Category Archives: General

How Anarchists Should Confront the Enemy Within

The Challenge

In the aftermath of the most recent terrorist attacks in Paris, a commenter calling herself Mrs. Lemuel Struthers on Reason’s Hit and Run threw down the gauntlet:

What I’d really like to hear is a libertarian/classical liberal approach to approaching this problem of a minority of anti-liberals within a society engaging in war-like behavior (murder) while using the values of the society they live in to promote their ideology. The enemy within – if you will. While at the same time demographic and immigration trends tend to support the likely enlargement of populations who will tolerate and even encourage that ideology.

And, just to be clear, I was really asking how France should address its issues from a an-cap perspective, not the USA.

I take up her challenge with this post.  The post actually contains two mini essays. One about France like she asked. But first, I will start with an essay about Ancapistan… the one she said she wasn’t interested in (because the essay about France would be incomprehensible without it)! ;) » Read more

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

Bullshit Laws, Fiscal Irresponsibility, and the Inevitability of Police Abuse

missing plate

Every day fleets of law enforcement officers, from the DEA on down to the local police department, head out onto the streets armed with guns and hair-trigger fears for their own safety.

If they were going to fight the good fight against violence and theft, we could be unreservedly grateful. All too often these armed ingenues, represented by unions, covered by workers comp, and unwilling to tolerate any degree of risk to their person, instead spend their time enforcing petty, bullshit laws that accomplish nothing more than mindless bureaucratic authoritarianism—and revenue for overspent budgets.

Samuel Dubose was missing a front license plate. Walter Scott had a broken brake light. Caroline Small was sitting in her parked car. Eric Garner was selling untaxed cigarettes. James Boyd was camping in the wrong place. David Garcia was feeling suicidal. Zachary Hammond was on a first date with a woman carrying ten grams of marijuana. Freddie Gray was …

Does anyone even know?

These are the “crimes” for which they died.

In July, protestors at the Netroots Nation conference in Phoenix interrupted Democratic presidential candidates Bernie Sanders and Martin O’Malley to heckle their talking-point platitudes and demand concrete proposals for addressing police abuse. O’Malley, whose tough-on-crime polices as mayor of Baltimore sent its police department into a downward spiral of violence and corruption, had little to offer. Earlier this week Scott Walker, the only candidate in the first GOP debate asked a question on the topic, came up with nothing more tangible than better training, more support, and “consequences.”

Not independent investigators to handle accusations of misconduct. Not better record keeping to identify problematic officers and departments. Not body cams or enhanced protection of the public’s right to record. Not abolishing mandatory minimum sentencing laws that make suspects desperate. Not decriminalizing nonviolent offenses. Not ending the disastrous “war” on drugs.

Some of the protestors, who have continued to interrupt Sanders’ appearances, focus on racism. An independently worthy cause, ending racism is nevertheless not enough to solve police abuse. Racism is a sufficient cause of such problem, but not a necessary one.

No. The problem is you.

You have to stop supporting all the petty laws that can ultimately be enforced only with violence. Sex-for-money between consenting adults. Sale by and to and ingestion of substances by peaceful adults. Jaywalking, loitering, broken tail lights and the myriad thousand other nonviolent offenses that exist for no greater purpose than that the upper castes may express their disapproval of those who achieve less than Stepford levels of respectability.

Every law, every rule, every regulation—from cigarette taxes to fines for broken brake lights to driving without a license to civil penalties for refusing to make a wedding cake—carries with it the implicit edict that you are willing to have officers in uniforms kill people to enforce it.

Bounkham "Bou Bou" Phonesavanh was sleeping when militarized police threw a flash grenade into his crib during a raid looking for someone who sold $50 worth of illegal drugs. No drugs were found, no arrests made; the suspect no longer lived there.

Bounkham “Bou Bou” Phonesavanh was sleeping when police threw a flash grenade into his crib during a raid looking for a suspect alleged to have sold $50 worth of illegal drugs. No drugs were found, no arrests made; the suspect no longer lived there.

That you are willing to throw flash grenades at babies to keep grownups from ingesting methamphetamine (even though you know once thusly tasked, cops will lie to get those warrants). That you are willing to put that cigarette-tax dodger in a chokehold. That you are willing to kill those Oregon bakers if they won’t pay the fine for not baking the cake, and try to lock their door when the sheriff comes to execute on that judgment. You will risk violence by sending thuggish swat teams into legal medical marijuana dispensaries to terrorize customers inside. You would rather that poor mother with the broken brake light or the expired plates pay her fine to your government than feed her children. You are willing to shoot a man in the head for only having a rear license plate on his vehicle.

