Well, I guess so. Again, the Supreme Court chose to double-team us, releasing opinions on two different days. Ashcroft v. ACLU, et al. deals with the Child Online Protection Act, which provides that

Whoever knowingly and with knowledge of the character of the material, in interstate or foreign commerce by means of the World Wide Web, makes any communication for commercial purposes that is available to any minor and that includes any material that is harmful to minors shall be fined not more than $50,000, imprisoned not more than 6 months, or both.

By a 5-4 majority, the Court ruled that such a ban was unconstitutional. COPA is a response to an earlier case, Reno v. ACLU, 521 U.S. 844 (1997), which ruled that a previous law designed to prevent children from accessing seedy web content was also unconstitutional.

Justice Kennedy, writing the majority opinion, begins by explaining the three-pronged definition of "harmful to minors," which is, coincidentally, the same definition the of "obscenity" as established by the Court in Miller v. California, 413 U.S. 15 (1973).

any communication, picture, image, graphic image file, article, recording, writing, or other matter of any kind that is obscene or that--

(A) the average person, applying contemporary community standards, would find, taking the material as a whole and with respect to minors, is designed to appeal to, or is designed to pander to, the prurient
interest;

(B) depicts, describes, or represents, in a manner patently offensive with respect to minors, an actual or simulated sexual act or sexual contact, an actual or simulated normal or perverted sexual act, or a lewd exhibition of the genitals or post-pubescent female breast; and

(C) taken as a whole, lacks serious literary, artistic, political, or scientific value for minors.

Well, sort of. Minus the clauses "for minors" and "with respect to minors," and the definitions of "sexual acts," this is almost exactly the language that legally establishes what is "obscene." Such speech is not protected by the First Amendment.

The Court's standard for whether or not a law is too restrictive is to see if the next-best alternative is more or less restrictive to liberty. If the next-best alternative is less restrictive, then the law is too restrictive and thus unconstitutional. In this case, the next-best alternative is filtering software that blocks certain web sites on a particular computer. Stevens wrote, "Blocking and filtering software is an alternative that is less restrictive than COPA, and, in addition, likely more effective as a means of restricting children's access to materials harmful to them." In issuing a blanket decree that stifles all potentially "harmful" speech, the law may accidentally catch legal speech in its net.

Or, the law may have a "chilling effect" on such legal-but-defined-as-harmful speech. The prospect of a fine for such speech and lengthy and expensive litigation could cause people not to produce such speech at all, de facto censoring the speech. Stevens concluded that, "[a]bove all, promoting the use of filters does not condemn as criminal any category of speech, and so the potential chilling effect is eliminated, or at least much diminished."

Justices Breyer, Rehnquist, Scalia, and O'Connor filed dissenting opinions. Breyer insists that the law imposes no undue restrictions beyond the legal definition of "obscenity," which isn't protected by the First Amendment, anyway:

These materials are not both (1) "designed to appeal to, or ... pander to, the prurient interest" of significant groups of minors and (2) lacking in "serious literary, artistic, political, or scientific value" for significant groups of minors. §§231(e)(6)(A), (C). Thus, they fall outside the statute's definition of the material that it restricts, a fact the Government acknowledged at oral argument. Tr. of Oral Arg. 50-51.

Oh, but they are! The law's wording is not the same as Miller, for COPA includes the clause "harmful to minors," the meaning of which could be interpreted in any number of ways to squelch a kind of speech that is seen as harmful by one group and not harmful by another. Indeed, Breyer contends that "a serious discussion about birth control practices, homosexuality, ... or the consequences of prison rape," would not be illegal under COPA, since they do have SLAP (scientific, literary, artistic, or political) value. Yet, who is to decide whether or not such speech is "harmful"? One can imagine using such a definition to censor such speech, using "harmful" as a proxy for "morally repugnant" or something less objective or based in statute.

The Supreme Court reached the right decision today, ruling overbroad a statute that could have squelched speech on a very subjective basis.

Posted by Mark at 11:42 AM | Permalink | Comments (0) | TrackBacks (0)

Sen. Orrin Hatch's Inducing Infringement of Copyrights Act of 2004, formerly the INDUCE Act, has been put into THOMAS, Congress' database of legislation. The bill is actually very short, so here is the text of it:

To amend chapter 5 of title 17, United States Code, relating to inducement of copyright infringement, and for other purposes.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the 'Inducing Infringement of Copyrights Act of 2004'.

SEC. 2. INTENTIONAL INDUCEMENT OF COPYRIGHT INFRINGEMENT.

Section 501 of title 17, United States Code, is amended by adding at the end the following:

'(g)(1) In this subsection, the term `intentionally induces' means intentionally aids, abets, induces, or procures, and intent may be shown by acts from which a reasonable person would find intent to induce infringement based upon all relevant information about such acts then reasonably available to the actor, including whether the activity relies on infringement for its commercial viability.

'(2) Whoever intentionally induces any violation identified in subsection (a) shall be liable as an infringer.

'(3) Nothing in this subsection shall enlarge or diminish the doctrines of vicarious and contributory liability for copyright infringement or require any court to unjustly withhold or impose any secondary liability for copyright infringement.'.

As many news outlets have reported (Wired News, ZDNet), the bill makes anyone who "induces" any copyright violation liable in such a violation. When Hatch introduced the bill on the Senate floor last week, he offered an eight-page rationale (PDF), insisting that it is the makers of file-sharing software who encourage "children" to break the law! While Hatch uses the word "children" throughout his introduction, he sort of defines "children" to mean "children and college students": "These programs are used mostly by children and college students -- about half of their users are children." Is Hatch attempting to confuse congressmen and voters, implying that file-sharers "corrupt and exploit the innocence of children" by tempting them with file-sharing software? Does he mean college students or does he mean ten-year-old girls with frilly pink bows on their dresses? Clearly, he wants us to believe the latter, while the former is actually true.

According to a Pew Internet & American Life Survey conducted in 2003, "29% of Internet users have 'downloaded music files to their computer so they can play them any time they want,' and about 4 percent of Internet users do so on an average day." Additionally, the demographic group that does most of the downloading (in the Pew survey, downloading and sharing were analyzed separately) is hardly "innocent": "more than half of all Internet users between the ages of 18 and 29 have ever downloaded music and almost 10% of those in that age group are online downloading music on any given day." The survey also concludes that "students are also more likely to be music downloaders than nonstudents. Fifty-six percent of full-time students and 40% of part-time students report downloading music files to their computer. Only a quarter of non-students report downloading files."

People who provide files for downloading (sharing) have similar demographic profiles: "Not surprisingly, [file-sharers] are more likely to be younger, with 31% of the youngest adults aged 18 to 29 sharing files" and "[m]ore than a third (35%) of fulltime students and 28% of part-time students share files, while 18% of non-students report the same behavior."

"The children" is a trope being used to pass this bill.

Posted by Mark at 11:03 AM | Permalink | Comments (0) | TrackBacks (0)

No fewer than three important opinions were handed down today, with the Supreme Court siding on the side of Truth, Justice, and the American Way in two of them and wussing out in a third.

Hamdi, et al. v. Rumsfeld, et al. dealt with a U.S. citizen, Yaser Esam Hamdi, who was captured in with the Taliban in Afghanistan in 2001, and labeled an "enemy combatant." Hamdi had languished in a navy brig since then and was suing to contest his "enemy combatant" status, alleging that, as a U.S. citizen, he has the right to a trial to contest the charges against him. The Fourth Circuit Court of Appeals reversed a district court decision, holding that

express congressional authorization of the detention was required by 18 U. S. C. §4001(a) -- which provides that "[n]o citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress" -- the [Authorization for Use of Military Force]'s "necessary and appropriate force" language provided the authorization for Hamdi's detention. It also concluded that Hamdi is entitled only to a limited judicial inquiry into his detention's legality under the war powers of the political branches, and not to a searching review of the factual determinations underlying his seizure.

The Authorization for Use of Military Force was passed by Congress in 2001, authorizing the President to "'use all necessary and appropriate force'" against "'against "nations, organizations, or persons'" that he determines "'planned, authorized, committed, or aided'" in the September 11 attacks. The government had insisted that its right to deny Hamdi the right to contest his charges was consistent with "necessary and appropriate force."

Well, the Supreme Court didn't think so. In a very split decision, it concluded that "due process demands that a citizen held in the United States as an enemy combatant be given a meaningful opportunity to contest the factual basis for that detention before a neutral decisionmaker." The decision was 6-3, with only Scalia, Thomas, and Stevens dissenting, although Souter filed an opinion concurring in part and dissenting in part, and concurring with the judgment, which Justice Ginsburg also signed.

