Twitter, which is one of Trump’s preferred methods of communication, said, “We have permanently suspended the account due to the risk of further incitement of violence.”

Twitter feared its platform might be used to mobilize rioters and that a continuation of Trump’s rhetoric could lead to more violence. Twitter CEO Jack Dorsey followed up with a thread where he tweeted, “I believe this was the right decision for Twitter. We faced an extraordinary and untenable circumstance, forcing us to focus all of our actions on public safety. Offline harm as a result of online speech is demonstrably real, and what drives our policy and enforcement above all.”

At Facebook, co-founder Mark Zuckerberg wrote in a post, “We believe the risks of allowing the President to continue to use our service during this period are simply too great. Therefore, we are extending the block we have placed on his Facebook and Instagram accounts indefinitely and for at least the next two weeks until the peaceful transition of power is complete.”

Trump and his supporters can disagree, but social media companies are free to take steps they think are in their best interests and/or the public’s best interests. As former Rep. Justin Amash put it: “The First Amendment prohibits government censorship and protects private censorship. In a free society, Twitter and Facebook are allowed to make horrible decisions with respect to content moderation, and you are allowed to tell them off and use another service.”

Some users had done that, moving to platforms like Parler before it got banned by every web hosting service during the post-Capitol riot social media reckoning. Is it worrying to see the president removed from social media platforms? Yes, especially for activists, protesters and others. Even Twitter’s Dorsey voiced concerns about the precedent that removing Trump sets.

It is extremely concerning as to how much power social media has to silence any voices it pleases. As the American Civil Liberties Union’s Senior Legislative Counsel Kate Ruane put it, “President Trump can turn to his press team or Fox News to communicate with the public, but others — like the many Black, Brown, and LGBTQ activists who have been censored by social media companies — will not have that luxury. It is our hope that these companies will apply their rules transparently to everyone.”

Hopefully, social media companies will provide clear rules for what is allowed on their platforms and the consequences for breaking those rules. But, ultimately, Twitter and Facebook are private companies that can make their own choices, including who they allow on their platforms.

And, as the ACLU correctly notes, the president certainly isn’t being censored. At any time, Trump could choose to walk into the White House briefing room or onto the White House lawn, where there would be numerous media networks ready to broadcast and stream his words.

For conservatives who think social media companies should be forced to give Trump a platform, just like a bakery in Colorado can choose not to serve a gay couple, Twitter can refuse services to the president. And it should remain this way. If the social media platforms were under government control or more heavily regulated, it would lead to real censorship at the hands of whichever political party is in power and would ultimately result in true abuse of First Amendment rights.

This wave of de-platforming adds complexity to the ongoing Section 230 conversation. Section 230 protects Internet companies from liability for third-party speech taking place on their platforms unless it is part of illegal activity. President Trump has consistently and incorrectly called for its repeal, claiming it allows for conservative voices to be silenced.

The incoming Biden administration also dislikes Section 230, though for different reasons. President-elect Joe Biden has said he’s interested in doing away with it because he sees it as giving Facebook an “exemption that they cannot be sued for knowingly engaged on, in promoting something that’s not true.”

Ultimately, conservatives should be defending the right of private companies to make their own choices. Without Section 230, conservative voices would likely have far less reach online. If Section 230 is repealed, social media platforms would face massive legal liability. As a result, they’d be quick to remove posts and actively restrict the speech of their users in order to stay out of legal trouble. Start-up social media companies would also be held to this standard, restricting their ability to grow due to the risks of potentially huge liability cases.

Today, it is even more clear that companies like Facebook and Twitter are a huge part of society and not having access to them can be very disruptive to some — even the president of the United States. But Twitter and Facebook are free to ban whomever they want and it should stay that way.

A version of this column previously appeared in The Daily Caller. 

The post Social Media Companies Have the Right to Ban Users appeared first on Reason Foundation.

The DOJ confuses monopoly with popularity in its anti-trust case against Google. Consumers and companies choose to make Google their default search engine because it is easy to use and is a high-quality service, not because they are forced to. Anyone can use other search engines. To claim Google has a monopoly assumes Americans do not know how to perform a basic internet skill — changing their search engines.

Google’s reply to the lawsuit shows it has more faith in Americans than the DOJ does. Google explains how easy it is to change search engines on its own Google Chrome browser to something other than Google, just as it is on every other browser a consumer uses. On Google Chrome, a user simply has to click settings and then the contents bar, where there is an explicit choice for “search engine” that gives you the option of using Google, Bing, Yahoo!, DuckDuckGo, Ecosia, and the option to manually input your own search engine choice if it is not listed. Google rightfully claims that if this DOJ lawsuit succeeds, it will artificially prop up low-quality search engines and ultimately restrict consumer freedoms to choose where and how they search online.

Additionally, the DOJ lawsuit presupposes that American consumers don’t understand how private companies function. When you shop for a car you don’t expect your local Ford dealership to have the new Chevrolets on display. Therefore, it is unsurprising that Google searches often prioritize products that benefit Google. Google is not hiding this fact and even lays it out blatantly in its reply to the DOJ lawsuit. Consumers choose who they support and know private companies use marketing to gain revenue. The DOJ’s effort to further regulate Google’s business practices would be unjust and would go against every right a private company has to advertise their business in America.

Google and other companies have grown and become popular, in part, because of the environment that Section 230 of the Communications Decency Act of 1996 fosters. Under Section 230, companies that allow third parties to use their platforms are immune from liability for most content published on their sites, and companies are free to moderate the content. This allows companies to develop their businesses and products without facing constant lawsuits for third-party content that may be deemed inappropriate by others. Section 230 grants freedoms to companies so they can create their own policy strategies and ultimately decide what they will and won’t allow on their platforms.

Recently, politicians from both sides of the political aisle have deemed Section 230 as an issue of concern for different reasons. While the left typically criticizes so-called Big Tech for not censoring hate speech or blocking election interference and misinformation, the right constantly complains that big tech is unfairly censoring conservative pundits, publications, and rhetoric.

If the DOJ and FCC actions force social media companies to regulate more speech or take legal responsibility for all of the words by third parties on their platforms, there will be more censorship of all sides, not less. If someone else’s words on a social media platform could lead to lawsuits, the easiest thing for Twitter or Facebook to do is to censor, i.e. ban, those posts. If it lost Section 230’s protections, for example, Google might decide its wisest action is to block every allegedly questionable or unsavory website from showing up at all in Google’s search results.

These companies should continue to be free to regulate their content as they see fit. Some companies have chosen to take a harsher stance against content removal, despite having liability protections from Section 230. They do this because they see it as being in-sync with their business policies. If companies refuse to remove content that large numbers of its consumers don’t like, they risk losing those consumers. Thus, extra regulations are unnecessary partly because of the existing consumer pressures already put on these companies.

At the end of the day, the government’s actions against these companies are mistaken. The anti-trust suit and forcing regulations on the tech industry could take away services consumers already choose to use and could force customers to replace them with lower-quality options. There are a multitude of search engines and social platforms to choose from. If one isn’t to your taste, then try a different one. But just because a tech or social media company is big and successful doesn’t mean it is a danger to society.

A version of this column originally appeared on DailyCaller.com.

The post Big Tech and Social Media Companies Don’t Need More Government Regulation or Meddling appeared first on Reason Foundation.

Competitive Enterprise Institute/National Review, Inc. v. Michael E. Mann

It is a core First Amendment principle that courts grant maximum protection to speech about matters of public concern-all the more so when the subject of the speech is a public figure. In this case, defendants’ speech criticized the scientific method used by Dr. Mann, a very public figure whose scientific work has played a role in causing massive policy changes in government.

This is not only the paradigm for how the marketplace of ideas is supposed to work, it represents the essence of the scientific method. Scientists of all stripes develop hypotheses, test them, and publish their work for fellow scientists and the public to review. Sometimes the review is not civil. Sometimes it is brutal. That is to be expected, particularly where, as here, the scientific issues have led to huge changes in government policy and there is a substantial body of commentary raising questions about Dr. Mann’s methods.

The point in this appeal is that courts should not be coming up with new terms like “scientific fraud” to squeeze debate over scientific issues impacting government policy into ordinary libel law. Dr. Mann is not like a corner butcher falsely accused of putting his thumb on the scale or mixing horsemeat into the ground beef. He is a vocal leader in a school of scientific thought that has had major impact on government policies. Public figures like Dr. Mann must not be allowed use the courts to muzzle their critics when they face sharp criticism. Instead, as the U.S. Supreme Court has repeatedly taught, the marketplace of ideas resolves the dispute. Courts have a checkered history when they have waded into scientific disputes. This Court should let the debate continue, outside the judicial system.

The post Competitive Enterprise Institute/National Review, Inc. v. Michael E. Mann appeared first on Reason Foundation.

Minority Television, Inc. v. Federal Communications Commission and United States of America

A law prohibiting a newspaper from printing an advertisement regarding local government candidates, a cable television operator from airing an advertisement regarding presidential candidates, or a website from displaying an advertisement regarding ballot initiatives can only stand if it is narrowly tailored to further a compelling government interest. This Court applies strict scrutiny review to laws that suppress, disadvantage, or impose differential burdens upon speech because of its content.”

Recognizing the grave threats of censorship that content-based restrictions impose on the free trade of ideas, this Court requires that such restrictions pass the most exacting scrutiny – that is, unless the law censors broadcasters. Forty-five years ago, in Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 (1969), reasons of technological scarcity led the Court to afford governmental restraints on broadcast a higher level of deference than restrictions on other mediums of expression. Thus, if the aforementioned examples prohibited broadcasters, rather than newspapers, cable television operators or website providers, from airing advertisements based on their content, such laws need only be narrowly tailored to further a substantial government interest to withstand constitutional challenge. Application of this lower level of scrutiny to laws that prohibit or limit expression in broadcast radio or television based on content forecloses an entire medium of expression, and in doing so, conflicts with this Court’s traditional First Amendment jurisprudence.

Nowhere is this conflict more dangerous than when the content-based restriction prohibits public discourse including, but not limited to, speech regarding political candidates and matters of public interest, because “public discussion is a political duty.” Despite Red Lion, under recent precedent, the greater deference afforded to broadcast content-based regulations does not apply when political or public issue speech is at issue.

These conflicting precedents leave lower courts and litigants struggling to ascertain the level of scrutiny applicable to content-based restrictions that prohibit or limit political or public issue speech on the broadcasting medium – strict scrutiny as required under a content-based or political speech approach, or intermediate scrutiny as applied under a medium of expression approach? By granting certiorari, this Court has an opportunity to reconsider Red Lion and its progeny and ensure that all mediums of expression are afforded the same level of First Amendment protection with respect to content-based restrictions, especially those that limit political or public issue speech. The nature of the speech at issue in this case – political and public issue speech – makes this Court’s review all the more urgent.

The post Minority Television Project, Inc. v. Federal Communication Commission and United States of America appeared first on Reason Foundation.

Steve Dingledine, a 43-year-old Washington resident, arrived at 5:45 a.m. to catch a glimpse of the faux-newsman. Colbert is a “court jester par excellence,” Dingledine declared, but he said he also hopes that the comedian’s shtick will shift public opinion. “The awareness is going to be raised to a point where the loophole cannot be exploited by media companies,” the Colbert groupie said.

What advocates of strict campaign finance regulation call a “loophole,” others call protected political speech under the First Amendment. In May, Colbert submitted an advisory opinion request through an attorney asking the FEC to sanction his political action committee.

The central question was whether Comedy Central’s corporate parent company, Viacom, had to report administrative assistance to the PAC and potential payments to air political ads on other television stations. FEC lawyers submitted three different drafts responding to Colbert, and the agency ultimately approved a compromise version allowing Colbert to claim the “press exemption” to campaign finance law. Viacom must therefore report PAC involvement not relating to the late-night program, including logistical support for the PAC and advertising placement on other networks.

Inside the packed hearing room, Colbert’s request didn’t sound like an effort to open a loophole for laughs. A subdued Colbert was nearly mute as his lawyer, Trevor Potter, blandly answered commissioners’ questions with only brief interjections from his client. After all the hype, Colbert’s appearance seemed anti-climatic, in contrast to his cheering fans waiting outside.

By 9:30 a.m., more than 30 of those fans were standing in line, along with a few campaign finance lawyers and Capitol Hill staffers. Six “coordinators” clad in red t-shirts reading “COLBERT SUPER PAC” arrived with signs to energize the crowd. Four Department of Homeland Security officers, who were there to provide security, told the redshirts that no “signs or protests were allowed” in the FEC hearing room. The redshirts assured the police that they planned to remain on the sidewalk’s de facto free speech zone.

Back inside, only one of the six commissioners broke with his colleagues to question the wisdom of the two-tiered set of rules for media corporations and other companies. Don McGahn, an iconoclastic Republican, challenged the authority of the commission to decide who gets a government-approved press license in an age of creative destruction in the media industry.

The FEC has grappled with the definition of the press for decades. In 1980, the FEC investigated Reader’s Digest for making an “illegal corporate expenditure to negatively influence” the 1980 presidential election after the magazine distributed a video reenactment of the Chappaquiddick car wreck involving then-candidate Sen. Edward Kennedy (D-Mass.). After a long investigation, the case was dismissed in 1981.

Almost 20 years later, the FEC granted a media exemption to the conservative advocacy group Citizens United, which meant the Republican-leaning group no longer had to disclose its spending on certain production expenses. Citizens United was the plaintiff in the blockbuster 2010 Supreme Court case holding that the government may not restrict the independent speech of companies and advocacy groups. If Citizens United need not disclose its spending on documentaries and certain ads as a press entity, why should Viacom and Colbert have to?

“Commentary is a slippery concept, and I’m having trouble being the one who decides what is commentary and what is not commentary. We’re in an interesting era now, post-Citizens United,” McGahn said, citing bloggers and other non-traditional journalists. McGahn also rejected the notion that corporations gained First Amendment rights in Citizens United, arguing that media corporations have long enjoyed the unfettered ability to engage in political advocacy through editorial boards and TV talking heads.

Campaign finance lawyers have speculated that the FEC’s advisory opinion may spur FOX News or Current TV, an Al Gore-owned network featuring former MSNBC host Keith Olbermann, to engage in politics through the super PAC model. McGahn registered his objections by voting unanimously with his colleagues to approve one version of the advisory opinion but withholding his vote from the final version that the FEC officially approved.

Colbert mingled with FEC commissioners and staff in a conference room during a brief recess after the vote. An agency lawyer, who chatted with Colbert in the men’s restroom, asked the comedian about the mass of people waiting for him outside the building. “There are a lot of crazy people out there,” he replied. Colbert emerged from the building just before 11 a.m. to address a throng of 150 or so of those crazies, plus gawking journalists and “federal employees with extremely generous lunch break policies,” as he put it.

“Hello freedom lovers! I am here to represent your voice, so please quiet down so we can all hear what you have to say with my mouth,” he said during the three-minute press conference. “There will be [those] that say, ‘Stephen Colbert, what will you do with that unrestricted Super PAC money?’ To which I say, ‘I don’t know. Give it to me and let’s find out.'”

Colbert finished with a fundraising pitch to prime the pump of his super PAC.

“I don’t know about you, but I do not accept limits on my free speech!” said Colbert, who was chauffeured by an ethanol-guzzling Cadillac. “I do not accept the status quo! I do accept Visa, MasterCard, and American Express-$50 or less please, because then I don’t have to keep a record of who gave it to me.”

Jeff Patch is a writer and political consultant based in Alexandria, Virginia. This column first appeared at Reason.com.

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It has refused to classify Dutch director Tom Six’s gorefest The Human Centipede II, on the basis that it might “deprave” or “corrupt” those who see it-witlessly unaware of the fact that Six’s movie is a blood-spattered critique of the very idea that audiences are easily “depraved” or “corrupted.” So the BBFC has banned a film that explicitly mocks the notion that cinema audiences are like nodding dogs who are warped by what they see, in the name of defending from harm the nodding dogs of the British film-viewing public who might be warped by what they see.

The Human Centipede II certainly sounds nasty. It tells the story of a man who gets his kicks by creating a “human centipede.” He kidnaps people and stitches them together, mouth to anus, and then watches with glee as his hideous creation writhes around on the floor, its individual members forced to shit into each other’s mouths. Nice. At one point, he becomes so excited by the freak he has created that he masturbates himself with sandpaper. Bambi it ain’t.

The BBFC refused to classify the film on the basis that its characters are mere “objects to be brutalised, degraded and mutilated.” Apparently there’s a great risk that the movie could “deprave or corrupt a significant proportion of those likely to see [it]” and therefore it must be squished, chucked into the dustbin of history alongside the 27 other freaky films that the BBFC has refused to classify since the year 2000. After all, we wouldn’t want any cinema-going Brits to rush home and try to create their own human centipede, would we?

