Before 25-30 years ago, most people had a sense of what the law was, without having to go to law school, because they understood, intuitively, that some things were bad. Mala in se, the law calls it — “bad in itself.”
But the criminal codes have proliferated mala prohibata offenses — “bad just because the law has prohibited it” — like evil freedom-eating Tribbles for 30 years.
Do you know what you are currently permitted to do? Do you know what you will face a criminal penalty for doing?
You don’t. None of us are aware of the myriad laws we’re breaking every day, simply by doing things that seem obviously legal but some vicious Marxist bureaucrat somewhere decided to put you in jail for.
And this state of affairs works out perfectly for the Marxists.
30 years ago, you’d just assume that anything that wasn’t obviously contrary to morality was legal. That is, you’d have a built-in default setting of assuming liberty. And that assumption of liberty would then propel you to take actions.
But now, you have to assume that many things that aren’t contrary to morality are illegal anyway. And so you now have — quel coincidence! — a built-in default setting of assuming prohibition. And that assumption that many of the things you’d like to do are illegal and criminal thereby reduces your desire to take any action at all.
You become docile, unmotivated, compliant, and risk-averse.
And this state of affairs works out perfectly for those who would control you. Only half the things you’d like to do are actually criminal, but you assume the rest might be too, thus putting it in your head you need State Permission to take virtually any action besides going to work and, of course, paying the state its dues.
Ace, “Enemy of the State”, Ace of Spades HQ, 2013-02-26
February 27, 2013
QotD: “There ought to be a law”
February 19, 2013
US Supreme Court okays search warrants issued by dogs
A glum day for civil liberties:
Today the U.S. Supreme Court unanimously ruled that “a court can presume” an alert by a drug-sniffing dog provides probable cause for a search “if a bona fide organization has certified a dog after testing his reliability in a controlled setting” or “if the dog has recently and successfully completed a training program that evaluated his proficiency in locating drugs.” The justices overturned a 2011 decision in which the Florida Supreme Court said police must do more than assert that a dog has been properly trained. They deemed that court’s evidentiary requirements too “rigid” for the “totality of the circumstances” test used to determine when a search is constitutional. In particular, the Court said it was not appropriate to demand evidence of a dog’s performance in the field, as opposed to its performance on tests by police. While the Court’s decision in Florida v. Harris leaves open the possibility that defense attorneys can contest the adequacy of a dog’s training or testing and present evidence that the animal is prone to false alerts, this ruling will encourage judges to accept self-interested proclamations about a canine’s capabilities, reinforcing the use of dogs to transform hunches into probable cause.
Writing for the Court, Justice Elena Kagan accepts several myths that allow drug dogs to function as “search warrants on leashes” even though their error rates are far higher than commonly believed
February 17, 2013
A shocking, lurid tale of depravity that transfixed Victorian London
In History Today, Richard Canning reviews a new book on the trial of Frederick Park and Ernest Boulton, aka Mrs Fanny Graham and Miss Stella Boulton in 1871:
McKenna provides what is certainly the definitive account of the Boulton/Park story, drawn not only from contemporary journalism but also from the full legal transcript, a miraculous survivor housed in Kew’s National Archives. It is a miserable tale, if leavened both by McKenna’s dramatic verve and, during the show trial held in Westminster Hall, by Fanny and Stella’s black humour. The establishment account – that the pair’s persistent cross-dressing importuning was a scandal to public morals that must be stopped – soon breaks down. McKenna shows clearly how the men were effectively set up and, to some degree, even entrapped.
Police confidence in pressing the serious charge of ‘conspiracy to solicit, induce, procure and endeavour to persuade persons unknown to commit buggery’ (as opposed to the minor offence of outraging public decency) was nonetheless misplaced. Buggery had until lately incurred the death penalty and still carried a lifelong penal sentence. No such charge had been brought for 240 years. The problem which attended the endless, farcical medical examinations of Boulton and Park reflected sodomy’s millennial history as the nameless or invisible crime. Few Victorian doctors could claim to have seen evidence of the extreme anal dilation which purportedly occurred after the ‘insertion of a foreign body’. Of the half dozen who inspected the pair – both inveterate sodomites, as McKenna concedes – only one remained certain that the corporeal evidence supported conviction. They were acquitted and the notion that ‘the impurities of Continental cities’ had reached London was rooted in legal terms for a quarter-century – if paradoxically seeming somehow to be affirmed.
