Category Archives: Individual Rights

No Publius in the Alabama Senate Press Room

Del MarshDel Marsh, R-Anniston, president pro tempore of the Alabama Senate, has asked the Alabama Press Association to assist Senate staff “in determining a proper definition of what constitutes a journalist meriting access to the press room.” Senator Marsh only wants real “journalists” in the press rooms. The others—“partisan political blogs and shady fly-by-night websites offering purposely skewed and inaccurate interpretations of hard news events”—can “sit in the public gallery and blog about what they see” from there.

One wonders, if the access in the gallery is commensurate with the access in the press room, what difference does it make? On the other hand, if the access is not commensurate, then why is Senator Marsh seeking to relegate some of his citizens to second class access based on a distinction even he cannot articulate?

Luckily for him—and the Alabama Press Association—the U.S. Supreme Court has already made it simple to determine who possesses the freedom of the press.

Everyone.

“The press” refers not to a group of people, but to the action of publication itself. Thus, “freedom of the press” protects not a privileged group of actors, but the action of conveying information and ideas, wherever that action is undertaken, by whatever means and whatever person. The Supreme Court has repeatedly recognized as much:

The press, in its historic connotation, comprehends every sort of publication which affords a vehicle of information and opinion.

Lovell v. City of Griffin, 303 U.S. 444, 452 (1938) (protecting Jehovah’s Witness’s right to distribute religious leaflets door-to-door without a license).

The administration of a constitutional newsman’s privilege would present practical and conceptual difficulties of a high order. Sooner or later, it would be necessary to define those categories of newsmen who qualified for the privilege, a questionable procedure in light of the traditional doctrine that liberty of the press is the right of the lonely pamphleteer who uses carbon paper or a mimeograph just as much as of the large metropolitan publisher who utilizes the latest photocomposition methods. Freedom of the press is a “fundamental personal right“… The informative function asserted by representatives of the organized press … is also performed by lecturers, political pollsters, novelists, academic researchers, and dramatists.

Branzburg v. Hayes, 408 U.S. 665, 703-05 (1972) (emphasis added, internal citations removed) (like every other citizen, a reporter can be called to answer before grand jury).

[T]he purpose of the Constitution was not to erect the press into a privileged institution, but to protect all persons in their right to print what they will as well as to utter it. “[T]he liberty of the press is no greater and no less than the liberty of every subject of the Queen,” and, in the United States, it is no greater than the liberty of every citizen of the Republic.

Pennekamp v. Florida, 328 U.S. 331, 364 (1946) (emphasis added, internal citations removed) (Frankfurter, J., concurring).

Is it too idealistic to think that something called a “press room” should be open to all the people who possess the “freedom of the press,” which is to say everyone?

Perhaps.

Surely, the general public cannot demand admission to White House press briefings. And Marsh would say he is not proposing to restrict the act of publishing, but rather the act of entering the press room. The former is a constitutional right; the latter (Marsh would argue) is a special privilege.

The distinction is not without meaning, as Doug Mataconis has comprehensively explained. Just as federal and state governments can grant special privileges for religious beliefs without running afoul of the First Amendment, so too can they grant extra-Constitutional privileges, such as testimonial shield laws, to only certain members of the media.

When expanding protection, legislatures are entitled to draw lines that might not be permissible in the case of abridgements.

*     *     *

Because press shield legislation would extend immunities to the press beyond what the First Amendment has been held to require, it probably does not violate the Constitution to confine those immunities to a subset of entities entitled to protection under the Press Clause.

Michael W. McConnell, Reconsidering Citizens United as a Press Clause Case, 123 Yale L. J. 266 (Nov. 2013).

Marsh might seek to characterize his proposal, not as an infringement upon freedom of the press, but a special perk akin to a media shield law for favored groups in their exercise of that right. That might be constitutional.

But it is also bad policy.

Its practical unworkability is evidenced by other efforts to establish criteria for the receipt of such special perks. Such criteria inevitably focus on the regularity and primacy of the journalistic activity to that individual or entity and whether that activity constitutes a business endeavor for financial gain or livelihood.

As former Circuit Judge for the Tenth Circuit Court of Appeals and Director of the Constitutional Law Center at Stanford Law School Michael W. McConnell has observed, those standards risk excluding publications like The National Review, The Weekly Standard, Slate and Newsweek, which are sometimes kept afloat by donors rather than profits. They risk excluding the National Geographic Society, the Smithsonian, and the American Bar Association, which engage in journalism as secondary to other endeavors. And they risk excluding authors, documentary filmmakers, and pamphleteers, who do not follow any predetermined cycle to their publishing.

