Tagged: imminent lawless action

Lessons in Law 6

Dec 2020.

Bolshevik Control

I must stay on the court in order to prevent the Bolsheviki from getting control.” Chief Justice William Howard Taft, 1929

It must have been no small peril as the Chief Justice could utter such words.

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On the other hand there are those who trivialize the matter using the phrase “red scare,” blaming people such as Chief Justice Taft for irrationality.

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The record of Communist parties’ participation in coalition governments in European countries (like France) remains unscrutinized. What you’ll find is their consistent voting for the curtailment of fundamental freedoms.

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In June 1919 the Overman Committee of the U.S. Senate concluded that Communism in Russia was “a reign of terror unparalleled in the history of modern civilization.

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Since 2011, the United States National Aeronautics and Space Administration (NASA) has excluded the Chinese government and China-affiliated organisations from its activities, including using funds to host Chinese visitors at NASA facilities.” (Wkpd: China exclusion policy of NASA)

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In 1943 the Chinese Exclusion Repeal Act of 1943, or Magnuson Act, repealed the 1882 Chinese Exclusion Act, allowing for an annual quota of 105 Chinese immigrants, at the same time maintaining the ban against ownership of property and businesses by ethnic Chinese.

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For those who think hate speech is unprotected, please read Snyder v. Phelps, 562 U.S. 443 (2011). The Supreme Court held that the WBC [Westboro Baptist Church]’s hateful picketing was protected speech. And Wikipedia correctly cites me as the source of the protection. ([a Twitter user named] The First Amendment)

“Hate speech” is a name found by those willing to shield group lobbying from people’s scrutiny. To those who’d retort that using the n-word and other such words isn’t “scrutinizing group lobbying,” I have this to say: “One man’s vulgarity is another’s lyric.” (Justice John Marshall Harlan)

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Les émissions littéraires et les écrivains qui se rendent sur ces plateaux sont à la littérature ce que la télé-réalité est à la réalité : de la « télé-littérature ».

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En France nous avons eu des ministres communistes et nous avons toujours des parlementaires communistes mais demander la même liberté d’expression qu’aux États-Unis est impensable.

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Invasive Moderation (Part 3)
The Corporate Frankenstein

For Part 1 read here, for Part 2 here.

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Twitter is going wild with their flags, trying hard to suppress even the truth. Just shows how dangerous they are, purposely stifling free speech. Very dangerous for our Country. Does Congress know that this is how Communism starts? Cancel Culture at its worst. (Pres. Donald Trump, Dec 24, 2020)

Twitter’s flags are Twitter’s free speech. But sure go with “free speech is how communism starts” and see how far that gets you. (The First Amendment)

As a few tech companies today have the power to stifle the “free flow of information and ideas” that the First Amendment’s aim is to ensure, to do nothing about it is to make fun of the Amendment rather than to pay it due respect.

To compare Twitter’s policy with an individual’s speech is bogus. A company follows a predefined corporate purpose. At best its speech should be construed as “commercial speech,” with limited protection only.

(Nota Bene: As in the next tweets I speak of the political speech of corporations, it should be clear to you that the statement here is about what corporations are in essentia according to me, like the “End Corporate Personhood!” message on the placard there [Middle Tennessee State University’s First Amendment Encyclopedia: Corporate Speech].)

Commercial speech has only limited protection: “For commercial speech to come within that provision, it at least must concern lawful activity and not be misleading.” (Central Hudson Central Hudson Gas & Electric Corp. v. Public Service Commission [1980]). And in the earlier state of affairs commercial speech wasn’t protected by the First Amendment at all: see Valentine v. Chrestensen (1942). – An individual’s speech isn’t subject to these conditions.

As to corporations’ so-called “political speech,” since Citizens United v. Federal Election Commission (2010) it gets broad protection but the decision deals with “political speech in the form of contributions and expenditures on behalf of candidates and political issues,” not in the form of internet moderation affecting the free flow of information and ideas. Twitter Inc. has the First Amendment right to contribute financially to the campaign trail of a candidate, that’s all, there’s nothing about First Amendment protection for flagging other candidates’ tweets in the bargain.

