Tag: law

Freedom trumps “free speech”

Eugene Volokh somehow manages to completely miss the salient point. This is why lawyers tend to be intrinsically flawed defenders of freedom; their training predisposes them to miss the forest for the trees:

Monday, a three-judge U.S. Court of Appeals for the 11th Circuit panel handed down a third opinion in Wollschlaeger v. Governor, the Florida “Docs vs. Glocks” case. Florida law limits doctors’ conversations with patients about guns. The first opinion in the case held that the law wasn’t really a speech restriction, because it just regulated the practice of medicine (a deeply unsound view, I think). The second opinion, issued after a petition for rehearing, changed course and held that the law was a speech restriction, but that — as a restriction on professional-client speech — it had to be judged under “intermediate scrutiny,” which it passed.

First of all, since the State regulates doctors and protects them from competition, they can do anything they want with regards to how they go about their business. Second, as the article shows, what is actually being prohibited is doctors being used as a line of attack against gun rights.

It bans doctors “from unnecessarily harassing a patient about firearm ownership during an examination.” This means, according to the panel majority, that a doctor “should not disparage firearm-owning patients, and should not persist in attempting to speak to the patient about firearm ownership when the subject is not relevant [based on the particularized circumstances of the patient’s case, such as the patient’s being suicidal] to medical care or safety.”

And whenever there is a conflict between gun rights and speech rights, gun rights much always come first, because gun rights defend speech rights far more effectively than speech rights defend gun rights.

But that is a philosophical point, not a legal one, which is why even a libertarian lawyer is likely going to miss it. Here is the crux of his error:

Now I think that the supposed imbalance of power between doctor and patient, like the supposed imbalance of power among students, is quite overstated.

That’s completely absurd. This attempt to turn the medical community into a white-coated Stasi should be shot down in any and every way necessary. 

Muslim immigration ban is constitutional

Furthermore, there is even precedent for it:

Is an immigration ban on Muslims unconstitutional? Probably not. The Supreme Court has held consistently, for more than a century, that constitutional protections that normally benefit Americans and people on American territory do not apply when Congress decides who to admit and who to exclude as immigrants or other entrants. This is called the plenary power doctrine. The Court has repeatedly turned away challenges to immigration statutes and executive actions on grounds that they discriminate on the basis of race, national origin, and political belief, and that they deprive foreign nationals of due process protections. While the Court has not ruled on religious discrimination, it has also never given the slightest indication that religion would be exempt from the general rule.

There is even precedent for Trump’s plan. In 1891, Congress passed a statute that made inadmissable people who practice polygamy (directed, at the time, at Mormons), and in 1907 extended this ban to people who “who admit their belief in the practice of polygamy.” While Congress later repealed the latter provision (the former seems to be still on the books), no court–as far I know–ruled it unconstitutional.

Plenary power doctrine. Shove that in the face of every cuckservative who blathers ignorantly about the unconstitutionality of Trump’s proposed policy. There is more than a century of precedent demonstrating otherwise. Anyone who says a religious immigration ban is unconstitutional is either ignorant or lying.

Furthermore, the Federalist Papers make it clear that the several States have the ability to pass religious bans as well. And in a MSNBC poll, 92 percent of Americans 18-24 said Trump is not going too far in his proposal to ban all Muslim immigration.

After all, they’re the ones who would have to live with them.

SJW “rights” are anti-rights

The city of Houston rejects a politically correct “anti-bias” measure:

A yearlong battle over gay and transgender rights that turned into a costly, ugly war of words between this city’s lesbian mayor and social conservatives ended Tuesday as voters repealed an anti-discrimination ordinance that had attracted attention from the White House, sports figures and Hollywood celebrities.

The City Council passed the measure in May, but it was in limbo after opponents succeeded, following a lengthy court fight, in putting the matter to a referendum.

