Some Thoughts on Chait PC Piece

Twitter is predictably a-twitter with Jonathan Chait's latest in New York magazine on the scourge of political correctness.

It's an okay piece, as far as it goes. To generalize social media reaction: the Right is embracing it, the Left is annoyed. My reaction is: 4,700 words, really?

Chait conflates the censorious atmosphere and decisionmaking on many college campuses with the hyperbolic outrage that thrives in social media. He throws a lot of words trying to make them the same similar, but they're not.

Mute buttons, unfollows, blocks--these are all effective, defensive weapons at the disposal of any would-be commentator on social media. Yes, yes, the Left gets in a tizzy with trigger warnings (which are fine, generally, but can be taken well beyond their practical utility) and oversensitivity to comments about sexual, gender, ethnic or other differences. Sometimes they're justified, sometimes they just need to chill out. This is all true.

But say something about abortion rights or guns or God or whatever, and the Right does the same thing.

Self-righteous indignation about core values that others don't share is just how this whole social media thing works. It is at once the most democratic space and freest marketplace of ideas available. And it's extraordinarily messy.

Colleges that allow threats and intimidation of those who speak freely are curbing speech and they should be held accountable, but the general state of how colleges are run--from speech codes to rape investigations to how they invest their endowments--is a broader topic that I can't wade into here. Suffice it to say, caving to pressure to cancel a guest lecture is not a threat to free speech, broadly defined, and shouldn't be counted in the same category.

I assume some on the Right are embracing Chait's piece because they feel attacked and defensive about what they say and don't like being shouted down.

I could not care less.

The possibility of getting shouted-down is the one surviving, legitimate cost of coming into the public forum. So long as opponents are not banning books and using the government to silence or intimidate people--or tolerating violence or criminal harassment--it's their right. Indeed, the voting-with-your-feet/wallet is the entire premise of social interaction that libertarians say should guide the various decisions one makes in one's life. Don't like it? Turn it off!

There is a sense that self-selected social and traditional media consumption will make our (putatively) pluralistic society more fractured and segmented politically. Certainly, the decline of CNN and rises of more polarized media like MSNBC and Fox support this. I don't know if that's good or bad, or what the long term consequences of it will be on our political system--more gridlock and space between the major parties certainly seem likely--but this is what we all said we wanted: freedom (Right), democracy (Left), and the free exchange of ideas (libertarian).

No one said it was going to be pretty.

bellum medicamenti delenda est

UPDATE: A colleague suggested a fairer reading would say Chait was not so much feeling victimized here as he was calling for a discursive norm to reestablish itself on the political Left. I don't disagree with that, as I ascribed possible victimhood to some of the more pugnacious writers of the Right who have shared it approvingly, but I think my point holds. Lecturing the Internet on how we deal with each other is likely to have the same effect as talking at a wall.

The Internet is vast and there will always be shrill commentators on all sides. I don't find this quality particularly dangerous on the web, as social norms and associations will shift as practices either change or endure. I find Chait's piece mostly harmless, but the discursive equivalent of a longread about the crassness of blue jeans.

Bill Maher's Noble Attempt to 'Corrupt' Democracy

According to the New York Times, longtime comedian, talk show host, and Citizens United critic Bill Maher has decided he wants to enter “into the exciting world of outright meddling with the political process.” His plan, apparently, is to pick a ridiculous member of Congress who faces a competitive race in the coming November election…and make him or her lose.

Personally, I think this may be the noblest pursuit ever undertaken by a talking head—unseating incumbent politicians is something to which all Americans can and should aspire. Mr. Maher has the cachet, financial resources, and—it’s been said—humor to literally ridicule someone out of office. Ain’t democracy grand?

The project — which the show is calling the “flip the district” campaign — is intended to get real results, said Scott Carter, the show’s executive producer. Among the criteria for selecting a representative, other than some degree of outrageousness in statements or voting record, is that the member be in a truly competitive race. Those running unopposed will not be selected, no matter how egregious the show’s fans may claim them to be.

There is one small problem, however. Mr. Maher wants to unseat this unlucky representative of the people by using his television show and stand-up act as a platform to run his anti-whomever campaign. Even though he has pledged no money or direct coordination with the challenger-beneficiary of his actions, his independent expenditures—implicitly linked to the corporation he works for, Time Warner’s HBO, by the explicit participation of his show’s executive producer and the presumed use of the show’s budget—necessarily implicate corruption.