Senator Marsh would do well to remember, also, what Doug Mataconis observed:

[I]t was a bunch of bloggers who discovered that the memos that CBS News relied upon to support its story about George W. Bush supposedly ducking out early on his National Guard commitments were forgeries. That report, you’ll recall, came out at the height of the 2004 re-election campaign and threatened to have a major impact on the election. Instead [thanks to those bloggers], it ended up having a major impact on the careers of several CBS News employees, including a man who had been anchoring the CBS Evening News for more than 20 years. For reasons like that, it’s important that we make sure that shield laws don’t end up being something that only cover members of what essentially amounts to a protected cartel while bloggers and free-lancers are left out.

Under Senator Marsh’s approach, “real” journalists like Dan Rather would no doubt gain admission to the Alabama legislature’s press rooms. What about the bloggers who uncovered the problems with Rather’s documents?

PubliusIt is not always clear, based on mainstream status, who is the partisan, shady, fly-by-night imposter “offering purposely skewed and inaccurate interpretations of hard news events” and who is engaged in real journalism. Senator Marsh should reconsider his efforts to impose press credentialing standards that Thomas Paine, Publius, and the Federal Farmer would be unable to satisfy.

 

 

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Lady Liberty image via The Montgomery Advertiser. Publius image from FeedBooks.com.

Sarah Baker is a libertarian, attorney and writer. She lives in Montana with her daughter and a house full of pets.

This Advice Could Save Your Life and Preserve Your Liberty

garner

The fact that the police can get away with killing an individual who presented no threat to anyone with the whole incident caught on camera is quite disturbing. A grand jury decided not to indict a NYPD officer by the name of Daniel Pantaleo who used a choke-hold banned by his own department which resulted in the death of Eric Garner. Unlike the incident in Ferguson which contained conflicting testimony and forensics which support Darren Wilson’s version of the event, this event in New York was caught on video from at least two different camera angles (and available on YouTube for the whole world to see). This seems pretty cut and dry at least for an indictment.

So how is it that almost any accused individual brought before a grand jury is indicted unless the accused individual happens to wear a government issued costume? Are grand juries really that biased toward the police? After reading a few dozen comments on threads responding to the grand jury decision, I’m afraid the answer is yes (if you want to lose all hope for humanity, read the comment section to any article of consequence). I reach this conclusion because these are the sort of people who serve on juries and decide that it’s perfectly okay for the police to kill someone if the suspect had any criminal record of any kind, resisted in any way, or even “disrespected” the police on the scene.

The truth is that reforming the way police do things is going to take time as changing people’s attitudes is going to take time. There are things that we as individuals can do here and now so that we don’t become victims of the police, however. Many of these perfect, law abiding specimens of humanity who like to share their wisdom with the rest of us on the internet say that if Eric Garner hadn’t resisted (at all) he would never have been put in the choke hold that contributed or caused his death. On this point, I grudgingly have to agree.

I don’t say this because I believe the use of force against Garner was appropriate but because far too many people do (and juries are composed of people who aren’t always very reasonable).

One common thread in many of these viral videos where the police overreact is that the individual either resists (however mildly), makes a sudden move, or is perceived as being armed [1]. The worst thing you can do is give the cops a reason to use force and an excuse for jurors who will normally give the police the benefit of the doubt a reason to doubt.

So how does one increase one’s odds of surviving an encounter with an overzealous cop? Here are a few suggestions.

1. Before you end your session on the internet today, watch Flex Your Rights’ “10 Rules for Dealing With Police.” I have the entire series and a summary of the rules posted here. If you know how you can respectfully but firmly assert your constitutional rights before the next time you are confronted by the police, you will have advantages most people do not and you will reduce the chances that the encounter will escalate to violence.

2. Act as if the encounter is being recorded and your actions will be scrutinized in front of a judge, jury, and/or the general public. For better or worse, cameras have become ubiquitous, so the chances the encounter is being recorded increase everyday. Use this to your advantage. Better yet, if you have a camera phone, record the encounter yourself. Recording the police in public is legal almost everywhere in the U.S. Follow this link to be sure of the specific legalities of your state. Once you have the camera rolling, follow the aforementioned “10 rules” and be the kind of person a judge, jury, and the general public would be sympathetic toward. If you act like a jerk or are disrespectful in any way (regardless of how the cop acts) this could all backfire.

