Category Archives: Freedom

Misunderstanding Law, Government, and Society

GovernmentIsForceMost people… At least most people in modern western democracies… Seem to have a fundamental and unconscious assumption about the nature of law and government, that goes something like this:

 

 

 

Law and government, are or should be, the expression of the will of the majority, for the purpose of making collective decisions, taking collective actions, fixing problems and righting wrongs.

If I gave that definition to most people as what government “should” be, or even what it is, I’d guess they would agree.

But that’s not what law and government are at all. In fact, that notion of the nature of law and government, is not only wrong, it is extremely harmful.

What are law and government?

Government, is the instrument of collective delegation of the legitimate initiation and use of force against others.

Law, is the body of rules by which that force is administered and applied.

The only legitimate purpose for which, is to secure and protect the rights of individuals governed by them.

So, what’s the other thing, and why is this a problem?

The other definition, is more properly that of society (as distinct from culture).

Government is NOT Society, and Society, is NOT Government

This conflation of government, and society, is a very serious social and political problem because those who hold it… and I firmly believe it’s a large majority… believe that law and government, should be used for “doing what’s good, and stopping what’s bad”.

They naturally wish to see government do what they think is right, or best, and stop that which they think is wrong, harmful, or wasteful… And not just in areas where force should be applied.

They conflate “legal” with “good” and “illegal” with “bad”, and try to make laws against things which they think are bad, or mandating things which they think are good.

They often even conflate “legal” or “attempting to make legal” with “approving and supporting”, and “dissapproving and opposing” with “illegal” or “attempting to make illegal”.

This is incredibly harmful

We have allowed… even encouraged people… to deeply hold the fundamental notion, that they get to vote on other peoples opinions, choices, and behavior; and if their “side” wins the vote, that it is legitimate to make those things legal or illegal.

It also means that these people automatically and reflexively try to solve personal, moral, social, or societal problems, with government and law, when it is entirely inappropriate, even harmful, to attempt to do so. Most of those problems cannot be solved by the use of force;, or at best can only be solved inefficiently, ineffectively, and while violating the rights of others.

In encouraging this misapprehension, we have in fact made the personal, the political, and the political, the personal.

How do we stop the harm?

We must correct this critical error in peoples fundamental apprehension of law and government.

People need to understand, at the most fundamental level, that government is force, and that law is how that force is directed and administered. No more, no less.

If we don’t correct this misapprehension, then we will continue to simply seesaw back and forth between majoritarian tyrannies, as social changes dictate.

Rights will continue to be violated and abrogated as the opinions of society fluctuate.

The favored, will continue to be privileged over the disfavored at the expense of the disfavored’s rights, until the pendulum swings again and the roles are reversed.

Yes, I realize, that is largely how it has always been… But never has law and government had such a depth and breath, had so great a reach into our personal lives, as it does today, and this unfortunately shows no sign of receding.

The absurdity of this reach… and overreach… is finally becoming apparent to many people, on all ideological “sides”; be it the “war on drugs”, the “war on terror”, privacy and surveillance, or gay marriage and wedding cakes.

So, we have to take action, now

Use this growing awareness of the overreach, to help people understand.

We have to show people these aren’t just outlying excesses. That they result from the way we think of, look at, and attempt to use, government.

We have to get people to understand, that if they can say “there ought to be a law”, and then get a law made banning something that they don’t like; then their worst enemy, can get a law made banning something they love.

We have to return to the notion that fundamental rights matter, and that the only legitimate purpose of law, and government, is to protect those fundamental rights.

Everything else?

That’s up to individuals, and to society as a whole, NOT GOVERNMENT.

Voluntary collective action. If it’s really what people want, then they’ll work for it, without the threat of force. If it’s not really what they want, then we shouldn’t be forcing people to do it.

I am a cynically romantic optimistic pessimist. I am neither liberal, nor conservative. I am a (somewhat disgruntled) muscular minarchist… something like a constructive anarchist.