Yet The Human Centipede II actually sends up the notion that adult audiences are lethally impressionable. It flips the bird at “media effects” theory, the stubbornly un-proven idea that films can have a dangerous effect on the behavior of those who watch them. It parodies the life out of this elitist outlook by actually having its central character become obsessed with Six’s first Human Centipede movie, to the extent that he tries to recreate its hideous human monster for himself.

The first film, The Human Centipede, was released in 2009. It tells the story of a creepy German doctor who kidnaps three tourists, drugs them, and stitches them together. The BBFC passed it, even though-inappropriately venturing into movie-criticism territory-it said it found the film “tasteless and disgusting.” When Six took that first film around various festivals, he says he was repeatedly asked by brow-furrowing journalists about the danger of “copycatting,” where viewers might become so enamoured by his wacky centipede that they would try to make their own. Six says he thought that idea was so demented, so patently a product of fearful journalists’ salacious imaginations rather than of any hard evidence that films actually warp people’s minds, that he decided to put it in the sequel.

So in the second film, in an ironic, post-Scream mashing together of fiction and reality, the lead character becomes crazily obsessed with The Human Centipede. He decides to go further than the film’s German doctor by stitching together 12 people rather than a measly three. He’s so brainwashed that he constantly pleasures himself over his bigger, more hellish centipede. Six has denied that there is any message to his movie, but somewhere in all of that, amidst the blood and poo and insanity, there’s a devilishly clever assault on the idea that people watch movies and copy them, that our minds are so malleable, like putty, that we can be turned into psychos by psychotic films.

By making “media effects” theory the underlying, unspoken theme of his gory sequel, Six shows just how mad the theory is. If it is ridiculous to claim that Taxi Driver is responsible for attempted political assassinations and that Natural Born Killers unleashed rampant violence, it’s even more ridiculous to fret that a film about a German bloke who makes a human centipede might lead to copycat behavior. Yet that concern was raised by straight-faced journalists when the first Human Centipede movie was released. By depicting it, Six demolishes it.

And what does the BBFC do? It bans The Human Centipede II, just in case the movie might tempt audiences towards centipede-obsessed depravity. The BBFC, which was founded in 1912 and was more appropriately known as the British Board of Film Censors until it changed its name in 1984, makes great play of the fact that it doesn’t actually have the legal authority to ban films. And it is true that, like the Motion Picture Association of America, age classification is the main role of the BBFC. It decides whether a movie should be classified U (Universal), PG (Parental Guidance), 12A (where those under 12 must be accompanied by an adult), 15 (for 15-year-olds and over), 18 (for 18-year-olds and over), or R18 (for movies that cannot be shown in cinemas but may be sold in one of Britain’s 250 licensed sex shops).

Yet it is highly disingenuous for the BBFC to say it doesn’t ban. Its refusal to classify a film, to deny it even an R18 rating, effectively means a film is blacklisted in Britain. It makes it extremely unlikely that the film will be shown in any cinema and makes it a criminal offence for anyone to supply it on DVD or video. So if I get hold of a copy of The Human Centipede II and distribute it in Britain, I could be imprisoned. If that isn’t censorship, I don’t know what is.

The key problem with “media effects” theory is its patronizing view of the public as automatons and attack dogs, who see something and act on it. In arguing that films can invade and mess with our heads, “media effects” theorists call into question the very existence of free will and free choice, depicting our minds as empty vessels waiting to be filled. They overlook the fact that there is something standing in the way of horror films leading to horrific societies-and that is us, reasoned viewers, who know very well the difference between fiction and reality and that kidnapping 12 people and turning them into a human centipede is a pretty rotten thing to do.

Six says he is working on a third Human Centipede film. He hasn’t revealed any details yet, but I hope he sticks with the po-mo, meta approach, perhaps by having members of the BBFC become so warped by a film that they jealously keep to themselves that they turn into centipede-creating lunatics. After all, if, as they believe, movies can make ordinary people go crazy, why can’t movies have the same effect on the authoritarian suits who preview and classify them on our behalf?

Brendan O’Neill is editor of spiked in London. This column first appeared at Reason.com.

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In late February, a dance troupe from Robert Morris University (RMU) took part in a national competition in Minnesota organized by the United Performing Association. The student dancers frizzed their hair, smeared black make-up around their eyes, donned straitjackets, and executed a dance routine inspired, in a nutshell, by life in a lunatic asylum. To the strains of “Fast As You Can” by Fiona Apple, they wriggled, writhed, shook their thang, and finally ripped off their straitjackets to reveal the word “HELP” scrawled on their t-shirts.

They placed eighth. So it can’t have been the most memorable routine in the world. They packed away their mental-patient gear, de-frizzed their hair, and returned to normal university life. End of story.

Well, not quite. A few weeks later, Chrisa Hickey, a blogger who writes about mental-health issues, saw a photograph of the dancers on an Internet site and she didn’t like it. Not one bit. As the mother of a teen with a schizoaffective disorder she felt this image of young women pretending to be mad was offensive. So she complained to RMU. And this single complaint-from a woman who had not witnessed the dance or even known that it had taken place prior to stumbling across a photograph of it online-set in motion a chain of events that would transform the Robert Morris students’ lives forever.

After everyone from the Chicago Tribune to the Daily Mail in Britain picked up this story, the dancers were made to apologize for “any offence we may have caused.” Then the university itself issued an apologetic statement in which it said the costumes were indeed “inappropriate” (even though no one seems to have thought so when the dance was being performed) and assured Hickey that “they would not be worn again.” The dance routine would effectively be erased from history.

As if that wasn’t apologetic enough, as if desperate to prove that it was truly, abjectly sorry for allowing some of its students to dance as they saw fit, RMU went so far as to rewrite some of its fundamental rules. From now on, the university declared, dance troupes will have far less leeway to choose their own costumes-instead all outfits will have to be approved by the school itself and submitted to the same committee that okays the uniforms of sports teams.

The frizzy-haired dancers explained that they were tired of routines that aimed only to “look pretty and act sunny” and had wanted to do something more challenging, in keeping with the fact that dance is “a form of art and a great outlet of expression.” Now, with an Orwellian-style costume committee that will no doubt be more interested in preserving RMU’s reputation in the eyes of super-sensitive bloggers than in guaranteeing students’ right to free expression, what student will ever aim to go beyond “sunny and pretty” and do something a little edgier?

Finally, promised RMU in the wake of Straitjacketgate, the school will do more awareness-raising amongst students in order to “increase sensitivity toward people with [mental] disorders.” So not only will the school police dancing students’ glitter, tassels, and leotards, it will also police the student body’s thinking about mental illness.

In short, in response to a single, isolated act of vicarious offence-taking, where a woman who had not witnessed the dance routine decided on behalf of mentally ill people everywhere that a photograph of the dance routine was offensive, a university has banned said routine, censored the dancers, apologized, changed its rules on dance costumes, and stepped up its efforts to cleanse its students’ minds of allegedly insensitive, inappropriate thoughts about mentally ill people. I told you that the only word that could accurately describe these bizarre events is “mad.”

Why did a university so quickly and willingly genuflect to the complaints of one blogger? And why have media outlets across Chicago and elsewhere treated this weird episode as if it were perfectly normal? Chrisa Hickey, the blogger in question, gets all defensive when I ask her what she thinks about the impact of her complaint. “I surmise that you intend to write an article about how I am a soul-crushing busy-body,” she says (well, if the hat fits). But, she continues, “I never requested that the school censor or in any other way stop the team from dancing in whatever costumes they see fit.”

This is somewhat disingenuous; Hickey has not complained about RMU’s overreaction, which suggests she’s quite happy with it. But nonetheless Hickey does have a point: she didn’t explicitly demand censorship of the dancers and possible censorship of future routines. Instead, those things were offered up to her as a kind of sacrifice by RMU, with school officials desperately hoping they might appease the gods of sensitivity and media fury.

What Straitjacketgate really shows is the power of sensitivity today, its extraordinary influence over public life and freedom of expression. But this is a two-way process. It is not enough simply for someone to feel offended; there also must be spineless institutions willing to bow and scrape and promise never to do it again.

Indeed, the true power of the politics of offense-taking today, as Stefan Collini discusses in his new book That’s Offensive! Criticism, Identity, Respect, is contained in the cowardice of public institutions, from universities that ban dance routines to galleries that hide away awkward art to political groups that self-censor their speech. It is modern-day institutional cowardice, the deeply-held elite conviction that words and images are potentially hurtful, the notion that causing offense is the worst thing any respectable institution could ever do. This is what empowers “soul-crushing busy-bodies” like Hickey, it’s what allows individuals or tiny groups of people to wield enormous influence over what the rest of us can see or read or tap our feet to.

The top-down sanctification of self-esteem effectively grants people a license to be offended. It tells them: You are sensitive, you are weak, so don’t hesitate to moan about and potentially crush any image or words you find hurtful.

In this sense, RMU has set a dangerous precedent. In caving in to one letter from one woman, it has waved a red rag to those sections of society whose offense-antennae are permanently switched on, effectively inciting them to try the same thing with other universities. You might just be one person, but you too can bring a university to its knees!

Does RMU have any regrets about what it has done? Is it worried that it has sacrificed students’ free expression at the altar of blogger intolerance? Is it really up to a school to tell its dancing students what they can and cannot wear or how they can and cannot dance? Suddenly, after making all those promises and statements in relation to Straitjacketgate, RMU seems inexplicably shy. “No comment,” it tells me.

Brendan O’Neill is editor of spiked in London. This column first appeared at Reason.com.

The post It’s a Mad, Mad World appeared first on Reason Foundation.

The —cartoon crisis— began in the fall of 2005 when the Danish newspaper Jyllands-Posten, following a number of incidents in which illustrators refused to draw the Muslim prophet for fear of violent response from fundamentalists, published 12 cartoons, some of which depicted the prophet Mohammed. Through an unforeseeable chain of events, including the provocative actions of a group of Danish imams, Jyllands-Posten—s publication sparked a global crisis that culminated in early 2006 with violent demonstrations and attacks on Danish embassies in Syria and Lebanon and riots from Nigeria to Indonesia. Death threats and terrorist plots were directed against Flemming Rose, the editor at Jyllands-Posten who conceived the cartoon publication, and the illustrator Kurt Westergaard, who drew the now-infamous bomb-in-the-turban cartoon. Earlier this year, Westergaard was attacked in his home by a would-be axe murderer but escaped by hiding in a panic room.

While the threats are still real and the —cartoon crisis— refuses to die, a solid majority of Danes support the right to publish the cartoons, as did the Danish chief prosecutor and the Danish courts, which have turned down requests from Muslim organizations to prosecute Jyllands-Posten for blasphemy, hate speech, and defamation.

But still, the cartoon crisis has not resulted in as much clarity about the value of freedom of expression and the inherent danger of criminalizing —offensive— expressions as one might have wished. In a recent survey, 69 percent of the Danish population supported keeping the country—s hate-speech laws on the books, despite the fact that they criminalize offensive stereotypes—the very complaint that many Muslims leveled against the cartoons.

Even more worryingly, freedom of expression has become a proxy debate for those on both the left and right, often becoming a debate about being either “for” or “against” Muslim immigration. On the multicultural left in Denmark, many leading figures still view the cartoons at best as an unnecessary and gratuitous offence against Muslims and, at worst, as a form of hate-speech comparable to the infamous anti-Semitic cartoons found in Der St—rmer. That numerous foiled terrorist attempts (both by Muslims in Denmark and abroad) and death threats against Kurt Westergaard and Flemming Rose have proven Jyllands-Posten—s point about self-censorship seems entirely lost on this segment of the Danish population.

Earlier this year the leading center-left newspaper Politiken—among the most critical of the cartoons—entered into a settlement agreement with a Saudi lawyer claiming to represent 95,000 descendants of the prophet Muhammad. In the agreement, struck immediately following the foiled terror plot against Westergaard, Politiken apologized for having offended Muslims by republishing the cartoons. Had the newspaper really just come to realize that it had offended Muslims and needed to make amends, as editor T—ger Seidenfaden purported, or was the newspaper mainly responding to a very real threat of violence and legal action? No matter their real motivation, all critics of the cartoons would be faced with this uncomfortable question: Are you acting out of respect or fear?

Leading Danish human rights organizations, such as the government-sponsored Danish Institute for Human Rights, have expressed their disappointment that Jyllands-Posten was not prosecuted under hate-speech laws. At the same time, Denmark is facing pressure from international organizations like the United Nations, where the Organization of the Islamic Conference and its acolytes push relentlessly for stricter limits on criticism of religion.

At a recent conference in Copenhagen, featuring Flemming Rose as well as Muslim bloggers, journalists, and human rights activists, a prominent Danish anti-racism lawyer accused Rose of having launched an attack on a vulnerable minority by commissioning the cartoons. U.S.-based Egyptian blogger Mona Eltahawy spoke of the need to defend the right to offend whether through cartoons or even burning the Quran and that Muslims should be treated as adults not —five year olds apt to throwing tantrums.— Asmaa Al-Ghoul, a Palestinian blogger from Gaza, lectured the bemused Danish lawyer that Hamas— religious fundamentalism in Gaza shows what happens when religion is put before freedom of expression. These replies reveal the suicidal course of Europe—s multicultural left who view people as primarily belonging to various inescapable religious or cultural groups, rather than as individual citizens with equal rights before the law.

Not only do the multiculturalists fail to protect freedom of expression against the increasing threat of violence from religious fundamentalists—which is most often directed at the dissident voices of Muslim gays, women, and apostates—but they infantilize Muslims by assuming that they require special protections from criticism and satire. This approach marginalizes the voice of liberal Muslims and legitimizes the voice of the fundamentalists already in ascendancy in many European countries. This problem is even more prevalent in neighboring Sweden, where the Danish debate on Islam and freedom of expression is widely regarded as a symptom of Danish racism and where the media colludes in keeping voices that are critical of multiculturalist immigration policies out of the public debate.

Unfortunately, the multiculturalist left is not the only problem. The conservative, nationalist right, which often adopted a libertarian defense of freedom of expression when defending the cartoons, has been less interested in upholding this right when it comes to issues that conflict with its own cherished values. In 2006, while the crisis was raging, the populist Danish People—s Party tabled a bill that would have criminalized the burning of Danish flags, since burning the flag would be offensive to Danes. In other words, almost exactly the same reason why Muslims in Denmark and abroad wanted to ban the cartoons.

In October, the leader of the Danish Peoples— Party, Pia Kj—rsgaard, proposed a ban on satellite dishes in order to block immigrants from viewing Al-Arabiya and Al-Jazeera which, she says, spread —hatred against the Western world.— When it became clear that the proposal would be impossible to implement, she suggested banning —only— the above-mentioned channels, including Internet access to them. Only a few months earlier, the Danish Peoples— Party tabled a (sensible) bill that would abolish Denmark—s hate-speech provision from the criminal code, arguing that only totalitarian states ban expression whereas democracies ban actions.

Very few Danes and Europeans—on either the right or left—seem to have realized that if freedom of expression does not include the right to reject, criticize, or ridicule the things and ideas we cherish the most, then freedom of expression will always be held ransom to the heckler—s veto. While most people feel that freedom of speech is great for themselves and those with whom they agree, the real point of freedom of speech is to protect even those kinds of speech we would rather not listen to—the views we find stupid, offensive, or reprehensible. Maybe the truth is that Danes see freedom of speech as such a self-evident value that they don—t see any reason to defend it. Who, after all, would want to take it away?

Jacob Mchangama is head of legal affairs for the Danish think tank CEPOS and spokesperson for Fri Debat, a Danish network committed to freedom of expression. Lars Hvidberg is a freelance journalist based in New York City and a member of Fri Debat. This column first appeared at Reason.com.

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The hysteria had Secretary of State Hillary Clinton-who would have thought she’s such a chatty Cathy after all these years of manufactured public appearances and staged press conferences?-saying that this leak endangers thousands. It doesn’t.

But the problem with this WikiLeaks dump-this latest one, that is, not with all of them, not with the ones about police killings in Kenya, Somalis trying to assassinate government officials, methods to rise to higher levels within the Church of Scientology, showing Iraqi civilians killed by U.S. forces, which may actually have put lives at risk, the hacked Climatic Research Unit emails revealing alarmist scientists-is that this particular airing shows a critical inability to distinguish between that which can be dumped and that which ought to be.

