Tagged: Brandenburg v. Ohio

Law 40 Wawkeism

Sep 2023-Mar 2024

*

Wawkeism

“China Blasts German Foreign Minister Over ‘Dictator Xi’ Jibe” (Hindustan Times, Sep 2023)

Why are woke politicians such bellicose hawks? I am coining the word wawk for them. But no matter how wawk is a hen, it can only peck small chicken.

*

Taliban’s Heinous Surveillance Cams

“Taliban Plan Mass Surveillance Network in Afghanistan Using U.S. “Security Map,” China’s Huawei” (Crux, Sep 2023)

Cameras are law enforcement tools. Taliban, like other governments, will enforce legislation with the help of cameras. When human rights organizations express concerns about a mere tool with which laws will be enforced but these organizations in fact consider that the laws themselves do not abide by human rights and are the problem, it is idle talk as far as their speech focuses on a universal tool rather than specific and allegedly problematic laws. These organizations show themselves as mere anti-Taliban pecking hens. Tomorrow, if they can find nothing else, they will express concern that the Taliban have a police force. When you express concern that the government of a country uses the same police measures as other countries, you are pecking like a hen.

*

The right to advocate and incite unlawful conduct

“Influencer ‘Meatball’ appears to be arrested while livestreaming looting rampage in Philadelphia” (New York Post, Sep 2023)

Streaming is not looting. The influencer has First Amendment rights. The First Amendment allows advocacy of unlawful conduct and the influencer’s arrest was unjustified.

She has a First Amendment right to incite riot or looting or any other unlawful act one can think of, provided it is not inciting (1) an imminent act (2) likely to occur: Brandenburg v. Ohio. As she was livestreaming on her blog, she was not even addressing the crowds around her, which is the only way in which her speech could have resulted in imminent unlawful action likely to occur. There is no incitement relationship between the looting and her gloating over it.

But even if she had livestreamed herself addressing the looters, “Well done, guys!,” this is not incitement either because congratulations cannot be incitement, as the former follow the act while the latter precedes it. Furthermore, even if she had said “Well done! There is another store next door,” the looting started before her speech, and if this speech (“go to another store after this one”) could be incitement in this context, then congratulations would be incitement as well, as a warmup, but congratulations cannot be incitement by definition. As one has a right to advocate wrongful conduct, one obviously has a right to cheer over wrongful conduct, even if this could be said to warm up wrongdoers.

To be sure, congratulations may also occur during, rather than after, the act, but during the act is still not before the act, and one needs precedence to talk about incitement. If there were incitement in the present case, it would be incitement to keep looting and not to start looting, but if it could be said that such a thing exists as incitement to continue doing something that people had already started doing, then there is obviously no possibility that cheering could be protected by the First Amendment as it is in a free country where advocacy of unlawful acts is protected.

Even if addressing looters in one store with such words as “Loot the next store too” has some formal characteristics of incitement, it is not incitement, here, because for speech to be incitement it must incite, again, an imminent act likely to occur, and if the imminent act was likely to occur already before the speech, the speech is not inciting, it is only cheering, rejoicing, reveling, gloating… Looting has material interests attached to it, people loot for goods and merchandises; this motive is self-sufficient without the need to add cheering as a likely cause of continuation. As an individual caught in the middle of a rampage, and liking it, some of the influencer’s words had a few characteristics of incitement but her speech lacked other characteristics and they are all needed together to characterize unlawful speech.

The arrest follows a typical pattern of police frustration, where, most of the wrongdoers escaping arrest, police turn against a person for her speech. This is not acceptable under a Constitution with First Amendment. Besides, the arrest psychologically relies on an outdated notion that people on the street have a legally enforceable duty to make citizen’s arrests (called hue and cry): when, in the past, such a duty existed, a person running with the crowd after, say, a thief on the street while cheering for the theft at the same time was obviously unlikely.

To sum up, “keep going,” in whatever form, is not incitement. The looters were not triggered by the person’s speech. Gloating over wrongful acts is protected speech, as a form of advocacy.

*

While Western governments and media were stressing that some Russians tried to emigrate to escape the draft, and this was described as a blow to the Russian regime, they asked European populations to welcome and accommodate millions of Ukrainian refugees who were fleeing not only the war zone in their country but also their country itself. In other words, while these governments and media asked European people to fund the Ukrainian army, they also asked them to welcome Ukrainian men escaping military service for the country we were supposed to root for. Ukrainian refugees had a duty to take refuge in their own country in order to enlist in the Ukrainian army; their coming to Europe has been opportunistic, to the best of a rational agent’s understanding.

*

On the “hypocrisy of the international community” regarding the treatment of civil casualties in Ukraine and Palestine. The parallel between Ukraine and Palestine would be more adequate if Western nations held Ukraine accountable for Russian civilians’ deaths, which they are not doing, whether it be because there are no Russian civilian casualties (but there are: see below) or for the same reason they keep largely silent on Palestinian casualties, namely because they support Ukraine’s goals as they support Israel’s ones. They only see civilian casualties when the “bad guys” are responsible.

Nota Bene. 1) Since the beginning of the war, there have been Ukrainian attacks on Russian territory. 2) There is a significant Russian minority in Ukraine. If you refuse to call them ethnic Russians, you will count them as Ukrainian casualties rather than Ukraine’s victims; how convenient.