Basically what that means, is that I believe, all things being equal, responsible adults should be able to do whatever the hell they want to do, so long as nobody’s getting hurt, who isn’t paying extra

Cause And Effect in Baltimore

grayWith what’s going on in Baltimore, we’re beyond simple deja vu. What we’ve been witnessing is a sickeningly predictable process. Police beat the shit out of a black guy, and he dies. People get mad. Protests turn to violence. Everyone views the incidents through their own prisms, and assigns blame and praise as their worldview permits them. We have been repeating this process for some time, but in recent times it was the death of Michael Brown that instigated what has become a nationwide movement.

In order to fix the mess that’s currently being made, we need to see what got us here in the first place. Simply sticking our fingers in our collective ears while hauntingly saying “well, don’t riot!” is like someone whose answer to sexual assault is to tell men “well, don’t rape!”. It’s condescending and unhelpful. We need to investigate how we got to where we are, both in Baltimore and other communities such as Ferguson, MO.

Do the protesters have legitimate complaints?

Only a partisan fool would argue that the protesters in Baltimore don’t have legitimate reasons to be extremely angry.

The flash point for this community was the death of Freddie Gray, who was taken into police custody on April 12th and somehow came out of it with a broken spine the likes of which usually happen in car accidents. The incident sprung from Gray seeing a police officer and taking off running. It’s unknown exactly what happened inside the police van that he was taken into, which is different from the case of Walter Scott, who was taped being gunned down from behind by a police officer.

In addition, police brutality is a major issue in Baltimore, and with so many payouts – of taxpayer money, mind – for brutality cases, keeping in mind that these are just the ones that got caught, a reasonable person can draw one of two conclusions: either the Baltimore Police Department is so incompetent that they can’t even get away with one of the easiest things for an officer to get away with, or police brutality is so prevalent in the BPD that it’s skewing the numbers.

So it’s a race thing, right?

That’s not cut-and-dried. Baltimore’s a bit different in that they have a black mayor, a heavy black population within their police force, and their minority population is mixed race, with Latinos and other ethnic groups mixing in and creating an eclectic mix. This isn’t Ferguson, whose white police force regards their black population as walking ATMs.

But at the same time, race is heavily tied to class in all of the cases that have sprung up. This goes back to decades old debates on the poor economic straits of black people in America, owing to hundreds of years of slavery, followed by Jim Crow laws, enhanced by racist mindsets throughout America. Those are different articles altogether, but the economic plight of black people in America, on a bird’s eye level, contributes heavily to the crime rate, which causes police to react disproportionately, and perpetuates a never-ending cycle of distrust. The chicken vs. egg debate of which came first – the black inequality or black crime – is irrelevant to this context. What’s important, right now, is that in many cases, the police – even black cops, like the one who covered up for Michael Slager – have not helped, for years, due to outright profiling.

Wait a minute. You just said blacks commit more crimes. In fact, most of the people who have been killed had rap sheets as well! That kind of justifies at least some action, right?

Ever hear of a self-fulfilling prophecy? Because that’s what’s happening in most cases. Yes, in many cases, as reported by the press, the individuals who have been victimized recently had prior run-ins with police. Despite consternation by some that this is a ploy to prove that black people are all criminals, it would be irresponsible journalism to omit those facts.

But this issue isn’t just affecting poor blacks with a record. CNN’s LZ Granderson on Twitter yesterday pointed out the reality:

There’s also New York Times columnist Charles Blow, who’s son was stopped at gunpoint at Yale University, where the son is a student. It was a black cop that detained that young man, but ultimately, it’s the colour blue that matters more. As Mr. Blow notes in his piece, all that matters is how you look.

So what does this have to do with someone that has a “rap sheet”? There’s a huge difference between LZ Granderson and some random guy in the projects, right? Well, let’s extrapolate this to its logical conclusion:

1) Man is stopped for superfluous reasons. There are provable statistics that show blacks are far more likely to be stopped than whites. This is often called “walking(talking) while black”.
2) Man is ticketed or arrested for a meaningless crime. This is partly the fault of overlegislation – chances are good that due to the addition of “regulatory” crimes, you are breaking the law while reading this – but it’s also a problem for black people, so often pulled over by officers needing to justify themselves, especially if there’s a financial impetus.
3) If that person is later the victim of brutality, reasonable doubt can be cast on the victim by referencing “previous run-ins” with police. This not only affects criminal and civil trials, it doubles as a character assassination.
4) The general public – still overwhelmingly white, mostly conservative, and educated with a strong belief in law, order and the police as a force of protection instead of oppression – are quick to label the action reasonably justified, unable – or unwilling – to personalize the problem. The spectre of police brutality is so foreign to most white people that even well meaning individuals simply cannot understand what it’s like to walk around with a constant fear of police reactions. It’s literally not in our realm of thinking.

