The slow creep of the TSA / new site review

October 27, 2012

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?

October 2, 2012

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…

September 30, 2012

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

June 14, 2012

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.

April 26, 2012

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

April 24, 2012

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.

April 22, 2012

Rainbow Flag

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

March 16, 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

March 14, 2012

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.

March 13, 2012

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?

CNN Debate: Should FCC Boot Rush Limbaugh From the Airwaves?

March 12, 2012

On the side of kicking him off the air, Jane Fonda, Robin Morgan and Gloria Steinem.

On the side of protecting his right to free speech, Marc J. Randazza.

This is not the same debate over whether the subject of his diatribe has a valid defamation claim against him. I wrote about that here.

Judge should review history of First Amendment

March 1, 2012

Pennsylvania District Judge Mark Martin needs to review his First Amendment law a little more carefully. Ernie Perce, an atheist who marched in a Halloween parade last year dressed as “zombie Mohammed,” was before Judge Martin after he alleged he was attacked by Talaag Elbayomy, a Muslim who took action after he witnessed Perce’s costume.

Perce wore a turban and a long, fake beard and painted his face green. During the parade, he yelled the phrases “I am the prophet Mohammed! Zombie from the dead!” He marched with another protestor, who was dressed as a zombie pope, carrying a banner that read, “The Parading Atheists of Central Pennsylvania: Ghoulish, Godless, God-awful.” According to Perce, Elbayomy attacked him, and Elbayomy was charged with harassment.

Judge Martin dismissed the charges against Elbayomy and scolded Perce, telling the protestor he had been insensitive. He also called Perce a “doofus.”

“You have that right, but you’re way outside your bounds of First Amendment rights,” Martin said, according to CNN. “I think our forefathers intended that we use the First Amendment so that we can speak our mind, not to piss off other people and other cultures, which is what you did.”

To the contrary, our forefathers intended that all U.S. citizens be allowed to criticize anyone they chose. The very first American citizens often criticized Great Britain, who they viewed as overly oppressive to the colonists. You can bet that the Brits were none too happy about that. The purpose of the First Amendment is to ensure that all people are protected when expressing their views, even if such views are unpopular. As GW Law professor Jonathan Turley pointed out, “People like Thomas Paine spent his entire life ticking off people across the colonies.” Another founding father, Thomas Jefferson, was hostile to the Catholic Church and criticized it often.

Perce was within his right to express his religious beliefs as an atheist, and if Elbayomy had expressed his dissent in a non-violent manner, he would have also been within his right. Sure, the thrust of the First Amendment isn’t to promote behavior that offends other people, but that is beside the point. Just because Perce offended Elbayomy did not give Elbayomy free license to assault Perce.

Judge Martin’s rationale for dismissing the charges against Elbayomy most certainly should not have been because Perce intended to “piss off other people and other cultures.” This is exactly the sort of thing the First Amendment was intended to protect against. Yes, Perce’s costume was offensive to Elbayomy, but it didn’t rise to the level of fighting words—there were no “personally abusive epithets” required by Cohen v. California.  Judge Martin should not have let Elbayomy off the hook for assault just because Perce said something he personally didn’t like.

Judge Martin could learn a thing or two by looking back again at what the First Amendment actually protects.

It’s Not Over Yet.

February 9, 2012

I, for one, am elated that the Ninth Circuit Court of Appeals found Prop 8 Unconstitutional.  Source . However, I would be remiss if I didn’t at least bring up the one thing Prop 8 supporters have going for them- Prop 8 was passed by the voters. And that is a very good, very important point. Whenever the judicial branch overturns the will of the people, we all have an obligation to think twice about the rationale behind it. Even when our knee jerk reaction is to celebrate, take a moment for a sanity check because things may not always shake out in our favor. The Prop 8 supporters were right to bring this issue up and their briefing on the subject ain’t half bad.