A Belated Response to Tim Lee and American Free Enterprise v. Bennett

I've been traveling the past three weekends and thus been too busy during the week to keep up with all my reading. I only just read my friend Tim Lee's  take on Arizona Free Enterprise v. Bennett, the most recent campaign finance case before SCOTUS. I respectfully disagree with him and would like to explain why here.

Some set-up to Tim's argument:

Let’s start by reviewing the broader campaign finance debate, and especially the arguments in Citizens United. Advocates of regulation argued that “independent expenditures”—that is spending on political speech by people unconnected to any campaign—were a grave threat to the integrity of the democratic process. They warned that a wealthy interest group could walk into the offices of a member of Congress and threaten that if the member didn’t vote the way the group wanted, the group would pour millions of dollars into negative ads in the member’s district. Faced with a threat to his political survival, the member will be forced to do what the interest group wants.

First Amendment zealots like me had two responses. First, running ads praising or criticizing a candidate in the weeks before an election is precisely the kind of “core” political speech the First Amendment is supposed to protect. Therefore, we’d better have an extremely solid reason for restricting such speech.

Second: if it were really true that elections were decided based on which candidate had the most spent on his behalf, this would be a pretty strong argument for regulating independent expenditures. But fortunately, voters are not mindless automatons. They evaluate the messages being presented to them and compare them with elected officials’ records in office. An incumbent with a good record will find his ads reach a receptive audience. Conversely, an interest group whose agenda is broadly unpopular with voters is going to have a harder time using ads to reduce the candidate’s poll numbers.

Relatedly, as Meg Whitman recently learned, advertising dollars are subject to diminishing returns. If the average voter sees candidate A’s ad 10 times and candidate B’ ad only once, that’s likely to give candidate A a sizable advantage. But if the average voter sees candidate A’s ad 1000 times and candidate B’s ad only 100 times, the gap is unlikely to matter. Indeed, some voters might get so tired of seeing candidate A’s ads that they vote for candidate B out of spite.

I'm with him all the way up to the Whitman reference. Whitman's doomed gubernatorial run was plagued with more problems than money could solve--and she didn't have the advantage of name recognition that a former governor (and governor's son) has. Add to that, she was a Republican following an unpopular Republican governor in the midst of a national and state-wide budget calamities...in a famously Democrat-friendly state. Furthermore, as such a visible candidate of one of the most important states in the Union, she was targeted by powerful and experienced advocacy and activist groups who knew how to spend money more wisely than her campaign did. In short, that a lot of money didn't help her doesn't mean the general ability to spend it freely is not important to a candidacy or idea.

Regardless, the Whitman example is one of a predominantly self-financed campaign and doesn't address the role of fundraising in a political campaign. In a campaign, money acts as more than just candidate's speech--it is a signal of political viability of the candidate and, more importantly, is the material product of the speech of his donors. Ron Paul has shown that fundraising doesn't guarantee electoral victory--but it is very effective if you're trying to get a particular message out to people who haven't been exposed to it. Ron Paul made a national name for himself in large part because of the money he raised and then the use of that money on the campaign. A publicly balanced system neutralizes the power of those donations.

People who donated to Ron Paul didn't want to give Sam Brownback or Mike Huckabee a platform: they wanted to say that the Paul brand of limited government is something they supported and wanted explicated to a wider audience. Matching funds, the issue in the present case, would neuter the voices of those people in favor of the status quo in the name of "more speech."(N.B.: I'm using a national figure for illustrative purposes. The AZ state law never would have effected national office.)

Take a more local hypothetical: say there is an open at-large county council seat. There is one private candidate who supports allowing medical cannabis dispensaries in the county and three public candidates who expressly do not. Under the matching funds provision, if Candidate A is supported by people who really want to license a dispensary, public financing triples his opposition without candidates B, C, and D lifting a finger to solicit it. It isn't as if Candidate A was going to have an easy go of it anyway, but now any decided advantage he may have had as a fundraiser is eliminated. As a county council seat, the media deluge that is commonplace to the governorship of California or the United States presidency is absolutely not going to occur so he is unlikely to experience the diminishing returns Tim referenced in Whitman's race--and Candidate A is battling against three times the competition she was. Adding insult to injury, B,C, and D are each using the money he campaigned for against him. Ironically, those who oppose his plan can donate to his campaign to effectively triple their money in opposition. (I fully grant that candidate A could win because the anti-cannabis vote is divided, but in this hypothetical it's certainly not an assumption that he would.)