*

Aerial invasion and mass bombardments have become the number one modus operandi of technological war, and this type of warfare is highly indiscriminate and lethal to civilians and civilian infrastructures, especially when faced with guerrilla warfare. This, among other things, is the reason why Western nations are reluctant (to say the least) to condemn the bombardments on Gaza, because they know they would do the same, namely indiscriminate mass bombardments, in the same situation, regardless of international law. The existence of Palestinian enclaves (the relics of Palestinian territories) surrounded by Israeli territories allows this to happen, and the so-called “human shields” in these enclaves are all the present and living Palestinian Arabs.

*

[British] Police ‘treading a very fine line’ | Pro-Palestine protesters provided with leaflets on antisemitism” (GBNews, Nov 2023)

These leaflets are police provocation. Police target law-abiding citizens, namely pro-Palestine demonstrators, telling them through leaflets: “We are confident that you may be criminals.” Of course, this serves to dissuade people from joining the movement, as individuals who decide to join know they would be under police surveillance as suspected criminals. These leaflets are blatant discrimination.

*

“Algerian footballer Youcef Atal convicted by French court over Gaza post” (Islam Channel, Jan 2024)

The fact it took less than three months for a French court to pronounce a condemnation (for a post dated Oct 12) is unusually swift for a so-called speech crime. So much so that a political spin may be suspected in the procedure, in relation with the current atrocities taking place in Palestine. Besides, if Youcef Atal has no criminal record, his sentence is unusually harsh, even taking into account the suspended part of prison time. (He probably doesn’t have a record; I only say “if” to avoid making believe I know his file personally.) The sentence is unusually harsh and the trial unusually swift, which hints at political pressure to speed it up and at a political sentence. This was a political trial, not a fair trial.

*

Of Salutes and Flags

“Hundreds Perform Nazi Salute in Italy. (…) Banning the Nazi salute opens the Pandora’s box.” (FirstPost, Jan 2024)

The Pandora’s box has been open for decades in France and I confirm politics is a joke here.

Contrary to wearing uniforms and displaying paraphernalia, the salute per se is not an offense in the French books (as such it is forbidden in stadiums only) but the courts condemn it nevertheless as incitement to racial hatred. Thus, where the law actually forbids, say, the display of Nazi flags, the guilty may have to pay a 1,500€ fine, but where the law says nothing but courts nevertheless filled in the gap, then one may incur one year in prison and a 45,000€ fine. The legislator said nothing on the salute but the salute is punished as racial hatred, whose penalties are substantially heavier than for Nazi uniforms and objects that are statutorily punished by a much smaller fine, even though the obvious display of objects, if the salute is racial hatred, is racial hatred by the same token. So much so for consistency.

Finally, neither the law nor the courts limit the scope of the law to the Nazi and Italian Fascist parties; their phrasing targets organizations condemned by the Nuremberg and other trials in 1945 and other organizations condemned for crimes against humanity. Which means displaying the Israeli flag should be punished by French courts when the International Court of Justice (ICJ) rules that Israel has committed or is committing a genocide.

*

Defamation and the Fair Trial Principle

(For those reading French, see Droit 39 “Diffamation et Droits de la défence.”)

a) Speech during a trial
b) Speech after a trial

a) In Trump’s defamation case, what has been condemned is basically Trump’s defense in his sexual offence trial. When you defend yourself in a trial, what in other circumstances might be called defamation is protected speech, because otherwise no one could defend themselves in a trial and no one could have a fair trial. Trump’s defense was protected from defamation suits in the context of his trial. The federal prosecutor talks about Trump’s tweets, interviews, after this or that audience, at this or that time, but she fails to tell us how the points she stresses are outside the protection that Trump’s speech, like any other accused person’s speech, was afforded for his defense. Think about it, now when one is brought to court and wants to dismiss their accuser’s allegations, that is, when one defends themselves, if they lose the trial, they will also lose a defamation trial because they dare defend themselves?

In this particular trial, protected speech was not limited to the precinct of the court, because both parties were public figures and the trial was in the mass media as much as in the court. Therefore, it is obvious that Trump had a right to express himself on the trial in the media, that is, he had a right to carry elements of his defense to the public via the media, which were dealing with the trial. Consequently, his speech was protected as defense speech in a trial, and at the very least, if it could not be protected because in some similar cases this had been previously ruled out, Trump may have been in good faith about his rights, about the extremely important rights of speech protection in a fair trial. This condemnation conveys the suggestion that the court treats protection of speech quite lightly, even to the point of ignoring it. What citizens will remember of this trial is that by defending oneself in a trial one may incur another trial for defamation.

Defending oneself in a trial, if it is libel, is protected libel. Trump lost a libel case after he was sued for commenting his own trial on the internet and in interviews. His comments were merely to tell what his defense is in the case, namely that his accuser is a liar. These people mean he was the only person on earth compelled to keep silent about his own trial? There can be no fair trial at all if your defense is liable to be treated as libel because a judicial trial is basically, for starters and some dubious characters here involved, reciprocal aspersions.

b) Besides, you can’t defame someone whose reputation is not at risk. Since the court said a party to a trial did not lie, this party is reputed to not be a liar, and when the accused keeps calling her a liar this cannot taint her reputation. The whole libel suit is flawed on principle. An American citizen has the right to keep claiming he is innocent (and his accuser is a liar) after he was found guilty by a court of law. You can’t sue for libel a man who claims his innocence. He claims his innocence but the accuser has been vindicated by the court, the court’s judgment therefore precludes that the person the court found guilty, when he keeps claiming his innocence, commits libel, because there can be no damage to the vindicated accuser’s reputation in such a claim.

