Quotulatiousness

December 20, 2012

Borking, in retrospect

Filed under: Government, History, Law, USA — Tags: , , , , — Nicholas @ 10:14

Walter Olson on the historically nasty confirmation battle that kept Robert Bork off the US Supreme Court:

Of course the confirmation critique that makes it into every Bork obituary isn’t Heflin’s or Johnston’s. It’s Ted Kennedy’s blowhard caricature, intended for northern liberal consumption, of “Robert Bork’s America” as “a land in which women would be forced into back alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, school children could not be taught about evolution,” and so on.

Never in memory had a judicial nomination been fought in such language. Why?

As a constitutional law scholar, Bork had distinguished himself even among conservatives for his scathing critique of the Warren Court, which he accused essentially of having made up constitutional law as it went along.

To organized liberal groups, on whose behalf Kennedy was acting, this was the next thing to a declaration of war. Yet they couldn’t exactly come out and defend making up constitutional law as you went along as their own vision for the high court.

Instead, they served up a steady diet of vitriol and wild oversimplification, especially in TV ads and other messages delivered outside the confirmation hearings.

The Washington Post itself opposed Bork’s confirmation, yet nonetheless editorialized against the “intellectual vulgarization and personal savagery” to which some of his opponents had descended, “profoundly distorting the record and the nature of the man.”

December 19, 2012

Clever wording can’t take away an enumerated constitutional right

Filed under: Law, Liberty, Politics, USA — Tags: , , , , — Nicholas @ 13:54

Megan McArdle on the pious hopes of those who hope to bring in draconian gun control regulation by abstruse and intricate verbal gymnastics:

Others are suggesting a de-facto ban, accomplished either through a huge tax, or a ban on ammunition. Oh, I’ve also seen calls to limit the amount of ammunition people can buy, but I don’t think those people have thought this through. For starters, the number of bullets used by a typical rampage shooter is about what a target shooter or hunter might go through in an afternoon or two of range practice. And most gun homicides are not rampage shootings; they have one or two victims, and a correspondingly small number of cartridges expended. Moreover, even a very strict per-purchase limit would permit people to accumulate ammunition over time.

No, the people who want to tax guns at 17,000%, or ban ammunition, or make cartridges cost $2,000 apiece, are the only ones hinting at something that might make a real dent in America’s unusually high rate of gun homicide. Except for one thing: you can’t do an end-run around an enumerated right with some sort of semantic game. Chief Justice John Roberts is not Rumplestiltskin; he is not bound by the universe to disappear if you can only find the correct secret word.

You cannot accomplish back-door censorship by taxing at 100% all profits of any news corporation named after a “carnivorous mammal of the dog family with a pointed muzzle and bushy tail, proverbial for its cunning.” You cannot curtail the right to protest by requiring instant background checks and a 90-day waiting period on anyone who wants to assemble with 500 of their friends in a public area. Nor can you restrict the supply of ink used to print Korans. If you pass a law like that, the Supreme Court will say “nice try, guys” and void all the painstakingly constructed verbal origami that was supposed to make civil liberties infringement look like an innocent exercise of the taxing power.

December 18, 2012

QotD: Time to look at repeal

Filed under: Law, Liberty, Media, Quotations, USA — Tags: , , , , — Nicholas @ 10:32

Is America ready to repeal the first Amendment and regulate Hollywood and the video game industry? Free speech absolutists point to their peaceful enjoyment of action-packed Blockbuster movies where protagonists of those films are often portrayed slaying hundreds of people in simulated scenes of violence.

Yet, journalists are broadcasting America’s call for an end to the tragedies through the regulation of this so-called freedom that has already killed too many. “The debate is long overdue. The mass-killing perpetrated by America’s free-speech culture is our hottest story today,” said one network reporter. “Adam or Ryan Whats-His-Name was just another face. The real problem that must be addressed is America’s sick love affair with unsanctioned ideas and unfettered access to violent imagery.”

The founding fathers could not have imagined high-capacity mass-communications networks when they wrote the Constitution. Thomas Paine was a pamphleteer, not a mass merchant of kill porn on iTunes. Indeed, in the age of quills and parchment, Thomas Jefferson could not have imagined tweeting, or using the cable news industry to launch into the superstardum of American’s celebrity culture overnight.

