California

Homeland Security Violating Due Process and Free Speech In Internet Power Grab?

by Hans Bader on December 2, 2010 · 1 comment

in Legal, Nanny State, Personal Liberty, Regulation, Tech & Telecom

Law professor David Post notes that the Department of Homeland Security is seizing entire domain names, not to protect national security, but to enforce run-of-the-mill copyrights.  He calls this an unconstitutional due process violation, noting that “80 websites . . . have now been prevented from speaking to US citizens even though the website operators, whose domains were seized, had no notice or opportunity to respond to the charges against them (and to argue, for instance, that they are NOT infringing copyrights or trademarks), no adversary hearing, and certainly no adjudication before a neutral [judge], that anything unlawful is going on at these sites.”

He also notes that Congress has not yet passed a bill that would have granted the federal government the specific authority to seize domain names.  (Senator Wyden of Oregon has put a hold on a bill known as COICA, the Combating Online Infringements and Counterfeits Act, that would allow U.S. courts to “seize” domain names belonging to U.S. or foreign websites simply upon a charge, by the Attorney General, that the site was “primarily devoted” to infringing activities.)

Earlier, CEI’s Ryan Radia and 40 law professors criticized COICA, arguing that it contained “egregious constitutional infirmities,” and would lead to restrictions on speech that are unconstitutionally overbroad and violate First Amendment rules against prior restraints.  Professor Post also argues that the domain-name seizures would be “prior restraints on speech” that are “blatantly unconstitutional.”

CEI also took aim at another restriction on speech. Earlier, Ryan Radia and I criticized California’s overly broad law restricting video games for minors as a First Amendment violation, which is before the Supreme Court in the case of Schwarzenegger v. Entertainment Merchants Association.  A bunch of state attorney generals like Connecticut’s Richard Blumenthal (rated the worst attorney general in America by CEI) have filed a brief urging the Supreme Court to uphold the law.  (The idea that minors have First Amendment rights is not new, but rather has been recognized for generations, as I explained in my 2007 law review article — the Supreme Court first ruled that the First Amendment applied to the states in the 1925 Gitlow decision, and soon thereafter applied the First Amendment to minors in its 1943 Barnette decision.)

Do You Want the IRS Doing Your Taxes?

by Ryan Young on December 1, 2010

in Deregulate to Stimulate, Economy, Politics as Usual, Regulation

The average American spends over 26 hours per year doing taxes. That’s too much. The obvious solution is to simplify the 70,000-page tax code. But that’s politically difficult. So Austan Goolsbee, among others, has an alternative idea: have the IRS do your taxes for you.

This return-free system is a bad idea for a lot of reasons. One of them is the obvious conflict of interest when your tax collector is also your tax preparer.

Another reason is that the IRS is not up to the task. As I explain in an op-ed being distributed by McClatchy News Services, the IRS rarely has all the information it needs to fill out an accurate return for any one individual, household, or business. People change jobs. They have kids. They get married, and sometimes divorced. They buy homes and cars. Who knows what kinds of deductions they qualify for? The IRS probably doesn’t.

And if the IRS makes a mistake on your return, you would be liable for it. If you want to stay on the right side of the law, you would have to calculate your own taxes anyway, to make sure the IRS got it right. So much for saving time.
Return-free systems have already been tried in California and the UK. Neither attempt can be called a success.
It is heartening that officials are looking for ways to reduce the burden of doing taxes. But a return-free system would treat only the symptom, and poorly at that. The root problem is an arcane, 70,000 page tax code. The solution is to simplify it.

CEI Podcast — November 15, 2010: Free Speech and Video Games

by Ryan Young on November 15, 2010

in Culture, Legal, Nanny State, Personal Liberty, Podcast, Regulation, Tech & Telecom

Associate Director of Technology Studies Ryan Radia gives his take on a Supreme Court case concerning California’s ban of violent video game sales to minors. Keeping such things away from children is traditionally a job for parents. Have a listen here.