Supporters said the ordinance was similar to those approved in 200 other cities and prohibited bias in housing, employment, city contracting and business services for 15 protected classes, including race, age, sexual orientation and gender identity. Opponents said the measure would allow men claiming to be women to enter women’s bathrooms and inflict harm, and that simple message — “No Men in Women’s Bathrooms” — was plastered on signs and emphasized in television and radio ads, turning the debate from one about equal rights to one about protecting women and girls from sexual predators.

The cat is out of the bag. Voters now understand that these seemingly innocuous ordinances will be used against them by the sexual freakshows and political activists. What are called “anti-discrimination” measures are violations of the Constitutional right to free association. The entire concept of “civil rights” has proven to be a complete disaster; the worst predictions of the segregationists proved to be optimistic.

Not that the SJWs are giving up any time soon. Notice something very strange about this “news” report. Where are the results of the referendum? It’s like a sports report on the World Series that says the Mets lost, but doesn’t tell you what the score was.

From this, we can surmise that the SJWs lost badly.  And yes, as it happens, that’s precisely what happened as the SJW measure was voted down 61-39.


Houston’s controversial equal rights ordinance failed by a wide margin
Tuesday, with voters opting to repeal the law that offered broad
non-discrimination protections, according to incomplete and unofficial
returns.

The necessity of reprisal

Some interesting and intelligent commentary on John Wright’s post concerning A Time for Peace, A Time for War:

HMSLion: All the codes of chivalry, of diplomacy, and Laws of War work on an assumption that all participants will adhere to them. They represent the Golden Rule in it’s most practical form.

But those codes also recognized the legitimacy of reprisals against violators. A foe who showed no mercy could expect none.

The Enemies of Civilization have realized that there are some people who are so accustomed to acting in a civilized manner that they have forgotten that reprisals are perfectly legitimate. More than legitimate, necessary. It must NEVER be possible to secure an advantage by violating the norms of civilized conduct.

And people are starting to realize it.

I’ll add something else…part of the problem of the West is that the World Wars were fought with a level of savagery that shocked us. They were the modern equivalent of the Thirty Years War three centuries earlier – a conflict fought with a ferocity unprecedented among Christian nations.

The Thirty Years War led to significant changes in international politics with the Treaty of Westphalia, and the formalization of Laws of Warfare. A system that held for nearly three centuries, even in the teeth of the Napoleonic Wars.

The World Wars? There’s been no formal New Laws of Land Warfare, but there’s been no willingness to use nuclear weapons since then. Nor to engage in area bombing of cities. But the lack of a formal document has, I think, hindered the self-confidence of the West. Too many people are obsessively wringing their hands over the past, instead of resolving not to do that sort of thing again.

dgarsys adds: It must NEVER be possible to secure an advantage by violating the norms of civilized conduct. In other words, to keep turning the other cheek in order to “be nice” and “not use their tactics” is to play the iterated prisoners dilemma in “nice only” mode, instead of hammering the violator for betraying you.

As William S. Lind has observed, 4GW is in many ways 0GW, albeit with a technological twist that is primarily based on communications. Both of Mr. Wright’s commentators are correct; the chaos is being stoked by the international community’s legal overreach combined with a practical refusal to permit bad actors to be held to account if it finds them useful to its interests.

Why Johnny can’t sue

It clearly grieves Ken of Popehat to have to give McRapey the bad news, but let’s give the man credit for his professional integrity anyhow:

So: here is the short answer. The book title is almost certainly
parody protected by the First Amendment, because an audience familiar
with the circumstances would recognize it as parody and not as an
assertion of fact.

The factors point very strongly to the book being treated as parody, and protected by the First Amendment, rather than as a defamatory statement of fact. With all respect to Scalzi, his question is wrong: you can’t analyze the book title in isolation. You have to look at it in the context of the whole. In that context, the intended audience (both fans of Beale and fans of Scalzi) would recognize it as a reference to Beale’s tiresome meme. Plus, the Amazon description explicitly labels it as “a blazingly inventive parody,” and the descriptive text is mostly nonsensical and evocative of ridicule of “SJW” concerns, and references some of the topics that anger Beale’s coterie in connection with Scalzi like the Hugo Awards.

I think this one is protected parody, and I don’t think it’s a very close call.