Observant Jews are familiar with the concept of lashon hara-“evil tongue” or gossip. For centuries rabbis have ruled that malicious gossip-even if it’s true-is a serious sin. Many consider it akin to murder, if not in seriousness at least in permanence. When you steal from someone you can be ordered to make your victim whole; but when you murder him or gossip about him you can never really repair the damage. That seems foolishly quaint in the TMZ-Gawker era, where every celebrity booger must be photographed, every perceived hypocrisy exposed on behalf of page views and the greater good.

But a strict observance of the prohibition against lashon hara would make it hard to practice journalism at all. As a journalist for 15 years (not to mention a maker of political ads), I crush up against the concept of lashon hara constantly. Information that serves the public good is often embarrassing to the subject. The test of fairness and print-worthiness should be whether the delicious little tidbit is more than just embarrassing. Revelations such as “American diplomats think Canadians ‘carry a chip on their shoulder'” don’t clear the bar. And august mainstream media sources like The Washington Post and New York Times, which have been running daily, breathless, above-the-fold stories on the leaks should admit that “Medvedev plays Robin to Putin’s Batman” is no different from the “no, she di’int” throwdowns their tabloid competitors love to gin up between celebrity rivals.

The existence of WikiLeaks is a good thing. You can’t be in favor of democracy-and you certainly can’t be a journalist-if you don’t believe that the potential for exposure of wrongdoings helps keep those in positions of power accountable. However, just because something can be published doesn’t mean it should be. Privacy is not the same as “secretive” or “clandestine” or “obfuscating.” As a society, we benefit from the Internet’s unrivaled ability to blast infinite information freely. But that ability does not mean everything ought to be shared. If we have a “right to know” the contents of Hillary Clinton’s private communications with her staff, do we have a right to see photos of her showering, to hear tapes of her snoring, to read stolen letters she wrote to her parents?

At the end of the day, the line between news and gossip has never been drawn more clearly than in the children’s book The Great Brain. Boy genius Tom Fitzgerald starts his own tabloid to compete with his father’s establishment newspaper. Tom sends out kid reporters to eavesdrop and spy. In so doing, he solves the robbery of the town’s bank and also publishes tidbits like “Mrs. Haggerty’s nagging drives her husband to drink.”

Tom’s father praises him for solving the robbery. Then he tells him that the rest of the paper “is an invasion of privacy” that “performs no useful service for the community.” Then he takes apart Tom’s printing press, withholds his allowance, and makes him apologize.

Ken Kurson is a partner at Jamestown Associates, a political consulting firm, and the co-author with Rudy Giuliani of Leadership. This column first appeared at Reason.com.

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Since 2001, the Federal Trade Commission (FTC) and the Department of Justice Antitrust Division have prosecuted 36 IPA groups, representing more than 18,000 physicians, for the crime of “price fixing”-that is, for jointly negotiating with insurance companies. By setting some of their prices on a group level, the theory goes, doctors are illegally colluding in a way that thwarts competition at the expense of insurance companies, other third-party payers, and ultimately patients.

This crackdown goes far beyond the level of business practice and into the realm of free speech. When the feds turned their attention in 2008 to the Boulder Valley Independent Practice Association, a 365-member organization in Colorado, its executive director, Mary Catherine Higgins, took the rare step of protesting in the press that the charges were “false” and “affirmatively disproved.” Higgins was promptly hit with a “consent order” that banned her from individually dealing with any insurance company for two years.

Even Federal Trade Commissioner J. Thomas Rosch, one of the agency’s staunchest advocates of antitrust intervention, found this order disturbing. “I am gravely concerned,” he wrote in February, “that the Commission’s abrupt decision…can be viewed as retaliation for Ms. Higgins’ decision to exercise her First Amendment rights.” This was, the commissioner said, “a sad conclusion to an unnecessarily sordid tale.”

Rosch’s concern for free speech is admirable. But the FTC is systematically depriving physicians of their First Amendment and other constitutional rights, producing “unnecessarily sordid” tales from coast to coast. When antitrust lawyers butt into the private health care industry, rights and common sense go out the window.

Speech Codes for Doctors

Beginning in the 1990s, under President George H.W. Bush and with bipartisan support thereafter, the FTC and DOJ issued a series of “statements” on how they planned to expand health-care industry enforcement of antitrust laws, which until then had been only sporadically applied.

These statements were never debated or adopted by Congress. They never even rose to the level of a “rulemaking,” the usual process of hearings and debate and public comment by which the FTC and other federal government agencies promulgate new regulations. Instead, the statements merely represented the prevailing views of the government’s antitrust lawyers, who decided that IPAs could not negotiate physician reimbursement rates with insurance companies unless the doctors in question were clinically and financially “integrated”-that is, if they coordinated actual patient care and assumed the majority of the financial risk of providing that care. The FTC and DOJ wanted to minimize-to subsidize-the financial risk to insurers. Absent “integration,” the associations were allowed to adopt a “messenger model,” in which they’d relay offers from the payers to the physicians, so long as that conversation only went one direction: Doctors were forbidden from using the IPA “messenger” to deliver a joint price negotiation to insurers.

You may wonder what the FTC was so exercised about. After all, labor unions collectively bargain on behalf of thousands of individuals, and federal law even mandates exclusive union bargaining if a simple majority of employees demands it. In contrast, IPAs are fully voluntary, nonexclusive entities. Physicians can and do belong to multiple IPAs and are free to negotiate with any payer without going through their associations.

Congress created this contradiction by exempting “the labor of a human being” from antitrust laws, thus permitting collective bargaining while excluding similar cooperation among self-employed professionals, such as physicians. The FTC therefore considers individual physicians “competitors,” legally required to act independently unless the commission permits otherwise. Obtaining these permissions is a tricky, unpredictable process.

The three dozen IPAs prosecuted to date have mostly fallen into the same trap: They tried to apply the messenger model, only to have the commission reply, “That’s not what we meant!” Many were acting upon the advice of well-paid attorneys, frequently former FTC and DOJ staffers, who were offering supposed insider expertise on what the 1990s statements did and did not allow. But the meaning of these regulations has depended on the whims of mid-level government lawyers, so conformance has not been easy.

In a February order, the commission complained that the members of another Colorado group, the Roaring Fork Valley IPA, “agreed to refuse and refused to enter into individual contracts with payers,” including major insurers such as Anthem and CIGNA. Specifically, the IPA refused to “messenger” proposed payer contracts offering the same rates of reimbursement as Medicare. Instead, Roaring Fork Valley established its own set of rates, at the behest of its members, and “messengered” those back to the payers. The IPA believed that it should not be forced to tie its private contracts to Medicare, which frequently cuts reimbursements to providers without accounting for their increased costs. The FTC said this “boycott” of Medicare-based pricing constituted price fixing.

Think about this for a moment. The FTC said antitrust law prohibiting price fixing required the association to messenger contracts based on the fee schedule of Medicare, which itself is an instrument of government price fixing. Physicians have ample reason to not want their private-payer reimbursements tied to Medicare rates, since those are set by congressional fiat instead of the market. But in all of its IPA cases, the commission has insisted that Medicare rates are a reliable indicator of “competitive” prices.

More generally-and alarmingly-the FTC is asserting itself as the best arbiter of what business models are appropriate for physicians. IPA prosecutions and settlements are thick with lengthy discussions of how physicians must negotiate their future contracts, and in many cases the chastened associations must pre-clear their subsequent pricing agreements with FTC staff. Although the agency claims to be promoting competition among independent physicians, this “competition” is only permitted through FTC-designed models.

In this heavily circumscribed universe, it doesn’t even matter what the payers want. In the Boulder Valley case, the IPA did engage in some joint contracting, but it did so at the request of the payer, which found that collective negotiations reduced contracting expenses. The FTC still condemned the arrangement as illegal.

FTC orders don’t merely restrict business models. They also ban speech deemed likely to improve physicians’ bargaining position. A standard clause bans the IPA, which is the freely chosen representative of the physicians, from “exchanging or facilitating in any manner the exchange or transfer of information among physicians concerning any physician’s willingness to deal with a payer, or the terms or conditions, including price terms, on which the physician is willing to deal with a payer.” Some orders are even more explicit, stating that the IPA cannot “suggest,” “encourage,” or “advise” a physician to take any action with regard to a proposed contract.

In other words, the FTC/DOJ statements and subsequent orders impose a speech code on doctors. Physicians are prohibited from seeking advice from their colleagues and outside consultants on the best way to deal with payers, because the unrestricted flow of information might improve the doctors’ bargaining position. In 2005 then-FTC Commissioner Thomas Leary complained that IPAs “have the cart before the horse. Their prime focus is on using negotiations and contracts for the purpose of enhancing their bargaining power.” Instead, Leary declared, they should focus on “clinical integration” along federally approved lines.

Government by Consent Order

Cathy Higgins got into trouble after she publicly criticized the FTC order against Boulder Valley Individual Practice Association (BVIPA). In December 2008, the FTC had said her group “actively discouraged” members from signing individual contracts with payers, thus “forcing” insurers to pay higher prices. Higgins and the BVIPA released a statement denying the FTC’s charges. They said payers were offered a number of contracting options, and that in any case, “It is difficult to see how a group of doctors in Boulder County could ‘force’ billion-dollar insurance companies to do anything.” The charges, Higgins concluded, were “not only false, they are affirmatively disproved by unmitigated facts.”

Still, BVIPA did not legally contest the FTC’s charges, signing a “consent order” restricting the speech and contracting rights of the IPA and its members. Higgins was then separately prosecuted and forced to sign an order containing terms under which she “cannot possibly do her job to the fullest extent,” according to Commissioner Rosch, since she could not represent any BVIPA member in negotiations with an insurer for two years.

So why did the association and its chief sign orders based on what they believed to be false charges? “Regrettably,” the group explained in a press release, “the cost of a fight with the FTC in this case is more than the IPA can afford.” That shouldn’t surprise anyone. The FTC is going after small groups with limited financial resources (one targeted IPA had just six members), and the entire process, from investigation through trial and appeal, is controlled by the commission. In theory, an IPA can appeal the regulators’ final decision in federal court, but it can take several years just to reach that stage, and federal law presumes that the FTC’s factual findings are correct. Of the three dozen IPAs prosecuted since 2001, only one has contested the charges.

That lone holdout was North Texas Specialty Physicians (NTSP), a Fort Worth association that spent more than five years fighting the feds. First there was an investigation conducted by FTC staff prosecutors, followed by a trial before an FTC administrative law judge and an appeal to the five FTC commissioners who initially approved the prosecutors, judge, and complaint. After navigating that minefield, NTSP finally was allowed to seek independent review before the U.S. Court of Appeals for the 5th Circuit, which announced in a 2008 decision that it was compelled by precedent to respect the FTC’s experience and judgment.

The association’s offense? It polled its members annually on the minimum rates each would accept for certain contracts. The group then used the poll results to decide which contracts its members were likely to approve and, thus, which it would “messenger.” The FTC deemed this arrangement “horizontal price fixing.”

The courts generally consider price fixing a per se antitrust violation, which means that once the act has been established the commission need not prove it actually harmed consumers or competition. The Texas group wanted to apply the more flexible “rule of reason” standard, under which the group could present evidence in its defense. The FTC and the 5th Circuit opted for an “abbreviated” rule of reason, which amounts to dressing up the per se rule with a flimsy negligee of due process.

The 5th Circuit acknowledged that the commission “did not rely on empirical evidence” in condemning NTSP. Instead it “relied on the theoretical basis for the anticompetitive and procompetitive effects of NTSP’s challenged practices.” The court said the FTC did not even have to show that insurers paid higher prices as a result of NTSP’s member survey; it only had to argue that NTSP gathered and disseminated information that improved its members’ “bargaining power.”

The net effect of the 5th Circuit’s decision was that no IPA is likely to challenge the FTC’s authority any time in the near future. But even signing pre-trial consent orders, as every other targeted IPA now does, carries a substantial cost.

Consider the FTC’s 2002 orders against two Colorado associations and their outside consultant, a woman named Marcia Brauchler. In June 2001 Brauchler, a self-employed sole proprietor working out of her home, was informed she was under investigation for price fixing. First came a demand for documents about her business relationship with the two IPAs: nearly 14,000 pages, reproduced with a rented copier she installed in her living room. (The FTC asked Brauchler to provide these documents “voluntarily,” but refusing would have invited a subpoena, which could only be challenged before the FTC itself.) Next the FTC demanded that Brauchler sign a consent order before she could even see a complaint specifying charges against her. While Brauchler could have suggested narrow, technical changes to the order, the “negotiations” would not allow any deviation from the boilerplate FTC language used against every other IPA. Refusal to sign could have resulted in penalties beyond mere restriction of her business practices: She and her clients could face “disgorgement” of unjust profits to provide “restitution” to their victims.

The “victims” in question were Colorado’s largest insurance companies. During roughly the same time period that Anthem reported a nearly $7 million profit in the state, Brauchler billed a bit more than $33,000 in fees to her two IPAs. (Anthem, incidentally, is the same payer that forcefully lobbied the FTC to crack down even harder on the Boulder Valley IPA.) Despite all the FTC’s hand wringing over physicians’ bargaining power, one of Brauchler’s IPAs noted that its provider contracts covered just 15 percent of the patients in Aurora, Colorado, and no more than 2 percent of the patients in metropolitan Denver. Hardly the stuff of Standard Oil or Microsoft.

Scapegoating and Scaremongering

Insurers realize that the FTC’s enforcement practices give them a huge advantage over physicians in contract negotiations. If the government deems an IPA’s practices anticompetitive, the resulting consent orders allow payers to terminate their existing contracts without penalty and negotiate new ones under more favorable terms. This means insurers can refuse to honor contracts by lobbying antitrust regulators, claiming evil doctors made them agree to unreasonably high rates.

That’s what happened to James Laurenza, a Kentucky-based health care consultant who was managing a New Mexico IPA when he ran headlong into the system in 2004. When Laurenza met with an executive from Cimarron to insist that the HMO honor its existing contract before entering into new agreements with the association’s members, “counsel and myself were shocked that the managed care executive threatened twice to bring the wrath of the FTC upon our small network management company,” he later wrote on his personal website. Cimarron followed through on its threat, and the FTC forced Laurenza and the IPA to repent for their “refusal to deal” with the HMO on its terms.

So far congressional efforts to stop FTC bullying have been unsuccessful. In June 2000 the House passed a bipartisan bill, introduced by then-Rep. Tom Campbell (R-Calif.), that would have afforded IPAs the same antitrust exemption as labor unions when they negotiate joint contracts with payers. The measure died in the Senate.

The bill has been reintroduced in the House in every succeeding Congress by Rep. Ron Paul (R-Texas), himself a physician. In a 2003 letter to then-FTC Chairman Timothy Muris, Paul criticized the agency’s prosecution of Southwest Physicians Associates, a Texas IPA, based on its refusal to continue following a commission-approved contracting model that resulted in substantial losses. “Am I to conclude the FTC expects doctors to adhere to money-losing business models rather than exercise their protected right to free association,” Paul wrote, “and that this is somehow in the public’s interest?”

As Paul noted, the problem isn’t price-fixing doctors but “government policies [that] have enforced over-reliance on third party payers.…To suggest that when groups of physicians combine to negotiate contracts with HMOs, they distort an otherwise free market, betrays a misunderstanding about the current health care industry.”

The FTC has opposed any congressional effort to end its physician prosecution racket. At a 1998 hearing on the exemption bill before the House Judiciary Committee, Campbell, himself a former FTC official, said it was ridiculous that “three eye doctors in Elgin, Illinois,” could have lunch together to discuss an HMO contract and get a letter from the FTC claiming they violated the Sherman Act, while every steelworker in Gary, Indiana, could go on strike without penalty. Then-FTC Chairman Robert Pitofsky responded with his own horror scenario: “All of the doctors in Elgin, Illinois, get together over lunch and say, ‘We are not making enough money, our kids are going to expensive colleges, and we are not driving the luxury car we prefer. Let’s go to this one HMO that is committed to cost containment, and we’ll say we are going on strike. Unless you pay us twice as much money, we are going on strike. We are not going to take care of people in your organization.’ ”

Such scaremongering is especially comic given that the FTC’s own intervention in health care markets raises costs-by forcing physicians to retain antitrust counsel-without any evidence of consumer benefits. The commission can’t point to any data or independent studies that show its IPA prosecutions reduce prices or improve the quality of patient care. Nor does the agency ever consider the costs of complying with its investigations and orders. Ultimately, there’s no demonstrable link between prosecuting IPAs and controlling health care costs. If anything, by making it more difficult for physicians to contract with insurers, the FTC may actually be driving physicians out of the marketplace altogether, which is certainly bad for consumers.