Whatever, you bleeding heart liberal. So the police occasionally thump a guy too hard. But I don’t wanna hear this stuff about poor people! They have just as many chances as we do! Just look at others who made it! Look at guys like Herman Cain!

First off, if you’re poor, you don’t have as many chances as you think, as is easy enough to prove. I grew up poor, and it took an immense amount of work, four years of the military, and a lot of luck just to make it into the middle class, and if something goes wrong now, I’m largely screwed.

Now, go back to that Ferguson report, know that that report could be written for entirely too many communities – particularly in the South, where blacks are still fighting the ghosts of Jim Crow, slavery, and a significant number of people who feel the Confederacy was justified – and imagine how hard it would be to “come up” under those circumstances. It’s hard to climb the social ladder when it keeps getting kicked out from underfoot.

This is the major reason why so many communities are protesting, fighting, attacking, you name it. They see no way out of the hell they’ve been born into, and the people that are supposed to be protecting them are inflicting further injustice. The minutia of how we can get poor people out of their plight is a political debate for another time.

OK, maybe I understand that. But that doesn’t justify rioting! Looting isn’t helping! In fact, it’s taking away from that community!

Let’s get this out of the way: Yes, looting and rioting are bad, m’kay? Looting is not protesting. It is naked theft, brought on by a simple-minded materialism that some could argue is a major reason why the poor are poor. And flies are said to be more attracted to honey than vinegar. This is all true.

But in light of everything that’s happened in the past two years, it’s hard to argue that the “nice” way of doing things has worked at all.

The above argument is the one that The Atlantic’s Ta-Nehisi Coates made recently, stating that calls for order are only made with no other solutions in mind.

Now, tonight, I turn on the news and I see politicians calling for young people in Baltimore to remain peaceful and “nonviolent.” These well-intended pleas strike me as the right answer to the wrong question. To understand the question, it’s worth remembering what, specifically, happened to Freddie Gray. An officer made eye contact with Gray. Gray, for unknown reasons, ran. The officer and his colleagues then detained Gray. They found him in possession of a switchblade. They arrested him while he yelled in pain. And then, within an hour, his spine was mostly severed. A week later, he was dead. What specifically was the crime here? What particular threat did Freddie Gray pose? Why is mere eye contact and then running worthy of detention at the hands of the state? Why is Freddie Gray dead?

(…)

When nonviolence is preached as an attempt to evade the repercussions of political brutality, it betrays itself. When nonviolence begins halfway through the war with the aggressor calling time out, it exposes itself as a ruse. When nonviolence is preached by the representatives of the state, while the state doles out heaps of violence to its citizens, it reveals itself to be a con. And none of this can mean that rioting or violence is “correct” or “wise,” any more than a forest fire can be “correct” or “wise.” Wisdom isn’t the point tonight. Disrespect is. In this case, disrespect for the hollow law and failed order that so regularly disrespects the community.

As for the stealing, it’s bad. It’s wrong. It hurts the moral standing of the protesters. But if we’re talking in terms of scale, it’s worth noting that the City of Baltimore has a bad history of using civil forfeiture as a form of revenue enhancement. If we put the scale of that in a bar graph next to some assholes stealing some kit from the electronics department, the first bar is going to be astronomically higher.

Well… I still think what they’re doing is wrong. Win some elections and make change the right way.

Actually, Ferguson did just that.

It’s OK if you don’t care about the protests, and their resulting riots. It’s OK if Freddie Gray is just one more name on the news. If you want to mention some white guy somewhere that didn’t get this kind of attention – here, I’ll even do the work1 for you – then sure, even if you’re kind of being a dick.

