Quotulatiousness

November 13, 2012

Michael Geist on Canada’s new copyright law

Filed under: Cancon, Law, Media — Tags: , , , , — Nicholas @ 11:52

If you’re not going to read the entire body of the law (and let’s face it, most of us would rather do just about anything other than that), here’s a thumbnail summary of what the new law says:

The good news is that the law now features a wide range of user-oriented provisions that legalize common activities. For example, time shifting, or the recording of television shows, is now legal under Canadian copyright after years of residing in a grey area. The law also legalizes format shifting, copying for private purposes, and the creation of backup copies. This will prove helpful for those seeking to digitize content, transfer content to portable devices, or create backups to guard against accidental deletion or data loss.

Canadians can also take greater advantage of fair dealing, which allows users to make use of excerpts or other portions of copyright works without the need for permission or payment. The scope of fair dealing has been expanded with the addition of three new purposes: education, satire, and parody.

Fair dealing now covers eight purposes (research, private study, news reporting, criticism, and review comprise the other five). When combined with the Supreme Court of Canada’s recent decisions that emphasized the importance of fair dealing as users’ rights, the law now features considerable flexibility that allows Canadians to make greater use of works without prior permission or fear of liability.

The law also includes a unique user generated content provision that establishes a legal safe harbour for creators of non-commercial user generated content such as remixed music, mashup videos, or home movies with commercial music in the background. The provision is often referred to as the “YouTube exception”, though it is not limited to videos.

October 10, 2012

Defending the rights of the accused (even when the accused are “clearly guilty”)

Filed under: Law, Liberty, USA — Tags: , , , — Nicholas @ 10:41

Ken White doesn’t like the way the criminal justice system is criticized on the basis of “feelings”, rather than the facts. In a recent case that the media has reported on as a travesty of justice, he defends the process by which the decision was reached.

Blogger “Gideon” writes at A Public Defender and is, in fact, a public defender. That is to say, Gideon works every day under lousy conditions, inadequate funding, and impossible odds to provide a vigorous defense to people accused of crimes who can’t afford a lawyer — people who, absent vigorous representation, will be ground up by the system, guilty or innocent. God bless Gideon for that. Gideon has been waging a lonely battle to explain what Fourtin v. Connecticut actually means.

As Gideon explains at length […], prosecutors made the strange and probably incompetent tactical decision to charge Fourtin under an infrequently used subsection of the Connecticut rape statute, a subsection that only applies to sexual assault of someone who is “physically helpless.” What the Supreme Court of Connecticut found was not that “if a severely handicapped person could resist but doesn’t, its not rape.” What the Court found was that this victim — who, though severely handicapped, could move and resist — was not “physically helpless” within the meaning of the statute, which is narrowly confined to people who are “unconscious or for some other reason physically unable to communicate lack of consent.” The Court found that the evidence showed that the victim could communicate lack of consent, and thus wasn’t “physically helpless” under the statute. The Court also repeatedly criticized the prosecutor’s decision to charge the case under this particular statute (rather than, for instance, under another subsection that could have applied because the victim was so mentally impaired that she was “unable to consent to such sexual intercourse”), and failure to offer evidence of state’s latecoming theories under this statute.

I’m outraged that the prosecution made a lousy and seemingly inexplicable call. I’m outraged that someone who sexually assaulted a profoundly handicapped woman goes free because of incompetence. But I’m not outraged that the state has to prove that you’re guilty of the specific crime you’re charged with to put you in prison. That’s fundamental to due process. “Well, hell, he didn’t do what he’s charged with, but he did something else awful” is tyrannical. I’m more afraid of the state’s ability to make it up as they go along in a criminal case than I am of criminals going free. As a criminal defense attorney, I know that it would be impossible to defend clients if the government could throw on their case and then ask the judge to find a statute that fits, instead of charging defendants with a specific crime and then proving that crime. As Gideon points out, the Sixth Amendment gives you the right “to be informed of the nature and cause of the accusation” against you. “You’re a criminal, we’ll figure out what statute you violated after we see how the evidence turns out at trial” is not due process.

