Lessons in Law / Cours de droit 4

Nov-Dec 2020 EN-FR

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Il faut beaucoup de bureaux pour faire un monde meilleur.

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Aux USA, les syndicats sont historiquement opposés à l’immigration : « labor unions, historically wary of immigrants as a cheap-labor threat » (Encyclopedia of American Law, 2002, Ed. D. Schultz: Immigration & Naturalization Service) En France, les syndicats sont tous pro-immigration.

Dans un de ces pays, les syndicats de travailleurs servent les intérêts de leurs adhérents. Dans l’autre, les syndicats sont les alliés du patronat. Je vous laisse dire qui est qui.

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Génocides staliniens

Stalin’s genocide of Crimean and Caucasian Muslims after WWII is being denied in Russia and the West by and large.

« Le 12 novembre 2015, le Parlement d’Ukraine et, le 9 mai 2019, le Parlement de Lettonie reconnaissent la déportation des Tatars de Crimée comme un génocide. » (Page Wkpd Déportation [sic] des Tatars de Crimée) La page Wkpd française n’est pas à jour : après l’Ukraine et la la Lettonie, la Lituanie (6/6/2019) et le Canada (10/6/2019) ont également reconnu le génocide stalinien des Tatars de Crimée : cf Wkpd page en anglais.

+ même page : « Ukrainian singer Jamala dedicated her 2016 Eurovision winning song 1944 to the deported [genocided!] Crimean Tatars. »

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In contrast, Soviet mass deportation of Chechens and Ingush the same year (1944) « was acknowledged by the European Parliament as an act of genocide in 2004 » (Wkpd). There was no difference with Soviet treatment of Crimean Tatars. So…

World Chechnya Day Campaign (click to enlarge)

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Les lois de vérité historique portent atteinte :

-aux libertés académiques : principe à valeur constitutionnelle ;
-à la liberté d’enseignement : principe à valeur constitutionnelle ;
-à la liberté de conscience : principe à valeur constitutionnelle ;

mais ça existe en France.

Une telle loi ne peut exister qu’au prix d’une interprétation des libertés précitées qui les vide de toute substance. Si bien qu’il faut nécessairement dire qu’en France il n’y a ni liberté académique, ni liberté d’enseignement, ni liberté de conscience.

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First Amendement Law vs Free Speech Law

Sarah Palin is awesome and there is going to be a large lawsuit against Twitter on first amendment rights. (S.T., Nov 26)

To allow internet platforms, which have become the Agora of the day, to suppress free speech because they’re private businesses and no government, will soon prove antiquated.

As “Privately-Run Libraries Expand Throughout U.S.” (Center for Digital Education, 2015), if privately-run libraries are private organizations re First Amendment law and the Amendment “does not impact the ability of private organizations to limit speech,” one sees the consequences. It’s about “privately-run public libraries,” like in the news: “A Maryland company that runs public libraries faces opposition as it seeks to add the 24 libraries in California’s Kern County to its portfolio of 82 in six states.” – my question being: Is a privately-run public library a private or public organization re First Amendment law? If private, then Board of Education v. Pico (US Supreme Court, 1982) doesn’t apply and these libraries are free to withhold any of their books from readers.

As private businesses are already constrained to not discriminate based on race, ethnicity etc according to the Civil Rights Act of 1964, this is no big step further to constrain them to not discriminate based on speech either.

If the First Amendment has value, it is because one’s opinions are one’s life (even if one is free to change one’s mind) and it is the fear of consequences that must be stopped, whether the feared consequences are prosecutions or the loss of one’s livelihood. – If we admit this, then not only private businesses should not be allowed to discriminate against employees but also against customers such as internet platform users based on speech.

With or without section 230 website owners have the right to determine what speech is conveyed on their property. (Emgorse, Dec 5)

Are they allowed to determine who conveys speech on their property based on the color of one’s skin? – As one’s speech reflects one’s opinions and one’s opinions are one’s inner life, I see the view here expressed as no different than that of people who advocate discrimination based on ethnicity etc. Besides, given that democracy lives on the free flow of ideas (“the marketplace of ideas“), and considering the nature of internet platforms, comparing them with family households is unsustainable re First Amendment.