Conclusion

When I say “I am innocent,” I am saying (unless I believe my accuser is making a mistake, a precision I would then be well-advised to articulate) that my accuser is lying. Someone wanted to object to me that, had Trump said he is innocent, he would not be sued for libel (quote: “He’s not being sued for claiming he’s innocent”), but, as this person claims, as Trump said his accuser is a liar he is being sued. I call everyone’s attention to the fact that had Trump said he is innocent, these very words (“I am innocent”) would accuse his accuser of lying, which my detractor says is deservedly sued for libel. His viewpoint is therefore inconsistent and unfamiliar with libel law.

Annex

“The Adult Survivors Act (ASA) is New York State legislation enacted in May 2022 which amends state law to allow alleged victims of sexual offenses for which the statute of limitations has lapsed to file civil suits for a one-year period, from November 24, 2022, to November 24, 2023.” (Wikipedia)

There are statutes of limitations for a reason, the bill is tailor-made and unconstitutional. The laws of the state have statutes of limitations but the lawmaker of the day, although acknowledging the relevance and goodness of said statutes, suddenly finds it expedient to cancel them for a short, limited period. Expediency considerations do not belong to the legislative power, lawmakers must make good laws and repeal bad laws. If statutes of limitations are good, they must leave them alone, if they are bad, they must repeal them. This temporary cancellation of statutes was an unconstitutional infringement on the judicial power, to which the laws of the state say that statutes of limitations are good legislation they must abide by. This legislative self-contradiction is constitutional insanity, that is, unconstitutional remissness.

*

Corporate Speech and the First Amendment

There is no such thing as corporate speech, as speech is protected as a political right, that is, speech protection is the result of a connection to the electoral process and ballot. The right to vote is the condition for protected speech. The Supreme Court of the United States must reverse Citizens United v. Federal Election Commission and allow the legislator to regulate and limit so-called corporate speech.

Commercial speech is not fully protected (in contrast to hate speech for instance). The U.S. constitution does not want advertising to flood the “marketplace of ideas,” so the notion that websites have a constitutionally protected freedom to censor content for the sake of advertisers is fanciful. The lawyer we heard in Moody v. Netchoice talks of “users and advertisers,” but he really thinks “advertisers” only because advertisers are the platforms’ source of income, not users. Besides, users and advertisers shouldn’t be thrown in the same bag as far as the First Amendment is concerned, because commercial speech is protected from state regulation only partially, while the user is an agent on the marketplace of ideas and has the right to vote, that is, the right to determine the states and nation’s policies.

When you’re watching a political debate to make a choice on who you’re going to vote for, you’re in a speech environment. When the broadcast is cut for commercials, you’re leaving this environment. Next thing you know, they’ll tell you a football game is “speech.” The Founding Fathers did not fight tyranny for this.

Furthermore, private censorship by platforms is infliction of emotional distress, a tort. When a platform user makes a speech that the U.S. constitution protects and he is censored by the platform because of his speech, the platform is a platform for speech but acts as a private club, or a church, or a private property. However, the platform attracts users to expose them to commercial speech, advertisers being their source of income. The platform has a minimal duty to the user in the circumstance, which is that, as long as they abide by the law, users must be free on the platform. Anything else is ruthless exploitation by platforms exposing gagged masses to advertising and mind manipulation.

Thus, the reasoning is along two lines. 1) Private censorship by platforms might be liable to tort actions. 1a) It could be for invasive moderation, invasion of others’ rights. It would be absurd to claim a platform owner can shield a manic staff who harasses targeted users, like an ex-girlfriend, through flagging their posts manically. Not admitting that a platform can be sued for moderation is like saying they can staff their moderation offices with maniacs and that would be just as good. Absurd. 1b) Then, a notice on posts could well be libel, depending on the notice, but even a removal could have the same effect on one’s reputation. Even though platforms cannot be liable for users’ content (Section 230), they are liable for moderation. Moderation is speech and not all speech is protected; moderation can be unprotected speech where libel laws obtain. Section 230(2) provides “Good Samaritan protection” for bona fide moderation, it isn’t a blanket protection.

2) A law curbing platforms’ speech regardless of the First Amendment could pass the strict scrutiny test because of the so-called preferred position doctrine that applies in case of conflicts of rights. As currently the First Amendment cannot ensure for free, voting citizens the free flow of information and ideas against encroachments by platforms, a statute is needed. That statute will be upheld against the private companies’ claim that it violates their, the companies’ First Amendment right. Indeed, corporate speech has not as strong a status as citizens’ speech, all this ultimately deriving from the common law, where property is not a source of absolute discretionary power. Corporate speech is twofold: commercial and political. Admitting that corporations’ political speech is equally protected under current precedents (since Citizens United), that’s not the case of their commercial speech. This enables one to say that, according to the existing positive legislation, corporations have fewer First Amendment rights than individuals.

The envisioned statute can specify the kind of companies concerned, same as there exist statutes regarding “common carriers.” Some time ago, Justice Clarence Thomas floated the idea that internet platforms are common carriers. If this is what they are, the platforms will realize that a statute can impose duties on companies, on private property. Malls are a good example in the discussion. See Logan Valley Plaza (1968): “Logan dealt with the right to use private property as equivalent of public space”; “A business in a privately owned shopping center cannot prevent labor picketing in its surroundings.”

– Wouldn’t narrowing the scope of 230 potentially incentivize U.S. companies to register abroad? Of course internet companies have to comply with each country’s local laws and ICCPR but that concerns, to my knowledge, widely what should and must be censored – not what cannot be censored, as long as the terms are enforced without prejudice. (G. Muller)

These American companies operate in foreign countries where they are under obligation to censor content (see for instance the European DSA–Digital Services Act). Why would they register abroad if tomorrow these companies come under an obligation not to censor content in the U.S.? Registering abroad, they would face the same compulsions as if registering in the U.S., namely: to censor abroad, not to censor in the U.S.