October 3, 2012

Sullum: Slandering Muhammad Is Not a Crime

Filed under: Liberty, Media, Religion, USA — Tags: , , , , , — Nicholas @ 09:15

At Reason, Jacob Sullum highlights the good and not-so-good about President Obama’s defence of free speech:

Addressing the U.N. General Assembly last week, President Obama tried to explain this strange attachment that Americans have to freedom of speech. He was handicapped by his attraction to a moral principle whose dangers the journalist Jonathan Rauch presciently highlighted in his 1993 book Kindly Inquisitors: “Thou shalt not hurt others with words.”

During the last few weeks, the widespread, often violent, and sometimes deadly protests against The Innocence of Muslims, a laughably amateurish trailer for a seemingly nonexistent film mocking the prophet Muhammad, have demonstrated the alarming extent to which citizens of Muslim countries, including peaceful moderates as well as violent extremists, embrace this injunction against offending people. “We don’t think that depictions of the prophets are freedom of expression,” a Muslim scholar explained to The New York Times. “We think it is an offense against our rights.”

This notion of rights cannot be reconciled with the classical liberal tradition of free inquiry and free expression. But instead of saying that plainly, Obama delivered a muddled message, mixing a defense of free speech with an implicit endorsement of expectations that threaten to destroy it.

Update: The UN thinks free speech is something that was created by the UN in 1948:

Free speech is a “gift given to us by the [Universal] Declaration of Human Rights,” said Deputy Secretary General of the United Nations Jan Eliasson during a press conference on October 2nd at UN headquarters in New York. It is “a privilege,” Eliasson said, “that we have, which in my view involves also the need for respect, the need to avoid provocations.”

September 29, 2012

Regulating the size of soft drinks won’t solve the obesity problem, but will infringe on individual rights

Filed under: Food, Health, Law, Liberty, USA — Tags: , , , , , — Nicholas @ 10:41

At Reason, Baylen Linnekin explains that even if all the claims about the nutritional evils of sweetened soft drinks are completely true, regulations will not actually make much difference:

As an opponent of increased regulations, I find these latter scientific points noteworthy. But I also believe that even if sugar-sweetened drinks turn out to be virtually everything their opponents claim, people still have a right to buy and drink these beverages — just as much, as I argued in a recent Bloggingheads debate, as they have a right to buy a Big Mac. After all, we don’t have a right to free speech or to travel from one state to another because speech or travel has been proven by the scientific community to promote good health.

But suppose, for the sake of argument, I was to take at face value the assertions of those who claim the NEJM studies justify some combination of sugary drink taxes and bans.

There is still this problem: The solutions these advocates propose won’t likely solve the problem of obesity. For example, studies have suggested taxes will have little or no impact on obesity. And not one person has (to the best of my knowledge) even attempted to argue that soda bans would have any specific impact, either — unless one counts “sending a message” or “creating a debate” as conditions precedent to weight loss.

There is also the issue of a genetic predisposition, which again is one finding of the studies. Many people are genetically predisposed to certain food allergies — including soy, dairy, gluten, nuts, and seafood — and food intolerances. I have never seen a researcher or AP journalist like Marchione argue seriously that the widespread impact of food allergies “adds weight to the push for taxes” on wheat, tofu, and shrimp. Yet if one were to buy the argument of those calling for taxes and bans to combat consumption of sugary drinks in light of the NEJM studies, one would have to accept the idea of taxing society writ large based largely on the outcomes of what these researchers argue is a genetic condition.

September 22, 2012

The “joy” of data-capped, throttled internet access

Filed under: Business, Cancon, Technology — Tags: , , , — Nicholas @ 09:13

Welcome to Canada:

Blogger Stephanie Morrow has complained about data caps in Canada for a while now. The details of her situation show just how hard it can be to get faster internet even if you are willing to pay for it:

    My monthly data cap at the moment is 80 gigs. I pay just over $100 CA for 80 gigs a month, and $2 CA per gig over my cap. Understandably, 80 gigs is not that much, especially if you play multiple games or download a lot of games on Steam, watch Netflix, have a PlayStation 3, Xbox, 3DS, iPad or iPhone like we do. Sadly, there are not a lot of other options. We have two major ISP companies in the city that work this way (there’s no such thing as unlimited here in Canada from these two ISPs), and then there are a handful of smaller ISPs that do offer unlimited but at a greatly reduced speed.

