The Magistrate’s Rebellion?

 Posted by on 13 May 2014 at 2:00 pm  Law, Privacy, Rights
May 132014
 

Judge denies Gmail search warrant, notes “Technorati are … everywhere”:

A federal judge in Silicon Valley took the unusual step last week of rejecting a routine email search request, and suggested that Google and the government take steps to halt the now-routine practice in which tech companies hand over the entirety of their customer’s cloud-based computer accounts.

“The Technorati are … everywhere,” wrote U.S. Magistrate Judge Paul Grewal. “And yet too few understand, or even suspect, the essential role played by many of these workers and their employers in facilitating most government access to private citizen’s data.”

Grewal’s ruling also includes a discreet swipe at Google:

“While Google has publicly declared that it challenges overbroad warrants, in three-plus years on the bench in the federal courthouse serving its headquarters, the undersigned has yet to see any such motion.”

Hear, hear! This is a tiny step, but I hope it leads to much more. Thank you, Judge Paul Grewal.

How Not to Advise a Disgruntled Teenager

 Posted by on 25 March 2014 at 2:00 pm  Ethics, Law, Parenting
Mar 252014
 

You remember that story of the teenager who sued her parents for support? Happily, the lawsuit was recently withdrawn, and she’s back at home. But here’s the kicker… her lawsuit was facilitated — and surely encouraged — by the father of a friend of hers.

“Canning had been living in Rockaway Township with the family of her best friend. The friend’s father, former Morris County Freeholder John Inglesino, was paying for the lawsuit.”

This father-of-a-friend deserves a bitchslap or two, particularly given that the girl has become such a public spectacle. What a mess.

Jan 222014
 

I’m a bit late in blogging this news, but I’m delighted to report that the Institute for Justice has created a Food Freedom Initiative:

A new national initiative launched [November 19, 2013] by the Institute for Justice seeks to make sure the government stays out of some of the most personal decisions people make every day: What we eat and how we get our food. This nationwide campaign will bring property rights, economic liberty and free speech challenges to laws that dictate what Americans can grow, raise, eat or even talk about.

To kick off the initiative, IJ is today filing three separate lawsuits challenging Miami Shores, Florida’s ban on front-yard vegetable gardens; Minnesota’s severe restrictions on home bakers, or “cottage food” producers; and Oregon’s ban on the advertisement of raw–or unpasteurized–milk. Each case demonstrates how real the need for food freedom is in every corner of the country.

“More and more, the government is demanding a seat at our dining room tables, attempting to dictate what we put on our plates, in our glasses and, ultimately, in our bodies,” said Michael Bindas, an IJ senior attorney who heads up the new initiative. “The National Food Freedom Initiative will end government’s meddlesome and unconstitutional interference in our food choices so that Americans can once again know true food freedom.”

  • IJ is challenging Miami Shores’ front-yard vegetable garden ban in state court on behalf of Herminie Ricketts and Tom Carroll, a married couple who grew vegetables on their own property for their own consumption for nearly two decades before Miami Shores officials ordered them to tear up the very source of their sustenance or face fines of $50 per day. Learn more about their case: www.ij.org/FlVeggies.
  • Minnesota allows food entrepreneurs to make certain inherently safe foods–such as baked goods–in home kitchens, but it: (1) prohibits their sale anywhere other than farmers’ markets and community events; and (2) limits revenues to $5,000 per year. Violating these restrictions can lead to fines of up to $7,500 or up to 90 days in jail. IJ is challenging these restrictions under the Minnesota Constitution on behalf of cottage food entrepreneurs Jane Astramecki and Mara Heck. Learn more about their case at: www.ij.org/MNCottageFoods.
  • In Oregon, it is legal for small farmers to sell raw milk, but they are flatly forbidden from advertising it. If they do advertise their milk, they face a fine of $6,250 and civil penalties as high as $10,000–plus one year in jail. IJ is challenging this ban under the First Amendment on behalf of farmer Christine Anderson of Cast Iron Farm. Learn more about Christine’s case at: www.ij.org/ORMilk.