McKenna lays bare a fascinating tapestry of interrelated personal histories, only partially capable of reconstruction. Frederick’s elder brother Harry, already twice disgraced, was hiding in Scotland under an assumed name. Their father, a judge, was urgently shipped off to South Africa during the trial of his younger son. Impressively, Frederick’s mother – amusingly a literal ‘Mary Ann’ – took to the stand to defend his moral character. So successful was she that the identification of Frederick/’Fanny’ as a theatrical mother’s boy exonerated him entirely from the imputation of vice.
February 11, 2013
Police dogs as “probable cause on a leash”
Jacob Sullum on how credulous courts have granted police dogs the power to circumvent Americans’ right to be free from intrusive search and seizure by police officers on fishing expeditions:
The deputy and another officer who arrived during the stop nevertheless went through Burns’ truck for half an hour or so, reaching up into the boat, perusing his cargo, looking under the seats and the hood, examining the gas tank and the undercarriage. They found no trace of drugs, although they did come across the loaded pistol that Burns mentioned to them once it was clear they planned to search the truck.
“They were cool with the gun,” Burns says. “If it had been California, God knows what would have happened.” He was so relieved that he barely minded the delay and inconvenience, which stretched a brief traffic stop into more than an hour. “I’m not a lawyer, and I’m not a super-libertarian,” Burns says. “Once I realized that the pistol was not going to be an issue, man, they could have spent all day going over that car and under that car. My only concern was that one of the guys might have slipped something in to cover up for the fact that they didn’t find anything.”
That’s one way of looking at it. But even if you are neither a lawyer nor a super-libertarian, you might wonder 1) how often this sort of thing happens, 2) how it came to be that police can get permission from a dog to rifle an innocent man’s belongings, and 3) whether that state of affairs is consistent with the Fourth Amendment’s guarantee against “unreasonable searches and seizures.” The answers, in brief, are 1) fruitless searches based on dog alerts happen a lot more often than commonly believed, 2) dogs acquired this authority with the blessing of credulous courts mesmerized by their superhuman olfactory talents, and 3) this dog license is hard to square with the Fourth Amendment, unless it is reasonable to trust every officer’s unsubstantiated claim about how an animal of undetermined reliability reacted to a person, a suitcase, a car, or a house.
All of these issues come together in two cases the U.S. Supreme Court heard a few weeks after Bob Burns was pulled over. Florida v. Harris raises the question of how a judge knows that a dog’s alert is reliable enough to justify a search. Florida v. Jardines asks whether police need a warrant to use a drug-sniffing dog at the doorstep of a home. These cases, which will be decided by this summer, give the Supreme Court an opportunity to reconsider its heretofore unshaken faith in dogs, or at least limit the damage caused by the amazing canine ability to transform hunches into probable cause.
“I don’t want to use the word buffoonery but it really is unbridled police lawlessness”
There’s more than a little bit of “explaining” due from the LAPD over these incidents:
David Perdue was on his way to sneak in some surfing before work Thursday morning when police flagged him down. They asked who he was and where he was headed, then sent him on his way.
Seconds later, Perdue’s attorney said, a Torrance police cruiser slammed into his pickup and officers opened fire; none of the bullets struck Perdue.
His pickup, police later explained, matched the description of the one belonging to Christopher Jordan Dorner — the ex-cop who has evaded authorities after allegedly killing three and wounding two more. But the pickups were different makes and colors. And Perdue looks nothing like Dorner: He’s several inches shorter and about a hundred pounds lighter. And Perdue is white; Dorner is black.
“I don’t want to use the word buffoonery but it really is unbridled police lawlessness,” said Robert Sheahen, Perdue’s attorney. “These people need training and they need restraint.”