    So, I had to make the sacrifice. Did I want an unlimited cap when I’d barely able to download anything because it would take weeks and weeks, or did I want a cap and be able to download at the speed of light? The cap is a harsh mistress, not to mention that everything peer-to-peer gets throttled. That means no free-to-play games for me because they typically download via a peer-to-peer method that gets throttled. I was unable to do my job while using internet from Rogers, one of the major companies here. I had no choice but to switch to a smaller company or give up my job. I wrote to the companies about this situation but didn’t hear anything back.

That’s a pretty amazing story. I remember the speeds I got when I used another cable company, and I remember just how bad it felt to have to set a game to download overnight. Stephanie goes on to update the situation on her Google + blog, noting that the company she is with is one of the worst throttlers in the country. She quotes TechVibes:

    In 2010, Shaw throttled 14% of users and Bell throttled 16% of users. Rogers? The Toronto-based telco throttled a startling 78% of users, and this number has surpassed 90% during some quarters since 2008.

Again, it can be hard for many of us to imagine having such a limited connection, but I hear from players all the time who have such issues. Is internet access a human right, as declared by the United Nations? Do players have a right to the internet, even if they are using the connection mainly for gaming? I’d have to say yes simply because there are so many common advantages that come with internet access, access that provides information not only about one’s social network but local weather problems, health issues… the list goes on and on. The internet is now so much a part of our lives that we forget just how much we need it.

It’s a very rare month that I don’t get a bandwidth warning from Rogers…

August 21, 2012

The 21st century equivalent to the enclosure movement

Filed under: Africa, Americas, Asia, Government, Liberty — Tags: , , , , — Nicholas @ 10:07

Joseph R. Stromberg reviews The Land Grabbers: The New Fight over Who Owns the Earth, by Fred Pearce.

The Land Grabbers is a wonderful primer on the newest manifestations of an ancient form of plunder: the seizure of other people’s resources and destruction of their livelihoods. The author, Fred Pearce, is a well-established British environmental journalist. Here he surveys the ongoing alienation of allegedly “unused” or “underused” land in Africa, Latin America, East Asia, Russia, Ukraine, Georgia, Australia, and elsewhere at the hands of international corporations, both private and state-owned. Politicians in the affected countries are key partners in operations that resemble the late-19th-century scramble for control of Africa. The land grabs aim at enriching privileged companies and their political allies, usually at the expense of those already on the land. States, companies, and their frequent close friend, the World Bank, see no reason to respect sitting owners and resource users, whatever their rights under customary law and (sometimes) postcolonial statutes. Pastoral nomads get even less respect. In Tanzania, for example, governments and safari capitalists have reduced the traditional grazing lands of the Maasai herdsmen to a fraction of what they were. And in Ethiopia, the government’s “villagization” policy, Pearce writes, resettles peasant farmers “in the manner of Stalin, Mao, and Pol Pot,” clearing the way for deals with foreign capital.

Where agriculture is concerned, the effort goes forth under an ideology that claims that only industrial-scale farming, modeled on subsidized American agribusiness, can feed the world. The ideologues in question include John Beddington, chief UK government scientist; Paul Collier, former research head at the World Bank; and Richard Ferguson of the investment company Renaissance Capital, who hopes to see “industrial-sized farms of a million hectares.” To realize that vision, smallholders, hunters, gatherers, and pastoralists must get out of the way and submit themselves to wage-labor, wherever they find it. The ideology goes hand in hand with the form of globalization that relies on the power of the United States and some associated countries to dictate the contours of world trade. While the U.S. has toppled states seen as hostile to American business interests (as in Guatemala in 1954), today’s methods are often more subtle. They include USAID programs, American domination of World Bank policies, and a web of treaty obligations, especially international investment agreements.

