Where Does Expression Begin and Commerce End?…

This case in New Mexico helps to illustrate the deep-seated problems with the commercial speech exception to the First Amendment. Where does artistic expression end and commercial speech begin? By whose standards?…

Trackback by Publius Endures — April 10, 2008 @ 5:02 am

Whatever happened to “we reserve the right to refuse service to anyone”, or “no shirt, no shoes, no service”. This is ridiculous. The anti-discrimination laws are based upon “public accomodation” not on location services.

This case should have been dismissed and the couple ordered to pay the photographer’s legal expenses.

Cases like these are beyond frivolous, and in fact do more damage to the “live and let live” cause of the gay community than help. This ruling comes perilously close to the advocacy of State Sponsored Religion.

It will most likely be overturned if it ever gets to a real court versus a regulatory agency packed by Governor Richardson.

I suppose what it really means is the creation of an underground discriminatory economy where the words “Too Busy” become part of every salesman or business owners vocabulary.

Comment by C. Douglas — April 10, 2008 @ 7:55 am

Note to self. Never tell anyone you won’t do business with them because you don’t like them. Always say you are too busy, or quote a really high price.

Comment by tarran — April 10, 2008 @ 9:29 am

What gets lost in the current discussion of “rights” is that every “new” right that is invented for someone correspondingly takes away an existing right from someone else. My right to rent control takes away your right to profit from your property. My right to a gay photo shoot robs you of your right to conscience. Etc.

Conservatives used to do a much better job of speaking up for these lost rights. The Left is dominating the narrative these days with their new “rights”, and those of us losing our rights seem to be voiceless.

Comment by J. Wesley — April 10, 2008 @ 9:30 am

tarran

You have a point, but it’s unfortunate that the only way to get around an injustice like this is to lie.

That’s what statism does to people.

Comment by Doug Mataconis — April 10, 2008 @ 9:34 am

J. Wesley: Except that the Right is now just as bad at creating new rights (that aren’t really) as the Left. In fact, they’re often worse. The only rights the Left creates that aren’t rights come their twisted conception of economic liberty. Meanwhile, the Right has decided that the word “liberty” means “freedom, except as limited by our interpretation of the Bible” rather than just simply “freedom from control.”

Comment by Mark — April 10, 2008 @ 10:26 am

Whoever is saying to just lie is wrong, that is EXACTLY what the elitist left wants everyone to do! They live and breath lies and POWER. They will delight in knowing they are forcing honest people to be like them - liars. Homosexuality is simply a behavior sex dysfunction just like impotence is a physical sex dysfunction. Gender only exists for one reason only - procreation. Therefore, whatever physical OR behavioral affliction prevents procreation is a dysfunction. Homosexuality occurs throughout nature - so does cancer. I’m not bashing what gays do, (I pity them, they will never experience the attraction to the opposite sex), but I do bash who some of them ~think~ they are.

Comment by Mike M. — April 10, 2008 @ 1:09 pm

Mike M.,

I’m not bashing what gays do, (I pity them, they will never experience the attraction to the opposite sex)

Actually, you are bashing them.

Homosexuality is simply a behavior sex dysfunction just like impotence is a physical sex dysfunction. Gender only exists for one reason only - procreation.

So I’m taking from this that you’re saying anyone who engages in sex for recreational or non-reproductive purposes (hetero or not) is likewise sexually dysfunctional?

Comment by UCrawford — April 10, 2008 @ 1:19 pm

Mike, you are aware that various populations of animals have been scientifically proven to be not only gay, but also bi-sexual & asexual as well?

You’re attempts at sounding moderate in your backwards view, in a sad effort to give yourself credence, is what should be really pitied here.

But, hey, as long as we have the right have such idiotic views, and my right (as well as others) to object to such, I suppose we should enjoy the ride while it lasts.

Comment by Nitroadict — April 10, 2008 @ 2:00 pm

U.C.

“So I’m taking from this that you’re saying anyone who engages in sex for recreational or non-reproductive purposes (hetero or not) is likewise sexually dysfunctional?”

