Is bullying the same as lynching? I suppose so, if you think hurt feelings are the same as death by asphyxiation.
But if you can’t distinguish verbal criticism, which is constitutionally protected, from homicide, then perhaps you should find a job other than law school professor. Instapundit links to this abstract of an article by Michael J. Higdon of the University of Tennessee College of Law:
[M]y article argues that bullying on the basis of gender non-conformity is, in essence, a form of lynching. First, both are driven by unwritten social codes—in one instance, white supremacy; in the other, gender stereotypes. Second, both are carried out by perpetrators who do not act in isolation but with the support and sometimes involvement of the larger community. As I explain, one of the reasons gender-based bullying is so frequent is the degree to which peers and school administrators ignore such behavior and, in some instances, even become active participants. Third, both result in extreme harm—lynching, in its most basic form, resulted in dead bodies; however, a lynching need not be defined so narrowly. In the case of segregation, for example, we had living children with “lynched” spirits.
Is gender-based taunting acceptable? No. Is it tantamount to lynching? Not by a long shot.
The author’s zealotry in promoting this false analogy does nothing to solve the problem, and I think in fact it tends to exacerbate it.
It is difficult enough to grow up male, but boys these days have to grow up without any clear model of what it means to be a man. Sure, when I was 11 years old, there were some boys who were not quite on track. I have no idea in most cases whether they turned out to be homosexual or if they were simply on a different developmental path. Luckily for them, they weren’t forced to decide at the ripe age of 11.
What cultural insanity has made it necessary for kids to grapple with their sexual orientation before puberty?
The answer seems rather obvious. There is an over-emphasis on sex and an irrational belief that people are largely defined by sexual orientation. This is not something that the heterosexual majority came up with, but rather part of the political agenda of homosexuals. It serves to promote the doubtful proposition that all people are either immutably heterosexual or homosexual from conception. There is no choice, only a realization. Sexual “preference” is a misnomer.
The tragedy of child suicide cannot be blamed so easily on taunts from peers and a failure to enforce more political correctness at school. In fact, gay seems to be the new cool at school. I have watched my own daughter’s classmates cheerfully declare themselves homosexual without fear of any backlash (and without sufficient evidence). It has become an easy alternative to the rough and competitive environment of young men, and the perfect excuse for shyness or rejection.
Perhaps we have become too accepting of homosexuality as the underlying reason behind any differences. Maybe the boys who wanted to take home economics instead of shop really just had different interests and skills rather than a gene that would determine their fate forever. Maybe labeling them early as having this immutable trait consigns them to a lifestyle that they don’t desire or understand. It is more than an 11-year-old should have to deal with.
We might avoid some suicides if we could give boys a chance to grow up without assuming that homosexuality is behind every bump on the road to manhood.
February 24th, 2010
Posted by
Fitzroy |
Education, Law |
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There are three things to say about Obama’s comments on the Citizens United case and Justice Alito’s apparent response:
First, Obama flunks Con Law. If you’ve read the decision (and my take on it is here), you know that Obama’s characterization of it is simply wrong. Either Obama didn’t read the opinion or didn’t understand it or was perfectly willing to mischaracterize it for political gain. The Court expressly left standing the prohibition of campaign contributions from foreign corporations.
Second, Justice Alito should have sat in stoic silence as Supreme Court justices typically do. His reaction was a small breach of decorum, preceded by the much larger breach of Obama’s comments. Obama was the instigator. He broke a basic rule: if you want respect, you show respect. He knowingly invited his cohorts to pile on by applauding his mischaracterization of the Court’s decision. Obama essentially tied his opponent up, and sucker-punched him with all his buddies backing him up. That, more than anything, made Obama look small and petty. Alito was not on stage. Obama was.