3. Don’t make any sudden moves and keep your hands visible at all times. If you are pulled over keep your hands on the steering wheel and turn on the dome light if its dark out. When the cop asks for your license and registration, say something like “My license is in my wallet” and very slowly reach for it and hand it over. Then say “My insurance card and registration is in the glove box” then slowly open the glove box and retrieve the documentation. Better yet, have the documentation ready before the cop comes to your window; its less movement and you know you will be asked to produce these items anyway. Had this man followed similar advice, he might not have been shot by a South Carolina State trooper.

4. Understand that you are NOT in control. If the police have decided to put cuffs on you and/or arrest you, do not physically resist, attack, or run. If you do, the results will not end in your favor. Whatever injustice has befallen you will not be settled until later. Also, keep your mouth shut and only speak of the event with your attorney.

Its my hope that these cases which have scandalized us all will lead to better understanding of how we can peacefully resist the growing police state. Its not my intention to blame the victims such as Eric Garner, John Crawford III, Kelly Thomas and countless others but to do my part in not creating new victims of overzealous cops afraid of their own shadows.

[1] Its become a pet peeve of mine seeing headlines that state that the police shoot an “unarmed” man. For one, unarmed does not mean harmless. Also, its probably safe to say that most of the time when the cops shoot an unarmed person, it was unclear if s/he was armed at the time. While we can and should scrutinize the police when they use force, we cannot expect them to have perfect knowledge in real time.

Oath Keepers Protect St. Louis Until Being Disbanded By The Police They Effectively Replaced

Oath-keeper-patch-in-english

In response to the looting that has damaged numerous businesses in Ferguson, MO since last Monday’s announceemnt that former police officer Darren Wilson would not be indicted for killing Michael Brown, a group called the Oath Keepers descended onto Ferguson to protect businesses from being damaged or destroyed by rioters, oftentimes by setting up armed sentries on rooftops. Over the long weekend, St. Louis County’s police officers demanded that the group disperse.

Threatened with arrest for operating without a license, the volunteers argued but eventually left their positions early Saturday, Rhodes said.

“We are going to go back as protesters,” Rhodes said Saturday afternoon.

(…)

“We thought they were going to do it right this time,” Rhodes said of government response to the grand jury decision released Monday in the Michael Brown case. “But when Monday rolled around and they didn’t park the National Guard at these businesses, that’s when we said we have got to do something.

“Historically, the government almost always fails to protect people,” he added.

The Oath Keepers were started in 2009 as a militia-like force that advocates military and law enforcement personnel disobey orders that are in violation of the Constitution of the United States. Despite accusations of racism, they were started in 2009 by a Mexican-American, Stewart Rhodes, who graduated from Yale Law School and once worked for Ron Paul. They have dodged criticism for years and are regarded by some as extremists or domestic terrorists, though they maintain a 30,000 strong member base and are highly regarded among libertarian parts of the Tea Party movement.

I am personally sceptical of the Oath Keepers because I feel their tin-foil, Alex Jones-like views on the government are extreme to say the very least. Any group that gains traction due to the election of one man and finds common cause with the birther movement tends to draw scrutiny. With that said, I find it very hard to blame anyone locally for being very happy to see them. Whatever one’s views on Michael Brown’s killing – I was very dim on the “no indictment” ruling – the fact is that St. Louis County has handled the entire situation in Ferguson and surrounding areas in an illegal, borderline evil fashion. They instigated an already edgy populace from moment one, turning military-grade weapons on the citizens they “police” in a method of crowd control so poorly conceived it raised legitimate questions as to whether or not the police were intentionally trying to rile their citizens.

As the grand jury’s announcement approached, the mistakes continued. It was announced at 8PM CST, with advance warning and a preemptive call for National Guard support. They gunned for a fight, prepared for a fight, and then stoked a fight. Since then, the overly militarized police, and the actual military, guarded the police station but left local businesses to burn. After blaming the failure to indict a man who shot at an unarmed teenager twelve times on social media, they proceeded to protect their own stuff while totally abandoning any pretense of protecting anyone locally. The failures of the Ferguson and St. Louis County police departments are so legion, so flagrant, and so damaging that multiple people involved in them should never hold jobs in authority again. Their treatment of those doing their job for them only exemplifies what has been a clown car.

In light of that, is it any wonder that the Oath Keepers – at heart, an anti-government organization that is convinced martial law is imminent – would show up? This isn’t just why they were conceived; it proves all of their fears, all of their statements, and all of their actions to be legitimate, or at the very least to have a degree of truth to them. “The government is against the people!” isn’t just the cry of a guy who failed Western Civ; in this case, it’s a provable fact. The police in this area have shown more effort in going after football players than they have in any form of police work.