One of the issues that perplexed the justices in the oral arguments was the meaning of "enemy combatant." At the time, one of the justices quipped, "Well, it's an English word. It means somebody who is combatting." Funny stuff, for sure (maybe they should take that act on the road), but hardly funny enough for the law. Writing the majority opinion, Justice O'Connor notes that "[t]here is some debate as to the proper scope of this term, and the Government has never provided any court with the full criteria that it uses in classifying individuals as such."

More importantly, the Court considered the implication of Hamdi's possible perpetual imprisonment:

As the Government concedes, "given its unconventional nature, the current conflict is unlikely to end with a formal cease-fire agreement." Ibid. The prospect Hamdi raises is therefore not far-fetched. If the Government does not consider this unconventional war won for two generations, and if it maintains during that time that Hamdi might, if released, rejoin forces fighting against the United States, then the position it has taken throughout the litigation of this case suggests that Hamdi's detention could last for the rest of his life.

The majority opinion also delved into the realm of absolute government power, as exemplified by the government's summary denial that facts of the case are undisputed, when in fact, they are: "Moreover, as critical as the Government's interest may be in detaining those who actually pose an immediate threat to the national security of the United States during ongoing international conflict, history and common sense teach us that an unchecked system of detention carries the potential to become a means for oppression and abuse of others who do not present that sort of threat."

O'Connor finally concludes, "We therefore hold that a citizen-detainee seeking to challenge his classification as an enemy combatant must receive notice of the factual basis for his classification, and a fair opportunity to rebut the Government's factual assertions before a neutral decisionmaker. [. . .] In so holding, we necessarily reject the Government's assertion that separation of powers principles mandate a heavily circumscribed role for the courts in such circumstances. Indeed, the position that the courts must forgo any examination of the individual case and focus exclusively on the legality of the broader detention scheme cannot be mandated by any reasonable view of separation of powers, as this approach serves only to condense power into a single branch of government."

Score one for the Constitution: the executive cannot hold U.S. citizens and deny them habeus corpus.

The next opinion released was for Rasul, et al. v. Bush, et al.. This is the case of Guantanamo Bay detainees who want to contest their status as enemy combatants. Unlike Hamdi v. Rumsfeld, these people are acknowledged as not U.S. citizens; nonetheless, they are seeking relief under U.S. habeus law, which authorizes district courts "to entertain habeas applications by persons claiming to be held "in custody in violation of the ... laws ... of the United States," §§2241(a), (c)(3)" (ellipses in original).

One of the government's primary arguments in the case was that no U.S. court had jurisdiction over Guantanamo Bay, since it was on sovereign Cuban soil. John Gibbons, arguing for Rasul, insisted that "Cuban law has never had any application inside that base. A stamp with Fidel Castro's picture on it wouldn't get a letter off the base." The justices also agreed that when the lease says that "the United States shall exercise complete jurisdiction and control over and within said areas" (the "said areas" being Guantanamo Bay), it means that U.S. law applies within those areas.

The government's second argument is that, pursuant to the decision in Johnson v. Eisentrager, 339 U.S. 763, a case involving German prisoners taken by U.S. authorities on foreign soil during WWII, the petitioners have no standing to bring a case questioning their status as "enemy combatants." The justices didn't believe this, either. Justice Stevens, writing the opinion of the court, noted these differences:

Petitioners in these cases differ from the Eisentrager detainees in important respects: They are not nationals of countries at war with the United States, and they deny that they have engaged in or plotted acts of aggression against the United States; they have never been afforded access to any tribunal, much less charged with and convicted of wrongdoing; and for more than two years they have been imprisoned in territory over which the United States exercises exclusive jurisdiction and control.

The nationalities of the people in question are Australian and Israeli. Unless the "War on Terror" is encompassing bomb-laden wallabies.

That's two for the Constitution. The third important opinion released today deals with Rumsfeld v. Padilla, et al. Padilla, you'll recall, was a U.S. citizen captured on U.S. soil and thought to be involved in the production of a "dirty bomb." He was held in a navy brig as an "enemy combatant" without the ability to contest that status.

The 5-4 majority concluded that the District Court for the Southern District of New York (Southern District),where the case was filed, did not have jurisdiction over the Secretary of Defense, who was named respondent in the case. Nor did it have jurisdiction over Padilla's habeas petition. The "proper respondent," wrote Chief Justice Rehnquist, was Padilla's "custodian," the person who exercised control over him. This person would have been Melanie A. Marr, Commander of the Consolidated Naval Brig, where Padilla was held. Though the habeas statute plainly requires that the respondent be the "immediate custodian" of the person involved, the Second Circuit Court of Appeals ruled that Rumsfeld, as Secretary of Defense, had the "legal reality of control" over Padilla. Not so, says Rehnquist: the clause of "legal control" only comes into play when there is no immediate, identifiable custodian. In this case, there is, and it is Commander Marr, not Rumsfeld. Rehnquist also denied that the Southern District was the correct place to bring his habeas petition; rather, it should have been the District of South Carolina.

Rehnquist's opinion in this case is consistent with his ruling in Rasul v. Bush, where he concurred with Scalia in that no one had jurisdiction to hear the Guantanamo detainees' request for habeas corpus, since the law requires a habeas request to be filed in the court of the jurisdiction of the place where the prisoner is being held.

That's two for the Constitution and one for President Bush. At least the Constitution is still on top.

Posted by Mark at 1:19 AM | Permalink | Comments (0) | TrackBacks (0)

I'm sick of people saying that "Bush stole the election" or "the Supreme Court appointed Bush." There are several cases which resulted in George W. Bush winning Florida's 25 electoral votes. The first case is George W. Bush v. Palm Beach County Canvassing Board, 531 U.S. 70 (2000), from December 8, 2000. The second is Bush v. Gore, 531 U.S. 98 (2000), from December 12, 2000.

On November 7, 2000, lots of people from across the country voted. Not as many as we'd like, but that's an issue for another day. In the state of Florida, George W. Bush received 2,909,135 votes, and Al Gore received 2,907,351 votes. The margin of victory for Bush was 1,784 votes, which was "equal to or less than one-half of one percent of the votes cast." As a result, Fla. Stat. §102.141(4) was triggered, which required a machine recount of all votes cast if such a scenario occurred. The machine recount of all the votes resulted in Bush still winning, but by a smaller margin. Florida's election law allows a candidate to contest the results of an election if "[r]eceipt of a number of illegal votes or rejection of a number of legal votes sufficient to change or place in doubt the result of the election." Gore contended that votes were incorrectly tabulated in four counties, and sought a manual hand recount in those counties. Ultimately, his case went to the Florida Supreme Court, which affirmed his contest in only one county, Miami-Dade County, where it had failed "to tabulate, by manual count, 9,000 ballots on which the machines had failed to detect a vote for President ('undervotes')." Given the closeness of the election, the Florida Supreme Court observed that "there can be no question that there are legal votes within the 9,000 uncounted votes sufficient to place the results of this election in doubt." Thus Gore's manual hand recount in Miami-Dade County was ordered by the Florida Supreme Court.

Also at issue was the date set for certification of votes. Florida state law requires votes to be certified within seven days of an election, but the recount process was not complete by then. The Florida Supreme Court ruled that the Florida Secretary of State "could exercise her discretion in deciding whether to include the late amended returns in the statewide certification." The Secretary of State then responded that any county could apply to submit late results by filing a written statement by 2 PM on November 15. Four counties submitted such applications, and the Secretary of State denied them all. Gore filed a motion in state court on November 16 "arguing that the Secretary had acted arbitrarily and in contempt of the court's earlier ruling." This was appealed up to the Florida Supreme Court, which issued a stay on certifyelection results certification until it said so. On November 21, the Florida Supreme Court issued its ruling, which, in part, "imposed a deadline of November 26 at 5 PM for a return of ballot counts." Bush appealed this ruling to the U.S. Supreme Court, which in turn ruled on December 8 "that there is considerable uncertainty as to the precise grounds for the decision." The Florida Supreme Court, it said, misinterpreted the Florida State Constitution and may have violated the Due Process clause of the U.S. Constitution by changing the rules for the election after the election had taken place. Seeking a better answer, the U.S. Supreme Court vacated the Florida Supreme Court decision and remanded it for further proceedings. It didn't believe that altering the rules for the election after the election had occurred was quite fair.

Finally, on December 12, the U.S. Supreme Court settled the issue once and for all. The case presented the following questions: "[W]hether the Florida Supreme Court established new standards for resolving Presidential election contests, thereby violating Art. II, §1, cl. 2, of the United States Constitution and failing to comply with 3 U. S. C. §5, and whether the use of standardless manual recounts violates the Equal Protection and Due Process Clauses." At issue was the standard for the manual recount. The U.S. Supreme Court (hereafter "Supreme Court" or "Court") found that there was no state standard for manual recounts (e.g. what kind of "chad" counts as a vote? These opinions differed from county to county):

The recount mechanisms implemented in response to the decisions of the Florida Supreme Court do not satisfy the minimum requirement for non-arbitrary treatment of voters necessary to secure the fundamental right. Florida's basic command for the count of legally cast votes is to consider the "intent of the voter." Gore v. Harris, 772 So. 2d, at 1262. This is unobjectionable as an abstract proposition and a starting principle. The problem inheres in the absence of specific standards to ensure its equal application. The formulation of uniform rules to determine intent based on these recurring circumstances is practicable and, we conclude, necessary.

