Kagan: You Have the Right To Free Speech, So Long As The Government Decides The Social Harm of Your Speech Doesn't Outweigh the Benefits
— Ace

“Whether a given category of speech enjoys First Amendment protection depends upon a categorical balancing of the value of the speech against its societal costs.”

-- Ellen Kagan, arguing, in her role as Solicitor General for the United States of America, that depictions of animal cruelty were unprotected by the First Amendement

The animal cruelty videos sought to be outlawed were "crush" videos, which feature women either barefoot or in heels crushing and killing small animals (such as mice) and insects.

Yes, apparently there are some guys who get off on this.

There are two mitigating factors to this. First of all, she was writing as Solicitor General, representing her client (the United States), and so her claim does not necessarily reflect her reasoning; however, as we know that lawyers are often compelled by conscience, it seems, to defend terrorists, we also know that lawyers can exercise their prerogative to refuse to make an argument they believe is false or unconstitutional. (Indeed, canons of ethics often require them to do so.)

Even in the US military Kagan hates so much, a soldier is required to disobey a direct order if he believes it is unlawful. Even when lives are on the line.

So, while Kagan wasn't necessarily advancing her own beliefs, we know this statement wasn't so transparently unconstitutional to her to cause her to refrain from making it.

The other mitigating factor is that there are, in fact, broad categories of speech that is unprotected (or much less protected) by the First Amendment -- pornography, famously, although pornography in recent years has pretty much become an empty set, and almost no material, no matter how obscene, will be found to be in that set of less-protected speech.

But within pornography, the subset of child pornography is still very much outside the standard protections of the First Amendment. In many instances such protections make perfect sense -- filming actual children having sex is an illegal act in and of itself, nevermind any later communication of such an act, so that can be outlawed as illegal-in-the-first-instance, and it can be fairly said that each retransmission of the recorded act constitutes a new crime and a new violation of the minors.

But even child porn that doesn't actually involve any children is outlawed (books, cartoons, video simulations), on the tenuous, and potentially catastrophic, theory that such material encourages law-breaking in this area. That precedent is potentially lethal to the First Amendment -- almost all controversial speech is likely to "encourage" some sort of illegal or at least taboo action. That's what makes it controversial.

And given that, that major exception to First Amendment protection ought to be extended to other spheres with utmost caution.

Kagan argued in her brief that cruelty to animals was similarly an interest so compelling as to justify a new unprotected category of free speech.

I can sort of understand the impulse to criminalize barbaric (but expressive) acts. Certainly these are loathsome people, creating and transmitting loathsome images.

But shouldn't someone committed to free expression have some trepidation about establishing the precedent that any speech -- not just a narrow carve-out for child porn -- which creates more "harm" than "benefit" is in fact illegal and punishable by imprisonment? And who actually makes that call?

The First Amendment would wind up protecting popular speech only -- or speech favored by the ruling political establishment, even if it's not generally popular among the public -- and that sort of speech hardly needs any protecting at all.

Kagan's brief is here. (She did not argue this in person before the Court.) The Court's decision is Kagan's argument lost 8-1, in an opinion penned by CJ Roberts.

Dissenting? Sam Alito, actually. Who bought the child-porn exception analogy, and who wrote that the interest here was compelling enough to limit free speech rights. And who, presumably, thought that just one more exception wouldn't be all that dangerous, because of course we can keep it limited to just this exception and that one only.

I don't know -- the thing is, if you buy into the government's reasoning on child porn that doesn't actually harm children directly, you can in fact justify an awful lot of speech which causes "societal harm" in one way or another. I think the important thing is to restrict this sort of thinking to just this one single exception-- okay, we'll fudge the Constitution there a little, because children are so incredibly important, but that's it. Don't take this deviation as precedent and extend it still further.

But given that Alito bought into Kagan's argument, I don't know how much traction criticism of her brief can get.

In another context, Kagan seemed to have more regard for animal life than human life, too.