As this demonstrates, matching funds are as likely, if not more so, to support the status quo--in a voting system that already overwhelmingly favors incumbents. Moreover, the use of matching funds is just another way the state can decide who gets to say what in an election. (Most of the electoral systems in the country have been set up to protect the duopoly of the major parties by crowding out third party or independent challengers, but that's another entire blogpost in itself.) It's hard to understand how a libertarian--or even a liberaltarian--could think of this as liberty-friendly.

And then we get to the constitutionality of the matter--which Tim concedes, sort of:

Obviously, a candidate isn’t going to want his opponent to get a larger public subsidy, and so at the margin it does provide some disincentive to campaign spending.

[...]

Here [unlike Citizens United], the “punishment” is much more indirect and indeed its status as a punishment is somewhat speculative. So First Amendment scrutiny is called for, but the justification probably doesn’t need to be as compelling as you’d need to justify direct censorship.

Government providing "some disincentive" to exercising free speech is akin to saying a man got a woman "a little pregnant."

If we're talking about a marginal candidate--or, more to the point, a candidate with heretofore marginalized ideas who has managed to earn the respect, trust, and money of enough supporters who want to give him a platform--that disincentive can prove most chilling. If every dollar given to Ron Paul is a government dollar to each of three or more mainstream candidates when spent, the mainstream candidates are granted government support to further marginalize him. If Paul supporters understand that their donations will trigger 1:1 financing to each member of the field of GOP candidates, their incentive to support him is greatly diminished. That is a chill on expressly political speech and thus cannot withstand the strict scrutiny test required for acceptable regulation of speech at any level of government.

Tim continues:

Second, the degree to which having your opponent subsidized will be perceived as a “punishment” greatly depends on the circumstances. If the privately candidate is handsome and charismatic with an impressive record, while the publicly-financed incumbent is a politically tone-deaf hack with a long record of corruption and incompetence, then the challenger might welcome his opponent having more money to spend putting his ugly mug on TV. Similarly, if an independent organization is running ads in order to get candidates to talk more about its pet issue, it might not care at all about whether its spending causes certain candidates to get more money in the process.

A donation to a candidate is a private individual's voice of positive support for a particular person. Matching that donation with public money changes the effect of that donation to supporting political speech generally--or, at least, speech among the state-approved candidates. Such a change perverts the essential component of that speech: explicit support with intent to provide material advantage.

Tim concludes:

Finally, the state’s interest in reducing corruption seems pretty compelling. Not compelling enough to justify censorship, but strong enough to justify a system of subsidies that creates a mild disincentive to private spending on political speech.

For actual political corruption, we have a justice system. A nebulous 'appearance of corruption' (as noted in the parties' briefs and page 26 of the majority opinion) is not a compelling justification to chill the speech of political contributors or candidates.

I understand and agree with Tim's underlying principle: more speech--and specifically more free speech--is a good thing. But the present case isn't free speech: it is a state-sanctioned balance of speech that comes at the direct cost of individual speech. Individual political contributions are not value-neutral and their use by a candidate should not render them such by way of matching funds to the candidates' opponents. Such distortion of political speech by government action is bad policy and wholly incompatible with the First Amendment.

bellum medicamenti delenda est

NSLs and You

The lastest video from Cato's multimedia department deals with National Security Letters and the egregious lengths the FBI has gone through (and probably continues to) to exercise unprecedented administrative subpoena power. The subsequent gag orders to render them unchallengeable is maddening.




That these letters exist is problematic in itself; that the documented, widespread abuse of them went generally unnoticed outside of the Beltway (and the telecommunications industry) is scandalous.

bellum medicamenti delenda est

Mood Music Monday: Hysterical Fears Edition

I am not going to comment too much on the assassination attempt in Tuscon over the weekend, but the reaction to it has been predictably ugly. Suffice it to say that the blame placed on the Right--namely Sarah Palin and Glenn Beck--for this, directly or implicitly, is irresponsible and serves no purpose other than political point-scoring at the expense of free speech.

