Monthly Archives: June 2007

The Television Is Coming For Your Children!

Senator Jay Rockefeller, hailing from the peace-loving state of West Virginia, believes that the programming on your television is too violent. And nothing– not even the first amendment– will stop him from trying to protect you from that television.

Sen. Jay Rockefeller, D-W.Va., said he will push legislation in the coming weeks to limit violent content in the media.

“I fear that graphic violent programming has become so pervasive and has been shown to be so harmful, we are left with no choice but to have the government step in,” Rockefeller said at a meeting of the Senate Commerce, Science and Transportation Committee.

“To be blunt, the big media companies have placed a greater emphasis on their corporate short-term profits than on the long-term health and well-being of our children,” Rockefeller said.

If Jay Rockefeller really wants to help the long-term health and well-being of the child my wife is expecting in two months, he’ll lower my taxes enough to make it possible for me to afford to keep that child out of the public education system. I’d prefer he leave the choices of what to watch on TV to me. I’ll take care of my children, I don’t need to government to do it for me. I’ve got enough problems paying for and dealing with the government’s current intrusions into my life, the last thing I need is a new one.

Ted Stevens, who’s never met an unconstitutional federal dollar he didn’t try to shove in his pocket and take to Alaska, somehow decided today was the day to fight for free speech. My guess is that he’d be right on board if Rockefeller had an R after his name instead of a D.

“I think we have to tread a lot softer than you indicate,” Stevens said. He said he was concerned about First Amendment implications of any legislation and the possibility that Congress might overreach and pass a law that would be invalidated in court.

One of the heads of Fox came out to do some damage control. He knew that he was in a room full of people who don’t care about the Constitution, so he tried to play the spin game. I’d hate to remind him that they don’t care about results or causal links either, it’s all about political pandering anyway:

Witnesses at the hearing included Peter Liguori, president of entertainment for Fox Broadcasting Co., which produces the show “24.”

Liguori said that there was “no causal link” between television violence and violence in young people, an issue that has been hotly debated. “Without a causal link, we cannot justify imposing content limits on our media,” he said.

Personally, I’d say that without a Constitutional amendment, we can’t justify it… But that’s just me.

Instead, if this passes, we’ll have a blatantly unconstitutional law. And like many laws passed purely to placate sensibilities, it’s about as clear as mud.

One thing the FCC did not do in its report was define the meaning of “excessively violent programming that is harmful to children” which would be at the core of any legislative initiative.

Ahh, I love it when they talk vaguely. It makes me never know whether I’m breaking the law… That gets the adrenaline flowing!

Intellectual Property And Caesar Salad

Pete Wells of The New York Times writes today about what may well be one of the most inventive extensions of intellectual property law that I’ve ever seen:

Sometimes, Rebecca Charles wishes she were a little less influential.

She was, she asserts, the first chef in New York who took lobster rolls, fried clams and other sturdy utility players of New England seafood cookery and lifted them to all-star status on her menu. Since opening Pearl Oyster Bar in the West Village 10 years ago, she has ruefully watched the arrival of a string of restaurants she considers “knockoffs” of her own.

Yesterday she filed suit in Federal District Court in Manhattan against the latest and, she said, the most brazen of her imitators: Ed McFarland, chef and co-owner of Ed’s Lobster Bar in SoHo and her sous-chef at Pearl for six years.

The suit, which seeks unspecified financial damages from Mr. McFarland and the restaurant itself, charges that Ed’s Lobster Bar copies “each and every element” of Pearl Oyster Bar, including the white marble bar, the gray paint on the wainscoting, the chairs and bar stools with their wheat-straw backs, the packets of oyster crackers placed at each table setting and the dressing on the Caesar salad.

Mr. McFarland would not comment on the complaint, saying that he had not seen it yet. But he said that Ed’s Lobster Bar, which opened in March, was no imitator.

“I would say it’s a similar restaurant,” he said, “I would not say it’s a copy.”

Lawyers for Ms. Charles, 53, said that what Ed’s Lobster Bar had done amounted to theft of her intellectual property — the kind of claim more often seen in publishing and entertainment, or among giant restaurant chains protecting their brand.

That’s right. She’s asserting that someone who copied her ideas for a restaurant has violated her intellectual property rights.

As is typically the case with stories, like this, though, there is much more to the story. As it turns out, Ms. Charles’ ideas were not entirely original:

[Ms. Charles] acknowledged that Pearl was itself inspired by another narrow, unassuming place, Swan Oyster Depot in San Francisco.

