1. Because it is an affront to our longstanding aversion toward double jeopardy, "punishes thought" and further erodes what little federalism-style checks and balances still exist in American governmental policy today.

2. Because it includes sexual orientation.

So as "you #1" (i.e., my fellow libertarians) sally forth into the blogosphere to argue against ENDA, be careful to remember that the "enemy of your enemy" may well be a James Dobson or Pat Robertson, and does not really share your libertarian views on — well, anything other than opposing ENDA.

And as "you #2" (i.e., my fellow gay activists) sally forth into the blogosphere to argue for ENDA, be careful to remember that the "friend of your enemy" may well not be a James Dobson or Pat Robertson and does not really share their bigoted views on — well, anything other than opposing ENDA.

I, meanwhile, already split that baby in the posts below.

Previously:
–A Gay-On-Gay Hate Crime?
–On the ENDA-T Conundrum
–On Religious Bigots' New-Found (Faux) Libertarianism

—

On a somewhat related note, let's also recall that the correct reason to oppose the Obama administration's plan to try to have the Census Bureau count same-sex marriages is not because gay marriages shouldn't be counted, but because no marriages should be counted.

The sole legitimate function of the Census is to enumerate people (i.e., who lives where) for two and only two purposes: the allocation of House seats and presidential Electors. There is nothing in Article I, Section 2 about counting marriages — or occupations, incomes, refrigerators or anything else. Such privacy-eroding inquiries by the Census are extra-constitutional at best and downright unconstitutional at worst.

Previously:
–Big Census is Watching (and Betraying) You

Two bills have been introduced so far — S.436 in the Senate and H.R.1076 in the House. Each of the companion bills is titled "Internet Stopping Adults Facilitating the Exploitation of Today's Youth Act," or Internet Safety Act.

Each contains the same language: "A provider of an electronic communication service or remote computing service shall retain for a period of at least two years all records or other information pertaining to the identity of a user of a temporarily assigned network address the service assigns to that user."
…
The legal definition of electronic communication service is "any service which provides to users thereof the ability to send or receive wire or electronic communications." The U.S. Justice Department's position is that any service "that provides others with means of communicating electronically" qualifies.

That sweeps in not just public Wi-Fi access points, but password-protected ones too, and applies to individuals, small businesses, large corporations, libraries, schools, universities, and even government agencies. Voice over IP services may be covered too.

Even the most asymptotic libertarians must recognize the propriety of (basic) child pornography restrictions (since the child cannot validly consent).

But just because a government function is legitimate does not automatically imply that every government action in pursuit of that function is also legitimate. (There was a time, eons ago, when we spoke of laws in furtherance of enumerated powers being "necessary and proper." Alas…)

This proposed Internet SAFETY Act (which will almost certainly die in committee) is the height of government impropriety. Besides the absurdly prohibitive cost — the boring old financial cost — of establishing, implementing and maintaining these records, there is also the cost in terms of the privacy rights regarding the 99.9999% of Internet use that is not "trafficking in kiddie porn." That is a bona fide cost that simply must be weighed against the purported benefits of preventing or punishing such trafficking. It has been settled doctrine, for centuries, that sometimes justice must overlook the guilty in order to protect the innocent.

Compare this nightmarish bill to how we approach government censorship. While few dispute the propriety of not affording First Amendment protection to child pornography, that does not translate into giving government free rein to censor willy-nilly (as Justice Kennard would say) "for the children." The bar is set higher than that — much higher than that.

That is the respect we afford to the First Amendment. The Fourth Amendment deserves no less respect.

(Via Sex Crimes Blawg.)

So I hope you'll forgive me if I take a one-post detour to highlight two recent defamation stories.

ITEM: Even laypersons know that truth is an absolute defense to defamation — or is it?

Though proof of a statement's truth as an absolute defense against libel lawsuits has long been a touchstone of libel law, the three-judge panel did not heed that standard in its Feb. 13 decision in Noonan v. Staples [No. 07-2159, 1st Cir., February 13, 2009], at least where private matters are concerned.

Relying on the 1902 Massachusetts statute, the panel ruled that Alan S. Noonan, a former Staples employee, could proceed with a libel suit against Staples after an executive sent an e-mail to 1,500 employees that named Noonan. Although the e-mail truthfully stated the reasons for Noonan's firing, the federal panel found that it may have been written with actual malice.
…
"It is the most dangerous libel decision in decades," wrote Massachusetts lawyer Robert J. Ambrogi on his blog, Media Law. "The decision puts a crack in the bedrock that threatens to undermine free speech."