The case has implications that reach far beyond video games. Because censorship is such a subjective thing, allowing it could have a chilling effect on forms of expression from art to music to film. The First Amendment specifically prohibits the government from sanitizing culture. That is up to the people themselves.

Photo credit: bhschenker’s flickr photostream.

Feminist Porn Director Supports Freedom of Individual Choice

by Michelle Minton on November 4, 2010

in Health and Illness, Nanny State, Personal Liberty, Regulation

Porn actress, director, and self-described “kinky feminist,” Madison Young, spoke out in an interview with Salon.com about her feelings in the condom debate that has reemerged in the California adult film industry in the wake of recent news that an actor tested positive for HIV.

…I think [the push to mandate condom use in the industry] could be a mistake. Making condoms mandatory for all adult films is just as confining and dis-empowering as eliminating condoms as an option for performers.

While groups like the AIDS Healthcare Foundation (AHF) and arm-chair advocates want to refuse the choice of actors and directors about what is best for their own health and careers, Young is one of many industry insiders advocating for the rights of individual actors to choose whether or not to use condoms, another method of protection, or none at all.

As a director, I feel that creating a condom-optional policy for my talent works best. I shoot a lot of real-life couples that don’t use condoms in their personal life so they choose not to use them. Also sometimes women who have latex allergies or experience discomfort from using condoms opt not to use them in their scene. But they always have that choice.

Young joins the ranks of other directors and stars speaking out for freedom of choice in spite of the very real threat of sexually transmitted infection (STI). While disease is a frightening and dangerous possibility for those in the adult entertainment business (as well as anyone else engaging in sexual activities), Young and others seem to recognize that an even scary and harmful prospect is the infringement on the freedoms of speech, expression, and the elimination of personal choice.

Halloween Roundup

by Ryan Young on November 1, 2010

in Culture, Nanny State, Personal Liberty, Regulation, Zeitgeist

Regulators kept themselves plenty busy for yesterday’s holiday. Highlights:

Silly string is forbidden in Hollywood on Halloween. Revellers are warned by street signs featuring not one, but two sets of unnecessary quotation marks (pictured above). The punishment is a $1,000 maximum fine and up to six months in jail. The punishment is the same as the maximum for a DUI, less a six-month driver’s license suspension.

Across the country in Zebulon, North Carolina, a 20-year old man was arrested for “wearing a mask or hood in public” on Halloween. The 1953 ordinance was anti-Ku Klux Klan measure. Ironically, yesterday’s arrestee is black. His bond is set at $7,500.

And in the Midwest, Belleville, Illinois, has made it illegal for anyone over age 12 to go trick-or-treating.

My Role Model, Jenna Jameson

by Michelle Minton on October 27, 2010

in Nanny State, Personal Liberty, Precaution & Risk, Regulation

As a self-made business mogul, a mother and wife, and a cancer survivor, there are many aspects of Jenna Jameson to admire and emulate. That said, I’m not looking to Jameson’s movies for advice on safe sex; just as I wouldn’t turn to Martin Scorcese for lessons on how to be a successful cab driver in New York City. Movies are works of art, fiction, and fantasy. The argument that condoms should be made mandatory in pornographic films due to viewers potentially imitating what they see on screen is logically indefensible and somewhat shocking, considering that it is written on a site that regularly publishes articles defending freedom of speech, free expression, and keeping government out of the bedroom.

Kellee Terrell’s article, posted on Huffington Post yesterday, gives us a glimpse into the type of thinking that leads many intellectuals to advocate at one time for social liberty while at the same time demanding that government intervene in the personal choices of others. It stems from a condescending disbelief in the ability and the right of the average individual to make choices about their own life.

Why the Porn Industry’s HIV Problem Is Our Problem, Too:

While it is obvious that not using condoms on porn sets is a safety hazard, I have often wondered: How much of a safety hazard is it for viewers to consume condomless porn? How much does watching bareback sex influence or reinforce our desire to mimic that same behavior in our own lives?