The Supreme Court found that, since there was no statewide standard for manual recounts, and it is the sole responsibility of the state legislature to specify the method by which voters shall be tabulated, the manual recounts violated the Equal Protection clause of the Constitution. The Florida Supreme Court's opinion was reversed, and the case was remanded "for further proceedings."

So, did the Supreme Court "appoint" Bush? Did Bush "steal" the election? Regarding the first question, it's hard to say. Bush v. Gore was decided 5-4, with Justices Stevens, Souter, Breyer, and Ginsburg dissenting. Rehnquist, Stevens, O'Connor, Scalia, Kennedy, Souter, and Thomas were all nominated by Republican presidents, while Breyer and Ginsburg were nominated by Bill Clinton. This is not a case of justices playing the party line. Although, Rehnquist, Scalia, and Thomas tend to be the most conservative members of the Court (speaking of ideology, not party affiliation), while Souter and Ginsburg tend to be the most liberal. "Conservative" in this case means sticking to the letter of the law, not speaking in abstracts or ideals. If the law doesn't say it, then it ain't legal. In contrast, "liberal" means appealing to a notion of Justice with a capital "J," ignoring what the law may say and instead focusing on what the spirit of the law is. The justices have different views on how the law should be interpreted, but these views in themselves cannot be seen as favor for one candidate or the other. Thus I fail to see how the Supreme Court "appointed" Bush, especially given that it reversed the Florida Supreme Court's opinion. It did not declare Bush the winner: that is the job of the Electoral College (although the argument is that, in dismissing the validity of the Florida Court's opinion, which favored Gore, the Court allowed Bush to win the popular vote in Florida, which gained him Florida's electoral votes, which won him the election).

Did Bush "steal" the election? No; how could he do that? He didn't bribe the justices, he didn't extort things from them. People who espouse this opinion of "stealing" don't back up their claim with an explanation of how he stole the election. Is it because he lost the nationwide popular vote but won the electoral votes? That's a flaw in the system, perhaps, but the fault cannot be uniquely attributed to Bush.

Ultimately, fault rests with the state of Florida for not establishing a uniform system of counting ballots. Secretary of State Katherine Harris, whose duty it is to oversee elections, is particularly responsible. Also, the outdated voting systems being used were also culpable in the Election 2000 fiasco, as the Court noted in its opinion. Bush himself, however, or the Supreme Court cannot be held responsible. The facts do not support assertions that the Supreme Court "appointed" him or that he "stole" the election.

Posted by Mark at 12:05 PM | Permalink | Comments (0) | TrackBacks (0)

All debate aside about who the next president will be, no matter who he is, he will have some obstacles to tackle in the next four years:

1. Focus the War on Terror

Declaring a war on "terror" is like declaring a war on "love" or "hate." It's an abstract concept, and our laws aren't written for abstract concepts. Heck, they're not even written for non-national entities. We couldn't declare war on al-Qaeda because they're civilians; but we can declare war on Afghanistan. If we're going to go after terrorists, we need to have a focus: what kind of terrorists? Should we get the help of other countries? How about governments of countries that harbor terrorists? We must convince other countries that we're not going to invade them and we need their cooperation.

Part of focusing the War on Terror involves stepping up international intelligence. That seems to be lacking as of late, with the NSA and CIA relying on outdated information. Let's get back to having a great international spy network.

2. Get other countries to like us again

Despite what Rush Limbaugh may think, we need the international community. Public opinion is very strong force, and some day in the near future we may find ourselves in need of the U.N. Unilateralism worked during the Cold War because no other countries had the guts to challenge us, for opposing the U.S. could be seen as endorsing the Soviet Union.

Our current foreign policy is the perfect policy for a world in which we are the only country. Or in a world in which force is the standard of governance. Neither of these is the case: we live on a planet with over five billion other people, and we make up the minority. Additionally, we left "might is right" in the seventeenth century where it belongs. The system of democracy -- to which the U.S. is a party -- relies on rule of law. We are also a party to the U.N., and are obliged to respect its decisions. Increasingly, though, whenever the U.N. does something that we don't like, we take decisive action or ignore it altogether. When Iraq refused to comply with weapons inspectors, everyone -- including the U.S. -- waved U.N. resolutions in Saddam Hussein's face. We, as well as other countries, acted as though the U.N. had force, and went along with other member nations in asking the U.N. to exercise that force. When the U.N. wouldn't give us help for an invasion of Iraq, we called it impotent and outdated -- we pretended that the U.N. didn't have any force and went along on our merry way. On the one hand, we used the U.N. as a tool when its goals were our goals. On the other hand, we dismissed it completely when its goals were contrary to our own.

Now, we need the world's help to fix the situation in Iraq. The world, predictably, isn't biting. We're crawling back to the U.N. on our hands and knees, begging for help. But we're not admitting that we did anything wrong. This is no way to run foreign policy, especially when the world's apathy can help us or hurt us.

3. Repeal tax cuts

Bush tax cuts went to the wealthiest Americans. These wealthiest Americans got rebates on income taxes, dividend taxes, and estate taxes. I used to be an ardent supporter of repealing the estate tax, until I learned some more about it. The president calls this "double taxation," but almost every type of income that a person can receive is taxed; why should the inheritance of an estate be any different? (In other words, every kind of income is doubly taxed.) And all this business about family farms going out of business is a load of hogwash. No family farm has ever gone out of business due to the estate tax. The estate tax is a tax on inheritance over $15 million: only the wealthiest Americans will ever have to pay it. Financial experts Alan Greenspan (chairman of the Federal Reserve Board) and Warren Buffet (CEO of Berkshire-Hathaway) both agree that repealing the estate tax is a ridiculous idea. It would rob the government of over $900 billion in revenue over the next ten years.

The tax situation is an either-or situation. Whether or not anyone gets tax cuts, the government still requires the same amount of money to operate every year. We can 1) streamline the government, eliminating waste (which everyone tries but no one succeeds at), or 2) arrange taxes in such a way that the people who can afford to pay a particular amount do pay a particular amount. There was no reason to lower taxes on the extremely wealthy as Bush did years ago -- and has continued to do, despite the existence of budget deficits and a huge increase in spending (decreases in revenues accounted for 41.88% of the deficit in 2004's $2.3 trillion budget). Dr. Greenspan was wholeheartedly against it. Yes, wealthier people should pay more in taxes than poorer people. Why? Because they can afford to. A low-income family that lives from paycheck to paycheck cannot afford to lose more money every year to taxes. While it's not the government's fault that the family doesn't make as much as Warren Buffet (he gets paid $1 billion every year), neither should the government tax them into poverty. If faced with two options which, any reasonable person would agree, are both evil -- unequal taxation which places extra tax burden on those who can afford it (and at the same time punishes people for being wealthy) or equal taxation which would tax those on low-end brackets into poverty -- we have chosen the latter, since we feel it is more morally upstanding to have Warren Buffet pay a few extra million dollars every year than to have poorer families pay more and become poorer (and by the way, the government generates more revenue by increasing Warren Buffet's taxes than it does by increasing the taxes of someone from a low tax bracket).

But this isn't to suggest that we shouldn't focus on streamlining the government. Last year's budget was the biggest ever, and both Democrats and Republicans are responsible (remember: it takes a legislature to pass laws). Hopefully, the next election will see an influx of new members to Congress, but that usually never happens.

4. Roll back environmental policy

Repeal changes to the Clean Air Act, repeal the Clear Skies Initiative and the Healthy Forests Initiative. The titles of these pieces of legislation, in true Orwellian fashion, mean exactly the opposite of their purpose. The Clear Skies legislation reduces air pollution limits and Healthy Forests increases the ability of logging companies to cut down trees without regulation. (It is little wonder that the EPA is staffed by industrial and logging lobbyists.)

5. Dump John Ashcroft and the USA-PATRIOT Act

Ashcroft is the single biggest threat to civil liberties since the House Un-American Activities Committee. Under his command, the Justice Department has given the government a terrific amount of new power for surveillance, thanks to the USA-PATRIOT Act. Let the provisions in there expire. The old adage, "If you're not doing anything wrong, then you have nothing to worry about" doesn't fly in a democracy. The next president must veto any second PATRIOT Act -- although this may not be so easy. Sneaky members of Congress are quietly inserting individual elements of the so-called PATRIOT II into unrelated bills that have to be passed. Without the line-item veto (which was unconstitutional, anyway), the president must pass the bill -- and the PATRIOT II provisions -- or veto the bill, which will most likely be a spending bill, which couldn't bear a veto.

