Archive for the 'state' Category
Aaron Swartz, RIP

I am really grieving the loss of Aaron Swartz, who killed himself the other day.

His family attributes his suicide in part to depression triggered by the federal CFAA prosecution for his JSTOR hack. JSTOR had withdrawn their charges long ago — but the federal government continued to prosecute. Who knows why — maybe the prosecutor(s) were hoping to expand the reach of CFAA (a bad idea for an already too-vague statute — twitter#reformCFAA), or maybe they were simply pissy because of previous run-ins with Swartz for liberating court records.

What really breaks my heart is that he was only 26 years old. He had spent his whole life since he was 14 years old trying to figure out how to make a more just world. He was largely focused on OUR ISSUES — access to information. He worked with Carl Malamud on PACER and access to court records. He worked on OpenLibrary. He organized, for christ’s sake, against SOPA and PIPA. He contributed to Wikipedia, and on the LawfulUse mailing list, and in scores of ways that I had heard of but wasn’t personally familiar with, and no doubt in scores of ways I never even heard of.

Any loss of a young person is a grievous one, and a loss of potential. Any loss of an activist hurts the movement, and takes positive energy out of the world. Any loss to suicide is a fucking waste that makes all the other losses so bitter.

* Larry Lessig, Prosecutor as Bully, at lessig blog

* Wikimedia Foundation, Remembering Aaron Swartz 1986-2013, wikimedia blog

* NYT, Internet Activist Is Dead at 26, NYT obit

omg, government secrets not safe!

“I do think it’s true that the large contours of national and international policy are much harder to keep secret today,” said Steven Aftergood, who runs the Project on Government Secrecy at the Federation of American Scientists. “It would not be possible to conduct a secret war in Cambodia, as took place in the Nixon administration.”NYT 2010/12/12

Indeed. That’s kind of the point.

eviscerating Miranda

The Supreme Court on Tuesday released its decision in Berghuis v. Thompkins, reversing the 6th Circuit and eviscerating the simple bright line rule of Miranda: The police must advise suspects of their rights; for responses to police questioning to be admissible in court, the suspects must make a knowing, intelligent and voluntary waiver of those rights. This 5-4 decision, penned by J. Kennedy, eviscerates the letter of the law — it’s bright-line-ness — as well as the spirit of it — eliminating the incentive for cops to mistreat suspects through browbeating and other forms of coercive behavior.

hat tip to michele, who was listening to npr and found out the opinion was out, when for some reason the NYT failed to cover it, at least in any meaningful way …

libertarianism, state action, and private discrimination

Some great commentary coming out in the wake of Rand Paul’s floundering attempts to dodge explaining his philosophy. For instance, this from No More Mister Nice Blog:

Here’s the thing: segregation at lunch counters didn’t exist because individual privately owned businesses were determining for themselves that they would not serve black people. They relied on the local government to enforce this discrimination. Otherwise it would have been possible for non whites to sue white businesses for physical assault. Just because something isn’t statutory doesn’t mean that it isn’t taking place with government aid. A truly libertarian stance on the Civil Rights Act that wasn’t covertly conservative/racist would be to argue that the government must withdraw all legal aid, police help, and rights to sue for damages from discriminatory businesses *and then* leave the business free to discriminate. … The line between public and private property is guaranteed by government action and its something we all pay for and no private business has the right to take our money and then refuse service to us.

Rand Paul, weasel extraordinaire

Oh man, Rand Paul was on Rachel Maddow weaseling around a straight-up answer on his views of whether the federal government can prohibit discrimination in public accommodations.

A, I thought this guy was supposed to be glib and personable? This was one of the least smooth, least adept weaseling’s I’ve ever seen. Maybe that’s all just due to Rachel Maddow, who is a far more kick-ass journalist than most in terms of straight-up asking for a yes/no answer (and still not getting it).

B, wow, is he just stupid, or completely disingenuous, about the differing rationales that might justify (a) a ban on guns in establishments serving alcohol versus (b) a ban on racial discrimination?

C, again, is he just stupid? Or did he not realize that by picking on the ADA that he was also picking on the rationale underlying all civil rights laws? and that his ass would be busted on this issue? not because it’s “hypothetical” but because it’s real, live, and current — as even he must concede, since he’s picking on the ADA!