I’ve ran across certain Catholic blogs where the authors believe such crazy shit. This one blogger believes that the only “appropriate” sex is coitus and the only appropriate family planning is natural family planning (NFP). You have to read this shit. It’s truly insane.

Comment by Stephen Littau — April 10, 2008 @ 4:36 pm

so basically what you’re doing right here is engaging in one of the last unassailable discriminations: religious. otherwise, it’s socially unacceptable and condemnable to engage in any other form of discrimination as dictated by unspoken social mores.

people are so gay.

Comment by oilnwater — April 10, 2008 @ 4:47 pm

Stephen,

I’ve ran across certain Catholic blogs where the authors believe such crazy shit. This one blogger believes that the only “appropriate” sex is coitus and the only appropriate family planning is natural family planning (NFP). You have to read this shit. It’s truly insane.

Oh, I grew up in a very religious area so I’ve heard stuff that’s just as bad if not worse.

oilnwater,

so basically what you’re doing right here is engaging in one of the last unassailable discriminations: religious.

Eh…as long as we’re not demanding that the government draft up a law to forcibly stamp out their beliefs I think we’re still okay :)

Comment by UCrawford — April 10, 2008 @ 5:30 pm

Eh…as long as we’re not demanding that the government draft up a law to forcibly stamp out their beliefs I think we’re still okay :)

Isn’t that kind of what they are doing right now in Texas with the polygamists? I don’t agree with the cult’s actions against the young girls of course forcing them to marry old men, but what valid reason is there for the govt to stop people of legal age from engaging in a polygamist relationship?

Comment by MikeF — April 10, 2008 @ 7:31 pm

…Uhh, there would be none. Except for the fact that many of the “wives” didn’t exactly have much of a choice in the matter (you might want to look into the fact that some of these girls were as young as 13).
But as far as I’m concerned, if a woman willingly desires to marry a man who is already married to another woman, and that other woman also willingly goes along with the arrangement, well that’s their business. When one of the women is 13 and is sexually assaulted in the process, then I have a problem.

Comment by Mark — April 10, 2008 @ 7:54 pm

Well, Mark, if you had actually read all of my post instead of just the last line you would so that I did not agree with the actions of the cult taken against the young girls as well.

Comment by MikeF — April 10, 2008 @ 9:04 pm

“would see” not “would so”….posting too late is not a good idea….sorry.

Comment by MikeF — April 10, 2008 @ 9:05 pm

Mike,

Isn’t that kind of what they are doing right now in Texas with the polygamists? I don’t agree with the cult’s actions against the young girls of course forcing them to marry old men, but what valid reason is there for the govt to stop people of legal age from engaging in a polygamist relationship?

Aside from the underage girls aspect (which I’m also opposed to), I don’t have a problem with polygamists and think it’s wrong for the government to intervene or forbid what they do. Then again I think that a lot of the government’s involvement in marriage is wrong. Marriage is a contract, just like any other…beyond arbitrating or enforcing the terms of it through the courts when one or both parties wish to separate, I think that government ought to stay out. If one guy finds three or four women willing to marry him all at once, more power to him. What business is that of mine or anyone else, really? Same would apply to one woman and multiple men, of course…or whatever mix of gender you’d care to name :)

Actually, I’ve long wondered if the state’s involvement doesn’t tend to push people into marriages too quickly (by creating incentives to do so) and make divorces more bitter and hostile than they need to be (by making it a more difficult and drawn out process).

Comment by UCrawford — April 11, 2008 @ 5:31 am

Mark, it sounds like we are in agreement about this topic. I think you are exactly correct about the state pushing people into marriage, and making it much too difficult to divorce, with the associated problems of each.

Comment by MikeF — April 11, 2008 @ 8:39 am

MikeF: I’m sorry for being harsh. I was in a belligerent mood yesterday, and actually got you confused with Mike M, who really pissed me off. I apologize thoroughly.

Comment by Mark — April 11, 2008 @ 9:32 am

MikeF,

Actually, that was me…not Mark. :)

Comment by UCrawford — April 11, 2008 @ 9:44 am

Essentially, we’re all further screwed. I’ll be keeping my horse carriage ready in case anyone wants to give another go at a Continental Congress for a new nation. Bear in my mind, the winter’s get harsh around here, so please send any mail at least a season or two in advance.