In 1995 and 1996, future Supreme Court nominee Elena Kagan was involved in a bizarre controversy in which the Clinton White House was accused of siding with an eco-terrorist group locked in a standoff with federal agents deep in the woods of Oregon. The incident led to an investigation by House Republicans, who concluded that a staffer on the White House Council on Environmental Quality tipped off the environmental radicals to impending action by U.S. Forest Service law enforcement agents -- a leak that Forest Service officials believed endangered the lives of their agents on the ground.

Kagan, at the time an associate White House counsel, had no role in leaking the feds' plans to the radicals, but House Committee on Natural Resources investigators concluded she shirked her responsibility by not searching for the source of the leak or pushing for punishment of the leaker.

"Nothing was ever done by Elena Kagan to learn the details about the leaks, or to identify the leaker and ensure that proper punishment occurred," the committeeÂ’s 1999 report concluded. In fact, investigators found evidence suggesting that Kagan, in internal White House discussions, defended the alleged leaker.

In fact...

What the House did find, in examining the notes of a Justice Department official involved in the matter, was that a senior CEQ official, a woman named Dinah Bear who had wide contacts in the environmental community, was widely suspected by colleagues of having been the source of the leak.

What role did Kagan play in all of this?...

[A]round July 1996, Kagan and other administration officials learned of the leaks to the protesters and of suspicions that Dinah Bear was the leaker. But nothing happened....

Kagan, the report says, went even further. Investigators found an email from Bear to another official of the CEQ in which Bear wrote, "Elena went out of her way to go to bat for yours truly, which was quite decent of her." When House investigators asked the White House for Kagan's notes of her discussions with Dinah Bear, the White House refused to provide them. A White House lawyer told House investigators that the documents were "subject to claims of attorney-client, work product, deliberative process, and presidential communications privilege, which are subsumed, for these purposes, under the rubric of 'executive privilege.'"

A possible explanation for this is this was Administration kabuki, with Dinah Bear expected to/permitted to/even ordered to leak, in order to scare the enviros out, and Clinton's people didn't want to own up to that, so they just refused to participate.

But that's just speculation. Equally likely is that Dinah Bear leaked on her own, tipped off armed extremists of a coming federal move, and Kagan decided, on her own initiative, that in the case of some sorts of speech, like leaking to lefties, the social benefits outweigh the social harms and so are protected by the First Amendment, even if they're illegal on their face.

Hard Cases Make Bad Law: So says an old truism. The idea that in a hard case -- like child porn -- you will often end up with a bad law, or at least a bad precedent. That is, a hard case will often cause you to go a little apeshit, and bend the Constitution here and there to address the problem -- the hard case.

"Hard cases make bad law" is a general observation, but it has a more particular advisory meaning too: A hard case makes bad precedent, so don't go taking the precedent established for that hard case alone and start expanding it and pretending it has general applicability, because seriously, it doesn't, or at least it shouldn't.

Here are two examples, both relating to the Commerce Clause: During the Depression, the federal government was suddenly discovered to have the power to regulate almost all economic activity, because even if much economic activity was purely intrastate (within the state's boundaries), that trade "affected" interstate commerce indirectly.

The precedent was established because Ohmygod we have to do something! And then extended still further.

The Civil Rights Act made discrimination a federal issue and made it illegal for any business even sorta-kinda near a federal highway or airport to discriminate, claiming that discrimination sorta-kinda hindered interstate travel. Which was true enough. And defensible enough. But later it was expanded to basically give Congress the power to intervene in purely intrastate affairs, because, again, Ohmygod we have to do something!

Ultimately, it just got silly, as they just stopped even pretending to have any sort of genuine constitutional authority for laws:

Daniel v. Paul, 395 U.S. 298 (1969), ruled that the federal government could regulate a recreational facility[serving an almost exclusively intrastate clientele] because three out of the four items sold at its snack bar were purchased from outside the state.

And that sort of thing continued, to the point where the Commerce Clause justified any exertion of power by the federal government you could imagine, including establishing federal gun-free zones around purely local schools. (Well, schools prepare children for work, and work is an economic activity, so within 20 years all these students will be indirectly affecting national commerce, sooo....)

Well, that last one was rolled back, ruled unconstitutional, but they were sort of blindsided to find out that that "We can do whatever we want" precedent had some limits: note that was the first act of federal government ruled to be in violation of federal principles since the New F'n' Deal. From 1936 (or so) to 1995 nothing the federal government did was ever found by the Court to exceed the limits of the Commerce Clause power.