In striking down the Oath Keepers, the local authorities might have made them more powerful than they could ever imagine. I expect membership to spike, hard.

Christopher Bowen covered the video games industry for eight years before moving onto politics and general interest. He is the Editor in Chief of Gaming Bus, and has worked for Diehard GameFan, Daily Games News, TalkingAboutGames.com and has freelanced elsewhere. He is a “liberaltarian” – a liberal libertarian. A network engineer by trade, he lives in Derby CT.

Book Review: Hearts of Darkness

I recently read* Hearts of Darkness: Why Kids Are Becoming Mass Murderers and How We Can Stop It

This is obviously setting up to be a slightly controversial book from the start. Trying to delve into the psychology of mass killings is fraught with peril.
Hearts of Darkness
This book, however, seems to deliver on its theme.

At its core, the book makes two arguments. Both have merit, but both also lead to questions. At its core, the arguments boil down to this:

  1. Mass killings have become an epidemic, and are a serious issue in their own right that need to be addressed by society.
  2. Mass killings are fundamentally an intersection between the forces of society and severe mental health issues.

I have my issues with both arguments.

First, essentially all statistics on violent crime show that it’s in the decline. So while I’m not going to argue whether or not mass shootings in the dramatic and newsworthy sense are increasing or decreasing [as I haven’t looked at the stats], I’m concerned that the authors didn’t even address the fact that violent crime is decreasing in the aggregate. If you want to make the case that this particular problem is worth addressing, you’d think that including overall crime stats and explaining why this trend increasing in the face of declining crime is worth of a societal response is really necessary.

Second, the argument of the book is quite clear. Essentially all of the killers profiled showed evidence of paranoid schizophrenia. We’re not talking about normal people who went over the edge. We’re talking about crazy people who decided to manifest their version of crazy in a way that causes extreme casualties. But if you assume that these events are increasing, that means we either are seeing an increase in the number of crazy people or we’re seeing something in society that is making crazy people more prone to these events. Unfortunately, the authors don’t seem to justify either argument.

That said, I like the book for its deep investigation into the history of several of these high-profile killers. What they show, with intense research, is that every one of the profiled killers were showing evidence of severe mental schisms. And we’re not talking about depression, or anxiety. We’re talking about hardcore paranoid schizophrenia. Depressed people take their own lives. People who hear voices, or have other similar breaks with reality, are the ones who try to take a bunch of people with them.

The Good:

First and foremost, the book extensively focuses on mental health issues. It essentially states that not all paranoid schizophrenics will become mass shooters. In fact, only a small number will. But it looks into the history of several of these killers and severe mental instability is a pretty darn clear thread woven through their history.

Second, I do like the fact that they don’t fall on the trope of “the kid was autistic, therefore he’s an unfeeling monster” garbage. Yes, autistic people tend to have difficulty relating to others in a “normal” way. No, they don’t lack empathy or concern for others. Autistic people tend to be much less violent than in general. But every time you get into one of these mass killings, the speculation is that the killer is autistic. And in the case of Adam Lanza, it pretty well seems to line up. But the key is that while autistic people tend not to be violent, people who are both autistic and paranoid schizophrenics or have borderline personality disorder just might be violent. Clearly this is an important distinction to me.

Third, this is most certainly NOT an anti-gun book. Despite the fact that the authors are pretty well in favor of gun control, they’re cognizant of the fact that this is not central to the thesis of the book. They do indulge for about 2 pages in the waning portions of the text to suggest that maybe if getting a gun is harder than it is now, that you might see a decrease in these killings. Given the restraint they show throughout the rest of the book, I’ll indulge them 2 pages towards the end.

The Bad:

The “epidemic” claim is not well supported. They throw out a statistic on multiple-death shootings having gone up over the years, but I think to call these “mass” killings in the same vein as a Sandy Hook or Columbine is a stretch. As mentioned before, overall violent crime is in decline over the last several decades, so it’s hard to square this with an epidemic of mass murder. I think if you’re trying to prove an epidemic, the best answer is that with modern communication, we not only know more about these events, and sooner, than we did before, and that in some of the cases the perpetrators were–if not “copycats”–inspired by previous killers. This is made clear in the book, but still I find “epidemic” to be a stretch.