You are willing to spend billions packing our prisons, eroding our civil liberties and constitutional rights, and imposing roadside anal probings as the acceptable costs of keeping peaceful people from ingesting the substances of which you disapprove.

To your countenance of such tactics for such ends, add the near irresistible temptation of unearned riches—in an era of profligate spending and mismanaged budgets—and violence is an all but inevitable outcome. Civil asset forfeiture creates perverse incentives that lead police departments to prioritize nonviolent drug crimes, while victims of violence wait weeks for assistance; where crime labs let murder evidence backlog for decades, while drug cases get processed within hours.

Yet the insidious evil of treating citizens like municipal ATM machines takes place on an even smaller level than civil asset forfeiture. An official shake-down system also exists in the form of excessive tickets for petty offenses, doled out to those who cannot afford to fight back (disproportionately poor and minority), and then ballooning and escalating into ever more unmanageable sums until arrest and jail time result.

There are no debtors prisons in the U.S.A. Unless the creditor is the government. Then you’re fucked.

The Justice Department’s scathing report on the Ferguson, Missouri police department documented the disturbing end-game of such practices: a situation where 25% of the city’s revenue came from fines imposed by an unsupervised police force prone to excessive use of force. Jack Hitt at Mother Jones has reported on another Missouri suburb where, in response to a legislative cap on revenue that could be generated via traffic stops, the city enacted a whole host of other petty, bullshit laws (against such menaces as basketball hoops in the front yard, overgrown hedges, disorderly window blinds, and pants worn to low) and increased its non-traffic related arrests by 495%.

For the affluent this may be nothing more than an annoying shadow tax system to prop up an overreaching government that spends so far outside its means it pays tax dollars to research how robot-provided Swedish massage affects rabbits’ recovery from exercise. For the poor, knowing their lives will be ruined by fines they cannot afford to pay, jail time, job loss, and mandatory minimums that destroy families, it is why they run.

It is also why they kill.

Because at its worst, this system of official shakedown invites the very threats that put officers on edge. Dionne Wilson, widow of a slain California officer, understands this only too well. Her husband Dan Niemi showed up to investigate a noise complaint and found himself facing Irving Ramirez, who had a history of drug incarcerations. Carrying both guns and drugs when confronted, and desperate not to go back to jail, Ramirez shot and killed Officer Niemi. Wilson used to wonder why Ramirez was ever let out of prison.

Now she wonders why he ever had to go in.

It is easy to blame the problem of police violence on racist cops with (the gender neutral equivalent of) small dicks and big Napoleon complexes. It is harder to take responsibility for the crap laws and fiscal irresponsibility that make bad cops inevitable.

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

Gawker, the Freedom of Expression, and the Power of Consequences

free-speech-churchill

Is Gawker violating its writers’ rights if its chief executive editor de-publishes a controversial post?

What about if a company’s CEO is forced to step down in the face of a threatened boycott over the CEO’s political positions? Is an artist being “censored” if a comic book publisher cancels his covers and suspends him? Is it an unconstitutional “ban” on speech if Amazon and Walmart remove Confederate flag memorabilia from their offerings?

Across the web confusion abounds about what freedom of expression really means.

Most recently, in the messy wake of its sex-shaming post about a private citizen’s violation of Gawker’s neo-Victorian strictures on monogamy, founder and CEO Nick Denton (who pulled the post) had this to say to his editors:

What I can’t accept is an unlimited and subjective version of editorial freedom. It is not whatever an editor thinks it is; it is not a license to write anything; it is a privilege, protected by the constitution, and carrying with it responsibilities.

Literally, every part of that last bit is wrong.

The editorial autonomy of Gawker writers is not constitutional in nature. It is a license granted by their employer—i.e. Denton. Absent a binding contract, it can be revoked at any time without running afoul of anyone’s rights, and certainly not running afoul of anyone’s constitutional rights.

The constitutionally protected freedom that Gawker writers do have (as do we all) is not to publish at Gawker. The Constitution restricts the power of Congress, not the discretion of Nick Denton.

Nor is that constitutionally protected freedom a “privilege.” It is a right.

And it does not have to be exercised responsibly.

It vexes me when people who should know better get sloppy in their framing. Messy language leads to messy thinking and, in the process, dilutes effective defense of this crucial freedom.

Perhaps a libertarian(ish) review is in order.

