I think this represents a general pattern about the Obama Administration which distinguishes it from the previous administration. George W. Bush woul repeat the same mistakes time and again and never seemed willing to admit to any of his mistakes. In contrast, Obama seems prepared to learn from what tactics work well and to try new leadership techniques. Because  he saw that the stimulus package was muddled down by congressional folley and found that health care might be similarly mishandled without some involvement, Obama took a more involved stance in speaking out on the need for a public option. Even in areas where I disagree with him, such as his decision not to release torture photos but to release the torture memos, Obama has presented himself as both pragmatic and willing to pursue what works and abandon what seems to be failing. It seems to me that this is actually quite similar to the tactics of FDR during the depression. FDR offered something to all political voices. He negotiated with buisness to craft the NRA, reached out to the left in establishing social security and the origins of the social safety net and general governed in a pragmatic and resolute fashion. When he found himself in error, he quickly shifted to a more successful tact. Of course, those concerned with ensuring that we have a national health care plan or that we acheive progress on countless other issues have an obligation to continue to express their voices and to try to be heard by the administration, but we should not at all be surprised when Obama acts pragmatically and is able to learn from his flaws and mistakes

So why am I disgusted?  The Anti-Defamation League, which is apparently a Jewish nonprofit that exists for the purpose of opposing hateful, anti-Semitic groups.  The ADL’s website contains an “About the Anti-Defamation League” section where anyone can learn about its mission.  It says, in part:

The Anti-Defamation League was founded in 1913 “to stop the defamation of the Jewish people and to secure justice and fair treatment to all.” Now the nation’s premier civil rights/human relations agency, ADL fights anti-Semitism and all forms of bigotry, defends democratic ideals and protects civil rights for all.

I guess “natural rights” got left out of that mission statement and can be conveniently disregarded.  And, of course, when the existence of a protected expressive speech incident requires “bigotry,” of course that discussion must not exist.

It should be clear to anyone who understands what “free speech” means as to why this is clearly unacceptable.  Free speech is a “liberal” idea (not necessarily a democratic one, but perhaps that, too) that exists to prevent the perpetuation of ignorance.  So long as it is protected, we need not censor or silence holocaust deniers, flat-earthers, creation scientists, or any other group that advocates for what is thought to be an “idiotic” position.  Surely Orville and Wilber Wright were viewed as foolish for thinking that their airplane would fly.  Einstein’s spacetime even took a very long time to be accepted.  I am perfectly okay with that.  That is why we live in, and fight to keep, a free society where ideas can be shared freely.  That does not mean that such speech is protected from counterspeech, in fact, the truth is quite the contrary.  We allow idiots to speak because it allows us to examine their evidence (or lack thereof) and then choose to reject their ideas.  The ADL seems to think that it knows better for all of us what the “good” speech is along with the “bad” speech.  I would prefer to avoid their totalitarian ways.

As Eugene Volokh points out, this is not only a factually incorrect reading of First Amendment jurisprudence, it is also what he calls a, “deeply misguided…matter of what the law should be.”  His reasoning is that opening the door to silencing their opposition could come back to haunt them.  If somehow their own activism were labeled as “hateful” or “bigoted,” the ADL itself would be no longer able to accomplish its goals.  “Free speech for me and censorship for everyone else” seems like a good policy, until it is your speech subjected to the censorship, and your opponent’s free speech rights being protected.

When hate speech becomes regulated like “obscenity,” (and thus content-based restrictions on expressive speech become acceptable) it just might be time for a revolution.  But such speech does not need protection because I am hateful or because I support hateful viewpoints, but because labeling one’s opponents as worthy of censorship while enjoying your own freedom of speech is hypocritical and counterproductive to the liberal values on which this country is founded.  The ADL would be right to condemn Potash’s expression (Potash is the regional director for Nebraska, Iowa, and Kansas), which are available for your perusal here.

Shortly thereafter, Potash updated his statements to say:

When I wrote to the Omaha World-Herald and said that “free speech does not extend to racist groups,” I misspoke. Free speech can and should extend to such groups. However, extremist or racist speech is not and should not be protected where it incites imminent lawless action that is likely to occur. ADL has a long history of defending free speech and we stand by our deep commitment to this fundamental principle of democracy. See e.g., Responding to Extremist Speech.