Comment by Nitroadict — March 26, 2008 @ 10:39 am

[N]one of the remaining three candidates who will occupy the White House on January 20, 2009 has pledged to eliminate or even reduce a single federal spending program.

To be fair Doug, I found the following from McCain’s website:

John McCain will provide the courageous leadership necessary to control spending, including:

- Eliminate broken government programs. The federal government itself admits that 1 in 5 programs do not perform.

-Reform our civil service system to promote accountability and good performance in our federal workforce.

-Eliminate earmarks, wasteful subsidies, and pork-barrel spending.

-Reform procurement programs and cut wasteful spending in defense and non-defense programs.

Sure, he didn’t name any specific programs but he at least seems to recognize that there is a problem with wasteful spending. The real question is, will he make good on this promise? I tend to think he will based on his voting record. Citizens Against Government Waste give McCain a lifetime rating of 88% “taxpayer hero.” McCain’s score is among the highest in the Senate (the Senate average rating was 29% in 2006).

I have many problems with John McCain (many of which you have mentioned here and in other posts) but fiscal responsibility is not one of them. If I were to vote solely on the basis of the economy and government waste issues, I would easily support John McCain for president.

Unfortunately, he is wrong on so many other issues. His attacks on individual liberty, his calls for sacrifice and “national service” bother me a great deal. I’m also afraid that he would expand the scope of the war to include Iran and eventually call for a draft (which is completely unacceptable to me).

I won’t say that I would never vote for John McCain but if I were to vote today, I would probably support the Libertarian candidate. We basically have the choice of two evils; this is why I call this the “Choose and Lose Election.”

Comment by Stephen Littau — March 26, 2008 @ 11:52 am

Stephan,

Until he actually names a program, his rhetoric is a phony as GWB’s in my book.

I’ve already made it clear that I will not vote for McCain solely based on McCain-Feingold. A man who has such a low opinion of the First Amendment doesn’t deserve to be President.

Others, of course, can make their own choice.

Comment by Doug Mataconis — March 26, 2008 @ 12:47 pm

If it were something else other than child porn I might agree with the defendant but as far as child porn goes, I can’t agree.

Comment by TheAmericanLie — January 17, 2008 @ 5:05 am

Yes, but the thing is that the Constitution doesn’t contain exceptions based on the type of offense at issue.

Comment by Doug Mataconis — January 17, 2008 @ 6:20 am

Nor should it. You should punish the abhorrence level of the crimes with the sentencing, not with how you catch the crook.

Comment by UCrawford — January 17, 2008 @ 6:34 am

Doug,

I cannot agree with you.

Ownership is irrelevant to the question of self-incrimination. Ownership of the computer can be established by matching the serial code of the computer against manufacturer sales records. Plus, it was in his possession, and he attested that it was his.

Imagine I’m suspected of a crime and I have a conversation with a police officer wherein I reveal information that indicates I may be guilty, but when asked later, he can’t remember just what I said and has no tangible record of the conversation. The court wants to use this information to prosecute me, but because he cannot remember the details, the court has issued a subpoena requiring me to restate what I originally said for the record.

Must I repeat the conversation and incriminate myself?

I don’t understand how you’ve come to the conclusion that certain factors, like him having previously accessed the files, now causes him to forfeit his right to not incriminate himself.

One other thing: he showed the agent the files before he was arrested, and thus, before he was Mirandized. Once read his rights, he is now choosing to exercise them. Does the timeline matter to you?

Comment by Brian T. Traylor — January 17, 2008 @ 7:26 am

Brian,

These are the facts:

1. He acknowledged to law enforcement officers that the computer was his. Under the Fifth Amendment he could have refused to answer.

2. He accessed encrypted files, presumably by using the password and allowed the l.e.o’s to look at them.

It’s a fairly standard rule that the privilege against self-incrimination can be voluntarily waived and, inexplicably, criminal suspects often do it in situations where the smartest thing to do would be to shut the heck up.