Ashcroft is a religious zealot who thinks he's on a mission from God to make everyone in America think the same way he does about morality. Why is the government launching a war on pornography in the middle of a war on terror? Like Lyndon Johnson said, you can't have guns and butter at the same time. Let's prioritize, here: how many Americans have been killed because of shrapnel in a blow-up doll?

6. Leave the federal courts alone

There are four pieces of legislation in the House right now (and one in the Senate) that would dramatically increase the amount of oversight Congress has over the federal courts. One bill would restrict the kinds of cases the Supreme Court can hear. Another bill would allow Congress to override a decision of the Supreme Court. All of these bills are obviously reactions to what members of Congress see as rulings which they disfavor. Ah, but if they had the power to veto those rulings, they could selectively enforce Supreme Court rulings. I have the utmost faith that members of the Supreme Court write opinions based on what's good for the country: they don't have to get re-elected, they don't have to kiss asses. Congress is very different. We have no way of knowing whether a veto of an opinion is in the best interest of the country, the Congressman's personal opinion, the Congressman's constituents, or the corporations and special-interest groups that fund the Congressman's re-election campaign. Therefore, Congress should have nothing to do with the courts, other than its current mandate, which is to approve presidential appointments to federal courts. The next president must veto any bill that attempts to regulate the courts.

7. Give consumers their rights back

With the support of major content-providers, Congress is on the fast track to forbidding any use of electronic equipment not explicitly sanctioned by content-providers. You must use your Sony DVD player in only the way that Sony specifies. You must use your Digital TV in only the way that the MPAA specifies. Your computer and CD player can only used according to guidelines set forth by the member companies of the RIAA. Any other use is illegal. Orrin Hatch's INDUCE Act is on the fast track to this future.

8. Leave religion at home

President Bush likes to incorporate elements of his religion into his official actions as president: he supports a marriage amendment to the Constitution, for religious reasons. He supports abstinence-only education, based in the religious reasoning that premarital sex is morally reprehensible (statistical evidence, however, proves that abstinence-only education is ineffective).

Whether it's John Kerry, George Bush, Ralph Nader, or Lyndon LaRouche, the next president must follow these eight steps to get the country back on the right track.

Posted by Mark at 8:09 AM | Permalink | Comments (0)

Media reaction to the Hiibel case makes it sound like the Supreme Court just legalized the telescreen. In reality, the Hiibel decision is not a big deal. Why? Laws have been on the books in almost every state requiring a person to identify himself to the police if asked. The Supreme Court has merely upheld the legality of these laws through Terry v. Ohio. The Terry case ruled that police could detain people under "reasonable suspicion" and ask them what they were doing in such a suspicious place at a suspicious time. The Supreme Court has said that state laws requiring people to identify themselves to the police are constitutional -- no more, no less. The story from Wired News makes no mention that the arresting officer in Hiibel's case did have "reasonable suspicion" and that he was not standing around, minding his own business. CNN's story is pretty much the same.

This is not a case of "in these trying times in which we live . . ." No! It has nothing to do with terrorism. This case would have been decided this way whether or not we were in the middle of a War on Terrorism. Remember: the Hiibel scenario was law for thirty years before anyone complained about it. It's a relatively small case whose ramifications will no doubt continue to be unimportant.

Posted by Mark at 8:27 AM | Permalink | Comments (0) | TrackBacks (0)

Yes, Monday is Supreme Court Day. The Supreme Court releases its lastest opinions every Monday and I'm there, ready and waiting.

The most notable case this week is good old Hiibel v. Sixth Judicial Court of Nevada. You'll recall from past entries that Hiibel was arrested and refused to identify himself, claiming that he was exercising his Fifth Amendment right against self-incrimination. Hiibel challenged the constitutionality of the Nevada Revised Code § 171.123(3):

The officer may detain the person pursuant to this section only to ascertain his identity and the suspicious circumstances surrounding his presence abroad. Any person so detained shall identify himself, but may not be compelled to answer any other inquiry of any peace officer.

In a 5-4 decision, the Supreme Court affirmed Hiibel's conviction, noting that the Nevada statute is not "unconstitutionally vague." They also referenced a case that was referred to during the oral arguments, Terry v. Ohio, 392 U.S. 1 (1968). The Terry case established that "an officer's reasonable suspicion that a person may be involved in criminal activity permits the officer to stop the person for a brief time and take additional steps to investigate further." The officer's questioning of Hiibel -- who was suspecting of being involved with criminal activity -- was thus constitutional as a "Terry stop."

Justices Breyer, Stevens, Souter, and Ginsburg dissented. Stevens objected to the constitutionality of a law which requires a person to identify himself:

In my judgment, the broad constitutional right to remain silent, which derives from the Fifth Amendment's guarantee that "[n]o person . . . shall be compelled in any criminal case to be a witness against himself," U. S. Const., Amdt. 5,4 is not as circumscribed as the Court suggests, and does not admit even of the narrow exception defined by the Nevada statute.

But the Fifth Amendment only applies to cases in which answering an officer's questions would incriminate the person of a crime. I cannot fathom a situation in which merely stating a name -- an objective fact readily available to the public -- automatically implicates a person of a crime. We are not talking about a police-state situation in which Hiibel, minding his own business, was asked to identify himself. The situation is Hiibel being implicated in "suspicious" activity (a bystander notified police that he was arguing with his daughter) and apparently drunk. His car is slightly off of the road. A police officer immediately sees this as suspicious. Is the daughter in danger? Is it even his daughter? Could it be a woman that he's beating? In order to begin an investigation at all and effectively do his duty in protecting the woman and the rest of us, the police officer needs to know who they guy is, and what he's doing here. Note that the language of the Nevada statute emphasizes that an officer can detain a person "only to ascertain his identity and the suspicious circumstances surrounding his presence abroad" (emphasis mine). The suspect may refuse to answer any other question, but he must identify himself.

Posted by Mark at 12:25 PM | Permalink | Comments (0) | TrackBacks (0)

After I read the rest of Cory Doctrow's Microsoft Research DRM Talk, I was struck by a point he made in the second half:

New media don't succeed because they're like the only media, only better: they succeed because they're worse than the old media at the stuff the old media is good at, and better at the stuff the old media are bad at. Books are good at being paperwhite, high-resolution, low-infrastructure, cheap and disposable. Ebooks are good at being everywhere in the world at the same time for free in a form that is so malleable that you can just pastebomb it into your IM session or turn it into a page-a-day mailing list.

The problem with Jack Valenti, the MPAA, the RIAA, and anyone who supported the DMCA (maybe if we charged royalties for the use of the letters "M" and "A" that would shut them up) is that they're living in the past. They expect new media formats -- the VCR, the CD, the DVD, the MP3, the eBook -- to behave like old media formats (the record, the cassette tape, the motion picture, the TV program, the print book). The problem is that new media formats open up a whole new host of opportunities for the consumer. The VCR, for example, allowed me to record One Life to Live while I was work and keep up on the intrigue going on in whatever town that's called on that show -- all without having to be there to watch it! The CD improved the quality of my music and allowed me to put more music into the same space. The DVD outdid the VHS tape by improving my picture quality and letting me watch a gazillion other things like director commentary, "making of" specials, and trailers. The MP3 outdid the CD in portability. I don't even carry around the few CDs I own anymore; all of my music is on my iPod, and it sure beats walking around with only one CD. I've got 3 gigabytes of CDs, however much that is. And I know people who have a lot more.

But, like all innovations, these new things can be used for the forces of evil. Cars killed people. People used the motion picture camera to make pornography. Xerox machines could be used to counterfeit things. Airplanes flew into the World Trade Center, but is anyone arguing that airplanes should be removed from American society because they can kill huge numbers of people? Of course not! Americans want innovation, and with innovation comes freedom. Americans, as President Bush is ready to point out to anyone who's listening, are a freedom-loving people. If a new technology can be be used for illegal purposes, but will offer a whole host of new conveniences (i.e. freedoms), then Americans will take the chance and opt for the convenience, even though these new innovations could be used for evil purposes. Our laws are the same way. Sure, some criminals can weasel their way out of jail by using the Fourth Amendment to their advantage, but that doesn't mean that we think the Fourth Amendment is bad. We would rather uphold everyone's rights rather than deny everyone those rights because a few people will use those rights to evil ends.