Now, in the same spirit, couldn’t McFalrand argue that Ed’s Lobster Bar was “inspired” by Pearl ? After all, how many original ideas are there when it comes to restaurants. Doesn’t Ruth’s Chris take it’s inspiration from Morton’s ? And can anyone really tell me the difference between Chili’s and TGI Friday’s ? Or Romano’s Macaroni Grill and The Olive Garden ? It’s food people, there are only so many ways you can make it.

But the essence of the problem with Intellectual Property today comes in the story of a Caeser Salad:

[T]he detail that seems to gnaw at [Rebecca Charles] most is a $7 appetizer on Mr. McFarland’s menu: “Ed’s Caesar.”

She has never eaten it, but she and her lawyers claim it is made from her own Caesar salad recipe, which calls for a coddled egg and English muffin croutons.

She learned it from her mother, who extracted it decades ago from the chef at a long-gone Los Angeles restaurant. It became a kind of signature at Pearl. And although she taught Mr. McFarland how to make it, she said she had guarded the recipe more closely than some restaurateurs watch their wine cellars.

“When I taught him, I said, ‘You will never make this anywhere else,’ ” she insisted. According to lawyers for Ms. Charles, the Caesar salad recipe is a trade secret and Mr. McFarland had no more business taking it with him after he left than a Coca-Cola employee entrusted with the formula for Diet Coke.

Let’s just dissect this one for a second. Ms. Charles learns a Caeser Salad recipe from her mother, who in turn had “extracted” it from another chef decades ago. And now she claims that another chef has violated her intellectual property rights by duplicating it.

More to the point, though, is the fact that Caesar Salad (and, that, by the way, is the proper name, not Ceaser’s Salad),  is in itself an original idea that has been copied by, and modified by, countless chefs, professional and amateur, for the past 83 years. For Ms. Charles to claim that her “modifications” to an idea that has been around for almost a century constitute intellectual property worthy of protection is, quite honestly, absurd.

From a legal perspective, her IP claim is dubious at best. There is admittedly no originality in the recipe.

The only credible legal claim that Charles would have at this point is that McFarland, who was apparently a former employee of Ms. Charles, violated her trade secrets by copying the recipe.

But there are two problems here. First, the recipe itself was a copy from someone else. Second, there’s no evidence from the article that Charles took any steps to maintain the secrecy of the recipe. She shared it with McFarland and did not extract from him any explicit promise that he wouldn’t share it. And, quite frankly, she served the salad to the public on the daily basis. Anyone could’ve taken it home and figured out how she made it.

From a legal perspective, I can’t see how she has a case.

But that’s not purpose of this post.

The purpose of this post is to point out the absurdity of the current state of intellectual property laws. To say you can claim an enforceable right over a food recipe is, quite simply, absurd.

How Libertarians Should Define Themselves

David Boaz examines yesterday’s Supreme Court near evisceration of the First Amendment, and comes up with this idea:

Maybe libertarians should try to describe their philosophy by saying “libertarians believe in the free speech that liberals used to believe in, and the economic freedom that conservatives used to believe in.”

Works for me.

H/T: Coyote Blog

Michael Bloomberg: Just Another Apostle Of The Nanny State

Much was made of last week’s announcement by New York Mayor Michael Bloomberg that he was leaving the GOP, and much of the buzz was because of speculation that this announcement might lead to an independent run for the White House.

As this press release from the Club For Growth demonstrates, if he runs, no matter how he portrays himself, Americans should remember that he’s just another apostle of the Nanny State:

Washington – It wasn’t enough for New York City Mayor Mike Bloomberg to make the mere presence of an empty ashtray in an office building illegal. Nor was he satisfied with banning trans fats in all New York City restaurants. Now Mike Bloomberg wants to tell New York City residents what to drink, and he wants to spend taxpayer dollars to do it.

According to the New York Daily News, Mayor Bloomberg is launching a $700,000 ad campaign to promote tap water. Taxpayer dollars will fund a total of 1,400 advertisements on New York City subways, bus kiosks, and check-cashing stations. Ironically, this campaign comes one month after the city raised water rates.

This latest waste of taxpayer dollars reflects Mayor Bloomberg’s long record of raising taxes and city spending through the roof. In his first term, Bloomberg raised sales, income, and property taxes while increasing spending by an average of 10% per year—far outpacing the growth of inflation and population.