But to sit there and assume that this is a problem caused by those in the streets is irresponsible, insensitive, and flat-out wrong. The people out in the streets right now aren’t nobodies, doing this for fun; they are citizens who think they have been getting a raw deal for years, decades even, and the death of one of their own, unjustified, by the people tasked with their “protection”, was finally the straw that broke the camel’s back. This isn’t the inane ramblings of a “social justice warrior” claiming that all sex is rape or some other crap. There are cold, hard, verifiable statistics showing that the poor and the black – too often synonymous terms – get an extremely raw deal all over America, and if it doesn’t change, what we’re seeing now will continue to be the new normal.

Note: In the time between this piece being written and being edited for release, six police officers have been charged with crimes ranging from false imprisonment to murder.

1 – Before reading that WT link – if you can get past all those damn surveys – go back up and read that Census link from before.

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.

Are “Safe Spaces” the New “Coloreds Only?”

Entrance 15-0325

Earlier this month, two white students at Ryerson University in Canada were dismissed from a meeting of the Racialized Students’ Collective, a university group funded through the Ryerson Students’ Union. The university’s student newspaper, The Ryersonian, reported the RSU coordinator confirmed the students were excluded for being white. Last week Aeman Ansari, a fourth year journalism student at the school posted a blog entry on HuffPo Canada defending the decision.

Ansari ably and convincingly defends her belief that safe spaces are important. Ansari’s defense falls short for failing to explain why taxpayers, the university, and other students should fund them as exclusionary campus events.

Specifically, Ansari opines that:

[T]he point to note is not that two white students were asked to leave the event, but rather that this was a safe space …

…This group and these sort of events allow people of colour to lay bare their experiences and to collectively combat this societal ailment. These spaces are rare places in the world not controlled by individuals who have power, who have privilege.

…The presence of any kind of privilege puts unnecessary pressure on the people of colour to defend any anger or frustrations they have, to fear the outcome of sharing their stories. The attendees are trying to move forward by supporting each other and they should not have to defend themselves, they should not fear the consequences of raising their voices.

Let us get out of the way that I dislike people who cannot deal with opposition, who will only defend their opinions to friendly crowds, or who must banish dissent to feel validated.Drinking Fountain

I prefer feisty tanglers to special snowflakes.

It is neither here nor there. Special snowflakes are entitled to their preferences too, and everyone deserves an occasional session in the echo chamber. I agree with Ansari that safe spaces are important.

Where I disagree with Ansari is her implicit insistence that other students and Canadian taxpayers pay for them as exclusionary campus events. She never gets around to explaining or defending this aspect of her position.

The fact is “safe spaces” already exist.

They are called “private property.” Private homes, leased apartments, backyards, and private event venues can all be used to host exclusionary events. In addition, private conversations take place every day in bars, restaurants, coffee shops, conference rooms, sidewalks and parks.

That there are insufficient opportunities for people to have private conversations seems false on its face. If certain students want to get together to talk about their experiences only with a carefully selected crowd, there is no shortage of opportunities or “spaces” to do just that.

Waiting room 15-0325The issue is why they want to use student and taxpayer funds to do it on campus. Ansari never explains that.

Private, exclusionary discussions and events should be conducted privately. Forcing other people to pay for and host them is a new form of bullying—a new incarnation of an old segregation.

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

Stop Calling Government Regulation of the Internet “Net Neutrality”

fcc-net-neutrality-voteImage from the FCC by way of Ars Technica

Stop using “net neutrality” to refer to government regulation of the internet.

That’s not what net neutrality is, and it’s certainly not what the government regulations promulgated by the FCC today are, in this case “Common Carrier” Rules.

People who don’t know any better are celebrating todays faux “net neutrality” FCC action as a victory for freedom and free speech on the internet, when in fact, it’s exactly the opposite.

I’ve written extensively about net neutrality and this is very much NOT it.

All the FCC has done today, is impose common carrier regulation on every ISP (oh and by the way, lots of other organizations as well who “provide internet access”. No-one has any idea how the regulations are going to be finalized, what the language will mean, who will be impacted and how… except everyone knows it’s going to cost a lot), instead of just the telephone companies it was already imposed on. Verizon for example, who was already one of the worst violators of net neutrality, even with common carrier regulation already in place for them.

Thus it makes competition and breaking of existing monopolies even harder, while not actually doing a damn thing to secure or improve neutrality… oh and it gives the FCC more control over the internet.