The DMCA, DRM, and the new INDUCE Act all remove the convenience and innovation of new kinds of media simply because that innovation could be used for, as the INDUCE Act argues, child pornography, or to violate copyrights. Although, when it comes to motion pictures, TV, or music, the ultimate concern is the bottom line: people might be able to steal content. Doctrow recounts Jack Valenti's Congressional testimony in 1982, where he told them "that the VCR was to the American film industry 'as the Boston Strangler is to a woman home alone.'" Copyright holders have opposed technology every time that a new technology has appeared. Why? Because it's a threat to their pocketbooks, which are invested in the old way of doing things. If people could suddenly makes their own VHS tapes, Valenti predicted, then it would be the end for movie studios. That never happened. In fact, movie studios embraced VHS and developed content specifically for that format. It made them far more money than they could have dreamed of -- because they didn't dream. They weren't innovative. When you're "The Man," innovation is a threat.

Doctrow also talks about how the market can squelch DRM. People decide what they want to buy, and the decision has been clear: people don't like DRM. Doctrow says:

When MP3 rolled around and Sony's Walkman customers were clamoring for a solid-state MP3 player, Sony let its music business-unit run its show: instead of making a high-capacity MP3 walkman, Sony shipped its Music Clips, low-capacity devices that played brain-damaged DRM formats like Real and OpenAG. They spent good money engineering "features" into these devices that kept their customers from freely moving their music back and forth between their devices. Customers stayed away in droves.

Customers are used to freedom. They want the ability to do whatever they want with the stuff they've bought. Customers, too, are operating on archaic notions of property: "This is mine, I bought it, it belongs to me, and I can do whatever I want with it." But customers will determine whether or not an innovation is "good" by virtue of their purchase of it or not. Content providers had better cater to customers' notions of property, or else they'll soon find customers "stay[ing] away in droves." Customers certainly aren't going to conform to the RIAA's notion of property; they'll go somewhere else.

Case in point. The iPod is a fantastical machine, but it has built-in limitations. You can only transfer songs from your comuter to the iPod. It doesn't go the other way. I found this out and was pretty upset with Apple. That doesn't make sense: what if I want to move a song back on to my computer? So, I looked on the Internet for an alternative to Apple's iTunes as a method for managing my music. And I came upon EphPod, which allows you to freely move your music between the computer and the iPod. This is capitalism at its most basic: I have a demand for a product, and Apple supplies me with a product. I don't like, so I'll go somewhere else.

Now that content providers like RIAA and MPAA have failed at capitalism, they're going to bring the government in. They know now that people hate DRM. It's like calling up Mitsubishi and asking permission to drive your car. Mitsubishi will say, "Do you promise not to run anyone over?" You'll say, "Yes," and Mitsubishi will allow your car to operate for an hour. After that, it quits working.

Rather than step up to the promise of new technology and its prospects for innovation (but also illegality), content providers will use the law to lock new technology into the paradigm of old technology. EBooks will be treated like regular books, MP3s like CDs, and DVDs like VHS tapes.

The public has already gotten a taste of what digital media can do, and it's not willing to give it up. If RIAA and MPAA wanted to stop the proliferation of digital media, they should have stopped it ten years ago. Now it's a part of our lives, and for it to be taken away will be akin to prohibition. Remember how well that worked?

At its heart, this debate is about money. "Intellectual property" is a great facade and a really big, neat-sounding word. But it's a proxy for "control." Content providers want to exercise as much control as they can over their content, extorting the most money they can out of consumers. If consumers have complete freedom over the content they have purchased, then perhaps they will use the content in ways that the Old Guard can't exploit. By locking down technology and keeping in the realm of what MPAA and RIAA can do, it is ensured that no one else will be able to use their content in any way except that which is dictated by them. They will have the keys to innovation and will choose to lock that room forever, since they cannot control what's inside. They're not visionary enough to come up with new ways to exploit the uses of new forms of technology, so it's better for them that no one else be able to, either.

Copyright law in this country cannot be dictated by a few Old White Men who would rather live in the past than the future. People must be allowed to innovate; they must be allowed the freedom to innovate and use new technologies in ways dictated by those technologies. This reminds me of The Fountainhead, where architect Howard Roark's designs are too forward-thinking for the common people. They are radically different and don't use any "classical" elements, they don't draw on the past. Roark believes that a building should stand on its own, without having to draw from the past: form follows function, and a skyscraper is not a Greek temple. Let it be said, then, that an MP3 is not a phonograph and an eBook is not a papyrus scroll.

Posted by Mark at 2:33 AM | Permalink | Comments (0) | TrackBacks (0)

How timely! In the Betamax case (Sony Corp v. Universal Studios, et al.), the Supreme Court said that Congress would have to use its judgment to create new laws that regulate copyright and new technology. Well, here it is, and it's a doozy. The author of the above article reminds us that this new law could override the Betamax decision and create that new legislative oversight for videotape recording that the dissenting justices in Sony v. Universal wanted.

This isn't the first time that the threat of child pornography has been used to squelch seemingly illegal activity. In 2002, the Supreme Court found parts of the Child Pornography Prevention Act unconstitutional. The Court said that virtual child pornography is not the same as actual child pornography: the child in question must actually be under age for the content to be illegal; it's not enough that he or she "appears" or is made to appear that way. The above article, from CNET News.com, offers the same concern:

At a minimum (the Induce Act) invites a re-examination of Betamax," said Jeff Joseph, vice president for communications at the Consumer Electronics Association. "It's designed to have this fuzzy feel around protecting children from pornography, but it's pretty clearly a backdoor way to eliminate and make illegal peer-to-peer services. Our concern is that you're attacking the technology."

Posted by Mark at 7:27 AM | Permalink | Comments (0) | TrackBacks (0)

Here's a question I bet you'd never thought to ask yourself: why is it perfectly legal to share your paper copy of, say, Don Quixote de la Mancha, but not your eBook? Your Adobe (or Microsoft) eBook Reader has special protections built into it, one of which could be a lock-down on sharing. The eBook can't be read by any other computer but yours. Here's another example. I just bought a copy of the latest Britney Spears CD, and I want to share it with my friends. If I give my friend the CD to listen to, that's perfectly legal. If I put them on my computer and share them with him, or burn a CD for him, that's illegal! Why is one form of sharing acceptable, but the other is not?

It's a question of money and scale. If I share my copy of Don Quixote with someone else, the game is zero-sum. There is only one copy of the book to go around, and if I give it to him, that means I don't have it. I can't reproduce the book. Or could I? Given enough money, I could buy desktop publishing software and a commercial printing press and then print copies of Don Quixote. But that's a bad example, because that would be perfectly legal. Miguel de Cervantes, who died in 1616, no longer has exclusive rights to Don Quixote. The work is in the public domain, which means that no one can proclaim that the book is his exclusive property; it belongs to everyone.

Let's take something that is copyrighted, like John Grisham's The Firm, a tantalizing tale of a corrupt law firm and the young, hotshot attorney who tries to bring it down. I paid $7.99 to buy the book. John Grisham, as the author, got some of that money. So did Bantam Dell, the publishing company which printed the physical book. Grisham couldn't do it on his own, since publishing a book is prohibitively expensive for a single person. So, he calls up a publishing company and says, "If you print my book, I'll give you such-and-such percent of the revenue." Bantam Dell says, "Okay," and prints the book. When I buy The Firm, I can lend it to my friend, but again, that's a copy of the book that I'll have to surrender for a while. I can't make more copies, because that would be prohibitively expensive for me.

The computer changes all that. The computer makes the preferred format electronic (as with an eBook), so the only thing you have to do is manipulate electrons. Fortunately that's exactly what a computer does. You can become your own publisher for only the cost of a computer and an Internet connection, which is much less expensive than the cost of a commercial printing press. In doing so, you have taken the place of the publisher: you are now producing copies of books. The only problem with this situation is that John Grisham, who owns the exclusive rights to his books, never said you could publish his books. You have just violated copyright law. This is a clearly delineated situation of a copyright violation: you don't own the rights to The Firm, so you can't publish it, because one of the consequences to having the rights to something is being able to charge whatever you want for it (in the publishing industry, anyway). It's just as if John Grisham owned a hardware store and I walked in and stole one of his hammers. His ownership of the hammer means that he has the right to choose to sell it to others or not. He has chosen to sell it to others -- but for a price. I took it without paying him for it.

Under the old, paper system, the prohibitive expense of publishing a book prevented piracy. But computers are not that expensive (unless it's a liquid-cooled, dual processor G5. Yikes!), so the barrier to stealing no longer exists. This is why companies like Adobe and Microsoft have installed DRM into their eBooks: because they know that you have the opportunity to easily share an eBook with others – you will, effectively, be republishing the book, but without paying John Grisham. At the same time, though, you have the right to share your book with others! The problem is that fair use laws were designed for a system in which actual reproduction was out of the question for the regular consumer. Now, it's not. Do we have to change our fair use laws? Allowing the consumer the complete freedom to use his eBook in whatever manner he sees fit may allow him to use the eBook in ways which violate the law, like sharing it with others, effectively republishing it (remember that digital duplication is perfect; there is no loss of quality when copying files. Every copy is exactly like the original).