American politics is full of harsh rhetoric, as it has been and will continue to be. There are already calls to institute speech restrictions -- which will do no good whatsoever other than to quash dissent. It's already illegal to threaten the life of a congressman, or anyone for that matter, as well it should be--but saying "we're targeting this senator this election" is no more a threat than printing that senator's face on toilet paper. The time we live in certainly isn't the nadir of American political discourse--though the number of times this country has been goaded into pointless wars makes a singular nadir hard to pinpoint--but let's not pretend we've lost some sort of bygone civility from more genteel times.

The histrionics coming from the Left are unsubstantiated and unhelpful. It's just their most recent attempt at fear-mongering: the cheap and effective political technique used by pols of all stripes that requires little or no resemblance to reality whatsoever. And as Adam Serwer noted, the Republicans would, in all likelihood, engage in the same if Rep. Giffords were a Republican or the assailant was Muslim, Arab, or an immigrant. But that doesn't make the Left's behavior any less despicable--it just proves they are as boorish and loathsome as their counterparts.

Anyway, in the spirit of using media to create bogeymen and incite irrational fears of those whom you disagree, my MMM for this week is the man responsible for everything bad that happened to kids in the late 1990s:



It's the edited version, I still doubt it's "safe" for work. And yes, I just compared Glenn Beck and Sarah Palin to Marilyn Manson.

bellum medicamenti delenda est

Update: OH FOR GOD'S SAKE:  Some are actually blaming the music: "It's a sign of the shifting culture wars that little attention has been paid to Drowning Pool since the Arizona shooting on Saturday."

Too Much of a Good Thing?

Adam Serwer takes exception to Dave Weigel's belief that the Dems' latest bugaboo--funding for the Chamber of Commerce--basically boils down to the message "foreign = bad."

I'm not on the SCARY FOREIGN MONEY train, but like Antonin frickin' Scalia, I think democracy works best when people are publicly accountable for their political speech, that anonymity under these circumstances undermines civic responsibility, and that the First Amendment protects your freedom to speak and doesn't confer a freedom not to be criticized, particularly if you're an individual with the means to spend millions to swing the outcome of a political contest. Who is saying something, and who is paying them to say it, matters.

I wonder how far Serwer thinks this 'transparency' should go. Where is the line--by which I mean legal standard--drawn?  Is it just particularly widespread or effective political speech? What if IOZ becomes insanely popular, a la Glenn Beck, and launches effective rants against a candidate? Should we then compel him to reveal himself and all his sources of income? I don't think so.

There is nothing in the Constitution that requires, or even suggests, that people should reveal their identities when engaging in political speech.

Indeed, the suggestion that they should would have been rather odd coming from that Publius guy.

Look, I'm all for government transparency and we need a lot more of it.  Freedom of speech is one of our most cherished rights and disclosure requirements can act as a preemptive chill on speakers. Despite the opinions of Mr. Serwer and Justice Scalia, our democracy has worked just fine when we don't know exactly who is saying what. Speech should be judged for its content and not necessarily for the identities of its speakers.

Situational Constitutionalism: Jurisdiction of Federal Judiciary

Predictably--and certainly not without warrant--the Left is now attacking last night's GOP victor for Kentucky's vacated Senate seat, Rand (son of Ron) Paul. One of the sticking points, as explained by TAP's Adam Serwer, is Paul's desire to restrict the federal judiciary from hearing abortion cases:

He also wants to offer legislation "restricting federal courts from hearing cases like Roe v. Wade."

Yeah, that sounds constitutional.

Unfortunately, it very well may be.

Article III, Section 2 of the Constitution clearly states:

The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;--to all cases affecting ambassadors, other public ministers and consuls;--to all cases of admiralty and maritime jurisdiction;--to controversies to which the United States shall be a party;--to controversies between two or more states;--between a state and citizens of another state;--between citizens of different states;--between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects.


In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make. (emphasis added)

Whether we like it or not--and I, for one, don't--Congress's authority to limit federal jurisdiction is explicit in the text of the Constitution and thus has the full force of law. Though the "least dangerous branch" of our federal system, the Judiciary is nevertheless limited by a hefty Congressional check on its authority.

That Congress has not often acted to reduce the scope of federal jurisdiction is a testament to the reverence our system typically pays to the Judiciary. But no less important is the political cost that any Congress would be forced to pay if it overstepped its conventional prerogatives, even if they acted within their legal capacity. Between the political pressure and the sort of gentlemen's agreement between Congress and the Court, unpopular SCOTUS decisions tend to be sustained, or contravened only at the margins. This is certainly not the most secure way to maintain the Court's independence--trusting politicians to be responsible--but it seems to be enough to be a large enough counterweight to aggressive overreach when combined with Congressional electoral self-interest.