Pearce is an environmentalist, but his book is not especially ideological. He’s more interested in presenting data. Wherever possible he has figures for acreage (or hectares) and tells us who did what to whom and where. He also faults wealthy environmental idealists and NGOs, noting that their parks and preserves can displace local people and their property, just like commercial hunting preserves, sugar plantations, logging operations, and the rest can.

August 17, 2012

The police war on photographers and videographers: the Canadian front

Filed under: Cancon, Law, Liberty — Tags: , , — Nicholas @ 08:44

Karen Selick in the National Post confirming that Canadian police are also under the impression that their work cannot legally be photographed:

What have cops got against cameras these days? Increasingly, people are getting arrested, charged or even assaulted by police officers, merely for attempting to take photos or videos of officers at work. Often, police simply command people to stop photographing. Scared into thinking they must be breaking some law, citizens comply.

When Polish visitor Robert Dziekanski died after being tasered at the Vancouver airport in 2007, police seized the now famous video made by witness Paul Pritchard, who had to hire a lawyer and threaten court proceedings to get it back.

[. . .]

There is no law in Canada that prohibits people from openly photographing police. Section 129 of the Criminal Code prohibits “wilfully obstructing” police in the execution of their duty, but it is hard to imagine how standing by peacefully and videotaping as police searched the premises and piled up items for seizure could be considered obstructing. After all, the police themselves were videotaping on Ms. Jones’ premises — but selectively. They probably didn’t capture themselves ordering her friend to refrain from taking the pictures she was legally entitled to take.

That same day, three other search warrants were executed at the homes of other individuals the CFIA suspects of conspiring with Ms. Jones to save her healthy sheep. At Michael Schmidt’s residence, all cell phones were immediately confiscated. When a visitor from outside arrived with his cell phone, Schmidt’s wife borrowed it and took photos of police inside her home. Officers seized the phone even though it was clearly outside the scope of the warrant. They returned it three hours later, with the photos erased. When the victim of this apparently illegal seizure objected, police responded, “We can do whatever we want.” But of course, that arrogant response was not permitted to be recorded.

[. . .]

Police must be made to understand that being on duty or executing a search warrant does not transform an officer into a petty dictator with carte blanche to issue arbitrary orders to everyone in sight. Police cannot do “whatever they want.” Citizens have the right to hold them accountable for their actions. Personal cameras are important tools in implementing that right. Bullying people out of using them must cease.

August 15, 2012

Canadian liberty, 1776-2012

Filed under: Cancon, History, Liberty, USA — Tags: , , , , — Nicholas @ 09:32

F.H. Buckley has an interesting article in the National Post, comparing the American and Canadian “flavours” of liberty from the American Revolution down to today:

The Fathers of Confederation had seen the American constitution close up and didn’t want any part of it. They didn’t foresee just how we’d turn out. Overall, however, our good fortune would not have surprised them, for they knew that they were founding a free country.

On reading the Confederation debates, one is struck by how the Fathers insisted that we had real liberty in Canada, more so even than Americans. That comes as a bit of a shock, as we had thought that Americans had property rights in liberty. They owned it, and on occasion were kind enough to try to export it to lesser countries, as they did 200 years ago in the War of 1812 (where they came in a very strong second).

[. . .]

When McGee and the other Fathers looked south, they saw a country with more of Constant’s liberty of the ancients but less of the liberty of the moderns. Moreover, of the former, the right of self-government had been corrupted by political machines and trivialized by elections for dogcatchers. The high ideals of the American Founders had been forgotten, and their republican virtue was now, in the era of Boss Tweed and Jay Gould, little more than American braggadocio. As for the liberty of the moderns, there was that little matter of slavery and its aftermath. True, Americans could express themselves through lynch-parties, but that was the kind of liberty the Canadians did not want.