And in doing so, he has done precisely what I claimed that he did in the first place, using an overbroad definition of “imminent immediate lawless action” to make his point.  Now he tries to claim that when an “extremist” or a “racist” incites immediate lawless action, that such speech is not protected.  But this is once again an ignorant interpretation of a legal doctrine.   One must neither be “extreme” nor “racist” to riot, or yell for an angry mob to burn a building to the ground.  This speech is not being censored because of its content, but because the speech itself encourages criminal conduct immediately. The Supreme Court of the United States has even said in Hess v. Indiana, 414 U.S. 105 (1973) that “We’ll take the fucking street later” does not meet the definition of “imminent lawless action.”  The intent of this exception of the legal doctrine has nothing to do with the content as extreme or racist.  It exists because the government has a compelling interest in protecting the safety of those who would be legitimately injured or killed by allowing such speech.  Simply holding an extreme or racist viewpoint is grossly insufficient for such a narrow exception to America’s first liberty.

It is also worthy of noting that this entire discussion happened due to debate surrounding a hate crime bill in Congress, which is quite possibly another expansion of federal government policy.  Making a crime federal and punishing it as a “hate crime” does absolutely nothing that current laws against these acts fail to do, but that is a topic for another discussion.

The RIAA ( Recording Industry of America) has just won a victory in the first suit relating to illegal music downloading to go to trial. The defendant Jammie Thomas-Rasset was found guilty by a federal judge for downloading 24 song illegally and fined $80,000 Per song totaling $1.9 million!

I really think this tort decision is pushing into the realm of absurd putative damages that will likely be reversed upon appeal. The recent Supreme Court decision in regard to the Exxon Valdiz spill has established precedent ( despite its obscure reliance on maritime law) that fines that exceed any notion of common sense can be reduced and I wonder if such a standard would be used here on appeal. Of course, this case will not likely go that far. An appeals court judge will probably reduce the sentence to a manageable or perhaps the parties will reach a settlement that will then be recognized by the court.

One would have to think that this women was an evil child murdering rapist in order to Justify this sort of punishment. How in the world could any judge buy into the absurd arguments whole sale of the RIAA that each of these files somehow justify a penalty of 80,000 dollars. How could any judge impose on a 32 year old woman that is married with four children and works for an Indian tribe in Minnesota! There’s something terribly wrong with our litigious culture of these results can become mainstream of accepted.

I am sure that many of us are guilty of large scale downloads than merely 24. The prospect of massive lawsuits against college students and old ladies should fill us collectively with disgust. The record labels and the RIAA have fallen so far behind the times as to be utterly embarrassing. With the success of itunes, myspace etc in regard to music as well as the spread of sites such as lastFM and Pandora the internet is truly a new and innovative force in music that can not be repressed. The piracy genie is not going back into the bottle. Labels would be wiser to take to innovative tactics such as that pursued by Radiohead whose brilliant price it yourself move actually made them a significant amount of money in the process. The intellectual property laws in this country need to be updated for the internet era.

This is the second time this year where the recording industry made me recoil in utter shock. Earlier, an incredible album compilation by Sparklehorse and DJ Danger Mouse featuring many incredible vocalists from such bands as the Shins and Iggy Pop entitled Dark Night of the Soul . This album was supposed to come included on a CD with a photography book by acclaimed director David Lynch. For some copyright or contractual reason, the record label would not allow to the music to be released with the book and so the manufacturers began to take orders and ship the book with a “customized blank cd inside.” How brilliant, the record label is now trying to charge 50 dollars for a blank cd and then is shocked when music is downloaded illegally. What an absurd and obnoxious instance.

Luke Sheahan, Director of the Campus Freedom Network blogged about the contents of the conference (last week) here:

Thursday, attendees and speakers will gather for a reception at 6 p.m. followed by dinner at 7:00 p.m. Following dinner, Brooklyn College professor KC Johnson, co-author of Until Proven Innocent: Political Correctness and the Shameful Injustices of the Duke Lacrosse Rape Case, will give the opening address.

Friday morning, attendees will hear from FIRE Co-founder, Chairman of FIRE’s Board of Directors, and noted civil liberties attorney Harvey Silverglate. Harvey’s remarks are entitled “If FIRE Didn’t Exist, Why We Would Have to Invent It.” Following his speech, Harvey will moderate a panel on “The Philosophical and Practical Underpinnings of Academic Liberty.” Panelists include David French, Daphne Patai, and Derek Shaffer.