Next time I’ll comment on Amalgamated Food Employees Union Local 590 v. Logan Valley Plaza (1968): “Logan dealt with right to use private property as ‘equivalent’ of public space.

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A corporation isn’t the government. The First Am. is applicable against the government or private entities acting under color of state law ONLY. And Twitter ain’t that. (Ava)

As the First Amendment cannot ensure the free flow of information and ideas against private encroachments, a statute is needed. I am arguing that that statute will be upheld against the private companies’ claim that it violates their 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 no source of absolute discretionary power.

The Supreme Court of the United States has to balance on one hand the free marketplace of ideas, which a statute will maintain, and on the other hand the rights of trustlike corporations, which a statute will regulate for the good of the commonwealth just as numerous statutes do already.

Corporate speech is twofold: commercial and political. Conceding that corporations’ political speech is equally protected (since Citizens United), that’s not the case of their commercial speech. This alone enables one to say that corporations have less First Amendment rights than individuals. => 1>.5+.2

But wait… how can you argue with… MATHEMATICS!??!?! (Allen)

Algebra is as good a form of logical thinking as another.

At least according to Bertrand Russell.

But a true algebraic formula here would be: 1>.5+x 0<x<.5 or 1>1/2+x 0<x<1/2

Given different >levels< of scrutiny by courts, one could easily translate the whole thing into algebraic formulae.

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Because of Citizens United, courts will apply strict scrutiny on the bill I envision (as moderation by internet platforms such as Twitter would be deemed corporate political rather than commercial speech, and so receive full rather than limited protection). Precisely! I’m arguing that in any case the compelling interest called for by strict scrutiny exists, as it is about guaranteeing the free flow of information and ideas.

The First Amendment is a means to an end: the free flow. When people complain about private platforms not respecting the First Amendment, technically they’re wrong –correct– because they mistake the means for the end but in fact they are complaining about impediments to the flow.

Those who complain about platform moderation invoking the First Amendment mistake the means for the end but those who deny them the right to complain make the same mistake. It’s 1A for the sake of it; that is called fetish worship.

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Commercial speech is speech that has a commercial purpose. Even an individual can produce commercial speech, and if so, is also subject to government regulations on commercial speech. i.e. commercial speech != [different from] speech by corporations. (Bob)

The difference is that there’s no corporation without commercial speech, without a part of it devoted to that sort of speech that was not even considered to be speech until the 1970s.

Think about it : “corporate-political-speech.” Where until Virginia State Pharmacy Board v. Virginia Citizens Consumer Council (1976) corporations’ commercial speech wasn’t even considered to be speech at all!

The McConnell decision [McConnell v. Federal Election Commission (2003)] largely rested on Austin v. Michigan Chamber of Commerce (1990), which permitted bans on corporate speech.” (From comment on Citizens United v. Federal Election Commission [2010] in John R. Vile, Essential Supreme Court Decisions, 2018).

For 20 years corporate political speech was no speech at all in the United States.

The Austin decision identified ‘an antidistortion interest’ in limiting political speech based on an attempt to prevent the effects of accumulated wealth.” That was the rationale.

Justice Stevens’s dissent on Citizens United is brilliant. Quotes (J. R. Vile 2018):

Restrictions on corporate expenditures date back to the Tillman Act of 1907. … The decision in Austin has not shown itself to be as flawed as the majority suggests.

The Court has long approved ‘the authority of legislatures to enact viewpoint-neutral regulations based on content and identity.’

The Framers had a much narrower view of the rights of corporations than the majority, and the original understanding has been substantiated by the history of regulation in this area.

The Constitution does, in fact, permit numerous ‘restrictions on the speech of some in order to prevent a few from drowning out the many.

The laws at issue are legitimate measures to prevent corruption and to protect shareholders from expenditures they do not support.

They [corporations] are not themselves members of ‘We the People’ by whom and for whom our Constitution was established.

Just like about 40 years ago commercial speech emerged as speech, 30 years later, that is ten years ago, corporate political speech became speech. For what purposes have these sinister Frankenstein creatures been invented?

