Snowflakes in Hell

Clayton Cramer talks about an article he wrote recently about decriminalization of marijuana. I would put myself firmly in Clayton’s first category, namely that I think the social costs of prohibition are higher than an increased incidence of schizophrenia, though the social cost of that is certainly nothing to dismiss. I’d have no problem funneling money we save on the war on drugs toward taking care of the mental illness that result from substance abuse. But I find Clayton’s fourth point interesting:

People arguing that marijuana laws don’t have any influence on behavior–no matter what the laws are, the same number of people will smoke pot. Yet, at the same time, they acknowledge that having it illegal drives up prices, attracting the violent criminals into the trade. Somehow, rising prices don’t affect demand or consumption.

Let me change that around a bit:

People arguing that gun laws don’t have any influence on behavior–no matter what the laws are, the same number of criminals will get guns. Yet, at the same time, they acknowledge that having guns illegal drives up prices, attracting the violent criminals into the trade. Somehow, rising prices don’t affect demand or consumption.

But I suspect that Clayton believes as I do, that the issue is a bit different. I don’t dispute that prohibition would drive the price of guns up, and the number of criminals able to afford guns down. But if I can’t have a gun either, it’s little comfort to me that the guy who robs me on the street threatens to shiv me instead of shoot me, or the guy breaking in my house threatens to beat me with a crowbar instead. Also, much like with Clayton’s argument about alcohol, we’re already an armed society. That genie left the bottle a long time ago. Of course, I also think, with respect to marijuana, that is probably also the case. It’s hard to prohibit something that you can grow in a closet with the right equipment, and if you think about what you have to do to stop something of that, it involves a police state. That’s why I’ll continue to be a proponent of decriminalization. Mental illness we can treat, a police state is a much harder nut to crack.

I pose the title question in a format that Senator Daylin Leach may understand – given that it reflects his own rhetoric against those with whom he disagrees.

Senator Leach, in all the wisdom he can muster, tried to explain his theory – which we will call Leach’s Law – on the jurisprudence of the Supreme Court that might have reached #fail proportions.

Our favorite 5 are nothing if not predictable. You don’t even have to know the issue before the court to know who is going to win. All you need to know are the litigants. So for example, if it’s a prosecutor vs. a criminal defendant, well then the prosecutor is going to win. If it’s a civil-rights plaintiff vs. a company accused of discrimination, then the company is going to win, unless the plaintiffs are white guys, in which case the white guys are going to win. In fact, its a pretty good rule of thumb that if the case is white guys against anyone else for any reason the white guys are going to win.

Using Senator Leach’s theory, let’s examine the McDonald case.

Otis McDonald is not white. Colleen Lawson is not a man. Chicago, in this case, plays the role of prosecutor. And both McDonald and Lawson, along with the other plaintiffs, are seeking relief from a civil rights violation. Under Leach’s Law, the five Justices will vote that the handgun ban stands and governments are free to continue denying a fundamental right to minority citizens.

Wait. That’s not the conclusion he reaches. I guess even Leach’s Law is meant to be broken every once in a while since he actually believes the minority parties will win over the government oppressing a civil right.

If you want more of his twisted logic, feel free to click on over and read why he looks forward to the result of the case so he can push more gun control. (See, I told you it was twisted.)

From Megan McArdle, who speaks of a horrific program by the government to poison the black market alcohol supply during prohibition:

I wish I could say I found it surprising, but it seem to me to be of a piece with too many other brutalities in American law.  We pass a law with the best of intentions, and find it doesn’t work, and so we pass new regulations and policies designed to crack down on non-compliance, until we are brutalizing the population all out of proportion to the original good we were pursuing.  Consider the way we have cracked down on pain medications, impeding the effectiveness of pain control for people in chronic agony out of the fear that somewhere, someone might be getting high.  Or the terrifying authority we’ve handed the IRS, because if anyone gets away with cheating on their taxes, the terrorists will have won, or something.

Gee. Sounds familiar doesn’t it?

Not what you think. Eugene Volokh has some pretty good coverage of the spying incident where school officials are alleged to have spied on students at home using laptop cameras. Apparently the School District is claiming the feature of activating the cameras was only in case the laptop was reported “Lost to Stolen.”  I guess law abiding gun owners aren’t the only people who are being victimized by this issue:

pon a report of a suspected lost, stolen or missing laptop, the feature was activated by the District’s security and technology departments. The tracking-security feature was limited to taking a still image of the operator and the operator’s screen. This feature has only been used for the limited purpose of locating a lost, stolen or missing laptop. The District has not used the tracking feature or web cam for any other purpose or in any other manner whatsoever.…

I guess we’ll find out in court.