The Feds Reach Further

The FTC’s health care appetite isn’t restricted to a diet of IPAs. In 2008, after a two-year investigation, the agency challenged a proposed partnership between Prince William Hospital in Manassas, Virginia, and the larger Inova Health System. Although these were nonprofit hospital groups, the FTC had no qualms about subjecting them to one of the longest merger reviews in commission history, ultimately costing Prince William Hospital nearly $250 million in proposed capital investment from Inova, forcing both hospital groups to rack up legal bills of more than $15 million, and damaging Prince William Hospital’s credit rating.

In this case, Commissioner Rosch proved to be the villain, not the civil liberties champion he played in the Cathy Higgins case. Rosch personally oversaw the staff investigation of the hospital merger. The commission’s administrative law judges had recently exhibited a streak of independent thought in rejecting some key antitrust complaints, so he arranged to have himself appointed to sit as trial judge. Rosch insisted that he was the most qualified arbiter (in fact, he had never been a judge of any type) while laughably maintaining that he would be impartial. In fact, Rosch himself had personally supervised the staff’s investigation of the merger, which led to the decision to issue a complaint in the first place. The hospitals saw right through this, decided the process was rigged, and dropped their two-year-old merger plans. (Prince William Hospital later found another merger partner that met with the FTC’s approval.)

The worst is probably yet to come. While efforts to protect physicians have languished in Congress, the House recently passed legislation that would revoke the insurance industry’s limited antitrust exemption, in effect rewarding the FTC with expanded jurisdiction. This will add an additional layer of antitrust review-state antitrust laws already apply to insurers-that, according to the Congressional Budget Office, could lead to an increase in insurance premiums.

And the new Patient Protection and Affordable Care Act only puts more pressure on physicians to accept across-the-board price controls. If they refuse, they won’t just have to worry about the FTC. In May, the Justice Department’s Antitrust Division entered the physician-prosecution racket, joining the Idaho attorney general against a group of Boise orthopedists. The physicians were charged not just with illegally rejecting an insurance company’s contract offer but also refusing to accept patients under Idaho’s worker’s compensation system. That system, however, requires all participating doctors to accept a uniform fee schedule adopted by the state’s commissioners-in other words, government price controls. Still, the DOJ insists it was the physicians, not the state, who suppressed competition.

Although the Idaho case resulted in a civil settlement, physician groups must now be on alert for possible criminal liability. There’s no statutory distinction between civil and criminal price fixing, and the DOJ can easily convert a civil settlement into a criminal plea bargain-complete with multimillion-dollar fines and jail time for individual physicians and cartel “ringleaders” like Cathy Higgins and Marcia Brauchler.

Criminalizing physician-insurer contract negotiations would be unjust, ineffective, and disastrous for patient care. The Justice Department now also has the authority to seek wiretaps in antitrust cases, meaning the FBI could listen in even on privileged doctor-patient calls. Cracking down on the collective bargaining of self-employed doctors will do nothing to reduce rising health care prices, while serving to dampen the competition the government claims to defend. Such are the perils of letting routine contract negotiations become subject to the whims of federal lawyers.

S.M. Oliva (smoliva@inbox.com) is a writer and paralegal living in Charlottesville, Virginia. This column first appeared at Reason.com.

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Egged on by conservative Islamist politicians, who six months earlier had doubled their number of seats in parliament, prosecutors produced as evidence against Guennouni fake skeletons and skulls, plaster cobras, a latex brain, T-shirts depicting the devil, and “a collection of diabolical CDs,” which they described as “un-Islamic” and “objects that breach morality.” In cross-examination, the government attorneys asked the defendants such questions as, “Why do you cut the throats of cats and drink their blood?” Al Attajdid, a conservative daily, depicted the musicians as part of a movement that “encourages all forms of delinquency, alcohol and licentiousness which are ignored by the authorities.” One of the trial judges maintained that “normal people go to concerts wearing suits and ties” and that it was “suspicious” that some of the musicians’ lyrics had been penned in English.

During the trial, some of the defendants recited sections of the Koran to prove they were good Muslims. It didn’t work. In a verdict that divided the nation, Guennouni was sentenced to one month in jail; the others received sentences ranging from six months to a year. Outside the courthouse, protesters organized concerts, waged an Internet campaign, and criticized King Muhammad VI for presiding over a travesty of justice.

Yet as dark as that moment was for Casablancan rockers, the trial was a turning point that set Morocco on a path to becoming one of the Arab world’s more liberal societies when it comes to accepting alternative lifestyles. A month after the sentencing, prosecutors, unnerved by the degree of popular support the musicians had attracted, urged an appeals court to overturn the verdicts. The appeals court acquitted 11 of the defendants and reduced the sentences of three others. The decision constituted a rare example of successful civic protest in the Arab world.

Weeks after the appeals court decision, Casablanca was rocked by a series of Islamist suicide bombings that killed 45 people. Musicians responded with a Metal Against Terrorism concert that boosted what Moroccans call Al Nayda, the Awakening, a movement for greater cultural freedom that is topped every year by the L’Boulevard festival. “We needed to channel the aspirations and frustrations of young people in Morocco,’ ” Guennouni tells me. “Al Nayda is a community of spirit,” adds Mohammed “Momo” Merhar, co-founder of the festival. “Moroccan youth was holding its breath for 40 years. A wind of freedom is blowing now, and creativity is exploding.”

Today L’Boulevard attracts metal, rap, and jazz performers from around the globe. King Muhammad donated $250,000 to the event last year. Marie Korpe, executive director of Freemuse, a Copenhagen-based organization funded by the Swedish International Development Cooperation Agency that advocates freedom of expression for musicians and composers worldwide, notes that “as musicians push the boundaries of acceptable musical performance in their countries, it is clear that, wittingly or not, they are helping to open their cultures and potentially their political systems.”

With L’Boulevard, Morocco is doing something new in a part of the world where repression and censorship are the norm. The cultural awakening nonetheless operates within a narrow band in a country where human rights groups, independent media outlets, and critical artists continue to live a precarious existence. Moroccan radio stations, acting on government instructions, recently boycotted a collection of rap songs that was appropriately titled Forbidden on the Radio. Invincible Voice (I-Voice), a Beirut-based Palestinian duo that fuses hip-hop with classical Arab music, was forced to cancel an Arab world tour when Morocco and other Arab countries denied them visas. Yasin Qasem, a 21-year-old freelance sound engineer and half of I-Voice, was subsequently denied entry to lead a sound engineering workshop in Casablanca. Qasem and his partner, TNT, a.k.a. Mohammed Turk, a 20-year-old construction foreman whose songs lament the sorry state of political, cultural, and economic affairs in the Arab world, finally obtained visas for the United Arab Emirates to finish production of their upcoming album, only to be declined entry when they landed at the Dubai airport.

Across a swath of land stretching from Morocco’s Atlantic coast to the Persian Gulf, underground musicians are playing a continuous game of cat and mouse with authorities to evade harassment and arrest. Musicians in Iran endure forced haircuts, beatings in jail, and threats to their families. Egypt bans heavy metal from radio and television. Earlier this year, Islamist police stormed a crowded auditorium in the Hamas-controlled Gaza Strip, where the hip-hop musicians B Boy Gaza had just started performing. “The show is over,” the officers announced before confiscating equipment and arresting six musicians, who were eventually released after signing a pledge not to hold further performances without police permission. The rapping Emirati brothers Salem and Abdullah Dahman have had their music banned in Kuwait and Saudi Arabia because their lyrics contrast the Arab world’s multiple problems with the glorious Muslim past. Last summer, police in the Saudi capital Riyadh broke up a metal concert in a residential compound attended by 500 mostly Saudi fans.

Civilian and religious authorities across the Middle East and North Africa have accused heavy metal musicians of threatening public order, undermining Islam, and performing the devil’s music. Metalheads are also singled out because of their music’s highly charged and often politically, socially, and sexually suggestive lyrics. As a result, their music flourishes mostly in underground clubs, basements, and private homes, and only occasionally on stage when a regime decides that banning a public performance is not worth the political risk.

Underground musicians pose a challenge to Middle Eastern and North African regimes because they often reflect in their lyrics pent-up anger and frustration about unemployment, corruption, and police tyranny. “We play heavy metal ’cause our lives are heavy metal,” says Reda Zine, one of the founders of the Moroccan headbanger scene.

With the growing realization that the region’s authoritarian regimes and controlled economies are unable to offer opportunity to their predominantly young populations, metal and rap have been elevated as channels to express discontent. Their role is enhanced by the Internet and other technologies for mass distribution that make government control difficult and allow musicians and their fans to carve out autonomous spaces that shield them from intrusion by censors and other cultural scolds.

In a recent report for Freemuse, Mark LeVine argues that music plays a role in the Middle East and North Africa similar to the role rock played in the velvet revolutions that toppled regimes in Eastern Europe. LeVine has a good vantage point for studying the subject: He is both a professor of Middle Eastern history at the University of California at Irvine and a musician who has performed with the likes of Mick Jagger and Albert Collins. The struggle and success of underground music, he says, “reminds us of a past, and offers a model for the future, in which artists-if inadvertently at first-helped topple a seemingly impregnable system of rule.” LeVine describes underground musical communities as “avatars of change or struggles for greater social and political openness,” saying “they point out cracks in the facade of conformity that is crucial to keeping authoritarian or hierarchical and inegalitarian political systems in power.”

Nowhere is that more evident than in Iran, where all rock music is forced underground. Musicians risk harassment and imprisonment by a regime that frowns on all music and routinely tortures dissidents. In May 2009, a heavy metal concert in Shiraz was raided by an Islamist militia that arrested some 100 people on charges of consuming alcohol and worshiping the devil. Musicians are forced into exile or onto the Internet to carve out creative spaces of their own.

Coming under particular scrutiny are Iranian underground musicians who replicate American accents, indulge in obscene lyrics, and use female singers-all viewed as symbols of Western decadence by the authorities. Most CD shop owners refuse to sell underground music, fearing raids, imprisonment, and hefty fines. Concerts in private gatherings are often canceled because of threats from neighborhood vigilantes. Kalameh, an Iranian rapper, recently uploaded one of his latest songs to YouTube in response to the regime’s crackdown on the country’s reform movement: “This nation says No / Says NO to autocracy / Says NO to censorship / Says NO to sedition / Says NO to beating and killing / Says NO to injustice / Says NO to democracy / This constant pain of mine, emanates from being a human / Because one night, they stole my light of hope / If I stay silent, if I stay still / Who is gonna right? Who is gonna say? / If I leave it that way?”

Yet hip-hop’s lyrical style and heavy metal’s pounding beat may be natural fits in a world where poetry is a popular art form and praying often involves rhythm and bobbing. Some Muslim religious figures, particularly practitioners of more mystical forms of Islam, recognize an affinity with metal, even though some of the genre’s most popular forms in the region are its most extreme. “I don’t like heavy metal,” a Shiite cleric in Baghdad told LeVine. “Not because it’s irreligious or against Islam; but because I prefer other styles of music. But you know what? When we get together and pray loudly, with the drums beating fiercely, chanting and pumping our arms in the air, we’re doing heavy metal too.” Cyril Yarboudi of Lebanon’s Oath to Vanquish agrees. “You can practice your religion; you can go pray in a mosque and listen to metal,” he says. “What’s the problem?”

In a 1997 crackdown that put its stamp on much of the heavy metal scene in the Middle East and North Africa, police in Cairo arrested 100 heavy metal fans. The arrests followed publication of a photo from a metal concert allegedly showing someone carrying an upside-down cross. One newspaper reported that the house raided by the police was “filled with tattooed, devil-worshiping youths holding orgies, skinning cats, and writing their names in rats’ blood on the palace’s walls.”

Muslim and Christian clerics were up in arms. Cartoons in newspapers depicted scruffy, marijuana-smoking musicians with T-shirts emblazed with the Star of David who play guitar while being seduced by scantily dressed blond women. The musicians’ critics portrayed them as Zionist agents subverting Muslim society and blamed their emergence on a government that, in their view, was in cahoots with the Zionists in allowing Western culture to undermine Egypt’s social and religious values. Interestingly, this criticism was expressed by many in the underground music community as well. A broad segment of Egyptians, cutting across political, ideological, religious, and social fault lines, accuses the government of failing to effectively support the Palestinians, acquiescing in the Israeli control of Palestinian territories, and supporting unpopular U.S. policies in the region.

Emotions peaked when Sheikh Nasr Farid, Egypt’s mufti at the time, demanded that those arrested repent or face the death penalty for apostasy. In response, intimidated musicians and fans destroyed their guitars and shaved off their beards to avoid the worst. A decade later, many Egyptian musicians remain reluctant to publicly discuss their music or lyrics, even though government policy has become somewhat more relaxed. (The regime of President Hosni Mubarak is currently more concerned about the Muslim Brotherhood and dissident bloggers than it is about underground music.)

“You can’t get arrested for being a metalhead so easily now,” an Egyptian heavy metal fan tells me. “They can still stop you in the streets, or stop your car if you listen to very loud heavy music. But when it comes to arresting they can’t now unless you have some sort of drugs on you. It’s not that the law is more liberal now. Rather, it’s because the whole media is not so interested to know about us anymore.”

Morocco’s bow to popular pressure and Egypt’s recent shift of focus highlight a lesson most Arab regimes have yet to learn: The velvet glove is often more effective than the baton. The more mainstream underground music becomes and the less censorship it endures, the less socially and politically potent it may become.

But as long as there is discontent to be expressed, there will be musicians eager to channel it. Even if metal and hip-hop lose their bite, LeVine predicts, the “cultural avant-garde of youth culture will naturally search for other genres of music to express the anger, anxieties, and despair that originally made the music so powerful.”

James M. Dorsey (jmdorsey@questfze.com), a former Wall Street Journal foreign correspondent, writes about social trends in the Muslim world as well as ethnic and religious conflict. This column first appeared at Reason.com.

The post Rap and Metal on Planet Islam appeared first on Reason Foundation.

At the victory party Friday night after having had all charges against him dropped in federal court, pornographer John Stagliano, his lawyers, his family, and colleagues from the adult industry raised a toast to his freedom. But because his wife is pregnant and his daughter is underage, and because one of the films under indictment was called Milk Nymphos, the champagne flutes were filled with an unusual fluid: milk.

The atmosphere was electric a few hours earlier for what turned out to be the final day of trial. As I wrote Friday, the morning drama involved prosecutor Pamela Satterfield feuding with Judge Richard Leon over the discrepancy between her memory and the testimony of her star witness, FBI Special Agent Daniel Bradley, about who instructed him to re-view the allegedly obscene source material. When that was resolved, the prosecution rested, but then faced an even bigger surprise.

Drawing on all the problems and inconsistency with the evidence presented by the state, defense lawyers moved for all the charges that remained on the indictment to be thrown out. The defense argued that, incredibly, the prosecution failed even to link the movies to any of the defendants (John Stagliano, John Stagliano Inc., and Evil Angel Productions, Inc). The judge agreed, dismissing the case even before Stagliano’s lawyers mounted their defense.

Judge Leon rightly pointed out to prosecutors that given both the severity of the alleged crime and the constitutional implications of the trial, it was particularly incumbent that they know exactly who they were charging. Too bad the judge did not make that ruling two years ago, when it would have been just as valid. This case should never have been allowed, and was brought to court only by the kitchen-sink Grand Jury process.

Afterwards, government prosecutors Bonnie G. Hannan and Pamela Satterfield declined to grant an interview about their actions on behalf of the citizens of the United States. It took years of government resources and uncounted dollars to produce a prosecution that couldn’t even present evidence to a jury. You would think that the government would feel at least a twinge of obligation to explain this total waste of time and money.

Going forward, it is long past time for the Justice Department to disband the pointless Obscenity Prosecution Task Force, which goes around on the taxpayer dime searching through mountains of porn to invent victimless crimes. What a shameful, even obscene, waste of time, money, and lives.

This case is now over. But some of Judge Leon’s freedom-threatening rulings may well live on. He declared expert testimony in obscenity cases irrelevant, and he also attempted to weaken the Miller test, which had prevoiusly required disputed works to be shown in their entirety before conviction.

Those are no small matters, but they are battles for another day.

Richard Abowitz has chronicled the rise and continuing fall of Las Vegas for the Las Vegas Weekly, Vegas Seven, and the Los Angeles Times, most notably at the Movable Buffet blog. He now blogs chiefly at GoldPlatedDoor.com. He can be followed on Twitter at @RichardAbowitz. This column first appeared at Reason.com.

Disclosure: John Stagliano has been a donor to Reason Foundation, the nonprofit that publishes this website.

The post The Stagliano Victory Party appeared first on Reason Foundation.

From National Security to Porn Prosecution

The first day of testimony in the John Stagliano obscenity trial quickly made clear that the U.S. government intends to transform jurors into movie critics.