These three cases raise important constitutional questions that show how meddlesome government has become in our food choices: Can government really prohibit you from peacefully and productively using your own property to feed your family? Can government really restrict how many cakes a baker sells and where she sells them? Can government really ban speech about a legal product like raw milk? The answer is no.

IJ’s President and General Counsel, Chip Mellor, said, “For 22 years, IJ has been on the forefront of protecting Americans’ property rights, economic liberty and freedom of speech. With our National Food Freedom Initiative, IJ will now bring that experience to bear in the most fundamental area–food–so that Americans can be truly free to produce, market, procure and consume the foods of their choice.”

If you care about your access to foods of your own choosing and the rights of food producers to engage in voluntary trade, please consider donating to IJ! IJ is extremely effective and principled in their advocacy of liberty, and I know that my donor dollars are going to very good use.

P.S. With this initiative, the Institute for Justice is tackling a really important and growing aspect of statism in a way that resonates with ordinary Americans. They’re doing so on the basis of sound principles and facts, and they’re likely to effect change through the courts and public outreach. In contrast, ARI’s only activity in this area has been a series of propagandistic blog posts in defense of GMOs by an astrophysicist without an adequate understanding of relevant principles of biology. Basically, ARI’s approach seems little better than what Christian Wernstedt satirized here: The Tragedy of Milkia®: The Luddite Attack Against Industrial Dairy Progress. For this reason and about a hundred others, I’m glad that my donor dollars have long gone elsewhere, particularly to IJ.

 

I found that photo on Facebook a while back, with the following caption:

This photo was posted on STFU, Conservatives Tumblr page last night [here]. The reason why I’m sharing it is not because of the photo itself (which is epic in it’s [sic] own right), but for the comments it generated.

One person wrote, “but then again, its kind like putting a meat suit on and telling a shark not to eat you”.

STFU responded (with bolded text):

We (men) are not fucking sharks!

We are not rabid animals living off of pure instinct

We are capable of rational thinking and understanding.

Just because someone is cooking food doesn’t mean you’re entitled to eat it.

Just because a banker is counting money doesn’t mean you’re being given free money.

Just because a person is naked doesn’t mean you’re entitled to fuck them.

You are not entitled to someone else’s body just because it’s exposed.

What is so fucking difficult about this concept?

Bravo.

Indeed. Also, Laura Jedeed has some really excellent comments on rape and this image too.

Happily, the rights of women in western countries are more widely recognized and better protected today than at any other time in human history. That’s a huge achievement, and part of why I’m grateful to live in modern America.

However, more progress awaits us. One example was in the news last year:

A recent court case just exposed a barbarity in California law, namely that it’s not rape to trick an unmarried woman into sleeping with you by pretending to be her boyfriend.

Julio Morales was convicted and sentenced to three years in state prison for entering an 18-year-old woman’s bedroom and instigating sex with her while she was asleep after a night of drinking at a house party in 2009. According to prosecutors, it wasn’t until “light coming through a crack in the bedroom door illuminated the face of the person having sex with her” that she realized Morales wasn’t her boyfriend. Holy shit.

But a panel of judges overturned the conviction this week because of a law from 1872 that doesn’t give women the same protections as married women because, as we all know, single women are always down for nonconsensual sex, even when they’re asleep and/or purposefully tricked into the act.

The court admitted that “If the woman had been married and the man had impersonated her husband” it would be rape. But since there was no ring on her finger, it’s not!

Eugene Volokh had some comments here. I agree that rape by fraud shouldn’t be a punishable offense, except in cases of impersonation of a lover or spouse. (I’m not sure of the case of mere friends.) As Eugene says of such impersonation:

It is, thankfully, apparently a rare sort of lie; it is very far outside the normal level of dishonesty that people expect might happen in their relationships; it is one for which there is no plausible justification or mitigation; and criminalizing it is unlikely to sweep in the garden variety lies that, unfortunately, often appear in people’s sexual and romantic lives.

California law obviously needs to be updated.