MY TAKE: In law school you learn what your professor finds interesting, and my professor was fascinated by the concept of scienter. "Scienter" in this context basically means that "not caring whether a statement you make is true or false" is not functionally different from "knowingly making a false statement."

Here Staples sent a nasty email that, at the time it was sent, was not necessarily true. It turned out to be true after the fact. Should that subsequent "truth" still be an absolute defense to the libel claim, even though the "truth" didn't exist at the time that the alleged libel occurred? The First Circuit, applying Massachusetts law, says "perhaps not" and allows the case to proceed to trial.

I learned about scienter in the context of another tort — fraud. I had never considered it in the context of defamation. Apparently neither had anybody else.

The problem I have with allowing this case to proceed is with linking liability to damages. Even if a malicious statement can metastasize into a defamation claim based on scienter rather than falsity, how can a true statement be damaging? And if there can't possibly be damages, then what is the point of going to trial one way or the other?

Oh, and that whole "First Amendment" thing too…

—

ITEM: What was I just saying about Murray Rothbard?

Does Smith, for example, have the right (again, we are concerned about his right, not the morality or esthetics of his exercising that right) to print and disseminate the statement that "Jones is a liar" or that "Jones is a convicted thief" or that "Jones is a homosexual"?

Ahem:

In October 2007, Howard K. Stern, co-star of The Anna Nicole Show, filed a lawsuit claiming that he was defamed when the author of a tell-all book said he was gay. A Manhattan judge will soon decide if the suit should go to trial. Stern (not the host of the Howard Stern Show) has asked for $60 million in damages.

This may seem like a throwback, but gay libel suits abound. In December, Joseph Farah, founder of the conservative news site WorldNetDaily, threatened a libel suit against Wikipedia, which had listed him as "an Evangelical Christian American journalist and noted homosexual." And in 2003, a Los Angeles judge awarded Tom Cruise $10 million in a gay libel suit against a porn star who claimed he and Cruise had been lovers.
…
And yet these suits continue, in part because gay rights groups have ignored them. Lambda Legal, one of the largest gay legal rights groups, has taken no position in any of the cases across the country involving defamation and accusations of homosexuality. That's partly because the group is busy with broader issues, like marriage rights. But Lambda should take the time to enter gay libel cases on the side of the defendants.

MY TAKE: One of the problems with "gay libel" (i.e., why such lawsuits keep appearing) is because it is very easy to couch the allegation in multiple ways that would still survive even after the "it's okay to be gay" defense.

For example: If I accuse Tom Cruise of being gay and having had homosexual affairs, then I am not only accusing him of being gay but also of being an adulterer. That alone is an unambiguously defamatory statement; the gender of the "other woman" is essentially irrelevant. If I accuse Phyllis Schlafly of being a closet lesbian, then I am also accusing her of being a liar and a fraud — again defamatory statements in their own right.

It's excruciatingly difficult to craft a fact pattern where the only allegation that could be deemed potentially defamatory is sexual orientation (i.e., with no "and therefore…"). That's why, in my view, this important legal question isn't withering on the vine at the pace one might expect.

(As for the clearly uninformed critique of Lambda Legal, one should keep in mind that they do a great deal of their work, perhaps most of it, "behind the scenes." An important example: Lambda matches gays in need of mundane, "non-headline" legal assistance with a vast network of volunteer "Contributing Attorneys" in private practice — who represent gays for free or reduced fees. I have no doubt that Lambda would provide this vital referral service to any "gay libel" defendant, even straight ones, who asked for it. Not everything is a Proposition 8.)

Previously:
–They're Straight (Not That There's Anything Wrong With That…)
–Why Torts Will Always be My First Love

Police officers pulled over a man with a sign in his pickup truck window that read "Abort Obama, not the unborn" and confiscated the placard, but later returned it after police supervisors found the officers' actions "overzealous."
…
Adrian Andrews, special agent in charge of the Secret Service's Oklahoma City field office, said agents determined Harrison was not a threat.
…
Harrison said the sign was back up in his truck, and that he was considering whether to pursue a civil matter against the police department for what he considers a violation of his right to free speech.

More power to him, but I would suggest that his grievance concerns the Fourth Amendment, not the First.

