New Twist on an Old Joke: What Do You Call a Liberal Who’s Been Mugged?

The old joke goes like this: What do you call a liberal who’s been mugged?

A conservative.

After seven years of big-spending government and eroding civil liberties under allegedly conservative Republicans, the joke needs an update: What do you call a conservative who’s been mugged by government?

A libertarian.

Independent voters tend to decide national elections, and the largest bloc of independents are libertarian in outlook: fiscally conservative and socially liberal, in effect straddling the two major parties—which leaves them vulnerable to getting kicked in the crotch no matter whom they vote for.

This country was founded on libertarian principles—limited government, property rights, civil liberties, individual responsibility—that have been significantly eroded under both Democratic and Republican administrations. The designers of our democracy wouldn’t recognize what’s become of their experiment today; somehow a design intended to limit government has been twisted into a government with no intention of limiting its designs.

Up until the turn of the millenium, it was Democrats who considered the Constitution a “quaint document.” Now the Republican Party has betrayed its most fundamental animating principle. It is no longer a conservative party.

PJ O’Rourke puts it like this: “It’s going to be hard to do a worse job running America than the Republicans have, but if anybody can do it, it’s the Democrats.”

With a socialist Hillary Clinton or a very liberal Barack Obama set to face off against a big government Republican like John McCain, McCain would seem to be the lesser of two evils. Maybe the late great Molly Ivans had it right: for the third presidential election in a row, we’re faced with “the evil of two lessers.” The only genuine libertarian in the race is Ron Paul, and he’s way too principled, too shrill, too rough around the edges, and too ugly to win the American Idol contest we call a presidential election.

At the end of the Constitutional Convention, Benjamin Franklin was asked what kind of nation had been created. His answer: “A republic, if you can keep it.”

Newsprism

Neal Boortz, the Courts, and the First Amendment

Atlanta-based talk radio host Neal Boortz of WSB 750AM appears to have used the end of Arbitron’s spring ratings season to test the limits of the First Amendment. In mid-March, Boortz engaged in on air behavior so outrageous it’s reasonable to assume he was hoping to create enough controversy influence his ratings.

The more recent of two incidents involved a March 14 anti-war protest by the Pittsburgh Organizing Group, or POG. POG had announced that it would picket a military recruiting office that evening. Just after noon EST on March 14, Boortz demonized POG and its activities and then encouraged anyone on hand for the protest to “Shoot those leftist bastards dead.”

Boortz, who holds a law degree, must know that the First Amendment doesn’t protect speech intended to incite violence. In Schenck v. United States, the Supreme Court ruled that reasonable limits on freedom of speech are constitutional:

…the character of every act depends upon the circumstances in which it is done. Aikens v. Wisconsin, 195 U.S. 194, 205, 206. The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. It does not even protect a man from an injunction against uttering words that may have all the effect of force. Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 439. The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.

The legal question is whether or not encouraging someone among Boortz’s hundreds of thousands of listeners to “Shoot those leftist bastards dead” created a clear and present danger to members of POG.

What’s most interesting is that the members of POG were clearly exercising their First Amendment rights by holding a peaceful protest, which calls Boortz’s motives into question. In addition to potentially creating a clear and present danger to POG, an incitement to violence against such protesters could reasonably be expected to create a chilling effect on similar protesters, that is, to infringe on their right to free expression. It appears that Boortz was concerned with ratings and not principle.

(Ironically, Schenck v. United States involved incendiary language used by leftists protesting the draft.)

By far the more disturbing incident occurred a week before, when, beginning at approximately 10:35am EST, Boortz repeatedly played audiotape of a nine-year-old child and mocked and ridiculed the child’s speech patterns. Legal precedent makes such behavior, while reprehensible, protected speech when aimed at adults. One legal issue to be determined is whether such behavior aimed at a child is also protected.

To compound Boortz’s malevolence, both he and WSB General Manager Dan Kearney were advised that the child in question suffers from at least one disability. Even without having been notified, the audio speaks for itself; Boortz listeners commenting at this blog suspected some disability. Subsequently, posts at Newsprism.com that addressed the disability were referred to by Boortz on air, and the Boortz Show emailed Newsprism several times. One such email specifically addressed the question of the child’s disabilities: “In your blog you seem to be backing off your claims that Lil’ Buford has some sort of a disability...”