“Many journalists have labeled Mike Bloomberg a ‘fiscal conservative,’ but there is nothing conservative about spending $700,000 of taxpayers’ money to tell them what to drink,” said Club for Growth President Pat Toomey. “Bloomberg’s latest crusade demonstrates his little respect for New York City’s hardworking taxpayers and the right of individuals to make their own choices.”

What ? You mean the government shouldn’t be spending tax dollars on a campaign to remind us we need to drink water ? Who else can I depend on to tell me what to do when I’m thirsty ?

In Our Name

The Central Intelligence Agency has opened up the so-called “family jewels”, the until-now secret record of CIA actions in the 1970s that have been the subject of discussion for decades.

To say the least, the picture isn’t pretty:

WASHINGTON — The CIA released hundreds of pages of internal reports Tuesday on assassination plots, secret drug testing and spying on Americans that triggered a scandal in the mid-1970s.

The documents detail assassination plots against foreign leaders such as Fidel Castro, the testing of mind-altering drugs like LSD on unwitting citizens, wiretapping of U.S. journalists, spying on civil rights and anti-Vietnam war protesters, opening of mail between the United States and the Soviet Union and China and break-ins at the homes of ex-CIA employees and others.

The 693 pages, mostly drawn from the memories of active CIA officers in 1973, were turned over at that time to three different investigative panels _ President Ford’s Rockefeller Commission, the Senate’s Church committee and the House’s Pike committee.

The panels spent years investigating and amplifying on these documents. And their public reports in the mid-1970s filled tens of thousands of pages. The scandal sullied the reputation of the intelligence community and led to new rules for the CIA, FBI and other spy agencies and new permanent committees in Congress to oversee them.

Not to mention the reputation of the United States of America and the freedoms of it’s citizens.

Don’t get me wrong, I see the value in a centralized agency for gathering and evaluating intelligence on possible foreign threats, but it seems clear that, from the beginning, the CIA crossed the line from intelligence gathering to covert spying, not only on foreigners, but also on American citizens (which was supposed to have been against the law).

It’s good that these activities are being revealed to the public, even 30 years later, but it makes one wonder what is still going on in the halls of CIA Headquarters in Langely, Virginia.

The Heck With All Of Them

Dan Riehl on the Republicans and Democrats:

At the risk of being politically incorrect, is it really worth voting in an election when D stands for Dumb-ass and R stands for retarded? Perhaps not. I could always do something constructive like go fishing on election day. I can’t think of a time when I have been more disenchanted with America’s political class and that is saying something, as I basically distrust them to start.

You and me both Dan.

H/T: Brendan Loy

The Imperial Vice-Presidency

Starting yesterday, the Washington Post began running a four-part series on the Vice-Presidency of Dick Cheney, during which we have seen the role of the Vice-President increase in behind-the-scenes power to an extent never before seen in American history. The first two articles have focused on Cheney’s role in the War in Iraq and the War on Terror and they have been, to say the least, revealing:

Yesterday, for example, we learned the extent to which Cheney has created a back channel to the President that allows him to bypass most of the President’s senior advisers and cabinet members when he wants to promote his agenda:

Just past the Oval Office, in the private dining room overlooking the South Lawn, Vice President Cheney joined President Bush at a round parquet table they shared once a week. Cheney brought a four-page text, written in strict secrecy by his lawyer. He carried it back out with him after lunch.

In less than an hour, the document traversed a West Wing circuit that gave its words the power of command. It changed hands four times, according to witnesses, with emphatic instructions to bypass staff review. When it returned to the Oval Office, in a blue portfolio embossed with the presidential seal, Bush pulled a felt-tip pen from his pocket and signed without sitting down. Almost no one else had seen the text.

Cheney’s proposal had become a military order from the commander in chief. Foreign terrorism suspects held by the United States were stripped of access to any court — civilian or military, domestic or foreign. They could be confined indefinitely without charges and would be tried, if at all, in closed “military commissions.”

“What the hell just happened?” Secretary of State Colin L. Powell demanded, a witness said, when CNN announced the order that evening, Nov. 13, 2001. National security adviser Condoleezza Rice, incensed, sent an aide to find out. Even witnesses to the Oval Office signing said they did not know the vice president had played any part.

The episode was a defining moment in Cheney’s tenure as the 46th vice president of the United States, a post the Constitution left all but devoid of formal authority. “Angler,” as the Secret Service code-named him, has approached the levers of power obliquely, skirting orderly lines of debate he once enforced as chief of staff to President Gerald R. Ford. He has battled a bureaucracy he saw as hostile, using intimate knowledge of its terrain. He has empowered aides to fight above their rank, taking on roles reserved in other times for a White House counsel or national security adviser. And he has found a ready patron in George W. Bush for edge-of-the-envelope views on executive supremacy that previous presidents did not assert.

