Helping a speech-policewoman understand the Constitution
If you haven't been underneath a rock for the past 2 weeks, you know that there has been a bit of a dust-up between a prominent conservative radioman (Rush Limbaugh), and a law student interested in reproductive rights (Sandra Fluke). This post is NOT about either of those people. What this post DOES concern is the inane request of a legal self-promoter (Gloria Allred), and her inability, or unwillingness to read.
I have no quarrel with Ms. Allred's initial statement. On the 5th of March, Ms. Allred took to youtube to issue Rush Limbaugh an "open letter." I agree with Ms. Allred that Mr. Limbaugh ought to have used different language in discussing Ms. Fluke, and her positions - with which Mr. Limbaugh adamantly disagrees.
The irony in Ms. Allred's statement is that she accuses Mr. Limbaugh, in apologizing, of only doing so because of his economic self-interest. Open letters, when they are issued, seek to place a disagreement into the public square that might have been handled privately. Why did Ms. Allred decide to post a Youtube video as opposed to contacting Mr. Limbaugh by phone, email, or letter? Was it so Ms. Allred could place her personage in the middle of a debate with which she lacks any close connection? Was she motivated by her economic self-interest? Only Ms. Allred can clear this up.
Gloria's quarrel with Rush, unfortunately, did not end with her "open letter." On the 8th day of March, Ms. Allred, on behalf of the "Women's Legal Rights Legal Defense And Education Fund", sent another letter - this time to the State's Attorney in West Palm Beach, Florida. In that letter, Ms. Allred seeks to persuade the State's Attorney to "investigate" Mr. Limbaugh in order to determine if he violated a Florida criminal statute. If Ms. Allred actually believes that Mr. Limbaugh has committed a criminal offense, I would encourage Ms. Allred to seek aid when attempting to interpret statutes, and their interaction with Federal Constitutional Law.
Nothing that Mr. Limbaugh said, ..."falsely"..."imputed to (Ms. Fluke) a want of chastity." Mr. Limbaugh's statements were false, and malicious. They were not, however, an attempt to falsely impute a want of chastity to Ms. Fluke. Ms. Fluke's testimony before Congress was for the express purpose of declaring her "want of chastity." Further, the purpose of her testimony was to forward the notion that she ought to be able to continue engaging in behavior that would contribute to an ongoing want of chastity without having to pay for contraception. As I said before, this post does not seek to have any
substantive discussion on the underlying issue of contraception, and payment for it. This is about the inanity of Ms. Allred's second letter.
Even if Ms. Allred's understanding of the facts are correct, and different than my understanding, Ms. Allred should consider the doctrine of incorporation. Because of this doctrine, Mr. Limbaugh's speech is protected opinion. Since the case of Gitlow vs. New York, 268 U.S. 652 (1925), similar political opinion has been protected even though the action might theoretically run afoul of State law.
I believe that Gloria Allred is an intelligent attorney. I believe that Gloria Allred knows what she's doing. And I don't believe that her second letter was sent with any real belief that a State's Attorney in Florida is going to prosecute Rush Limbaugh for exercising free speech rights with which Ms. Allred disagrees. So, I'll ask again, who's "economic self-interest" is this really about Gloria? I think we all know.
*Nothing in this post should be construed as legal advice. If you need a lawyer, hire one. I am not your lawyer.*
To be, or not to be...conservative...That is the Question
In the wake of the Joe Arpaio birth certificate disclosure, any fair-minded Republican has to decide where to stand. It is not appropriate to simultaneously say, "the birth certificate is fraudulent...BUT I STILL BELIEVE OBAMA WAS BORN HERE." That's the basic outline of what we got from the Sheriff yesterday, and it points to the fundamental problem all Republicans have this election cycle. Whether in dealing with issues, or candidates, they want to have it both ways.
The birth certificate situation is emblematic of the more basic issues that will confront the electorate for the next 9 months - Can any of the assembled Republican field manage to straddle the line between conservative, and moderate? And if any can, is that even desirable?