D, He’s seriously confused about law and regulation. Nobody has ever explained to this guy one of the fundamental rationales underlying the permissibility of banning some forms of private behavior — that state action would in fact otherwise be involved in enforcing those private behaviors. If someone is trespassing on your private property, you can call the police and get them to bust heads for you. That’s state action. You can sue the trespassers and get the courts involved. That’s also state action. So allowing “private businesses” to ban Black people or gay people necessarily involves state action, since the definition of a “civil right” involves the possibility of invoking the law to enforce the right. He’d like to hand that right not to individuals of color (or queer folks, or disabled folks) but instead to racist, homophobic, short-sighted business-people. Nice.

Along with other areas of law, Paul must also be unfamiliar with the long tradition, far predating the Civil Rights Act, enforcing different rules on hospitality and traveler businesses and such public accommodations. (eta: that’s common carriage, folks, although the wikipedia article is woefully inadequate on the history.)

E, Entirely unsurprisingly, he is also seriously confused about what “institutional racism” is, apparently thinking it is just state action.

F, I like how Paul pulls out the “It’s interesting…” line just before he weasels. I myself have a tendency to pronounce that things are “interesting” but not, I think, when I’m weaseling; more when I think there’s some contradiction or something a little surprising that piques my interest.

Anyway, I’ll be interested to see if Rand Paul & his libertarian policies really get him up to the U.S. Senate. How backwards-ass are my old neighbors in Kentucky? I guess we’ll find out come November.

take 5 minutes — Congressmember hilariously questioned on Constitution

Yesterday Rep. Alan Grayson questioned Rep. Paul Broun of Georgia on the meaning of Bills of Attainder, in regards to one of the anti-ACORN bills / amendments floating through Congress. Delightful. I’m linking to it through Glenn Greenwald’s blog, who brought it to my attention, because Greenwald is almost always worth reading.

Obama’s FCC pick

Obama has appointed Julius Genachowski to head the FCC, which I think is pretty good. Genachowski is on the record as supporting network neutrality. Also, there’s a fair amount of eco-friendliness and tech-savviness in his background — he headed up the Obama team’s internet campaigning, and also worked on Obama’s tech plan.

And, to boost his media credentials, he has worked with “Common Sense Media”, a media group that “believe[s] in media sanity, not censorship. … [S]ince we can’t always cover our kids’ eyes, we have to teach them how to see.” That last bit’s a little airy-fairy, but I like the strong first sentence. When investigated a little further, it still mostly looks pretty good:

Five Internet Challenges for Parents:

1. Keeping up is hard to do.

The Internet gets more portable every day, which makes it easier for our kids to be online more of the time. Today your kid may go online from a computer or even a mobile phone. But tomorrow? Who knows! It could be via something not yet invented. New sites appear and become “hot” overnight, replacing old ones. Parents need to help their kids learn about safe and appropriate behavior, not just safe and appropriate sites. Because teaching them about the dangers of one site or form of access today will be outdated information tomorrow.

….

4. … We need to help our kids think critically about what they post, read, and see online. ….

And then there’s also a lot of “Hey parents! Those crazy kids nowadays, huh? We may not always understand ‘em, but they sure do need us!” I find this sort of thing patronizing, personally, which is a little ironic for a site targeting parents about parenting. But, anyway, I love the media literacy bits, which, when all is said and done, is what this whole 5-point “Internet challenges” boils down to: “Teach them media literacy because it’s more effective.” Which I can totally get behind.

The Obama tech plan that Genachowski worked on includes a significant broadband access component, which the FCC will play a significant role in.

Some trivia: Interestingly, I note that he was on the board of TicketMaster, which I mostly think of in context of their various attempts to stifle database harvesting (e.g., Ticketmaster v. Tickets.com (C.D. Cal. 2003). Of course, it seems unlikely that he would have had any input or interaction with that particular business decision. I can’t help that my first association with TicketMaster is this sort of thing. My second association — annoying ticket fees and the memory of feeling ripped off by their high-priced stadium rock concert tickets back in the day — isn’t much better.

Some other trivia: His wife is a documentary filmmaker. Score one for content re-users! Take that, cell phone ring tone incidental capture cease-and-desist senders!