Absolutely none of those are good things.

Common carrier regulation is a big part of what made the current near monopolies on Internet access happen in the first place, because small independent companies, and even large regionals, couldn’t compete with the giant telcom conglomerates under those regulations. So, they all got swallowed up.

I’ve been working with telecommunications companies, and common carrier regulations, for more than 20 years. I’m an expert in governance and regulatory compliance, and I can tell you right now, NOBODY understands these regulations, because they are not capable of being understood.

These regulations and the rulings and case law associated with them go back to 1930s… and in some particulars all the way back to the 1870s. And of course, rather than replace them with something clear when they wanted to make new regulations, congress and the FCC just amended and added on and countermanded and…

I’ve flowcharted them before to try to see what applied how and where and when… the only thing I could come up with was “nobody knows for sure, it all depends what a regulator or judge says at the time”.

This wasn’t a blow for freedom and free speech… This was a giveaway to big corporate donors in the telecommunications industry.

The big telcos have been trying to get their primary competition, non-telco ISPs, burdened with the same regulatory load they labor under, for DECADES. Now, in one stroke, the FCC at the personal direction of the president, has given it to them.

Oh and guess what else common carrier regulation includes… SURVEILLANCE.

All common carriers are required to provide the government and law enforcement “reasonable access” for surveillance, as well as to give up records, usage details, and other subscriber and user data, WITHOUT A WARRANT.

What does “reasonable access” mean? Whatever the government says it means… and if you think I’m exaggerating, I’m not. I’ve dealt with the FBI on this issue, and that’s a direct quote.

Yes, this is not only a massive corporate crony handout, it’s also a huge gimme to the FBI and the NSA, who have wanted all ISPs stuck under common carrier for years as well.

Stop calling government regulation of the internet “net neutrality”. Letting the liars control the language helps them lie to you.

Net neutrality is not government regulation, and these regulations are certainly not net neutrality, nor anything like it. Don’t be taken in by fraud, cronyism, and statism, masquerading as freedom.

I am a cynically romantic optimistic pessimist. I am neither liberal, nor conservative. I am a (somewhat disgruntled) muscular minarchist… something like a constructive anarchist.

Basically what that means, is that I believe, all things being equal, responsible adults should be able to do whatever the hell they want to do, so long as nobody’s getting hurt, who isn’t paying extra

Brandon Duncan May Do 25 to Life for Singing About a Gang

tiny+doo

In 2013, San Diego experienced a rash of shootings.

Brandon Duncan is a San Diego musician. He has no criminal record. He is not alleged to have pulled the trigger, to have been present, to know who was present, or even to have known contemporaneously that the shootings had occurred. He is not alleged to have masterminded the murders, paid anyone to commit them, or otherwise aided in their commission.

Nevertheless, Duncan may wind up doing 25 years to life for the shootings.

The reason?

Sales of an album Duncan made in 2012 may have benefitted from a surge in gang stature and respect in the wake of the shootings.

Duncan apparently creates music about gang activities. As Kevin Boyd reports at IJ Review, the lyrics include one line about holding a gun with no safety and another about a full clip making someone’s top disappear. The tracks can be heard here.

In any case, creating music about violence and criminal activity is not illegal. That is Constitutional Law 101. The First Amendment protects freedom of expression, including violent content in music, literature, art, media, video games, etc.

Mario Puzo could not do 25-to-life if an upsurge in Mafia violence caused a renewed interest in his Godfather novels. He could not do 25-to-life even if prosecutors alleged that his books glamorized organized crime, thereby contributing to an increase in such activity.

That California does not attempt to prosecute authors like Puzo invites speculation that the state is discriminating against certain content and certain genres of art and its creators. Italian-American authors writing fiction novels about Mafia violence are acceptable. African-American musicians creating rap music about street gang violence are not.

Whether or not such speculation is justified, prosecutors claim that Duncan is not merely a musician creating unsavory content. They allege that Duncan is actually a member of a gang based in Lincoln Park, California.

Of course, it is also not illegal to belong to a gang.

That too is Constitutional Law 101. The freedoms of assembly and expression necessarily entail the right to free association. The State of California can neither prohibit Duncan from associating with the people of his choosing, nor punish him for doing so.