I don't want to spend too much time discussing the candidacy of Mr. Santorum. In the context of social issues, he certainly stacks up with sufficient bona fides to let him claim the mantle of Culture Warrior. He's also shown an ability to connect with erstwhile Reagan Democrats, and proven a knack for convincing midwesterners that he understands the concerns of the heartland. Perhaps most importantly - this is politics after all - I am told he is considered good looking by 40+ year-old women. My mother in law certainly implied that was a part of the reason Mr. Santorum might get her vote.
It seems unlikely to me that these positives will enable Santorum to match up well with Mr. Obama in the Fall. For all of his positive attributes, there seem to me to be commensurate downsides to his electability. During his period of time in Washington, Santorum consistently voted for what he perceived to be the will of his constituency. The most notable examples were in votes to 1. oppose the Right to Work Act - an anti-union bill, and 2. support Medicare Part D - a dramatic expansion of Federal involvement in health care through prescription drugs. Neither of these decisions can be fairly described as "conservative." They were, rather, attempts to "go along to get along." Perhaps Mr. Santorum's definition of "constituency" is more like my definition of special interest. Santorum's reward for his willingness to play ball was to be drummed out of office in his purple State (18-point loss in '06) Santorum '06 Loss. The American people want to vote for a candidate who is a Statesman, not someone who is interested in his own narrow political motives. In combination with the fact that Santorum consistently underperforms in head-to-head match-ups with the President, his candidacy seems untenable. Santorum 3rd head-to-head
Newt Gingrich has clearly shown himself, during the course of this Winter's debates, to either be, the smartest guy in the room, or at least the guy who THINKS he's the smartest guy. Often, this intelligence, and penchant for big ideas takes the form of an appearance of leadership.
Too frequently, though, this intelligence leads Mr. Gingrich to pander, and make mistakes. In Iowa we got ethanol(Gingrich ethanol), and in Florida it was a moon colony. I shudder to think what happens if he decides to campaign in Guam. Yes, the Guamese(sic?) do in fact get delegates for purposes of the Republican nomination. Guam Delegates The campaign trail for Gingrich seems to be a big pile of prospective earmarks. It would be easier to stomach if we heard about moon bases in Iowa, and the ethanol down South. I don't know who the couch thing with Pelosi appeals to - maybe Californians.
Without even getting to his problems with ex-wives, and the married female part of the electorate, Gingrich has simply stumbled too much. He assures us he's going to win Georgia (his home state), and the rest of the Gulf Coast (except for that little State of Florida). If he can manage to convince the people of Ohio to vote more like the citizens of South Carolina, and Alabama, maybe he'd stand a chance against Obama. As it stands, that seems unlikely. Gingrich 4th
The case against Ron Paul is an easy one. I have to acknowledge, up front, that I am a fan. The evidence is simply stacking up too high to consider him viable...in a Republican primary process. There are simply too many old people, and not enough voters in college to put him over the top. At 76 he would be the oldest person ever elected president. I have to suppose that it is the aging experience Seniors have already undergone that leads them away from Mr. Paul.
Paul has a tendency to ramble, and to focus on those issues he must know will perturb the Republican base (fighting Iran not justified). By any domestic measure, he is the most conservative participant in the race. From a social perspective, he believes in the supremacy of the States, and the 10th Amendment. From a fiscal perspective, he's never voted to raise the debt ceiling, or for any tax increase, or for any Federal entitlement. Which leads me back to what it must be - people, and old people in particular, are concerned he's too old. Consider this statement at a recent debate.
I am convinced if we could get Ron Paul circa 1998 back the Seniors would be more comfortable.
Without the arrival of time travel - soon - I don't think the establishment has much to worry about from Ron.