They do a good job of profiling certain killers. But there are many mass killers that are NOT covered here. A skeptical reader is left wondering why not. Now, it could be simple. The authors may simply not have had access to enough medical records or personal history of these other killers to draw a conclusion. It may have been that family and friends or family of the killers were just non-cooperative with the authors. Or, of course, it could be that the authors cherry-picked the ones who supported their premise and left those who did not out. It wasn’t addressed either way, and I think it should have been.

But where the book really fails is to draw a significant conclusion. They clearly have identified a problem and a diagnosis, but when it comes to serious mental disorders, it’s very easy to overreach between acting in the interests of public safety, and trampling the rights of the disabled. After all, a very small proportion even of the mentally ill are likely to go on shooting sprees. How far are we really willing to go to stop this? At best, raising awareness of the issue to identify potential “cries for help” might be the best option, as in a number of these cases, the killers really did need, and express their want of, help to get better.

In their close, the authors point to a number of possible factors leading to this rise. He’re we’re exposed to a litany of the usual suspects. Easy access to guns (and high capacity magazines) is one. Violent video games is another. Leaning left, as they do, they throw out a few more, such as economic issues, globalization, and free speech on the internet. All of these seem to be a bit of a stretch. Hell, they might even want to throw “overpopulation” in there, because more people equals more targets, right? The problem with each of these is that under the right conditions, one can find a study suggesting that these are contributory factors, but it’s never clear just how much of this issue will go away by “solving” any given one of these issues. Nor can we typically agree on the solutions.

Conclusion:

I’m sure this is not an easy book to write. It’s a deeply troubling issue, and one where it’s almost bound to be politicized. Every time one of these events happens, the left and right tend to immediately look for any signs that the killer numbers among the other party. And every time we libertarians see something like Jared Loughner, we immediately worry that someone will assume that all libertarians are going to “go postal” on the Post Office.

This book does a great job to highlight that crazy doesn’t choose a party. And that for the most part, while violent people may kill people, it’s the crazies who are responsible for mass murder. It really is a useful book purely on that point alone. We do have a mental health issue in this country (and other countries do as well), and this is something that should be addressed so that we can help the people at risk of perpetrating these acts.

But the byline of the book includes “and How We Can Stop It.” I think the book fails to deliver on that claim. Now, that isn’t necessarily the authors’ fault. I’m not sure there is an easily-packaged solution that they could put together for us. And much like terrorism, you can win 99 battles out of 100, but that 100th is going to dominate the news cycle. In a country of 300M people, and a world of 7B, the law of large numbers states that perhaps this is simply a problem the world must endure.

At best, they say that these battles are won on the margins, and that with some small changes, like reduced capacity magazines or better control over the sale of violent video games, we might save “some” lives, and that’s better than none. However, I think their politics cause them to minimize the cost to liberty of infringing on our rights to make these improvements at the margins.

In short, the book was a worthwhile read, especially since I see it at Amazon in hardcover for $2.43 right now. At the original print price, though, probably not worth it.
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Net Neutrality: A Complex Issue With No Satisfactory Solutions

Yesterday, Chris Byrne had a write-up regarding President Obama’s “stated” support for Net Neutrality. “Stated” is in scare quotes because, as Chris noted, President Obama’s support for this ( much like his “support” for gay marriage) is a limp-wristed attempt to mollify his young, technologically literate base.

Of course, because it’s Obama and there’s a cottage industry dedicated to demonizing him, Ted Cruz had to come out with the stupidest political statement of the year (Non-Dollard/Kincannon Division).

With the mainstream attention these positions will now bring, and with an FCC decision on the issue due in 2015, the issue can no longer be ignored:

Net Neutrality is a major political issue, right now.

Chris Byrne correctly noted, that the lack of competitive options in local internet access is the primary factor leading us into the situation we’re in now. A deeper look into this shows… yeah, it shows we’re screwed either way.At the moment, there are no realistic answers that will satisfy consumers.

The explanation as to why is complex, to say the least.

Keep in mind that as I go through the issues surrounding net neutrality, I will be attempting to take common arguments, and technical background, and break them down into layman’s terms. Although readers of The Liberty Papers tend to skew more educated than most, I understand that not everyone is tech savvy enough to understand much about how the internet works beyond “I go to Google and email shows up!”. » Read more

Christopher Bowen covered the video games industry for eight years before moving onto politics and general interest. He is the Editor in Chief of Gaming Bus, and has worked for Diehard GameFan, Daily Games News, TalkingAboutGames.com and has freelanced elsewhere. He is a “liberaltarian” – a liberal libertarian. A network engineer by trade, he lives in Derby CT.
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