Many of the differences between the two countries remain, but Canadians no longer have more of the liberty of the moderns than Americans. In both countries, benign neglect has been replaced by the bureaucrat’s officious nudges, giving us ugly light bulbs, toilets that don’t flush and idiotic playground rules. Could one have predicted this 25 years ago? I think not. Back then I had legal scholar Cass Sunstein over for dinner. Until a few days ago he was Obama’s regulatory czar, and over dinner in 1987 he predicted how the regulatory state would expand, in the name of risk reduction. “Americans won’t stand for this,” my wife told him. They prize their freedom too much. “Ah, but we’ll change their preferences,” he replied. And he was right.

August 13, 2012

PQ promises to “strengthen” language laws in Quebec

Filed under: Cancon, Law, Liberty — Tags: , , , , , — Nicholas @ 14:31

It’s mind-blowing that a minority in Canada are legally oppressed by their provincial government, but in Quebec, it’s just language business as usual. The opposition Parti Quebecois, who brought in the language law in question, are promising to make it even more oppressive to non-French-speaking Quebecers:

It’s an easy political move for Marois. It will appeal to her separatist base and thoroughly annoy the anglophones … which will also appeal to the base. And given that the stated intention of her party is to go pick fights with Ottawa and drive a wedge between Quebec and the Rest of Canada, it’s a good plan. Language politics are always hot-button issues in Quebec, and Marois is pushing those buttons gleefully.

But it is interesting to note her position on the issue. Marois holds that the Liberals, under Premier Jean Charest, have not done enough to promote the French language in Quebec. From the perspective of the PQ, that’s almost certainly true. But Bill 101 is a creation of the Parti Quebecois. The provincial Liberals have certainly left it intact and haven’t dared to try and strengthen it, but fundamentally, Bill 101 is a PQ law. If it isn’t working, that’s not Premier Charest’s fault.

The bigger issue, of course, is that such a law already exists. Uninformed citizens in the Rest of Canada would be rightly horrified to learn that such a bizarre, anti-democratic law exists in their country at all. Bill 101′s intrusions into the private interactions of businesses and the decisions of individual families are justified as being necessary by Quebec nationalists to preserve the primacy of French in Quebec, but to anyone who is not a language warrior, seem more like a cross between a French tutor and a Orwellian nightmare.

Of course, tougher laws will still not accomplish the intended task: forcing everyone in Quebec to speak French at all times.

August 10, 2012

Drink some rainwater, go to jail

Filed under: Environment, Law, Liberty, USA — Tags: , , , — Nicholas @ 11:09

A 1925 law still applies in Oregon:

You just can’t make this stuff up. A man in Oregon is currently in jail serving a thirty day term – along with a $1500 fine – for collecting rainwater and snow melt on his own property for drinking and household use. You think I’m kidding? I’m not.

    Gary Harrington, the Oregon man convicted of collecting rainwater and snow runoff on his rural property surrendered Wednesday morning to begin serving his 30-day, jail sentence in Medford, Ore.

    “I’m sacrificing my liberty so we can stand up as a country and stand for our liberty,” Harrington told a small crowd of people gathered outside of the Jackson County (Ore.) Jail.

H/T to Jon, my former virtual landlord, who said “This is just a little weird […] But does the fact that I can see the point of the law — preventing people from messing with a watershed area, I guess — mean that I’ve consumed the nanny state kool-aid?”.

June 26, 2012

The “Draft Andrew Coyne” movement

Filed under: Cancon, Liberty, Media, Politics — Tags: , , , , , , , — Nicholas @ 10:49

I’ve met Andrew Coyne. We had a pleasant chat about political matters a few years ago (although I was one of dozens of Toronto-area bloggers he talked with that night: I doubt he remembers me). I often agree with his writings (and even when I don’t, he’s usually quotable). But how would he fare as a candidate for the Liberal leadership? Abacus ran the numbers:

Nationally, most Canadians told us they didn’t know enough about Mr. Coyne to say whether they had a favourable or unfavourable impression of him. Sixty-four percent were not sure of their opinion while 15% said they had a favourable impression while 21% had an unfavourable impression. Unfortunately for Mr. Coyne, the percentage of respondents who had “very unfavourable” was higher than those who had a “very favourable” impression of him (9% very unfavourable vs. 3% very favourable).