This leaves the Republican electorate with one final option to consider currently - Mitt. Mr. Romney has much to recommend his candidacy. He managed to secure election in Massachusetts as a Republican Governor (Mass. is a very blue state). He also ran a successful business involved in turnarounds, and capitalist creative destruction. He seems to have a solid family life. It may concern some that the faith to which he belongs sometimes engages in odd behavior, such as 1. posthumously baptizing Anne Frank by proxy, (Anne Frank proxy baptism) and 2. wearing special garments to temple (Mormon underwear).
If middle Americans can get beyond the religion, further problems persist. Mr. Romney has been described by some as lacking a core. Romney No Core In addition to Democrats, such an attack has come from fellow candidates, and even those on the right of the political spectrum. The argument does have some merit. Whether on issues like abortion during earlier times in his political career, or with regard to contraception now, Romney has often changed his position to suit his short-sighted electoral needs. Romney flip-flop Leaving aside the issue of Romneycare (for some this is an example of State's rights, and for others a precursor to Obama's big government solution), there are myriad other reasons to question Romney's commitment to conservative causes. He supported the bailout of Wall Street (TARP). He has supported the idea of man-caused climate change. He has supported general Federal fiscal stimulus. He has even supported bans on firearms at various points in his career.
So, what's to be done. The genesis of this article was a discussion with a friend this morning who assured me that he didn't think "Romney 'was' unelectable." I am not convinced. Romney is neither conservative nor moderate. He is a chameleon. There is 0 chance that the religious right will turn out in the numbers necessary to form a base of support for him. The conservative poor are rightly concerned that his patrician background makes him out-of-touch with their concerns. And most importantly, the libertarian portion of the Republican party is sure that Romney, at best, will yield 4 more years of George W. Bush-style conservatism. In other words, libertarians don't expect he'd be conservative at all.
It is in this context that the same friend suggested that it might be a good idea to support Sheriff Joe, and the birth certificate investigation. Specifically, this friend believes that, "a little convincing smoke will hurt Obama in November, even without any fire." Republicans, to the extent they actually want to beat Obama, should be focusing their energy on things that can be accomplished before the November elections. Even Arpaio suggests that, at best, there is evidence of fraud. There is not, and is never likely to be strong evidence of Obama's involvement in any illegality. As there is no reason to believe, at this point, that Romney will carry a state in addition to those secured by McCain, the establishment has much work to do. Specifically, the Republicans must secure a running mate for Romney who will either, 1. yield a pivotal swing state that McCain did not carry, or 2. invigorate the libertarian portion or the Republican electorate to a degree that they would be willing to look past Mr. Romney's political indiscretions.
Governor Palin was important during the last presidential election cycle in that she propped up Mr. McCain in the eyes of the Republican base. Other aspects of her candidacy were problematic enough that she could not make a sufficient difference. It would be a grave error for the Republican Party to believe that Palin, or Palin-lite could make a sound choice as a running mate this time around. Only a true libertarian, or legitimate Tea Party Republican (Gingrich, and Santorum are not) will give Romney the angle he needs to pick up young, idealistic voters. These are the disaffected Obama supporters who can be theoretically picked off. It is said that insanity is doing the same thing over, and over again, but expecting different results. A decision to nominate a social conservative will not carry the day.
The Republicans must do all of the right things from now until election day if they hope to win. All of the right things includes avoiding distractions like birth control, and birth certificate controversies. If that occurs, Romney, or some white knight at the convention will still face many factors beyond his, or her control. If the economy is trending in the right direction in the Fall, Obama may be unbeatable. As much as the nominal unemployment rate will tell the tale, the speed and direction of change will be persuasive.
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I can understand the consternation that some on the right maintain when it comes to the issue of THE BIRTH CERTIFICATE!!! I don't think it justifies the mental effort expended, but I get it. As long as we are going to live in a country which respects the rule of law, we may as well make sure that the top of that pyramid meets the requirements for elective office. I used to practice the majority of my criminal defense on the Eastern Shore of Maryland. I still get back there on occasion. In Maryland it was sometimes true that elected officials sought office to which they weren't YET entitled.