That being said, and beyond the “will of the people” argument, I admittedly have a hard time understanding the Proponents’ reasoning. As far as I can tell, they feel that Prop 8 advances California’s interest in “responsible procreation and childbearing.” Stay with me here. They believe that children are better off when raised by two people who are, at least in theory, capable of biologically creating a child. That is, one man and one woman, because kids need both genders to partake in upbringing in order to become functioning members of society. The Proponents also say that Prop 8 reduces “irresponsible procreation”, e.g., there will be less bastards in the world. Therefore, they argue, because same-sex couples are not at risk of “irresponsible procreation” as a matter of biology and society has an interest in procreative sexual activity, there is simply no need to for same gender couples to get married. They also argued that Prop 8 would “protect” their little darlings from being taught in public schools that “same-sex marriage’ is the same as traditional marriage.”

The Ninth Circuit didn’t buy it, saying “[t]here is no rational reason to think that taking away the designation of ‘marriage’ from same-sex couples would advance the goal of encouraging California’s opposite-sex couples to procreate more responsibly.” The court went on to note “[o]nly if Proposition 8 had actually had any effect on childrearing or “responsible procreation” would it be necessary or appropriate for us to consider the legitimacy of Proponents’ primary rationale for the measure…[i]t is implausible to think that denying two men or two women the right to call themselves married could somehow bolster the stability of families headed by one man and one woman.” Did you catch the word “rational”? That’s the level of scrutiny, and in layman’s terms, it means you better have a really really really good reason for that law. I mean really good. Not just the “gay people make me feel ooky” platform.

Anyway, the long and short of it is that Proposition 8 is unconstitutional for two reasons: first, it deprives same-sex couples of the fundamental right to marry, which is guaranteed by the Due Process Clause, and second, it excludes same-sex couples from state-sponsored marriage while allowing opposite-sex couples access to that honored status, in violation of the Equal Protection Clause. This is because even though same gender couples have the same rights statutorily as their hetero counterparts, the Appeals Court focused on the lower court’s finding of fact that “[d]omestic partnerships lack the social meaning associated with marriage “and that the difference between the designation of ‘marriage’ and the designation of ‘domestic partnership’ is meaningful. The court relied heavily on Romer v. Evans, a United States Supreme Court case striking down an Amendment to the Colorado State Constitution that would have prevented anyone anywhere at any time recognizing gays and lesbians as a protected class. In his dissent, Judge Smith disagreed that the burden of denying marriage to lesbians and gays was similar to the burden in Romer and the really really really good reason (e.g. rational basis) was in preserving responsible procreation and optimal parenting. He noted that even though rational basis is the correct level of scrutiny, the fact Proposition 8 eliminates the ability of same-sex couples to enter into an official relationship designated “marriage,” they still have the same basic set of substantive legal rights and attributes traditionally associated with marriage,” so no harm no foul. He also disagreed that the separation of gays and lesbians as domestic partners was different and not as good as marriage.

Here’s the thing. The Court did not (and could not) consider the broader issue of whether gays and lesbians should be allowed to get married. The judges were limited to only determining if Prop 8, as enacted, violated the United States Constitution. The broader question of whether same gender couples should have the right to get married remains unanswered. What is noteworthy is that the district court found that “[t]he campaign to pass Proposition 8 relied on stereotypes to show that same-sex relationships are inferior to opposite-sex relationships.” Television and print advertisements “focused on … the concern that people of faith and religious groups would somehow be harmed by the recognition of gay marriage” and “conveyed a message that gay people and relationships are inferior, that homosexuality is undesirable and that children need to be protected from exposure to gay people and their relationships.” I will be paying very close attention to that issue in future cases. And, I hate to tell you, but Perry won’t be the Roe v. Wade type of landmark case if it’s affirmed (I have every reason to believe it will be). It’s just too narrow. We have a long way to go, kids, before we can put this baby to bed. And it promises to be an exhausting journey. But at least we have a start.

Georgia Supreme Court Helps Legitimize Assisted Suicide

February 6, 2012

By J. DeVoy

While illegal in 39 states, assisted suicide in not illegal in Georgia.  The state attempted to create the illusion that the practice was illegal, however, by outlawing public advertisement of assisted suicide services through OCGA § 16-5-5(b).  The statute did not forbid all offers to provide assisted suicide services, but only those publicly advertised.  Today, the Georgia Supreme Court struck down the law as an impermissible content-based restriction on free speech. Final Exit Network, Inc. v. Georgia, Case No. S11A1960 (Ga. Feb. 6, 2012).

