chap Saletan’s ass are laws in European countries prohibiting pro-nazi speech, or holocaust denial. Perhaps he is correct. Perhaps logic and justice dictate that we consider all speech to be equal. However, I think we do even the cause of free speech a disservice if we do not at least consider the notion that maybe hate speech aimed at Jews is properly placed in a different category than other hate speech.

There is no arguing that Jews have had a unique experience. The Inquisition, pogroms, and then finally the Holocaust – an actual coordinated, industrialized, effort to exterminate an entire race of people from the face of the Earth. Is there no room in the religious discipline of the exaltation of free expression for exceptionalism? When certain speech (in this case anti-Semitic speech) has provably led to one of the most horrific examples of evil that mankind has ever known, is there no argument in favor of devaluing that speech?

I do not say this to endorse exceptionalism in the case of anti-Semitic speech. I have somewhat absolutist views toward free speech. I do, however, think that those of us who hold free speech up as an almost religious concept must be mindful that we remember one of its purposes — wide open and robust debate. We do our cause little service by simply ignoring the possibility that we could be wrong. Saletan’s weakness is not that he is wrong, but that he fails to show any respect for the fact that exceptionalism might be based in something tangible, reasonable, and rational. There is a valid interest in play — the interest of a distinct minority in not being brought to violent extinction. There should be room in any absolutist’s mind for some respect for that interest. Perhaps that interest can be satisfied by something less than exceptionalism, but it can never be satisfied if we simply pretend that it does not exist.

Awfully Convenient…

Nakoula Basseley Nakoula, the director of the “Innocence of Muslims” movie, which has been blamed for setting off riots and murders in Islamic countries, has (conveniently?) been arrested for violating the terms of his probation. Among the terms of his probation: He was not allowed to se the Internet or a computer, which I presume he had to do in order to create and distribute his film. (source). From the sounds of it, the guy isn’t the most savory character in the world.

So yeah, it seems to me that he probably violated his probation.

Greg Pollowitz at The National Review wrote:

Listen, if you’re a two-time felon who is out on parole and told not to use an alias in business dealings or use the Internet and then you lie to reporters at the AP and WSJ using your alias and admitting you used the Internet, then what do you think is going to happen? (source)

Which is the only reason that he is now being held without bail, right? (source). Right?

It doesn’t have the slightest bit to do with the content of his film or the way that a bunch of idiots, brainwashed with superstition, reacted to it.

Let us presume that my cynicism is misplaced. Let us presume that it has nothing to do with that. It still sends the wrong message — that when the government does not like your speech, it can find a way to get you, First Amendment or no First Amendment.

Nikki Finke and Dominic Patten, at Deadline Hollywood saw it this way:

His arrest today is an apparent U.S. attempt to appease worldwide Muslims and their clerics and governments demanding for the YouTube video to be removed and its filmmaker punished. In an address on Tuesday condemning the content of the video, President Obama explained, “The strongest weapon against hateful speech is not repression, it is more speech.” This legal action is a way to preserve America’s  First Amendment principles but at the same time find a roundabout but legitimate way to punish Bakoula for the crudely made film that portrays the Muhammad as a religious fraud, womanizer and pedophile. (source)

I’m not saying that Nakoula should get a free pass for his probation violations. I am not saying that Finke and Patten are correct. Pollowitz has a hell of a good point. Nakoula couldn’t have made his probation violations any more public, and thus prosecutors had to do something.

Nevertheless, if Muslims are allowed to riot and kill people because they are offended at how their imaginary friend gets portrayed, I’m allowed to be offended when the government sends the message (on purpose or not) that “if you publish a film that we don’t like, we’ll find a way to put you in jail.”

ACLU sues after middle school girls expelled over Facebook comments

The ACLU filed a complaint in the Northern District of Indiana against the Griffith Public School district after it expelled three middle school girls for a lengthy conversation they had on Facebook outside of school hours.  According to the complaint, the conversation “spanned numerous subjects,” beginning with one girl complaining on her Facebook wall about cutting her legs while shaving (#FirstWorldProblems), before turning to which classmates they would kill if given the chance. The comments were littered with the typical cutesy teenage girl sprinklings of emoticons, OMGs, and LOLs, and most of the comments were directed toward the “ugly” girls, a la Mean Girls fashion. The comments were contained to Facebook, and subject and post were not discussed on campus.