And — I love this — “He worked on the select committee investigating the Iran-Contra Affair”.WP Ah the glory days when Congress investigated executive wrongdoing — even before they felt safe in the knowledge that the wrong-doing president & his party had been ousted in ignominy from governance. Seriously, this is probably my favorite part of his resume. I love a good Iran-Contra investigator.

h/t: bradfox.com

see also: Washington Post 3/3

Speechless

Just like Maddow after Jindal, I am rendered speechless by the DOJ memos released on Monday. Most were by my former Con Law professor; among the notable exceptions was the repudiation of these policies last October.

Holy Constitutional Law, Batman.

* DOJ – Office of Legal Counsel memos

* NYT (3/3)
* LAT (3/3)
* links to the memos with brief annotations at salon.com

* Jack Balkin @ Balkinization (3/3 7am)
* Scott Horton @ Harper’s (3/3 716am)
* Dan Froomkin @ the Washington Post (3/3 12:52 pm)
* Glenn Greenwald, 3/3

egg rights: South Dakota’s latest ventures into unintended consequences

South Dakota is at it again, with a new egg rights bill that defines “any organism with the genome of homo sapiens” as a person under the South Dakota Constitution. Man it’s hard to keep up with all the really poorly thought out legislation from that state!

Broadsheet has the simplest quickest coverage, and links to Feministe “Even More Questions for Pro-Lifers”, always a good read.

Anyway, inspired by the Broadsheet post title “Eggs are people, too”, henceforth I will be referring to this sort of thing as “egg rights”. (A phrase which I now see has already gained some traction.) Egg rights activists, egg rights bills, and so forth.

bad ideas like bad pennies keep turning up

A Louisiana state Representative is considering a plan to pay poor women to have their tubes tied, to stave off additional reproduction by undesirables.

One wonders just how bad history classes have to be in Louisiana for John LaBruzzo to have actually failed to learn about the many, many times governments have tried programs like this based on bizarre ideas about biology and economics — and let’s please not forget the unbelievably asinine and heinous beliefs about race and class and gender that underlie such proposals. (My partner points out that actually this history wasn’t in any of our primary school history classes — she learned about Puerto Rico, Native Americans, laws of dozens of American states, and on, and on, from independent reading. “And you too, Laura — you didn’t learn that shit in Alabama.”)

Honestly it just makes me tired. What the fuck is wrong with people? Why do people not have any more self-knowledge and/or humility than to at least understand how pig-ignorant they are, before attempting to set social policy?

seen on broadsheet

wtf with st. paul?

This is un-fucking-believable: Amy Goodman and producers were arrested at the RNC protests. Arresting an award-winning journalist for inquiring about her arrested producers. The video of Goodman’s arrest (“Update II”) should be watched along with the SF Chronicle‘s interview of her on her release (“Update VII”). See also Washington Post. An AP reporter was arrested later, and there were various other police actions against journalists.

Glenn Greenwald said at the beginning of this column:

Beginning last night, St. Paul was the most militarized I have ever seen an American city be, even more so than Manhattan in the week of 9/11 — with troops of federal, state and local law enforcement agents marching around with riot gear, machine guns, and tear gas cannisters, shouting military chants and marching in military formations.

See also this video of a peaceful protester being tear-gassed at close range (second video; at pharyngula).

As with the Chicago DNC in 1996, and many other political party meetings in the intervening years, activists’ homes were raided before the protests began.

Reporting of interest:
* Glenn Greenwald at salon.com
* The Revolution Will Be Twittered – firedoglake / jane hamsher
* raid on an anarchist art production in a theater – The Uptake
* ColdSnap Legal Collective – updates on arrests etc.
* house arrests of journalist group “iwitness”
* interview with st. paul officials – mayor, chief of police, police PR
* Minnesota Independent coverage
* cell phone video of police firing what may be smoke bombs & in general acting like the protesters are enemy combatants — following after a retreat
* “inside an RNC raid” – a house of legal observer coordinators was raided & folks detained.

a good day for basic human liberties

yaay habeas corpus.

Kennedy is the difference between a conservative — someone whose values I frequently dislike and disagree with, but who is in many ways a respectful person — and a proto-fascist.