I engaged Mr. Serwer on this issue before and after my lunch break, and at one point he wrote:

[I]t would make the bill of rights irrelevant if you could strip the court's authority to review cases involving them

This is not actually true. The Court has ruled that where it has original jurisdiction and explicit (enumerated) authority is not within the power of Congress to restrict. Certainly, the Bill of Rights (or any other explicit power or protection in the Constitution) qualifies by its very existence.  Emanations and penumbras? Well...not so much.

The point is, the Constitution means what it says. We can disagree about some of the more ambiguous passages, but we can't just ignore the plain text when the implications give us pause. To do so is the hypocrisy I refer to as "situational constitutionalism."  We can't just toss aside parts we don't agree with because they may lead to policies we don't like--whether they involve right to counsel, habeas corpus, or jury trials for suspected terrorists, or First Amendment expression by third parties in election campaigns. Conversely, we can't just pretend limits don't exist to implement policies we might like, such as federally protected abortion access, eminent domain for revitalization/rezoning projects, or health insurance mandates. All these exceptions are proposed, for the most part, with good intent. But good intent doesn't trump the Constitution any more than bad policy outcomes do. Everybody has a reason why they want to skirt the Constitution--but if we always ignore it for reasons we think important, then the limits placed by the document cease to mean anything once our political adversaries take power. (Or, in the case of libertarians, seemingly when anyone is in power.)

I share Mr. Serwer's disgust with Congressional authority over federal jurisdiction--but that doesn't make it unconstitutional.

The Pair on These Two!

Ok, so I'm scanning through my reader today and come upon this about the recent Congressional ethics investigations and exonerations over at DiA:

"Simply because a member sponsors an earmark for an entity that also happens to be a campaign contributor does not, on these two facts alone, support a claim that a member's actions are being influenced by campaign contributions," the House Committee on Standards of Official Conduct said in a unanimous statement.

In 2008, the seven lawmakers the committee cleared of any wrongdoing had steered $112m in earmarks to clients of the PMA Group, a lobbying organisation. In that same year, they accepted a total of $350,000 in campaign contributions from those clients. The contributions, they maintained, had nothing to do with the earmarks. And a committee of their peers backed them up. To paraphrase Jon Stewart in another context: I don't think they're stupid. I think they think we're stupid.

By the tone of the people harping on the Citizens United decision which freed domestic corporations and groups from onerous and arbitrary limits in independent expenditures (read: their own political ads without direction from, permission of, and wholly separate from political candidates), you'd think the floodgates guarding our fragile democracy had finally been opened to corporate America. It turns out, however, corporate America just needed to go to the right Congressional offices:

The representatives in question are Democrats Norm Dicks, Marcy Kaptur, James Moran, and the late John Murtha, and Republicans Todd Tiahrt, Peter Visclosky, and Bill Young.

Not surprisingly, and as far as I can tell, the Republicans were all silent on Citizens United. (Indeed, my superficial search shows that two of them may have taken from the case's namesake organization.) And, to their credit, neither the late Jack "Corrupt for his Constituency" Murtha nor Norm Dicks had the cojones to openly criticize the Citizens United ruling. (And yes, Murtha was still alive when the decision came down.) The same restraint could not be shown by Reps. Marcy Kaptur and James Moran.

From Moran's Citizens United press release:

Today’s Supreme Court decision represents a monumental step backwards for American democracy and will allow corporations to drown out the voices of average Americans. The Supreme Court’s decision to overturn precedent and allow corporations to spend unrestricted resources on political activities will undermine the public’s confidence that the government is acting in their best interest on issues such as the economy, health care and energy policy.

Not to be outdone in testicular grandiosity, the gentlewoman from Ohio's Ninth district introduced legislation to curb express displeasure with independent expenditures (Official Summary):

1/8/2009--Introduced.Expresses the sense of Congress that the Supreme Court misinterpreted the First Amendment to the Constitution in the case of Buckley v. Valeo because the decision failed to recognize:
(1) that the unlimited spending of large amounts of money on elections has a corrosive effect on the electoral process not simply because of direct transactions between those who give large amounts of money and candidates and elected officials but because the presence of unlimited amounts of money corrupts the process on a more fundamental level; and
(2) other legitimate state interests which justify limiting money in campaigns, including the need to preserve the integrity of our republican form of government, restore public confidence in government, and ensure all citizens a more equal opportunity to participate in the political process.