“I’m a free speech moderate,” said one New York Times reporter reflecting upon the recent tragedy, “I’m in the news business because of free-speech. But, I’m also here to make a difference. If, because of this overdue regulation, it becomes more difficult to speculate wildly about the identity of the shooter based on an intern’s cursory scan of social media, so be it.”

Stephen Taylor, “Time to look at repeal”, Stephen Taylor, 2012-12-17

P.J. O’Rourke on marijuana and same-sex marriage

Filed under: Humour, Law, Liberty, Religion — Tags: , , — Nicholas @ 09:37

December 13, 2012

You can’t have a free society when you also have “official truth” enforced by law

Filed under: History, Law, Liberty, Media, WW2 — Tags: , , — Nicholas @ 10:03

At sp!ked, Angus Kennedy explains why open debate and free speech is a far better solution to holocaust denial than hate speech laws and officially sanctioned “truth”:

Firstly, I think that genocide denial has always been something of a shrill brand rather a real force in the world. It had it’s heyday in 1970s France with Robert Faurisson, a rather lame literary critic in the south of France who denied the Holocaust, and was taken apart by, among other people, the French classicist and structuralist Pierre Vidal-Naquet, who was also a left-winger. Vidal-Naquet did not call for the legal prohibition of denial; instead he argued that contempt is a much more effective weapon. Similarly, Deborah Lipstadt, the author of History on Trial: My Day In Court With David Irving (2005), rails against genocide denial but is still opposed to criminalising it, shuddering at the thought ‘that politicians might be given the power to legislate on history’. I think that is a useful point to bear in mind.

The decision of whether or not to criminalise genocide denial is, in a way, the key free speech issue, the fundamental taboo. In that sense, it’s interesting that there continue to be movements by governments to make genocide denial illegal. France will probably try to push through the genocide denial law, despite it being overturned by its constitutional court, and argue for restrictions on what the French can and cannot say.

To make it clear, I’m completely opposed to criminalisation of speech or, to be more accurate, criminalisation of an idea — because that’s what this is. This is governments saying that a certain idea — genocide denial — should be illegal. I don’t think history is a matter for judges; it’s a matter for historians. I think that the completely unrestricted and absolute right to free speech is simply the best method we’ve got for getting closer to historical truth with a capital ‘T’. We should not be criminalising ideas; we should never be pragmatic about where we extend tolerance — it is a principal to be defended at all costs.

December 12, 2012

Do Republicans believe in federalism?

Filed under: Government, Law, Politics, USA — Tags: , , , — Nicholas @ 11:34

Jacob Sullum on the rising tide of liberalization at the state level — gay marriage and marijuana legalization — and whether the Republicans will support federalism in these cases:

Nationwide support for marijuana legalization, like nationwide support for gay marriage, has increased dramatically, although not quite as swiftly, rising from 12 percent in a 1969 Gallup poll to a record 50 percent last year. While support for legalization dipped a bit during the anti-pot backlash of the Just Say No era, it began rising again in the 1990s. Public Policy Polling recently put it at 58 percent, the highest level ever recorded.

[. . .]

Just as an individual’s attitude toward gay people depends to a large extent on how many he knows (or, more to the point, realizes he knows), his attitude toward pot smokers (in particular, his opinion about whether they should be treated like criminals) is apt to be influenced by his personal experience with them. Americans younger than 65, even if they have never smoked pot, probably know people who have, and that kind of firsthand knowledge provides an important reality check on the government’s anti-pot propaganda.

Another clear pattern in both of these areas: Republicans are much more likely than Democrats to oppose legalizing gay marriage and marijuana. Yet Republicans are also more likely to oppose federal interference with state policy choices. In light of DOMA’s disregard for state marriage laws and the Obama administration’s threats to prevent Colorado and Washington from allowing marijuana sales, now is put-up-or-shut-up time for the GOP’s avowed federalists.

Offensensitivity down under

Filed under: Australia, Law, Liberty — Tags: , , — Nicholas @ 10:17

Australia is exploring the notion of making it illegal to offend others (I guess it got precedence over the bill to make water run uphill…):

Have you ever called the Prime Minister ‘Juliar’? Or called a mate a dopey bastard? New laws could put a stop to name calling.

Civil Liberties Australia (CLA) warn the PM herself could be in trouble for calling Opposition Leader Tony Abbott a misogynist if proposed amendments to anti-discrimination laws take effect — although Julia Gillard has the protection of Parliamentary privilege.

What about cricket sledging, or paying out on a mate?