That incident is pretty bad, and thank goodness that David Perdue wasn’t shot in the Keystone Kops re-enactment. In this earlier incident, however, the innocent civilians didn’t get off without injury:
As the vehicle approached the house, officers opened fire, unloading a barrage of bullets into the back of the truck. When the shooting stopped, they quickly realized their mistake. The truck was not a Nissan Titan, but a Toyota Tacoma. The color wasn’t gray, but aqua blue. And it wasn’t Dorner inside the truck, but a woman and her mother delivering copies of the Los Angeles Times.
In an interview with The Times on Friday, LAPD Chief Charlie Beck outlined the most detailed account yet of how the shooting unfolded. Margie Carranza, 47, and her mother, Emma Hernandez, 71, were the victims of “a tragic misinterpretation” by officers working under “incredible tension,” he said. Just hours before, Dorner allegedly shot three police officers, one fatally. And, in an online posting authorities attributed to him, Dorner threatened to kill more police and seemed to take responsibility for the slaying over the weekend of the daughter of a retired LAPD captain and her fiance.
Beck and others stressed that the investigation into the shooting is in its infancy. They declined to say how many officers were involved, what kind of weapons they used, how many bullets were fired and, perhaps most important, what kind of verbal warnings — if any — were given to the women before the shooting began.
H/T to Jon, my former virtual landlord, for the links to both articles and the urgent advice “You might want to park the Tacoma in the garage for awhile”.
February 10, 2013
QotD: The internet really did change everything
For all of those thousands of years, most important communication in civilization has been vertical, and almost always from the top down.
Think of a church bell (or before that, and in other places, a drum or a gong): a means of communication far too expensive in a primitive society for an individual to own, one with extremely low bandwidth, conveying simple imperatives that individuals had been conditioned from earliest childhood to obey: wake up, serf! Come to prayer, serf! Go to work, serf! Come back to prayer, serf! Go to bed, serf!
There was no talking back to the commanding bells.
Over the centuries, nothing changed except the bandwidth. By turns we had Big Ben, Rudy Valee, D.W. Griffith, Arthur Godfrey, I Love Lucy; but there was no way to talk back to them, either. Nor to the “news” thrust upon us by media controlled or even owned outright by authority.
Then, suddenly, the whole situation, the entire 8000-year-old structure of human interaction, was pitched on its ear. The Internet landed with a crash and knocked communications sideways, making it an egalitarian — “peer-to-peer” — undertaking. Information traveled uncontrollably, in both directions, to the anger and distress of those who still believed that they were in authority. (One politician, a wealthy former governor and senator has recently announced that he’s leaving politics, having previously claimed society would be better off had the Internet never been invented.) And all the pus, 8000 years of dictatorial threats and dirty lies, burst out with the fall of power.
Humanity will never be the same again. This is change at the most fundamental level conceivable, barring the evolution of new limbs or individuals developing gills. As a student of history, I believe it to be more significant than Gutenberg’s invention of the printing press, possibly more important than the invention of writing itself. And authority, as it disintegrates, is striving hysterically to bring it all back under control. But it’s too late by at least a decade. We have the idea of laterality now, and it cannot be disinvented or unlearned.
L. Neil Smith, “‘And That’s the Way It Is…'”, Libertarian Enterprise, 2013-02-03
February 5, 2013
February 1, 2013
EFF joins effort to quash “Gaymer” trademark
Chris Vizzini registered the trademark “Gaymer” in March of 2008. More recently he’s started trying to enforce his trademark by sending a cease-and-desist letter to Reddit, which has a large, active, vocal gay gamer community in the r/gaymers subreddit. If you know anything about Reddit communities, you’ll not be surprised that they’ve rallied to fight against Vizzini’s efforts to shut them down:
The response was immediate. The first option presented was to change the subreddit’s name. Others looked to see if the trademark could even be considered valid, tracking down examples of prior use, one of them dating all the way back to 1991. Also discussed was the possibility of licensing the term for a nominal fee, the downside being that even if Vizzini did accept, it would do nothing to prevent him from pursuing others who used the word “gaymer.”