Under the waiver law that exists, a fairly good case can be made that this guy waived his right against self-incrimination.

Comment by Doug Mataconis — January 17, 2008 @ 7:31 am

One other thing: he showed the agent the files before he was arrested, and thus, before he was Mirandized. Once read his rights, he is now choosing to exercise them. Does the timeline matter to you?

No, because there was no probable cause to arrest him until he showed them the incriminating files.

Comment by Doug Mataconis — January 17, 2008 @ 7:32 am

Under the waiver law that exists, a fairly good case can be made that this guy waived his right against self-incrimination.

But does a single waiver constitute perpetual waivers? If I invite a cop into my home, does that mean he’s free to come back against my wishes?

Comment by Jeff Molby — January 17, 2008 @ 8:46 am

I think Jeff stated what I was trying to get at:

Does a single waiver imply subsequent waivers? Can a suspect decide at any point in the process to shut up, or is he bound to keep talking (or provide the password again) after he’s opened his mouth once?

Comment by Brian T. Traylor — January 17, 2008 @ 7:22 pm

You know, I tend to be of the “literal words of the Constitution” bent. The 5th Amendment doesn’t say:

nor shall be compelled in any criminal case to be a witness against himself, except when he already said something against himself, in which case it is perfectly fine to compel him to be a witness

Given the words in the Amendment, it seems to me that a person may stop talking at any point and the State has no more Constitutional ability to compel anything. It seems to me that this would include providing a password to his encryption software.

If the State cannot make its case without compelling this guy to provide information that can be used to incriminate him, then it cannot make its case.

Comment by Adam Selene — January 17, 2008 @ 8:17 pm

[…] at the Liberty Papers has an interesting overview of a case that’s getting some attention in constitutionalist circles, that being, can you be […]

Pingback by The Crossed Pond » The 5th Amendment in the Information Age — January 18, 2008 @ 11:37 am

Doug, you might want to check out this Computerworld article. It has some additional details, including:

A special agent who had experience and training in identifying child pornography was then called in to inspect Boucher’s computer. That inspection revealed several images of adult and animated child pornography. But when the special agent tried to click on the file with the name suggesting child pornography, he found he was unable to open it.

So, law enforcement never actually saw any images, only the names of the images. The names weren’t good, obviously, but that doesn’t mean that the images were actually child pornography. At this point Boucher hasn’t revealed anything incriminating, has he?

When asked about the file, Boucher stated that he visited various newsgroups from which he downloaded pornographic images. He conceded that some of the files might unknowingly be child porn but added that he deleted those files when he saw them.

So, he’s saying that the files could be there accidentally, which is technically possible if you use a news reader and set it up to download all the images in a newsgroup at a given time. He is also saying that he deleted any files that he became aware of that were illegal. Is there anything there to incriminate him from a legal perspective?

Now, if law enforcement gains access to those files, they can perform technical forensics on them to prove, or disprove, his story. They can only do so if they can decrypt the files and folders that are encrypted. By providing them with the password to perform the decryption he is giving them access to evidence that is potentially incriminating. That seems to violate the 5th amendment, since he has never done that in the past.

Comment by Adam Selene — January 18, 2008 @ 12:42 pm

So, law enforcement never actually saw any images, only the names of the images. The names weren’t good, obviously, but that doesn’t mean that the images were actually child pornography. At this point Boucher hasn’t revealed anything incriminating, has he?

I don’t know. The Times article and Kerr’s article both say that the officers did view at least one video file that could be described as child pornography.

So, he’s saying that the files could be there accidentally, which is technically possible if you use a news reader and set it up to download all the images in a newsgroup at a given time. He is also saying that he deleted any files that he became aware of that were illegal. Is there anything there to incriminate him from a legal perspective?

It would depend on what the statute he was being charaged under said about intent.

Comment by Doug Mataconis — January 18, 2008 @ 12:58 pm

Still, it doesn’t look to me like Boucher had previously incriminated himself. And, even if he had, why is forced to continue? That isn’t what the 5th Amendment says.