What is even more interesting is this exchange between former Vice-President Dan Quayle and Cheney shortly after Inauguration Day in 2001:

“I said, ‘Dick, you know, you’re going to be doing a lot of this international traveling, you’re going to be doing all this political fundraising . . . you’ll be going to the funerals,’ ” Quayle said in an interview earlier this year. “I mean, this is what vice presidents do. I said, ‘We’ve all done it.’ ”

Cheney “got that little smile,” Quayle said, and replied, “I have a different understanding with the president.”

“He had the understanding with President Bush that he would be — I’m just going to use the word ‘surrogate chief of staff,’ ” said Quayle, whose membership on the Defense Policy Board gave him regular occasion to see Cheney privately over the following four years.

The obvious implication of that statement, of course, is that Cheney had an agreement with Bush in 2000 when he agreed to stand as the VP running mate. What the details of that agreement are is unclear, but that manner in which Cheney has acted as Vice President give the implication that Cheney asked for, and received, a much greater role in Administration policy making than any Vice-President had ever had. The last time anything resembling that happened was in 1980 when Gerald Ford put similar conditions on becoming Ronald Reagan’s running mate. Reagan, of course, turned down the offer.

The biggest Cheney’s assertion of Vice-Presidential power isn’t so much that it was done —- the Constitution is silent on the powers of the Vice-President and, if the President chooses to grant him authority, that would seem to be his right —- but the fact that much of it was done in secret. Take, for example, the controversial torture of prisoners at Guantanamo Bay:

Three days after the Ashcroft meeting, Cheney brought the order for military commissions to Bush. No one told Bellinger, Rice or Powell, who continued to think that Prosper’s working group was at the helm.

After leaving Bush’s private dining room, the vice president took no chances on a last-minute objection. He sent the order on a swift path to execution that left no sign of his role. After Addington and Flanigan, the text passed to Berenson, the associate White House counsel. Cheney’s link to the document broke there: Berenson was not told of its provenance.

Berenson rushed the order to deputy staff secretary Stuart W. Bowen Jr., bearing instructions to prepare it for signature immediately – without advance distribution to the president’s top advisers. Bowen objected, he told colleagues later, saying he had handled thousands of presidential documents without ever bypassing strict procedures of coordination and review. He relented, one White House official said, only after “rapid, urgent persuasion” that Bush was standing by to sign and that the order was too sensitive to delay.

After reading something like this, it becomes clear why the rush to John Ashcroft’s hospital bed in early 2004 was such a big deal. When you’re dealing with people who act in secret without impunity, a scene directly out of The Godfather isn’t implausible at all.

One of the most serious problems with the Bush Administration has been the extent to which it acts in secret, and in ways that allow it to evade the technicalities of the law (by, say, using RNC email to discuss government business so it doesn’t get saved on the White House server). Now it’s clear where the inspiration for much of that secrecy comes from.

The “Libertarian Position” On Gentrification?

Regular commenter VRB recently asked me what libertarians thought of this story, regarding the poor and black former property owners in New Orleans getting screwed out of their homes by the government:

Evidence of eminent domain abuse can be found in the overwhelmingly-Black Lower 9th Ward, where the city bulldozed homes without informing their owners. Then there was the plan to raze 3,000 units of affordable housing in the city’s housing projects, which many Black New Orleanians called home, even though they were in relatively good shape. Add to that, only half the city’s population (and only 30% of the city’s Black population) has returned and you have the potential for a replay of all that we know about large scale displacement and its disastrous consequences. (See Mindy Fullilove’s “Root Shock: How Tearing Up City Neighborhoods Hurt America and What We Can Do About It”)

This all leaves me with a deluge of important questions such as:

Who will Mr. Blakely’s eminent domain powers and Recovery Zones benefit? How will the many Black homeowners and entrepreneurs still living outside the city represent their property? Will already-struggling communities of color have to worry about city-sanctioned permanent displacement of former residents? Will “appraised value” for property be determined by pre-storm worth or storm-depressed real estate values? Where will the $1.1 billion of public money come from and what is the relationship of the Recovery Zones with the broad, city-wide Unified New Orleans Plan (UNOP)?