While the trademark’s description seemed to cover a large portion of Reddit’s “goods and services” (with a few notable differences), the discussion focused on whether or not Vizzini should have been able to trademark what many viewed as a descriptive or generic term.
The stakes were raised again when the Electronic Frontier Foundation (EFF) became an active participant:
And, as if facing the wrath of united redditors wasn’t enough, the EFF has now joined the push to have this trademark cancelled.
[I]n a petition filed with the U.S. Patent and Trademark Office (USPTO) today, the group asks the USPTO to cancel the “gaymer” trademark registration so that people around the world can continue to use the word without interference.
The Electronic Frontier Foundation (EFF) and the law firm Perkins Coie represent the Reddit gaymers — members of the lesbian, gay, bisexual, and transgendered community who have an active interest in video games…
“This registration should never have been granted,” said EFF Intellectual Property Director Corynne McSherry. “Gaymer is a common term that refers to members of this vibrant gaming community, and we are happy to help them fight back and make sure the term goes back to the public domain where it belongs.”
“Trademarks have one primary purpose: to protect consumers from confusion about the source of goods or services,” said EFF Staff Attorney Julie Samuels. “This registration isn’t being used to protect consumers — it’s being used to threaten free speech.”
EFF’s petition cites the same complaints the redditors discussed: that the word “gaymer” is both generic and descriptive and that it predates Vizzini’s application for exclusive use of the term (in relation to the services listed above — there’s also an unrelated Gaymer line of ciders). Whether or not the USPTO will find this argument convincing remains to be seen. Many dubious claims have made their way unscathed through the registration office in years past. The main benefit of this action is it puts the pressure on Vizzini to defend his claim to the term, something he may have no interest in doing.
January 29, 2013
Taking the fight against CCTV surveillance to the streets of Berlin
TechEye looks at the “gamification” of resistance against CCTV surveillance in Berlin:
A group of German activists has come up with an intriguing campaign to counter state surveillance — turning the destruction of CCTV cameras into a game.
Dubbed ‘Camover’, the aim of the game is simple: destroy as many CCTV cameras as possible.
Once your target is destroyed, you can upload a video of the act to YouTube for internet points and kudos. The rules say players should come up with a name starting with ‘command’, ‘brigade’, or ‘cell’, followed by the name of a historical figure, then destroying as many CCTV cameras as possible.
“Video your trail of destruction and post it on the game’s website,” the activists suggest, but warn that the homepage is continuously being shut down. It’s recommended that players conceal their identities, but this is “not essential”.
January 26, 2013
QotD: Libertarianism versus Objectivism
Libertarians are often derided for being unapologetically selfish. I don’t think that’s a fair criticism of libertarian thinking. It is a fair criticism of Randianism/Objectivism. But the two aren’t the same. (I will concede that too many libertarians don’t make enough of an effort to distinguish the two.)
Libertarianism is a philosophy of governing, and only of governing. Ayn Rand’s politics were also her personal creed and ethos. Her political beliefs dictated her taste in art, friends, music, food, and men. I find all of that rather horrifying. One of the main reasons I’m a libertarian is that I loathe politics, and I want politics to play as diminished a role in my day-to-day life as possible. Letting politics dictate my friends, loves, and interests to me sounds like a pretty miserable existence.
When it comes to “the virtue of selfishness” I think the difference between Randianism and libertarianism is best explained this way: Randianism is a celebration of self-interest. Libertarianism is merely the recognition of it.
Radley Balko, “James Buchanan, RIP”, Huffington Post, 2013-01-09
January 25, 2013
Cartman Shrugged
The not-so-hidden libertarian streak in South Park:
The genius of Parker and Stone was to see that in our day a new frontier of comic transgression has opened up because of the phenomenon known as political correctness. Our age may have tried to dispense with the conventional pieties of earlier generations, but it has developed new pieties of its own. They may not look like the traditional pieties, but they are enforced in the same old way, with social pressure and sometimes even legal sanctions punishing people who dare to violate the new taboos. Many of our colleges and universities today have speech codes, which seek to define what can and cannot be said on campus and in particular to prohibit anything that might be interpreted as demeaning someone because of his or her race, religion, gender, disability, and a whole series of other protected categories. Sex may no longer be taboo in our society, but sexism now is. Seinfeld (1989–1998) was perhaps the first mainstream television comedy that systematically violated the new taboos of political correctness. The show repeatedly made fun of contemporary sensitivities about such issues as sexual orientation, ethnic identity, feminism, and disabled people. Seinfeld proved that being politically incorrect can be hilariously funny in today’s moral and intellectual climate, and South Park followed its lead.
