Tagged: right to bear arms

Law 40 Wawkeism

Sep 2023-Mar 2024

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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.

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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.

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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.

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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.

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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.

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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.

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“[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.

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“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.

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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.

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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.

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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.

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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.

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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.

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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.

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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 32: Hate-speech-law countries v. free-speech countries

EN-FR

Hate speech laws in so-called “free-speech” countries

How free speech is contrived to allow governments
to discriminate at will in hate-speech-law countries

Two examples: Sweden and India, with discussion of recent incidents

1/ Quran burning and incitement against religion in Sweden
2/ Saffron bikini and defilement of religion in India

1/ Quran burning and incitement against religion in Sweden

“Turkish protesters have expressed outrage in Istanbul after a far-right politician burned a Quran in front of the Turkish embassy in Stockholm.” (Al Jazeera English, YouTube, Jan 22)

As there is no freedom of speech in Europe, the request to ban and punish this kind of act/speech, Quran burning, is a legitimate demand of nondiscrimination. Swedish law criminalizes hate speech out of consideration for communitarian feelings. Therefore, the authorities’ failure to prosecute such acts is contemptuous: not attending to this community’s feelings while they claim to attend to communitarian feelings sends the message that this community is not worth attending to, according to Swedish authorities. They simply do not want this community to be protected by Sweden’s hate speech laws, and this is blatant discrimination.

My message to Swedish authorities: You are contemptible. What are your hate speech laws for? Stop discriminating against Muslims, and prosecute Quran burning as hate speech.

Anonymous A: Where is the Swedish law that bans freedom of speech out of consideration of a religion’s belief?

It is where everybody can find it. “Hets mot folkgrupp blev olagligt 1949. På den tiden var det enbart härstamning och trosbekännelse som var grunder för hets mot folkgrupp. Detta ändrades 1970 till ras, hudfärg, nationellt eller etniskt ursprung eller trosbekännelse. År 2002 tillkom sexuell läggning och år 2019 könsöverskridande identitet eller uttryck.” (Wikipedia: Hets mot folkgrupp) The important word for the asked question is “trosbekännelse,” which means religious belief. Translation: “Incitement against groups became illegal [in Sweden] in 1949. At that time, descent and creed [trosbekännelse = religious belief] were the only grounds for incitement against groups. This was changed in 1970 to race, skin color, national or ethnic origin, or creed [again]. In 2002 sexual orientation was added and in 2019 gender identity or expression.”

Anonymous B: Who are you to dictate how I dispose of my property?

You’ll have to ask this question to the Swedish legislator. – The technical answer, however, is that you can’t criminally dispose of your property. If you dispose of your property by making a hate speech of it, you will be prosecuted for hate speech by Swedish authorities.

B: So what forms of disposal are not hate speech? Presumably, burning is ruled out.

All disposal is not in the form of calling people’s attention. – If you ask me how they dispose of their old Quran copies in Muslim countries, I don’t know. All I know is that, if a person disposes of a Quran copy in Sweden and one finds it in the owner’s trash can, or if he burns it in his backyard, this is not hate speech. But what happened in front of the embassy is blatant hate speech (against a group based on its members’ creed or religious belief) and the negligence of authorities to act accordingly proves they discriminate against Muslims.

(ii)

The answer from the Swedish authorities so far has been, to sum it up: “The act was very insensitive, but we are a free-speech country.” This is not true. Sweden is a hate-speech-law country: “Incitement against groups became illegal in 1949. At that time, descent and creed were the only grounds for incitement against groups. This was changed in 1970 to race, skin color, national or ethnic origin, or creed. In 2002 sexual orientation was added and in 2019 gender identity or expression.” The Swedish authorities are bound by their legislation to prosecute the wrongdoer; their obdurate negligence to do it shows that, as a principle, they refuse to comply with their hate speech legislation when the targeted group are Muslims. They thus discriminate against Muslims. On the one hand, they tell their national communities, their “groups” (folkgrupp), that Sweden protects them from hate speech by criminalizing hate speech; on the other hand, they claim they guarantee freedom of speech when one of these groups in particular is wronged by hate speech. You don’t need to be a Muslim to feel contempt for such malfeasance.

2/ Saffron bikini and defilement of religion in India

For a better understanding of the following, read “Saffron bikini v. national flag bikini” in Law 29.

Film Pathaan, with a saffron bikini dancing scene, was released this month amid protests. As the authorities disregard the outrage over saffron bikini, they should apologize to and compensate all people who have been convicted for tricolor (national flag) bikinis and other tricolor trappings, and I’m told they are not few. You’ll perhaps say in reply that India is a secular country and the authorities have a mandate to ensure respect for the tricolor symbol, not for the saffron symbol, which is religious. There exist stringent laws about incitement and respect for community feelings in India: Why the negligence? Does secularism mean that a secular, atheistic elite will be granted the privilege to offend religious feelings, while the people is gagged?