Don't worry, he met the requirements eventually, and now he is the elected State's Attorney.
Coming a bit closer to my present home, there was some worry that Mayor Rahm Emanuel wouldn't meet the residency requirements to run for mayor. Maybe it was a political decision, and maybe it wasn't. Either way, he's the guy in charge of keeping the streets clean now.
This context brings us to the issue that resurfaced today. I had thought we were done. I thought we agreed, whether we believe the State of Hawaii, or not, we weren't going to continue with an assault on the legitimacy of Barack Obama's presidency. I guess I was wrong. Leave it to a County Sheriff in Arizona to re-raise the flag. Joe Arpaio says he's investigated. Joe says he had ex law enforcement officers help him. He says he found stuff out...and now someone else should do something about it.
Personally, I think his whole statement is inane. In 6 months of work he has discerned...basically nothing. He says he has probable cause of fraud. He has circumstantial evidence of little. He has expert testimony to support some of what he says, but not nearly enough to have a press conference pronouncing a "result". At this point, I hope the argument finally dies. The odds of that, unfortunately, seem slim.
The most amusing portion of the article is that the U.S. Government appears to have charged the corporate entity, and unnamed co-conspirators. The results are simple enough. The bank seems to have moved the money to a friendly unindicted bank, and continued on. There is understandable fear amongst the employees in Switzerland, but business appears to carry on, albeit in a different form. The bank's leading partner, a Mr. Hummler, is affected to the extent that he probably can't vacation in the United States for fear of arrest. Beyond that, life goes on.
I understand that the Federal Government has an interest in securing all the taxes legally obligated to it. I also understand the need to take dramatic action in attempting to make that happen. What is less clear is the level of effectiveness of this particular action. Without the cooperation of the Swiss government, I fail to understand how the Department of Justice plans to actually get the information it wants. I suppose the discovery process could yield something if Wegelin, the bank in question, participates in the lawsuit. Beyond a special appearance to contest service of process, I doubt that will happen. Lacking any branch in the United States means there is little the DOJ can do inside the domestic borders to push the issue.
Stay tuned for further developments. Swiss secrecy is something they pride themselves upon. We'll have to see if a friendly relationship with the U.S. trumps that history.
If media reports are to be believed, a vicious fire has led to the deaths of over 300 inmates at a prison in Honduras. For further specifics, please click on the link here.
While I am sure that few tears will be shed outside of those who count themselves as friends, and family of those who have lost their lives, it is scary. This isn't the first time a crazy inferno has taken the lives of many at a Honduran correctional institution. In fact, it appears to be the 4th such fire to claim the lives of inmates in that country since 1994. All of the prior events led to the loss of at least 70 lives.
What I don't know, and the area of largest concern to me, is whether all, most, or only some of the inmates had already been convicted of criminal offenses. The English Language news articles I have seen imply that these were bad people who had already been convicted by a Court of having done bad things. Even if that is the case, burning alive can seldom - I'd say never - be justified by analyzing who has been burned to death.
The more troubling thing to me is what the event says about the general commitment to justice, safety of the public, and rehabilitation. A system comprised of facilities that regularly (at least 4 times in 15 years) breaks down to the point of permitting mass extrajudicial death, is a system that can't be tolerated. What does the repeated failure say about the interest of the public in improving the likelihood that inmates will be returned to society better able to interact with the law-abiding? I know that most don't care, and you don't have to. If any one of these men died before trial, it is one too many. That trial would have been an opportunity for the accused to face his accuser. It was also an opportunity for the public, the family of victims, and victims themselves to seek justice. When the government system fails, as it did here, both sides are hurt.