Here’s another example. The 2012 election was replete with politicians making ridiculous and offensive comments about rape in order to rationalize their across-the-board opposition to abortion. Most notable was Todd Akin’s justification for denying abortions to women pregnant due to rape:

… from what I understand from doctors, that’s really rare. If it’s a legitimate rape, the female body has ways to try to shut that whole thing down. But let’s assume that maybe that didn’t work or something. I think there should be some punishment, but the punishment ought to be on the rapist and not attacking the child.

Conservatives need to recognize that forced pregnancy — not just pregnancy due to rape but any unwanted pregnancy — is a morally abhorrent violation of rights, not a gift from God.

Alas, the third example hits closer to home for me. In a February 2012 podcast, Leonard Peikoff said that a man is entitled to force himself on a woman if she has a few drinks with him and then goes up to his hotel room. Thankfully, he corrected that a few weeks later, but only in part. By a rather strange analysis, Peikoff concluded that a woman cannot withdraw consent after penetration. In reality, that means that the man can do whatever he pleases to the woman after penetration, even as she kicks and screams and yells and cries in protest. That’s seriously, seriously wrong — and dangerous too.

On a more positive note, you’ll find my own views on the nature and limits of consent in sex in this podcast. (It’s a pretty lengthy discussion… about over 40 minutes.)

Ultimately, my point here is that the rights of women matter — and they’re not yet fully protected. The image at the top of this post reminds us of that. The fact that she’s half-naked doesn’t make her any less of a person with the absolute right to forbid another person access to her body.

That’s a lesson that some people still need to learn, unfortunately.

Jan 092014
 

Lately, I’ve gotten a slew of hits to this video from Philosophy in Action: Should a man unwilling to be a father have to pay child support? It’s now gotten nearly 5,000 views. Nice!

That’s awesome. Alas, awesome often comes paired with crazy, such as this comment:

Let’s think about this bit — “If a woman steals a mans seed without his consent, does she have a right to live?” — for a moment.

First, I’m pretty sure that a man voluntarily gives his “seed” to a woman in having sex with her. That’s rather the point, in fact.

Second, are we talking death penalty?!? Um, wow.

Finally, here’s a pro-tip: Don’t ever suggest up-front that your audience might think you a sociopath after reading your opinion. It might just prejudice them against you… just a bit.

Doctors and the Police State

 Posted by on 20 December 2013 at 10:00 am  Alcohol/Drugs, Crime, Drug War, Government, Law
Dec 202013
 

This story — Drug Warriors Kidnap and Sexually Assault a Woman After Getting Permission From a Dog — is appalling in its own right:

In a case eerily similar to David Eckert’s humiliating ordeal at the hands of cops in Deming, New Mexico, a federal lawsuit charges U.S. Border Patrol agents with subjecting a U.S. citizen to six hours of degrading and fruitless body cavity searches based on an alleged alert by a drug-sniffing dog.

However, what’s really noteworthy, I think, is the complicity of the doctors and medical staff:

First the agents strip-searched the plaintiff, examining her anus and vagina with a flashlight. Finding nothing, they took her to the University Medical Center of El Paso, where they forced her to take a laxative and produce a bowel movement in their presence. Again they found no evidence of contraband. At this point one of their accomplices, a physician named Christopher Cabanillas, ordered an X-ray, which likewise found nothing suspicious. Then the plaintiff “endured a forced gynecological exam” and rectal probing at the hands of another doctor, Michael Parsa. Still nothing. Finally, Cabanillas ordered a CT scan of the plaintiff’s abdomen and pelvis, which found no sign of illegal drugs. “After the CT scan,” the complaint says, “a CBP [Customs and Border Patrol] agent presented Ms. Doe with a choice: she could either sign a medical consent form, despite the fact that she had not consented, in which case CBP would pay for the cost of the searches; or if she refused to sign the consent form, she would be billed for the cost of the searches.” She refused, and later the hospital sent her a bill for $5,000, apparently the going rate for sexual assault and gratuitous radiological bombardment.