CLA chief executive officer Bill Rowlings has lashed out at the proposed amendments to anti-discrimination laws which make it unlawful to “offend” people.

His attack follows ABC chairman Jim Spigelman’s scathing appraisal this week — he said that the laws could breach our international obligations to freedom of speech.

Update: Of course, it’s rather unfair of me to point my finger and laugh at our Australian cousins when Albertans get up to similar japes of a quasi-legal kind:

One is surprised to discover that Hanna felt it needed to outlaw theft and assault, and also amused to contemplate the idea of a court trying to define “social out-casting”. But it turns out, anyway, that the law does not actually outlaw bullying! It instead does a bizarre half-gainer and prohibits the making-of-someone-feel-as-though-they-are-being-bullied.

    1. No person shall, in any public place:

         a. Communicate either directly or indirectly, with any person in a way that causes the person, reasonably in all the circumstances, to feel bullied.

To prove an offence under this scheme, one apparently only needs to show that one felt taunted, put down, or outcast. (Felt “reasonably”, that is. I would have thought the salient characteristic of feelings is that they are not reason, but there you go.) The Hanna Herald has said the bylaw is “based on similar laws passed around Alberta.” One hopes that this is not the case, but readers are invited to submit local intelligence. If we can call it that.

December 8, 2012

The predator who hid in full view of the cameras

Filed under: Britain, Law, Media — Tags: , , , , — Nicholas @ 00:02

Mark Steyn on the Jimmy Savile investigations:

It’s tempting at this point to offer some musings on the price of fame, the burdens of celebrity. But Savile was cheerfully unburdened. Rather than a celebrity who happens to be a pedophile, he seems to have been a pedophile who became a celebrity in order to facilitate being a pedophile. Robbers rob banks because that’s where the money is. In the Sixties, Savile became a star disc jockey in Britain’s nascent pop biz because that’s where the 14-year-old nymphettes are. In the Seventies, he became a kiddie-TV host because that’s where the nine-year-old moppets are. He became a celebrity volunteer with his own living quarters at children’s hospitals and homes because that’s where the nine-year-olds too infirm to wiggle free or too mentally ill to protest are. He persuaded various institutions to give him keys to the mortuary because that’s where the nine-year-olds unable even to cry out are. (Stoke Mandeville Hospital is now investigating whether he “interacted inappropriately” with corpses.)

His persona was tailored to his appetites: The child-man shtick meant no one would ever ask him to host grown-up telly shows or move to the easy-listening channel. He motored around the country in a famous silver Rolls with a caravan on hand should he espy a comely schoolgirl at the edge of the road. When opportunity for a quickie struck ten minutes before a recording of Savile’s Travels, it was easier to drop the gold lamé sweatpants than unbuckle a belt and unzip a pair of trousers. And he more or less hid in plain sight. When Fleet Street reporters seeking a quote on something or other called him up and said “Is that Jimmy Savile?” he’d shoot back: “I never touched her!” On the one occasion we met, I remember being struck by the physical strength he projected, even at his then-advanced age. A few years ago, an interviewer asked, “You used to be a wrestler, didn’t you?”

“I still am.”
“Are you?”
“I’m feared in every girls’ school in the country.”

December 6, 2012

“Yeah, uhhh … I don’t think driving around with 20 pounds of drugs in my car is really a good idea”

Filed under: Law, USA — Tags: , , — Nicholas @ 12:23

What do you do when you find $175,000-worth of drugs stashed on your property?

I am standing chest-deep in a dank, muddy concrete-lined hole in Silver Lake, staring eye-level into a duffel bag full of high-grade drugs.

It smells strongly of marijuana — despite the fact that someone sealed it tightly into jars, Ziplocs and professionally vacuum-sealed pouches before THEY HID IT IN MY BACK YARD.

I am starting to panic.

I already did the full Tex-Avery-wolf AOOOOGAH! upon discovering the mammoth sackful of dope — estimated to be worth somewhere north of $175,000. My jaw already dropped. My eyes already bugged out. Now my heart is thumping my gullet. Breathing is getting iffy.

I try to speak. I think my exact words to the solar-panel technician standing equally open-mouthed next to me are something to the effect of “Holy. Fucking. SHIT!”

H/T to Matt Welch:

NZ court allows Kim Dotcom to sue for illegal spying

Filed under: Business, Law, Liberty, USA — Tags: , , , , — Nicholas @ 10:01

This could get interesting quickly:

Details of the top secret international spy agency ring known as Echelon will have to be produced after a new judgment in the Kim Dotcom case.