With broken promises of affordable housing, an ineffective housing rebuilding program (Road Home) that is now running out of money, widespread housing discrimination, and elected officials who see Katrina “clean[ing] up public housing in New Orleans”, many former residents can’t even find a place to live, let alone establish employment, access quality healthcare, or feel safe in their communities. If left to their own devices, the powers that be seem to be heading toward the gentrification model, which will rake in the bucks for a small minority of people with vested interests in real estate, finance and politics at the expense of most of the people.***

Notice that I said that they were getting screwed by the government, not by developers. Developers may want to raze your property, “buy” it from you for sub-market rates without you having opportunity to object, and then turn it into higher-priced housing at a large profit to themselves. But they can’t do that. Only government has the power to do that, and it’s government that should be looked at here.

So what is the “libertarian position” when poor black people get screwed by the government? Well, like most other issues, it’s a problem with the government having too much power. Government claims to be looking out for the poor, but government is driven by people that have a need to get reelected. To get reelected, you need to buy advertising. To afford advertising, you need to court people with money. So in the long run, you try to keep a balance between “appearing” to help the masses while you’re really helping the people with money behind the scenes.

When government is involved, rich people with lawyers win. Poor people who can’t afford lawyers lose. When government decides who to screw, they go for the easiest target. Why do you think the middle class gets audited while rich people with teams of lawyers to construct their tax shelters don’t? If you’re going to be a bully, and government is most certainly that, you target the people least likely to fight back. It’s that simple. This is how government works. This is how government must work. That’s how all the incentives line up. Anyone who tells you differently shouldn’t be trusted.

You want the libertarian position on poor black people getting screwed by the government? You want the libertarian position on black people being tossed out of their homes before the government bulldozers head their way?

I’d like to say that if we elect “the right people”, all will be well. But that’s not true. The only way to solve this problem, and the libertarian answer, is to take away the government’s bulldozers. Take away their power to screw people. Take from them every bit of power that you can, because you know they can’t be trusted to wield it.
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Faith Based Charity Not Open To The Faithless

The Supreme Court ruled today that atheists don’t have standing to challenge their exclusion from President Bush’s faith-based initiatives programs:

The Supreme Court today handed President Bush’s faith-based initiatives program a victory, ruling that federal taxpayers cannot challenge the constitutionality of the White House’s efforts to help religious groups obtain government funding for their social programs.

In a 5-4 decision, the court blocked a lawsuit by a Wisconsin-based group of atheists and agnostics against officials of the Bush administration, including the head of the White House Office of Faith-Based and Community Initiatives.

The court ruled that the suit, by the Freedom from Religion Foundation and three of its taxpaying members, could not go forward because ordinary taxpayers do not have standing to challenge the expenditures at issue. The ruling reversed a 2-1 decision in favor of the foundation by a three-judge panel of the U.S. Court of Appeals for the 7th Circuit in January 2006.

Liberal groups blasted the court’s decision in Hein v. Freedom From Religion Foundation as a setback for the First Amendment and a paean to the religious right, while religious conservatives hailed it as a major triumph for the faith-based initiative.

The foundation had complained that parts of the faith-based initiatives program favored religious groups over secular ones, violating the Establishment Clause of the Constitution’s First Amendment, which says in part that “Congress shall make no law respecting an establishment of religion.”

In its suit, filed in 2004, the foundation claimed that the faith-based initiatives office, formed by Bush in January 2001 through an executive order, unfairly used taxpayer money to provide an edge to religious groups seeking federal funding, and effectively endorsed “religious belief over non-belief.”

Under current Establishment Clause precedents, it would seem fairly clear that an expenditure program that explicitly favored religious groups over non-religious groups would be unconstitutional. But the Supreme Court didn’t even reach that issue, they agreed with the Bush Administration’s argument that individual taxpayers do not have standing to challenge an expenditure of money, even if it is unconstitutional:

In an opinion joined by Chief Justice John G. Roberts Jr. and Justice Anthony M. Kennedy, Justice Samuel A. Alito Jr. wrote that “the payment of taxes is generally not enough to establish standing to challenge an action taken by the federal government.”

Given the size of the federal budget, “it is a complete fiction to argue that an unconstitutional federal expenditure causes an individual federal taxpayer any measurable economic harm,” Alito said. “And if every federal taxpayer could sue to challenge any government expenditure, the federal courts would cease to function as courts of law and would be cast in the role of general complaint bureaus.”

He noted that “Congress did not specifically authorize the use of federal funds to pay for the conferences or speeches that the plaintiffs challenged.” Rather, those activities were funded from “general Executive Branch appropriations,” he wrote.