In her opening statement, prosecutor Bonnie Hannan declared that “This case is about crossing the line.” What’s an example of Hannan’s crossed line? “Frequent use of close-up shots of sex.” So, would a tracking shot be okay?

The riddle over how this case wound up in Judge Richard Leon’s Federal District courtroom in 2010 also became clearer with the testimony of the first witness, FBI Special Agent Daniel Bradley. After originally working on national security issues, Bradley testified, he was transferred to the obscenity desk and assigned to an already open investigation into Stagliano. How’s that for government priorities?

The prosecution revealed that the case began when the Los Angeles Police Department Vice Squad sent themselves to the porn industry’s biggest annual convention, Adult Entertainment Expo, in my home town of Las Vegas in 2007. Left unaddressed was why California law enforcement was working so far outside its jurisdiction, particularly given that Southern California is the production center of the porn industry. Similarly revealing was that after deciding to target Stagliano, whose residence and business do fall in L.A. County, Los Angeles police chose not to investigate him, and instead contacted the FBI’s obscenity crew to step in.

Defense attorney Paul Cambria in his opening statement suggested an explanation. The movies in question, he noted, “do not contain illegal sex acts.” There were no depictions of force or violence. Every participant was a consenting adult. In other words, since Stagliano was not violating any California laws, the local vice squad, rather than respect his right to keep working legally, chose to punish him by tipping off the feds.

That contact was the catalyst that ultimately lead Special Agent Bradley to go “undercover” to order Milk Nymphos and Storm Squirters 2 from Stagliano’s distribution company so that the DVDs would cross state lines (from Maryland to D.C.) and therefore enter the FBI’s jurisdiction. Now, three years later, the government is offering arguments about the director’s choice of close-up shots as evidence of a crime.

More Censorship in the Courtroom

Judge Leon’s restrictions on the public’s ability to know what is transpiring in his courtroom continues apace. Of course, it is not supposed to be his courtroom at all, only where he acts as a steward for democracy by assuring a fair and open trial. On both these counts, Judge Leon is an embarrassment to watch.

The crucial jury questionnaire, which would allow reporters to assess whether the pool has been skewed in any particular direction, remains hidden from the public.

And yesterday, Judge Leon issued a ruling that, according to longtime legal correspondent Mark Kernes of the respected adult industry trade magazine AVN, could “set First Amendment jurisprudence back at least a half-century.”

In the ruling, Judge Leon declared that the movies under dispute do not need to be shown in full at trial. This is a serious problem, because the three prongs of the Miller test, which is the backbone of jury instruction under current obscenity law, explicitly require that jurors evaluate and make decisions on a wide range of issues (including artistic intention and merit), which can only be determined by viewing films in their entirety.

The judge had previously indicated he was going to make this ruling, so there was no shock in the courtroom. But perhaps even worse than the precedent-shattering ruling was the way Judge Leon presented the decision. As Kernes writes: “Sadly, the judge recited his ruling quickly, and there is currently no written copy of it available to the press.” Once again, Judge Leon has deprived the media and public of crucial information for evaluating the fairness and openness of this trial.

There have already been plenty other examples. The video monitors are not arranged to allow for sightlines for observers. In fact, only one monitor can be seen at all, with some difficulty, from the public seating section, and it is the one placed farthest away from those seats.

On top of that, the judge ruled that the audio on the DVDs will not be played out loud in the courtroom. Instead the sound can only be heard through headsets supplied by the court. Those headsets are not available to the public viewing the trial. It is bizarre to look over at Karen Stagliano, the defendant’s pregnant wife, and notice that she can’t hear what the jury is listening to and reacting to, in a case that bears such a huge impact on her family.

For the press, Judge Leon offered only two sets of headphones, with the priority going to local media. He allowed that local media could share if they felt like it, but were not obliged to. As a result, on behalf of Reason, I wrote a note of protest that was given to the judge just before lunch break, after which the videos were to begin airing. Before the jury was brought back, the judge addressed my protest by declaring that two sets of headphones was a generous allotment. I have reached out to the Reporters Committee for Freedom of the Press for further assistance.

One thing I was not clear on, though, was why the audio was being played through headphones at all. But I learned that answer in the Washington Examiner‘s reporting on the trial. Seems the judge said that “the sound was turned off to preserve the dignity of the proceedings.”

But so far throughout this trial Judge Leon has been finding ways to compromise the dignity of the proceedings far more seriously than any moaning on a DVD ever could.

Richard Abowitz has chronicled the rise and continuing fall of Las Vegas for the Las Vegas Weekly, Vegas Seven, and the Los Angeles Times, most notably at the Movable Buffet blog. He now blogs chiefly at GoldPlatedDoor.com. He will be covering the Stagliano trial for Reason, and can be followed on Twitter at @RichardAbowitz. This column first appeared at Reason.com.

Full disclosure: John Stagliano has been a donor to Reason Foundation, the nonprofit that publishes this website.

The post Porn Over National Security, Vice Squad Overreach, and Censorship in the Courtroom appeared first on Reason Foundation.

Judge Leon’s Closed Court

The freedom and opportunity supported by an open government-from lawmakers to the courts-are a large part of what makes citizenship in United States the dream of oppressed people the world over. It is therefore a near perfect irony that opening statements in the John Stagliano obscenity trial will be delayed this morning so that presiding Judge Richard Leon can have the honor of overseeing a citizenship ceremony for immigrants who have achieved that dream.

The case against Stagliano concerns the selling of movies performed by consenting adults to entertain adult DVD viewers who have chosen to watch these films. In a free and open society this is exactly the kind of prosecution that should not happen. And this selling out of our national values has not come cheap-the case has already eaten up years of government resources, including everything from Justice Department attorneys down to the $60 or so of taxpayer money used by a special FBI agent to purchase the films from Stagliano’s company.

But other Judge Leon ironies abound. First, he is putting great effort into limiting public access to how justice is being administered in this case, starting with preventing the material under question from being viewed by the public and the press. If this had been a video of a privacy-violating crime such as a rape, an argument might be mounted that keeping the evidence off-limits was necessary to protect the victim.

But since no one is alleging that there are any victims on the DVDs (only professional performers), the strategic placement of monitors outside public sightlines reeks of the abandonment of the presumption of innocence. The implication the jury is almost certain to understand from this approach is that the public can’t see the evidence because it is obscene. Which, of course, is the very question jurors are being asked to decide.

This adds to Judge Leon’s earlier decision to keep secret from the press and the public even the questionnaire used for jury selection. We are reaching the point where these proceedings are only ostensibly open to the public. As Bob Dylan sang, “Makes you feel ashamed to live in a land where justice is a game.”

Miller Time

Judge Leon indicated in court yesterday that his jury instructions will include the Miller test. This was hardly a surprise. The result of a 1973 Supreme Court case, the Miller test famously offers three prongs on which to distinguish obscenity from protected First Amendment expression. In order for a work to be obscene all three Milller requirements must be met. But the judge has been directly preventing Stagliano’s ability to defend himself on two of those prongs.

According to Miller, for a work to be obscene, it must first and foremost violate community standards. But despite adult stores selling hardcore porn of all kinds all over Washington, D.C., there has not been an obscenity prosecution here in more than two decades. Washington is not a community that seems to be at all concerned that adult films are being watched by local adults.

Another way of looking at the community standard is one that Judge Leon has explicitly rejected. For example, a piece of evidence the prosecution apparently wants to share with jurors is a scene from the film Milk Nymphos which shows a milk enema being administered to an actor. Yet jurors will not be allowed to learn that you can find literally hundreds of similar enema scenes for sale at, for example, washingtonadultstore.com.

Another prong of the Miller test is whether “the work, taken as a whole, lacks serious literary, artistic, political or scientific value.” Here, too, the judge has helped the prosecution.

Last week, Judge Leon ruled that jurors could not hear from Stagliano’s two expert witnesses on the films’ merits, on the grounds that they wouldn’t have added much scientific value, and that the underlying material is the best evidence for whether a piece of work is obscene. One expert, Dr. Lawrence Sank, a respected clinical psychologist from Cognitive Therapy Center of Greater Washington, was expected to testify to the therapeutic and scientific value of the movies. The other denied expert, University of California Santa Barbara Film Studies Professor Constance Penley (see Reason.tv’s interview with Penley here), would have testified to the artistic value of the indicted films.

And then in a shocking development late yesterday afternoon, Judge Leon indicated that he intended to issue a long ruling in support of his decision that the movies not be played in their entirety for the jurors in the courtroom, in apparent contravention of what Miller has traditionally required. The opinion is a strong signal that the judge is hoping to make lasting case law in this trial.

Of course, though all of these decisions hurt Stagliano in the short run, they also offer him strong grounds for appeal, which would move the case closer to the Supreme Court. But to appeal, first there must be a conviction. And that means not only labeling Stagliano a felon for making and distributing movies, but also continuing to force him to pour his money into his legal defense (while wasting taxpayer dollars on the prosecution).

All of this effort, remember, is to protect the people of Washington, D.C. from movies this community appears to have a robust track record in consuming.

Joey Silvera’s Solidarity

In the courtroom yesterday to support Stagliano was Joey Silvera, who directed Storm Squirters 2, one of the films under indictment. Like many in the adult world, Silvera seemed shocked at the prosecution. “If they can do this to John Stagliano, they can pick anyone in the industry at any time,” he said.

Silvera pointed out that Stagliano has been one of the most politically outspoken figures in adult entertainment, and that he has garnered a reputation as an auteur in his own work. According to Silvera, Stagliano has always made aesthetic ambition a top priority.

As Silvera said after watching in court yesterday: “I think that most of the people in porn just thought it was so crazy that they indicted Stagliano. We all thought there is no way he could get convicted of a crime. John Stagliano makes and distributes some of the highest quality work in the industry. I see now the industry has not supported him enough. No one has taken this prosecution seriously, because it is so wrong. But being in court and watching what is going on in this court, I am scared for him. This is really serious. I hope the industry starts rallying to his defense more at once.”

Richard Abowitz has chronicled the rise and continuing fall of Las Vegas for the Las Vegas Weekly, Vegas Seven, and the Los Angeles Times, most notably at the Movable Buffet blog. He now blogs chiefly at GoldPlatedDoor.com. He will be covering the Stagliano trial for Reason, and can be followed on Twitter at @RichardAbowitz. This column first appeared at Reason.com.

The post Closed Court, Miller Time, and Joey Silvera’s Solidarity appeared first on Reason Foundation.

At a conference of the nation’s governors in Boston this past weekend, the main topic of conversation was the country’s ongoing economic woes. Above all, the governors say, their states need jobs. California may be the headline basket case, with an unemployment rate of 12.4 percent, but my home state of Nevada is even worse-a whopping 14 percent.

So you would think a small businessman like John Stagliano would be held up as a model of entrepreneurship in the United States of 2010. Stagliano built his Southern California company from scratch into a business now worth millions, creating dozens of full-time jobs with benefits (and providing well-compensated work to hundreds of others, too). Included among those jobs were hires necessary for the specific purpose of compiling the bureaucratic paperwork his industry is required to maintain by various levels of government.

Despite the red tape, Stagliano’s California business, Evil Angel, has thrived. Then in 2004, Stagliano invested millions into the Las Vegas economy with an original, dance-centered production show on the Strip. The Fashionistas ran for years, far outlasting better known competing Broadway-generated titles such as Avenue Q, Spamalot, and Hairspray. The show proved a surprise favorite with critics, myself included, who were awed by the artistically ambitious choreography, costuming, and tight storyline told through music and dance.

I became friends with Stagliano after he closed Fashionistas to concentrate on Evil Angel, and so it seemed unlikely I would ever be called upon to write about him again. But then in 2008 something shocking happened: Stagliano was charged by the United States government with enough crimes to potentially put him in prison for the remainder of his life. How could this happen?

Because outside Vegas, Stagliano’s day job is as a pornographer. Indeed, within the subculture of pornography, Stagliano is revered for being the originator of the “gonzo porn” genre, in which the viewer is brought more directly into the proceedings, often via performers themselves holding cameras. Stagliano has won numerous artistic awards from his indutry peers, almost too many to count. His movies are taught in graduate film programs, and psychiatrists have used them to treat patients with sexual issues.

Evil Angel not only distributes Stagliano’s films, but also the work of other directors he hand-picks. In this, Stagliano turned out to be as good a connoisseur as director. By 2008, the year he was charged with obscenity, Evil Angel was perhaps the most successful adult DVD distributor in the country.

Stagliano was an economics major in college, and with Evil Angel he transformed the business model of porn. Before Evil Angel, traditional adult companies gave directors a flat budget for making a movie, then pocketed the profits. What was not spent on the actors, set, and production became the director’s take-home pay. Once the director turned in the completed movie, he no longer held any financial stake in the project. The obvious economic incentive was to make the cheapest porn movies possible.

Stagliano instead entered into partnerships with his directors: They paid to make their own movies, Evil Angel paid for distribution and marketing, and the profits were split between the two. The result was that many of the best directors in the adult movie world immediately partnered with Evil Angel in order to maintain ownership of their work and have a unique chance at earning royalties from DVD sales. That a libertarian insight underlines Evil Angel’s business practice is no accident; Stagliano is a committed libertarian and a donor to the non-profit Reason Foundation, which publishes this website.

Stagliano has operated Evil Angel this way for decades, which means he must comply with complicated government regulations set out specifically for his work. (Even his current prosecutors make no claim to the contrary.) Though the Justice Department in this case is essentially arguing that pornography is just a synonym for obscenity, that would seem to conflict with government rules such as the 2257 rule, a 1980s-era regulation requiring companies like Evil Angel to maintain documents proving that all of their performers in sexual videos are adults. Doesn’t 2257 imply that pornography with adults, made for adults, is not a crime? Or is all pornography now obscenity?

The answer, and its history, are complicated. Obscenity law in the United States evolved piecemeal after the courts attempted to specifically define an obscenity exception to the First Amendment for the first time in 1957’s Roth v. United States. The Roth case, with a majority opinion written by Justice William Brennan, created the first standard for distinguishing obscenity from First Amendment-protected expression: Whether “to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to the prurient interest.” This definition did not work.

In the decades since Roth, judges have tried and failed to develop an objective test separating porn from obscenity. The problem is, quite simply, defining what obscenity means. Currently the courts use the Miller test, which dates back to 1973’s Miller v. California, again applying “community standards,” though carving out protection for works that have “serious literary, artistic, political, or scientific value.” Miller, like Roth, is more than a bit antiquated in our Internet age.

But doubts about the efficacy of obscenity tests long pre-date the Web. As the late Justice Brennan, who kicked things off with Roth, eventually came to conclude in a withering 1978 dissent:

I would place the responsibility and the right to weed worthless and offensive communications from the public airways where it belongs and where, until today, it resided: in a public free to choose those communications worthy of its attention from a marketplace unsullied by the censor’s hand.

In other words, let the consumers and not the courts decide what is too obscene for a community. That bit of judicial wisdom has yet to take legal root.

But none of this history explains the prosecution of John Stagliano in 2010 for making movies with consenting adults and selling them to other consenting adults. When did his business suddenly become criminal? Why has the power and majesty of the United States government, the financial and personnel resources of the FBI, all joined forces now to try and send Stagliano to prison?

Here is the final piece of the puzzle. In 2005, under then-President George W. Bush, the Department of Justice formed the Obscenity Prosecution Task Force (OPTF). The ideological slant of the task force’s “mission” is clear from its website: “Enforcement is necessary in order to protect citizens from unlawful exposure to obscene materials.” In Stagliano’s case, for example, an FBI special agent special-ordered movies that Evil Angel distributed. He then purchased the DVDs on the taxpayer’s dime. There was never a single complaint from any actual citizen.

Last week, after much delay, Stagliano’s trial finally began in Washington, D.C. So far little has happened in the courtroom, though the tiny events have been ominous. District Court Judge Richard Leon ruled that Stagliano cannot use expert witnesses, and shut the press out of the jury selection process (which, after a full week, has yet to finish). Things don’t bode well for a free and open trial: The courtroom monitors that will display the crucial evidence are all arranged to be out of the sightlines of press and interested citizens, viewable only by jurors and lawyers. If the press and the public cannot see the evidence, how will we know if the trial is fair?

More importantly, why is this ridiculous case still going on at all in 2010? Justice Department inertia and business as usual seem to be the general explanation. The current attorney general may or may not approve of what Bush’s Justice Department did, but he clearly lacks the desire to alter those choices. The result is that, because of Stagliano’s unique stature in the adult world, this is the most important obscenity case of the century.

