freedom of speech

Judge Censors Speech About Affirmative Action and Fraud in Racial Set-Asides

by Hans Bader on September 28, 2011 · 2 comments

in International, Legal, Nanny State, Personal Liberty

Political “commentator Andrew Bolt ‘was found guilty Wednesday of breaking Australian discrimination law by implying that fair-skinned Aborigines chose to identify as indigenous for profit and career advancement.’ A judge ‘said he will prohibit reproduction of the offending articles,’ and ‘Bolt and his publisher must meet with the plaintiffs to discuss appropriate court orders that would reflect the judgment.’”

This is an extremely damaging blow to free speech. The problem of fraud in affirmative action programs is neither new nor rare. People who are not minorities often pretend to be minorities in order to obtain benefits under affirmative-action programs and racial set-aside schemes. (The Massachusetts Supreme Court upheld the firing of two brothers who pretended to be black to receive preference in hiring). And people often push the envelope in claiming minority status when they have only a small fraction of non-white or minority ancestry. (For example, beneficiaries of affirmative action included people who were only one-quarter Hispanic, under a consent decree in the U.S. v. New York City Board of Education case.)

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Schools Use “Bullying” as a Pretext to Violate Students’ Rights to Free Association and Freedom of Speech

by Hans Bader on August 10, 2011 · 4 comments

in Legal, Nanny State, Personal Liberty

In a small but growing number of schools, you have to invite all the kids in your child’s class to her birthday party, even if your child doesn’t want to invite them. For example, the student handbook of the John F. Kennedy Elementary School in West Berlin, New Jersey makes this demand: “If a student is inviting his/her classmates to a party, he/she must invite all of the students in the class or all of the female students or all of the male students. When invitations are given in school, students may not arbitrarily invite or exclude classmates from parties.”  These mandates may make sense to wealthy, privileged liberals with big houses, who don’t realize that a parent with a small house could not accommodate the entire class or even half of it. But there is no way I could accommodate more than a few kids at my daughter’s birthday party, since I live in a little two-bedroom house.

Many of these bossy rules dictating who kids can invite to their own birthday parties are based on the weird idea that inviting only popular children is a form of bullying.  Using politically-correct psychobabble about “power relationships,” some psychologists have sought to redefine bullying to include wielding “popularity,” not just violence.  For example, a recent survey by a clinical psychologist at the University of Virginia, Dewey Cornell, defined bullying as “the use of one’s strength or popularity to injure, threaten or embarrass another person on purpose,” and defined it to include “verbal” or “social” behavior, not just “physical” assaults and intimidation.  So if you are “embarrassed” by a “popular” person you can accuse them of bullying. Still worse is the nobully.com web site, which defines even “eye rolling” as a form of bullying, so if you roll your eyes at a jerk, they can accuse you of “bullying.”  As someone who experienced real, violent bullying as a child, I think these overbroad definitions of bullying trivialize actual bullying.

This mindset is typical of the current Administration, which issued a letter to school officials in October 2010 that falsely implied that bullying is already banned by federal law (contrary to federal court rulings), and defined bullying in ways that would violate free speech and disregard basic principles of federalism.
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Freedom of Speech on Alcohol Labeling

by Angela Logomasini on January 4, 2011

in Legal, Nanny State, Personal Liberty

After posting my Washington Times op-ed on wine-labeling mandates yesterday, I came across Diageo’s — the premium drinks company – press release that highlights the company’s support for “voluntary nutrition labeling.”

As I conclude in my op-ed: alcohol producers should have the freedom to include any information on their labels that they desire, except fraudulent claims. That includes nutrition and other health-related information. But unlike Diageo, activist groups are calling on the Alcohol and Tobacco Tax and Trade Bureau (TTB) to require specific information, rather than allow firms more freedom in labeling.