“FREE SPEECH” V. FREEDOM OF SPEECH

Although routinely used in Supreme Court decisions, the words “free speech” do not appear in the Constitution. In my opinion, overuse of this terminology induces people to mistakenly believe their speech should always be costless and consequence-free.

That is not how it works.

Speech requires a forum, which must be paid for by someone.

In public forums paid for by taxpayers, “time, place and manner” restrictions may be imposed to keep things orderly. But content-based discrimination is not permitted. Even the Nazis get to express themselves.

In private forums, on the other hand, the property owner gets to decide what speech he is willing to host.

There is no “free speech” right to interrupt a Muslim prayer service at the National Cathedral. The Cathedral’s owner, which is the Episcopal Church, gets to decide what sort of speech occurs there. It doesn’t have to (but may if it wants) host Muslim-haters, atheists, rude people, or morons.

Similarly, bookstores are not required to carry every book printed just because the author claims a “free speech” right. The corner market does not have to sell every conceivable magazine. Art galleries do not have to make room for every painting. Radio stations do not have to play every song.

And Gawker does not have to publish every post. (I would totally make it publish this one.)

If a speaker wants his speech to be “free” in the sense of not having to pay for the forum, he must either utilize a public forum or find a private owner willing to host the content gratis. Luckily, in this day and age, there are lots of options for that.

Gawker is not one of them.

Like other private publishers and forum owners, it exercises its right to decline hosting or publishing content it dislikes. There’s a term for that right.

…Oh yeah. Freedom of speech.

FORCE VERSUS CONSEQUENCE

It is tempting to say that Brendan Eich was “forced” to resign from Mozilla over his position on same-sex marriage. That Richard Albuquerque was “forced” to pull his Batgirl cover variant. That TLC was “forced” to cancel the Duggars.

That Nick Denton was “forced” to pull the now infamous Gawker post.

It sounds more melodramatic and provocative to phrase it that way. But to the extent it’s semantically correct, this is not the kind of “force” that runs afoul of the freedom of expression.

Wrongful force is actual physical force used to prevent or punish speech or other forms of expression.

This includes all governmental interference, because government action by definition involves force. Even civil regulations (like fines) eventually end with puppy-killing SWAT teams. Of course force exercised by private actors, in the form of violent reprisals, also suppresses freedom and therefore should be resisted with the same passion.

Preventing forceful suppression of expression is a higher order principle. When triggered, that principle transcends issues about the content of the speech being defended.

Why?

Because speech is the most powerful weapon that ever has or ever will exist.

It has the power to topple kings, eviscerate falsehoods, destroy paradigms, provoke thought, change minds and hearts, alter the course of history, and transform the world.

And it can do all that without shedding a drop of blood.

A weapon like that cannot be entrusted to the exclusive control of the few. Enlightened rulers using force to curtail speech have too often gotten it wrong. Power once ceded can rarely be retrieved, and battles not fought with words and ideas will be fought instead with violence and bloodshed.

We cannot retain the best of speech without protecting its worst. We cannot extract its power to do harm without diluting its power to do good.

EVERYTHING BUT FORCE IS FAIR GAME

That being said, everything short of physical force is fair game.

A Congressional communications director can be pressured into resigning (or fired) for making snarky comments about the President’s daughters. TLC and A&E can cancel their reality television lineup for any reason consistent with the contracts negotiated. Customers can boycott wedding photographers or bakers in retaliation for expression of disfavored opinions. Landlords can refuse to rent to people with Confederate flags in their rear windows. Employers can bypass applicants over their social media postings.

Firing. Boycotting. Refusing to hire. Pulling advertising. Cancelling subscriptions. Social media flame wars. De-publishing. Disassociating. Shaming.

All of these are fair game. All of these are themselves protected acts of expression.

They may make life unpleasant for the target. They may feel coercive or even deeply wounding.

They’re supposed to.

If speech didn’t have that power, we wouldn’t bother protecting it.

Deciding to refrain from speaking because such consequences are too unpleasant is not a response to force. It is a response to speech.

GAWKER IS GETTING SPOKEN TO, NOT SUPPRESSED

If Gawker were being threatened with forceful suppression of its speech, defending against that violation would be a higher order principle that transcended all others. Personal feelings about the content of the speech would be secondary.

But where no force is imposed or threatened, those secondary principles are the only ones at play. The whole point of the higher principle is to create a circle of freedom in which ideas, without limitation, can be explored and judged on the merits. If we never got around to the judging part, we would destroy the very reason for preserving the freedom.