UPDATE: Orin Kerr takes a detailed look at the legal issues.

It would seem to be that Lower Merion School District administrators are being sued. Why? They apparently were using integrated web cams in student laptops to spy on students at home. The lawsuit is a class action, and in addition to civil rights violations under Section 1983, they are going after a laundry list of other federal laws regarding communications, computer fraud, and wiretapping. Good. The people who thought up this scheme ought to have their lives ruined. In my opinion they should also face criminal charges.

Now they are talking about it in Canada too.

Only a politician can call for a gun ban on Friday night and then sign on to speak at a pro-liberty shooting event hosted at a gun club on Tuesday and not see the hypocrisy.

As we’ve mentioned, Jack Wagner said he supported a ban on semi-automatic rifles on Friday night at the Pennsylvania Progressive Summit. This afternoon, the Commonwealth Foundation posted a Facebook listing for their annual LiveFreePA fundraiser. Guess who confirmed his attendance? Jack Wagner. To his credit, he’s the only Democrat who is on their confirmed speakers list. To his discredit, he’d ban the guns that the members of the host club use regularly.

I thought that McConnell v. FEC was one of the most disappointing O’Conner decisions over her career. It doesn’t seem her opinion on the matter has mellowed:

“Gosh,” she said, “I step away for a couple of years and there’s no telling what’s going to happen.”

Justice O’Connor criticized the recent decision, Citizens United v. Federal Election Commission, only obliquely, reminding the audience that she had been among the authors ofMcConnell v. Federal Election Commission, the 2003 decision that was overruled in large part on Thursday.

“If you want my legal opinion” about Citizens United, Justice O’Connor said, “you can go read” McConnell.

As it is, I agree with O’Conner on the problems of an elected judiciary, which she goes on to discuss in the article, and I am a great admirer of O’Conner’s principled stances on federalism (she was one of the three justice minority in Raich). But I think on this issue, she is very wrong.

Oh, I think it’s just Tom Jefferson increasing his subterranean angular momentum a bit after hearing about this. Hopefully just the fact they were sued will give the park service some pause next time some folks decide to engage in some non-disruptive expression. You never know when they might have access to well-respected civil rights attorneys.

Dave Hardy notes some interesting tidbits in the dissent in the Citizens United case. Namely that the dissenters on the court seem to believe that there ought to be no free speech rights for corporations. So we have free speech as individuals, but if you get together in a group you have no free speech.

Makes sense to me! It used to be you could count on the “liberal” wing of the Supreme Court to be steadfast in defense of civil liberties. I guess not anymore.

I’m not going to bore you with the complexity of campaign finance laws. Really, it’s tedious. But my prediction is that the end result voters will actually see will be an increase in attack ads.

The Morning Call’s John Micek has rounded up some insights, one in particular stands out:

Larry Ceisler, a Democratic consultant from Philly, said he thinks that while corporations might hesitate, unions will jump in with both feet. He also said that there’s a risk that unfettered corporate speech might drown out candidates’ own ads, which could cost them control of their own messages.

“For instance, if an entity is supporting a candidate and doesn’t think the message is tough or sharp enough, they can go in and do it themselves,” he told the newspaper. “That could be good for a campaign – or disastrous.”

I would be willing to put money on the fact that groups will now go more negative earlier than any candidate will. It’s unfortunate, but it is the likely result. In the Brown-Coakley race, her campaign worked alongside national groups to bombard the airwaves in the last week with nothing but negative ads against Scott Brown. Yes he was elected, but you can’t really argue they didn’t work. Rasmussen found on election day that voters who made up their minds in the last few days before the election broke for Coakley at a higher rate. He also found that more of Coakley’s supporters were really going to vote against Brown rather than for Coakley than vice versa. Unfortunately for Coakley, she just didn’t get the ads on the air early enough.

After that loss, I would say to expect more and expect them earlier. Though hopefully they will stay off of the Weather Channel this time around.

UPDATE: Marginal Revolution has posted word clouds from both the majority and dissenting opinions to give you a better idea of what each side was focused on.

The case is Citizens United vs. Federal Election Commission. Looks like a bit of a judicial trainwreck, much like McConnell v. FEC was, but the good news is we’re rid of many of the restrictions, including restrictions on independent corporate expenditures, which would apply to groups like the National Rifle Association. So this is a positive development for us in the Second Amendment community.

For some expert opinion on the matter, see SCOTUSBlog, Volokh, and the Election Law Blog.