Law enforcement may only single out and stop a particular vehicle based on reasonable suspicion that some offense has occurred. (The standard ought to be the higher constitutional hurdle of "probable cause," but that's a whole other blogpost.)

Which invites the question: "Reasonable suspicion" — of what? Bad taste?

There was a bit of blogospheric buzz over whether "abort" is synonymous with "assassinate" (it's not), but that debate misses the point. Even a sign reading "Assassinate Obama" would still not rise to the level of reasonable suspicion of any crime. The pesky fact that the president was nowhere near Oklahoma City at the time certainly precludes that absurd proposition.

Where the Fourth and First Amendments intersect would be if the (still absurd) suggestion were made that Harrison were somehow attempting (while motoring down a highway) to incite a riot. In that case we would switch from Fourth Amendment jurisprudence to First Amendment precedent — specifically Brandenburg v. Ohio, 395 U.S. 444 (1969), which makes clear that potentially "dangerous" speech (and remember — "dangerous" is itself a dangerous word) may only be censored if it creates a risk of "imminent lawless action."

This isn't that.

While it is certainly too much to ask that rank-and-file police officers be held to the standard of "constitutional scholar," it is not too much to ask that they have a basic understanding of key provisions of the Bill of Rights (along with an understanding that "close" or unclear situations should be escalated to supervisors or prosecutors).

Let's abort frivolous vehicle stops that lack reasonable suspicion.

—

Meanwhile, regarding two side issues:

–Since the entire stop was clearly unconstitutional ab initio, seizing the sign was of course also unconstitutional.

–As for reporting Harrison to the Secret Service and its subsequent (brief) investigation of him, I have less of a problem with that. Had the police simply reported him without ever pulling him over, then I think that would have been permissible.

Previously:
–Questions, June 30th, 2008
–If, By "Probable," You Mean a 5% Chance…

From the Introduction:

Political expression is at the heart of First Amendment activity and the Supreme Court has granted it great deference and protection. However, according to the Court in its landmark 1976 decision, Buckley v. Valeo [424 U.S. 1 (1976)], an absolutely free political marketplace is not required by the First Amendment — nor is it desirable — because without reasonable regulation, corruption will result. Most notably, the Buckley Court ruled that the spending of money in campaigns, whether as a contribution or an expenditure, is a form of "speech" protected by the First Amendment. The Court upheld some infringements on free speech, however, in order to further the governmental interests of protecting the electoral process from corruption or the appearance of corruption.

Buckley v. Valeo and its progeny are on my list of the Ten Worst Supreme Court Cases.

The schizophrenic holding of Buckley (i.e., that spending money on a campaign is "speech" but that contributing money to a campaign is not), combined with relentless legislative attempts to push the campaign-finance envelope, have resulted in over thirty years of follow-up litigation. This 50-page report summarizes that litigation. A good reference volume (if for something that should not need a reference volume).

One should of course also note that the rationalization behind restricting campaign donations (i.e., to fight corruption) would be unnecessary if the government were so small and limited in its functioning that there were nothing and no one to corrupt (cf., "a bleeping valuable thing").

Previously:
–Campaign Finance Reform is Dead — Long Live Campaign Finance Reform!
–Supreme Court Has (Yet Another) Chance to Eradicate McCain-Feingold
–Bloomberg: Ban Campaign Contributions by Businesses
–Regulation of Political Blogs Back in the News

Previous CRS Recommendations:
Federal Civil Rights Statutes
The South Ossetia Conflict
Congress and the States
Political Activity by Tax-Exempt Institutions
The Law of Church and State
Constitutional Limits on Hate Crime Legislation
Same-Sex Marriage — Legal Issues
Saudi Arabia
The National Debt
Restricting Video Game Sales to Minors
Warrantless Wiretapping
Foreign Holdings of Public Debt
China's Internet Censorship
Summary of Rumsfeld v. FAIR

Libertarians, even gay libertarians, can and should look askance at such a law. There is a presumptive First Amendment right to speak anonymously, and making a campaign contribution is "expressive conduct" (i.e., speech) under Supreme Court precedent (even if it does not enjoy full First Amendment protection — see here).

But you go into a campaign with the law you have, not the law you wish you had. Opponents of Prop 8 played by the rules, lost, and proceeded to the next steps, best summarized as "No More Mister Nice Gay."