Nonetheless, Boortz, clearly with the knowledge and permission of WSB management, continued to humiliate the child up until Thursday, March 13. A second legal issue to be determined is whether a broadcaster has a responsibility to consider the psychological and/or emotional state of the target of such humiliation. If, for example, if someone with schizophrenia were to be humiliated publicly over an extended period of time, would it be foreseeable that psychological damage might be done?

Boortz went so far as to publish the following additional insults towards the boy on his web site, www.boortz.com, on March 13, well after having been informed of the child’s disabilities: “…looks like we’ve really twisted a few knickers out there with our panning of Lil’ Buford’s communications skills. You remember Lil’ Buford, don’t you? The 10-year-old kid who can’t speak the English language? Yeah .. that one, the future worm farmer.”

A well-publicized case involving an adult harassing a teenager online in 2006 did not lead to criminal charges being filed despite the fact that the harassment appears to have contributed to the teenager’s suicide. However, public outrage made the adult harasser a pariah after a blogger published her name and address on the Internet. Wired.com notes that “few can imagine an offense more egregious than a trusted adult preying on the emotions of a vulnerable child.” No civil suit was filed, and the question remains open whether such circumstances would support an intentional infliction of emotional distress suit.

By March 14, the web post in question was removed from www.boortz.com. On that very same day, Boortz made his “Shoot those leftist bastards dead” comment; was this coincidence, or did he simply choose another tactic in a cynical attempt to generate controversy and increase ratings?

The privilege of broadcasting carries with it a fiduciary duty (an assumption of trust) and a mandate to act in the public interest. Broadcasters, then, are subject to the same or more stringent limits as private citizens—there is no “extra” protection afforded them. The law on intentional infliction of emotional distress, while vague, involves behavior so outrageous that it “shocks the conscience” and therefore doesn’t have a place in a “civilized society.” Standards have been created that address “depraved indifference” towards a victim or the “reckless disregard” of another’s well-being.

The family of the child Boortz humiliated appears to be pursuing a lawsuit in which these and similar issues will emerge. The FCC is also investigating Boortz’s behavior in this case. It’s worth noting that the issues in these cases don’t involve mere content, such as indecent or obscene statements, but rather the infliction of damages on specific listeners and the duty of the broadcaster to mitigate such damages.

It’s clear that neither Boortz nor WSB management was operating in the public interest, in the best interest of POG or the young child, or in the best interest of the First Amendment. The timing of the incidents suggests an attempt to improve ratings in order to increase advertising rates.

Boortz and WSB will argue that Boortz was simply exercising his First Amendment rights. Hopefully, a jury (or two) will get to decide the limits of those rights.

Newsprism

Democracy, Republic, and Superdelegates—A Party Paradox

The so-called “superdelegates” in the Democratic Party’s nomination process account for about one-fifth of the delegates who will choose the party’s standardbearer. Made up of elected officials, former office holders, and appointees these 796 party apparatchiks are in no way beholden to the voters of their respective states.

The question on many lips: is the superdelegate system undemocratic?

The easy answer is, clearly, yes, at least a little bit. Superdelegates take power away from the people and concentrate it in the party hierarchy.

But in historical terms, our presidential electoral process is far more democratic now than it was when the Founders designed our democratic republic. (Benjamin Franklin, asked as he left the Constitutional Convention what kind of government had been created there, quipped, “A republic, if you can keep it.”)

We temper the passions and shortsightedness of the mass by keeping a fine balance between pure democracy, which Plato called “mob rule,” and republicanism, in which the rule of law insures the rights of all of the people despite the worst inclinations of the majority of the people. Slavery was as undemocratic an institution as could be imagined, but was supported by a majority of the people until Abraham Lincoln resolved to “form a more perfect union.”

Neither democracy nor the Constitution is infallible. Both should be subject to enlightened revision. The question concerning the superdelegate system should not be, “is this undemocratic,” but rather, “is it good for the party and the country?”

The Founders saw fit to leave the election of both the President and the Senate in the hands of the state legislatures, not the people, though all 50 states have ceded that power to the people. The Electoral College and the party system still act as more or less elitist buffers between the people and the highest offices in the land.

The superdelegate system is more democratic than what the Founders envisioned, but less democratic than the direct popular election of the president proposed by many Democrats.

Is there such thing as a system that is too democratic? Democrats would generally say, “Of course not.” Republicans would generally say, “Of course.”

The irony is that the Republican Party uses a process that’s far more democratic than the process used by the Democratic Party.

If anything needs to change, maybe it’s this: the advocates of a purer democracy should adopt a system that more accurately reflects their Democratic philosophy, not that of the patrician protectors of the Republican elite.