David French is currently director of the Alliance Defense Fund’s Center for Academic Freedom. He is the previous president of FIRE, a former lecturer at Cornell Law School, author of FIRE’s Guide to Religious Liberty on Campus, and co-author with Harvey Silverglate and Greg Lukianoff of FIRE’s Guide to Free Speech on Campus. French led the successful litigation against Temple University’s speech code in DeJohn v. Temple University in the United States Court of Appeals for the Third Circuit.

University of Massachusetts at Amherst professor Daphne Patai is a member of FIRE’s Board of Directors. She has been an insightful commentator on education for many years and has authored and edited twelve books, most recently What Price Utopia: Essays on Ideological Policing, Feminism, and Academic Affairs.

Derek Shaffer is a graduate of and professor at Stanford Law School and Executive Director of the Stanford Constitutional Law Center. Professor Shaffer sat on the panel at last year’s CFN conference.

On Friday afternoon, FIRE President Greg Lukianoff will give a talk on “Unlearning Liberty.” Samantha Harris, FIRE’s Director of Speech Code Research, will lecture on the presence of speech codes on college campuses and students will attend a speech codes workshop with a FIRE staffer.

Friday evening, students will gather for a reception and dinner followed by a lecture by Wendy Kaminer, author of eight books, most recently Worst Instincts: Cowardice, Conformity, and the ACLU. She has been published in numerous publications including Free Inquiry, The New York Times, The Atlantic Monthly, The Wall Street Journal, The American Prospect, Dissent, The Nation, and Newsweek. A longtime champion of free speech, Kaminer serves on FIRE’s Board of Advisors.

Friday morning, students will attend two panels on student activism. The first is “Using New Media in the Fight for Liberty.” CFN Program Officer Brandon Stewart, Claremont McKenna student Charles Johnson, and independent filmmaker Andrew Marcus will discuss the uses of new media. Brandon will discuss the implementation of new media strategies at FIRE. Charles will explain how he used blogging to expose censorship in the Claremont consortium.

Andrew has extensive experience producing independent films about issues of political and social importance. He produced Political Correctness vs. Freedom of Thought-The Keith John Sampson Story about FIRE’s case at Indiana University-Purdue University Indianapolis, where student Keith John Sampson was found guilty of racial harassment for reading an anti-Klan book. Andrew also co-produced FIRE on Campus: An Introduction to the Foundation for Individual Rights in Education and FIRE in Action: Valdosta State University with Evan Coyne Maloney, maker of Indoctrinate U. Andrew will discuss the use of video in the struggle for liberty on campus.

The last session of the conference will feature students with intimate knowledge of the fight for liberty on campus. Alex Kindell of Northern Kentucky University led a student protest against new university regulations to forbid chalking and indoor demonstrations. Her work led to more speech-friendly chalking and protest policies, including the elimination of campus “free speech zones.”

But it gets even better.  The conference will be streamed live, for those of you who did not gain admittance to the conference this year.  This is an excellent chance for students to see what the FIRE is all about, support the mission of free speech on campus, and watch the lectures.  Hopefully it will encourage them to join the Campus Freedom Network, become an activist for free speech on campus, host FIRE speakers on campus,  and/or earn some cool prizes for helping spread the word about the FIRE.

For those of you who prefer the short version, the FIRE staff will be updating the FIRE’s Twitter regularly during the conference, and you can follow the conference specifically right here.

So what does this all mean?  Check out the live feed!

“A man I’m proud to call my friend. A man who will be the next President of the United States — Barack America!” –Joe Biden, at his first campaign rally with Barack Obama after being announced as his running mate, Springfield, Ill., Aug. 23, 2008 (Watch video clip)

I appears that what we had there is a matter of free speech, but for a reason not often discussed in the legal literature.  The right to free speech protects not only the right to express oneself, but also the right to refuse to speak.  The Court limited this right in Hibel v. Sixth Judicial District, but the holdings in that case were narrow and limited to the requirement to identify oneself to a police officer.  Cato commented on this issue while the Hibel was pending.

In this case, Emily was not just being expected to write for a particular viewpoint (which, considering that gay issues are in the minority position in America, I would support as the teacher’s method of making a challenging assignment), but rather to advocate a change in legislation that was contrary to her own political beliefs.  And just as the 1st Amendment  protects political speech (and other forms of expression), it also protects the freedom to not engage in political discourse.  Emily is protected not only if she would prefer to advocate for legislation in the opposite way, or even some other position not noted.