…I am not so naïve as to believe that if the porn industry were to make condom use mandatory, that act alone would completely revolutionize how Americans view safer sex or condoms. But it cannot be denied just how powerful media is …

Perhaps now is the time for the porn industry to make some changes in terms of safer sex practices — not just for the sake of their own employees, but for the sake of all of us.

It is not the porn industry’s responsibility to teach anything to anyone. They make films and money. We can call them artists, or business people, and though some may release instructional videos, it isn’t fair to label them as custodians of anyone’s sexual decisions.  It may be interesting to examine possible correlations between behavior and viewing habits, but even a evident connection would not make actors, directors, or producers culpable for that behavior.

Based on Terrell’s logic couldn’t the argument be made that we ought to ban films and TV shows that feature rebellious youth (i.e. My So Called Life), dangerous driving (Rebel Without a Cause) or victimization of women (everything on the Lifetime TV Network) lest someone takes them as guidance for their life choices?

Obviously, this isn’t the case. It may seem incomprehensible that the same people arguing for a condom mandate are the same people who would normally scream at the top of their lungs if the government tried to regulate bedroom activities. However, because pornography is an issue of capitalism, of “big business,” they look upon the actors as victims in need of protection-whether they want it or not.

It is not the government’s right to regulate how adults engage in sexual activity; we each can and should take responsibility for our own sexual safety. And, as Jenna Jameson has proven throughout her career, adult film actors also should be left free from government interference to make the decisions that affect their lives and career.

Note: Jenna Jameson appears to favor either a condom mandate or at least some stronger regulations on set.  That doesn’t affect her status as a sharp business lady, but, like I said, I’m not looking to her for safe sex advice–nor am I looking to her for regulatory analysis.

Bootleggers and Baptists Everywhere

by Ivan Osorio on October 7, 2010

in Deregulate to Stimulate, Economy, Energy, Politics as Usual

Bruce Yandle’s insight of how erstwhile alliances of “Bootleggers and Baptists” help drive state intervention into economic matters is extremely useful when looking at the political dynamics behind certain policy proposals. The “Baptists” are the self-appointed moral guardians who strive to ban certain products or behaviors under the justification of protecting the public’s morals. The “Bootleggers” are the clandestine entrepreneurs who take advantage of the prohibitions supported by the Baptists by charging (often exorbitant) prices for giving people the ability to consume or do what they want, contra the law.

Two items today show different aspects of this phenomenon at work. First, at Tech Liberation Front, Adam Thierer takes to book some Silicon Valley entrepreneurs for giving in to the temptation that makes Bootleggers & Baptists alliances possible: The seduction of political power. He cites a Politico story in which Carl Guardino, president and CEO of the Silicon Valley Leadership Group, complains: “All too often, people see Silicon Valley as the wallet and set aside the words or wisdom that [it] can provide.” Thierer retorts:

Well, boo-hoo.  If Mr. Guardino and his fellow Silicon Valley travelers don’t like being treated like an ATM, then they should stop behaving like one!  No one makes them give a dime to any politician.  And once you start playing this game, you shouldn’t be surprised by how quickly you’ll become entrenched in the cesspool that is Beltway politics and become less and less focused on actually innovating and serving consumers.

Well said. And at Biggovernment.com, filmmaker Ann McElhinney provides a good example of where businesses’ priorities shift to when they turn to politics as a business strategy. At issue is California’s ballot Proposition 23, which would suspend the state’s Global Warming Solutions Act (AB 32), a climate change bill, until unemployment in the state drops below 5.5 percent. As my colleague Marlo Lewis notes:

In a just-published study for the Pacific Research Institute, Dr. Benjamin Zycher estimates that adoption of Proposition 23 will increase aggregate employment in the State by a bit less than 150,000 in 2011, about half a million in 2012, and 1.3 million in 2020, relative to the case in which AB 32 goes into effect.

So who would benefit from a bill as destructive as AB 32, enough to fight to have it implemented right away? McElhinney provides one possible answer.

Thomas Steyer owns Farallon Capital Management, a $33bln hedge fund. He’s also donated $2.5m to blocking Prop 23 and has pledged a further $2.5m if needed.