[. . .]
This is where libertarianism enters the picture in South Park. The show criticizes political correctness in the name of freedom. That is why Parker and Stone can proclaim themselves equal opportunity satirists: they make fun of the old pieties as well as the new, ridiculing both the right and the left insofar as both seek to restrict freedom. “Cripple Fight” is an excellent example of the balance and evenhandedness of South Park and the way it can offend both ends of the political spectrum. The episode deals in typical South Park fashion with a contemporary controversy, one that has even made it into the courts: whether homosexuals should be allowed to lead Boy Scout troops. The episode makes fun of the old-fashioned types in the town who insist on denying a troop leadership to Big Gay Al (a recurrent character whose name says it all). As it frequently does with the groups it satirizes, South Park, even as it stereotypes homosexuals, displays sympathy for them and their right to live their lives as they see fit. But just as the episode seems to be simply taking the side of those who condemn the Boy Scouts for homophobia, it swerves in an unexpected direction. Standing up for the principle of freedom of association, Big Gay Al himself defends the right of the Boy Scouts to exclude homosexuals. An organization should be able to set up its own rules, and the law should not impose society’s notions of political correctness on a private group. This episode represents South Park at its best — looking at a complicated issue from both sides and coming up with a judicious resolution of the issue. And the principle on which the issue is resolved is freedom. As the episode shows, Big Gay Al should be free to be homosexual, but the Boy Scouts should also be free as an organization to make their own rules and exclude him from a leadership post if they so desire.
This libertarianism makes South Park offensive to the politically correct, for, if applied consistently, it would dismantle the whole apparatus of speech control and thought manipulation that do-gooders have tried to construct to protect their favored minorities. With its support for freedom in all areas of life, libertarianism defies categorization in terms of the standard one-dimensional political spectrum of right and left. In opposition to the collectivist and anticapitalist vision of the left, libertarians reject central planning and want people to be free to pursue their self-interest as they see fit. But in contrast to conservatives, libertarians also oppose social legislation; they generally favor the legalization of drugs and the abolition of all censorship and antipornography laws. Because of the tendency in American political discourse to lump libertarians with conservatives, many commentators on South Park fail to see that it does not criticize all political positions indiscriminately, but actually stakes out a consistent alternative to both liberalism and conservatism with its libertarian philosophy.
January 21, 2013
The civil rights movement as an insurgency
Mark Grimsley explains why the 1960’s civil rights movement should properly be considered an insurgency:
Labeling that movement an insurgency flies in the face of the common perception of what constitutes an insurgency. Three objections spring to mind. One is superficial, though perhaps understandable in the post-9/11 era: Isn’t it outrageous to call the movement an insurgency? Aren’t insurgencies evil? Such a reaction fails to recognize that the term “insurgency” is value-neutral. Insurgents have also fought for noble causes. The United States itself was the product of an insurgency.
The remaining objections are more substantive. First, the movement was nonviolent, so how could it have been an insurgency? After all, even the official U.S. Department of Defense definition of insurgency assumes “armed conflict” as a basic tactic. Second, it is often thought that the civil rights movement received unstinting support from the U.S. government. Popular films such as Mississippi Burning (1988), whose protagonists are Federal Bureau of Investigation agents hell-bent on defeating the Ku Klux Klan, reinforce this interpretation. If so much pressure on segregationist governments emanated from above, then using the term “insurgency” — a challenge to the existing power structure from below — seems preposterous.
These objections, however, hinge on serious misconceptions about the nature of the civil rights movement, about the stance the federal government took toward civil rights, and above all about the scope of the “insurgency” concept. Once these are cleared away, the notion of the movement as an insurgency becomes more plausible. Ultimately, it becomes inescapable.
