Sunday, October 25, 2009

Hate Crimes Bill passes, eroding civil liberties and constitutional double-jeopardy safeguards

Yesterday, Congress approved a measure to dramatically expand the existing federal hate crimes law, by adding it to an unrelated defense appropriations bill. The measure would expand current law to cover virtually all hate crimes already covered by state law (both by adding gender, sexual orientation, disability, and transgender characteristics to a law originally designed to protect racial minorities, and by getting rid of the requirement that a hate crime affect federally-protected activities to be prosecuted in federal rather than state court.)

The measure was opposed by the U.S. Commission on Civil Rights on double-jeopardy grounds. As I previously explained at length, the bill’s sponsors seek to use it to reprosecute people in federal court who have already been found innocent of hate crimes in state court, taking advantage of the “dual sovereignty” loophole in constitutional protections against double jeopardy. Civil libertarians like Nat Hentoff and Wendy Kaminer also object to the bill on double-jeopardy grounds. Backers of the bill, like the Leadership Conference on Civil Rights and Commissioner Michael Yaki, supported the bill partly as a way of trying all over again people who were either found not guilty, or who were convicted only of ordinary crimes, while being acquitted of hate-crimes (like the teenagers acquitted of hate crimes in the Shenandoah incident, and the California case of Joseph Silva and George Silva).

Such re-prosecutions can be an enormous waste of money, and grossly unfair to the people who are reprosecuted, driving them into bankruptcy to pay lawyers to represent them all over again when they have already been found innocent in state court after an expensive trial. When the government re-prosecutes someone, it gains an enormous tactical advantage over the defendant from using the prior prosecution as a test-run, even if the defendant is innocent — making a guilty verdict possible even if the defendant is in fact innocent.

The bill contains speech-related provisions designed to allow prosecution of people who are not violent and do not intend to cause hate crimes, but whose speech inadvertently incites a hate crime by some violent, bigoted nut. For now, courts are likely to block such prosecutions on First Amendment grounds, under the Supreme Court’s Brandenburg decision banning prosecutions of people whose speech unintentionally incites violence or other illegal acts (and the federal appeals court ruling in White v. Lee faithfully applying that principle to speech that incites violations of federal civil-rights and anti-discrimination statutes). But if the ideological composition of the Supreme Court changes substantially, it is conceivable (although far from certain) that that could change. Although the provisions will probably prove unsuccessful in censoring speech, it speaks volumes about the mindset of the hate-crimes bill’s backers that they would even try.

The bill also raises serious constitutional federalism issues under the Supreme Court’s Morrison decision, as I explained earlier.

Passage of the bill was aided by lousy reporting, in which journalists, like Reuters, depicted the bill as simply a harmless measure to add sexual orientation to the list of protected characteristics covered by the federal hate-crimes law, ignoring its many other, far more important (and dangerous) changes to federal hate-crimes law.

Many supporters of the hate crimes bill want to allow those found innocent to be reprosecuted in federal court. As one supporter put it, “the federal hate crimes bill serves as a vital safety valve in case a state hate-crimes prosecution fails.” The claim that the justice system has “failed” when a jury returns a not-guilty verdict is truly scary and contrary to the constitutional presumption of innocence and the right to trial by jury.

But it is a view widely shared among supporters of the hate-crimes bill. Syndicated columnist Jacob Sullum pointed out in 1998 that Janet Reno, Clinton’s Attorney General, backed the bill as a way of providing a federal “forum” for prosecution if prosecutors fail to obtain a conviction “in the state court.”

Supporters of the hate crimes bill also see it as a way to prosecute people even in cases where the evidence is so weak that state prosecutors have decided not to prosecute. Attorney General Eric Holder has pushed for the hate crimes bill as a way to prosecute people whom state prosecutors refuse to prosecute because of a lack of evidence. To justify broadening federal hate-crimes law, he cited three examples where state prosecutors refused to prosecute, citing a lack of evidence. In each, a federal jury acquitted the accused, finding them not guilty.

As law professor Gail Heriot notes, “Some have even called for federal prosecution of the Duke University lacrosse team members –despite strong evidence of their innocence.” Advocates of a broader federal hate-crimes law have pointed to the Duke lacrosse case as an example of where federal prosecutors should have stepped in and prosecuted the accused players — even though the state prosecution in that case was dropped because the defendants were actually innocent, as North Carolina’s attorney general conceded (and DNA evidence showed), and were falsely accused of rape by a woman with a history of violence (including trying to run over someone with her car) and making false accusations.

The Obama administration supports the hate-crimes bill, which it used as a wedge issue in the 2008 election.

The Obama administration recently urged restrictions on hate speech and blasphemy at the United Nations, joining in calls by left-wing lawyers and conservative Islamic countries to treat such speech, protected by the First Amendment under Supreme Court rulings, as a human-rights violation. Religious minorities have often been persecuted for “blasphemy” in Islamic countries for disagreeing with Islam, criticizing the prophet Mohammed, or interpreting Islam’s holy book, the Koran, differently than the majority of Muslims do. In the U.S., college hate-speech codes have been used to discipline students for criticizing affirmative action, defending the death penalty against racism charges, and calling homosexuality immoral. In Canada and Britain, hate speech laws have been used to punish religious criticism of Scientology and homosexuality.