There has been almost no investigation of why this citizen would give so much money and of course no suggestion that these donations would make Thomas Steyer a “vested interest”.

But bury deep into Farallon’s website and you will see Steyer admits his hedge fund  invests in areas which will become profitable “due to a catalyzing event or a change in circumstances, including regulatory or legislative change.”

Of course, we’ve seen this story before.

Not Wright for Internet Gambling

by Michelle Minton on September 28, 2010 · 1 comment

in Legal, Nanny State, Personal Liberty

Some Net gamblers are lamenting the indictment of California State Senator Roderick Wright (D-Inglewood) who was indicted by a grand jury for alleged voter fraud. Wright is seen as a proponent of online gambling in California because of the bill he introduced earlier this year which would legalize online gambling in a limited form in California. If convicted of voter fraud, the chances of his bill passing are slim to none. Perhaps online gamblers in California shouldn’t be too upset.

As I wrote in June, Wright’s plans for bringing Internet gambling to California aren’t exactly ideal…to put it mildly. Actually, what I said was that Wright’s SB 1485, while apparently legalizing some online gambling, would actually have the effect of criminalizing all forms of Internet gambling except for the three state-authorized online casinos.

Sen. Rod Wright introduced SB 1485, a bill that supposedly legalizes Internet gambling for residents. What it would actually do is legalize gambling only at the three online platforms and criminalize Internet poker played anywhere else online. Currently, there are no federal laws that make online poker games a crime and the DOJ has never prosecuted individual players associated with the activity. California makes 11 names games illegal to play online, but poker is not one of them. Thus, in CA, poker is not consider an unlawful Internet gambling activity at the moment. But if a law is passed that sanctions only three online providers, chosen by the state, as SB 1485 does, then playing poker online anywhere else will be a crime. The state’s DOJ will be allowed to arrest any individual caught playing poker online at a non-sanctioned site.

Currently, California law makes 11 named games illegal to play online or any game where the operator takes a rake (a cut of the money won in each hand). Thus, online poker in the state is legal at the moment.

While some might argue that legalizing online gambling in this less than desirable form is still a step in the right direction, but is it? If Net gambling was banned throughout the United States, including California, then perhaps it would be a step forward. But as U.S. law and California law currently exist, Internet gambling is not illegal. There are currently 11 named games illegal online in California; poker is not one of those named games, thus it is technically legal in the state.

The supposed purpose of Wright’s bill is bring online gambling out of the black market, earn tax revenue for the state, and to protect consumers. While amendments will be considered, as it is now — restricted to the max — the bill won’t accomplish any of its goals.

1. It won’t add protections for consumers:

The text of the bill itself notes that millions of Californians gamble online for money. Criminalizing all but three sites will not stop players from visiting the platforms they know and like. Those online gamblers will have no protections because they will be breaking California law.

2. It pushes online gambling into the shadows:

As mentioned above, players will continue to frequent unsanctioned gambling sites, only they’ll now be criminals. If Senator Wright and any other politician talking about Internet gambling really wants to protect players, they should let all sites be legal — allowing players recourse if they’re ripped off. If, however, the state wishes to put its seal of approval on any of the platforms, that might make some new gamblers feel more comfortable about playing at those designated sites.

Whether Wright is found guilty or not, his proposal ought to be mucked.

Such limited legalization is an all around bad bet.

San Francisco’s Mayor Opposed to Alcohol Tax

by Michelle Minton on September 15, 2010

in Health and Illness, Legal, Nanny State, Personal Liberty, Regulation

It isn’t often that we get to praise politicians, but cheers to San Francisco Mayor Gavin Newsom who vowed to veto plans for an increased alcohol tax. The tax “would add about 3 cents to a 12-ounce bottle of beer, 4.5 cents to a 6-ounce glass of wine and 3.5 cents to a drink containing 1.5 ounces of hard liquor.”