Two days later, after another person presented a screen shot to school administrators, the girls were expelled from school for violating student handbook policies on bullying, harassment, and intimidation.  Griffith Public School later informed the girls they were expelled for the remainder of the school year, but would be able to continue to the ninth grade the following year.

The ACLU contends that this action was a violation of the students’ First Amendment Rights, as the comments were “clearly made in jest” and did not constitute a “clear threat.”  The ACLU also states in the complaint that the comments did not disrupt school activities.

Students notoriously have very few rights, and schools generally have had wide latitude to punish activity outside of school.  It will be interesting to see how the case proceeds.

Say What You Like About the Tenets of National Socialism, Dude, at Least it’s an Ethos.

I’ve had a soft spot for banned books for many years. It started in high school when my English teacher produced from the dank and cloistered School Board file room a list denouncing certain books as verboten because my fragile teenage mind would be forever ruined by the filth contained on the pages therein.

Needless to say, I spent the next day in a used bookstore locating and purchasing as many of the verboten as I could find. And I am proud to say my home library has since become a cornucopia of evil tomes that the thought police would love to use as kindling. As an aside, and in deference to pop culture, if you want to read a book about kids killing each other, skip The Hunger Games and read Lord of the Flies instead. All the unsettling imagery and none of the teenage fan-girl bullshit. But I digress.

Having a constitutional republic form of government has made Americans lucky enough to have the concept of individual freedoms that many others do not enjoy- particularly relating to speech. The First Amendment, for the most part, prevents said government from banning the publication of books based on their content. OK, I’m still hoping that a magic fairy will drop an uncensored first edition copy of Operation Dark Heart on my doorstep, which will never happen, but barring the odd exception, Americans are free to choose what they will read, no matter how offensive or disgusting it may be to another person. Book banning in this country is, by and large, limited to the handful of frustrated malcontents who don’t want schoolchildren reading this book or that, usually because it has language harsher than “oh, dear” and some flavor of sexual…well…anything.

Citizens of other countries are not so lucky, which brings us to Bavaria. And Mein Kampf. And I do mean Mein Kampf. The famous and controversial screed memoir Adolf Hitler wrote while in prison was first published in 1925. By the time he became Chancellor in 1933, it was immensely popular, and was made much more so during the Third Reich. Then, when World War II ended, the Bavarian government was given the copyright to the book, which it promptly used to squelch the sale, publication, ownership, and distribution of. And it has continued to do so ever since. Please understand that this is perfectly acceptable in Germany; it has no First Amendment and certain kinds of speech in Germany are actually considered criminal, including anti-Semitism and hate speech. So it kind of makes sense a book riddled with both would be kept out of the hands of the public.

The copyright term of protection in Europe is life of the author plus 70 years, as it is here in the States. On April 30, 1945, Der Fuhrer did us all a favor and shuffled himself lose the mortal coil, which gives the Bavarian Government three years to do…something…before Mein Kampf is yanked from its grasp and unleashed upon the unsuspecting masses. In light of this, and to make sure it maximizes its ability to control the work, the Bavarian government has decided to publish, for the first time since World War II, the weird, whiny ramblings of a man-child with serious daddy issues. Source 1. Source 2.

Hooray. But there’s a huge caveat. The Bavarian government’s version is going to be heavily annotated and edited, which is for the explicit purpose to “keep it from being abused for political aims – and to limit profits for future publishers”. This means that what Germans are really going to get is a watered-down, cleansed version with an instruction manual telling them to how to read and what to think. By publishing its version a mere three years before it loses the rights forever, the Bavarian Government admittedly hopes to make future German editions as “commercially unattractive” as possible. And Karl Freller, the director of the Foundation of Bavarian Memorials, said he would seek “intense” discussions with bookshops and publishing houses in the hope that they would voluntarily avoid selling or reprinting un-annotated versions of Mein Kampf when its copyright expires. Oh, irony, how I love thee.

