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crime and punishment First Amendment rights general freedom moral hazard property rights too much government

A Cakewalk Case?

The Justices seem split — on the “gay cake” case. 

A Christian baker had no trouble selling a gay couple a pre-​made cake, out of his showcase, but balked at selling a custom wedding cake of any kind. According to NPR’s Nina Totenberg, the couple understood that requesting a “gay” themed cake would go too far. But the baker’s refusal to decorate any wedding cake seemed unacceptable.

In Colorado, where the cake didn’t get made, there is a public accommodations law that says businesses must serve all customers regardless of race, religion, or sexual orientation. So Colorado went after the baker, the baker hired a lawyer, and Masterpiece Cakeshop v. Colorado Civil Rights Commission was heard by the Supreme Court this week.

Commonly billed as a conflict between First Amendment-​guaranteed religious freedom* and the civil rights of citizens as defined and protected by a state law, it almost defies easy solution. 

One could argue that the First Amendment right to freely associate (including the right not to associate) should extend to business. But that goes against legislation built up since the 1964 Civil Rights Act, which in many places ended an often violent racial segregation** no one wants back. However, a custom-​made wedding cake is also expressive and therefore speech.

One could decide for Colorado on federalist grounds. And the late Justice Antonin Scalia, Ms. Totenberg tells us, argued that a general law not directed at a religion does not allow a specifically religious defense.

But one defense of the baker may work. The Colorado Civil Rights Commission has not applied its rulings equally. It sided with non-Christian bakers who refused to make cakes for Christians requesting Bible-​verse cakes.

And that “takes the cake.”

This is Common Sense. I’m Paul Jacob

 

* In this regard, Justice Kennedy stated from the bench that it seemed to him “that the state in its position here has been neither tolerant nor respectful of Mr. Phillips’ religious beliefs.” Kennedy will likely be the swing vote.

** No small amount of this violence, segregation and discrimination was coerced by state laws in defiance of the Fourteenth Amendment and the Bill of Rights.


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Accountability First Amendment rights folly media and media people moral hazard national politics & policies too much government U.S. Constitution

Our Royals Are Not Amused

“You created these platforms,” Sen. Dianne Feinstein (D‑CA) informed the top legal minds at Facebook, Twitter, and Google, “and now they’re being misused.”

“And you have to be the ones who do something about it — or we will.”

Take that as a threat.

But also take it as the grand moment when the Establishment showed its hand.

Consider: Facebook, Twitter, and YouTube (a Google product) are “media platforms.” So are books, libraries, newspapers and newsstands. Imagine being a king right after Johannes Gutenberg invented the printing press. Very quickly, the world changed. 

People thought differently. And they began demanding change from government. The sovereigns had to make room for subjects-turned-citizens.

Royalty and aristocracy did try to regulate the new platforms of information and opinion. Censorship was all-​too-​common. The rulers killed upstarts for writing the wrong things, saying the wrong things.

So, which side would you be on, Mrs. Feinstein?

That is Scott Shackford’s basic take on this. I’m with him.

I just wish to expand: in my lifetime the media platforms of newspapers and television were regulated. Heavily. Mergers and business purchases were subject to government permission; the electromagnetic spectrum was licensed rather than treated as private property, and the actual content of radio and TV shows were regulated by the FCC.

And the Feinsteins of Washington got awfully secure in their positions. Had the regulation of American media done its trick?

Enter new media, uncorking the bottle of opinion.

No wonder the Establishment is scared.

We shouldn’t let them regulate political content on the Internet. Demand, instead, the opposite: a complete repeal of the regulation of business management — and non-​criminal content regulation — of all media platforms

This is Common Sense. I’m Paul Jacob.


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crime and punishment folly general freedom ideological culture media and media people national politics & policies

Shadow Boxing with “Nazis”

Voltaire’s prayer, “make my enemies ridiculous,” has been granted to Ben Shapiro.

The New York Times has graced its pages with the writings of one Jane Coaston, who, in “The Hollow Bravery of Ben Shapiro,” accuses the brilliant intellectual pugilist Mr. Shapiro for “shadow boxing meant to pander to his conservative fans.” 

And while she admits the truth that “campuses tend to be hostile places to conservatives like Mr. Shapiro, Charles Murray and Heather Mac Donald,” she insists that “the notion that they are the cultural underdogs is bogus.”

Failing to back up her “cultural underdog” thesis in any way, Coaston’s essay wanders off, evading the street and campus violence by leftist activists who, until recently, were given de facto license by mayors and college administrators to shout down, beat up and “de-​platform” people they called “fascists.”

By just glossing over all this, Ms. Coaston is pandering to her audience — certainly not challenging it, which is precisely what she accuses Mr. Shapiro of doing.

Amusingly, I noticed this journalist arguing earlier this year that “you should punch Nazis in the goddang face.”

But Antifa and other “Nazi-​punchers” aren’t in the habit of sending out questionnaires before planting fist to face or bike lock to noggin. 

Which brings us to the ridiculous. She minimizes the extent to which Ben Shapiro and others have been threatened (and their fans violently attacked) by mobs shouting against “fascism” and “Nazis.” And yet she provided not merely the intellectual ammunition for this practice, she provided the declaration of war.