Hard cases created bad precedent, which should not have been extended any further than their original ambit. They started out already pretty bullshitty, justified chiefly by the Ohmygod we have to do something! secret clause of the Constitution, and so were suspect from the outset. But they were treated as precedent as good as any other, and... well, as it currently stands, even with some rollback by more federalism-minded Courts, the Commerce Clause justifies almost anything.

You really have to make sure that exceptions don't swallow the rule. A "social harms balancing test" would surely swallow the whole of the First Amendment, if anyone took child-porn precedent as generally-applicable principle, which, thankfully, they don't.

Posted by: Ace at 11:57 AM | Comments (153)
Post contains 1889 words, total size 13 kb.

University of California at San Diego Student Tells David Horowitz She's Up For Another Holocaust
— DrewM

Shockingly, she's a member of the Muslim Student Association.

You have to stick with it to the end for the real (but not very surprising) gut punch but it's worth it.

I love how she starts it off with the traditional liberal pablum about dialogue and exchanging ideas. She isn't interested in exchanging ideas, she's interested in seeing Jews die a the hands of her coreligionists.

There are always going to be cranks and nasty pieces of works in the world but right now, we are in the business of creating them through what our schools do and do not teach.

Fortunately people, (Arizona again) are starting to say, 'enough!'

Arizona Gov. Jan Brewer has signed a bill targeting a school district's ethnic studies program, hours after a report by United Nations human rights experts condemned the measure.

State schools chief Tom Horne, who has pushed the bill for years, said he believes the Tucson school district's Mexican-American studies program teaches Latino students that they are oppressed by white people.

Public schools should not be encouraging students to resent a particular race, he said.

"It's just like the old South, and it's long past time that we prohibited it," Horne said.

...The measure signed Tuesday prohibits classes that advocate ethnic solidarity, that are designed primarily for students of a particular race or that promote resentment toward a certain ethnic group.

The Tucson Unified School District program offers specialized courses in African-American, Mexican-American and Native-American studies that focus on history and literature and include information about the influence of a particular ethnic group.

Is this law 100% right? I honestly don't know. But, unlike the young lady above, it will certainly create a dialogue about what kind of country we are and what kind of values we will teach our kids in schools.

The left won the last round of the culture wars by winning among other institutions the academy. As always, when the left wins they want to claim the debate closed forever and always, anyone thinking otherwise is racist. Well tough.

We have ample evidence now about the kind of country they would have this become and not everyone is on board. Now they are going to have to defend what they have wrought and they are going to have to do better than cry 'racism' if they want to keep it.

This is America and while dissent is not ipso facto patriotism but it sure as hell is allowed.

Posted by: DrewM at 11:03 AM | Comments (302)
Post contains 441 words, total size 3 kb.

Free mortgage tax credit giveaway ends, applications plunge 9.5%
— Purple Avenger

An instantaneous 9.5% decline in an already punk market is change you can believe in.

...One full week after the tax credit's expiration, mortgage applications fell 9.5 percent; this as mortgage interest rates dropped below 5 percent.

Sure, refis jumped, but that doesn't help us much with the currently bloated inventory of homes on the market...

I wonder how all the previous buyers will feel a couple of months from now who took the $8K giveaway? With demand cratering by close to 10%, its quite possible that taking the "free money" from Obama's stash will in fact wind up costing them more than the tax credit they got if prices collapse even further due to weakened demand and the million or so additional foreclosed units that will be hitting the market over the next year.

Is it possible that people keen to get the (supposedly) "free" money were competing with each other driving the recently touted price rebounds? Yea, it is.

Is it possible forgoing the "free" money, waiting a bit, getting a lower rate and a lower price has a better payoff than taking the freebie? Yea, it is.

Posted by: Purple Avenger at 10:51 AM | Comments (85)
Post contains 212 words, total size 1 kb.

Our Post-Partisan, Uniting President: "Limbaugh Can Play With Himself"
— Ace

Can you feel Red and Blue America coming together in amity?