The Chicago Way

The Chamber of Commerce is only the latest target of the Chicago Gang in the White House

When Barack Obama promised to deliver "a new kind of politics" to Washington, most folk didn't picture Rahm Emanuel with a baseball bat. These days, the capital would make David Mamet, who wrote Malone's memorable movie dialogue, proud.

A White House set on kneecapping its opponents isn't, of course, entirely new. (See: Nixon) What is a little novel is the public and bare-knuckle way in which the Obama team is waging these campaigns against the other side.

In recent weeks the Windy City gang added a new name to their list of societal offenders: the Chamber of Commerce. For the cheek of disagreeing with Democrats on climate and financial regulation, it was reported the Oval Office will neuter the business lobby. Obama adviser Valerie Jarrett slammed the outfit as "old school," and warned CEOs they'd be wise to seek better protection.

That was after the president accused the business lobby of false advertising. And that recent black eye for the Chamber (when several companies, all with Democratic ties, quit in a huff)—think that happened on its own? ("Somebody messes with me, I'm gonna mess with him! Somebody steals from me, I'm gonna say you stole. Not talk to him for spitting on the sidewalk. Understand!?")

The Chamber can at least take comfort in crowds. Who isn't on the business end of the White House's sawed-off shotgun? First up were Chrysler bondholders who—upon balking at a White House deal that rewarded only unions—were privately threatened and then publicly excoriated by the president.

Next, every pharmaceutical, hospital and insurance executive in the nation was held out as a prime obstacle to health-care nirvana. And that was their reward for cooperating. When Humana warned customers about cuts to Medicare under "reform," the White House didn't bother to complain. They went straight for the gag order. When the insurance industry criticized the Baucus health bill, the response was this week's bill to strip them of their federal antitrust immunity. ("I want you to find this nancy-boy . . . I want him dead! I want his family dead! I want his house burned to the ground!")

This summer Arizona Sen. Jon Kyl criticized stimulus dollars. Obama cabinet secretaries sent letters to Arizona Gov. Jan Brewer. One read: "if you prefer to forfeit the money we are making available to the state, as Senator Kyl suggests," let us know. The Arizona Republic wrote: "Let's not mince words here: The White House is intent on shutting Kyl up . . . using whatever means necessary." When Sens. Robert Bennett and Lamar Alexander took issue with the administration's czars, the White House singled them out, by name, on its blog. Sen. Alexander was annoyed enough to take to the floor this week to warn the White House off an "enemies list."

House Minority Whip Eric Cantor? Targeted for the sin of being a up-and-coming conservative voice. Though even Mr. Cantor was shoved aside in August so the Chicago gang could target at least seven Democratic senators, via the president's campaign arm, Organizing for America, for not doing more on health care. ("What I'm saying is: What are you prepared to do??!!")

And don't forget Fox News Channel ("nothing but a lot of talk and a badge!"). Fox, like MSNBC, has its share of commentators. But according to Obama Communications Director Anita Dunn, the entire network is "opinion journalism masquerading as news." Many previous White House press officers, when faced with criticism, try this thing called outreach. The Chicago crowd has boycotted Fox altogether.

What makes these efforts notable is that they are not the lashing out of a frustrated political operation. They are calculated campaigns, designed to create bogeymen, to divide the opposition, to frighten players into compliance. The White House sees a once-in-a-generation opportunity on health care and climate. It is obsessed with winning these near-term battles, and will take no prisoners. It knows that CEOs are easily intimidated and (Fox News ratings aside) it is getting some of its way. Besides, roughing up conservatives gives the liberal blogosphere something to write about besides Guantanamo.

The Oval Office might be more concerned with the long term. It is 10 months in; more than three long years to go. The strategy to play dirty now and triangulate later is risky. One day, say when immigration reform comes due, the Chamber might come in handy. That is if the Chamber isn't too far gone.

White House targets also aren't dopes. The corporate community is realizing that playing nice doesn't guarantee safety. The health executives signed up for reform, only to remain the president's political piƱatas. It surely grates that the unions—now running their own ads against ObamaCare—haven't been targeted. If the choice is cooperate and get nailed, or oppose and possibly win, some might take that bet.

There's also the little fact that many Americans voted for this president in thrall to his vow to bring the country together. It's hard to do that amid gunfire, and voters might just notice.



Moore Hypocrisy and Hype

By Meegan Cornforth

In his latest celluloid uppercut to the upper crust, documentary filmmaker Michael Moore examines the Home of the Brave to find it has been repossessed and its occupants turfed heartlessly out onto squalid Main Street USA.