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Section 230

The (1) of Section 230 seems intended to prevent its (2), it protects providers from liability for content on their platforms, so providers have no reason to remove content –if they’re for free speech– as nothing can happen to them for content, 230(1) speaking.

I grant you immunity for any sort of content (1) and, whereas you should be content with that, I also grant you immunity for (bona fide) content removal (2). It’s called to have your cake and eat it too. Completely unbalanced. As they’re free to remove content, why can’t I hold them responsible for content they don’t remove?

You’re perfectly free to sue the person posting the offending tweet. (J_Rex)

Wouldn’t suing an anonymous user depend on Twitter’s will to disclose information about the user?

If you don’t like Twitter’s or Facebook’s rules you are perfectly free to create your own platform with whatever idiosyncratic rules you want. In fact, there are such platforms, notably Parler. (J_Rex)

I’m free to leave but at a cost (among other things in terms of audience) and Twitter, which, as one of the first movers, has an undue trustlike position on the market due to its millions of users, should partake in the cost. If such laissez-faire views were accepted, Twitter could staff its moderation office with lunatics and that would be just as good. It can and perhaps it does.

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Advocacy of Illegal Conduct Is Lawful

In a previous lesson I told Diane, who had said “no speech is protected if it incites violence,” that she was wrong. She was wrong, but even competent persons make the same error: “These cases illustrate that the First Amendment applies to all groups so long as their intent is not to intimidate or incite violence.” (First Amendment Encyclopedia: American Nazi Party and Related Groups x)

When such conclusion isn’t from lack of knowledge, it’s lack of logical thinking. “Incite violence” isn’t the same as “incite imminent lawless action” (including violence) and therefore it is lawful to incite non-imminent violence.

In NAACP v. Claiborne Hardware Co. (1982), the Supreme Court ruled that an economic boycott constitutes a form of constitutionally protected expression akin to traditional means of communication, such as speaking and writing, even if violence is threatened as a means of achieving group goals.” (First Amendment Encyclopedia : Boycotts)

I think the courts have held (properly) that there is a tight rope to be walked between allowing someone who is simply pissed off to vent their anger and someone who is actually intending harm. (Diane)

I’m sorry to disagree again. People who “threaten violence,” like in the Clairborne decision, “actually intend harm” (at least conditionally: if… then) and yet it is protected speech.

But Diane is probably thinking of the “true threat” doctrine. So I add that except for the unusual 2003 decision on cross burning that can be a true threat, generally speaking in case law a threat has to be kind of very clear, present, imminent, lawless and all to be (a bit) “true.”

If the courts want to be consistent with Virginia v. Black (2003) on cross burning and the vague notion of intimidation, they will have to smash down the very doctrine of true threat, even Brandenburg v. Ohio (on lawless imminent action) and the whole edifice of First Amendment law. The Supreme Court made a mistake.

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The true meaning of the American First Amendement, its truly distinctive nature lie in the words “Advocacy of illegal conduct.” This distinctly American right is what makes all other peoples beside conscious Americans look like phantoms or trembling mice keeping close to the wall.

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In Cleveland v. United States (1946), “Justice Francis W. Murphy dissented, largely based on anthropological analysis, arguing that polygamy differed from promiscuity.” #Mormon

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Porn often promotes “plots” based on racism, incest, rape, sexism, or violence, and then says these themes are okay in porn because they’re “fantasy.” Why are we sexualizing scenarios that are never acceptable in reality? (FTND: Fight the New Drug)

On a First Amendment Encyclopedia I read of criticism of porn films… in the sense of literary criticism. So, as you talk of “plots,” that alone could be construed as “redeeming value” (which protects some explicit material from prosecution for obscenity). As there’s a plot, that’s a work of the mind, a work of art.

But let me ask, then. What if someone cuts up the sex scenes from the film and uploads them piecemeal? The public will inevitably miss the dialogues, the acting, the story, the plot, all the redeeming value, they will only be… watching porn.

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On a marketplace there must be antitrust laws. What are the antitrust laws on the “marketplace of ideas”?

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The marketplace of ideas is about speech and counterspeech but some are defining it as speech and speech-canceling.

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.