Newsprism

Follow the superdelegates nationally and in your state at the Superdelegate Transparency Project.

Is Warrantless Wiretapping Warranted?

Congress and the White House are engaged in an ongoing struggle over the Executive Branch’s authority to perform surveillance without a search warrant. At stake: the Fourth Amendment and separation of powers on the one hand, and national security on the other.

Federal judges have already ruled warrantless wiretapping unconstitutional, though the case has yet to reach the Supreme Court, which has thus far refused to hear lawsuits challenging the wiretaps.

Congress allowed Bush’s wiretap program to go forward on a temporary basis last year, but that loophole has now lapsed, leading to the current showdown.

There is precedent for suspending Constitutional rights during time of war: President Roosevelt interned tens of thousands of Japanese Americans during World War II, and President Lincoln suspended habeas corpus during the Civil War, for example. President Bush has suspended habeas corpus and imprisoned American citizens indefinitely without benefit of counsel–which leads to a crucial question:

Is the War on Terror analogous to WWII or the Civil War?

Of course not. Compare the death tolls: 7431 and counting in the War on Terror, over 400,000 in WWII, over 600,000 in the Civil War. Compare the stakes: the possibility of occasional attacks on American targets vs. world domination by totalitarian dictators vs. the sundering of the American nation. Compare the enemy: a loosely organized band of radical jihadists vs. Axis Powers controlling huge swaths of Europe, Asia, North Africa and the Pacific vs. a determined Confederacy led by Robert E. Lee, a military genius rivaling Napoleon and Alexander.

The president has used the 9/11 attacks to take power from Congress, the courts, and the people. He already has an adequately cooperative Congress, a sympathetic Supreme Court, and the tools–including FISA–to protect us without weakening the Constitution or our civil liberties.

The Bill of Rights couldn’t be more clear:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The FISA Court already gives the president the authority to delay getting a warrant for three days and to hold court in secret. He’s already suspended habeas corpus, circumvented the Geneva Conventions, signed hundreds of signing statements undermining the separation of powers, and invaded Iraq without a declaration of war.

Are warrantless wiretaps warranted?

Hardly.

Newsprism.com

Bill of Rights Re-write

In a post-9/11 world, it just makes sense to update quaint documents like the Geneva Conventions and the Bill of Rights. The following is a draft of a new and improved Bill of Rights under consideration by the Bush administration, available for free to any US citizen (add $4.95 for shipping and handling) from that well-known PO Box in Pueblo, Colorado: 

The First Amendment–Under New Management with More Locations to Serve You
Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof; and just a few laws abridging the freedoms of speech and of the press; and maybe one or two little ones abridging the rights to peaceably assemble and petition the Government.

The Second Amendment–Absolutely, Positively, 100% Guaranteed* (*some restrictions apply)
The right of the people to keep and bear Arms shall not be infringed, except for people who oppose the infringement of their right to keep and bear Arms.

The Third Amendment–Only $19.95 with Free Continental Breakfast
No Soldier shall be quartered in any house without the consent of the Owner, but in a manner to be prescribed by law once all the discount motels are full.

The Fourth Amendment–Now with Lubrication for Easier Insertion
The right of the people to be secure in their persons, houses, papers, and effects (excluding their wombs, genitals, brains, blood, lungs, anuses, closets, phones, and computers) against unreasonable searches and seizures shall not be violated; and no Warrants shall issue but upon probable cause, and particularly describing the place to be searched and destroyed, and the persons or things to be seized and devoured.

The Fifth Amendment–Flexible Coverage for Uncertain Times
No person shall be held to answer for a crime unless on an indictment of a Grand Jury, except in cases involving public danger or public relations; nor shall any person be deprived of life, liberty, or private property without due process of law, except in times of actual, cultural, or rhetorical war.

The Sixth Amendment–No Money? No Credit? No Problem
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial by an impartial jury, and to be informed of the nature and cause of the accusation; and to purchase just as much Justice as he or she can afford.

The Seventh Amendment–Kiss Lady Liberty’s Scales and Place Your Bet
In suits at common law where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, even if some fool wants millions for spilling hot coffee in her own lap.

The Eighth Amendment-Because Too Much Is Never Enough
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted, except by the military, and on reality television.

The Ninth Amendment–Your Donation May Be Tax Deductible
The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people, unless the people really, truly, honest-to-God don’t care.

The Tenth Amendment–Self Serve Only. Some Assembly Required.
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people; but only if the people hunker down and fight like hell!

Newsprism.com