Teachers may (and often do) expect a student to learn an argument well enough to sufficiently defend it, or even argue the counter-position if necessary.  The assignment is perfectly acceptable given this premise.  The problem is being required to advocate publicly for a certain political position.  Worse than being told what to say, this assignment requires that the compelled speech be given in written form and to a state legislature.  When examined in this manner, it is quite obviously unacceptable, and the Foundation for Individual Rights in Education was right to intervene.

According to the Associated Press, Obama plans on signing an executive order to finally provide “benefits” for the same-sex partners of government workers. I’m not thrilled. To anyone who might hail this as evidence of Obama’s status as a “great advocate” for gay people in America, I call shenanigans. You should remember: this is in response only to the outrage of the gay community for the bigoted motion to dismiss his Justice Department filed in the Defense of Marriage Act case and his continued refusal to act on a repeal of Don’t Ask Don’t Tell. (You can read about it on this blog here and here.

Some of you might be wondering why I put the word “benefits” in quotation marks. I did that because…oh, wait for it, that’s right: “[Secretary of State Hillary Clinton's] promises left out financial benefits such as pensions. Obama’s move could make that shift.” I beg your pardon? It could make that change? As in, what, it’s a possibility?

So, let me get this straight. Same-sex partners working for the government will get “benefits”, just nothing that will help them during the economic crisis? What’s the reasoning? Just so long as, what, it doesn’t cost the government any money? Or is the idea that it’s not supposed be anything substantive, just symbolic. Yeah, I guess I should get down and thank Obama and the DNC profusely now that they’ve deigned to expand gay rights the smallest margin possible — just enough to assuage our wrath.

This sort of symbolic policy is only a step in the right direction — in and of itself, it means very little. Obama can talk about how much he loves gay rights all he wants but until he starts doing something that will substantively demonstrate his commitment to equality under the law I’m going to remain skeptical.

And if the Democratic Party keeps up these shenanigans, I honestly think that the wealthy and (allegedly) important gay donors should ditch the Democratic Party for an election cycle and donate to the Green Party. Let the Democrats see where they are without us.

Update II: I wanted to post links to some sites that deserve Kudos for their excellent reporting on the topic not swayed by simple emotion.

Washington Blade

The Advocate

I want to put some slight dissent into the DOMA debate because I think it’s warranted…

I first of all would like to thank the posters on this blog for being respectful and not making the idiotic argument that the Obama DOJ is corrupt and tainted by the fact that “gasp” a Mormon filled the brief. Unfortunately, Andrew Sullivan, whom I respect and revere in most regards, seems to have been the first to make a post mentioning that   Senior Trial Counsel and Bush appointee W. SCOTT SIMPSON is a member of the Church of Jesus Christ of Latter Day Saints.  Yet, as soon as this information became widespread anti-Mormon arguments began to spread with virility.

One very easily swayed blogger shifted from viewing the DOMA brief as legitimate and valid to decrying it merely because a Mormon was involved in some capacity.

Are gay rights advocates truly suggesting that a Mormon is incapable of serving in the Justice department of a Democratic administration or effectively carrying out ones duties objectively? The amount of post proposition 8 vitriol that has emerged against Mormons has been rather disgusting. American Thinker has a great round up of Anti-Mormon efforts that have included personal attacks against ALL members of the church regardless of their voting status.

No one in this country should lose his job or be targeted for discrimination because he or she donated or voted for a specific campaign. Catholics and Orthodox Jewish groups were also very involved in the fight for Proposition 8 and other “traditional” marriage bans, but I don’t see a call to boycott all Catholic owned industries or to refuse to tip Jewish waiters. What’s worse, Mormons are now being subjected to the same types of arguments that were popular against Catholics or even Jews only a few decades ago. Mormons are declared to be unable to be distinguished as individuals because we all supposedly vote as a unified bloc. We supposedly are unable to think for ourselves and blindly “followed the prophet.”  This CBS news article wonderfully explores some of the stereotypes about Mormons that are widely held. I am a Liberal Mormon that voted against a gay marriage ban in Florida and I view that as consistent with my church membership. Elsewhere, http://www.dailykos.com/story/2009/3/5/705204/-The-LDS-church-is-NOT-trying-to-oppose-civil-union-in-Illinois”>>I wrote about how quick members of the blogosphere were to assume the actions of individual members constituted official church position.