I, for one, am dubious of any government-approved version of a book that it previously deemed socially or politically unacceptable for the masses to read. I am inherently resentful when anyone, especially the government, tries to tell me what to think and it sends a chill up my spine to think that some nameless faceless conglomerate could have the power to deem what should be printed and what should remain hidden. And I believe that Germans are intelligent enough to make their own decisions; there is no need for commentary or editing to prevent frowned upon “political aims”. As a friend of mine recently said, “sunshine is the best disinfectant”. Nobody needs a Disney-fied version of Mein Kampf- they need the original work. And the Bavarian government is doing a large disservice to its citizenry with its attempts to control the dissemination and future publications of the work. They had 67 years to sort it out and chose the “you’re too stupid to read this” route. This reminds me once again just how important the First Amendment is and why we fight so hard to defend it.

I’ve actually read Mein Kampf. I chose to read the English translation as approved by the Third Reich, not some slanted interpretation where a fuzzy-brained academic tells me what it means. And I can tell you Mein Kampf is an exhausting and manic read. It’s ugly, stupid, and in all other ways time better spent cleaning the catbox. Rumor has it Benito Mussolini said the book was boring and he was right. Mein Kampf is boring. And dense. And whiny, rambly, grammatically incorrect, and in all other ways a chore to read. But I forced myself to finish it. Not for some sick need to delve into the macabre, but because it’s that important. That whiny rambling lunatic inspired a nation and went on to kill millions without so much as a “by your leave”. Let that sink in for a minute.

It sets a dangerous precedent to plug our ears and minds to words we don’t want to hear. It is absolutely terrifying to permit a government to do it for us. How can you face and prevent an evil from reoccurring if you don’t understand what seeds it the first place? How can you fight evil if you blindly believe everything you’re told? If we can learn anything from Bavaria it is how important it is to not let the government think for you. I don’t need bureaucrats to tell me what Mein Kampf means and neither do you. I am aware that World War II is a touchy subject in Germany, so perhaps I’m being insensitive. But the proper answer to hateful speech is more speech, not less. Perhaps I’m taking for granted the freedoms we Americans have with our literature. We can choose to read Hitler’s words or we can choose not to. The Bavarian government is not giving its citizens a choice and that makes me sad. An unedited version of Mein Kampf provides a unique glimpse into the mind of one of the most important figures in world history. It deserves to be examined as it was written, not neutered and then swept under the rug.

The point is, you can’t protect yourself and society from evil words and deeds by pretending they don’t exist. You can’t cleanse through commentary the horror of genocide and the evil of complacency. While many Americans willingly bury their heads in the sand, in other places in the world, it is done for you. Remember that next time you want the government to step in and silence a viewpoint you hate. Can you imagine what this country would be like if the government had the power to tell you what to read?

Now if you’ll excuse me, I’m going to go re-read 1984. You should, too

U.S. v. Heicklen Explained – a Win for the Wizened and Worried

By Larry Sutter, Special to the Legal Satyricon

The Southern District of New York recently issued its order dismissing the United State’s case against Julian Heicklen.  The order is available here.  While this is an interesting case about the protection of speech advocating jury nullification, what is even more interesting is the story behind it – from both the people involved to the affect it has had on New York’s legal community.

The Defendant: An 80-year-old retired chemistry professor who believes in freedom and liberty. Like, a lot. He stands in front of the federal courthouse in lower Manhattan handing out pamphlets advocating jury nullification. Calling him “cantankerous” is an understatement that does violence to the language: With his counsel’s motion to dismiss still pending, he addresses a letter to the federal judge who has his case firing his court-appointed standby federal defense counsel–a letter in which the salutation is “Dishonorable Judge Wood,” and the closing is “yours in disgust and hatred.” Among other requests, the letter sought the indictment of the District’s US Attorney.