*

Firepower and the Second Amendment

Whether a legislator wants to ban machine guns or bump stocks (see Garland v. Cargill about the constitutionality of a Trump-era ban on bump stocks, currently examined by the U.S. Supreme Court), this is a vicious wish because enactment is unconstitutional. The Second Amendment means that the state cannot tamper with the gun function of guns. If you can ban bump stocks, nothing can stop you from banning anything except toy guns shooting soft rubber bullets while claiming the U.S. constitution has a Second Amendment. “Militias” that are “necessary to the security of a free State” need more than toy guns, they need the deadliest weapons on the market.

A militia being necessary to the security of a free State, it needs the deadliest weapons. We all know you don’t need a machine gun to go hunting, but this amendment wasn’t written for hunting. It was written for the security of a free State. We also know that whether a “well regulated militia” is something of the irretrievable past or not, it is not what the Court is asked to consider, because this is only the premise of the amendment, and it is the amendment’s prescription that is the standing and binding rule, namely that the state don’t infringe on the people’s right to bear arms for the security of a free State.

In other words, whether well regulated militias have been existing or not these last decades, it still obtains that the people’s right to bear arms is necessary for the security of a free State according to the constitution. You can’t deny it without hollowing out the amendment. The constitution is not concerned about what rifle or what firepower a hunter needs to shoot a deer, so that lawmakers could put a limit on the firepower legally available to citizens. The firepower constitutionally available to U.S. citizens is the firepower necessary to the security and existence of a free State, that is to say, the deadliest weapons available. All restrictions on this account are unconstitutional.

The Second Amendment forbids the state to consider that its standing army has made “well regulated militias” unnecessary to the security of a free State. But the right to bear arms is a people’s individual right, not a militia’s collective right. The authors of the amendment made this obvious and they made it so lest, through devious statutes, militias became annexes to the standing army and/or the states’ administrations (which is actually the case with the existing militia statutes and militias). The people’s right to bear arms entails the unrestricted freedom to achieve maximum firepower, because the security of a free State entails the ongoing validity of the constitution itself, that is, there can be no higher duty for a U.S. citizen than the security of a free State, and therefore, as this highest duty requires arms, lawmakers cannot impose limits on the firepower available to citizens.

*

Removing Names from the Ballot

Trump has not been convicted for insurrection. Statutorily removing his name from the ballot for insurrection (January 6 events) amounted, therefore, to removing his name because “somebody” is saying Trump is an insurrectionist. This “somebody” could be my grandma or your grandpa or the current President of the United States, it doesn’t matter, this somebody is nobody. Coloradan authorities lacked a legal basis for their action. The only possible legal basis would have to be an actual conviction for insurrection, and not only an indictment because from indictment to conviction the indictee is presumed innocent (Coffin v. U.S., 1895). You cannot remove a person from the ballot for sedition when this person is presumed innocent of sedition. That the Colorado supreme court thought otherwise is baffling. Coloradan authorities misused their authority.

“Colorado should be able to bar oath-breaking insurrections from our ballot,” a Coloradan official declared after Trump v. Anderson. Well, you can do that, Colorado state, only you don’t have the power to say who is an insurrectionist and who is not, it has to be a court of law, with an actual conviction, which is the small detail missing in your operation. You are a government, not a court, and although you would like to convict Trump for insurrection, you don’t have this power and you removed from the ballot a person as innocent of insurrection as your own officials until proven guilty by a court. Colorado state intended to gather in its hands the powers both of an executive and the judiciary, and these people don’t even seem to realize how spiteful this is to fundamental principles.

Detractors of SCOTUS’s Trump v. Anderson (2024) are now considering a federal bill, which is the obvious option given the angle in the court’s decision. In my humble opinion, however, this was not so much a state versus union issue as an executive power versus judicial power, a checks and balances issue. To remove an “insurrectionist” from the ballot is not allowed to a government absent a judicial sentence about said person. As a commentator already put it, the bill smelled a lot like a bill of attainder, and by floating the idea this commentator made it clear that in his opinion the issue was not whether states (as opposed to the federal state) could take such a step but whether the authorities of a state and/or federal authorities could pass a bill targeting people who have not been convicted by a court and at most are indicted and still presumed innocent. And the answer to the latter question is an obvious no.

If the ballot removal act is a bill, it is a bill of attainder, forbidden by the attainder clause of the U.S. constitution. If it is an executive act, it lacks legal ground, which could only be an actual conviction for insurrection or a bill. An executive act depriving a citizen of his rights (the right to participate in an election) without legal ground is misuse of power. It seems these people have been taking the partisan Jan 6 house committee for some kind of court of law because they’re always talking of insurrection as if guilt has been proven by a court. However, a claim of insurrection is at this stage a mere fancy and cannot serve as legal ground, the Jan 6 committee notwithstanding.

The issue is people’s right to be candidates for elections when there is no charge of insurrection against them and all other conditions are met for their being candidates (age, nationality, and so on). This right is constitutionally protected. Neither a state nor a federal act can deprive an American citizen of this right on a mere fancy of insurrection. And for a claim of insurrection to serve as legal ground, guilt must be proven by a court of law, by a final conviction in a court. Indictment is to no avail in this regard because indictment is an executive act, and a legal ground could only be a judicial act by an independent court after a fair trial.