Third, there is a theme developing in the blogosphere that I find most interesting. Ann Althouse notes the contrast between the impact of Alito’s tiny statement with that of Obama:
Isn’t it fascinating that the lengthy, amplified, magnified speech of the most powerful man in the world with his big captive audience — in the magnificent room and in smaller rooms all over the country — are outweighed by one man’s headshake and silent mouthing of 2 or 3 words?
And isn’t it ironic that, right when we saw the judge’s minimalist expression that overwhelmed the President’s torrent of words, Obama was railing about the “powerful interests” that would use their great wealth to speak far too much during election campaigns?
In a similar vein, Paco observes that Alito’s voiceless comment, coming in the midst of Obama’s bluster, was akin to Elijah:
“Go out and stand before me on top of the mountain,” God said to Elijah. Then God passed by and sent a furious wind that split the hills and shattered the rocks – but God was not in the wind. The wind stopped blowing, and then there was an earthquake – but the Lord was not in the earthquake. After the earthquake there was a fire – but God was not in the fire. And after the fire there was the soft whisper of a voice. When Elijah heard it, he covered his face with his cloak and went out and stood at the entrance of the cave. (1Kings 19:11-13 GNT)
Truth has its own power: the small, still voice.
But I detected a reaction from Justice Kennedy as well, and it is one that should concern Obama more. Without moving his lips or stirring even slightly in his chair, Kennedy, who has played footsie with the liberals on occasion, seemed to glare, “Never again.” Let’s hope.
January 28th, 2010
Posted by
Fitzroy |
Law, Politics |
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The demise of the Bipartisan Campaign Reform Act (a/k/a McCain-Feingold) is cause for celebration. Flimsily justified as a means of preventing corruption, McCain-Feingold gave established media outlets a near monopoly on political speech in advance of elections – precisely when such speech is most likely to persuade. The law constituted the most odious and cynical use of government censorship to protect incumbent elected officials.
As its title suggests, the law was passed in bipartisan fashion (an excellent example of the limited value of bipartisanship) and was signed into law by President Bush. It represented in my opinion the worst decision of his presidency as he simply kicked the constitutional can down the road, leaving it for the courts to decide. All branches of government, however, have an equal responsibility to safeguard the Bill of Rights. McCain-Feingold represented the best and an entirely sufficient reason to oppose McCain’s presidential bid (unfortunately counter-balanced by even more compelling reasons to oppose Obama’s).
The Supreme Court has finally reached the right conclusion, years later and with the barest majority. A good synopsis of the ruling can be found here. Justice Kennedy’s controlling opinion says many of the right things. For example:
[T]he FEC has created a regime that allows it to select what political speech is safe for public consumption by applying ambiguous tests. If parties want to avoid litigation and the possibility of civil and criminal penalties, they must either refrain from speaking or ask the FEC to issue an advisory opinion approving of the political speech in question. Government officials pore over each word of a text to see if, in their judgment, it accords with the 11-factor test they have promulgated. This is an unprecedented governmental intervention into the realm of speech.
* * *
The law before us is an outright ban, backed by criminal sanctions. Section 441b makes it a felony for all corporations—including nonprofit advocacy corporations—either to expressly advocate the election or defeat of candidates or to broadcast electioneering communications within 30 days of a primary election and 60 days of a general election. Thus, the following acts would all be felonies under §441b: The Sierra Club runs an ad, within the crucial phase of 60 days before the general election, that exhorts the public to disapprove of a Congressman who favors logging in national forests; the National Rifle Association publishes a book urging the public to vote for the challenger because the incumbent U. S. Senator supports a handgun ban; and the American Civil Liberties Union creates a Web site telling the public to vote for a Presidential candidate in light of that candidate’s defense of free speech. These prohibitions are classic examples of censorship.
* * *
Speech is an essential mechanism of democracy, for it is the means to hold officials accountable to the people. . . . The right of citizens to inquire, to hear, to speak, and to use information to reach consensus is a precondition to enlightened self-government and a necessary means to protect it. The First Amendment “‘has its fullest and most urgent application’ to speech uttered during a campaign for political office.”