Remember all those promises of transparent government? Take a look at this:

Executive Order — Amending Executive Order 12425, signed December 16 and released a day later, grants the International Criminal Police Organization (INTERPOL) rights on American soil that place it beyond the reach of our own law enforcement agencies, such as the Federal Bureau of Investigation (FBI).

Schippert and Middleton note that Obama’s order removes protections placed upon INTERPOL by President Reagan in 1983. Obama’s order gives the group the authority to avoid Freedom of Information Act (FOIA) requests — which means this foreign law enforcement organization can operate free of an important safeguard against governmental abuse.

It gets even better:

Khoo Boon Hui of Singapore is the current president of the organization, and the current secretary general is American Ronald Noble. Noble is perhaps best known in America for overseeing the Treasury Department’s review of the disastrous 1993 raid and siege of a Branch Davidian compound in Waco, Texas, that left nearly 80 people dead. Noble had cautioned against the initial raid plan as being too dangerous, but the lack of any significant ramifications for federal officials that approved of the raid and allegations of a cover-up have inspired conspiracy theorists to derisively dub Noble “the Enforcer.”

This is going to make the blue helmeted conspiracy crowd go nuts. One of the things that’s always been amazing about the left is that they do such an effective job of making people’s paranoid delusions seem to not, in fact, be paranoid delusions.

I don’t see what the big deal is, but then again, I’d be willing to decriminalize it generally. We’ve paid an awfully high price in terms of civil liberties trying to control what people put into their own bodies.

The First Amendment seems to be enjoying more public support these days too. I’m happy about this, but frankly, I’m disappointed free speech doesn’t have broader support than barely breaking a majority sometimes. That really shouldn’t  be controversial.

Ban it! From an article about how animal rights whack jobs are infiltrating hunting groups over in England:

Hunting was banned in 2005 but since then the number of people taking part in the sport has continued to increase, with 50,000 mounted followers expected this year compared to 40,000 in 2004.

This year there are expected to be a further 50,000 supporters following the hunt on foot or in cars in order to put pressure on any new Government to overturn the law.

The Tories have said that if they win the election, they will allow a free vote on repealing the ban.

The same thing happened with assault weapons in this country. Not many people owned them in 1994, but once the government said you couldn’t have one, it got people interested. Much like hunters in the UK, gun owners in the US managed to work around the ban.

If it hadn’t been for the Assault Weapons Ban, I may never have become a gun owner myself. My first gun was a Romanian Kalashnikov, that I got specifically as f— you to people who said I shouldn’t have one. Then I remembered I really used to enjoy shooting as a kid, and it was downhill from there. I think a lot of other people my age have similar stories.

Via Thirdpower, Apparently there are mass raids on safety deposit boxes over in the UK. This kind of thing shouldn’t go on in a free society.

Many of us look fondly upon the days when you could go to the drug or grocery store and pick up a decongestant while plugged up and just be done with it after handing over your cold-contaminated cash at the register. Now, in your foggy, miserable state, you have to find a pharmacist who will take down your license information before handing over the powerful stuff. Ugh, more people and details involved in the equation. Suddenly the transaction costs go up, and I know I’m more likely to say “F*ck it, I’ll keep sniffling.”

But at least I still have the choice to find immediate relief at a reasonable price if I’m willing to jump through the hoops. These hoops, which we were promised would reduce meth labs, shockingly, have had no impact other than inconveniencing consumers and getting grandmothers arrested. So what are law enforcement groups calling for as the next step in the drug war? Requiring a prescription for decongestants.

Lord, I wish I were kidding. The representative of a Missouri law enforcement group says we need to battle the big, bad “pharmaceutical companies that make more than a billion dollars a year from cold relief medicines containing pseudoephedrine.” Oddly enough, he also claims that cold relief pills are comparable to chocolate chip cookies. God help him if he tries to go after Tollhouse cookie makers. Mothers will send all of their sniffling, sneezing rugrats after him.

The House and Senate have worked out their differences on the 2010 Homeland Security Appropriations Bill, and amendment to prevent US Customs from redefining assisted opening folding knives as switchblades has been preserved. You can read about it over at KnifeRights.org. NRA was also helping move this forward, along with several Senators.

“This amendment was necessary to prevent commonly-used pocketknives from being branded as illegal switchblades. The National Rifle Association is grateful to Sens. John Cornyn (R-Tex.), Mark Pryor (D-Ark.) and Orrin Hatch (R-Utah) whose leadership fixed a provision that would have criminalized millions of law-abiding Americans — including millions of hunters and sportsmen,” said Chris Cox, Executive Director for NRA’s Institute for Legislative Action.