I’m not even remotely surprised; it was a stupid question in the first place. I suppose that leaves lobbying Amazon to ban books that make fun of John Scalzi, which I tend to doubt will be a successful strategy. UPDATE: Amazon just pulled down John Scalzi Is A Rapist: Why SJWs Always Lie In Bed Waiting For His Gentle Touch; A Pretty, Pretty Girl Dreams of Her Beloved One While Pondering Gender Identity, Social Justice, and Body Dysmorphia 

 Amazon Best Sellers Rank: #1,736 Paid in Kindle Store
    #1 in Humor & Entertainment > Humor > Parodies
    #1 in Kindle Short Reads > 30 minutes (12-21 pages) > Humor & Entertainment
    #2 in Nonfiction > Politics & Social Sciences > Philosophy > Political

Fascinating, in light of how Is George Bush a War Criminal and Rush Limbaugh is a Big Fat Idiot and Paula Deen is a Big Fat Idiot are still available for sale there. I wonder who will be the next target of these dread parodists? McCreepy? Mary Three Names? George Rape Rape Martin?

They may own the mainstream media, but all their public persona now belong to us.

John Scalzi ‏@scalzi
Just confirmed: That silly book with the silly title defaming me appears to be off of Amazon. In the US, at least.

John Scalzi ‏@scalzi
We’ll see how long that lasts. I imagine someone might try to upload it again.

John Scalzi ‏@scalzi
However, let me without reservation express my thanks to @amazon for dealing with that nonsense quickly. It’s appreciated.

John Scalzi ‏@scalzi
Awwwwww, now the dudes who don’t understand what censorship is are ALL ANGWY AT ME.

Yes, I can’t imagine there won’t be any more parodies published about SFWA’s most prominent book banner. Of course, as Popehat told Scalzi, the book was not defaming him. SJWs always lie.

SJW-weaponized law

Speaking of SJWs, here is how they are weaponizing the combination of law and social media:

What’s believed to be the first case in Canada of alleged criminal harassment-via-Twitter is just a judge’s decision away from being over.

After hearing closing submissions Tuesday from Chris Murphy, who represents 54-year-old Greg Elliott, Ontario Court Judge Brent Knazan is expected to rule on Oct. 6.

In the balance rides enormous potential fallout for free speech online.

Elliott is charged with criminally harassing two Toronto female political activists, Steph Guthrie and Heather Reilly, in 2012.

Allegations involving a third woman were dropped.

The graphic artist and father of four lost his job shortly after his arrest, which was well-publicized online, and if convicted, could go to jail for six months.

These are astonishing repercussions given that it’s not alleged he ever threatened either woman (or any other, according to the testimony of the Toronto Police officer, Detective Jeff Bangild, who was in charge) or that he ever sexually harassed them.

Indeed, Elliott’s chief sin appears to have been that he dared to disagree with the two young feminists and political activists.

He and Guthrie, for instance, initially fell out over his refusal to endorse her plan to “sic the Internet” upon a young man in Northern Ontario who had invented a violent video game, where users could punch an image of a feminist video blogger named Anita Sarkeesian until the screen turned red.

Guthrie Tweeted at the time that she wanted the inventor’s “hatred on the Internet to impact his real-life experience” and Tweeted to prospective employers to warn them off the young man and even sent the local newspaper in his town a link to the story about the game.

Now, if a Canadian graphic artist who is sympathetic to SJWs can be successfully targeted by them for being insufficiently enthusiastic about their plans to swarm a target, do you seriously think you’re beyond attack?