Not only does that seem to contradict a 1968 Supreme Court decision which the Court did not overturn today, it raises the question of who, if anyone has the right to challenge an unconstitutional expenditure in Court if it isn’t a taxpayer.

Justice Souter puts it best:

In a dissenting opinion, Justice David H. Souter wrote that today’s ruling “closes the door on these taxpayers because the Executive Branch, and not the Legislative Branch, caused their injury.” He added, “I see no basis for this distinction in either logic or precedent. . . .”

In this case, “there is no dispute that taxpayer money in identifiable amounts is funding conferences, and these are alleged to have the purpose of promoting religion,” Souter wrote. “When executive agencies spend identifiable sums of tax money for religious purposes, no less than when Congress authorizes the same thing, taxpayers suffer injury.”

And so does the Constitution.

Diane Feinstein vs. The First Amendment

California Senator Diane Feinstein indicated yesterday that she might consider reviving the so-called fairness doctrine:

Feinstein, speaking on “Fox News Sunday” with Sen. Trent Lott, R-Miss., said talk radio in particular has presented a one-sided view of immigration reform legislation being considered by the Senate.

U.S. talk radio is dominated by conservative voices.

“This is a very complicated bill,” said Feinstein. “Most people don’t know what’s in this bill. Therefore, to just have one or two things dramatized and taken out of context, such as the word amnesty — we have a silent amnesty right now, but nobody goes into that. Nobody goes into the flaws of our broken system.”

In other words, the American people are too stupid to understand the “complicated” issue of immigration and are nothing more than mindlessly repeating what guys like Limbaugh, Hannity, and Savage are saying. Now, I don’t necessarily agree with the anti-immigration crowd, but it’s clear to me that they know exactly what’s in the Senate immigration bill, and that is why they are opposed to it.

Senator Feinstein, the reason your Senate bill is failing is not because of talk radio, it’s because a significant portion of the American public quite obviously does not support it.

Asked if she would revive the fairness doctrine, which used to require broadcasters to present competing sides of controversial issues, Feinstein said she was “looking at it.”

“I remember when there was a fairness doctrine,” she said, “and I think there was much more serious correct reporting to people.”

No, Senator Feinstein isn’t worried about “fairness” she’s worried about the fact that, thanks to talk radio, people are getting the chance to become involved in the poltiical process and, yes, to think for themselves.

H/T: Hit & Run

Supreme Court Rules Against Bong Hits 4 Jesus Student

The Supreme Court declined the opportunity to strike a blow for the rights of students, instead choosing to uphold a Principal’s decision to suspend a student for displaying what was clearly a nonsensical sign:

WASHINGTON — The Supreme Court tightened limits on student speech Monday, ruling against a high school student and his 14-foot-long “Bong Hits 4 Jesus” banner.

Schools may prohibit student expression that can be interpreted as advocating drug use, Chief Justice John Roberts wrote for the court in a 5-4 ruling.

Joseph Frederick unfurled his homemade sign on a winter morning in 2002, as the Olympic torch made its way through Juneau, Alaska, en route to the Winter Olympics in Salt Lake City.

Frederick said the banner was a nonsensical message that he first saw on a snowboard. He intended the banner to proclaim his right to say anything at all.

His principal, Deborah Morse, said the phrase was a pro-drug message that had no place at a school-sanctioned event. Frederick denied that he was advocating for drug use.

“The message on Frederick’s banner is cryptic,” Roberts said. “But Principal Morse thought the banner would be interpreted by those viewing it as promoting illegal drug use, and that interpretation is plainly a reasonable one.”

Morse suspended the student, prompting a federal civil rights lawsuit.

In other words, the actual content of the message doesn’t matter so long as someone in authority thinks that it advocates something that violates school rules. More disturbing, though, is the fact that the Court does not seem to even address the fact that this happened outside the school, a fact which law professor Ann Althouse emphasized when she wrote about this case in January:

This case is about something that happened on the street and not in a classroom. The banner was, of course, silent, and the occasion was a parade. It’s quite different from disruptive speech during a lesson. Scalia offered a distinction between “disruptive” and “undermining.” The school’s real objection is that a pro-drug message undermines the message it endorses. That is, they don’t want disagreement and debate. They still convey their anti-drug message all the time, and this student isn’t interrupting them or even distracting anyone from hearing that message. He’s just delivering a counter-message on another occasion, and they object to the argument. That should be held to violate the First Amendment.

Unfortunately, Professor Althouse’s views are not shared by the five Justices in the majority.