As the article says, this case “illustrates the appalling complicity of doctors in waging the war on drugs, even when it involves utterly unethical participation in dehumanizing pseudomedical procedures performed on involuntary and audibly protesting ‘patients.’”

In my view, civil damages are an insufficient remedy in such cases. Assuming that the doctors and staff knew that the woman did not consent to these warrantless searches, then they are guilty of the crime of sexual assault. They should be arrested and prosecuted for that. Perhaps then doctors would think twice before passively doing whatever government agents demand.

Alas, that seems unlikely. Hopefully, some justice will be served by this civil suit.

 

Tonight, I’ll interview Pacific Legal Foundation attorney Timothy Sandefur about occupational licensing — how it works, what it’s supposed to do, and what it’s real-life effects are. We’ll also talk about “Certificates of Need” (CONs) regulations that allow existing businesses to squash any newcomers. I kid you not.

If you’re not familiar with CONs, check out Sandefur’s 2011 article, CON Job: State “certificate of necessity” laws protect firms, not consumers. Here are the open paragraphs:

When St. Louis businessman Michael Munie decided to expand his moving business to operate throughout the state of Missouri, he thought it would be a simple matter of paperwork. After all, he already held a federal license allowing him to move goods across state lines. But when he filed his application, he discovered that, under a 70-year-old state law, officials in Missouri’s Department of Transportation were required to notify all of the state’s existing moving companies and allow them the opportunity to object to his application. When four of them did file objections, department officials offered Munie the choice of withdrawing his application or appearing at a public hearing where he would be required to prove that there was a “public need” for his moving business. The law is not clear on how exactly he would do this — “public need” is not defined, nor are there any rules of evidence or procedure in the statute. And even if he managed to prove a “public need,” the department would take anywhere from six months to a year to make a final decision. In the face of such complications, Munie chose to withdraw his application and ask instead for limited permission to operate within a portion of St. Louis. His competitors had no objection to that, and he was given the restricted license.

Bizarre as this law might seem, it is only one of dozens of such requirements, generally called “certificate of necessity” (CON) laws, that exist across the country, governing a variety of industries, from moving companies and taxicabs to hospitals and car lots. A legacy of the early 20th century, CON laws restrict economic opportunity and raise costs for products and services that consumers need. Unlike traditional occupational licensing rules, they are not intended to protect the public by requiring business owners to demonstrate professional expertise or education. Instead, these laws are explicitly designed to restrict competition and boost the prices that established companies can charge.

Go read the whole article.

Voter Fraud: Jon Caldara’s “Stunt”

 Posted by on 24 September 2013 at 10:00 am  Election, Law, Politics
Sep 242013
 

Wow. Jon Caldara was allowed to vote in Colorado’s recent recall election due to Colorado’s flimsy election laws. He blogs:

I committed an act of civil obedience.

I’ve lived in Boulder for nearly 30 years, yet I just cast a ballot in the Colorado Springs recall election. I did so by legally using the irresponsibly lax new election law.

Now, we might not agree on policy or even political candidates, but I hope we all agree that everyone should know their full voting rights. Our election law changed drastically when Governor Hickenlooper signed into law House Bill 13-1303. And everyone, not just the political team that concocted and rushed it through the process, should know how the law works and their new rights under it.

My act of civil obedience proved a simple truth – under this law voters can now be legally shuffled around in the last moments of a campaign, to any district around the state where their votes are needed most.

If this law stands, the future of Colorado elections will be decided by which campaign has the most buses.

Notably, HB-1303 forced elections to use mail-in ballots. Meaning if you are registered to vote, your ballot will be flung through the mail like a grocery store coupon, whether you want it to or not. As sloppy as that is, that’s not the worst part.

HB-1303 permits you to register and vote the same day in any district in Colorado you like, no matter where you were living just moments before. Basically anyone who has been, well, anywhere in Colorado for 22 days (a pleasant 3 week vacation), has an address in the district, and is over 18 can now vote in any district, anywhere in the state on election day if they affirm they have the “intention” of making that district their permanent home.