There’s a big difference between the two. Market-driven labeling allows each company to provide the information that best meets their consumers’ desires, and it enables companies to modify the information as consumer demands change. In short, market competition rewards firms that offer consumers what they want most. Mandates lock everyone into a nonsensical, one-size-fits-all approach. And once codified into law, even the most misguided regulations are very hard to change.

Image information: The Vino Veritas label on this page was part of a 1996 CEI effort to promote freedom in wine labeling. See our public comments at cei.org.

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.)

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.

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.

Bill to Regulate Political Speech Fails

by Ryan Young on July 27, 2010

in Personal Liberty, Politics as Usual, Regulation

The Hill:”Senate fails to advance campaign finance bill”

The First Amendment: “Congress shall pass no law… abridging the freedom of speech.”

Good news for anyone who wants to engage in political speech. But how sad that this happened because of politics, not principle.

It was mostly Democrats who favored the DISCLOSE Act. And according to today’s Senate vote, it was only Democrats who favored the bill. But Republicans are no heroes on this issue. Don’t believe their posturing. If the political winds were currently favoring Democrats, Republicans would be working their tails off to pass similar legislation.

The primary effect of campaign finance regulation is to stack the rules of the game in favor of incumbents. Both parties know this. And both parties will seek to use campaign finance regulation to their advantage however they can.

A Telling Headline

by Ryan Young on May 21, 2010

in Personal Liberty, Politics as Usual, Zeitgeist

From The Hill: Vulnerable Democrats defend support for campaign finance legislation

Campaign finance regulations are an incumbent’s best friend. The incumbent already has name recognition, and a deep network of fundraising contacts. Heck, Congress’ franking privilege allows incumbents to send out de facto campaign messages for free. Challengers have none of those advantages.

It takes a lot of money to buy enough ads to get a challenger’s name recognition anywhere near the incumbent’s. Campaign finance regulations make it harder to raise that money, and harder to put up a fight against established officeholders. No wonder so many incumbents from both parties favor strict campaign finance regulations! It’s good for their job security.

Regulation of the Day 134: Not Voting

by Ryan Young on April 27, 2010

in Personal Liberty, Regulation, Regulation of the Day

The lede to this Denver Post article says it all:

RIDGWAY — Residents of this Old West- meets-New Age town can be fined if their fences are too high, they have too many chickens, their dogs aren’t on leashes or their weeds are out of control.

Tom Hennessy would like to add not voting to that list.

There are three things wrong with Mr. Hennessy’s proposed regulation. One is that mandatory voting is a violation of personal freedom. To vote or not is an important choice that people make for themselves. It is not Mr. Hennessy’s place to make that decision for others. Many countries have tried mandatory voting over the years, most notably the Soviet Union.

The second thing wrong with mandatory voting is that it violates freedom of speech. Mr. Hennessy is aware that compelled speech is just as unconstitutional as censored speech. That’s why he proposes a “none of the above” option on ballots. But some people are sending a deliberate message when they choose not to vote. Mr. Hennessy would fine them for sending that message.

The third point is that, maybe, some people shouldn’t vote. If I step into a voting booth not knowing a thing about the candidates or the issues, I am essentially choosing at random. And choosing wrong means voting against everything I stand for.

Even worse, human beings have built-in cognitive biases that affect their voting habits. Economist Bryan Caplan’s book The Myth of the Rational Voter identifies anti-foreign bias, anti-market bias, make-work bias, and pessimistic bias, for starters.

Even relatively informed voters fall prey to these biases. They vote accordingly. The difference of opinion between economists and the general public on economic issues is startling. Nobody argues relativity with a physicist thinking they’ll win. But voters from both parties argue against the laws of economics every election, often in error but never in doubt.

Despite its flaws, democracy has worked tolerably well in this country for a long time. Perhaps the best part of our particular democracy is that people are free to choose their level of engagement with it. That should be your choice. Not Tom Hennessy’s.

(Full disclosure: CEI takes no stance on whether to vote, or for whom. Neither do I. I personally have not voted since 2002, but seriously consider it every year.)

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