Nonetheless, there are “pockets” of Coynemania out there.

  • Men are slightly more likely to have a favourable impression of him than women (men 18% favourable, women 12% – women were also much more likely to be unsure).
  • There was no significant age difference although older Canadians (no surprisingly) were more likely to be aware of Mr. Coyne.
  • Regionally, he is more popular in Manitoba and Saskatchewan (25% favourable) than in other regions of the country. He is a tough sell in Quebec where his favourable rating is a mere 8%.
  • Considering his occupation and the audience likely to read and watch him, it is no surprise that respondents with a university degree were most aware and favourable to Mr. Coyne. 24% of those with a bachelor’s degree and 29% of those with a post-graduate degree had a favourable impression of the National Post columnist.
  • He is also more likely to be viewed favourably by those who live in urban communities (urban 18% favourable, suburban 13% favourable, rural 12% favourable).
  • Mr. Coyne is also viewed more favourable by those who own stocks, bonds, or mutual funds: 20% favourable vs. 10% among those who don’t own those kinds of investments.
  • Finally, there isn’t a significant partisan difference. Those who voted Liberal in 2011 are only slightly more likely to view him positively than NDP and CPC voters but the differences are marginal. He is a post-partisan candidate!

I don’t know if he’s actually interested in a political career, but he’d at least be a different kind of candidate than the Liberals have had in decades. I’ve never voted Liberal in my life, but I could imagine voting for a Liberal if Andrew Coyne was the Liberal leader. He appears to actually believe in smaller government and free markets — which is why he’d never be able to run as a Conservative. He’s on the record as being almost libertarian in his views on individual rights (especially on Nanny State issues) — which is why he couldn’t run as a New Democrat.

It’s not clear whether there are any members of today’s Liberal Party of Canada who could cope with a classical liberal as leader. But it would create a viable third choice in federal politics: that’s worth a lot in my books.

Update: There’s a Twitter hashtag for the movement: #coyne4lpc, and Jesse Helmer points out that there’s a Facebook group, too:

Update, the second: Apparently Andrew Coyne is getting into the swing of being a big-time politician, having already fired his first campaign manager:

June 14, 2012

The Commerce Clause: how it evolved to empower government control of everything

Filed under: History, Law, Liberty, USA — Tags: , , , — Nicholas @ 09:36

U.S. District Judge Roger Vinson ruled that because the Patient Protection and Affordable Care Act’s individual mandate to purchase health insurance is unconstitutional, the entire law “must be declared void.” Judge Vinson cites this Reason.tv video on page 47 of his decision.

June 7, 2012

“What’s next? Prosecutions before military tribunals in the U.S.?”

Filed under: Government, Liberty, Military, USA — Tags: , , , , — Nicholas @ 10:57

Judge Andrew Napolitano on the lack of outrage over the use of military drones within the borders of the United States (and, in all probability, Canada):

When drones take pictures of us on our private property and in our homes, and the government uses the photos as it wishes, what will we do about it? Jefferson understood that when the government assaults our privacy and dignity, it is the moral equivalent of violence against us. The folks who hear about this, who either laugh or groan, cannot find it humorous or boring that their every move will be monitored and photographed by the government.

Don’t believe me that this is coming? The photos that the drones will take may be retained and used or even distributed to others in the government so long as the “recipient is reasonably perceived to have a specific, lawful governmental function” in requiring them. And for the first time since the Civil War, the federal government will deploy military personnel inside the United States and publicly acknowledge that it is deploying them “to collect information about U.S. persons.”

It gets worse. If the military personnel see something of interest from a drone, they may apply to a military judge or “military commander” for permission to conduct a physical search of the private property that intrigues them. And, any “incidentally acquired information” can be retained or turned over to local law enforcement. What’s next? Prosecutions before military tribunals in the U.S.?