What, then, would such a federal statute aiming at removing Trump from the ballot be? Absent a conviction by a court of law, it would be a bill of attainder, forbidden by the attainder clause of the constitution. The bill would be both a judicial, individual judgment (“Trump is an insurrectionist”) and a legislative act (“Therefore he must be booted from the ballot”). Bills of attainder are unconstitutional because of the fundamental principle of separation of powers. To rule that “Trump shall be booted from the ballot” you need a prior judicial, individual judgment stating that “Trump is an insurrectionist.” This judgment is missing. To remove Trump from the ballot, a law could be passed without being attainder if it were so worded: “Any person indicted (not convicted yet) for insurrectionary acts shall not be accepted as candidate.” However, how could this be congruent with the presumption of innocence? The government could indict any person and these people would be deprived of their right to be candidates for elections without judgments by independent courts. That would be unconstitutional too, a misuse of power.

*

Porn being legal in the U.S., a platform needs to moderate its content to bar porn. No one can object to such moderation, but then, using the argument, the platforms become willing witch hunters for the administration. The solution is to make porn illegal. Filmed pornography being based on meretricious contracts, its very making is illegal to begin with (see Law 22 “Pacta turpia cannot be speech”).

Platforms need to moderate content because porn is legal in the U.S., with the valid argument: “We need to moderate content because we’ve got to bar porn from flooding our platforms since it is not police job but ours.” Therefore, ban porn again. Porn is no more speech than a football game (and much more damaging). Stop the nonsense, the only reason they – mafia lawyers – say porn is speech is because in the U.S. speech is protected. How can filmed pornography be legal in states where prostitution is illegal (all states except Nevada), when the making of filmed pornography requires the same meretricious contracts as prostitution? Filmed pornography is filmed prostitution, and if there is such a thing as crime prevention the making of filmed pornography should be prevented in said states. You’ve got to be consistent.

*

Some ethical remarks on police interrogation techniques

1) The right for a police officer to be deceptive during an interrogation

Ask yourself why it is not okay for a juvenile service officer to be deceptive, but it is for a police officer (these are interrogation regulations in the states, where the presence of a juvenile service officer is mandatory when juveniles are interrogated by police). There can be no good reason, for in the former case a moral commandment prevails while in the latter expediency does, but if it is a question where a moral commandment applies, expediency is not a legitimate concern. Criminals use deception to conceal their crimes. As the outcome of Alyssa Bustamante’s trial shows, the police officer’s occasional deception during the interrogation was not even decisive, since the whole interview was dismissed as evidence and yet Bustamante was convicted.

2) Sitting close to the suspect

In normal social interactions, especially in the U.S., one would not sit so close to a stranger as the detective to the suspect here (no need to specify the case) without an intention to intimidate or even assault the stranger. Why should a detective be allowed to intimidate a suspect? Truth requires dialectical skills and the state should not tolerate other, bullying, humiliating techniques. According to proxemics, imposing a spatial distance shorter than the socially accepted distance between two interacting strangers is indeed a form of humiliation and degradation.

3) Telling the suspect to look at you in the eyes

Telling someone to look at you in the eyes, as the detective does with the suspect (no need to specify), is outrageous in normal social interactions. It is a request that, between strangers, could easily start a so-called “trivial altercation” resulting in homicide (such trivial altercations between strangers are a cause of 37% of all homicides). In other words, for a detective to talk like this is a misuse of power.

Between two strangers, the reaction of a normally constituted man to an injunction to “look at me in the eyes when I’m talking to you” is some kind of  “f*** you.” As this is not an option for a suspect interrogated by a police officer, the suspect is degraded. To be sure, between strangers, there is no such thing as asking their ID to someone and other such things either; however, police are entitled by law to make such requests, whereas to our knowledge there is no legal ground formally allowing a detective to carry out an interrogation by asking the suspect to look at him in the eyes. An interrogation can be carried out without the suspect being forced to look at people in the eyes if it is not his habit.

Law 17: Coloradans Not Wanted

English (I) and French (II).

I

Meet the Reactionaries

Texas is First US State to Adopt IHRA Definition of Antisemitism. (i24news June 16, 2021)

This comes after Amawi v. Pflugerville Independent School District (April 2019), “a case in Texas where the plaintiffs had all faced potential or real loss of employment with the State of Texas for being unwilling to sign contracts promising not to participate in boycott activities against Israel.”

The Texan District Court held that “content based laws…are presumptively unconstitutional” and that “viewpoint-based regulations impermissibly ‘license one side of a debate’ and ‘create the possibility that the [government] is seeking to handicap the expression of particular ideas.’ It further asserted that the law the State had relied on, HB 89, was unconstitutional under the First Amendment.” (Wikipedia)

Governor Greg Abbott couldn’t have his anti-BDS law stand the judicial test (it was eviscerated), so he adopts a new definition of antisemitism. So what? As far as legal value is concerned his adopted definition is nonexistent. He could have repainted the state capitol instead and that would have been exactly as relevant in terms of positive law (with the difference that it would be something useful, as buildings need new paint once in a while). Any attempt to give a positive legal value to the definition will be a major infringement on First Amendment rights, just like his anti-BDS law.

ii

As far as the American Jewish Congress’s remarks on [a social platform beside Twitter and Facebook] in a Newsweek opinion called We need to stop Marjorie Taylor Greene’s online extremism before it gets violent are concerned, the authors examine two solutions.

One –the second discussed by them– is transparency about online fundraising. Why not? Yet do the authors really believe that transparency would be of any use against what they claim is their concern, namely that online speech would incite violence? I fail to see how this would work (to be sure I only read the first two paragraphs, which were screenshot, of their paper).