Comment by Adam Selene — January 18, 2008 @ 8:11 pm

let us remember that the constitution was created so that the government had boundaries in which it must play. to chip away at the boundaries is to destroy “we the people.” as several people have stated, the 5th amendment does not say that once you start to speak you are compelled to continue, so even if he did type in the password before, he did not do it in a way so that the agents could view it, nor did he write it down. it is locked in his head and that’s where it gets to stay.

Comment by Daniel Schlotte — January 19, 2008 @ 7:43 pm

When will we get to pass a law that limits our representatives’ gluttonous grabs for power?

Comment by Brad Warbiany — December 3, 2007 @ 2:46 pm

Brad,

Isn’t that what the Constitution is for ?

Comment by Doug Mataconis — December 3, 2007 @ 2:58 pm

One would think that’s what the 2nd Amendment is for, but we’ll see if it survives DC v. Heller…

Comment by Brad Warbiany — December 3, 2007 @ 3:02 pm

I think you mean Article I, Section 8.

Comment by KipEsquire — December 3, 2007 @ 3:27 pm

Kip,

You are, of course, correct.

Reference fixed.

Comment by Doug Mataconis — December 3, 2007 @ 3:29 pm

I’ve been told it is here:
The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

Not that I buy the ‘provide for the general welfare’ argument but I know a lot of people who do.

Comment by tkc — December 3, 2007 @ 4:01 pm

Doug,

I wonder how much longer it will be until these enlightened bozos remember all those kids who bring their lunch from home. Imagine all the high fat stuff parents could actually be packing in their child’s lunch box.

Glad I got out of high school when I did. I don’t think I could have survived if I actually had to eat the trash that the schools served. Man, am I thankful for that Coke machine and the Little Caesars Pizza days when I could buy a whole pizza for to use as a lunch and an after school snack.

Comment by trumpetbob15 — December 3, 2007 @ 6:23 pm

I’m as outraged as anybody else. However, it is easy to understand the logic, as a reader points out in an e-mail over at Andrew Sullivan’s: the government is partially responsible for providing health care to Americans, so making sure they eat healthy when they’re young and lessen the burden on the system as they get older can be seen as a legitimate point of action by the government. Of course, this is the logic of totalitarians.

Comment by somebody — December 3, 2007 @ 6:34 pm

The way I understand it there are already laws on school lunch programs. What do you expect a school to do take requests every month and provide something differnt for each child? Thats not pratical to do. Besides if you look at the increasing amount of fat children and adults then yes they are to stupid to make good choices. Public school is by nature a form a socialism and with that you get rules against choice not only in the content of their lunch but also what they learn. My family home schools because we are committed to making these choices ourselves and not leaving it to the system.

Comment by LBest — December 6, 2007 @ 2:42 pm

LBest,

Where in the Constitution is the Congress authorized to tell a school district what it can offer in a school cafeteria ?

Comment by Doug Mataconis — December 6, 2007 @ 2:43 pm

Doug,

I did not say they had the right, just that they do it anyhow and that is what you get with any social program–more bullshit.

Comment by LBest — December 7, 2007 @ 1:54 pm

Simply Governor Busybody being his usual busybody self.

Comment by Ken H — September 1, 2007 @ 5:56 pm

What are you talking about? This is just another example of the founders’ ignorance. Did they ever think about the children? Hmmm… sometimes I wish a candidate would arise that were more concerned with allowing individuals to make their own choices instead of forcing irrational rules and laws on millions of people.

Comment by somebody — September 1, 2007 @ 7:57 pm

This is going to be fun. Congress gets the authority under the commerce clause. A federal smoking ban is constitutional because it affects commerce in the following ways:

1. All the smoke breaks throughout the U.S. reduce overall productivity and impact interstate and foreign commerce.

2. Smoking outdoors in public places impacts interstate commerce because the wafting of second hand smoke causes drivers to briefly turn their heads. Drivers that smoke tend to become distracted and slow down and/or stop to take smoke breaks, thus reducing the efficiency of commerce.

3. A ban on public smoking will stop rednecks from hooking up thereby decreasing the welfare population throughout the states.