Typically, groups excluded from power wage wars of insurgency, and Southern blacks certainly fit that description. Before 1965, few blacks in the Deep South could even vote. Nowhere in the South were they able to influence legislation and law enforcement through the normal political process. The civil rights movement attempted to gain access to political power by coercion. Had it been done with guns, no one would hesitate to think of it as an insurgency.
January 20, 2013
Pennsylvania quashes latest terror threat
This story is not taken from the pages of The Onion:
The incident occurred Jan. 10 while the girl was waiting in line for a school bus, said Robin Ficker, the Maryland lawyer retained by the girl’s family. He would not identify the girl or her parents, but gave this version of events:
Talking with a friend, the girl said something to the effect “I’m going to shoot you and I will shoot myself” in reference to the device that shoots out bubbles. The girl did not have the bubble gun with her and has never shot a real gun in her life, Ficker said.
Elementary school officials learned of the conversation and questioned the girls the next day, Fickler said. He said the girl did not have a parent present during the 30 minutes of questioning.
The result, he said, was that the student was labeled a “terrorist threat” and suspended for 10 days, Ficker said. The school also required her to be evaluated by a psychologist, Ficker said.
This designated terrorist is five.
H/T to Dan Mitchell for the link.
We also need to protect our kids from being exposed to bureaucrats who are jaw-droppingly stupid.
Actually, WordPress is telling me that “droppingly” isn’t a word. So maybe instead we should take Instapundit’s advice and reward these idiot officials with some tar and feathers.
And I hope the tattle-tale punk from the bus stop who ratted out the little girls is condemned to some sort of grade-school purgatory featuring never-ending wedgies.
On a more serious note, I hope the parents sue the you-know-what out of the school.
January 10, 2013
Colby Cosh on the rules of hunger striking
A useful guide to those who have a legitimate grievance that can’t be addressed in any other way:
Congratulations! If you are thinking of conducting a hunger strike to advance some very important cause, this guide is for you. Think of it as a sort of Anarchist’s Cookbook for those who intend to stop eating for political purposes. The hunger strike is very nearly the greatest weapon of protest available to the truly powerless. In its potential for non-violently multiplying the revolutionary leverage of a single dedicated person, it is perhaps exceeded only by the act of setting oneself on fire in the public square — a tactic which, it must be admitted, does have a slightly better record of influencing the course of history.
The formal hunger strike is made prestigious by its association with Mohandas K. Gandhi, who (probably uniquely) applied it several times with devastating effect in various contexts. Because hunger strikes have often failed, however, it is worth considering the reasons Gandhi was able to make it work — implicit conditions you should, before you proceed, make sure of your ability to satisfy.
[. . .]
Many of these rules or conditions can be summed up by simply observing that people will not want to believe that you, as a hunger striker, fully intend to die a slow death for your beliefs: the whole point of the exercise is to create a vivid, heartbreaking tableau that is unbearable to contemplate. The corollary is that they will tell themselves anything — that you are crazy; that you are a fanatic; that you are engaged in a ploy for immortality and fame; that you are secretly eating — rather than believe the terrible proposition you are putting forward to them. You had better be in possession of the truth. If not, you should throw down this guide and never return to it.
January 7, 2013
“[N]o person in Canada stands above or outside of the law”
Christie Blatchford on the inability of Canadian police to shut down protests by First Nations groups that violated the law:
Saying “I do not get it,” an Ontario Superior Court judge Monday bemoaned the passivity of Ontario police forces on illegal native barricades and issued a lament for the state of law-and-order in the nation.
“…no person in Canada stands above or outside of the law,” Judge David Brown said in a decision that was alternately bewildered and plaintive.
“Although that principle of the rule of law is simple, at the same time it is fragile. Without Canadians sharing a public expectation of obeying the law, the rule of law will shatter.”
Judge Brown was formally giving his reasons for having granted CN Rail an emergency injunction last Saturday night, when the railway rushed to court when Idle No More protesters blocked the Wymans Road crossing on the main line between Toronto and Montreal.