Nothing happening at or to Gawker (in this specific case) poses any threat to anyone’s fundamental right to free expression. The writers are free to write. The owners of Gawker are free to choose what to publish. The editors are free to “fall on their poisoned pens” in protest. Advertisers are free to abstain. Readers are free to boycott.

None of this constitutes a violation of anyone’s freedom. It’s what freedom looks like.

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

SCOTUS Decision in Horne v. Department of Agriculture Scores Victories for Private Property Rights

The Horne plaintiffs and thousands of farmers like them have been forced to turn over portions of their crop yields to the federal government.

Earlier this week, the Supreme Court ruled 8-1 that the federal government must pay private property owners just compensation if it seizes their real property for the purpose of maintaining artificially high prices for consumers.

Worded that way, it seems surreal that there was ever any question.

But that is precisely what happened to Marvin and Laura Horne, the plaintiffs in Horne v. Department of Agriculture, and thousands of other farmers like them who have been forced to turn over portions of their crop yields year after year since 1937.

That year an act was passed allowing the Department of Agriculture to promulgate “marketing orders” to maintain stable markets for U.S. produce. That is newspeak for using a government-enforced cartel to maintain high prices. One such marketing order established a Raisin Administrative Committee. Think of the RAC as like the State Science Institute. The RAC sets annual “reserve requirements,” pursuant to which growers must turn over a percentage of their raisin crops to the government.

The government then disposes of those “reserve raisins” by selling them in non-competitive markets or donating them to federal agencies or foreign governments. The proceeds of the government’s sales pay for the administration of the program. Profits left after that, if any, are distributed back to the growers.

In 2002-2003, growers had to turn over 47 % of their crops to the government. In 2003-2004, it was 30%. In one of those years, they received no distribution of net proceeds at all. In the other, the distribution was less than the costs incurred in producing the raisins.

Starting in 2002, the Hornes refused to turn over any raisins to the government. The government sent trucks to their facility to take the raisins. The Hornes refused entry. The government assessed a fine equal to the RAC’s calculation of the fair market value of the withheld raisins, which was approximately $480,000, plus more than $200,000 in penalties for the Horne’s disobedience.

The Hornes sought relief in federal court, arguing that the fines and penalties were unlawful because the raisin reserve orders constituted unlawful takings without just compensation in violation of the Takings Clause of the Fifth Amendment to the Constitution. The Ninth Circuit sided with the government. The Hornes appealed.

In a decision written by Chief Justice John Roberts, the U.S. Supreme Court found 8-1 for the Hornes, reaching several holdings of interest to those concerned with private property rights.

Physical Appropriation of Private Property

All of the justices except Sotomayor agreed that the Fifth Amendment requires just compensation when the government takes personal property (just as when it takes real property) even if the property taken is a “fungible” commodity like raisins.

In reaching this holding, the Court distinguished between regulatory takings (requiring compensation when a regulation goes “too far”) and physical takings (where as in Horne title actually transfers to the government). Regulatory takings cases acknowledge different standards and expectations with respect to real and personal property. Physical takings cases do not.

The parties and the Court agreed that the government might achieve the same ends without running afoul of the Constitution by placing regulatory caps on the amount of raisins that producers could grow. The government attorneys and the dissent (Sotomayor) were baffled then that anyone could object to the reserve requirement on takings grounds. The majority responded (citations omitted):

A physical taking of raisins and a regulatory limit on production may have the same economic impact on a grower. The Constitution, however, is concerned with means as well as ends. The Government has broad powers, but the means it uses to achieve its ends must be “consist[ent] with the letter and spirit of the constitution.” … “[A] strong public desire to improve the public condition is not enough to warrant achieving the desire by a shorter cut than the constitutional way.”

This may not be the jenga block that topples Wickard v. Filmore as some libertarians no doubt hoped. But it is an important holding. The distinction—between taking a percentage of crop yields versus placing a regulatory cap on production—is more than formulaic. The latter does not involve the same perverse incentives as the former, which for 75 years subsidized a bureaucracy that eventually existed for no better purpose than to perpetuate itself.

This issue was illustrated by the Hornes’ evidence that contrary to the government’s account of massive oversupply, the RAC was able to sell the vast majority of the 2003-2004 reserve raisins for more than the field price, resulting in RAC income of over $99,800,000. This income was spent on exporter subsidies, administrative costs and other RAC expenses. In other words, the RAC appropriated raisins that, according to the government’s own numbers, could have been sold in an unregulated market for $747 per ton, and it paid the producers nothing. Similarly in 2005-06, 2006-07, 2007-08, and 2008-09, the RAC also sold reserve raisins for tens of millions of dollars but distributed no proceeds to the growers.