For the record, I’d like it to be made clear. My actions do not represent my church and every one of its actions do not automatically represent my views or thoughts. I am a thinking individual encouraged by my faith to think through and come to my own conclusions on spiritual matters through the guidance of the church prophets and the gift of the Holy Ghost that I possess.

I think the actions of LGBTQ advocacy groups have lost them a lot of legitimacy. I for one will not contribute to LGBTQ groups in the next election cycle because I know that my money that I donate will actively be used to further a bigoted campaign to target individual members of my faith for their affiliation. No one is asking LGBTQ groups to give money to the Mormon church or to any of its official functions, but the campaign against Mormon individuals is simply uncalled for.

Likewise, the assault on a single Mormon involved in the writing of this brief is absurd. I am actually upset that a bush holdover was given this task at all because I do think that a new administration should not be using holdovers to write a brief on such a controversial matter precisely because of the impression that it creates, but his religious views should not be viewed as a dominant or significant factor.

Never mind that a single individual can not write a brief and singlehandedly get it submitted. Never mind that the DOJ and Obama have embraced these arguments overall. Nevermind that the DOJ employs many bush holdovers of various faiths. Of course, a Mormon conspiracy must be involved here. Give me a break!

And for good measure let me offer a bit of argumentation in defense of the DOMA brief. Legal experts do say that the DOJ in all but a few circumstances clearly and vigorously must http://www.washblade.com/thelatest/thelatest.cfm?blog_id=25735″>defend statues on the books.

While the Supreme Court does not have to defend laws that are http://www.usdoj.gov/olc/nonexcut.htm”>egregiously and obviously unconstitutional, it is clear that DOMA does not fit under this. The clearest precedent on the federal level Baker V. Nelon that still dominates dismissed arguments being advanced by Gay Rights advocates today and it is http://en.wikipedia.org/wiki/Baker_v._Nelson”>>not clear at all how a federal court would rule in this case.

Moreover, it can be argued that if the DOJ is defending a statute should put forward the strongest case that it can. The DOMA brief contains a whole slew of arguments that have been rejected on the state level as states have overturned gay marriage bans or laws but that have NEVER been addressed on the federal level. Arguments equating homosexuality to pedophilia or bestiality may be disgusting but they should be included for sure as they have been used on both the state and federal level before and have never effectively been rebuked by a court. Until these arguments are clearly rejected they should be brought forward as they will give courts an opportunity to look at them and obviously reject the logic.

Dale Carpenter, Professor of Law at the University of Minnesota and  an author at the Volokh Conspiracy weblog, commented on the case this week.

Discussion around the office this week has stemmed from the same information Volokh covers in this particular motion.  Even though a Motion to Dismiss is typically only granted when the Plaintiff’s claim, even if true, fails to provide a path to relief, this motion goes far beyond that, challenging the merits of the arguments challenging the federal statute, that, in my observation, clearly violates the Equal Protection Clause of the 5th Amendment.

Here is just a quick excerpt from Volokh:

Fundamental right to marry that includes same-sex couples? Nonsense under the narrowest approach to such rights, as articulated by Chief Justice Rehnquist in Washington v. Glucksberg, who wrote that in evaluating a fundamental-rights claim a federal court must follow tradition and tradition is to be understood as narrowly as possible.

The Loving analogy? Rejected. Strict scrutiny for laws discriminating against gays and lesbians? Unprecedented. Sex discrimination? Meritless. Romer v. Evans? That dealt with a comprehensive denial of rights, unlike DOMA. Lawrence v. Texas? That was a privacy case.

Ninth Amendment rights? No such thing.

Does anyone else find it strange that Obama’s Justice Department is quoting Rehnquist as gospel?

If Obama is going to claim that he is all for liberating gays and lesbians from the chains of oppressive law, it is time that he begins a movement in Congress to repeal the Defense of Marriage Act.

And I will go out on a limb right now and say that this motion will be denied, and that the motion for summary judgment by the government that will inevitably follow will be even more disgusting in the context of its claims with respect to the rights claims that will come from the Plaintiffs.  And I will be right there to expose this travesty of injustice when the government wastes our tax dollars filing such briefs.

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