So imagine our surprise to learn who is now asking "activist judges" to thwart "the will of the people" —

Supporters of the ballot measure that banned gay marriage in California have filed a lawsuit seeking to block their campaign finance records from public view, saying the reports have led to the harassment of donors.

"No one should have to worry about getting a death threat because of the way he or she votes," said James Bopp Jr., an attorney representing two groups that supported Proposition 8, Protect Marriage.com and the National Organization for Marriage California. "This lawsuit will protect the right of all people to help support causes they agree with, without having to worry about harassment or threats."
…
The suit said courts have held that laws requiring disclosure of campaign contributions can be overturned or restricted if a group can make "an uncontroverted showing" that identifying its members can result in economic reprisals or threats of physical coercion.

California's Political Reform Act, which voters approved in 1974, established disclosure requirements for candidates and campaign committees.

That 1974 voter initiative was actually revised and expanded by another voter initiative, Proposition 34, which passed in 2000.

I repeat: It is now the opponents of equal treatment for a law-abiding, tax-paying, politically disadvantaged insular minority who want ("activist") judges to overturn a duly enacted voter initiative (i.e., "the will of the people").

Finally, as a scrumptious dessert, note two facts: First, Proposition 34 was passed by a wider majority (60%) than Proposition 8 (52%).

Second, the reason that the bigots want the disclosure law struck down is not because of the shame-and-shun backlash toward Prop 8. That train wreck has left the station. They are instead looking to the future:

"Several donors have indicated that they will not contribute to committee plaintiffs or similar organizations in the future because of the threats and harassment directed at them as a result of their contributions … and the public disclosure of that fact," the lawsuit said.

It is hardly a secret that gay rights activists are already preparing to introduce a repeal of Prop 8 for the 2010 ballot (and, if necessary, 2012 and 2014 and …). Faced with the prospect of yet more shaming and shunning (a time-honored Christian tradition, incidentally), professional bigots are now worried, as they should be, about their minions becoming reluctant to be reminded, through every election cycle, that they are soulless cretins. Because that's exactly what will happen.

No More Mister Nice Gay.

More thoughts at Outright Libertarians.

Previously:
–On Boycotts and "No More Mister Nice Gay"
–Linkfest: Gay Rights Updates (Fourth Item)

1. If these soulless cretins went into an insular Hasidic community in Brooklyn and tried to tell the residents — who had been minding their own business — that they were sinners, that Jesus is the only way to Heaven and that God abhors their "lifestyle choices," the response would have been quite uglier than this.

2. When the peaceable gay Christians of the Soulforce Equality Ride visit Evangelical colleges, seeking only to have a respectful dialog with students, the colleges' theocratic Christianist administrators' response is almost always the same: Set one foot on our campus and you will be arrested.

The obligatory preliminaries of "violence is never the answer" aside, let's not confuse ourselves, or allow others to be confused, about who's being "tolerant" and who isn't.

Simultaneously via JMG and Towleroad.

"You can't run a museum if you have to accept everything, right?"

Right — Which is exactly why the government should not be running museums in the first place.

As for the outcome of this bizarre case, I think Chief Corky Roberts summed it up best:

"You're really just picking your poison. The more you say that the monument is 'government speech' to get out of the Free Speech Clause, the more you're walking into a trap under the Establishment Clause. … What is the government doing supporting the Ten Commandments?"

See also Dalia Lithwick's apocrypha:

Summum isn't before the court as a religion case. It was brought as a free speech case, and, as Jay Sekulow of the American Center for Law and Justice learns about three minutes into oral argument this morning, if he wins this case as a result of the court's free speech jurisprudence, he will be back in five years to lose it under the court's religion doctrine. The more zealously the city claims ownership of its Ten Commandments monument, the more it looks to be promoting religion in violation of the Constitution's Establishment Clause.

Sounds exactly right. Stay tuned…

Previously:
–Linkfest: Two More Decalogue Cases

Because of an editing error, the Nov. 7 op-ed column "Vows That Can't Be Voted Down" incorrectly suggested that the Mormon Church had contributed funds to efforts to pass Proposition 8, the constitutional amendment to ban same-sex marriage in California. The op-ed should have said "members of the Mormon Church."

That is, in fact, an important distinction — one that illustrates the impropriety of calling for the revocation of the Mormon Church's tax-exempt status.