We need more outrageous hypocrites like Jim Moran and Marcy Kaptur as the standard bearers for restoring "public confidence in government" because we should have exactly much confidence in our government as we have in them. Clearly, direct quid pro quo bribery is much better for democracy than the warping influence and appearance of independent spending.

CBS v. FCC

Just a programming note:

I was flipping through the channels late Saturday night/early Sunday morning and saw that C-SPAN was re-airing the oral argument in the free speech case in the 3rd Circuit case CBS v. FCC. If you want to hear how an otherwise intelligent government lawyer attempt to justify government sanction against the display of part of a human body--and the common sense argument against such absurdity--you can listen to the argument here.

CBS is represented by Robert Corn-Revere, whom I've had the pleasure to meet and work with in the past. He most recently wrote an excellent article for the Cato Supreme Court Review on FOX's battle with the FCC that you can read here.

White House's Over-the-Top Message Control

At first, I dismissed the importance and relevance of Robert Gibbs's remark about Fox News Channel. I figured it was a one-time jab and that would be the end of it. Then, as members of the "real" media followed-up and Gibbs still didn't back down, I began to think they were approaching a very fine line to "chill" Fox's First Amendment protection, which is very dangerous ground to tread.

And now there's this:

At least one Democratic political strategist has gotten a blunt warning from the White House to never appear on Fox News Channel, an outlet that presidential aides have depicted as not so much a news-gathering operation as a political opponent bent on damaging the Obama administration.

This news is brought to you not by Fox News, National Review, or the Rupert Murdoch-owned Wall Street Journal, but the Los Angeles Times.

So, let me get this right. Not only is Fox News just an arm of the Republican party to attack all things Obama, but now the administration has decided to tell it's own supporters that they shouldn't appear on Fox to give their views--in essence, enforcing the one-sidedness of their channel?

Look, nobody with a brain thinks Fox doesn't cater to the Right. But this doesn't automatically disqualify them from being a news organization any more than MSNBC's leftward tilt disqualifies it. Fox is the highest rated cable news network, which means that the White House's efforts are aimed at depriving the largest single cable news audience of certain points of view and information. Why on Earth would the White House do this?

As I've said before, I abhor most television news. It's shallow, vapid, and more style than substance. That said, this continued assault on Fox begins to look less like a petty vendetta than it does programmatic message control. I'm not going Godwin again, I'm just saying that nothing good can come out of stifling discussions and threatening your own partisans for appearing on a network that caters to a wide audience.

I have no particular affinity for FNC--indeed, I find some of their programming repugnant. But these efforts are moving beyond spin control and are moving ever-closer to illegal and immoral governmental disruption of activities explicitly protected by the First Amendment.

This needs to stop now.

Who Gives a...

Really?

Jenny Slate, one of two actors hired over the summer to join the repertory cast, was making her "SNL" debut in the sketch, called "Biker Chick Chat," which aired in the last 20 minutes of the season premiere. Slate and Kristen Wiig played surly motorcycle babes who used the substitute words "frickin' " or "friggin' " in every sentence they spoke.

But when, at about 12:43 a.m., Slate was supposed to say to Wiig, "You stood up for yourself, and I friggin love you for that," she mistakenly said the real f-word instead. Slate made a face -- puffing up her cheeks, basically -- but the sketch went on with no other problems.

Lorne Michaels, the show's executive producer, said from New York late yesterday that the moment was especially traumatic for Slate because "it was literally her first time on the show. There was nothing dirty, just a slip of the tongue. It was 'frickin', frickin', frickin' ' and then boom! The pain that Jenny is going through is, I'm sure, considerably worse than that experienced by anybody who saw it."

Michaels indicated that times may have changed enough since 1981, when "SNL" player Charles Rocket uttered the word, so that the incident may not cause the uproar it did then. He said the NBC switchboard did not "light up" with angry viewer phone calls. And because "SNL" is tape-delayed to the West and Midwest, the word was only heard in the Eastern portion of the country.

...the FCC went wild doling out enormous fines for alleged obscenities during the George W. Bush era, it's believed in some circles that the Obama administration will have less interest in such matters.