Before looking at their second proposal, let us remember that under the American Constitution even speech that incites violence is protected if it is not “directed to inciting or producing imminent lawless action and likely to incite or produce such action” (Brandenburg v. Ohio 1969). In my opinion that excludes all online speech to begin with, since then the people get the message through electronic devices, mostly sitting in a room with a computer, so the imminence criterion is lacking altogether (although with smartphones things could change in the future, if for instance we could see such a thing as a mob where individuals are both absorbed in their smartphones’ content and committing violence at the same time, which would be peculiar all the same).

The authors’ second proposal is to ban the platform. They write: “There are precedents in law where exceptions to the First Amendment regarding hate speech exist. ” I have no idea what precedents they have in mind (they do not name them here, if at all) but I know that the current state of the law is Brandenburg v. Ohio, which does not support the idea of a ban. In fact, there are no currently valid precedents at all. They would have to resort to the Espionage Act, as has been done with Julian Assange, but this is not even credible. What they call for, then, is reviving precedents long fallen into disuse, in the spirit of the Sedition Act. I can see no other alternative. This is the most reactionary stuff I have read in a long time.

iii

As to the Anti Defamation League’s call to investigate [the same platform as above] “for possible criminal liability in Capitol attack,” it is preposterous. A platform cannot be held responsible for the content its users publish: this is SECTION 230 (as if people had not been talking about it at length recently!). The section “provides immunity for website platforms from third-party content”: “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” Even if some people had posted on the platform content that was “directed to inciting or producing imminent lawless action and likely to incite or produce such action” (the Brandenburg v. Ohio requirement for prosecuting speech), which must be what ADL has in mind, with the “lawless action” being the Capitol attack, Section 230 prevents the Justice Department from even considering investigating the platform. The slightest step in that direction would be a civil liberties case against the state.

*

Coloradans Not Wanted

Many Companies Want Remote Workers—Except From Colorado. After a new state law that requires employers to disclose salaries for open positions, some are advertising jobs available anywhere in the U.S. but Colorado. (Wall Street Journal, June 17, 2021)

Companies must reveal salary information in job ads if Coloradans are eligible, so they now advertise their job positions in this way: “This position may be done in NYC or Remote (but not in CO due to local CO job posting requirements” (DigitalOcean’s online post).

Yet seven states (unnamed in my source below) have laws that prohibit advertising discrimination based on “race, color, or creed”: “Jews were denied welcome at hotels, resorts, public accommodations, and schools. In 1907 a hotel in Atlantic City, New Jersey, declined accommodations to an American Jewish woman. She complained to Louis Marshall, a lawyer and president of the American Jewish Committee. Marshall drafted a law that barred the printed advertising of discrimination in public accommodations on the basis of race, color, or creed. Enacted in 1913, this statute did not require hoteliers to rent rooms to all comers but prohibited the publication and dissemination of statements that advocated discriminatory exclusion. By 1930 seven states had adopted versions of the New York statute, making group rights a nascent category [nascent or rather stillborn!] in First Amendment law.” (mtsu.edu First Amendment Encyclopedia: Group Libel [nonexistent]) This means in all other states you can advertise your business’s discriminatory choices legally.

What about the constitutionality of these laws? Here the author is quite obscure. She says: “Throughout the 1930s the laws remained untested in the courts. Marshall apparently preferred to field inquiries from resort owners about the legalities of their advertisements than to file lawsuits.” In her first sentence “throughout the 1930s” seems to be saying that the laws were tested by courts but later, otherwise why limit the talk to the thirties? However, the author says nothing about results of later constitutional challenges. The second sentence seems to be saying, correct me if I’m wrong, that there never was any lawsuit based on one of these 7 (or 8, actually, the New York state law plus seven copycats, I’m not sure how to read “By 1930 seven states had adopted versions of the New York statute,” whether that means 7 or 8 in total) and notwithstanding the fact there was not a single challenge in courts this man managed to have all such advertisements removed forever. Quite a feat indeed.

At that time commercial speech was not protected by the First Amendment, so constitutional challenges were bound to fail, the laws would have stood the test. This could explain why the hoteliers etc. did not care to go to courts to defend their advertising and instead complied with the “inquiries” fielded by said lawyer. Today it is different: commercial speech is protected speech (at least it receives partial protection, not as broad as political speech but still) so, assuming these laws are still around, challenging their constitutionality is more open-ended today.

*

American Child Labor

Conservatives would legalize child labor again if they could.

Child labor is legal in the U.S. at the date of this post.

“These regulations do not apply to agricultural labor because of outdated exemptions”: “Estimates by the Association of Farmworker Opportunity programs, based on figures gathered by the Department of Labor, suggest that there are approximately 500,000 child farmworkers in the United States. Many of these children start working as young as age 8, and 72-hour work weeks (more than 10 hours per day) are not uncommon. … Today’s farmworker children are largely migrant workers” (American Federation of Teachers, an affiliate of the AFL-CIO)

Besides, “Under the Fair Labor Standards Act (FLSA), workers under the age of 16 cannot work between 7 p.m. to 7 a.m., except during the summer. From June 1 to Labor Day, the prohibited hours are from 9 p.m. to 7 a.m. Once you’re 16, federal law no longer restricts what hours you can work.” Only the night shift is illegal for child workers.

ii

“Today’s farmworker children [estimated 500,000] are largely migrant workers.” Conservatives don’t have to legalize child labor again, they’ll keep crying about the border crisis while overworking Mexican children on their farms.

They legally work children below 14 in farms, family businesses, private homes for “minor chores,” newspaper delivery, and more sectors undisclosed in the sources I quoted.

A 14-year old is not a child according to U.S. labor law, while the International Labour Organization (ILO) has a 15-year old threshold.