The so-called “charge for harm tax,” as it has been dubbed, would be a fee levied on alcohol wholesalers and distributors. It was proposed by John Avalos, a member of San Francisco’s Board of Supervisors in order to recoup the estimated $18 million a year San Francisco spends supposedly dealing with alcohol-related problems as well as to cover health care costs.
The proposal won approval with the Board of Supervisors on Tuesday, but Newsom believes a “charge for harm” would do more harm than good, saying, “Pursuing this likely illegal new fee in this economic environment will impact thousands of businesses, cost jobs and put San Francisco at a competitive disadvantage with every other county in California.”

First, Newsom is right. This proposed tax is bad for the city and the state’s economy.

California’s wine and alcohol industry is a healthy and vital parts of the state’s economy. This, unfortunately, means it is a prime target for politicians who would rather raise taxes than cut spending.  But, while  the proposed tax may temporarily fill the coffers, it will result in those wholesalers and distributors charging restaurants, vineyards, and breweries and ultimately, consumers more.

This will result in fewer establishments, fewer jobs, less tax revenue for the state in the long-run.

Wine and beer production provide the U.S. with over 2 million jobs and represent around $60 billion in taxable wages. In California, a state known for its wine production, the stakes are particularly high. The wine industry in California provides tax revenue (about $15 billion in state and federal taxes) as well as bringing in tourists (about 20 million a year) who pour money into other parts of the economy.

The effects of increased taxes on wholesalers and distributors will ripple through the entire industry.

Second, if they charge for the harm alcohol does, are they going to pay for the benefits it also provides?

Alcoholic beverages have long been demonized in this country for the “social ills” associated with those who abuse the product. However, there are just as many if not more positive effects of alcoholic beverages that most do not consider when choosing to apply discriminatory taxes to the industry. Moderate alcohol consumption is widely associated with decreased risks of various age-related medical problems such as coronary heart disease, stroke, cancer, and cognitive disorders like dementia and Alzheimer’s disease, and a new study indicates that alcohol consumers have lower risk of rheumatoid arthritis.

Studies also show that social interaction is more important to ones health than quitting smoking or losing weight. While it isn’t a requirement, much of modern social interraction is organized around the consumption of alcohol: drinks after work, dance clubs, football games and beer, a backyard barbeque. Alcohol isn’t necessary for social interaction, but there’s a reason they call it the social lubricant.

The point is, alcohol doesn’t make stupid people do stupid things. If someone chooses to get drunk and behave in a risky way, that is their choice and no fault of the farmer, bar, or retailer who sells them the bottle.

Whether the net effects of alcohol consumption are negative or positive, it shouldn’t be the government’s role to apply discriminating taxes one industry because it deems the effects “undesirable.”

Note: image via wortblog.blogspot.com

The Dead Weight Loss of Union Disputes

by Ivan Osorio on September 14, 2010

in Economy, Employment, Labor

At Reason Hit & Run, Tim Cavanaugh provides a good observation on the ongoing dispute between the powerful Service Employees International Union (SEIU) and its breakaway local, National Union of Healthcare Workers (NUHW), which entered a new phase yesterday, as voting began at Kaiser Permanente facilities in Northern California, for workers to decide whether to be represented by SEIU, NUHW, or no union at all.

NUHW president Sal Rosselli, who used to head SEIU’s affiliate in Oakland, has loudly complained of the SEIU national leadership’s efforts to forcibly merge his local with a scandal-ridden Los Angeles-based local. He’s got a good point. However, as Cavanaugh points out, in terms of the broader economy,  SEIU and NUHW are essentially fighting over the deck furniture on the Titanic.

[I]t’s not clear how having more choice in union leadership decisions would do much to end the exploitation of the proletariat. The more time you spend choosing between Rosselli and [SEIU President Mary Kay] Henry, the less time you have to, maybe, build some value for the people who pay you 100 percent of your income (not counting moonlighting), or even check out Craigslist to find a better job.

Even worse, your union dues may actually hurt your future job prospects, as they go to help elect and reelect politicians who support economically destructive policies intended to keep unions afloat.

For more on the SEIU-NUHW dispute, see here and here.

For more on SEIU, see here and here.

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