When President Obama was asked if he would play a round of golf with his talk-radio nemesis Rush Limbaugh, the response, relayed by a top Democrat, was: "Limbaugh can play with himself."

This is according to Zev Chafets in his new book, "Rush Limbaugh: An Army of One," due May 25 from Sentinel.

The caustic comeback is another example of the verbal venom between the White House and the conservative radio star. In an interview with CBS News last month, Obama called the views spelled out by Limbaugh and Fox News Channel's Glenn Beck "troublesome."

The question was asked of Limbaugh, too, who said of course he'd play golf with the President -- any president. But, Limbaugh predicted, it could never happen, as Obama's leftist base would have a "sh-t fit."

Limbaugh's a kook, eh?

Oh, and since Obama makes cutesy sexual double-entendres in his disses, I think it's more likely Obama knew exactly what he was saying when he referred to "teabaggers."

In two completely unrelated stories: A man with the commonplace name "Richard Smith" decided to change his name to something more memorable. He settled on Stormhammer Deathclaw Firebrand.

This trumps the previous record-holder for silliest bad-ass legal name-change, established in 2008 by Captain Fantastic Faster Than Superman Spiderman Batman Wolverine Hulk And The Flash Combined.

(BTW, that last one is an old story -- two years old -- but it seems to be getting "re-broken" lately for some reason.)

Posted by: Ace at 10:27 AM | Comments (138)
Post contains 271 words, total size 2 kb.

Milbloggers Ready for DADT Repeal
— Gabriel Malor

In a joint statement, leading military bloggers support repeal of "Don't Ask, Don't Tell." But there are two important caveats: first, that Congress allow the Department of Defense to complete it's review on implementation of the repeal. Second, that Congress then repeals it according to the Department's recommendations.

A lot of well-known milbloggers cosigned, including Uncle Jimbo, Mark Seavey from This Ain't Hell, and Bruce McQuain from Q&O.

Definitely click over and read Bruce's additional thoughts about gays in the military.

The joint statement and list of cosigned milbloggers is below the fold. more...

Posted by: Gabriel Malor at 10:21 AM | Comments (78)
Post contains 387 words, total size 3 kb.

Now It Can Be Told: CBO Says Health Care Will Cost $115 Billion More Than They Originally Estimated
— DrewM

Well, that's why God created erasers the delete key.

The revised figure is due to estimated costs to federal agencies to implement the new health care reform bill – such as administrative expenses for the Internal Revenue Services and the Department of Health and Human Services -- and the costs for a "variety of grant and other program spending for which specified funding levels for one or more years are provided in the act."

CBO had originally estimated that the health care reform bill would result in a net reduction in federal deficits of $143 billion from 2010-2019; this revised number would eliminate most of that savings.

In a statement, House Minority Leader John Boehner, R-Ohio, said that the new CBO analysis "provides ample cause for alarm. This comes just weeks after the Obama administration itself released an analysis confirming that the new law actually increases AmericansÂ’ health care costs. The American people wanted one thing above all from health care reform: lower costs, which Washington Democrats promised, but they did not deliver. These revelations widen the serious credibility gap President Obama is facing."

Office of Management and Budget spokesman Kenneth Baer said in response that the health care law "will reduce the deficit by more than $100 billion in the first decade, and that will not change unless Congress acts to change it. If these authorizations are funded, they must be offset somewhere else in the discretionary budget. The President has called for a non-security discretionary spending freeze, and he will enforce that with his veto pen."

It's interesting that the increased costs come from added overhead.

Democrats complained that private insurance was inefficient and had to much overhead and not enough patient care money. Meanwhile they are adding billions and billions of dollars in, er, overhead to their plan.

This kind of variable is something you think the government would have a better handle on from the start. They have a lot of experience, unfortunately, of starting programs and staffing them. You'd think they be able to have their implementation cost estimates last more than 2 months before they started going up. Guess not. I wonder how much these overhead costs will rise in the next 4 years when the program really starts to kick in.

Administrative costs should be one of the most predicable variables in this monstrosity. What do you think is going to happen to real spending on programs (where the big money is) when bills start coming in from unpredictable things like people and their various illnesses. How long do you think the fake CBO numbers on actual health care costs 5 or 6 years from now will stand up? Yeah, just like all other government entitlement programs...way more costs than estimated.