Nor will it be the last clash between government and porn. The OPTF is still out there, playing at movie critic, deciding which porn is fine and which is obscene. Unlike previous prosecutions of more fringe figures in the adult world, Stagliano is at the center of the industry, and among the most auteur-oriented directors that porn has ever known. If he loses this case, almost any current adult content could be declared obscene.

Is this the job you want the government doing? Do you feel “protected,” as the OPTF site says, by the continuing work of buying porn with taxpayer money?

Well, forget hope and change. The Obama administration has opted for business as usual.

Richard Abowitz has chronicled the rise and continuing fall of Las Vegas for the Las Vegas Weekly, Vegas Seven, and the Los Angeles Times, most notably at the Movable Buffet blog. He now blogs chiefly at GoldPlatedDoor.com. He will be covering the Stagliano trial for Reason, and can be followed on Twitter at @RichardAbowitz. This column first appeared at Reason.com.

The post The Trial of John Stagliano appeared first on Reason Foundation.

Kagan’s extraordinary claims emerged during the second oral argument of Citizens United v. Federal Election Commission, the campaign finance case made famous by President Barack Obama when he publicly excoriated the justices for their ruling during his State of the Union address. The president alleged that Citizens United would allow corporations to subvert the political process with their economic power. In fact, the case concerns the fundamental political liberties of all citizens. The true stakes were dramatically revealed in the two rounds of oral argument heard by the Court.

In the first argument before the Court, on March 24, 2009, Kagan’s deputy, Malcolm L. Stewart, represented the government by arguing for the constitutionality of a statute prohibiting corporations and unions from spending funds from their general treasuries to advocate the election or defeat of political candidates. The justices subjected Stewart to a series of stark hypothetical situations testing the extent of the censorship power that the Obama Administration viewed as constitutionally permissible.

For example, Stewart was asked by Chief Justice John Roberts what would happen if a corporation were to publish a 500-page book discussing the American political system which concluded with a single sentence endorsing a particular candidate. Kagan’s deputy answered that such an endorsement would constitute “express advocacy” and therefore the corporation could only fund the publication of the book through a political action committee. “And if they didn’t, you could ban it?” asked the chief justice. “If they didn’t, we could prohibit publication of the book,” Stewart replied.

Even the most liberal justices, usually the most willing to curtail political free speech, seemed a little troubled. Justice David Souter asked what would happen if a labor union paid an author to write a book advocating the election of a particular candidate and then submitted the manuscript to Random House, which then agreed to publish it. The deputy solicitor general replied that he was unsure whether there would be a basis for suppressing such a book, but clearly stated that “the labor union’s conduct would be prohibited.”

Later, the argument turned to other forms of media that the government would have the right to censor. The implications of the administration’s position were so enormous that Justice Antonin Scalia seemed almost incredulous. He sarcastically interrupted to say “I’m a little disoriented here, Mr. Stewart. We are dealing with a constitutional provision, are we not; the one that I remember which says Congress shall make no law abridging the freedom of the press? That’s what we’re interpreting here?” With no apparent irony, Stewart replied, “That’s correct.”

The justices were apparently concerned by what they heard, requesting an unusual second oral argument in the case, on September 9, 2009. This time, Kagan went to the Supreme Court herself. Justice Ruth Bader Ginsburg got right to the point by asking Kagan whether it was still the government’s position that Congress could ban TV, radio, and newspaper ads, and even campaign biographies under the rubric of campaign finance reform. “The government’s answer has changed,” Kagan replied, which sparked laughter in the courtroom. Given the skeptical questioning at the prior hearing, Kagan seems to have made the tactical decision to back off from her office’s initial claims and opted to craft a less controversial way of getting the justices to accept significant restrictions on free speech. She assured the Court that she took their prior reactions and hypotheticals “very seriously” and that the Obama Administration reconsidered its position. Perhaps this is an example of her reputed pragmatism and interest in building coalitions. In any event, her attempted finesse did not stand up so well under cross-examination.

Kagan conceded that although the statute in question did cover “full length books” it would be subject to “quite good” challenges if it was ever so applied in practice. Moreover, she pointed out that the Federal Election Commission never enforced the law with respect to books, implying that citizens should not worry about being prosecuted. Chief Justice Roberts immediately seized on this, saying “We don’t put our First Amendment rights in the hands of FEC bureaucrats.” He then asked whether the statute could be used to ban a pamphlet. Such a publication, Kagan admitted, would be different; “a pamphlet is pretty classic electioneering” and could be constitutionally prohibited. She tried to reassure the justices that a book containing hundreds of pages could not be banned just because the last sentence endorsed a candidate, as her deputy had claimed a few months earlier. However, she strongly implied that if the book engaged in “express advocacy” as a whole, it could be banned. Her position would seem to require the FEC to define the differences between books and pamphlets and decide how many sentences in a book are necessary to qualify as “express advocacy.” Kagan never addressed whether it was desirable for FEC staffers to become either book reviewers or a de facto national censorship committee. Ultimately, the Court ruled against Kagan by a 5-4 margin.

Many questions remain unanswered about Kagan’s comfort with banning political publications and limiting free expression in other media. She might say that her own views on these issues are private and that she was merely advocating for her client in this case. However, it is interesting to note that in nominating Kagan, President Obama went out of his way to praise her defence of ordinary citizens against “unscrupulous corporations,” citing her work on Citizens United in particular. “Despite long odds of success, with most legal analysts believing the government was unlikely to prevail in this case, Elena still chose it as her very first case to argue before the Court,” Obama declared.

Yet Obama and Kagan both ignored the fact that not all corporations that advocate for candidates are big and “unscrupulous.” Most are sole proprietorships of small businesses, and many are non-profits, as was the plaintiff in Citizens United.

As the Senate considers her nomination this week, they ought to ask her the following:

• If a citizen who is the sole owner of a corporation that operates a bakery wants to use his business funds to put a candidate’s poster in his storefront window, can that be banned under the Constitution?

• If a group of like-minded citizens form a corporation for the purpose of advocating for candidates in whom they believe, can that corporation constitutionally be prevented from spending money?

• Is it constitutional for the FEC to review political books for content and ban them if they run afoul of a campaign finance law?

• Is it constitutional for media companies to publish content advocating for political candidates? If so, why should they be different from other companies under the Constitution?

• If a corporation or labor union produces a pamphlet with its own funds advocating the election of a candidate, can that document be banned under the Constitution?

The answers would reveal a lot about what kind of justice Kagan might be and how she reconciles her views with the First Amendment. Perhaps more importantly, it would be an opportunity for the public to see what is truly at stake when the government wants to restrict an individual or corporation’s ability to support the candidates of its choice.

Daniel Shuchman is a New York money manager and a member of the Board of Directors of the Foundation for Individual Rights in Education. He has written for The Wall Street Journal and The Harvard Journal of Law and Public Policy. This column first appeared at Reason.com.

The post Will Elena Kagan Allow Books to be Banned? appeared first on Reason Foundation.

In his 20s, interested in new challenges, Volokh went to law school, starting on a path that would eventually lead to clerkships with U.S. Supreme Court Justice Sandra Day O’Connor and the libertarian-leaning 9th Circuit Judge Alex Kozinski. Since 1994 he has taught law at UCLA. As a professor he has achieved not just a strong reputation among his peers, thanks to his scholarship on subjects ranging from cyberspace law to the Second Amendment, but a considerable following outside the legal profession as well, thanks to The Volokh Conspiracy, a consistently interesting website he launched in 2002.

(It was originally called The Volokh Brothers, adopting its present name after the roster of bloggers extended beyond Eugene and his sibling Sasha.) On their blog, Volokh and his collaborators, most of whom share his generally libertarian orientation, cover a wide range of legal and political issues, from the Supreme Court to the Middle East.

reason.tv producer Ted Balaker sat down with Volokh in December for a wide-ranging discussion about the state of civil liberties in the United States today. For a video version of the interview, go to reason.tv/video/show/eugene-volokh.

reason: Do threats to free speech these days come mostly from the left or from the right?

Eugene Volokh: There are some of each kind. There are also quite a few that come from no side at all. They come from government officials who are busy pursuing whatever goals they might have and just pay no attention to free speech. Even on issues where you’d think there might be mostly left-wing attempts to restrict speech, such as speech that’s allegedly racist or allegedly biased against particular religions, if you look at the polls, it turns out that liberals and conservatives, Democrats and Republicans, have pretty much the same percentages supporting speech and supporting restrictions.

Likewise, if you look at judges, especially Supreme Court justices, the ones who take a pretty broad view of free speech come from both the left and the right. The recently retired Justice Souter on the moderate left, and Justice Kennedy and Justice Thomas on the center-right and the right, all take a very broad view of free speech. On the other hand, justices who have a narrower view of free speech have also come from the left and the right. Chief Justice Rehnquist and Justice O’Connor took a relatively narrow view, still fairly broad but relatively narrow compared to the other justices. But so does Justice Breyer, who was a Clinton appointee and a moderate liberal.

It does turn out, though, that if you look not at the voters or the justices but at the backers-the intellectual, academic, and institutional backers of some restrictions-there is something of a liberal-conservative divide. For example, campus speech codes seem to be backed by a combination of mostly liberal university administrators and professors, based partly on a nonpolitical desire to suppress stuff that causes a mess and causes a fuss. This isn’t to say that most liberals support campus speech codes, but most supporters of campus speech codes are liberals.

There are also attempts to restrict speech from the right, including speech with sexual themes. Generally speaking, it’s more conservatives than liberals who favor giving government the broad right to fire government employees for their speech, including whistleblowing speech. So it depends on the particular controversy.

Let me give an example of something that people haven’t much noticed. In child custody cases, when courts decide which parent gets custody, the standard is the best interests of the child. And there are quite a few cases in which the judge says, more or less, “This parent is more religious than the other parent, and it’s in the best interests of the child to be raised in a more religious environment. Therefore we’re going to give custody to the more religious parent.” Or sometimes, “We’re going to bar this parent from saying something that we think is against the child’s best interest”-bar a parent from saying racist things, or bar a parent from saying pro-gay rights things, or bar a parent from saying anti-gay things, especially when the other parent turns out to be a lesbian.

You might say, “Well, it’s conservatives who are trying to suppress atheist speech, and it’s liberals who are trying to suppress, say, anti-gay speech.” But what really seems to be going on is that judges say: “All we care about is this legal standard, best interests of the child. Free speech, religious freedom, separation of church and state-we’re not going to pay any attention to any of that. We’re just fixated on our daily job, which is to apply this standard.” And I think that’s true with regard to a lot of speech restrictions. It’s often government officials, whether judges or prosecutors or administrative officials, who just don’t pay any attention to free speech. It’s not about politics to them. It’s about getting the things they want done notwithstanding any constitutional constraints.

reason: As Americans, we fancy ourselves defenders of free speech, regardless of whether we personally find it offensive. It sounds like we’re not quite living up to that standard. How well are we doing?

Volokh: I think most Americans support free speech. They just have different visions of what speech should be free. I think even libertarians recognize certain kinds of speech ought to be restrictable-death threats, for example. And one can support free speech but take a narrower view or a broader view. If you look at the views of American citizens to the extent that they’re polled on these subjects, it turns out that there’s pretty broad support for protecting even speech that is seen as extremist, racist, or harshly anti-religious. There’s broad support for protecting it. There’s also broad support for restricting it.

reason: Would you say the First Amendment enjoys more popular support and more real-world protection than other amendments in the Bill of Rights?

Volokh: It’s very hard to compare the relative force of various constitutional amendments, in part because they’re written in different ways. Many people say, “The Fourth Amendment is not being enforced enough.” But the Fourth Amendment does not prohibit searches and seizures; it prohibits unreasonable searches and seizures. Built into the Fourth Amendment is the notion that some searches and seizures are permissible, and lines need to be drawn between what’s reasonable and what’s unreasonable. Many judges take a view that a wide range of searches and seizures are reasonable. So is the Fourth Amendment being enforced less strictly than the First Amendment? It’s hard to say. It may just be that it’s written less strictly, so it ends up authorizing a lot of government action.

The right to a jury trial is very strongly enforced. If you’re being prosecuted for a criminal offense, and the maximum sentence for that offense is more than six months, you are entitled to a trial by jury. There’s no balancing test; the government can’t say, “We’ve got a compelling interest in not giving you a trial by jury.” At the same time, the right has some built-in limitations. For petty offenses, you don’t get a right to a trial by jury. That’s not in the text of the Constitution, but it’s been understood as a historical exception.

Likewise, if you’re being detained as an enemy combatant, there has been debate about what kind of rights you have, but you clearly don’t have a constitutional right to a standard, civilian criminal jury trial, and you never have. With a lot of these rights, there is a core that is very well protected, but the core might be relatively small; there may be a lot of things that look on their face like they’d be covered by the text but aren’t. It’s very hard to do comparisons between rights that are very different, have very different histories, have very different texts, and have different social functions.

reason: If you had to choose one or two of the biggest threats to free speech these days, what would they be?

Volokh: One is the notion of hostile environment harassment: that people expressing their views, people making jokes, sometimes people posting sexually themed material, sometimes people making political statements or religious proselytizing, can become legally punishable discrimination simply because it is-and I’m quoting here the very vague language of the law-“severe or pervasive enough to create a hostile, abusive, or offensive environment” based on race, religion, sex, sexual orientation, and the like. This could be in employment, in education, in public accommodations. There is the limitation that it can support a lawsuit only if it creates a hostile environment for a reasonable person, but it’s obviously a very vague and very broad standard.

This rule has become essentially a nationwide speech code for America’s workplaces. The code is not just imposed by the private property owners who run the workplaces, who of course are entitled to restrict speech on their property and by their employees. Rather, it is imposed by the government; employers are being coerced into suppressing certain kinds of speech by fear of massive liability. And once that theory is recognized in the workplace, it becomes applicable in other places as well. The latest generation of campus speech codes is based on the theory that if students or professors say things that in the aggregate are offensive enough to people based on certain attributes that speech stops being constitutionally protected speech and magically becomes the conduct of discrimination, which is legally punishable.

You also see cases where the same logic is applied to public accommodations. So there was a case several years ago in Boston, where a bar was found liable for having an allegedly racist display as part of its decor and allowing allegedly racist political statements by the bartender. I think that’s a very dangerous thing, partly because it applies to a wide range of speech, including clearly political speech, speech that obviously should be constitutionally protected. The standards are so vague and potentially so broad that it can very easily lead to back-door suppression of speech that we’d always assumed was constitutionally protected.

There was a lawsuit-which fortunately was rejected, but it took a trip to the California Supreme Court to do it-against Warner Brothers for allowing sexually themed speech in the writers’ office for the television show Friends. A writer’s assistant found this created a sexually hostile environment for her because there were all these sexually themed and occasionally misogynistic comments being made. And one might say, well, of course it’s constitutionally protected, but it’s still a workplace. We say it’s constitutionally protected even though it’s in the workplace because speech should be protected from government suppression everywhere.

reason: That standard would shut down most Hollywood scriptwriting meetings.

Volokh: That’s right. But even if you get out of this zone of what some might call communicative workplaces -workplaces that are all about the creation of speech -still for most people, whether they work at a factory, at a coffee shop, or wherever else, that’s where they spend a third of their hours. That’s where they have conversations with their coworkers. For many people that’s the most they have by way of conversation outside of their family. And here the government is coming in and-indirectly but quite clearly, through the coercive force of the threat of massive liability-suppressing speech because it conveys allegedly offensive viewpoints.

reason: Before fingerprinting, cops took mug shots as a way of identifying us, and until recently they were pretty reluctant to release mug shots unless there was a Freedom of Information Act request. These days, cops are not only giving them out; they’re placing mug shots on their own websites as a way of shaming johns, prostitutes, shoplifters, and so on. There’s also this cottage industry that’s emerging of local tabloid newspapers that point out who the wrongdoers are in the local community. What do you make of this? Is there tension between free speech on the one hand and protection of due process on the other?

Volokh: The government has no legal obligation to release mug shots. If the government were to say, “We’re not going to release any more mug shots, except in unusual circumstances-say, when there’s a manhunt going on and we want people to help identify somebody,” that wouldn’t violate anyone’s free speech rights. The government can just say, “Hey, we took the photos, they’re our property, and we’re not going to hand them out to you.” At the same time, while people may have a privacy right to be free from unreasonable searches and seizures, they have no constitutional privacy right in their pictures. The government generally can put out pictures of people. So it’s hard to figure out from first principles what the right answer is in this kind of situation.

The government has legitimate reasons for releasing photographs. Often it does help people figure out, for example, if somebody was arrested for some robbery and maybe it was somebody who robbed them before. Sometimes if it’s announced that John Smith is arrested for such and such, seeing this picture may help you realize it’s not the John Smith you work with but a completely different John Smith.