For the right-wingers who like to throw the term “fascism” around, the core concept of fascism is that the State takes precedence over the Individual. Habeas corpus — the right to appeal imprisonment by the State (to another arm of the State, usually) — is the fundamental human right that distinguishes fascism from non-fascism. Other human liberties — freedom of expression, freedom of belief, freedom of movement — are likely more germane to most of the people most of the time. But habeas corpus is the counter to the most basic power representatives of the State assert: the power to imprison individuals. It’s pretty limited as far as rights go — it boils down to a right to argue with the reasons for imprisonment. But without this fundamental check on the State’s power, every other human liberty is a hollow promise.

Roberts’ dissent — effectively, “what are they complaining about? we treat them so well!” — is the same response that can be heard in any institution that has robbed people of their liberty, from dictators to slaveholders to prison keepers to that horrid Austrian guy who said, “I could have killed my daughter” (instead of imprisoning and raping her for decades).

So yaay habeas corpus. Yesterday’s decision gives me some hope that we may yet arrest our slide into unmitigated fascism.

… a few more thoughts on reading Boumediene v. Bush:

Souter’s concurrence (joined by Ginsburg & Breyer): Souter takes on the dissent’s cries of judicial activism, which essentially argued that the case wasn’t sufficiently politically ripe — that the Supreme Court should have sat on its hands and not rushed to judgment to cut out the proper executive (read: military) procedures. I liked it a lot so I quote in full:

A second fact insufficiently appreciated by the dissents is the length of the disputed imprisonments, some of the prisoners represented here today having been locked up for six years []. Hence the hollow ring when the dissenters suggest that the Court is somehow precipitating the judiciary into reviewing claims that the military (subject to appeal to the Court of Appeals for the District of Columbia Circuit) could handle within some reasonable period of time. See, e.g., post, at 3 (opinion of ROBERTS, C. J.) (“[T]he Court should have declined to intervene until the D. C. Circuit had assessed the nature and validity of the congressionally mandated proceedings in a given detainee’s case”); post, at 6 (“[I]t is not necessary to consider the availability of the writ until the statutory remedies have been shown to be inadequate”); post, at 8 (“[The Court] rushes to decide the fundamental question of the reach of habeas corpus when the functioning of the DTA may make that decision entirely unnecessary”). These suggestions of judicial haste are all the more out of place given the Court’s realistic acknowledgment that in periods of exigency the tempo of any habeas review must reflect the immediate peril facing the country.
It is in fact the very lapse of four years from the time Rasul put everyone on notice that habeas process was available to Guantanamo prisoners, and the lapse of six years since some of these prisoners were captured and incarcerated, that stand at odds with the repeated suggestions of the dissenters that these cases should be seen as a judicial victory in a contest for power between the Court and the political branches. [] The several answers to the charge of triumphalism might start with a basic fact of Anglo-American constitutional history: that the power, first of the Crown and now of the Executive Branch of the United States, is necessarily limited by habeas corpus jurisdiction to enquire into the legality of executive detention. And one could explain that in this Court’s exercise of responsibility to preserve habeas corpus something much more significant is involved than pulling and hauling between the judicial and political branches. Instead, though, it is enough to repeat that some of these petitioners have spent six years behind bars. After six years of sustained executive detentions in Guantanamo, subject to habeas jurisdiction but without any actual habeas scrutiny, today’s decision is no judicial victory, but an act of perseverance in trying to make habeas review, and the obligation of the courts to provide it, mean something of value both to prisoners and to the Nation. [some internal cites omitted]

barking dogs != relaxation (or security)

For the record, the menacing presence of very large german shepherds is not a plus at a train station. And when you hear their barks, whimpers, and howls nearby it makes you worry whether they’re attacking someone, upset or excited at someone’s lunch, etc. Word is they’re sniffing for bombs but I don’t think for a minute that that barking was a bomb. Pot or someone’s lunch or maybe someone traveling with a pet. I do noto feel safer, and I do not believe that this makes me safer.