To educate voters of their new voter rights we created www.BringInTheVote.com, where you can get more details. But to drive the point home, I went to a polling location in the Springs, told them I’m living there now and I’d like to vote. I signed the form, they gave me a ballot, and I cast it.

While I cast a blank ballot as a new Colorado Springs resident, I could have just as easily voted “yes” for the recall. Thankfully, enough of my new neighbors did that for me.

The Denver Post covered the news and published an editorial too.

Amazing. I’m glad we have a stuntman like Jon in Colorado!

Sep 172013
 

In last Sunday’s radio show, I answered the following Rapid Fire Question:

In his 1977 essay “Political Freedom and Its Roots in Metaphysics,” Moshe Kroy argued that Ayn Rand’s advocacy of government, in contrast to the libertarians’ advocacy of anarchism, stemmed from her having a different view of the nature of man than Murray Rothbard did. Is Kroy right?

I skimmed the article in advance of the broadcast, so I knew that the Kroy’s analysis was based on utterly ridiculous — as in, fabricated — claims about Ayn Rand’s philosophy. I quoted a bit of the article in the broadcast, but I thought I’d blog a bit more commentary. The first example that Kroy offers is long and complicated, so I’ll skip that. Let’s look at the second:

A Randist judge would demand compensation whenever a promise was unilaterally made and broken (i.e., a promise of a gift, or of charity service). A Rothbardian judge would not consider these legal matters — though he may privately advise the victim to advertise the fact of default as much as he can, so as to make the defaulter realize that breaking promises is bad for your business reputation.

Nothing in Ayn Rand’s writings — fictional or philosophical — supports this claim that mere promises constitute contracts. In fact, as William Stoddard observed, Hank Rearden’s thinking about his abysmal marriage — when Lillian drags him to Jim Taggart’s wedding — suggests the opposite view:

Then, as if a single, sudden blow to his brain blasted a moment’s shift of perspective, [Hank] felt an immense astonishment at what he was doing here and why. He lost, for that moment, all the days and dogmas of his past; his concepts, his problems, his pain were wiped out; he knew only — as from a great, clear distance — that man exists for the achievement of his desires, and he wondered why he stood here, he wondered who had the right to demand that he waste a single it-replaceable hour of his life, when his only desire was to seize the slender figure in gray and hold her through the length of whatever time there was left for him to exist.

In the next moment, he felt the shudder of recapturing his mind. He felt the tight, contemptuous movement of his lips pressed together in token of the words he cried to himself: You made a contract once, now stick to it. And then he thought suddenly that in business transactions the courts of law did not recognize a contract wherein no valuable consideration had been given by one party to the other. He wondered what made him think of it. The thought seemed irrelevant. He did not pursue it.

Basically, because Hank received no “valuable consideration” from Lillian in their marriage, Hank ought to consider that marriage to be a mere promise and not a binding contract. Hence, he’s not obliged to endure it, come what may — and ultimately, he doesn’t. In fact, when Hank divorces Lillian after the debacle with the “Gift Certificate” for Rearden Metal, he goes to considerable lengths to prevent her from benefitting from the marriage. He bribes judges and others to prevent any property settlement or alimony. That’s because Hank aims to leave Lilliam without another cent of his — whatever the promises of the marriage — precisely because she’s offered him no valuable consideration in the marriage.

If I read Atlas Shrugged through from beginning to end, I suspect that I could find more than a few promises broken by the heroes (mostly due to changed circumstances) that wouldn’t ever result in any kind of court case. Contracts are a kind of promise, but they’re not mere promises.

As for the third example:

A Randist judge would have to defend, in court, a contract in which a man sells himself to be a slave: once a man made a contractual commitment to be a slave, and to forego any further freedom of choice, he has to abide by his promise. A Rothbardian would consider the contract cancelled the minute the slave refuses to be a slave any more (thereby implying that the contract was never valid). At the same time, if the slave got some money, which he has been capable to continue to control independently, for becoming a slave, then he no more legally holds the money: the money belongs to the deceived, purported slavemaster. Thus, the institutions of justice should remedy the breach of control and ownership incurred.