At the same time, releasing the mug shot might inflict a kind of punishment before conviction. It might ruin people’s reputations and cause them undue embarrassment even before there’s any trial. Perhaps they’re vindicated at trial, but all that people remember is their mug shot on the evening news. That’s a danger that we have had with our open criminal justice system even before photographs, simply because names were always released. But it’s a danger that’s exacerbated now.

reason: A Chicago artist was protesting a local ordinance that banned selling art on the street. He knew he was going to be arrested for selling his art, so he recorded what happened. He was charged with felony eavesdropping. Under what circumstances can you record someone in a public space?

Volokh: This is what I call the dark side of privacy laws. Everyone likes the idea of privacy, and eavesdropping sounds bad. But legislatures often target it without sufficient attention to free speech rights. In some states, the law essentially bars anybody from recording conversations without the permission of all the parties.

Those laws apply even when the conversations are in a public place, even when they’re on a nonconfidential matter, even when one of the people in the conversation is doing the recording, and even when the conversation is with government officials, including police officers. The Massachusetts Supreme Judicial Court rejected a First Amendment challenge to a criminal prosecution in such a case several years ago. I think that’s very bad. I think it’s very important that we be able to gather information this way, especially concerning interactions with police officers but also in other situations, such as when we’re being blackmailed or something along those lines, where the recording could be our only way of clearing ourselves.

The law varies a lot from jurisdiction to jurisdiction. In many states, it’s OK to record a conversation so long as one party agrees. So if you’re talking to someone and you want it recorded, you can record it without getting the other person’s permission. In some states, you need the permission of all the parties when the conversation is confidential communication or private communication, and often the law is not clear about what that means. In a few states, you need the permission of all the parties without any such qualifier.

In those states, if you are recording a conversation with a police officer who is trying to arrest you because you want to prove that it’s a bad arrest, that itself is a crime. I think that’s going way too far. If you’re going to have laws that restrict recording even when one party agrees, and I’m not sure we should have such laws, you need to have some pretty clear exceptions for recording things in which nobody has any legitimate privacy interest. Police officers have no legitimate privacy interests in their conversations with citizens, and in those cases there is a very important interest in gathering information.

reason: We have a series at reason.tv called Nanny of the Month. One month we picked the Alabama Supreme Court for upholding a state ban on selling sex toys. You said we shouldn’t have done that. Why?

Volokh: As I understand it, when you say “nanny,” you mean somebody who is restricting people’s liberty, supposedly for their own good, but without any attention to what they themselves want. I think that it’s right to take to task government officials who act as nannies in this way. It’s the job of legislators to impose only those legal rules that are genuinely necessary to protect individual liberty or some very important social interest.

But that’s not the job of judges. The job of judges is to follow the law and to enforce the law. It’s far from clear to me that the Alabama Constitution and the U.S. Constitution protect the right to have sex toys. One could argue that they should, but it’s perfectly reasonable for a court to say: “Look, there’s nothing in our Constitution that interferes with legislative judgment here. This could be a silly law, it could be an illiberal law, it could be a nanny law, but it’s not our job to act as protectors against the nannies. The protectors against the nannies should be other legislators and the voters. If you don’t like the nannies in the legislature, vote them out. Our job is to strike down only those laws that violate the Constitution, not the laws that we simply think are unreasonable or excessive or too nannyish.”

reason: So by definition, judges can’t be nannies?

Volokh: Judges can be nannies when it comes to creating legal rules. Historically in the Anglo-American legal system, many basic legal rules of contract, of property law, of tort law, even of criminal law, have been created by judges. The earliest restrictions on private sexual contact were actually judge-made rules. Likewise, a lot of tort law rules are judge-made rules. So judges could be nannies if they set up tort law rules that are unduly paternalistic-for example, that protect people so much from ordinary hazards that they drive useful products off the market or interfere with private actions in an excessive way.

But there the judges are themselves making the rules. When somebody is making the rules, you can ask if they’re being a nanny or not. When somebody’s deciding whether somebody else is authorized to make the rules, the question is different. It becomes what the proper role is for the judiciary, as opposed to the legislature, in making these rules.

reason: What are the implications of the 2008 Supreme Court case District of Columbia v. Heller for gun control?

Volokh: The Supreme Court held in D.C. v. Heller that the Second Amendment secures, among other things, an individual right to keep and bear arms, including handguns, in self-defense. But 44 state constitutions have a specifically guaranteed right to keep and bear arms, and at least 40 of them have been interpreted as securing an individual right to keep and bear arms in self-defense. The state courts in those states have applied those provisions, so we have a pretty good idea of what happens in court when there’s no dispute about whether there’s an individual right to keep and bear arms in self-defense.

The courts in those states strike down the most aggressive and restrictive gun control laws and uphold a great many other laws that are seen as mere regulations rather than prohibitions on keeping and bearing arms. That’s been true for almost 200 years, ever since state supreme courts in the early 1800s started upholding bans on concealed carry of guns. Those were the first in a major wave of gun control laws in America.

So what I think will happen, even if the Supreme Court holds in the coming Chicago case that the right to keep and bear arms applies to state and local governments, is that if there’s a total gun ban or total handgun ban, that will be struck down. Possibly some other laws will be overturned as well: maybe total bans on carrying guns, maybe bans on possessing guns in public housing complexes.

But bans on so-called assault weapons, various waiting period laws, licensing and registration laws-I think courts are going to say those are permissible regulations rather than total prohibitions. I think a lot of these laws are pretty foolish. The bans on so-called assault weapons are a classic example-even some of the pro-gun control forces have acknowledged that such laws have virtually no effect on crime because they ban guns based on aesthetic features rather than any practical difference between the banned guns and allowed guns. But generally speaking courts will leave legislatures with a great deal of discretion in enacting those laws so long as they don’t substantially burden the ability to own some useful guns for self-defense purposes.

reason: Does media coverage have a big impact on how people view guns?

Volokh: Media coverage of guns is skewed in various ways. At many media outlets, the people who write about the subject are somewhat anti-gun, and as a result the coverage ends up being anti-gun. Sometimes they are just ignorant of basic distinctions. You occasionally hear talk about assault weapons that implies they are fully automatic weapons, which they are not. So there are institutional biases. There is also a news bias: It’s not news if a gun is used the way most guns are used, which is somebody breaks into somebody else’s home, the homeowner takes out a shotgun and pumps it, and the burglar hears that familiar sound and runs away. That’s a very common and beneficial use of a gun, but it’s not going to make the news.

At the same time, entertainment is biased, whether intentionally or not, in favor of guns. Guns are glamorous things in television programs and in movies. My sense is also that people who use guns in movies use them much more successfully than guns are actually used in real life. The fact is that, especially under combat conditions, it is very hard to hit somebody the first time around. Even trained police officers, when they actually get into a shootout (which for most police officers is a very rare thing), end up missing most of the time. I don’t think that television and movies accurately capture that fact. As a result, they make guns seem more effective than they actually are. So it could be that these biases counteract each other to some extent.

Whether or not they do, it is quite clear that despite all the hopes of the gun control movement that coverage of mass shooting incidents would lead to a groundswell of support for gun control, it hasn’t happened. Despite these high-profile incidents, support for gun control has declined rather than increased.

reason: Do you agree with the “more guns, less crime” thesis?

Volokh: It’s very hard to tell what the precise effects are of allowing more law-abiding citizens to get concealed carry licenses. It is pretty clear that the overwhelming majority of people who get concealed carry licenses use their guns responsibly. It is quite clear that we have not seen any massive increase in crime, even though we have shifted from a situation where about 10 states allowed nearly every law-abiding adult to get a concealed carry license to a situation where 40 states do. So the fears of gun control proponents certainly have not materialized.

On the other hand, it’s very hard to tell whether nondiscretionary license policies lead to a small but measurable increase in crime, a small but measurable decrease in crime, or neither. There are competing arguments, competing data sets, competing models. I think that’s something there needs to be more research on. But it is pretty clear that the increase in legal concealed carry has not had massive effects one way or the other.

In that kind of situation, we should err on the side of liberty: People should be free to have the weapons that are necessary to effectively defend themselves.

Bonus Reason.tv Video: Watch Eugene Volokh discuss free speech and guns with Reason.tv’s Ted Balaker.

The post Free Speech and Guns appeared first on Reason Foundation.

Last week, a congressional hearing exposed an effort to give another agency-the Federal Election Commission-unprecedented power to regulate political speech online. At a House Administration Committee hearing last Tuesday, Patton Boggs attorney William McGinley explained that the sloppy statutory language in the “DISCLOSE Act” would extend the FEC’s control over broadcast communications to all “covered communications,” including the blogosphere.

The DISCLOSE Act’s purpose, according to Democratic Congressional Campaign Committee chair Chris Van Hollen and other “reformers,” is simply to require disclosure of corporate and union political speech after the Supreme Court’s January decision in Citizens United v. Federal Election Commission held that the government could not ban political expenditures by companies, nonprofit groups, and labor unions.

The bill, however, would radically redefine how the FEC regulates political commentary. A section of the DISCLOSE Act would exempt traditional media outlets from coordination regulations, but the exemption does not include bloggers, only “a communication appearing in a news story, commentary, or editorial distributed through the facilities of any broadcasting station, newspaper, magazine or other periodical publication…”

In Citizens United, the Supreme Court explicitly rejected disparate treatment of media corporations and other corporations (including nonprofit groups) in campaign finance law. “Differential treatment of media corporations and other corporations cannot be squared with the First Amendment,” Supreme Court Justice Anthony Kennedy wrote for the majority.

No legitimate justification exists for excluding media corporations from regulations on political speech applicable to other corporations, unless the goal is to gain the support of editorial boards funded by the New York Times Co.

The DISCLOSE Act would ban U.S. subsidiaries from speaking if foreign nationals own 20 percent of a company’s voting shares. Mexican billionaire Carlos Slim owns a 7 percent stake in The New York Times Co.-yet the New York Times would not be restricted if other non-citizens owned 13 percent of the company’s stock.

The Times editorial board expressly advocates the election or defeat of candidates, acts of political speech worth thousands of dollars, yet it is exempted from similar regulations imposed on other companies wishing to speak out about candidates. The Times also writes unsigned, anonymous attacks, yet the DISCLOSE Act would compel the political speech and identification of nonprofit groups: a bulky, filmed disclaimer estimated to be 2-3 times longer than candidates’ disclaimers.

All this hasn’t stopped the Times and other dead-tree media outlets from enthusiastically endorsing the DISCLOSE Act. Perhaps the Times scribes wouldn’t be so rah-rah about these regulations if they realized they would give government the power to regulate political speech on the Web and determine which companies are “media”-meaning exempt from regulation-and which are “political”-meaning heavily regulated.

The House version of the DISCLOSE Act, expected to be marked-up next week, includes the definitions “communication” and “covered communication,” which differs from the term “public communication” adopted by the FEC in a 2006 rule exempting online speech from government control.

When McGinley and the Center for Competitive Politics pointed this out amid the Democrats’ rush to pass this poorly-written bill, “reformers” attacked the messengers. In a post called “Who would’ve known that the DISCLOSE Act calls for burning books, regulating the Internet-and even creates death panels?” Public Citizen lobbyist Craig Holman compared pointing out a serious consequence of sloppy statutory language in this campaign finance bill to “invent[ing] the myth that the [health care bill] would create the infamous ‘death panels.'”

The Brennan Center for Justice’s Ciara Torres-Spelliscy accused us of “a blatant attempt to kick sand in the eyes of lawmakers,” and attempted to deny the plain meaning of the statutory language. Nonetheless, she admitted that “the FEC is most likely to stand by the 2006 Internet rules and only reach PAID political banner ads; not bloggers.” (Emphasis added.)

The response of “reformers” to serious questions about a bill imposing civil and criminal penalties for engaging in political speech would be shocking if it wasn’t so typical. Most likely isn’t good enough for people who want to speak out in politics without threat of jail time and hefty fines.

There’s little reason to trust the “good government” crowd on this. When the issue of internet regulation first came up after passage of the McCain-Feingold law in 2002, the goo-goos denounced a deregulated Internet as a “loophole” in campaign finance law, a “poison pill,” “anti-reform,” and a “step backwards.” In court filings, they called the Internet “a favored conduit for special interests to fund soft money and stealth issue ads into federal campaigns.” While most pro-regulation groups eventually endorsed the FEC regulations exempting the Internet amidst a public backlash, this was simply a tactical consideration to head off passage of the Online Freedom of Speech Act of 2006, which would have codified a broad exemption for political speech online (“reformers” unanimously opposed the bill).

Solicitor General Elena Kagan, who President Barack Obama nominated to the Supreme Court last week, argued at the rehearing of Citizens United that “the FEC has never applied this statute to a book,” referring to the now-abolished corporate source prohibition on independent speech. The FEC, though, launched an investigation into a book George Soros wrote in 2004 advocating the defeat of President George W. Bush.

Chief Justice John Roberts didn’t find Kagan’s argument convincing: “We don’t put our First Amendment rights in the hands of FEC bureaucrats; and if you say that you are not going to apply it to a book, what about a pamphlet?” Kagan responded that political pamphlets could be banned.

Last Thursday, after meeting with the newly-minted nominee, Sen. Arlen Specter (D-Penn.) told reporters that he felt more comfortable about Kagan’s views because “we talked about the Citizens United case and she said she thought the court was not sufficiently deferential to Congress.”

Now that Democrats in Congress seek to ram through an expansive regulatory regime for regulating political speech by Independence Day (no joke), it seems Kagan would defer to Congress’s wisdom on such restrictions rather than the plain text of the First Amendment: “Congress shall make no law… abridging the freedom of speech, or of the press.”

If Congress can ban political TV ads and pamphlets, why not blogs?

Bradley A. Smith, a former chairman of the Federal Election Commission, heads the Center for Competitive Politics. Jeff Patch is the Center’s communications director. This column first appeared at Reason.com.

The post From Banning Books to Banning Blogs appeared first on Reason Foundation.

Though I might be screwing up a few details, the gist of the story was as follows: Soon after news of the fatwa broke, Ginsberg and his assistant climbed into the back seat of a taxi in Manhattan. After a glance at the cab driver’s name, Ginsberg politely inquired if he was a Muslim. When the cabbie replied that he was, Ginsberg asked him what he thought about the death sentence on Rushdie. The cabbie answered that he thought that Rushdie’s book was disrespectful of Islam, and that the Ayatollah had every right to do what he had done. At this point, according to his assistant, Ginsberg, one of the gentlest men ever to walk the planet, flew into a rage, screaming at the cabbie as he continued to drive, “Then I shit on your religion! Do you hear me? I shit on Islam! I shit on Muhammad! Do you hear? I shit on Muhammad!” Ginsberg demanded that the cabbie pull over. The cabbie complied, and, without paying the fare, Ginsberg and his assistant climbed out. He was still screaming at the cabbie as the car drove off.

I’ve had a couple of weeks now to think about Ginsberg cursing out that cabbie, and cursing out Islam and Muhammad. You see, I live in Manhattan, three blocks from Times Square. As near as I can determine, I was walking with a friend about thirty feet from the car bomb on May 1st right around the time it was supposed to detonate. Except for the technical incompetence of a Muslim dirtbag named Faisal Shahzad, I and my friend would likely be dead now. Note the phrase: “Muslim dirtbag.” Neither term by itself accounts for the terrorist act he attempted to perpetrate; both terms, however, are equally complicit in it. It might have been a crapshoot of nature and nurture that wrought a specimen like Shahzad, but it was Islam that inspired him, that gave his fecal stain of a life its depth and its justification. Why is that so difficult to admit?

Let me ask the question another way: Where’s the rage? Why won’t anyone say in public what Ginsberg said in the back seat of that cab? If Islam justifies, or is understood by millions of Muslims to justify, setting off a bomb in Times Square, then I shit on Islam.

There are times for interfaith dialogue, for mutual respect and compassion. This isn’t one of them. Shahzad’s car bomb was parked in front of the offices of Viacom, the parent company of the Comedy Central, which airs the program South Park. Last month, the creators of South Park decided to poke fun at the Prophet Muhammad-just as they’d poked fun at Moses and Jesus many times in the past. Death threats followed. It’s too early to connect the Times Square bomb plot to the South Park blasphemy, but police have not ruled it out.

If Shahzad was offended by an animated cartoon and decided to defend the Prophet’s name by killing hundreds of civilians-mothers with their babies in strollers, wide-eyed teenagers in tour groups, husbands and wives out for a night on the town-then I’ll say, along with the poet, I shit on Muhammad.