Applying both the Georgia Constitution and the U.S. Constitution, the Georgia Supreme Court subjected § 16-5-5(b) to strict scrutiny.  Succinctly stating the position of its opinion, the Georgia Court wrote:

It is not all assisted suicides which are criminalized but only those which include a public advertisement or offer to assist. This distinction takes the statute out of the realm of content neutral regulations and renders it a selective restraint on speech with a particular content. See Ward v. Rock Against Racism, 491 U. S. 781, 791 (109 SC 2746, 105 LE2d 661) (1989) (“The principal inquiry in determining content neutrality . . . is whether the government has adopted a regulation of speech because of a disagreement with the message it conveys.”) (source.)

The court goes on to further eviscerate the state’s justification for banning advertising of assisted suicides:

The State argues §16-5-5 (b) is narrowly tailored because it reaches only those who publicly offer to assist in suicide and then, in fact, undertake an overt act to accomplish that goal. Had the State truly been interested in the preservation of human life, however, it could have imposed a ban on all assisted 5suicides with no restriction on protected speech whatsoever. Alternatively, the State could have sought to prohibit all offers to assist in suicide when accompanied by an overt act to accomplish that goal. The State here did neither. (source.)

The Final Exit Network decision is a very short but devastating opinion.  It also raises a number of concerns about the social and legal status of suicide in America.  For states with significant elderly populations – Florida, Nevada and Arizona come to mind – the manner by which they restrict assisted suicide may come under attack.  A full legal ban on all forms of suicide and assisted suicide, premised on the value of human life, likely would withstand constitutional attack.  If this goal is achieved from an outside angle as Georgia attempted, though, the laws may not withstand judicial scrutiny.

Being old – and especially extremely old – is a miserable existence.  I support strong penalties for murder and taking the lives of other human beings.  But when someone can no longer walk, can barely talk, has had their mental faculties degraded by alzheimer’s (or just old age), and has regressed to the point of requiring diapers to avoid daily humiliation, there is a serious question as to what value and dignity that life has left.  Would it be so bad if we allowed them to choose a time and place to bring about the end, rather than forcing them through years of semi-conscious misery to vindicate what are ultimately religious principles?  The same is true of the very ill – if it’s clear that the much needed liver or kidney transplant is not going to arrive in time, why be subjected to a degrading life of seizures, dialysis and pain?

The same arguments about medicinal marijuana, which liberals and libertarians are so fond of – that it helps people, and it does not directly harm anyone else – are equally applicable to suicide.  For many people, suicide is the best and possibly only way out from under whatever dilemmas are facing them, whether medical, psychological or financial.  By outlawing suicide, those who seek an exit are forced to inhumane and painful ends, using guns and pills to bring on a quick ending – and facing even worse consequences if they fail.  The unreasonable social shame surrounding suicide forces people who ultimately choose this route to live longer, more unpleasant lives, enduring the harsh scrutiny of others in the process.

Central to the concept of liberty is one’s right to do what he or she pleases until it runs into the rights of others.  Your life should, to the fullest extent possible, belong to you, which includes the way it is lived as well as the way it is ended.  The broad sweep of laws and public attitude against suicide is inimical to a truly free society.  Moreover, it is hypocritical for the United States to tout its position on freedom and yet take such a draconian position on suicide, assisted or otherwise.  While debates rage on about rights to own guns and receive healthcare, the right for citizens to have full control over their lives, including ending them without stigma or obstruction, has been totally overlooked.

What happened to Cohen v. California?

January 23, 2012

A man was arrested for wearing a jacket with a political message on it while in the history exhibit at the United States Supreme Court.

Yes, the same United States Supreme Court that said it was Paul Robert Cohen’s right to wear a jacket in a courthouse emblazoned with the message “fuck the draft.” Cohen v. California, 403 U.S. 15 (1971).

H/T: Paul Levy