The Supreme Court dealt with this very issue in 1983. Universal Studios and Disney sued Sony for its production of the Betamax, which allowed consumers to tape copyrighted content from the TV and watch it later. The case, Sony Corp. v. Universal Studios, et al. , 464 U.S. 417, 1984, would decide the fate of the newly-created Video Tape Recorder (VTR). Universal alleged that "VTR consumers had been recording some of [Universal's] copy-righted works that had been exhibited on commercially sponsored television and thereby infringed [Universal's] copyrights, and further that [Sony was] liable for such copyright infringement because of their marketing of the VTRs." The District Court sided with Sony, concluding that the use of a Betamax was fair use: "It emphasized the fact that the material was broadcast free to the public at large, the noncommercial character of the use, and the private character of the activity conducted entirely within the home." As long as the use was noncommercial (meaning the user didn't charge others to view it), it was okay. When the case came to the Supreme Court, it resulted in a 5-4 decision, with current Chief Justice (but then a regular Justice) William Rehnquist on the dissenting side. Justice Blackmun, who authored the dissenting opinion, noted that the Copyright Act of 1976 grants a copyright holder the exclusive right "to reproduce the copyrighted work in copies or phonorecords." There are exemptions to this law, but says Justice Blackmun, but the Copyright Act does not "[suggest] any intent to create a general exemption for a single copy made for personal or private use."

In the end, the Supreme Court had to make a choice: create a brand-new exemption for "home-use recording," or stick to the letter of the law and say, "Nope, there's no provision for home-use recording." The problem with the latter, stricter approach, is that there's no such provision because home-use recording was virtually impossible until the Betamax! A single consumer did not feasibly have the resources to reproduce a copyrighted work in his own home for his own purposes. The law was thus enforced by a financial barrier: a single person couldn't reproduce a whole work within the scope of fair use. Now, though, there was no barrier to reproduction. The Supreme Court, acting almost as a legislature, created an exemption for home-use recording.

Technology has changed again. Books can be as easily reproduced now as videotapes could be in 1984. Justice Stewart noted back then that it was impossible to manage how a person would use his VTR; that is, there was no way for Universal to be sure that you were using the VTR to record its content within the scope of your fair use rights. Now, there is, and this time, the law has caught up with the technology.

CDs became copy-protected, but the copy-protection technology was always cracked. Files could be shared. The Digital Millennium Copyright Act of 1998 (DMCA) was passed to make it illegal to circumvent copy-protection devices. Let's take that eBook, for example. I am allowed, under fair use, to quote passages from that book for use in reviews or in an academic environment. But the eBook (as some eBooks do) doesn't allow me to copy any of the text to my computer clipboard. Let's be clear, here: the software has just violated my fair use rights. At this point, I have no legal recourse. If I attempt to circumvent the copy-protection and exercise my rights, I will have violated the DMCA, which prohibits circumventing copy-protection devices. I'm not trying to share this eBook. I'm not trying to republish it, as it were. I'm merely trying to exercise the rights I have under the Constitution, and Adobe won't let me!

Fair use allows me to do any number of things within my own home: I can make copies of CDs, DVDs, or VHS tapes as long as I don't share them. DVD copy-protection prevents me from doing that. If I try to crack the copy-protection, I've broken the law. I must break the law to exercise my rights. That's a bit strange, isn't it? It's no wonder the DMCA isn't regarded very highly by civil rights organizations, including the ACLU and the Electronic Frontier Foundation.

When it comes to print media, there are no laws regulating how I may use the copy of The Firm I just bought. This is because financial barriers exist; there is no need for a law. On my computer, however, there are no financial barriers, so laws are necessary to regulate how I may use . . . well, my copy of The Firm I just bought. But what if I don't want to republish the work as my own? What if I just want to have the same ability to use it as I do my paper copy? Fair use doesn't distinguish between digital or print media. And what about my eBook of Don Quixote? If I bought a printing press, I could print as many copies of that as I wanted, and Miguel de Cervantes couldn't stop me. But the Adobe eBook Reader will stop me, even though my republication of that work violates no laws, since the work is in the public domain.

The U.S. is pushing for digital TV to be the standard, and with that, the Motion Picture Association of America (MPAA), a trade group composed of the major movie companies, is pushing for a broadcast flag to be inserted into all shows which would regulate what you can do with that show when it hits your TV. Theoretically, it could prohibit you from copying an episode of Dawson's Creek, which would take away your fair use rights. The Supreme Court ruled in 1984 that you have the right to tape that show, but if the MPAA has its way, that right might be taken away.

The laws should not change just because the format has changed. Fair use makes no distinction between format. Companies that insert DRM into their products assume that I'm a pirate from the moment I buy their products, but it's a minority of people who share files and crack DRM for malicious reasons -- and crack DRM they will, for they're smart people who aren't afraid of breaking the law. The Fifth Amendment guarantees that I will "not be deprived of life, liberty, or property without due process of law." When I go to the store to buy a DVD player and a new copy of Wet, Hot American Summer, I'm deprived of my liberty as soon as I walk out of the store.

Scott contributed to some of this article, but he doesn't have a webpage, and I'm not about to link to his email.

For a better analysis of DRM, read this discussion.

Posted by Mark at 5:10 AM | Permalink | Comments (0) | TrackBacks (0)

Dude, Where's My Country? by Michael Moore (New York: Warner Books, 2003), $24.95 (hardback; a paperback edition is also available), 249 pages.

The category of anti-Bush books is growing fast as we gear up for high-intensity election action this November. In one corner: incumbent president George W. Bush. In the other corner: looks like John Kerry, but we'd rather have someone else. Michael Moore wrote his book before the primaries, and thus his two picks were Howard Dean (like everyone else) and Dennis Kucinich (like everyone else who was sniffing paint thinner). The only other candidate Moore endorses is Gen. Wesley Clark; Kerry doesn't merit a mention, ostensibly because he came out of nowhere. No one expected Kerry to be the favorite -- but that's an entry for another day.

Moore's book, like his films, is full of demagoguery and appeals to "think of the children." At its best, Moore's work is finely crafted cuisine. At its worst, it's like a jelly-filled donut: it's terrible for you, but it's so good! Works of Moore's that resemble chapter 5 of this book get preachy and irritating. When I watched his film Bowling for Columbine, I knew I was being manipulated, but I was being manipulated so well! Moore succeeds where his Republican alter-ego Ann Coulter fails: in artistic flair.

Is it fair to compare Moore to Ann Coulter? Ten gazillion websites devote themselves to debunking the "facts" inserted in her books Slander and Treason. These debunkings, though, were always journalistic in nature: Coulter misused quotes to make us believe one source said one thing, when in fact he didn't. Or Coulter uses sources that mislead, have been proven wrong, or contain patently false information. I found a website devoted to debunking Michael Moore, but some of the critiques were not journalistic, but partisan and misinformed. In explicating the "Wonderful World" montage from Bowling for Columbine, the critic takes issue with Moore's assertion that the U.S. installed the Shah of Iran:

Mossadeq had no right or public mandate to overthrow Iran's legal ruler, nor did he have any right or public mandate to even be Prime Minister, let alone implement his radical Soviet-style reforms. The Churchill and Eisenhower administrations assisted the Shah's return from exile, and return to the throne. They did not "install" him, they returned him to the position he had legally held since 1941.

Does this mean it is the United States' business to return deposed dictators back to power when they are overthrown? Recall that the U.S. aided a minority coup in Venezuela in 2002. In that instance, we assisted in the overthrow of the popularly elected president by a small, unpopular minority that was not as left-leaning as the previous president. A few days later, the old president was installed.

In any case, Moore isn't perfect: he misrepresents the reason the Maginot Line failed during World War II. (The Line was not a series of bunkers whose failing was that they were facing the wrong way; it was a series of trenches that spanned almost the length of the French-German border. Where there was no line, there was "unpassable" forest. Unfortunately for the French, the Germans found a way through. They also went through Belgium, bypassing the Line completely.)

Don't be suckered in by Moore's demagoguery. Be suckered in by his facts, many of which are fascinating. He exposes links between the House of Saud and the Bushes (George H.W. Bush even has a nickname for Prince Bandar of Saudi Arabia: "Bandar Bush." That implies some closeness, don't you think?). He also exposes the links between Enron, George W. Bush, and the Taliban in the early '90s, right before the Taliban took hard-line control of Afghanistan:

Unocal [the oil company chaired by George W. Bush] would pay off the Taliban to build their pipeline through Afghanistan and into Pakistan. They were then planning to build an extension on that popeline that would run into India and stop at New Delhi. At the same time, Enron was planning to build a pipeline from Dabhol to New Delhi where, of course, it could meet up with the Turkmen pipeline, bringing Unocal and Enron together. (pp. 31-2)

It appears that George W. knew Kenneth Lay, CEO of Enron, quite well; his nickname for him was "Kenny Boy." Later, after Enron went bankrupt, Bush acted as though he didn't know who Kenneth Lay was, even though they had had dealings together in the past.