But there is yet another dot to connect. Duncan is being charged under a California penal statute purporting to make it a crime to “benefit from” the illegal activities of a “criminal street gang” in which one “actively participates:”

…[A]ny person who actively participates in any criminal street gang…, with knowledge that its members engage in or have engaged in a pattern of criminal gang activity…, and who willfully promotes, furthers, assists, or benefits from any felonious criminal conduct by members of that gang is guilty of conspiracy to commit that felony and may be punished as specified in subdivision (a) of Section 182.

According to NBC San Diego, prosecutors explain their theory of this offense as follows:

“If you are a documented gang member, and you benefit from or promote the activities of the gang, you can be held responsible for crimes the gang commits,” the district attorney said.

To be found guilty, prosecutors must prove the suspects are active gang members, that they had “general” knowledge of the gang’s activity and that they profited, assisted or benefited from the activities. The suspects do not have to be directly involved with the crime to be found guilty.

Those benefits could be economic, like album sales, or intangible, like respect, the district attorney argues.

Prosecutors are apparently presenting the aforementioned music lyrics, plus social media pictures, to demonstrate Duncan’s membership in the Lincoln Park gang. They further argue that the sales of his 2012 album benefitted from the 2013 shootings.

Duncan’s defense attorney, Brian Watkins argues that the songs are just artistic expression, and that while Duncan has associated with some members of the gang because he grew up in the same area, he is not himself a member. In an interview with NBC San Diego, Watkins had this to say:

“I mean, to imprison someone for 25 years to life because of artistic expression is something not even the worst communist regimes have done…”

The DA’s office counters that the law was passed by the voters and found constitutional by California’s Supreme Court. That decision was People v. Johnson (2013), wherein the Court analyzed ways in which Section 182.5 diverges from the traditional crime of conspiracy:

[T]raditional conspiracy requires both the specific intent to agree, and specific intent to commit a target crime. … A 182.5 conspiracy does not require any prior agreement among the conspirators to promote, further, or assist in the commission of a particular target crime.

The Court seemingly reassures itself that the intent requirement is replaced with a requirement of “active and knowing gang participa[tion] … with the … intent to promote, further, or assist in the commission of a felony by other gang members.” However, just two paragraphs later, the Court concedes that:

[S]ection 182.5 brings within its ambit not only a gang member who promotes, furthers, or assists in the commission of a felony. It also embraces an active and knowing participant who merely benefits from the crime’s commission, even if he or she did not promote, further, or assist in the commission of that particular substantive offense.

So Section 182.5 dispenses with the traditional intent requirement, replaces it with a requirement that the defendant have been an active and knowing participant in the gang (but not the crime), and then punishes the defendant for receiving any benefit, however intangible, from a crime committed by other members of the gang.

That sure sounds like doing 25 years to life for one’s unsavory associations.

Long-standing criminal statutes already address racketeering, commission of or participation in, conspiracy to commit, or aiding and abetting a crime. What is the need for this particular statute other than to prosecute someone who cannot be demonstrated to have violated those traditional criminal statutes?

Ken White at Popehat reached out to the San Diego District Attorney’s office and reports that:

* The DA’s theory is that Duncan promoted the gang by writing rap music about gang activity, and that he received an “intangible benefit” — their words — by his music becoming more credible or popular. The DA did not present any evidence that the gang’s crimes had any impact on album sales.

* The DA tried to show that Duncan was a member of the gang by some photos of him with gang members throwing gang signs. But they asserted that his rap music also showed that he participated in the gang, one of the elements of the offense.

* The DA’s theory is that when a gang commits a crime all members of the gang automatically benefit for purposes of Section 182.5. That theory, if accepted, would effectively eliminate one of the elements of the crime so that the DA would no longer need to prove that any individual gang member “willfully promotes, furthers, assists, or benefits from” the criminal activity.

In short, based at least on reports of their stance at the prelim, the DA seems to be saying that Duncan violated the statute by being a member of the gang and by rapping about the gang.

In the meantime, Duncan said on an interview with CNN that the studio is his “canvas” and that he would love to continue to make music, but:

“[T]hese people have you scared to do anything around here.”

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