The new Spanish Inquisition

Zerohedge reports on some new Spanish laws:

1. If you photograph security personnel and then share these images on social media: up to €30.000 fine (particularly if photo exposes violence used against a member of the public). This fine could increase depending on the number of Instagram or social media followers you have.
2. Tweet or retweet information or the “location of an organized protest” can now be interpreted as an act of terrorism as it incites others to “commit a crime” (now that “demonstrating” in many ways has become a crime). Sound “1984”-ish? Read about Orwell and his time in Spain.
3. Snowden-like whistle blowing is now defined as an act of terrorism. If you write for a local publication, be careful what you print, whom you speak to, and whether the government is listening.
4. Visiting or consulting terrorist websites – even for investigative purposes – can be interpreted as an act of terrorism. Make sure you use “Tor” browser, reject cookies, and don’t allow pop-ups. Not to mention, don’t post it on your Facebook timeline!
5. Be careful with the royal jokes! Any satirical
comment against the royal family is a new crime “against the Crown”. For
example, “What did Leticia and the Bishop have to say after they ––“
(SORRY CENSORED).
6. No more hassling elected members of the government or
local authorities – even if they say one thing in order to be elected,
but then go and do the exact opposite. Confronting them about
this hypocritical behavior. Even if you see them in the street chatting
to a street cleaner, dining at their favorite expensive restaurant, or
having their shoes shined by that physics graduate who cannot find a
decent job in the country, hassling them about their behavior is now a
criminal offence.
7. Has your local river been so polluted by that plastic factory
along the edge that all life has extinguished? Well, tough! Greenpeace
or similar protests are now finable from €601–€30.000.
8. Protests in a spontaneous way outside Parliament are now illegal.
For example if Parliament passes a hugely unpopular bill, or are
debating something extremely important to you or your community, it is
now finable from €601 – €30.000. Tip: Use Google Maps to protest just
around the corner – but don’t tweet the location!
9. Obstructing an officer in the course of their business, “resisting
arrest”, refusing to leave a demonstration when told, or getting in the
way of a swinging baton are all now finable offences from €601 –
€30.000.
10. Showing lack of respect to officers of the law is an immediate fine of €100 – €600.
Answering back, asking a disrespectful question, making a funny face,
showing your bottom to an officer of the law, or telling him/her that
their breath reminds you of your dog’s underparts is now, sadly, not
advisable.
11. Occupying, squatting, or refusing to leave an office, business,
bank or other place until your complaint has been heard as a protest is
now a €100 – €600 fine (no more flash mobs).
12. Digital protests: Writing something that could technically “disturb the peace” is a now a crime. Bloggers beware, for no one has yet defined whose peace you could be disturbing.

Looks like the USA doesn’t have the only government that is actively preparing to face widespread civil unrest. I wonder why that might be?

The Rainbow Nazis attack conscience

And, incidentally, civilization. That certainly didn’t take long:

The American Civil Liberties Union of Kentucky has filed a lawsuit on behalf of four Rowan County couples, two same-gender couples and two opposite-gender couples, denied marriage licenses by County Clerk Kim Davis, a press release from the ACLU confirms.

Davis is standing firm on her decision to stop issuing marriage licenses, despite dozens of protesters who gathered outside the courthouse.

“My conscience will not allow me to issue a license for a same sex couple,” says Kim Davis, “because I know that God ordained marriage from the very foundation of this world to be between a man and a woman.”

In explaining the ACLU’s decision to file suit on the couples’ behalf, ACLU of Kentucky Cooperating Attorney Laura Landenwich stated, “Ms. Davis has the absolute right to believe whatever she wants about God, faith, and religion, but as a government official who swore an oath to uphold the law, she cannot pick and choose who she is going to serve, or which duties her office will perform based on her religious beliefs.”

The Rainbow Nazis really appear to be hell-bent on seeing the establishment of a post-democratic American theocracy. Because that’s what is most likely going to come out of this Sodom and Gomorrahstan totalitarianism in the end. They’re like children who can’t resist pushing until they discover where the limits are.

Within a year, they’ll be attacking priests and pastors too.

It appears that it won’t be all that much longer before everyone discovers what happens when enough people stop consenting to the consensual fiction known as “the law”.

Yes, polygamy is next

Remember when all the pro-homogamy SJWs claimed that it totally would NEVER lead to polygamy and you were a homophobic bigot if you expected that it would? Yeah, guess what. I know you’ll be shocked to hear this, but they appear to have lied.