While the federal minimum wage for adults is $7.25 per hour, for children it is $4.25 per hour. (See also prison inmates work, given the rates of inmates in the states: “By law, incarcerated workers do not have to be paid. Some states take this to heart. Alabama, Arkansas, Florida, Georgia, South Carolina, and Texas do not pay incarcerated workers for most regular jobs performed within the prison. Inmates in other states are not much better off, as most state prisoners earn between $0.12 and $0.40 per hour of work. Even if an inmate secures a higher-paying correctional industries job – which about 6% of people incarcerated in state prisons do – they still only earn between $0.33 and $1.41 per hour.” (Corporate Accountability Lab, Aug 2020)

American companies outsource a large part of their industrial activity to China where “About 7.74 percent of children between the ages of 10-15 are laborers.” (The Borgen Project, Aug 2019) American law prevents Americans from knowing the figures of American companies’ job outsourcing.

*

Erasure of History Forum

Who remembers the Anti-Masonic Party?

The Wikipedia page lists more than 40 Congress members, including earlier President of the United States John Quincy Adams (MA)†, 2 state governors, William Palmer (VT) and Joseph Ritner (PA), and a host of other officials such as lieutenant governors.

†John Quincy Adams belonged to the Anti-Masonic Party from 1830 to 1834, he was a member of the Congress’s House of Representatives from Massachusetts from 1831 to 1848, and President of the United States from 1825 to 1829.

II

Collectivisation : L’exemple de la santé

L’État français a un argument en béton pour rendre la vaccination contre le covid obligatoire : c’est que la sécurité sociale est collectivisée. En admettant (par hypothèse) que le vaccin est efficace, ce sont ceux qui refusent de se vacciner qui continueront de tomber malades. Ils représentent un coût pour le système collectivisé.

L’individu dont les dépenses de santé sont prises en charge par un régime collectivisé n’est pas libre de refuser un vaccin. La pandémie pourrait donc ouvrir le débat sur le démantèlement intégral de la sécurité sociale.

ii

Dans un État libéral, quand quelqu’un tombe malade, il n’attend rien de l’État. S’il est assuré, c’est auprès d’une compagnie privée, et s’il ne l’est pas (et n’a donc rien prélevé sur ses revenus entre deux dépenses de santé nécessitées par la situation), il a intérêt à avoir des économies ou bien il faut qu’il s’endette (comme quand il a acheté une voiture et un écran plasma).

Dès lors, on ne comprendrait pas qu’il y ait des obligations vaccinales dans un tel pays, les dépenses de santé étant privées. En effet, quand les dépenses de santé sont privées, les choix sont forcément individuels et on ne voit pas de quel droit l’État imposerait le vaccin puisque ceux qui le refusent en seront pour leurs seuls frais s’ils tombent malades tandis que ceux qui sont vaccinés sont immunisés par hypothèse. Si mon voisin est vacciné, il ne peut pas moralement me demander de l’être aussi puisqu’il ne risque plus rien et que mon refus n’emporte aucune conséquence pour lui.

L’obligation vaccinale est un pur produit de l’étatisation. Je souhaite que l’on reconsidère de manière très approfondie le principe même de la sécurité sociale au regard de cette collectivisation rampante.

(Je ne parle pas spécifiquement ici des vaccins anti-covid, dont certains dénoncent la supposée nocivité, mais de la question de l’obligation vaccinale en général, et ma conclusion est que, même en admettant que tous les vaccins sont toujours efficaces, l’obligation ne peut se justifier que dans des systèmes étatisés de sécurité sociale collectivisée.)

iii

Objection : Les caisses primaires d’assurance maladie (CPAM) ne sont pas des organismes d’État.

Réponse : Les CPAM remplissent « une mission de service public définie par l’État, telle que par exemple les services d’immatriculation et d’affiliation. » Ce qui est défini par l’État est étatisé.

O. Le droit des contrats est défini par l’État. Donc, selon cette logique, les contrats entre personnes privées seraient étatisés?

R. Le droit des contrats repose aussi sur la coutume commerciale et la définition de mon interlocuteur (« le droit des contrats est défini par l’État ») est en soi de l’étatisme pur.

« Le projet de loi de financement de la Sécurité sociale (LFSS) est déposé par le gouvernement au plus tard le 15 octobre à l’Assemblée nationale. » La question ici porte sur les raisons qui font qu’un régime « paritaire » a son centre opérationnel dans un texte de loi (la LFSS annuelle). La réponse ne peut être que la suivante : c’est parce que le régime est étatisé.

D’ailleurs, la Caisse nationale qui chapeaute les CPAM est un établissement public administratif (« définissant au niveau national la politique de l’assurance maladie en France »).

Mais je pourrais en réalité me passer d’introduire la moindre considération sur la LFSS. La comparaison de mon interlocuteur avec le droit des contrats est tout simplement fautive car ce droit a bien des origines tandis qu’une mission de service public est entièrement définie par l’État.

Que les CPAM aient une certaine latitude de gestion va de soi, de même qu’un particulier chasseur mandaté par la préfecture pour exterminer des renards et autres « nuisibles » (mission de service public) s’y prend comme bon lui semble (dans le cadre des lois). Cela ne change rien à la question.

*

Un délit réservé aux Arabes et aux Noirs

Le délit d’incitation à la consommation de stupéfiants continue d’être poursuivi et condamné en justice. Mais seulement pour les rappeurs (Mister You, affaire de Villeurbanne 2020, affaire de Grenoble 2020, etc).