Update: KipEsquire has two interesting observations:

Best as I can tell after a quick skim, the majority opinion and concurrences completely ignore the pesky little fact that Frederick was over 18 at the time of the incident. Therefore, any portion of the decision or concurrences that rely on Tinker’s* (or any other case’s) distinction between the rights of students and the rights of adults is per se invalid as applied to Frederick, who was an adult at the time.

The gist of Roberts’ opinion seems to be that “fighting drug use” is a sufficiently compelling governmental interest to censor free speech (again, of an adult student not in attendance at the time, off school grounds and displaying what could possibly be deemed a political message).

Or, as Kip puts it, the Court has effectively decided that the War On Drugs trumps the First Amendment.

Supreme Court Strikes Down Key Provisions of McCain-Feingold

It was a close vote, but the Supreme Court today struck down a key provision of the McCain-Feingold law:

WASHINGTON — The Supreme Court loosened restrictions Monday on corporate- and union-funded television ads that air close to elections, weakening a key provision of a landmark campaign finance law.

The court, split 5-4, upheld an appeals court ruling that an anti-abortion group should have been allowed to air ads during the final two months before the 2004 elections. The law unreasonably limits speech and violates the group’s First Amendment rights, the court said.

The decision could lead to a bigger role for corporations, unions and other interest groups in the 2008 presidential and congressional elections.

The case involved advertisements that Wisconsin Right to Life was prevented from broadcasting. The ads asked voters to contact the state’s two senators, Democrats Russ Feingold and Herb Kohl, and urge them not to filibuster President Bush’s judicial nominees.

Feingold, a co-author of the campaign finance law, was up for re-election in 2004.

The provision in question was aimed at preventing the airing of issue ads that cast candidates in positive or negative lights while stopping short of explicitly calling for their election or defeat. Sponsors of such ads have contended they are exempt from certain limits on contributions in federal elections.

While the decision does not overturn McCain-Feingold completely, there clearly are some Justices who would go that far:

Three justices, Anthony Kennedy, Antonin Scalia and Clarence Thomas, would have overruled the court’s 2003 decision upholding the constitutionality of the provision.

Roberts and Justice Samuel Alito said only that the Wisconsin group’s ads are not the equivalent of explicit campaign ads and are not covered by the court’s 2003 decision.

That court, differently composed, upheld large portions of the law in its 2003 decision, including the provision in question in the current case.

Chief Justice Roberts sums it up well:

“Discussion of issues cannot be suppressed simply because the issues also may be pertinent in an election. Where the First Amendment is implicated, the tie goes to the speaker, not the censor.”

And, unlike 2003, this time the First Amendment won.

Monday Open Thread: Best & Worst States

As someone who recently moved cross-country, I know that there are definite advantages and disadvantages to living in certain places. Government regulation in a state rarely defines life in that state, but can definitely impact quite a lot of aspects. Now that I live in California, I know that the advantages of perfect weather and proximity to the beach are offset by a few things: high gas prices, high taxes, and poor government (i.e. bad public schools, etc). That doesn’t even include things such as the regulatory state increasing the cost of every other product.

For the open thread, perhaps tell us a little about where you live, and why it’s a good or bad state… I’d particularly love to hear about some of the folks up in the Free State; once I can get my wife to stop voting Democrat, I might try to convince her to move cross-country to the bitter cold of freedom :-)

A wonderful first step – a person is arrested for voting

I’ve long agreed with Lysander Spooner who wrote:

IX. The Secret Ballot
What is the motive behind the secret ballot? This, and only this: Like other confederates in crime, those who use it are not friends, but enemies, and they are afraid to be known, and to have their individual doings known, even to each other. They can contrive to bring about a sufficient understanding to enable them to act in concert against other persons; but beyond this they have no confidence, and no friendship, among themselves. In fact, they are engaged quite as much in schemes for plundering each other, as in plundering those who are not of them. And it is perfectly well understood among them that the strongest party among them will, in certain contingencies, murder each other by the hundreds of thousands (as they lately did do) to accomplish their purposes against each other. Hence they dare not be known, and have their individual doings known, even to each other. And this is avowedly the only reason for the ballot: for a secret tyranny; a tyranny by secret bands of tyrants, robbers, and murderers. And we are insane enough to call this liberty! To be a member of this secret gang of tyrants, robbers, and murderers is esteemed a privilege and an honor! Without this privilege, a man is considered a slave; but with it a free man! With it he is considered a free man, because he has the same power to secretly (by secret ballot) procure the robbery, enslavement, and murder of another man, and that other man has to procure his robbery, enslavement, and murder. And this they call equal rights!