* * *
The First Amendment’s protections do not depend on the “financial ability to engage in public discussion.”
* * *
When Government seeks to use its full power, including the criminal law, to command where a person may get his or her information or what distrusted source he or she may not hear, it uses censorship to control thought. This is unlawful.
On the other hand, the opinion does not go far enough. Justice Thomas provided the lone voice in pointing out the increasing dangers of disclosure requirements in the Internet age. Donors are discovered immediately and targeted by opponents. As experience proves in the wake of California’s Proposition 8, taking sides can cost you your job, your business, and your physical safety. Thomas concludes:
I cannot endorse a view of the First Amendment that subjects citizens of this Nation to death threats, ruined careers, damaged or defaced property, or pre-emptive and threatening warning letters as the price for engaging in “core political speech, the ‘primary object of First Amendment protection.’”
Precisely, just as I (as a lawyer) have to think seriously about the consequences of contributing to a judicial candidate. Do I really want to be on the list of contributors to a candidate running against a judge who will decide my case? Disclosure is a sure recipe for the kind of corruption McCain-Feingold claimed to prevent – a roadmap for favors and retaliation.
Count on the established media and the politicians favored by the established media to mount a concerted effort to reclaim their favored position by equally unconstitutional means.
January 22nd, 2010
Posted by
Fitzroy |
Law, Media, Politics |
no comments
The TSA is issuing subpoenas to bloggers who leaked information.
As the government reviews how an alleged terrorist was able to bring a bomb onto a U.S.-bound plane and try to blow it up on Christmas Day, the Transportation Security Administration is going after bloggers who wrote about a directive to increase security after the incident.
Maybe it’s the bloggers who should subpoena the TSA. After all, bloggers fly in airplanes.
Now I’m all in favor of keeping our security procedures out of the hands of terrorists, but the Keystone Kops couldn’t script this any better. TSA did its own massive information dump earlier this month, giving details of what is inspected in airport screenings and, more importantly, what is not. That disclosure was apparently inadvertent, and TSA immediately claimed it did no harm.
It’s a classic diversion: blame your security lapses on the bloggers – after the fact.
This from the administration that has intentionally declassified much sensitive data concerning the Nation’s anti-terrorism efforts. Hey, how about a National Declassification Center?
Maybe they will start issuing subpoenas to the New York Times for publishing leaked . . . (Oh, never mind.)
Maybe TSA should strike a serious pose and ask the bloggers point blank, “Has this suitcase blog been in your possession at all times, and did anyone give you any items information to take aboard write about?” Then just wait for the answer.
Maybe TSA workers need a union to make them happy and less prone to leak data. Yeah, that’ll do it.
December 31st, 2009
Posted by
Fitzroy |
Law, Politics |
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The current health care bill working its way through the Senate has numerous infirmities, and people are highlighting the curious provision on page 1020 that purportedly makes part of the bill unrepealable.
That provision is so blatantly void on its face that I’m struck by the statements of some who say merely that they “doubt” its constitutionality.
Congress derives its authority from the Constitution, and the 112th Congress will have the same powers as the 111th Congress in spite of what the 111th Congress may say. Harry Reid can insert whatever statements he wants in an attempt to limit the power of future legislative sessions, but it won’t work. He can even disguise it as a change of Senate Rules (which violates the current Senate Rules), but that legerdemain doesn’t change the analysis.