The fact that it's ever a concern for the federal government what naughty words are said on television ? There was a recent case FCC v. Fox, where the Supreme Court upheld speech restrictions imposed by the FCC because, in effect, harm is caused by people hearing expletives during certain times of day. To which I say, to quote Eric Cartman (link not remotely safe for work):

FUCK FUCKITY FUCK FUCK FUCK

What part of "Congress shall make no law..." was unclear? We have Americans dying and being maimed daily in wars overseas--and, in the process, inflicting death and suffering upon others--we have a criminal justice system that incarcerates more than any other nation on the planet (hundreds of thousands of which are imprisoned for crimes against no one, it should be noted) and our government is nearly criminally borrowing money against wealth not yet made by generations not yet born and someone saying "fuck" is somehow important?

I will write more on the supposed decline of civility (e.g., Kanye, Joe Wilson, Serena, etc.) and what it means to American society today soon, but this is just absurd. You can debate the propriety of using terms like that all you like--and there is an excellent and persuasive argument for not swearing--but that anyone would even consider getting the government involved over an uttering of certain phonetic syllables that only offend sensibilities (as opposed to threats or 'fighting words,' for example) is wholly offensive to mine.

The government should stick to what it's good at its job and leave people to their own language choices. I hope Shales is right in thinking that Obama will pull back the reins on the FCC, but I'm not holding my breath.

Breaking News: ATF "Disrupts" Plot to Kill Obama; Scores of Black People

And the racists are mobilizing:

WASHINGTON (AP) - The ATF says it has broken up a plot to assassinate Democratic presidential candidate Barack Obama and shoot or decapitate 102 black people in a Tennessee murder spree.

In court records unsealed Monday, agents said they disrupted plans to rob a gun store and target an unnamed predominantly African-American high school by two neo-Nazi skinheads.

I don't know how competent these idiots were or how close they could have gotten, but I expect that more of the same is coming. The backlash against a black President may be both dramatic and bloody -- and not just for the (presumable) president.

Obviously, I don't think any violence will be widespread in the sense that states are going to secede again, but there are enough hate groups that may test the patience of the US security apparatus-- probably to the point that a Democratic majority Congress would go to extraordinary (and extra-constitutional) lengths to attempt to bring them under control. I certainly hope we won't have a spate of domestic terror cells, but I'd be lying if I said that it wasn't a small fear of mine.

Unconstitutional impediments to assembly, speech, and--of course--firearms, will only fuel the fire of the hate groups and perhaps cause them to grow, albeit to rather limited (thankfully) extent. The problem with this is not that terror-minded hate groups will be stopped before killing or otherwise harming people--I'm all for that. But perfectly legal yet marginal fringe groups might be targeted in anti-racist crackdowns just because some group of white boys with guns decides to name themselves "militia." It isn't as if the government doesn't already cast too wide of net for terror suspects. (You know, like the environmentalists who ended up on terror lists in Maryland.)

If and when that happens, the same Democrats and other liberals who are (correctly) arguing against domestic wiretapping and treatment of prisoners at Guantanamo may be calling for similar measures--at least as they apply to surveillance and suspicion-- to be used against our own citizens who may or may not be associated with domestic racial terror.

The problem with fighting for liberty is that often you're stuck protecting the rights of bastards. But being a bastard does not equate being a terrorist--even if you're a racist bastard with guns. I have a feeling that the political dynamics of the personal liberties debate may change once the targeted people under suspicion aren't named Khalid and Abdul, but rather Kenny and Cletus.

Let's hope we don't find out.

Hat tip: NJ Ray

"The Jefferson 1"

I figure it's about time I throw in my worthless two cents about what happened at the Jefferson Memorial last night.

I was there. I am friends with the arrested person and the organizers of the event. I did not dance, but I enjoyed the show...briefly.

I know more than I am going to share because a lot of it would be speaking in place of her, which I am neither authorized nor willing to do.

What I can say, with full confidence, is that 1) she was not in any way intoxicated and 2) she gave not the slightest bit of implication that she was looking to get arrested or even cause trouble. So, for all the blog commenters on the several sites that have covered this story who have speculated otherwise, let it go. If need be (although I think highly unlikely), I can and will testify to that effect.