But don't worry, it's not as if we are already in debt up to our necks and living on borrowed money. Oh wait.

Seems one side in this debate knew this would happen all along and the other lied about the costs. When will opponents of the health care law get their apology from Democrats and the MFM? Right, as soon as the ice age gets to Hell.

Posted by: DrewM at 06:27 AM | Comments (309)
Post contains 562 words, total size 4 kb.

Top Headline Comments 5-12-10
— Gabriel Malor

Bleargh.

Posted by: Gabriel Malor at 05:26 AM | Comments (89)
Post contains 9 words, total size 1 kb.

Kos: money doesn't matter anymore
— Purple Avenger

Its safe to click this link, its to a piece he wrote for The Hill.

...The proliferation of online communities certainly appears to be leveling the playing field at the primary level, allowing candidates in better sync with their partyÂ’s base to compete against better-known, better-funded, establishment-backed candidates. In such an environment, television becomes less important, while online outreach and field work pick up the slack. Traditional campaign consultants may not like it, but primary success increasingly hinges on building movements, rather than spending millions on sleazy negative television ads.

Even a blind squirrel finds a nut now and then and I think Kos has found one here. Most of what he's saying I agree with, although he gives a tad more credit to organizing and outreach than I might.

I think the electorate has been burned very very badly and is paying a lot more attention than it has at any point in perhaps the past 100 years. A modest uptick in electorate awareness can offset millions of dollars of traditional campaign spending - IOW, if you're saying shit they don't like and they're paying attention, it doesn't matter how well or often you "explain" your unpopular positions. In fact, remaining tone deaf and continuing to "explain" unpopular positions like some Zombie robot in the face of overwhelming opposition to them just kinda pisses people off.

Posted by: Purple Avenger at 09:03 PM | Comments (131)
Post contains 235 words, total size 2 kb.

Kagan's Friends: She's Not Gay, NTTAWWT
— Gabriel Malor

Well known Honest Abe Eliot Spitzer says Kagan's not gay. So do some other people we've never heard of:

Walzer, half amused and half appalled to be discussing her friend’s sexual orientation, agreed to be interviewed after Kagan’s supporters decided they should tactfully put an end to the rumor, which White House officials had already tried to squelch in background interviews with reporters. She said she decided to talk to POLITICO because the discussion of Kagan’s personal life has become a “distraction.”

I don't know what to believe. Certainly Kagan's friends have a suspect motive in pushing whatever story is most advantageous for getting her through the confirmation circus. I'm assuming that claiming she's straight would work best, but really, anything solid is probably better than the quiet privacy Kagan and the White House adopted initially.

They're right that the whole "is she or isn't she" question overwhelmed the initial discussion in the media and the blogosphere. Today's absurdities include oversensitive gay groups claiming that the Wall Street Journal was gay-baiting by running the decades-old photo of Kagan playing softball. It saw Andrew Sullivan waging a campaign to out Kagan (safe link) and actually suggesting that she shouldn't be confirmed unless she is forced out of the closet.

Will this Politico piece put the "distraction" to rest? Not a chance.

Posted by: Gabriel Malor at 07:53 PM | Comments (108)
Post contains 232 words, total size 2 kb.

Swedish Artist/Badass Attacked By Muslim Thugs At Lecture
— Ace

"Swedish Artist/Badass." Not three words commonly strung together.

Allah's recap notes this guy's "I double-dog dare you" badassery.

This was a coordinated attack; not only are the Muslims cheering the assault, but others join in, attacking cops (like at the very end, one Brave Soldier of Allah cold-cocks an unaware cop, then runs away and assumes the fetal position).

A few people need to get shot to death while doing something like this, pour encouragement les otres or however that goes.

I don't think it's going to happen in Sweden.

On the other hand, if someone decides to enter this cat's house, he's booby trapped it and has an axe at hand.

Bonus: Here in America, the Muslim Student Association is keeping the fires of hatred burning.

Posted by: Ace at 07:12 PM | Comments (142)
Post contains 143 words, total size 2 kb.