The legal principle is well settled. As Justice Scalia wrote in Lockhart v. United States, 546 U.S. 14 (2005) (concurring opinion):
“[O]ne legislature,” Chief Justice Marshall wrote, “cannot abridge the powers of a succeeding legislature.” Fletcher v. Peck, 10 U.S. 87, 6 Cranch 87, 135, 3 L. Ed. 162 (1810). “The correctness of this principle, so far as respects general legislation,” he asserted, “can never be controverted.” Ibid. See also Marbury v. Madison, 5 U.S. 137, 1 Cranch 137, 177, 2 L. Ed. 60 (1803) (unlike the Constitution, a legislative Act is “alterable when the legislature shall please to alter it”); 1 W. Blackstone, Commentaries on the Laws of England 90 (1765) (”Acts of parliament derogatory from the power of subsequent parliaments bind not”); T. Cooley, Constitutional Limitations 125-126 (1868) (reprint 1987). Our cases have uniformly endorsed this principle. See, e.g. , United States v. Winstar Corp., 518 U.S. 839, 872, 116 S. Ct. 2432, 135 L. Ed. 2d 964 (1996) (plurality opinion); Reichelderfer v. Quinn, 287 U.S. 315, 318, 53 S. Ct. 177, 77 L. Ed. 331 (1932) (”[T]he will of a particular Congress . . . does not impose itself upon those to follow in succeeding years”); Manigault v. Springs, 199 U.S. 473, 487, 26 S. Ct. 127, 50 L. Ed. 274 (1905); Newton v. Commissioners, 100 U.S. 548, 559, 25 L. Ed. 710 (1880) (in cases involving “public interests” and “public laws,” “there can be . . . no irrepealable law”); see generally 1 L. Tribe, American Constitutional Law § 2-3, p 125, n 1 (3d ed. 2000).
There are many outrages in the proposed legislation, but the attempt to make any part of it unrepealable is just a joke.
December 23rd, 2009
Posted by
Fitzroy |
Law |
2 comments
Archbishop Cranmer (a British blog that has graced our blogroll from the outset) has three posts in succession on the topic of legislation favoring homosexuals.
First comes news of a heterosexual couple denied the right to enter into a civil partnership. The law establishing civil unions requires that the couple be of the same gender.
The Conservative Party attempted to add an amendment to the Civil Partnership Bill; one which would have granted siblings the same rights as homosexuals. Cheryl Gillan was concerned with such instances as two spinster sisters who have lived together all of their lives, or a bachelor brother and spinster sister who care for elderly relatives. The amendment was defeated, since the sole purpose of the legislation was to grant a state-recognised union to homosexuals alone.
Second, the EU is taking measures to punish Lithuania for passing a law that “prohibits promotion of ‘homosexual, bisexual, polygamous relations’ among children under the age of 18.”
Astonishingly (or perhaps not), the European Parliament has considered ‘Article 7’ action against Lithuania, which could have resulted in Lithuania’s suspension from the European Union. And all because they have dared to confront what they deem to be insidious homosexual propaganda. . . .
[T]he European Parliament voted 349-218 to condemn the new law because they say it contravenes the European Convention on Human Rights. They insist that the law should therefore be repealed: it is inconsistent with EU membership.
Finally, Cranmer has a video clip of Lord Waddington. It is tempting for Americans to presume that some equivalent of the First Amendment protects free-speech rights in other Western countries. Yet the Waddington Amendment has been unpopular and controversial because it puts limits on the proposed “hate speech” law and permits people to criticize the homosexual lifestyle. The amendment states:
In this Part, for the avoidance of doubt, the discussion or criticism of sexual conduct or practices or the urging of persons to refrain from or modify such conduct or practices shall not be taken of itself to be threatening or intended to stir up hatred.
Of course, the amendment and those who support it are criticized in the vilest terms. The criticism is frequently accompanied by the argument that those who fail to acknowledge homosexuality as equally good to heterosexuality are merely ignorant religious bigots who should be drummed out of polite society.
As with other issues dear to the left, the debate is being declared over, and the last murmurings of opposition will be made criminal.
November 16th, 2009
Posted by
Fitzroy |
Law, Religion |
one comment
The U.N. Human Rights Council is doing its best to stifle human rights, and we helped. Jonathan Turley writes:
While attracting surprisingly little attention, the Obama administration supported the effort of largely Muslim nations in the U.N. Human Rights Council to recognize exceptions to free speech for any “negative racial and religious stereotyping.” The exception was made as part of a resolution supporting free speech that passed this month, but it is the exception, not the rule that worries civil libertarians.