Americans characterize our collective deference towards the feelings of Muslims as “political correctness.” The phrase may be apt with respect to certain ethnic and religious minorities, but our tip-toeing around Islamic sensibilities is nothing more than plain, old-fashioned cowardice. MSNBC stooge Lawrence O’Donnell, for example, repeatedly slandered Mormonism during the 2008 presidential campaign as a sidebar to his creepily obsessive verbal jihad against then-candidate Mitt Romney. But when asked by radio host Hugh Hewitt whether he would insult Muhammad the way he’d insulted Joseph Smith, O’Donnell replied with rare candor: “Oh, well, I’m afraid of what the… that’s where I’m really afraid. I would like to criticize Islam much more than I do publicly, but I’m afraid for my life if I do…. Mormons are the nicest people in the world. They’ll never take a shot at me. Those other people, I’m not going to say a word about them.”

That’s the problem in a nutshell. But it’s not just O’Donnell’s problem. It’s our problem. America’s problem. The West’s problem. We lack the moral courage to walk the walk, to put our individual lives on the line in order to defend the principles of free thought and free expression-the very principles that allowed the Judeo-Christian West to leave the Islamic East in the dust, literally and figuratively, three centuries ago.

When Dutch filmmaker Theo Van Gogh was murdered for producing a short movie critical of Islam’s treatment of women in 2004, where were the public screenings of the film? When Muslims in several countries rioted against pen and ink images of Muhammad printed in a Danish newspaper in 2005, where were the public billboards of those sketches? And when the creators of South Park trotted out the Prophet in a ridiculous bear costume, and received death threats in return, where were the mass-produced tee shirts of that image?

I’ll take a size-medium, cotton if possible, and I’ll wear it in Times Square.

Since 2001, many Americans have asked how they can contribute in a direct way to the war against totalitarian Islam. Now we have an answer. If it’s legal, and likely to offend the radicals, just do it. That seems straightforward enough. But how many of us will have the nerve to stand up to a million or so Muslim dirtbags, and to scores of millions, perhaps hundreds of millions, of their fellow travelers and psychic enablers, and say in unison, “You want to kill the Enlightenment, you’re going to have to come through me.”

Mark Goldblatt’s new novel, Sloth, has nothing to do with Islam, but he is pleased to announce that the cover image of a cockroach is in fact Muhammad. You can tell because his antennae form the letter “M.” This column first appeared at Reason.com.

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It’s true that the president’s speeches and some of his administration’s policy rollouts have emphasized a break from the Bush era. In the Quadrennial Defense Review, the guiding strategy for defense spending released every four years, the administration excised any reference to the “long war,” previously the go-to euphemism for the global war on terror. In a major speech last summer, the president’s top adviser on terrorism and homeland security, John Brennan, said explicitly that Obama rejected the phrase “global war” because “it plays into the misleading and dangerous notion that the U.S. is somehow in conflict with the rest of the world.” In a USA Today op-ed piece last February, Brennan argued that Republican critics were playing into Al Qaeda’s hands by suggesting U.S. courts could not handle terrorism prosecutions.

But these differences in style mask a sameness in substance that should worry civil libertarians. When it comes to the legal framework for confronting terrorism, President Obama is acting in no meaningful sense any different than President Bush after 2006, when the Supreme Court overturned the view that the president’s war time powers were effectively unlimited. As the Obama administration itself is quick to point out, the Bush administration also tried terrorists apprehended on U.S. soil in criminal courts, most notably “20th hijacker” Zacarias Moussaoui and shoe bomber Richard Reid. More important, President Obama has embraced and at times defended the same expansive view of a global war against Al Qaeda as President Bush.

The U.S. still reserves the right to hold suspected terrorists indefinitely without charge, try them via military tribunal, keep them imprisoned even if they are acquitted, and kill them in foreign countries with which America is not formally at war (including Yemen, Somalia, and Pakistan). When Obama closed the secret CIA prisons known as “black sites,” he specifically allowed for temporary detention facilities where a suspect could be taken before being sent to a foreign or domestic prison, a practice known as “rendition.” And even where the Obama White House has made a show of how it has broken with the Bush administration, such as outlawing enhanced interrogation techniques, it has done so through executive order, which can be reversed at any time by the sitting president.

The font of this extraordinary authority is a congressional resolution passed just three days after the 9/11 attacks. It says, “The president is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.”

Just as President Bush said the 9/14 resolution gave him the wartime powers to detain, interrogate, capture, and kill terrorists all over the world, so too does President Obama. On March 13, 2009 Justice Department lawyers said in a Habeas brief before the D.C. Federal Court that this resolution, known as the AUMF, or authorization of the use of military force, granted the administration detention authority.

It’s true that the Obama administration has rejected the early Bush administration’s assertion of an almost supreme wartime executive, or that the president’s wartime authorities can overrule laws passed by Congress. Also President Obama asserts that the powers granted by the 9/14 resolution must cohere to international laws of war. But these differences are less significant than one might imagine.

A speech last month from Harold Koh, the State Department’s legal adviser, acknowledged that the international laws of war have not properly contemplated a war against a global terror network. “Those laws of war were designed primarily for traditional armed conflicts among states,” Koh said. “Not conflicts against a diffuse, difficult-to-identify terrorist enemy, therefore construing what is ‘necessary and appropriate’ under the AUMF requires some ‘translation,’ or analogizing principles from the laws of war governing traditional international conflicts.”

As long as the AUMF remains the law of the land, any change in the legal conduct of our open-ended, undeclared war will be, at most, cosmetic. While it’s true that President Obama appears more reluctant to use these extraordinary powers than his predecessor, he is nonetheless asserting, enthusiastically at times, that he has such powers. And because so much of the American war on terror is conducted in secret, it is difficult to know what Obama is and is not doing to wage it.

The Mirage of Accountability

Unlike other wars in American history, a global war on a terrorist network has no geographic boundaries and no clear endpoint. FDR interned Japanese Americans until the end of World War II, an extraordinary assault on civil liberties. But at least there was no doubt what the end of that war would look like.

“The danger of a war that takes place everywhere and lasts forever is that it gives the president almost limitless authority to detain or even kill U.S. citizens and civilians anywhere in the world,” says Ben Wizner, an attorney with the American Civil Liberties Union. On February 3, Dennis Blair, director of national intelligence, confirmed that power in congressional testimony, telling lawmakers that the administration had the right to kill American citizens who joined Al Qaeda without court involvement or consultation with Congress. The only legal authority required, Blair said, was “special permission,” which amounts to presidential approval on a case-by-case basis.

This position troubles Philip Alston, the United Nations special rapporteur for extrajudicial executions, whose requests for information on CIA drone strikes has been stonewalled by the Obama administration. “The U.S. under President Obama has apparently maintained the Bush administration’s view that, because it is involved in a global armed conflict against Al Qaeda, it is permitted to target and kill relevant individuals anywhere in the world,” Alston says.
The White House has repeatedly defended using the same powers that were frequent targets of Democratic criticism when Bush and Cheney were exercising them. In a December speech at West Point announcing a surge of 30,000 troops in Afghanistan, Obama underscored that the action was authorized by the September 14 resolution, which, he noted, passed by a vote of 98 to 0 in the Senate.

In the February 1 issue of The New Republic, Jack Goldsmith, a Justice Department lawyer during the Bush administration, argued that Obama has assumed his predecessor’s war powers in part because the early overreach of Bush prompted safeguards that make the executive branch more accountable. Goldsmith, who had been a sharp critic of Dick Cheney’s views on executive power, pointed to “armies of lawyers” in the current administration whose sole job is to make sure highly classified programs adhere to congressional restrictions. “The enhanced powers of the presidency after September 11 have become part of the national fabric, in short, because they have received the consent of our national institutions, and thus of the people themselves,” he concluded.

It’s true that elements of Bush policy have been reined in by other branches of government. The Supreme Court rejected the military commissions that were first developed for detainees sent to Guantanamo. Obama has remade the commissions, with help from Republicans in Congress, to comply with the high court’s ruling. Congress, which the Bush administration largely ignored when it developed its post-9/11 National Security Agency (NSA) surveillance program, has now reauthorized the Federal Intelligence Surveillance Act (FISA) to allow for much of what was decried as warrantless surveillance of Americans’ phone calls and email. And Congress has asserted at least limited oversight of the war: The top Republican and Democratic leaders of Congress, along with the chairmen and vice chairmen of the intelligence committees-the so-called Gang of Eight-are consulted on major intelligence programs and counterterrorism operations, as they were prior to 9/11.

But this kind of accountability is fundamentally handicapped by the fact that it has no public component. It is far too easy for the consulted members of Congress to conveniently forget their briefings when shadowy counterterrorism practices are disclosed in the media. Nancy Pelosi famously said she was never told about the CIA’s waterboarding and other “enhanced interrogations” after they came to light, even after the CIA produced an official record of a September 2002 briefing on interrogation techniques that said she attended.

These layers of accountability have not prevented abuses in the past. “The creation of the FISA Court in 1978 did not stop the Bush administration from circumventing it in 2001,” says Steven Aftergood, the head of the project on government secrecy for the Federation of American Scientists. “And neither Congress nor the courts have found a way to provide a remedy to people like Maher Arar, who was ‘rendered’ to Syria for abusive interrogation by the U.S. government though he was innocent of any role in terrorism. And the government has now normalized torture by redefining it in a convenient if unpersuasive way. The armies of lawyers that Goldsmith sees working on accountability are not going to hold anyone accountable for any of these developments. Nor will they compensate the victims.”

On the vital question of the public’s right to know what its government is doing, the Obama administration has a mixed record at best. On the transparency side, the Justice Department has disclosed the legal memos drafted in Bush’s second term that reined in some of the president’s extraordinary powers. Over objections from the CIA, the White House ordered the release of a Justice Department inspector general’s report on the enhanced interrogation program.

Yet while the Obama White House has not said so explicitly, its policy to date has been to protect any secret that could theoretically implicate allied intelligence services, thereby keeping dark one of the murkiest corners of counterterrorism. The Justice Department, for example, has urged the U.S. Court of Appeals for the 9th Circuit to throw out a civil suit brought on behalf of Binyam Mohammed, an Ethiopian national. Mohammed was first arrested in Pakistan, and likely tortured there, then sent to Morocco, Afghanistan, and finally the prison at Guantanamo Bay. Last February, he was released from Guantanamo with no charges filed against him. To keep details of the case from coming out, the Obama administration went so far as to threaten the British Foreign Office, saying the U.S. might withhold future intelligence cooperation if a British court released to the public a U.S. document confirming some of Mohammed’s poor treatment. In February the court ignored the pleadings of both Washington and London, releasing the seven-paragraph summary at the center of the controversy.

As for overseeing the intelligence community’s surveillance of Americans, the Obama administration has failed to appoint members to the Privacy and Civil Liberties Oversight Board, a panel formed in 2004 and modified in 2007 to prevent the government from spying on U.S. citizens. As former New Jersey Republican Gov. Thomas H. Kean, co-chairman of the 9/11 Commission, said in January, “We have now a massive capacity in this country to develop data on individuals, and the board should be the champion of seeing that collection capabilities do not intrude into privacy and civil liberties.”

The White House has also opposed a section of the 2011 intelligence authorization bill that would give the General Accounting Office greater authority to audit the intelligence community.

The Forever War

In an April 2009 speech at the National Archives announcing his policy on detainees and transparency, the president talked about the open-ended ambiguities of the current national security conflict. “Unlike the Civil War or World War II, we cannot count on a surrender ceremony to bring this journey to an end,” he said. “Right now, in distant training camps and in crowded cities, there are people plotting to take American lives. That will be the case a year from now, five years from now, and-in all probability-10 years from now.”

The man who wrote most of that speech, Deputy National Security Adviser for Strategic Communications Ben Rhodes, says Obama has deliberately narrowed the focus of the war on terror to Al Qaeda. He adds that the president is trying to leave a more sustainable legal framework for the war to his successor, pointing to the administration’s bipartisan work to make military commissions comply with the Supreme Court’s 2006 ruling rejecting Bush’s approach.

“We would never claim we are doing everything different,” Rhodes says. “There were good steps taken in the previous administration that we are building upon, but there are also other areas [where] we are providing a different focus.” He also says, however, there are no current plans for revising or supplementing the open-ended September 14 authorization of force.

Changing terminology and acknowledging the problems with open-ended powers are not the same as resolving the ambiguities and hard questions inherent in fighting against disparate groups intent on waging asymmetric warfare against civilians all over the globe. Doug Feith, undersecretary of defense for policy in the first Bush term, argues that both the “war” and “law enforcement” approaches to fighting terrorist organizations were imperfect concepts. Law enforcement is inadequate, he says, because it focuses on building evidence to try people for crimes that have already been committed, as opposed to preventing a deadly attack in the first place. But the war concept is problematic too.

“The nature of the enemy is that it is spread out all over the world,” Feith says. “It is an ideological movement rooted in religion, and it is a network and decentralized. For all of those reasons the construct or concept of war did not fit perfectly either. The principle strategic challenge in this war is how do you fight an enemy located in numerous countries with whom you are not at war.”

It would be easy to embrace the idea that all of Obama’s and Bush’s extraordinary powers are premised on a wildly exaggerated threat. Many more Americans died on our highways in 2001 than from terrorism, but the threat of driving has not mobilized the federal government to create a massive secret bureaucracy to protect us from car accidents.

But small networks of non-uniformed terrorists are indeed actively plotting to inflict maximum civilian deaths in the U.S. and elsewhere, with weapons as potent as they can get their hands on. Only a day before reasserting the president’s power to kill American citizens, Dennis Blair had told the Senate Intelligence Committee he was certain Al Qaeda would attempt an attack on the continental United States by July. After Christmas bomber Abdulmutallab began cooperating with the FBI at the end of January, he told the bureau there were other English-speaking terrorists being trained at camps he had visited in Yemen. The Senate Foreign Relations Committee released a report in January detailing how American ex-felons who converted to Islam in prison had traveled to Yemen for possible terrorist training.

Even if there were no jihadist threat, the march of technology has reached a point where small networks of individuals can launch the same kind of mass-casualty attacks that a generation ago were the province only of nation-states. If one of those terrorists blows up a plane or poisons a reservoir, even if the operation isn’t as deadly as 9/11, there will almost certainly be a public demand for more draconian measures to keep us safe.

Before that happens, there are some steps that can be taken to make sure the extraordinary powers granted on September 14, 2001 do not become permanent. Some legal scholars have suggested that the extraordinary powers be sunsetted and re-debated by Congress every few years, as elements of the Patriot Act on occasion expire. The fundamental anti-terrorism powers granted British authorities for most of the 20th century known at first as the Prevention of Violence Act and then later as the Prevention of Terrorism Act, expired every few years requiring new authorizations-even as the U.K. fought a counter-insurgency campaign at home against the IRA.

This kind of approach is in keeping with recommendations of Yale law professor Bruce Ackerman. Soon after 9/11 he argued that there is an important distinction between war powers, which he says are inappropriate in the context of counterterrorism, and a state of emergency, which would require limited abridgements of civil liberties that are time limited. The British laws first developed to combat the IRA and today used against radical Muslim groups are still described in the law as “temporary powers.”

Second, Republicans and Democrats have pressed the administration to strengthen the oversight of the intelligence community by appointing the Privacy and Civil Liberties Oversight Board, an idea that has been championed by both chairmen of the bipartisan 9/11 commission. Such independent watchdogs are an important part of curbing abuses and provide a place, besides Congress, where whistleblowers can register concerns.

Finally, lawmakers in Congress have at times demanded more public accountability. News stories about the NSA surveillance program, extraordinary rendition, and secret prisons have produced a fair amount of congressional outrage. But Congress has not asked for a regular public accounting from the intelligence community. Indeed, the budget for all current intelligence operations remains a state secret, the details of which only a handful of congressional committees are permitted to know. There are some cases in which secrecy is necessary for successful statecraft, but Congress can enforce a strict sunset on these secrets as well. If the details of U.S.-Pakistan cooperation must be kept in the dark for now, they should not remain that way indefinitely. A model for declassification can be found in the Clinton Administration, which in 2000 released much of the secret U.S. history of aiding Augusto Pinochet in Chile due to an executive order to release most secret documents more than 25 years old.

Above all, we must be honest with ourselves. Obama, like Bush, is committed to a long war against an amorphous network of terrorists. In at least the constitutional sense, he is no harder or softer than his predecessor. And like his predecessor, he has not come up with a plan for relinquishing these extraordinary powers once the long war ends, if it ever does. If change is going to come to U.S. policy on terrorism, it will have to come from a bipartisan recognition that Americans cannot trust their government to tell them when they are safe again.

Eli Lake is national security correspondent for the Washington Times. This column first appeared at Reason.com.

Editor’s Note: This article originally misstated Philip Alston’s title at the U.N.

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