Again, that’s a complete fabrication. Nothing in Ayn Rand’s writings would ever support that position. In fact, another example from Atlas Shrugged suggests that Ayn Rand held the opposite view — namely, when Dagny attempts to convince Dan Conway to fight the “Anti-Dog-Eat-Dog Rule.”

“Dan, you have to fight them. I’ll help you. I’ll fight for you with everything I’ve got.”

Dan Conway shook his head.

He sat at his desk, the empty expanse of a faded blotter before him, one feeble lamp lighted in a corner of the room. Dagny had rushed straight to the city office of the Phoenix-Durango. Conway was there, and he still sat as she had found him. He had smiled at her entrance and said, “Funny, I thought you would come,” his voice gentle, lifeless. They did not know each other well, but they had met a few times in Colorado.

“No,” he said, “it’s no use.”

“Do you mean because of that Alliance agreement that you signed? It won’t hold. This is plain expropriation. No court will uphold it. And if Jim tries to hide behind the usual looters’ slogan of ‘public welfare,’ I’ll go on the stand and swear that Taggart Transcontinental can’t handle the whole traffic of Colorado. And if any court rules against you, you can appeal and keep on appealing for the next ten years.”

“Yes,” he said, “I could … I’m not sure I’d win, but I could try and I could hang onto the railroad for a few years longer, but… No, it’s not the legal points that I’m thinking about, one way or the other. It’s not that.”

“What, then?”

“I don’t want to fight it, Dagny.”

She looked at him incredulously. It was the one sentence which, she felt sure, he had never uttered before; a man could not reverse himself so late in life.

Dan Conway was approaching fifty. He had the square, stolid, stubborn face of a tough freight engineer, rather than a company president; the face of a fighter, with a young, tanned skin and graying hair. He had taken over a shaky little railroad in Arizona, a road whose net revenue was less than that of a successful grocery store, and he had built it into the best railroad of the Southwest. He spoke little, seldom read books, had never gone to college. The whole sphere of human endeavors, with one exception, left him blankly indifferent; he had no touch of that which people called culture. But he knew railroads.

“Why don’t you want to fight?”

“Because they had the right to do it.”

“Dan,” she asked, “have you lost your mind?”

“I’ve never gone back on my word in my life,” he said tonelessly. “I don’t care what the courts decide. I promised to obey the majority. I have to obey.”

In the rest of the scene, Dagny continues her attempts to persuade Conway, but without effect. Notice, however, that Dan Conway embraces the view of the supposedly “Randist judge” in the example from the article. He agreed to abide by the majority, so he has lost all right to fight their ruling now. Dagny, on the other hand, vehemently asserts that Dan has every right to fight for himself and his railroad. Dagny’s view is clearly Ayn Rand’s view.

(For anyone interested in more direct discussion of this question of whether a person can sell himself into slavery, check out this podcast segment: 12 March 2012: Selling Yourself into Slavery.)

Ultimately… is it too much to ask that critics of Ayn Rand refrain from that time-honored traditions of “ignoring the text” and “making stuff up”? Apparently so.

 

I’m delighted to report that my own Coalition for Secular Government was mentioned in a recent column in the Wall Street Journal: Bradley Smith: The Supreme Court and Ed Corsi’s Life of Political Crime. Here’s the relevant tidbit:

In Buckley v. Valeo (1976), and again in Federal Election Commission v. Massachusetts Citizens for Life (1986), the Supreme Court held that the regulatory requirements of operating a political action committee could not be imposed on groups that lacked the primary purpose of supporting or defeating political candidates in elections. But across the country, states are flouting that command, imposing rigid requirements on ordinary citizens who are trying to express their political opinions.

In Colorado, for example, a group of friends calling themselves the Coalition for Secular Government operate a website on which they posted a long policy paper on abortion and church-state relations. The paper concluded by urging Coloradans to vote “no” on a ballot measure. For that, the state says they must register as a political committee and report their activities, income and expenses.

The article begins with an even more egregious case than ours, and it’s well worth reading.

Suffusion theme by Sayontan Sinha