The Supreme Court’s holding in Horne will function as a restriction on this perverse incentive. Limited to regulatory caps, rather than confiscatory takings that fund the administrative bureaucracy, we can allow ourselves a glimmer of hope the government will finally end its maintenance of the raisin market cartel.

Quid Pro Quo

In an effort to avoid the foregoing result, the government made an argument that the Court characterized as the “let them sell wine” argument: If raisin growers did not like the nice, orderly market the RAC had created, they should grow other crops, sell their grapes as table grapes, or use them in juice or wine. But if growers voluntarily chose to enter the raisin market, they could be required to cede their private property as a condition of engaging in that market, pursuant to the vast authority Wickard gave the federal government to regulate interstate commerce.

If this argument had succeeded, it would essentially have disposed of the constitutional requirement of just compensation for physical and regulatory takings. The Takings Clause would have been swallowed by the broad power of the Commerce Clause as interpreted by Wickard.

If this does not keep you up at night, I don’t know what would. Only eight individuals (individuals whom candidates like Mike Huckabee want to disempower) stand between private property owners and Congressional failures of this magnitude.

Those eight agreed that business owners cannot be required to cede their constitutional right to be compensated for takings as a condition of engaging in interstate commerce. Property rights “cannot be so easily manipulated,” and basic and familiar uses of private property cannot be treated as “government benefits” for which one must pay with his constitutional rights.

Selling produce in interstate commerce, although certainly subject to reasonable government regulation, is similarly not a special governmental benefit that the Government may hold hostage, to be ransomed by the waiver of constitutional protection.

Just Compensation

The fines levied against the Hornes had been based upon the RAC’s assessment of the fair market value of the reserve raisins. The government nevertheless argued that, if the Court found a taking, it had to remand the case for a calculation of just compensation. It further contended that said calculation should take into account what the value of the reserve raisins would have been without the existence of the price support program, as well as all the other benefits of the regulatory program. The government actually suggested that it might turn out that the Hornes had actually received a “net gain” from the program.

The Hornes presented evidence challenging the government’s rosy assertion of benefits generated by the regulatory program. In some of the years, said the Hornes, raisin growers could have sold their entire yields at prices not much below and in some cases higher than those set by the RAC. Moreover, even where introducing additional yields to the market would have driven down prices, growers still would have made more money as a result of the additional sales, benefitting both growers and consumers (citations omitted):

Take the 2003-04 crop year as an example. That year, the field price for raisins (the price that handlers paid to producers for free-tonnage raisins, and the amount the USDA assessed the Hornes for their undelivered reserve tonnage raisins) was $810 per ton. The government’s brief tells us that according to the Secretary’s econometric model, the price would have been $63 per ton less without the reserve, or $747 per ton. … We believe the $63-per-ton figure is greatly inflated. But accepting the Secretary’s calculation for heuristic purposes, a producer of 1,000 tons of raisins in that crop year could have sold them in an unregulated market for $747,000, from which should be deducted the state mandatory advertising fee of almost $5 per ton. Under the marketing order, however, the producer could sell only 70% of his crop, yielding $567,000. He received nothing for his reserve raisins that year, meaning he was worse off by $175,000. This, again, is under the government’s own numbers.

Ultimately, the Court held the benefits of the program were irrelevant. The government had already calculated the amount of just compensation when it fined the Hornes $483,843.53 as the fair market value of the raisins. In any case, the reserve requirement was unconstitutional, so the Hornes could not be fined or penalized for failing to comply with it. The appropriate remedy was to relieve them of said fines and penalties.

On this issue, the breakdown of votes was different.

Breyer, Ginsburg and Kagan bought the government’s argument. These justices would have remanded the case to allow the government to demonstrate that it had already “paid” for the taking via the benefits generated by its regulatory scheme.

Sotomayor did not reach the issue at all. She found that the raisin reserve requirement did not constitute a taking and therefore did not require any compensation.

Only five justices—Scalia, Thomas[1], Alito and Kennedy, joining Roberts—stood between individual property owners and the notion that the benefits of regulatory activity could constitute just compensation for a physical taking of private property.

 

 

_________________________________________________

[1] Thomas wrote separately to argue that the RAC’s conduct was an unconstitutional taking irrespective of just compensation because the taking was not “for public use.” Instead the government gave the confiscated property to exporters, foreign importers, and foreign governments.

 

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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