4. Children who smoke second hand smoke grow up to be less effective workers throughout the several states.

5. Tobacco is really a weed that travels in interstate commerce. We already ban one weed, we may as well ban more?

6. If everyone stopped smoking in public places, the shift to smokeless tobacco and rise in slip and fall cases would more than offset the high costs of lung cancer. People can expectorate at their desks instead of outside?

7. The columns inside the Capitol building all have tobacco leaves at the top thereby evincing the intent of the framers to regulate tobacco anyway. Since smoke tobacco was not popular in the founding era, it’s okay to regulate the smoke.
Ya’ll have any more?

Comment by Chris Kachouroff — September 1, 2007 @ 8:24 pm

I can’t tell if Chris is being sarcastic and I should be really amused (because those actually were pretty funny) or if he’s being serious and I should be really horrified.

Comment by UCrawford — September 1, 2007 @ 8:37 pm

Although I favor public restrictions on intrusive smoking, I agree wholeheartedly that this is a task for the states, not the feds. This is another example of the abuse of the commerce clause and the failure to honor the Tenth Amendment.

Comment by Chepe Noyon — September 2, 2007 @ 12:01 pm

Chepe,

We’re in agreement on that point that it’s none of the federal government’s business. Although I think “public” bans on smoking shouldn’t extend to private businesses or homes, even if the regulation is at the state level.

Comment by UCrawford — September 2, 2007 @ 1:22 pm

I certainly agree that bans on smoking in private homes are unjustified, but I’m not aware of any such bans — can you cite any instances? I would think that child endangerment laws could be applied against parents who smoke in the presence of their children, so there’s no need for special smoking laws in that situation. As for private businesses, I further agree with you that there’s no need the special smoking laws to apply to these — the standard health and safety laws are adequate to the task of preventing a smoker from imposing health risks upon others.

Comment by Chepe Noyon — September 2, 2007 @ 1:32 pm

Chepe,

Either that or people could simply choose not to frequent businesses that allow smoking, thereby creating a financial incentive for the businesses to ban it on their own, thus eliminating the need for any laws. The only place that I feel a smoking ban is somewhat justified is in publicly-owned buildings, if only because the state technically has ownership and has a right to set workplace environment standards. But even that is pretty shaky.

As for a list of smoking bans…http://en.wikipedia.org/wiki/List_of_smoking_bans_in_the_United_States

And I don’t think that regulating smoking around children (under special laws or child endangerment) is either wise nor enforceable. It also opens the slippery slope into all kinds of abuse.

You are a socialist, aren’t you?

Comment by UCrawford — September 2, 2007 @ 1:43 pm

“You are a socialist, aren’t you?”

That’s a strange question; perhaps you are unfamiliar with socialism. Socialism is an economic policy in which ownership and allocation of property are reserved to the state. Capitalism, by contrast, is an economic system in which ownership and allocation of property are assigned to individuals. Neither system has any logical relationship with criminal law, which can take any form in either system.

Thanks for the link to laws banning smoking in private homes; it seems to say that no such laws exist. That’s a relief.

You apply the slippery slope argument against the application of child endangerment laws against smoking. Aside from the obvious question (why would you want to exempt smoking from any other health issue?) I wonder why you rely on slippery slope arguments when they are known to be illogical?

Comment by Chepe Noyon — September 2, 2007 @ 3:39 pm

Chepe,

You need to scroll down to the bottom of the entry I linked to, it references statutes in California where smoking laws are being applied to private domiciles (it was a separate section under the lists of laws in individual states, which is why you might have missed them). At this point they’re being contested, I believe, but the government is attempting to extend its reach on smoking laws into private residences.

I’m not so sure that socialism a completely inaccurate description of your beliefs…perhaps quasi-socialism might be more accurate. But you definitely have statist leanings. I didn’t mean it as a slur, exactly, it just baffles me why anyone would have that much trust in any government to execute its functions as competently as you seem to think they’re capable of. Extending the right for the state to interfere with the usage of your property (so long as you are not interfering with some else’s personal or property rights) is a way of ceding your ownership of the property to the state. And all economic systems have a logical relationship with criminal law. We have laws for crimes against property, we have laws for crimes against people (which are a self-owned property), there’s no disconnect between the law and economics, mainly because economics is an intrinsic part of human action.