The "Mormon" funding for Prop 8 simply did not come from the soulless cretins who run the cult — it came, pretty much in toto, from rank-and-file congregants. These misguided victims of Mormonism's lies are of course private citizens deploying their private wealth as they see fit and as they have every right to do.

The fact that the soulless cretins who run the cult ordered their local drones to read an edict to their congregant-victims instructing them to hypocritically oppose fair and equal for an insular minority doesn't change the analysis either, since the Internal Revenue Code only places limit on endorsing particular candidates and not issue advocacy. (The counterargument that LDS engaging in impermissible "lobbying" is also too much of a stretch.)

Court challenges are one thing. Public shaming is one thing. Invoking the tax code is another thing altogether — and doomed to fail. Those disgusted by the soulless cretins who run the Mormon cult should stick to what actually has a chance of working.

Previously:
–Is Planned Parenthood Violating its Tax-Exempt Status?
–CRS Recommendation: Political Activity by Tax-Exempt Institutions
–Theocrat Clerics to Stage Frivolous Tax Protest Stunt
–Tax Exemption Abuse Receiving More Scrutiny

Two law professors suggest exactly that:

After vice presidential nominee Sarah Palin finished her big speech at the Republican National Convention, the 1977 song "Barracuda," by the band Heart, blared out over the roar of the crowd. Convention organizers chose the music to highlight Palin's high school basketball-team nickname, "Sarah Barracuda." But Heart's songwriters, Ann and Nancy Wilson, were less than pleased.
…
Artists have frequently spoken out against John McCain's presidential campaign for using their songs without their permission.

There are two distinct issues here. First is, as John Marshall might say, what the law is:

Almost all recording artists make their songs available for use via a "blanket license" from firms such as ASCAP (the American Society of Composers, Authors and Performers) or BMI (Broadcast Music Inc.). … The McCain campaign has continued to play "Barracuda" since the Republican convention precisely because it cleared the license for such use with ASCAP.

Second is what the law ought to be:

There is an inherent tension between copyright law — which tells us what we cannot say, sing or perform — and the First Amendment, which protects against state censorship. In this case, the First Amendment must win. Rich and varied political speech — no matter how distasteful to recording artists or their fans — must prevail and stay free.

While copyrights should be respected, artists who abuse copyright to attempt to muzzle politicians' speech are sacrificing the broader interest for their own feelings and agendas.
…
Artists' copyrights are important, but the vibrancy of our political discourse is absolutely central.

This is, of course, utter nonsense.

The purpose of copyright is not, as the authors suggest, "to help artists get paid." The purpose of copyright (and patents) is to secure private property rights.

If I create something, then it is my property — with the highest of all property rights: the right to exclude. If I choose not to exclude (i.e., to instead try to extract the maximum possible profit from my property by entering into a "blanket license"), then that is my prerogative. I may later regret that decision upon discovering that my work is subsequently used — with my contractual consent — in a way to which I later object. But that is beside the point. (In this sense, the McCain campaign is correct: they paid for the use of the songs, so more power to them.)

If, on the other hand, I value artistic control over maximum profit, then that is also my prerogative. One option is not necessarily "better" in every instance; it depends entirely on the artist's subjective preferences. And no one is entitled to suggest that "the vibrancy of our political discourse" should give anyone the authority to make the decision for me.

No one would dare suggest that a politician has a right to hold a rally on my front lawn without my permission. No one would dare suggest that a politician has a right to use my image in a campaign commercial without my permission. Equally absurd is the notion that a politician has a right (in the absence of a license) to use my intellectual property without my permission. To label respect for intellectual property rights an "attempt to muzzle politicians' speech" is insolence on a par with McCain's terrifying use of air quotes when discussing First Amendment rights.

Note however an intriguing distinction: McCain-Feingold restricts the right (i.e., of campaign contributors) to give to politicians — supposedly for the sake of "better" campaigns. The "no copyrights" proposal restricts the right (i.e., of artists) to withhold from politicians — supposedly for the sake of "better" campaigns. Whatever it takes, I guess.

The notion that individual rights can be arbitrarily revoked whenever some central planner wannabe, or majoritarian mob, thinks it would be neat-o to do so is to say that there are no individual rights, period. That way madness lies. The most straightforward mechanism to ensure "better" campaigns is to conduct them in a way that respects individual rights. And that includes property rights generally and intellectual property rights specifically. The status quo is perfectly fine, thank you very much.