Moore exposes lots of interesting things, like our reasons for going to Iraq. Even though our new reason -- once we couldn't find WMDs -- was to "liberate" the people there from Saddam, Moore correctly points out that "the United States never gave a rat's ass about how badly Saddam the Dictator treated his own people. We never care about that stuff. In fact, we like dictators! They help us get what we want and they do a great job of keeping their nations subservient to our galloping global interests." Indeed, the U.S. does love dictators. In the Cold War, it didn't matter how brutally repressive a dictator may have been -- as long as he wasn't a communist, then he was our buddy (this happened quite a bit in Central and South America). It usually took a popular uprising to oust the dictator, although sometimes -- as was the case in Chile -- the dictator came back, with U.S. help. Most importantly, Moore reminds us that we supplied Saddam during the Iran-Iraq war and that if he ever used chemical weapons on his own people, we had supplied them to him.

Sometimes, Moore borders on socialism as he suggests that Americans deserve this thing or that thing, but otherwise, his observations about corporate America are dead on. They have their sticky fingers in both parties, but Bush especially is in the pockets of special and corporate interests. For anyone who wants to know why Bush should be kicked out of office in November, this is a must read.

For anyone who wants to know about Bush and play a great video game, visit The Anti-Bush Game, from the people that brought you The Emo Game.

Update: After writing this entry, I went back to the Internet to see if there were other sites that were critical of Moore's facts. Apparently, the bi-partisan (and to-be-trusted) website Spinsanity takes a beef with at least seventeen instances of inaccuracy or lying on Moore's part. Unlike the previous website listed, Spinsanity does not make partisan politics out of the issue, nor does it dispute facts (despite his being a socialist, Salvador Allende was democratically elected by his people, contrary to what the website would have you believe). Spinsanity focuses (rightly so) on inaccuracies of fact in Moore's book.

Posted by Mark at 2:21 AM | Permalink | Comments (0) | TrackBacks (0)

Rush or Sean Hannity always complains about his "right" to own an SUV. But what if an SUV is so bad for the environment it should be illegal? It happened with leaded gasoline. Cars must meet minimum environmental standards because Sean or Rush isn't the only person who lives on planet Earth. The folks at Car Talk have come up with a list of reasons why no one needs to own an SUV. Like their radio show, it is highly hilarious. And this comes from the point of view of Tom and Ray as expert car mechanics, not them as crazy hippies.

Posted by Mark at 9:48 AM | Permalink | Comments (0) | TrackBacks (0)

The last reinstall of Movable Type didn't work so much since I had set it up for mySQL support, not remembering that the old installation used MT's built-in BerkleyDB support. Whoops! Fortunately, I was able to reinstall from the ground up. All the URLs have returned to normal, and everything should be working. Email me if there are problems.

Posted by Mark at 9:05 AM | Permalink | Comments (0) | TrackBacks (0)

Visitors to the site between 1:30 PM and 3:00 PM may not have been able to access it. I was upgrading to Movable Type 3.0. That is complete and everything is fine now.

Posted by Mark at 3:00 AM | Permalink | Comments (0) | TrackBacks (0)

Seriously, John Leo is great. I've been reading his columns since the eighth grade, when, as a computer lab aide in the school library, I got bored and started looking at magazines. As I flipped through U.S. News and World Report, I happened by his column, which is called "On Society." John Leo was probably complaining about the restrictive "speech codes" at a university somewhere, which is one of his favorite things to do (the other is to shed light on dopey laws). This week's Leo column is about arguing. In this day and age, Leo says, commentators, pundits, editorialists, and everyone of their ilk spend too much time preaching to the choir. He quotes P.J. O'Rourke (another stand-up guy) in this month's Atlantic Monthly: "Arguing, in the sense of attempting to convince others, seems to have gone out of fashion with everyone." Ann Coulter, Bill O'Reilly, Rush Limbaugh, Michael Moore, and Al Franken aren't writing (or speaking) in order to persuade a group of people who don't think like them to think like them. Their audiences are people that already agree with them!

Leo laments the loss of "arguing," although I'd much rather call it "debate." In my mind, "arguing" is two people expressing their views to each other without any hope of persuasion. In a debate, each person is trying to persuade the other. The end result of this lack of debate is a lack of anything fundamental coming out of arguing. Rush complains about liberals. Michael Moore complains about Bush. Ann Coulter is an evil cyborg from Hell. Where does this all get us? Nowhere! Debate involves Hegelian dialectics: an idea (a thesis) and its opposite (an antithesis) combine, creating a new idea (synthesis). This is how history moves foward: ideas and their opposites coming together (compromising, to use a word that Rush hates) to form a new idea which retains parts of both old ideas. Instead of a fine mixture of new ideas, the culture of argument mixes as much as two cinder-blocks smashing together.

If we never put our opinions to the test of debate, how will we know if they're right or not? When I have an opinion, I perform the test described by Leo:

If we wish to be engaged in serious argument, Lasch explained, we must enter into another person's mental universe and put our own ideas at risk. Exactly. When a friend launches an argument and your rebuttal starts to sound tinny to your own ears, it shouldn't be that hard to figure out that something's wrong -- usually, that you don't really agree with the words coming out of your own mouth. Arguing can rescue us from our own half-formed opinions.

If I can't defend my own arguments, either morally or factually, then I immediately think there must be something wrong with my position. And I'll change it, if necessary. Our atmosphere of preaching to the choir works in a society where we're all the same -- but we're not. John Milton thought that no belief we held could be true until it stood the test of its antithesis. Want to test your chastity? It's not enough to say you're chaste: you have to test it in an unchaste environment (maybe when you're trapped in Comus's lair?). Learning the fine art of "convincing" is all but lost these days.

Entry #100! Woo!

Posted by Mark at 12:31 PM | Permalink | Comments (0) | TrackBacks (0)

The so-called Pledge of Allegiance case is over, and the Supreme Court managed to scrape by without having to do anything. The high court today published its decision in the case Elk Grove Unified School District v. Newdow (02-1624). Newdow was suing on behalf of his daughter, arguing that the phrase "under God" in the Pledge of Allegiance was unconstitutional. In an 8-0 decision (well, sort of -- 5 members agreed with both the outcome of the case and the rationale, while 3 agreed with the outcome but disagreed with the rationale), every member of the Court chickened out and agreed that, since Newdow did not have legal custody of his daughter, then under California state law, he had no standing to bring the suit. The suit was dismissed altogether. Justice Scalia recused himself from the case, since he publicly declared his opposition to the Ninth Circuit's decision a few weeks after it was announced, in 2002.

Bah! Rather than upset a good portion of the nation, the Supreme Court found a way to weasel its way out of making any kind of decision. It didn't say Newdow was correct; nor did it say he was incorrect, instead ruling on a procedural technicality. While Newdow would be able to bring a suit as his daughter's "next friend," the next friend must be someone who shares the petitioner's interest in the case. In this instance, "the interests of this parent and this child are not parallel and, indeed, are potentially in conflict," wrote Justice Stevens, delivering the majority opinion. Though Newdow may want to have an interest in his child's upbringing, the question of the mother's decisions are also at issue. The girl's mother, Sandra Banning, disagreed with the suit, and "a state-court order granted her 'exclusive legal custody' of the child, 'including the sole right to represent [the daughter's] legal interests and make all decision[s] about her education' and welfare." As interested as Newdow may be, he has no legal standing to bring the case in the first place. The majority opinion didn't say a word about the constitutionality of the Pledge of Allegiance.

In various concurring opinions, the justices weigh in on the constitutionality issue. Chief Justice Rehnquist introduces his opinion by observing, "The Court today erects a novel prudential standing principle in order to avoid reaching the merits of the constitutional claim"; that is, the court skirted the issue by simply ruling that Newdow had no standing to bring the suit in the first place. Rehnquist decided that the issue -- which, by the way, is whether or not teachers must lead willing students in the Pledge -- is constitutional. Rehnquist writes that he does "not believe that the phrase 'under God' in the Pledge converts its recital into a 'religious exercise.'" His reasoning, though, is a bit dubious:

The Constitution only requires that schoolchildren be entitled to abstain from the ceremony if they chose to do so. To give the parent of such a child a sort of "heckler's veto" over a patriotic ceremony willingly participated in by other students, simply because the Pledge of Allegiance contains the descriptive phrase "under God," is an unwarranted extension of the Establishment Clause, an extension which would have the unfortunate effect of prohibiting a commendable patriotic observance.