NOW that the dust is settling from the Supreme Court’s decision in Obergefell v. Hodges, which recognized a right to same-sex marriage, there are new questions. In particular, could the decision presage a constitutional right to plural marriage? If there is no magic power in opposite sexes when it comes to marriage, is there any magic power in the number two?

Chief Justice John G. Roberts Jr.’s dissent in Obergefell raised this very question, intending to show how radical the majority’s decision could become. But the issue was hard to discuss candidly while same-sex marriage was still pending, because both sides knew that association with plural marriage, a more unpopular cause, could have stymied progress for gay rights. (Opponents of same-sex marriage had reasons to emphasize the association, while supporters had reasons to play it down.) With same-sex marriage on the books, we can now ask whether polyamorous relationships should be next.

There is a very good argument that they should. Justice Anthony M. Kennedy’s majority opinion in Obergefell did not focus primarily on the issue of sexual orientation. Instead, its main focus was on a “fundamental right to marry” — a right that he said could not be limited to rigid historical definitions or left to the legislative process. That right was about autonomy and fulfillment, about child rearing and the social order. By those lights, groups of adults who have profound polyamorous attachments and wish to build families and join the community have a strong claim to a right to marry.

And while Justice Kennedy’s opinion does not explicitly discuss this possibility, it is easy to see how future generations could read his language to include polyamory or plural marriage. Earlier court decisions about marriage, Justice Kennedy wrote, had “presumed a relationship involving opposite-sex partners,” but now we understand that the presumption was wrong. Similarly, while Justice Kennedy’s opinion repeatedly presumes that marriage involves two people, it is not hard to imagine another justice in 20 or 40 years saying that the assumption is similarly unenlightened.

I find it hard to get worked up about these things now that the die is so clearly cast. The civilizational foundations have already been sufficiently undermined, so all they’re quibbling about now is the exact shape that the wreckage will eventually take.

Don’t worry about the politics anymore. At this point, you should be preparing for the inevitable politics by other means that are on the way.

I used to wonder what the historians meant when they wrote that “all Europe was waiting for war” in the years leading up to WWI. Now, I finally get it. The good news, to the extent that one can consider it good news, is that the financial elite has proved they can kick a can that looked to be unkickable, so we should be able to make it to 2033 or thereabouts as I’ve repeatedly predicted.

Animal Firm

Rand Paul observes some legal rights are more equal than others:

While I disagree with Supreme Court’s redefinition of marriage, I believe that all Americans have the right to contract.

The Constitution is silent on the question of marriage because marriage has always been a local issue. Our founding fathers went to the local courthouse to be married, not to Washington, D.C.

I’ve often said I don’t want my guns or my marriage registered in Washington.

Those who disagree with the recent Supreme Court ruling argue that the court should not overturn the will of legislative majorities. Those who favor the Supreme Court ruling argue that the 14th Amendment protects rights from legislative majorities.

Do consenting adults have a right to contract with other consenting adults? Supporters of the Supreme Court’s decision argue yes but they argue no when it comes to economic liberties, like contracts regarding wages.

It seems some rights are more equal than others.

I think Friday’s Supreme Court decision was the biggest step the USA has taken towards theocracy in some time. I already converted from pure abstract libertarianism to National Libertarianism some time ago for purely practical reasons; events had made it sufficiently obvious that the abstract position simply could not function in the real world.

Now I find myself wondering if even this more practical and pragmatic approach is logically consistent with real-world human behavior. It may be that if John Adams is correct and there is no system of government that can survive an insufficiently moral people, what the progressives think of as a linear progression will turn out to be even more cyclical than I had imagined. We know, per Cicero, that democracy leads to aristocracy. But does cultural degeneracy precede theocracy? Or is it simply the decline into low paganism that I have anticipated?

White Christian conservative attachment to the Constitution and traditional American ideals such as representative democracy are consequences of their deeper attachments. Once those connections severed, they are simply a larger, more dedicated, more effective, and better-armed group playing the game of power. I tend to doubt post-democracy is going to be all that those celebrating it now believe it will be.