Not a Decision Between Guns, and Butter - Rather, Feds Use Guns to take the Butter
As a constitutional libertarian, few things are as annoying as the Federal Government interfering in consensual transactions between consenting adults. I know...anytime a sentence includes, "between consenting adults" the natural inclination is to believe that the discussion deals with SEX, or some other deviant topic. Imagine for a moment that this "transaction between consenting adults" isn't sex, for money, or any consideration at all. Instead, this transaction is for milk - specifically the sale of raw (unpasteurized) milk from an Amish farmer trying to make his way in the modern commercial world, to wealthy families living in the suburbs of Washington, D.C. This, friends, is the world (country) in which you live.
In 2012, the Food and Drug Administration (FDA), appears to lack sufficient tasks to complete that they decide to spend time raiding Amish farmers, and in constructing straw purchases to back their desire to shut down consensual commerce. Problematically, given the state of the law and law enforcement, I can't make a strong argument that the farmer's actions weren't illegal. All I can say is that they shouldn't be. The crux of the problem for Mr. Daniel Allgyer, (Amish Farmer) is that, in order to maximize his business endeavor he decided to sell his wares (raw milk) across state lines. You see, when you run a farm in Kinzers, Pennsylvania, you may only have a local population of 2,800 people. Simultaneously, you are only 100 miles from Washington, D.C., and its whole organic-crazed populace.
It isn't the production, and sale of raw milk that ensnared Mr. Allgyer. It was the law (Commerce Clause of the Constitution), and more perniciously the interpretation that has been attached to the law that has done him in. At this point in our nation's history, it should be surprising to noone that the Feds decided to take down this operation. Only collective recognition of the problems we face from our Government, combined with a will to thoughtfully engage in thorough debate, can change our course.
Judge Kermit Bye threw down the gauntlet with the NFL, and the former NFLPA earlier this month when he told them that, "We will keep with our business, and if that ends up with a decision, it's probably something both sides aren't going to like, but it will at least be a decision." Although that sounds quite ominous, what could he possibly mean? Without additional information, or the ability to enter the mind of an Appeals Court Justice, it is, of course, impossible to know. The most frightening thing about the statement is that it could mean the unthinkable - destruction of the NFL as it is now known, and constituted.
I know that sounds alarmist, but what the conventional media coverage has generally omitted from its discussion of the NFL lockout battle is that there is only one professional sports league in the United States who enjoys a full antitrust exemption. That league isn't the NFL - it is Major League Baseball. The NFL previously was able to employ all of the anti-competitive measures it did in order to keep the Jacksonville Jaguars, and Cincinnati Bengals in relative parity with the remainder of the league only because these tools were collectively bargained for with the NFLPA. Without the NFLPA, the salary cap, free agency rules, and barriers to entry for new teams are all called into question.
The NFL's decision to lock out the players could come back to haunt it with more vengeance than ANY commentator I could find has proposed. There are myriad possibilities to what Judge Bye could have meant. My concern is that he might have meant that the NFL, and NFLPA "should be careful what you wish for because you just might get it."
In the context of a lockout without an NFLPA to bargain with, the NFL would be unable to reach an agreement on a salary cap, or any other expense-restricting measure as a group. Such actions would constitute an antitrust violation in the same way that United, Delta, and American Airlines constructing a salary cap for their pilots would be problematic. If players exercised sufficient sophistication, there is no reason that they could not form a competing football league within a short space of time. Imagine the Chicago Beers playing the Green Bay Pickers - still with Urlacher, and Matthews, but without a salary cap to contend with. Remember, these are millionaire athletes who have the financial tools to make this happen. As it seems that the players lack the wherewithal, or initiative to undertake such a venture, however, this seems an unlikely endgame.
A second possibility is that the NFL could carry on without its parity - creation measures. The issue with this outcome is that there is no way to stop Mark Cuban, or any other personality with desire, and dollars from starting up a competing franchise, and demanding that they be permitted to compete. The most likely variation of this possibility is the formation of an AFL-type situation that competes internally initially, but ultimately merges with what is now known as the NFL.
Copyright - David Weck - 2011 - All Rights Reserved