As part of the investigation, the US Attorney sends an undercover agent posing as a juror to talk to the professor – who advises him he has the right to decide both the law and the facts in the interest of justice. The professor is then indicted for violating the federal jury tampering statute, 18 U.S.C. § 1504. Ironically, such a charge does not merit trial by jury.

The federal defenders, who moved to dismiss the case on every possible ground before they were fired, including § 1504’s vagueness and overbreadth in violation of the First Amendment. But even in their briefs, the defenders refer to their client as a “shabby old man distributing his silly leaflets.”

New York’s legal community has drawn its battle lines over the case, spawning numerous articles on our precious heritage of freedom.  Prominent attorneys forecast that mere anarchy would be loosed upon the world—as two eminent lawyers argued last December in The New York Law Journal:

“Pause for a moment to imagine how this would work in practice with cases involving politically heated and classically divisive social issues….Runaway jury verdicts would amount to little more than a random 12-person vote….Talk about an engraved invitation for chaos—indeed, anarchy.”

Indeed? Indeed! Which the prosecutors were glad to echo. Last month, an Assistant U.S. Attorney characterized Heicklen’s advocacy as “an absolute threat to the system,” during a hearing on the defendant’s motion to dismiss.

But then comes a noble-visaged Portia of a judge to render justice between these parties.  Filleting the statute as skillfully as the countermen at Zabar’s wield their razor-sharp knives upon the $28-a-pound Nova Scotia salmon, Judge Kimba Wood rules that because the statute—giving effect to all its language, not allowing any of its provisions to be condensed or duplicated—only forbids attempting

“to influence the action or decision of a juror upon an issue or matter pending before that juror or pertaining to that juror’s duties by means of a written communication made in relation to a a specific case pending before that juror or in relation to a point in dispute between the parties before that juror.” (Emphasis the Court’s.)

Therefore, generalized exhortations—as opposed to urging the juror to throw a specific case—are OK. (source)  And you don’t even have to get to all those tricky First Amendment issues, do you?

Nevertheless almost half the decision is spent not getting to the First Amendment issues. In particular, the judge found that the danger, whatever it might be, in free-floating jury nullification advocacy wasn’t clear or present enough to pose “a danger to the administration of justice.” Why shouldn’t the jurors respond as sympathetically to the judge’s instructions to follow the law as she gives it as they might to Heicklen’s exhortation to disregard it?  Indeed, Judge’s Wood statutory interpretation reached the same result Heicklen’s counsel urged in their overbreadth argument, namely, that to convict Heicklen for what he was doing would be to punish protected First Amendment activity, viz.,  speech not directed to a specific case or matter before a particular juror.

Heicklen is said to be pleased and is reported to be planning to resume his post Monday in Federal Plaza and, afterwards, go to lunch with his supporters. Dutch treat, of course. It’s reported (on Scott Greenfield’s Simple Justice blog) that his email to this effect was signed, “one small step for a shabby old man, but a giant leap for justice and our country.”

Every Now and Then, Arizona Gets it Right.

This weekend is the Phoenix Pride Festival. It’s true that most Pride celebrations are later in the year; usually June or July. A friend asked me why so early for we here in Arizona. The answer is deceptively simple. Have you BEEN to Phoenix in July?? And yesterday it was hot- over 100 degrees- which is warm even by Arizona standards for this time of year.

That didn’t stop the Mesa Police Department and even a couple of members of the Maricopa County Sherriff’s office from marching in uniform in this year’s Pride Parade. Source.

Mesa Police Chief Frank Milstead’s decision to permit his officers to march in their uniforms was not without controversy. Those opposed to the decision have been trying to paint the issue as a political one; a law enforcement entity should portray absolute objectivity and avoid issues that can give the appearance of bias. Or some other such nonsense. The parade is to celebrate diversity and equality for all, not to push a political agenda. But if it makes those folks feel better, we did have those sign carrying protestors telling us we’re all going to burn in hell. One of them called me a “Gaylord”. I’m still not sure what that is, but I don’t think he meant it as a compliment.

Anyway, bravo, Mesa PD and MCSO. Bravo, indeed.