This reasoning only works if you believe that the phrase "under God" doesn't turn the Pledge into a coercive religious exercise. Justice O'Connor and Justice Thomas joined Chief Justice Rehnquist, but filed separate concurring opinions. Rehnquist gives examples of half a dozen government officials, from George Washington to Abraham Lincoln to Woodrow Wilson, who all mentioned "God" while making official speeches. Having "Under God" in the Pledge of Allegiance is merely an acknowledgment "that our national culture allows public recognition of our Nation's religious history and character. In the words of the House Report that accompanied the insertion of the phrase 'under God' in the Pledge: 'From the time of our earliest history our peoples and our institutions have reflected the traditional concept that our Nation was founded on a fundamental belief in God.'" While this may be tradition, it is not law. The Constitution says that the law comes from it, and not from God. In fact, it expressly forbids the state from taking any side in the issue of whether or not there is a higher being ("Congress shall make no law respecting an establishment of religion").

Rehnquist calls for an interesting test to determine whether or not "under God" is constitutional:

There may be others who disagree, not with the phrase "under God," but with the phrase "with liberty and justice for all." But surely that would not give such objectors the right to veto the holding of such a ceremony by those willing to participate. Only if it can be said that the phrase "under God" somehow tends to the establishment of a religion in violation of the First Amendment can respondent's claim succeed, where one based on objections to "with liberty and justice for all" fails.

The only problem with this test is that a person who wants to object to "liberty and justice for all" has no objection in the courts. Where is the law which prevents the state from promoting patriotism? There is no such law; however, there is a law under which someone who objects to "under God" could make a case. This is, of course, the First Amendment.

Justice O'Connor, concurring, opted for the "ceremonial" approach -- namely, that the use of "God" in public ceremony is an acknowledgment of history. No one can argue (without benefit of strong drugs) that the founders of this country didn't believe in God, and references to God like those found in the Pledge merely refer to this past:

Given the values that the Establishment Clause was meant to serve, however, I believe that government can, in a discrete category of cases, acknowledge or refer to the divine without offending the Constitution. This category of "ceremonial deism" most clearly encompasses such things as the national motto ("In God We Trust"), religious references in traditional patriotic songs such as the Star-Spangled Banner, and the words with which the Marshal of this Court opens each of its sessions ("God save the United States and this honorable Court"). See Allegheny, 492 U. S., at 630 (opinion of O'Connor, J.). These references are not minor trespasses upon the Establishment Clause to which I turn a blind eye. Instead, their history, character, and context prevent them from being constitutional violations at all.

O'Connor differentiates ceremonial deism from actual prayer, and says that only a prayer can be "an establishment of religion." Her argument amounts to, "Well, we're all Christians, anyway, so what does it matter?" It's difficult to imagine a locality where such a benediction would be inappropriate, since Jews, Christians, and Muslims would be the ones in power anywhere in this country -- and they all share the same belief in a single god; in fact, He is the same god in each instance!

None of the justices deals with the fact that the original Pledge of Allegiance had no reference to God in it. Francis Bellamy, cited as the author of the Pledge of Allegiance (although it may have been authored by a committee), did not mention God in the original version. The original version read thus: "I pledge allegiance to my Flag and the Republic for which it stands: one Nation indivisible, with Liberty and Justice for all." It wasn't just a simple mistake that the "ceremonial" deity was left out. The Pledge was presented for the first time at the World's Fair in Chicago in 1892. It was made the national Pledge in 1945, but "under God" didn't become a part of it until 1954! Historians agree that "under God" was added during the Red Scare of the 1950s as something else which we could unite under against the Godless Communists. "Under God" was not ceremonial; rather, it was intended to be divisive, to separate the God-inspired "us" from the hateful "them."

But there will be other cases, brought by people with better standing. No harm, no foul for the country. This time.

Posted by Mark at 4:02 AM | Permalink | Comments (1) | TrackBacks (0)

Slashdot reports that Microsoft is going on a "myth-busting" tour to expel the "myths" surrounding Linux: apparently, Linux costs companies more in the long run and is less secure than Windows. We are supposed to laud Microsoft for having "a fix available 25 days after a security issue was publicly disclosed." That's great. The alternative is not having security issues in the first place, like our friend Linux.

See also: ZDNet, "Microsoft Goes on a 'Myth-Busting' Tour."

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While the Bush Administration attempts to remain as secretive as it can, refusing to divulge records, often on nebulous "national security" grounds (where there is little or no national security at stake), Governor Bob Holden took a step in the opposite direction on Monday by signing into law an expansion of a Missouri "sunshine law."

A "sunshine law," as its name suggests, provides government accountability by requiring records to be available to the public. "These laws are called sunshine laws because they reflect the American sentiment that opening up government records for public scrutiny -- or in other words, letting in the sunshine -- is a uniquely beneficial endeavor," said Holden.

Most notably (for me, anyway), "the new law makes clear that the University of Missouri's governing Board of Curators — which has lost costly legal fights over its closing of records — is subject to the law, like other public governmental bodies." At Miami University in scenic Oxford, Ohio, our Board of Trustees can be very secretive. Notes that Board members make must be left with the Board's staff secretary. The public is not allowed in on the Board's "executive session," and neither are the two student members of the Board. (Ohio state law requires that university boards of trustees have two student members, appointed by the Governor.)

Missouri's new sunshine law imposes stricter fines on government entities that withhold public information. Under the old law, the fine was $25 for withholding information. Since the fine was so small, "people who have been accused of violating the Sunshine Law have been able to stand behind the excuse that they were ignorant of the law" and pay the fine, said sponsoring Rep. Jack Goodman. No other violater of the law can use that kind of excuse.

The law also imposes a state-wide rate of ten cents per page for photocopying government documents. This prevents governments from inflating the price of copies as a deterrent to getting the documents in the first place.

The new law was drafted after a state auditor's report revealed in 2001 that the existing sunshine law was "inadequate." When requests for documents were submitted, "about 44 percent of the governmental entities surveyed either did not respond, responded untimely or improperly denied a request." The auditor's report is frightening for those of us who value an open government:

Three entities refused to provide the requested records unless the citizen explained why they want the information, which is not required by the Sunshine Law. One agency’s attorney offered this reason to deny: "It will be necessary for you to be more specific as to what you need and for what purpose before we can comply . . ."

This law is the best step in the right direction for government accountability, and both Governor Holden, the Missouri Senate, and the Missouri House (which passed the bill 121-18) should be given medals for their efforts to make government more open and less obscured. The Bush Administration could learn a lesson from Missouri (especially John Ashcroft, who comes from Missouri!).

Posted by Mark at 8:58 AM | Permalink | Comments (0) | TrackBacks (0)

While the rest of the world greeted Tuesday as just another day, the Supreme Court handed down a decision in the case of Yarborough v. Alvarado. Alvarado, a 17-year-old just shy of his 18th birthday (though this is not an issue), participated in auto theft and murder with his friend Paul Soto. The police, who suspected Alvarado, contacted his parents and asked them to bring him to the station house. His parents informed him that the police wanted to see him, and the parents drove him to the station house. The parents asked to be present for the questioning, but were told they couldn't. Besides, said the police, it wouldn't be very long, anyway -- though it ended up being a two-hour questioning. At no point did the police ever tell Alvarado he was under arrest. Alvarado, of course, admitted guilt, and the police arrested him. At trial, Alvarado tried to have his confession dismissed on the grounds that he had never been given a Miranda warning (cf. Miranda v. Arizona, 384 U.S. 436 [1966]). The trial court denied his request, since his interrogation was "non-custodial," meaning he was not in police custody and was free to leave at any time. A U.S. District Court affirmed the trial court's decision, but the Ninth Circuit Court of Appeals reversed the decision, insisting that "the state court erred in failing to account for Alvarado's youth and inexperience when evaluating whether a reasonable person in his position would have felt free to leave." The U.S. Supreme Court, in a 5-4 decision, reversed the Ninth Circuit's ruling, holding that Alvarado's confession was permissible and that a Miranda warning was unncessary, since he wasn't in custody. Justice Breyer, however, writing the dissenting opinion, asks:

What reasonable person in the circumstances -- brought to a police station by his parents at police request, put in a small interrogation room, questioned for a solid two hours, and confronted with claims that there is strong evidence that he participated in a serious crime, could have thought to himself, "Well, anytime I want to leave I can just get up and walk out"? If the person harbored any doubts, would he still think he might be free to leave once he recalls that the police officer has just refused to let his parents remain with him during questioning? Would he still think that he, rather than the officer, controls the situation?

This decision is nothing new. The Court is merely reaffirming the Miranda rights with which we are all familiar. Under so-called Miranda rights, police are required to inform a suspect of his constitutional rights prior to interrogating him: that he has the right to remain silent (Fifth Amendment guarantee against self-incrimination), but that anything he says can be used against him; that