On pensait que ça n’existait plus, au moins depuis le non-lieu dans les années 90 pour le groupe (blanc) Billy Ze Kick et les Gamins en Folie, dénoncé pour sa chanson Mangez-moi ! (2e place du Top 50, explicitement sur les champignons hallucinogènes : « la chanson du psylo »). Mais non.

Montrez-moi un seul Blanc puni de ce crime ! –

Inspiré par l’achat du recueil Déplacements Dégagements du grand poète Henri Michaux, dont la présentation se lit : « Ses livres, proches du surréalisme, et cependant tout à fait singuliers, sont des poèmes, des descriptions de mondes imaginaires, des inventaires de rêves, une exploration des infinis créés par les substances hallucinogènes » (Présentation anonyme, Collection L’Imaginaire/Gallimard).

Qui d’entre nous, marchant au crépuscule sur la Colline du Crack et ressentant la mélancolie de sa finitude humaine, peut dire qu’il n’a jamais rêvé d’explorer les infinis ?

ii

La référence à la Colline du Crack doit être comprise à la lumière des précédents billets, où j’en ai déjà parlé (Law 9 et suivantes, en anglais).

Alors que la justice condamne l’incitation à la consommation, condamne des artistes, devant le problème de la Colline du Crack à Stalingrad (Paris 19), les autorités ne trouvent rien de mieux que de distribuer des pipes à crack et de payer des chambres d’hôtel.

iii

Un interlocuteur me transmet un jugement de la Cour d’appel de Niort.

À supposer que ce Nicolas R., condamné pour avoir mis à la vente à Niort des tee-shirts Cannabis Legalize It (c’est-à-dire un message reprenant l’un des points du programme d’au moins un parti politique représenté à l’Assemblée nationale et dans divers exécutifs locaux, cette condamnation signifiant en réalité qu’il n’est pas permis de demander de changer la loi, car c’est le sens des mots Legalize It, or aucune loi ne peut comporter une clause prévoyant l’impossibilité de son abrogation et par conséquent le jugement doit être cassé car c’est de l’instrumentalisation politique de la justice), soit Blanc, mon interlocuteur apporterait un démenti au titre de cette section. – Je répondrais que c’est l’exception qui confirme la règle. (Il faudrait demander à l’expert judiciaire Gabriel Matzneff ce qu’il en pense. Mais Nicolas R. ayant en fait été relaxé en appel, mon titre reste sans démenti pour ce qui est des condamnations.)

Mon interlocuteur évoquant par la même occasion le climat actuel, il m’offre l’opportunité d’évoquer une certaine affaire, pour un autre abus de procédure, bien que ce climat soit précisément opposé à toute forme d’expression telle que celle que je vais à présent oser.

Il s’agit de la condamnation d’un rappeur noir, Maka, à 15 mois de prison pour apologie de terrorisme, pour une chanson appelée Samuel Paty.

Le journal La Marne du 27 nov. 2020 (x) indique que la chanson « cherche selon eux [selon les juges] à ‘surfer sur la vague pour faire du buzz’ ». Il est donc totalement incompréhensible que cette personne soit condamnée pour apologie de terrorisme, les juges faisant eux-mêmes remarquer que la finalité de la chanson est tout autre, à savoir « faire du buzz ». L’incohérence est redoutable.

iv

Or demander de légaliser le cannabis, ce qui est forcément légal comme je l’ai souligné et comme la Cour d’appel l’a reconnu (la condamnation en première instance reste très choquante, tout comme l’étaient les poursuites), est une façon indirecte de promouvoir sa consommation. Car il n’y a eu que l’Église nationale danoise pour promouvoir en 1969 la légalisation de la pornographie (premier pays au monde) au prétexte que c’est parce qu’elle était interdite qu’elle attirait les gens et que donc ceux qui étaient contre la pornographie devaient demander sa légalisation.

Ainsi, la promotion de la légalisation ne pouvant s’exclure d’une forme de promotion de la consommation, la loi est d’une abominable stupidité car elle interdit et autorise en même temps la même chose. À bas toutes ces lois.

*

Au temps des manifestations #GiletsJaunes, le gouvernement cherchait à lancer des débats sur qui est journaliste. Je propose la définition suivante, d’une imparable logique interne :

Est journaliste toute personne condamnée en droit de la presse.

*

Histoire d’un mariole

Je reproche à Victor Hugo d’avoir écrit Napoléon-le-Petit. Je veux dire ce titre qui, en appelant Napoléon III le petit, laisse entendre que Napoléon Ier était grand. Non.

Il est certain que vous n’avez jamais entendu parler des guerres américano-barbaresques. Elles furent au nombre de deux : la première de 1801 à 1805 et la seconde, également appelée guerre américano-algérienne, en 1815. Dans la première les États-Unis d’Amérique et la Suède et dans la seconde les États-Unis seuls combattirent les États barbaresques d’Afrique du Nord (nos futures ex-colonies).

Les États-Unis d’Amérique et la Suède luttaient ainsi contre la piraterie en Méditerranée pendant que l’autre fou, qui avait causé la perte de notre flotte à Aboukir (1798), courait dans tous les sens en Europe et cherchait à faire un « blocus continental » pour empêcher les navires anglais d’aborder sur le continent.

Les États-Unis d’Amérique (!) – et la Suède (!) – devaient lutter contre des pirates maghrébins en Méditerranée, la mer qui borde nos côtes (!), pendant que nous avions un EMPIRE.

*

Si demain la France et les États-Unis se faisaient la guerre, je pense que l’on pourrait dire à l’avance en combien de minutes l’armée française serait anéantie. C’est pareil pour le droit. #FirstAmendment