As for the hubbub that has followed in the hours since: I think it is unfortunate that my friend has to go through all this. She has to tell to people that she was arrested, explain why, and somehow convince them that it wasn't her fault...which it wasn't. And, whether she wants to be or not, she is now a poster-child in our most recent "F- the state" efforts. While there can be perks to this last bit (e.g., becoming a minor-celebrity), that status neither pays bills nor protects privacy.

A lot of us are acting as though we are under some sort of moral obligation to do something. (I am no exception to this. Both as a libertarian, and more importantly (to me) as a friend, I am happy to do whatever needs to be done.) But in the grand scheme of abusive police actions and power -- of which this incident is minor, comparatively speaking -- is the end result going to amount to much? I find it unlikely.

I should probably mention here that my father was a police officer. I grew up respecting police and admire what many of them do on a daily basis. I think it is unfortunate that they enforce a lot of unjust laws (e.g., drug laws, etc.), but that isn't even at issue in this case. She broke NO LAW -- yet still spent several hours in police custody and her life will very plausibly be negatively affected as a result.

I digress.

I am all for this fight, really. But I can see this getting out of hand and I don't want to see my friend hurt.

Immunized or Incarcerated

Out of Prince George's County, Maryland:

The parents of more than 2,300 Prince George's County students who failed to get needed vaccinations could face fines of $50 a day and up to 10 days in jail if their children do not meet the state's immunization requirements, county officials said yesterday.

While I believe that children should be immunized against communicable diseases, this is a gross violation of parental rights and, potentially, the 1st Amendment. If any of the students are Christian Scientists --who believe that prayer is the only legitimate remedy to disease -- then forced medical care will be in blatant violation of the Free Exercise clause. The First Amendment does not just protect behaviors that we don't find absurd and dangerous.

There is an argument that this is a "public health issue" but -- as is most often the case -- this is a private health issue. Most kids will be immunized, and thus unaffected by the choices of others.

The best argument for forcing this is the child's rights (viz. health) versus the parent's rights (autonomous decisions relating to their own children). Unless the child expresses desire -- against the will of the parents -- for immunization, the parents have the right to medically treat their child how they see fit.

If this were a case of neglect, that would be one issue, but "improper" lack of precaution does not qualify as neglect. Such interpretation would open up a Pandora's Box of "unreasonable" parenting decisions that may run counter to conventional wisdom.

Leave the parents alone.

UPDATE: (2013) I've noticed this post has, for some reason, gotten a few views recently. I stand by the First Amendment problems and that incarceration is an inappropriate punishment, but I've realized since I wrote this regarding the whole "private" versus "public" issue, that people who have weakened immune systems--whether via HIV, Lupus, old age, or whatever--can be dramatically, even fatally, affected by these decisions. It's not in my bailiwick to say what should be done, but I don't believe incarceration is really the best answer.

Generally speaking, the threshold for which we put our fellow human beings in cages should be much higher than it is today. -jpb

Conflicting Standards

Thankfully, more black people are fed up with the portrayals of the race in the media:

Wearing white T-shirts with red stop signs and chanting “BET does not reflect me, MTV does not reflect me,” protesters have been gathering every Saturday outside the homes of Viacom executives in Washington and New York City. The orderly, mostly black crowds are protesting music videos that they say degrade women, and black and Latino men.

Unfortunately, the remedies they propose are probably a bit much:

Among other things the protesters want media companies like Viacom to develop “universal creative standards” for video and music, including prohibitions on some language and images.

I, for one, am all for toning-down the 'gangsta' and other ignorant images prevalent in today's pop culture, but I cannot think of any "universal creative standard" which would serve any real purpose. Using the power of protest to show angry disapproval of the status quo on BET is a good thing -- assigning some arbitrary standard of how to portray black people is quite another.

That said, the protests, as some in the article incorrectly conclude, are not censorship. They are perfectly acceptable exercises of 1st Amendment rights to Free Speech and Free Association, just as the rappers have their right to say what they want. The conflict revolves around the over-abundance of airtime businesses have given the latter's messages. Bringing bad publicity and perhaps financial penalties-- through lost revenue, not fines -- can bring changes without involving government standards, which would be censorship.

Just because these protesters and people like me find a lot of the black caricatures on BET and MTV offensive and debasing, does not give anyone other than the owners of the companies the right to remove that material, no matter how much I believe a lot of that material deserves to be scrapped forever. Censorship, in the true sense, is an affront to the principles of America's founding, regardless of the nature of the material in question.

No one's standards of taste should be enforced by law.