The quoted phrases above are extracted from a now-public 30-page memorandum issued by President Obama’s Secretary of the Air Force on April 23, 2012. The purpose of the memorandum is stated as “balancing…obtaining intelligence information…and protecting individual rights guaranteed by the U.S. Constitution…” Note the primacy of intelligence gathering over freedom protection, and note the peculiar use of the word “balancing.”

May 27, 2012

Ron Paul’s Ten Principles of a Free Society

Filed under: Liberty, Politics, USA — Tags: , , — Nicholas @ 11:03

From Ron Paul’s book Liberty Defined, posted at The Daily Paul:

  1. Rights belong to individuals, not groups; they derive from our nature and can neither be granted nor taken away by government.
  2. All peaceful, voluntary economic and social associations are permitted; consent is the basis of the social and economic order.
  3. Justly acquired property is privately owned by individuals and voluntary groups, and this ownership cannot be arbitrarily voided by governments.
  4. Government may not redistribute private wealth or grant special privileges to any individual or group.
  5. Individuals are responsible for their own actions; government cannot and should not protect us from ourselves.
  6. Government may not claim the monopoly over a people’s money and governments must never engage in official counterfeiting, even in the name of macroeconomic stability.
  7. Aggressive wars, even when called preventative, and even when they pertain only to trade relations, are forbidden.
  8. Jury nullification, that is, the right of jurors to judge the law as well as the facts, is a right of the people and the courtroom norm.
  9. All forms of involuntary servitude are prohibited, not only slavery but also conscription, forced association, and forced welfare distribution.
  10. Government must obey the law that it expects other people to obey and thereby must never use force to mold behavior, manipulate social outcomes, manage the economy, or tell other countries how to behave.

May 6, 2012

The free speech baby with the Citizens United bathwater

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

George Will on the rather impressive sweep of a new proposal to circumvent the US Supreme Court’s decision in Citizens United:

Now comes Rep. Jim McGovern, D-Mass., with a comparable contribution to another debate, the one concerning government regulation of political speech. Joined by Minority Leader Nancy Pelosi, 26 other Democrats and one Republican, he proposes a constitutional amendment to radically contract First Amendment protections. His purpose is to vastly expand government’s power — i.e., the power of incumbent legislators — to write laws regulating, rationing or even proscribing speech in elections that determine the composition of the legislature and the rest of the government. McGovern’s proposal vindicates those who say most campaign-finance “reforms” are incompatible with the First Amendment.

His “People’s Rights Amendment” declares that the Constitution protects only the rights of “natural persons,” not such persons organized in corporations, and that Congress can impose on corporations whatever restrictions Congress deems “reasonable.” His amendment says it shall not be construed “to limit the people’s rights of freedom of speech, freedom of the press, free exercise of religion, freedom of association and all such other rights of the people, which rights are inalienable.” But the amendment is explicitly designed to deny such rights to natural persons who, exercising their First Amendment right to freedom of association, come together in corporate entities to speak in concert.

McGovern stresses that his amendment decrees that “all corporate entities — for-profit and nonprofit alike” have no constitutional rights. So Congress — and state legislatures and local governments — could regulate to the point of proscription political speech, or any other speech, by the Sierra Club, the National Rifle Association, NARAL Pro-Choice America, or any of the other tens of thousands of nonprofit corporate advocacy groups, including political parties and campaign committees.

Newspapers, magazines, broadcasting entities, online journalism operations — and most religious institutions — are corporate entities. McGovern’s amendment would strip them of all constitutional rights. By doing so, the amendment would empower the government to do much more than proscribe speech. Ilya Somin of George Mason University Law School, writing for the Volokh Conspiracy blog, notes that government, unleashed by McGovern’s amendment, could regulate religious practices at most houses of worship, conduct whatever searches it wants, reasonable or not, of corporate entities, and seize corporate-owned property for whatever it deems public uses — without paying compensation. Yes, McGovern’s scythe would mow down the Fourth and Fifth Amendments, as well as the First.

« Newer Posts — Older Posts »

Powered by WordPress