Second train station this year that I’ve seen dogs — Philly and now Penn Station.

circuit split on sex toys

Well, the 5th Circuit (Texas) has just said that Texas’s anti-sex-toy-law (memorably mocked by Molly Ivins in this video, available at youtube via pandagon) is unconstitutional, relying heavily on Lawrence (or so I hear, via pharyngula); I haven’t read the case yet).

This looks like a pretty clear Circuit split with the 11th Circuit (Georgia, Alabama, etc.), which only a couple of years ago found a similar Alabama law to not violate the Constitution (PDF, Williams v. Atty General of Alabama, 11th Cir. (2004)); the Supreme Court denied cert on that one. (See Michael C. Dorf discussion at FindLaw for an overview that discusses this case with respect to the various standards in Constitutional Law.)

I really wish that we could have a penumbra of no stupid laws.

gender-specific names or go to jail

In Venezuela, the National Assembly is considering restricting all baby names to a total list of 100 names. This will eliminate the wide variety of inventive names that people assign, and will eliminate names that “generate doubt” about gender. NYT 9/5

Because there just aren’t enough laws dictating gender now.

hello kitty shamebands

The Thai police are requiring delinquent or troublemaking cops to wear “hello kitty” armbands as a badge of shame. [nyt 8/7] i wonder if that would work here in the US ….

Requiem for habeas corpus

Sometimes one despairs and relies on others to speak truth to power. Many have done so with respect to with respect to the “Military Commissions Act of 2006″, but Kent Keith Olbermann‘s was particularly eloquent.

update: Ahem. Apparently that’s Keith Olbermann, and Kent Brockman. Another sign of aging, because I would never ordinarily confuse the grey/blonde Simpson’s reporter with the grey/blonde MSNBC reporter.

the death penalty & tookie williams

A human being who was doing valuable work, and helping to make the world better, was killed in San Quentin, California, just after midnight, Tuesday December 13. [See SaveTookie.org for details of Mr. Williams' anti-gang and anti-violence work.] “I could find no justification for granting clemency.” [Schwarzenegger Statement following Clemency Decision, 2005/12/12.] Tookie Williams was killed because he continued to protest his innocence. “Seven percent of those whose sentences were overturned between 1973 and 1995 have been found innocent.” ["Capital Punishment in the United States", Wikipedia (12/13).] Tookie Williams was killed because Arnold Schwarzenegger, who has earned millions depicting various bloody and violent assaults, questioned the “efficacy of Williams’ [anti-violence] message”: “[T]he continued pervasiveness of gang violence leads one to question the efficacy of Williams’ message.” [Schwarzenegger Statement of Decision on Request for Clemency by Stanley Williams, p. 4.] Most importantly, perhaps, Tookie Williams was killed because it is politically expedient for politicians to be “tough on crime”. “Even if you assume he made the decision without political motivations, the political impact or ramifications certainly worked in his favor.” [Dan Schnur, Republican strategist, quoted in the Washington Post.]

Throughout Africa, Asia, and the United States, people face death at the hands of their own government. [Capital Punishment, Wikipedia (12/13).] Since 1976, the United States alone has put to death over a thousand people. The application of the death penalty is significantly affected by race and geography. Roughly 780 people (78% of the executions) have been killed in southern states comprising approximately a third of the United States popoulation (Texas, Virginia, Missouri, Florida, Georgia, North Carolina, South Carolina, Alabama, Arkansas, Louisiana, Mississippi, Kentucky, Tennessee). More than one-third of those executed in the United States since 1976 have been African-American. Most (perhaps 80%) of death penalty cases involve a white victim. As of July, 2005, over 3400 people are currently on death row in the United States. ["Capital Punishment in the United States", Wikipedia (12/13).]

One such person is Cory Maye, a black man sentenced to death in Mississippi, for killing a white cop who entered his home after midnight while Maye and his toddler were sleeping. You can read more about Cory Maye’s case at the Agitator. And you can read more about the three thousand other death penalty cases in the US at these sites:

Amnesty International USA: Abolish the Death Penalty.
National Coalition to Abolish the Death Penalty
Death Penalty Moratorium Project (American Bar Association)
ACLU: on the Death Penalty
Death Penalty Information Center

annoying me today

So far today I am thrice annoyed:

  • Multiple Double Standards: NY Sex Offenders Get Viagra [5/23] Jesus. Get over Viagra already. What is with the guys running the guvmint? “According to [NY State Comptroller Alan] Hevesi, the problem is an unintended consequence of a 1998 directive from federal officials telling states that Medicaid prescription programs must include Viagra.” Who are these mysterious unnamed federal officials? Could they be … men? And how did they feel about birth control? Last time I looked, the federal government & states like Missouri were trying to make it harder more difficult for women to get family planning, including birth control.