And not all slippery slope arguments are logical fallacies, so long as a link can be established demonstrating that one action has a reasonable probability of creating another. Allowing the state to exercise ownership powers over your property does create the opportunity for them to eventually seize ownership (see: Venezuela)

Comment by UCrawford — September 2, 2007 @ 4:58 pm

Yes, I did scroll down and look at the section on California. Here’s the relevant quote:

“most California cities allow landlords to place anti-smoking regulations at will because anti-smoking rules are in a context of landowners’ private property”

These are not laws banning smoking in private homes, they are laws permitting property owners to ban smoking on their property — which I would think any staunch supporter of property rights would applaud.

As to the matter of state intervention in personal property, the relevant quote of yours is this:

“(so long as you are not interfering with some else’s personal or property rights)”

That’s the issue in my mind. I don’t care what you do to your own lungs, but as soon as your air pollution enters somebody else’s lungs without their consent, you are violating a basic principle of freedom: the right not to have other people impose danger upon you. I’m all for property rights, I just don’t believe that a smoker can declare the earth’s atmosphere to be his own personal property and nobody else’s.

As to the slippery slope argument, you’re right that the person applying that argument has an obligation to demonstrate the series of causal links leading to the undesired result. You have provided no such causal links; instead, you seem to be leaping from public health laws to socialism. Is it impossible for a capitalistic society to have any public health laws?

Comment by Chepe Noyon — September 2, 2007 @ 5:22 pm

CRAWFORD

Yes that was a joke.

CHEPE

Vladimr Lenin, Joseph Stalin, Mao Tse Tung, . . . tell us you don’t belong to in this list of names Chepe. . . please answer Crawford’s question…are you red?

Comment by Chris Kachouroff — September 4, 2007 @ 6:38 pm

Chris,

You ought to include the little smiley face ( :) )…you’d be surprised how many times something that appears to be sarcasm is actually an incredibly stupid opinion.

Comment by UCrawford — September 4, 2007 @ 6:58 pm

[…] got a long post at The Liberty Papers about today’s Supreme Court decision on partial birth […]

Pingback by Below The Beltway » Blog Archive » Thoughts On Today’s Abortion Decision — April 18, 2007 @ 11:54 am

Doug,

This was the first though I had this morning. I can’t for the life of me figure out why any government would have the right to ban any medical procedure between two consensual adults (patient and doctor). Obviously, the commerce clause argument is a bad one, meaning that the power to regulate medical practices falls to the state or the people. But there’s no reason for the state to get involved when both the patient and doctor consent. The only caveat I can find, is that in this particular situation a case can be made for intervention based on harm to an outside party (namely, the child). Any thoughts?

Comment by bret — April 18, 2007 @ 11:18 pm

[…] Even more opinion and analysis by Doug Mataconis (of Below the Beltway) at The Liberty Papers. […]

Pingback by Participate Media » Blog Archive » Today, April 18, on BuzzTracker — April 19, 2007 @ 8:51 am

I cannot understand why Bushitler is forcing all these women to get pregnant against their will and then denying them the right wait until the last possible moment before the fetus emerges from the birth canal to suck the brains out of its skull. What an evil monster!

Call me a dreamer, but if only there were a safe and legal procedure available for a woman to terminate the unplanned parasite within her womb early on before it became a viable human being, perhaps this partial-birth abortion issue would be moot.

The Rethuglicans MUST be defeated at all costs, even if it means supporting victory by the Taliban. After all, the Islamic fascists aren’t concerned with some completely arbitrary distinction as to which side of the birth canal a fetus happens to be on. I’m certain they would be happy to arrange for a pre- or post-natal abortion for any American fetus (or “baby”, as the Right-to-tell-you-how-to-run-your-Lifers like to call it in their propaganda) of any age.

Comment by Bobarian — April 20, 2007 @ 9:11 am