Maybe she has a career in politics.

This is Common Sense. I’m Paul Jacob.


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First Amendment rights general freedom media and media people moral hazard national politics & policies Regulating Protest too much government

Crossing the Twitter Rubicon

No sooner had I upbraided media folks for overreacting to various presidential peccadillos regarding Puerto Rico, when Donald J. Trump, in his running media battle, crossed a line with this week’s most notorious tweet.

He first complained, perhaps correctly, that, “Fake @NBCNews made up a story that I wanted a ‘tenfold’ increase in our U.S. nuclear arsenal. Pure fiction, made up to demean.” But then the chief executive officer of the United States of America tweeted this: “With all of the Fake News coming out of NBC and the Networks, at what point is it appropriate to challenge their License?”

The answer to his question is: never.

The Federal Communications Commission licenses the network affiliates of ABC, NBC and CBS across the country — not the networks themselves — to broadcast their television signals using public airwaves. Still, through those affiliates a tyrannical FCC could no doubt damage the networks. 

Government licensing of media outlets is anathema to the First Amendment. And the thought of the POTUS actively threatening the ability of NBC or other networks to report the news as they freely decide is … well, unthinkable.

I don’t buy the accusations that Trump is undermining freedom of the press by criticizing the press — even arguing by tweet, “The FAKE NEWS media (failing @nytimes, @CNN, @NBCNews and many more) … is the enemy of the American People!” The president is as free to criticize the media as the media is free to criticize the president.

It might be his duty.

But considering the use of official government power to potentially “shut down NBC and other American networks,” as UK’s Independent reported, or just to temper their coverage?

Despotism.

This is Common Sense. I’m Paul Jacob. 


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Accountability crime and punishment government transparency moral hazard responsibility too much government

Half a Win Is Better than None

Jennifer Anderson criticized her local sheriff. Her family’s home was raided in 2016 by the sheriff as a result.

Terrebonne Parish Sheriff Jerry Larpenter’s reaction to criticism was ugly and unconscionable, but it hasn’t been allowed to stand. On the other hand, the sheriff hasn’t been adequately punished, either. 

Jennifer Anderson’s pseudonymous blog ExposeDAT criticized various public figures in Terrebonne Parish, Louisiana, including with respect to the business relationships between Larpenter and others. Bridling at the criticism — which had to do with assessment of publicly available facts — the sheriff submitted warrants to Facebook and AT&T to track down the identity of the blogger. Then he sent men to raid the Andersons’ home and grab computers and cell phones. 

The Andersons fought back, suing in federal court. They wanted the raid and seizure and search of their private stuff to be declared unconstitutional.

Finally, this September, the Andersons reached an undisclosed settlement with Larpenter out of court. According to its terms, the Andersons aren’t allowed to discuss it any detail. But their attorney says the settlement is “a victory for citizens’ right to be critical of their elected officials without fear of retribution.” U.S. District Court Judge Lance Africk has said that “Jennifer Anderson’s speech [in her blog] falls squarely within the four corners of the First Amendment.”

All that’s fine, but why hasn’t this sheriff also at least been kicked out of his job for his blatant abuse of power? 

This is Common Sense. I’m Paul Jacob.


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Accountability First Amendment rights incumbents local leaders Regulating Protest U.S. Constitution

Homer’s Recall Odyssey

Freedom of speech isn’t a free pass to avoid the consequences of what one says. Or does. Tell that to three members of the Homer, Alaska, city council — Donna Aderhold, David Lewis and Catriona Reynolds — who are the subject of a recall petition.

Well, a superior court judge just did.

Represented by the ACLU, the trio sued to block a recall petition with more than enough voter signatures. Their lawsuit challenged the city attorney’s acceptance of the legal rationale for the recall, claiming the recall attempt punishes the politicians for their speech.

“To conclude that anytime a recall petition is based in part or in whole on what a politician said is protected by the First Amendment,” Superior Court Judge Erin Marston ruled, “would be to eviscerate the recall statute to such an extent that the populace would almost never be able to seek recall of any of their elected officials.”

Now the recall moves forward.

In most of this Land of the Free, citizens lack the ability to recall their elected officials. In places that do have the process, it is rarely used. When it is used, it is often portrayed as voters throwing a temper tantrum. 

Or an unfair election do-over. 

Or mean-​spirited ‘vendetta politics.’

Not so. The petition requirements make recalls very difficult. Recalls don’t happen without some serious problems with the current officeholder(s). And once a recall is triggered, there follows a democratic vote to decide whether citizens want to keep the sitting hireling or find someone new. 

Seems pretty reasonable. 

When politicians are recalled and removed, they deserve it.*

This is Common Sense. I’m Paul Jacob.

 

* The problem seems never to be that good politicians are being recalled, but that too many politicians who should be recalled are not. Back in 2003, the governor of California was recalled. He deserved it. In 2011, a whopping 88 percent of Miami-​Dade County voted to recall Mayor Carlos Alvarez. He earned it, too.


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