Feminist War of 2012

By Tatiana von Tauber

I’m embarrassed to be an American woman with witness to the current state of the Union.

Being a woman is without a doubt the most difficult process of becoming I’ve ever undertaken especially since I began my role as a mother 14 years ago. Nothing prepares you for the experience of motherhood better than truth and so I feel the same about the future of young girls in America.  There are many I know who were totally lost in the wake of the conservative pool of stupidity in the days of GWBush and his side’s abstinence education policies in American schools.  There is an entire generation of kids who are completely misinformed about birth control and sex because of religion.

More and more I feel battered by having the feeling women were given erotic beauty for reproductive purposes – that selfish gene – and then, as though being whores weren’t enough, women were thrown into the immature flatlands of male needs where they were then expected to create synthesis. However, a bit of a power struggle later, women became those to not only seduce, but birth, nurture and support an entire family, if not society yet be given “jump for the carrot” freedom on body parts – by the very men they birthed!  How did America come to be like this? If American politics continue to enter the domain of a female’s sex life,  America has little to offer women of the next generation.

I’m drained from realizing Congress is really a bunch of men who can’t get their heads out of the female genitalia.  If they don’t pay to get in one they pay for others to stay out of one!  For the men who are playing around with this issue, women are only a piece of ass and little more, except maybe for their little girls who are a piece of ass for the boy next door. For women who support recent attacks on female rights in the name of being faithful to a God, I have no words, only disgust.

Reproductive rights, the womb, women’s health – all of it has to do with the absolute power this birth right gives to women; and patriarchy has never been stronger in modern America! As an American I am so appalled at this downfall of this great nation – that the womb and its ownership, the vagina and a woman’s health are on the table of political discussion rather than the real issues that need immediate attention, it all makes me want to throw up on Congress.

The bottom line to all this rhetoric is this: women have the power to veto men through sex and men don’t like that. Thank you Dr. Leonard Shlain for helping me understand this through your wonderful work, Sex, Time and Power (may you rest in peace) but how about a little help down here with the rest of the blind folks, eh?

The last time I checked, my kidney belonged to me and nobody could force me to do anything specific with it.  The main reason the womb is different is because it controls males’ sex lives.  The fact that women are under attack, in America, in 2012 stuns me.

Here’s my contribution to the debate: “Feminist War of 2012″.  I designed this back in 2007 or so and struggled with a proper title.  The Image just found its perfect match and almost sadly, its perfect time.

"Feminist War of 2012", ltd. ed. Giclee, 13"x19" by Tatiana von Tauber

Bonus material to chew on: 

Speaking of controlling women, this is an example of how women get screwed by men and the baby fantasy and how media uses them to make money to help glorify the chaos and continue the cycle.  See Kate Gosselin, mother of 8 now.

Great post and kick ass quote: The Body Politic, “This campaign needs more women and less gynecology” – Virginia Heffernan

Florida Airport Seeks to Evict the TSA

By J. DeVoy

The Orlando Sanford Airport (not to be confused with Orlando International Airport) is going to try removing the TSA from its security theater and using private security teams in its place.  While the airport would not be exempt from federal regulations and oversights, it may be able to operate without the TSA’s costly involvement.  While new federal legislation enhances the ability of airports to evict the TSA, airports currently cannot unilaterally fire the TSA and operate with private security unless authorized to do so by the DOT.  But, we dare to dream.

It is remarkable that this happened in Floriduh, a swamp as paternalistic as it is backward and meth-addled.  What one hand giveth removing the TSA, the other takes away by arbitrarily prosecuting anything that looks like erotica.  If the Orlando airport’s bid to remove the TSA is successful, I can only think to compare it with a drunken, abusive father punching the 7th grade bully in the mouth, one tyrant subduing another.

Your Elected Officials Just Kicked the First Amendment Square in the Nuts.

And don’t even think about whining about it. Source.

Here’s the text of HR 347, the festering shitburger your government passed and your president signed. Kids, this is no longer an issue of politics and which party sucks more. HR 347 passed with overwhelming support.

P.S. Did you know the G8 Summit this spring has been moved from Chicago to Camp David?