The internet tycoon was also cleared to pursue a case for damages against the police and the Government Communications Security Bureau in a judgment which has opened the Government’s handling of the criminal copyright case for its harshest criticism yet.

[. . .]

Chief high court judge Helen Winkelmann said the GCSB would have to “confirm all entities” to which it gave information sourced through its illegal interception of Dotcom’s communications.

She said her order included “members of Echelon/Five Eyes, including any United States authority”. The Echelon network is an international intelligence network to which New Zealand and the United States are members, along with Australia, Canada and the United Kingdom.

The judgment also recorded Dotcom’s suspicions he had been spied on at least six weeks before the GCSB admitted to doing so, and sought details as to whether others had been swept up in the illegal operation.

Update: Moved the video below the fold to stop it auto-playing any time someone visited the blog main page.

(more…)

December 1, 2012

The ACLU and the introduction of sex as a civil right

Filed under: Books, Law, Liberty, Media, USA — Tags: , , , — Nicholas @ 11:33

For Reason, Debbie Nathan reviews a new book by Leigh Ann Wheeler:

When it comes to Americans’ understanding of sexual privacy and public sexual expression, most of us are effectively members of the American Civil Liberties Union. This is so even for people who carry no card, pay no dues, and — if such a thing were possible — have never even heard of the organization.

That’s the takeaway from How Sex Became a Civil Liberty, Leigh Ann Wheeler’s dense but fascinating account of the ACLU’s wildly successful efforts, since its founding almost 100 years ago, to bring sex under the purview of the Bill of Rights. Wheeler, a Binghamton University historian, could have stuck with a wonky narrative about a long march of law and jurisprudence. Instead, she’s taken what she calls an “empathic” approach. She has combed vast archives, including personal correspondence of the ACLU’s founders and decades of files from the national office and local affiliates.

From these papers she has assembled a story about men and women working through their own sexual passions and contradictions as they shaped a legal and political practice for the entire country. She reveals how activists pushed, slouched, and pushed some more to arm their fellow citizens with sexual rights, even as those rights provoked further conflicts, including among ACLUers themselves.

November 30, 2012

Stopping by the Copyright Office on a Snowy Evening

Filed under: Law, Media, USA — Tags: , , , — Nicholas @ 11:28

Virginia Postrel charts the ever-expanding copyright protections under US law:

Even as digital technology has made reproducing, remixing and repurposing creative works easier — with potentially enormous benefits for consumers and producers of new works — the monopoly privileges of copyright have expanded. The result is a bizarre combination of rampant copyright violations, frequent encroachment on legitimate fair use, suppression of new technologies and business models, and the ever-present threat of draconian penalties.

Consider how the law applies to Robert Frost’s classic poem “Stopping by Woods on a Snowy Evening,” first published in 1923. Back then you only got copyright privileges for works officially registered with the copyright office, and only for a term of 28 years, which could be renewed if you filed again, as Frost did in 1951.

Requiring such simple procedures reserved copyright privileges for creators with strong commercial or sentimental interests in limiting the publication of their works. Today, by contrast, copyright automatically applies to every eligible work, including your vacation snapshots and your 4-year-old’s handmade Mother’s Day card.

Under the law when Frost wrote his poem and renewed the copyright on the volume including it, it would have presumably entered the public domain in 1979, more than a decade after its author’s death in 1963. That’s not what happened. Beginning in 1962, Congress gradually extended copyright terms, and in 1976 it passed a new copyright act that gives works already under copyright a new term of 75 years from their first publication. That meant “Stopping by Woods” wouldn’t go into the public domain until 1998.

That’s not what happened either. Just as the poem’s copyright was about to expire, Congress passed the Sonny Bono Copyright Term Extension Act, which gave existing works a new copyright term of 95 years. (The 1923 Frost volume including the poem was one of the works cited in a lawsuit unsuccessfully challenging the act’s constitutionality.) So Frost’s poem won’t enter the public domain until 2018 — assuming that Congress doesn’t pass yet another extension.

November 29, 2012

QotD: Transforming Ontario’s wine market

Filed under: Cancon, Law, Quotations, Wine — Tags: , , — Nicholas @ 09:33

A major transition is never easy, but it would be worth it. The strategy we recommend would lead to more government revenue for health care and education; a sustained commitment to the socially responsible use of alcohol; increased economic growth based on greater access to markets; a renewed emphasis on responsible environmental practices; and wider choice, more convenience and competitive prices for consumers.