    Look, I support prisoners’ rights, and adequate medical care is a right. The problem isn’t prisoners, who will get tossed to the curb by any politician trying to prove they’re tough on crime. The problem is with the double standard that treats Viagra, a recreational drug designed for men, differently (and better) than sex toys or birth control, both of which most directly benefit women.

    Ought I also point out the role of Big Pharma, which still holds viable patents on Viagra & similar drugs, but which has generic competition for many birth control formulas?

    And finally, as long as we’re on the topc of “recreational drugs”, compare: “Since it was approved by the FDA in 1998, about 16 million men have tried Viagra, according to Pfizer.” (1) and “Over 83 million Americans over the age of 12 have tried marijuana at least once.” (2) … And health risks: 60-120 deaths directly related to ingestion of Viagra (3, 4) vs. 0 deaths directly related to ingestion of marijuana (5).

  • The Filibuster Compromise. Salon.com’s Tim Grieve says, patronizingly, that “if we’re confused” about who won, we should look to the wingnuts frothing over the compromise to assure ourselves that the Democrats won. Well, whoop-de-fucking-doo. The Democrats did indeed win exactly what they wanted to win: preservation of the judicial filibuster. How did they win this brave victory of exactly what polls show that most Americans want? By giving up whatever principles they claimed to have had that inspired the filibusters to begin with. This leaves us exactly nowhere, except with 3 more life appointments on the bench, and a new set of “but he said” whines for the next round.

  • Double Standards, Again: In Montgomery, a Catholic HS Girl who’s pregnant was refused permission to walk with her graduating class [St. Jude Educational Institute Class of 2005], although the boy who made her pregnant was allowed to participate. She walked on her own, anyway, but her mother and aunt were then “escorted out of the church by police”. The Red Hot Chili Peppers said it best: Catholic School Girls Rule. As for the school’s actions, it’s a Roman Catholic HS, a private entity, so I sort of don’t care, but then again, I sort of do, because the double standard pisses me off.

    Now, I have it on good authority that the school system in Montgomery sucks, so I understand what might drive parents to take their children out of the public system and pay to send them to a Catholic HS. A little reminder about just why there are so many private “religious” schools in Alabama: Desegregation and racism. Once public schools were forced to integrate, many racist white folk took their children out of public schools and into a horde of new private “religious” schools. With so many white folks sending their kids to private schools, funding for public schools has never gone anywhere — Alabama continues to use its sales tax to fund its public schools, leaving that poor benighted state with one of the highest sales taxes in the nation. (School funding is shared between state & city/counties, so local governments have incentive to keep sales taxes high — in Huntsville, AL, for instance, the sales tax is up to 10%, and no exceptions for food, you uppity poor people!) Even with a ridiculously high sales tax, the school system is still really crappy & under-funded (6, 7). So you can understand parents being willing to send their children to be indoctrinated in private schools, especially Catholic schools which were usually set up independently of desegregation. So I’m sorry for the family which did the best they could for their daughter, who was then treated like shit by the backwards-ass Catholic school.

    Oh, Alabama, I mock you but you make me sad.

doubletake: did he say that?

And the Republican abandonment of ‘federalism’ continues:

Senator Tom Coburn, a newly elected conservative Republican from Oklahoma, said: “This isn’t a states’ rights issue. What we’re saying is they are going to review it. The states are not given the right to take away somebody’s constitutional rights.”

[House majority leader Tom Delay]: “The conservative doctrine here is the Constitution of the United States.”

These and many other astonishing quotes are courtesy of the Terri Schiavo case — the latest mad rush by Republicans to abandon their much-vaunted dedication to federalism and states’ rights. [Chronicled here by the Adam Nagourney of the NYT [2005/3/25].] As predicted, Republicans like pretty much everyone else happily use the power they’ve got — full-on federal government power.