The Senate adopted this amendment through unanimous consent back in July, but it took a while for the House and Senate to work out the differences in the conference committee. Many thanks to the folks who helped get this through. It’s one less thing we’ll have to worry about.

Apparently a lot of other bloggers are pissed at the FTC.  So why don’t left, righty, and centery bloggers all get together and push to get rid of the FTC? I’m not kidding either. They’ve proven they can’t handle the power they’ve been given responsibly, so lets agree to take it away from them, and put it back where it belongs — with Congress.

Overlawyered has a good summary of exactly how the new FTC regulations are going to affect bloggers, but in his comments, we get an idea of what an FTC action looks like. I have done a bit of research, which seems to confirm this:

Let’s also understand the process by which the FTC will enforce its rules. FTC regional offices will be spending their days combing the Internet looking for “violators”. Blog operators will then get a “demand letter” from the regional office demanding they either post certain disclaimers or remove offending posts. These letters will include a “consent order” admitting guilt without any sort of due process, as well as a lengthy financial disclosure form that provides the FTC with a complete picture of your personal and business finances.

The FTC doesn’t negotiate. You can’t call them up to straighten things out. Once the demand letter is issued, you have already been judged guilty. If you want to contest the charges, you’ll be hauled before an FTC administrative law judge, not a regular federal court. Even if you convince the ALJ to side with you, the FTC commissioners hear any appeals — and the FTC has a 100% reversal rate when the ALJs rule against FTC staff.

You can appeal from the FTC commission to the US Court of Appeals, then to the Supreme Court, but that much lawyering isn’t exactly cheap. This is chilling. I’d like to blame Obama for this, but the rule change was started under Bush. Congress should eliminate the Federal Trade Commission and replace it with an agency it retains more control over. The FTC, under our system of Government, is a pseudo-legislative, pseudo-judicial body that should not be constitutional. It is a relic of the New Deal, and needs to go.

A TV host and columnist, Bonnie Erbe, is upset that the Supreme Court seems willing to come down on the side of the First Amendment in the Stevens case, which had oral arguments earlier this week. She’s upset, because she obviously did not listen to the oral arguments, nor did she bother researching the case before mouthing off about it.

The biggest fear Justice Antonin Scalia registered was that the law could be used to ban hunting videos. When one reads the language of the statute, it seems to say that hunting (or making or selling videos of same) is not the kind of activity it was enacted to ban. Is hunting illegal under federal or state law? Of course not! State law regulates and licenses hunting, but does not make it illegal.

Except hunting certain kinds of animals is illegal in some states and not in others. For instance, Michigan and a few other states ban hunting of morning doves, but which are popular game birds in the South. By plain reading of the statute, it would be illegal to make a hunting video depicting morning dove hunting in Texas, and sell it to someone in Michigan, where dove hunting is illegal. The video doesn’t have to be cruel, it just has to depict someone killing an animal. It would be unlawful to put a dove hunting web site up, because someone in Michigan might read it. If Ms. Erbe had done research, she would have realized this, but it gets better:

My concern regarding Justice Breyer’s question extends beyond the plain language of the law. When he asks whether Congress can just go ahead and pass another law, he underestimates the enormity of such a task. It can take decades to re-enact a law the Supreme Court strikes down willy-nilly.

I’m sorry that Ms. Erbe is upset that we live in a Constitutional Republic that has limits on the power of government, and makes it difficult for Congress to pass laws that touch on important constitutional rights. I really am. Utterly distraught.

When I think of free speech I think of political protest or whistle-blowing or espousing unpopular positions. I don’t think of a constitutional right to make and sell violent, bloody videos of animals maiming and killing each other in a way that is designed to appeal to the lowest human instincts.

So you’re OK with banning nude art then? Certain types of dancing that people find appeal to the lowest human instincts? Depictions of violence in movies and video games? I’m sorry we have a First Amendment that protects these things, but we do. If Ms. Erbe is so upset by this concept of broad protections on freedom of speech and expression, perhaps she should consider relocating to a country where such rights are not taken seriously, like China, Russia, or Canada.

Reviewed the Federal Trade Commission’s new rules regulating blog content, and unfortunately, they look to be far worse than I originally imagined. Jeff Jarvis points out some of the problems with the new rules here, but let me go into how they will affect gun bloggers specifically, since more than a few of us have gotten free stuff from companies, and not always because we were bloggers, or because we were given something with an expectation we’d write about it.  But it turns out that largely doesn’t matter.