The Good Samaritan clause in section 230 indeed provides immunity from civil liabilities for providers that restrict content but only if they act “in good faith” in this action. => Free flow of information and ideas. “Section 230(c)(2) provides Good Samaritan protection from civil liability for operators of interactive computer services in the removal or moderation of material they deem obscene or offensive, even of constitutionally protected speech, AS LONG AS it is done in good faith.” Wkpd

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Invasive Moderation

Assuming that [“I see the view here expressed as no different than that of those who advocate discrimination based on ethnicity”] was the case, so what if it was? Would you treat him differently because of his views, also becoming like those who discriminate based on ethnicity? (digital slime, Dec 6)

If I were an internet platform, you mean? Because that’s the topic.

Who has the power to discriminate? The provider, not the user. Restaurant owners are individuals but as they’re on the hiring side of the handle, it is them are asked to not discriminate against protected categories, not the waiters.

We’re all equal before the law but also its allows for differences when situations are different. When managerial decisions are concerned, individuals are concerned qua managers. So d.s.’s question is irrelevant as it draws the same consequences whether there’s “qua” or not, or this or that “qua.”

D.s. agrees there are individuals qua “public officials” but seems to forget there also are individuals qua “public figures” (not working in the public sector) and as far as section 230 is concerned individuals qua websites who are liable for their moderation when not done “in good faith.”

In any case there can be no claim of total shielding from disputes about moderation, not least because users may find they’re moderated contrary to the platform’s very own guidelines. Deceptive terms of service are illegal: “Deceptive terms and conditions void a contract in entirety.” (Duick v. Toyota Motor Sales USA Inc, Cal. App. 2 Dist.) Moderation contrary to TOS would be evidence, at the very least when consistently contrary.

Deceptive terms voiding a contract is a separate issue. One that shouldn’t actually come up since most social media sites reserve the right to remove you for any reason any way. (digital slime)

Come up with evidence of deceptive terms, deceptive moderation and other deceptive practices by social media and the judge will make them pay.

According to d.s.’s reasoning, a moderator could moderate his ex-girlfriend in an invading fashion like an electronic stalker and get off scot-free.

Justice for all. The responsibility for invasive moderation, like some say is found on platforms, is the moderator’s, owner or staff; the owner cannot shield a manic staff moderator but the staff’s defence can be that he abided by the contract.

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Une manifestante lyonnaise, légèrement blessée par un tir de LBD en 2019, a obtenu une décision favorable du tribunal administratif mercredi. Ces dernières années, quatre hommes ont déjà été indemnisés par ce biais, sans condamnation pénale du tireur. (Mediapart, 26 nov.)

Il ne manquerait plus qu’une action devant la justice administrative empêche de saisir le juge pénal, alors même qu’une décision favorable du TA est, face aux manoeuvres de l’IGPN complice, bien souvent la seule preuve que la victime peut faire valoir devant un juge judiciaire.

La doctrine est qu’une faute de l’agent permet de saisir le juge judiciaire. Or si le régime de « responsabilité sans faute » devant le tribunal administratif sert à empêcher le JJ d’être saisi, ce régime est moins protecteur qu’il n’y paraît car rien ne responsabilise alors les agents.

En effet, le régime de responsabilité sans faute de l’État sert alors à couvrir toutes les possibles fautes des agents, et même si l’État a ensuite, dans ce cadre, des moyens de rétorsion contre l’agent, c’est de la cuisine interne à l’administration, loin des regards.

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Hate speech laws are something democracies and dictatorships have in common. Or is USA the only democracy in the world? #GodBlessAmerica

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No speech is protected if it incites violence. (D.B., Nov 28)

WRONG. No speech is protected if it incites “imminent lawless action“: Brandenburg v. Ohio, US Supreme Court, 1969.

“Imminent” means that speech is protected when it “amounts to nothing more than advocacy of illegal action [like violence] at some indefinite future time“: Hess v. Indiana, 1973.