The present beverage alcohol system took shape at the end of Prohibition. For decades, Ontario has made minor repairs to the system when a complete overhaul was needed. In our view the government should focus its role on effective regulation, and restructure the system from top to bottom to establish a more competitive model.

After 78 years, change is long overdue. It is time to transform Ontario’s beverage alcohol system for the 21st century.

“Part IV. Conclusion: Towards a Competitive System”, A Report of the Beverage Alcohol System Review Panel July, 2005

November 28, 2012

Is Ontario finally “grown up enough” for private wine stores?

Filed under: Business, Cancon, Law, Wine — Tags: , , , , — Nicholas @ 11:38

In the National Post, David Lawrason talks about the push for changes to Ontario’s Prohibition-era laws regarding the sale of wine in private stores:

The Wine Council of Ontario has flipped the switch on a website called www.mywineshop.ca that allows citizens to create their own virtual wine shop. It is a very bold and clever marketing/lobbying idea. And it is the first time an industry association has initiated a public campaign aimed at creating private wine stores in the province. Gutsy stuff.

In less than a week it has painted an appetite-whetting tapestry of what privatization might look like in Ontario, complete with store themes, stock selections and locations across the province as designed by its citizens. And it is giving the public a very direct way to lobby their local MPPs for change.

One of the big reasons the Ontario wineries and wine writers fear pushing too hard for this modernization and liberalization of our drinking law is that the KGBO LCBO has a long history of retribution against dissenters:

The other theme is fear of LCBO retribution. (Talk about “the elephant in the room”). Even our braveheart John Szabo remarked at the end of his piece that “I hope I don’t get put on an (LCBO) interdiction list for writing this”. An importing agent replying to John’s article said he really wanted to talk about the issue ‘off the record’ as he was concerned that being put on an interdiction list would put him out of business.

This fear of the LCBO, whether justified or not, is another compelling reason to re-think the government monopoly. The fear shouldn’t exist within an otherwise free and democratic society; but it does. I have been writing on wine for over 25 years and during that time I have been involved in thousands of conversations with wineries, importers and consumers on shortcomings of the current system. Only once did an individual agree to be quoted.

When your livelihood depends on access to a product controlled by a monopoly, you dare not get on the wrong side of the powers-that-be controlling that monopoly. They may not break legs or leave horse’s heads in the beds of critics, but they can directly freeze the critics out of their profession. An excellent way to limit dissent. Just the hinted threat can be enough to make a would-be critic decide to toe the line and shut the hell up.

November 27, 2012

Toronto’s once (and future?) mayor

Filed under: Cancon, Law, Politics — Tags: , , , , , — Nicholas @ 10:01

In Maclean’s, Ivor Tossell recounts the story of Rob Ford’s brief tenure as mayor of Toronto:

At Toronto’s City Hall, surely the most ambiently lunatic building in Canada, a stage was set up to launch the Mayor’s Christmas Toy Drive. Eight small children had been procured to act as “honourary elves,” sitting cross-legged on a carpet at the foot of a Christmas tree, flanked by boxes of mini-trikes and construction cranes. A boxed CFL football sat ominously to one side. The mayor was scheduled to launch the drive at 1 p.m. An enormous crowd of reporters buzzed about. Interest in the mayor’s event had amplified to unusual levels by news that the mayor had just gotten himself fired.

For everyone who’s ever bemoaned the fact that our democracy doesn’t offer a way to recall politicians, witness Rob Ford: the man who couldn’t stay mayor. In a ruling released this morning, a Superior Court justice declared Ford’s seat vacant — a weirdly existential way of putting it — after finding the mayor violated the municipal conflict-of-interest act in a small-stakes, but entirely willful, transgression.

Ford has been in office for two tumultuous years, in which his cost-cutting mandate quickly gave way to a scorched-earth war on the media, a succession of botched policies and a never-ending series of altercations, each more bizarre than the last. Giving the finger to a six-year old; chasing a reporter around a park near his home; helping eject a bus of TTC riders into the rain to get his football team a ride home. Finally, today, the mayor of Toronto was sent back to the voters to ask for his job back. In the end, Rob Ford recalled himself.

Update: Speaking for the defence, here’s Ezra Levant in his trademarked over-the-top style, comparing the Ford case to some other recent political scandals in Canada.

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