Capitalism: A Love Story looks at America's affair with capitalism and suggests that the global financial crisis should be the catalyst to end this relationship once and for all. Moore even concludes the film with the defining statement: Capitalism is evil! (In case there was any doubt, Moore's family priest makes the same hellfire and brimstone pronouncement earlier in the film. How impartial!)

While Capitalism makes some good points about the inconsistency and incompatibility of free market philosophy with government bailouts of industry, and the need for greater transparency and accountability of the financial industry, it offers an unashamedly biased and inaccurate view of capitalism.

For example, it raises but fails to properly address the issue of greed. Moore chooses easy targets to focus on: fat cats in power with little concern or empathy for Joe Average. Exposed are mercenaries such as the Condo Vulture who profit from home foreclosures, and the judge who receives kickbacks from a privately run youth detention centre for reaching inmate quotas. These real-life snapshots of wicked, caricature capitalists are indeed obscene, but they are not examples of true capitalism. Corporatism and abuse of power are not consistent with the principles of free and fair trade. Moore was recently challenged and flummoxed on this very point by a libertarian college student.

What Moore does not acknowledge is the individual greed that is endemic in Western society - the greed that caused countless sub-primers to buy McMansions they couldn't afford - the greed that has driven a credit-backed spending spree on status consumer goods. Moore chooses to skirt the issue of personal responsibility and the film is the poorer for it.

While railing against capitalist `brainwashing,' Moore has the hypocrisy to cheer for socialism in an extremely blinkered fashion, effectively turning his film into an instrument of socialist propaganda.

However, the most alarming aspect of the film is a throwaway line - hidden in emotive words about the right to universal health care, education and housing - about the state's right to seize control of property and the means of production. This from a filmmaker supposedly championing democracy.

Perhaps Moore's next film should be set behind the Iron Curtain - Socialism: A Love Story Gone Wrong.

The above is part of a press release from the Centre for Independent Studies, dated October 23. Enquiries to Snail mail: PO Box 92, St Leonards, NSW, Australia 1590. Telephone ph: +61 2 9438 4377 or fax: +61 2 9439 7310



The myth of the multiplier: "As appealing as the Keynesian story sounds, many economists have long doubted it. In 1991, looking across 100 countries, Robert Barro of Harvard presented historical evidence that high government spending actually hurts economies in the long run by crowding out private spending and shifting resources to the uses preferred by politicians rather than consumers. For a dollar of government spending, we end up seeing less than a dollar of growth. Can long-term poison be short-term medicine? Even in the short run, if there's a big decline in the demand for workers, why should that alone cause mass unemployment? If all those workers really want to work, why won't wages just fall until all the workers have jobs? That's how markets end a glut, whether it's a glut of employees or a glut of blue jeans: with lower prices. If recessions really are caused by a fall in demand (and nothing else), why don't wages fall enough to keep people from losing their jobs?"

How to liberate an economy: "Brian Carney and Isaac Getz’s Freedom, Inc. is a timely book. It’s also countercyclical and somewhat counterintuitive. After all, most of today’s writing about economics and business is haunted by the current crisis: nearly every author and commentator expects that either more or less government intervention will bring the economy out of its difficulties. But Carney and Getz remind us that without well-managed enterprises, there would be no economy at all. Crisis or no crisis, the engine of economic growth has always been, and will always remain, entrepreneurs. Nations without entrepreneurs — whether they drive them out with excessive taxes and regulations, or in more extreme cases, suppress, exile, or kill them — never reach prosperity. One can often ascertain the condition of a nation’s economy by assessing the cultural, legal, fiscal, and social status of its entrepreneurial class.”

Stop blaming racism for black parents’ failure: "Growing youth violence in the United States will not be resolved until we find the moral courage to address the racial issues that underlie it. During a Chicago school visit earlier this month to the site where a black honor student was beaten to death by a mob of black students, Attorney General Eric Holder stated that growing youth violence in America is not just ‘a black problem,’ but a problem for all races. The trouble with this statement is that it is statistically untrue. Youth violence may not be solely a black problem, but it is primarily a black problem. … The question is not whether young blacks, particularly males, get involved in violent incidents more frequently than other races. The question is why.”

A Nobel Prize for showing that freedom works: "Pundits and politicians act as if government can solve almost any problem. At the slightest hint of trouble, the ruling class reflexively assumes that knowledgeable, wise and public-spirited government regulators are capable of riding to the rescue. This certainly is the guiding philosophy of the Obama administration. So how remarkable it is that this year’s Nobel Memorial Prize in economics was shared by Elinor Ostrom, whose life’s work demonstrates that politicians and bureaucrats are not nearly as good at solving problems as regular people.”


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The Big Lie of the late 20th century was that Nazism was Rightist. It was in fact typical of the Leftism of its day. It was only to the Right of Stalin's Communism. The very word "Nazi" is a German abbreviation for "National Socialist" (Nationalsozialist) and the full name of Hitler's political party (translated) was "The National Socialist German Workers' Party" (In German: Nationalsozialistische Deutsche Arbeiterpartei)


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