The American Constitution protects speech that incites violence in some cases and I should say most cases. D.B.’s view is the same misunderstanding that led Misters Brandenburg and Hess to be prosecuted in violation of the Constitution.

D.B.’s phrasing is misleading. “Inciting violence”, when it is “advocacy of illegal action at some indefinite future time” is protected speech, so the Court does not examine whether speech incites violence, only whether it incites “imminent lawless action.”

The “imminent lawless action” test is more stringent than the earlier “clear and present danger” test, so even speech that wouldn’t pass a “clear and present danger” test is now protected. Thus, to tell people they can’t “incite violence” is to mislead people, as they are constitutionally entitled to advocate riots, bombings, killings, you name it, as long as it is in “some indefinite future time.”

And if it is true that the imminent lawless action test is more protective of speech than the earlier clear and present danger test, then advocacy of violence is protected not only when adressing some indefinite future time – because of the word “present.” As the less protective test contains the notion of “present danger,” one is bound to think that the more protective test has discarded it, and that “imminent action” being not the same as “present danger” there can be present (not future) danger and yet no imminence of lawless action.

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Depuis janvier 2019, dans le cadre de la politique de francisation du français, on ne dit plus « one man show » mais « Grand Débat National ».

Exemple : « Pierre Emmanuel Barré a reçu une standing ovation à la fin de son Grand Débat National aux Folies Bergères. »

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Brown v. Board of Education and Desegregation

Brown v. Board of Education of Topeka et al. (1954) was based on massive empirical evidence that segregation in the Southern states did not live up to the standard of separate but equal. Yet Plessy v. Ferguson (1896) had been based on the a priori possibility of the standard, which cannot be disproved by empirical evidence.

An a priori possibility is to be rejected by statement of a priori impossibility, statement that is lacking in Brown v. Board as it relies on empirical facts. From empirical facts only, the conclusion could well have been that segregation be redesigned, started anew.

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As the conclusion from the empirical evidence could be either ending segregation or redesigning it, the decision to end segregation would require an additional a priori impossibility justification that cannot be found in Brown v. Board. So the Court’s conclusion exceeded the premise, as the only ways open to the Court, absent a statement of a priori impossibility, was redesigning or leaving it to the states to decide.

Desegregation was postulated rather than inferred by the Court, whose reasoning in the case is a mere petitio principii (the fallacy known as begging the question).

Petitio principii i.e. begging the question: Based on empirical evidence, on empirical evidence only, you can’t have the imperative of desegregation in the conclusion if you don’t put it in the premises yourself (if you don’t postulate it no matter what the evidence is).

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In Brown v. Board, unanimous justices say: Segregated schools are not equal and we believe they can’t be. We see the main part for them is “Segregated schools are not equal,” whereas “they can’t be” is a minor point in their eyes, as a belief suffices.

Yet from one about to conclude with mandatory desegregation, one was expecting not a mere belief that “they can’t be” but a formal demonstration: an a priori demonstration of an impossibility per se.

Moreover, the very fact that unanimous justices wouldn’t express more than a belief is testimony that the documents sent by the NAACP and attorney Thurgood Marshall were wanting on that side of the issue. And it wasn’t bad faith on the justices’ part, as they granted desegregation.

According to commentators, the NAACP articulated some demonstration of the kind, well aware, then, that such a demonstration was unavoidable, but in the end justices expressed a mere belief, the polite way to say the demonstration was worthless. Without offering one of their own.

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One Bused Nation

As of precedent of Sep 1999, when a school district has “eliminated all traces of intentional racial discrimination,” busing programs must be stopped. How may one think this is not starting over with segregation, as said elimination was the result of busing only?

Busing made mixed schools. End busing and you get segregated schools again, because busing did not mix neighborhoods.

What can lead from busing to mixed neighborhoods is that families find busing so impractical, burdensome and punitive they prefer moving in the neighborhoods where their kids are bused, in order to avoid this busing hell. As if the inspiration for desegregation designers were Machiavelli rather than the Founding Fathers.

2 comments

  1. Pingback: Lessons in Law 5 | florent boucharel AD-FREE
  2. Pingback: Lessons in Law 6 | florent boucharel AD-FREE

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