If any number of men, many or few, claim the right to “govern” the people of this country, let them make and sign an open compact with each other to do so. Let them thus make themselves individually known to those whom they propose to “govern.” And let them thus openly take the legitimate responsibility of their acts. How many of those who now support the pretended “constitution,” will ever do this? How many will ever dare openly proclaim their right to “govern”?, or take the legitimate responsibility for their acts? Not one!

I therefore take a dim view of those who go out and vote for people. Like other crimes, such as murder or theft, I want it to go away entirely. So I am especially happy to hear that one Zoila Meyer has been arrested and charged with the crime of voting. Unfortunately, the state considers her act a crime not because she voted, but because she voted despite having spent the first 9 months of her life outside the United States. » Read more

I am an anarcho-capitalist living just west of Boston Massachussetts. I am married, have two children, and am trying to start my own computer consulting company.

Hugo Chaves Trying To Fuel Revolution With Submarines

Hugo Chavez, like most socialists, is starting to have paranoid delusions. He seems to think that America, a nation stuck in two middle eastern nations, led by a President who considers Venezuela to be problem number 16 on a 10-item list, is going to invade Venezuela. And the man who cares so much about his nation’s poor is spending billions on a Navy and air defense system:

Venezuelan President Hugo Chavez said his government may buy a fleet of Russian-made submarines when he visits Moscow next week, continuing an arms buildup that has cost his nation more than $4.3 billion since 2005.

“The only way Venezuela could totally discard the idea of not buying submarines is if we didn’t have a sea,” Chavez told cabinet members at a televised ceremony tonight in Caracas. “We have to protect that sea.”

Chavez said he also is looking to strengthen the nation’s short-range air-defense system to counter supersonic and “invisible” radar-evading aircraft he claimed Venezuela would face in the event of a U.S. invasion. Most U.S. analysts deem such an offensive unlikely.

Chavez, who is using his country’s oil wealth to promote socialist policies across the region, often urges developing nations to unite against the U.S. “empire,” winning allies abroad and scoring political points at home by attacking the U.S. for draining Venezuela’s natural resources, propping up a corrupt elite and funding groups that aim to destabilize his government.

Venezuela spent $4.3 billion on arms in 2005 and 2006, more than China, Pakistan or Iran, according to a U.S. Defense Intelligence Agency report. More than $3 billion of that was spent in Russia, where Venezuela has signed contracts to buy 100,000 Kalashnikov rifles, 50 military helicopters and 24 Su-30 jet fighters, the report said.

You don’t feed the poor with Kalashnikov’s. The playbook Chavez is using is not a new one. He’s slowly cementing power, because like all socialist nations, eventually the money supply runs out. He’s already had a coup attempt on him, and he knows that his best bet to remain in power is to make sure his generals are fat and happy, and willing to carry out his rule with an iron fist. That way, when the bottom drops out, and the poor who he’s been feeding begin to tighten their belts, there won’t be enough loose power in society to take him on.

As Eric used to point out here while he was still blogging, the best way to cement power at home is to use an external threat. That’s true whether you’re trying to convince Americans to give up essential liberties to fight a vague terrorist threat, or whether you’re trying to convince Venezuelans to support giving you dictatorial powers to fight off an imagined American invasion.

A few billion military dollars spent, and Chavez is home free. When the Venezuelan people finally realize what’s going on, they won’t have the power to stop him.

The Victims Of Kelo

Turns out, it’s the poor who are hurt the most by eminent domain abuse:

According to the data, those who live under the threat of eminent domain consistently live on significantly fewer earnings, with a median income of less than $19,000, compared to more than $23,000 in nearby neighborhoods. Twenty-five percent live at or below poverty, compared to only 16 percent in surrounding communities.

Those under eminent domain’s threat have completed less education and are more likely to be racial or ethnic minorities — some 58 percent of the population in threatened areas, compared to only 45 percent outside of project areas. All of these results were “statistically significant,” meaning the outcomes weren’t merely the result of chance; they can be considered representative of the overall population studied, that is, residents targeted by eminent domain.

This analysis — consisting of 184 neighborhoods ranging from small towns to large cities across the nation — vindicates the dire warnings of Justices O’Connor and Thomas. Although the data do not show that local officials and developers target specific areas because residents are lower-income, minority or less-educated, the fact remains that the awesome power of eminent domain is disproportionately trained on them. As Justice O’Connor wrote, “The Founders cannot have intended this perverse result.”

And yet here we have it.

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