As Sigivald initially thought, most of the reports indicate that only bloggers who are paid by companies or marketing agents are at risk of prosecution by the FTC. However, the FTC is clear that payment need not be in the form of cash, and even merely providing a review copy of a product itself may be considered compensation. But, just to keep things interesting, review copies may not always be compensation. The bureaucrats admit to being intentionally vague because they may or may not consider the value of the product as evidence against bloggers in the decision to prosecute.

For example, a blogger could receive merchandise from a marketer with a request to review it, but with no compensation paid other than the value of the product itself. In this situation, whether or not any positive statement the blogger posts would be deemed an “endorsement” within the meaning of the Guides would depend on, among other things, the value of that product, and on whether the blogger routinely receives such requests.

Confused yet? Well, that depends on how often you get offers to review. There’s no minimum standard for which you must begin reporting such “compensation.” And the mere presence of “offers” may possibly be enough to trigger an investigation even if you turn most review offers down. If that’s not bad enough, there’s liability on the part of companies who choose to work with blogs as well.

Marketers or sponsors would be obliged to monitor all the content of the blogs they have ever worked with. If a blogger gets a key fact or claim about the product wrong, marketer or sponsor would be liable.

The Commission recognizes that because the advertiser does not disseminate the endorsements made using these new consumer-generated media, it does not have complete control over the contents of those statements. Nonetheless, if the advertiser initiated the process that led to these endorsements being made – e.g., by providing products to well-known bloggers or to endorsers enrolled in word of mouth marketing programs – it potentially is liable for misleading statements made by those consumers.

Imposing liability in these circumstances hinges on the determination that the advertiser chose to sponsor the consumer-generated content such that it has established an endorser-sponsor relationship. It is foreseeable that an endorser may exaggerate the benefits of a free product or fail to disclose a material relationship where one exists. In employing this means of marketing, the advertiser has assumed the risk that an endorser may fail to disclose a material connection or misrepresent a product, and the potential liability that accompanies that risk. The Commission, however, in the exercise of its prosecutorial discretion, would consider the advertiser’s efforts to advise these endorsers of their responsibilities and to monitor their online behavior in determining what action, if any, would be warranted.

Bloggers and sponsors could all be facing potential fines of up to 11,000 for a failure to disclose. The practical impact is that a wise lawyer would advise companies to avoid pitching anything to bloggers unless a blogger can bring a profit greater than $11,000 to the company. Very few of us are capable of doing that.

And the liability does not just exist for mistakes in product claims, but also for disclosure itself. If S&W wants to give Caleb another hat after December 1, and he posts about it or any S&W product again in a way that may be interpreted in perceived as positive, they are liable if he forgets to add a note that they are compensating him in some way. It doesn’t matter if they didn’t even email him about that specific product, it’s a potential violation. It’s worth noting that traditional media won’t have to live up to the same standards as blogs:

The Commission acknowledges that bloggers may be subject to different disclosure requirements than reviewers in traditional media. In general, under usual circumstances, the Commission does not consider reviews published in traditional media (i.e., where a newspaper, magazine, or television or radio station with independent editorial responsibility assigns an employee to review various products or services as part of his or her official duties, and then publishes those reviews) to be sponsored advertising messages. Accordingly, such reviews are not “endorsements” within the meaning of the Guides. Under these circumstances, the Commission believes, knowing whether the media entity that published the review paid for the item in question would not affect the weight consumers give to the reviewer’s statements. Of course, this view could be different if the reviewer were receiving a benefit directly from the manufacturer (or its agent). In contrast, if a blogger’s statement on his personal blog or elsewhere (e.g., the site of an online retailer of electronic products) qualifies as an “endorsement” – i.e., as a sponsored message – due to the blogger’s relationship with the advertiser or the value of the merchandise he has received and has been asked to review by that advertiser, knowing these facts might affect the weight consumers give to his review.

The free speech implications of this are serious. but I think there’s even some free press implications. Why should bloggers not enjoy the same rights the regular media does? Does it matter that my press is Apache and PHP, rather than some huge, expensive offset printer? I don’t think so.

Because the rules are not clear, a blogger or marketer can have no idea whether his writing about a particular product will trigger an investigation, or worse, bring about civil penalties. The safe move will be for bloggers to not mention products or companies in a positive light, and for advertisers to stay away from blogs altogether. This will have a chilling effect on speech and free expression, so it’s difficult for me to believe that the FTC’s new guidelines are not a violation of the First Amendment. Hopefully the courts will agree.

And the Federal Trade Commission can totally kiss my ass.

… keep the hippy vote. Remember kids, the Democrats are the party of choice.