This comes shortly after the Obama Administration reversed the decision of the Bush Administration not to participate on the council.
Susan Rice, the U.S. ambassador to the United Nations, said: “Those who suffer from abuse and oppression around the world, as well as those who dedicate their lives to advancing human rights, need the council to be balanced and credible.” She said the United States seeks election to the body “because we believe that working from within, we can make the council a more effective forum to promote and protect human rights.”
Nice work, Susan. What’s the next step? Perhaps the starry-eyed advocates of “international law” (a group that includes certain members of the Supreme Court) will argue that this resolution should be honored in our courts, notwithstanding our parochial and outmoded First Amendment.
Turley concludes:
The public and private curtailment on religious criticism threatens religious and secular speakers alike. However, the fear is that, when speech becomes sacrilegious, only the religious will have true free speech. It is a danger that has become all the more real after the decision of the Obama administration to join in the effort to craft a new faith-based speech standard. It is now up to Congress and the public to be heard before the world leaves free speech with little more than a hope and a prayer.
The Obama Administration is convinced we can solve all problems if we just sit down and talk. Only watch what you say.
October 21st, 2009
Posted by
Fitzroy |
Law, Politics, Religion |
no comments
The Federal Trade Commission is set to become the Federal Opinion Commission. Its tentacles now reach to bloggers and tweeters who receive anything of value and then write about it.
The new rules reach far into the realm of “word-of-mouth” advertising.
The revised Guides also add new examples to illustrate the long standing principle that “material connections” (sometimes payments or free products) between advertisers and endorsers – connections that consumers would not expect – must be disclosed. These examples address what constitutes an endorsement when the message is conveyed by bloggers or other “word-of-mouth” marketers.
So if you are an employee of Google with a food and wine blog and suggest that your readers use Google Earth to check out the topography of Bourdeau, are you in violation? (Maybe) If you review a book that was given to you, must you disclose the gift? (Yes)
If you review concerts and get a free ticket, do you have to note that in your review? Or does that depend on whether you like the performance?
Is all of this sufficiently ambiguous for you? Bloggers take note. That 30-day free trial you received on your latest widget – you know, the one that comes with its trademark displayed? You might want to tell everyone about that just to be safe.
A fine of $11,000 awaits those of you who get this wrong.
These rules exceed any rational exercise of the FTC’s authority and violate the free expression rights of all bloggers, tweeters, and Facebook users, which today means just about everyone.
(In the interest of full disclosure, I do not work for the FTC or any branch of the Federal government and I have received nothing of value from the Federal government for this review of their rules.)
P.S. At the bottom of the page is a reference to WordPress and the designer of my blog theme. I got those for free.
October 6th, 2009
Posted by
Fitzroy |
Commerce, Law |
no comments
Hollywood’s rush to the defense of Roman Polanski has left us awash in idiocy. 
What can one say about Whoopi Goldberg’s assertion that it wasn’t “rape-rape” other than what Joan Smith said? And how about that call to make the film industry immune from arrest at its film festivals? Debra Winger is outraged that the Zurich festival has been “unfairly exploited.”
Even the French — even the readers at Huffington Post — are shaking their heads over the knee-jerk defense of a child molester. Roger Simon notes:
And yet those people are defending a man who drugged and sodomized a thirteen-year old!
In the name of what? His art? One creepy character on the Huffington Post even went so far as to say Polanski had suffered enough because he didn’t get to work in Hollywood. How dumb can you get – multi-million dollar productions such as Polanski directed for years are financed internationally and distributed world wide. The only “suffering” Polanski had to endure in all this is he had to live in Paris instead of Beverly Hills. Quelle tragédie.
Image: Cry Baby www.addstudio.com.ar - Creative Commons
September 30th, 2009
Posted by
Fitzroy |
Film, Law |
no comments