No matter how Hindutva the government is, outrage over saffron bikinis is disregarded, the problem does not exist for them. They will keep focusing on hunting tricolor bikinis and other tricolor trappings. The numerous tricolor precedents, the stringent provisions of incitement laws, constitutional protection of communities’ feelings, are of no avail to a Hindutva government against the privileged few who bought a never-ending license to outrage religious feelings.

What about sadhus who wear a single saffron loincloth?

The comparison is misguided. Although there exist laws against nudity in India, they do not apply to sadhus, because a sadhu’s nudity is not the same as a paid actress’s nudity, the aim of which is to attract or arouse prurient interest. By the same token, a sadhu wearing saffron is not the same as an actress whose body is used as an object for making money through prurient interest, adding to indecency an insult to religion through saffron symbolism.

(ii)

Their apathy will remain a stain on Indian authorities. If you think a tricolor bikini is an insult, and Indian law seems to think it is (see Gehna Vashisht and other cases), then a saffron bikini is blatant hate speech (Sections 153 and 295 of the Indian penal code). Negligence to act accordingly on the part of authorities is discriminatory remiss.

Section 295: “Whoever destroys, damages or defiles any place of worship, or any object held sacred by any class of persons with the intention of thereby insulting the religion of any class of persons or with the knowledge that any class of persons is likely to consider such destruction, damage or defilement as an insult to their religion, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.” (Emphases ours.)

Let us examine what a saffron bikini is, according to the wording of the law. We are talking about defilement, as sacredness is purposefully associated with pruriency in the form of scant clothing and lascivious dancing. The object is not a bikini in itself but a bikini purposefully made saffron. We do not have to prove that the wrongdoing is purposeful, as Hindus’ reverential feelings for saffron are well-known. Rather it is the accused who must prove they did not do the wrongdoing on purpose; they must provide convincing evidence that none of them had realized that the saffron bikini could upset Hindus’ feelings. In the words of the law, they must prove that they had no “knowledge that any class of persons [was] likely to consider such defilement as an insult to their religion,” and good luck with that: were these people brought before a court, I don’t think they could provide the least convincing evidence of ingenuity – unless, perhaps, they wriggled on the ground like worms and cried –, because where in the world is saffron known for its religious symbolism if not in India? Instead of being removed behind bars for two years, these people are going scot-free, protected by a Hindutva BJP-led coalition government.

“A battle for freedom of speech”? I didn’t see journalists battle for free speech when a FIR (first information report) was filed by police against half a dozen people dancing with Aurangzeb’s poster in Maharashtra, a few days ago (see Law 31: Aurangzeb’s Ghost). Sections 95, 153, 295 etc. of the ICP are the law. Journalists do not oppose it, they only oppose its application to defilement of religion by Bollywood.

(iii)

At the same time that the Indian union government refuses to listen to its grassroots militants on Pathaan, and asks them to stop the stir, it bans a BBC documentary about the 2002 Gujarat riots in which hundreds of Muslims were murdered by mobs. The ban is either legal or illegal. If it is illegal, there is no question of opportunity. If it is legal, there is no question of opportunity either, because the executive power is not allowed to pick up laws it will carry out from laws it will not carry out; the government must execute the whole legislation (hence its name: executive). Those who discuss the ban from the opportunity angle are wrong. If they disagree with the ban, they should, assuming the ban is lawful or constitutional, voice criticism against the law that allows such a ban, that is, they should ask to remove legislation that allows the authorities to ban this kind of speech. Let me know if they do. I assume they all discuss the opportunity and not the legality issue, because they are the opposition that wants to be the majority, and as the new majority they will want: 1) discretionary, not just executive power, 2) to ban criticism. They are all of a kind and form the political cartel.

I disagree with the idea that the executive should be granted even a minimal discretionary power. All decisions based on opportunity are discriminatory, by preventing expected benefits or sanctions of the law. Even though the idea is as commonplace as the practice, neither the idea nor the practice is constitutional, and they cannot be, as this would mean actual suspension of the separation of powers, and of checks and balances.

Concluding remarks

Despite their commonalities, both cases illustrate two different situations. In the Swedish case, one religious minority is discriminated against by the authorities. In the Indian case, the Hindu majority’s right to be protected by the law is disregarded by the authorities, which shield one sector of the society, namely Bollywood, from the legislation; in other words, against the religious majority, the Indian authorities discriminate in favor of this sector by elevating it above hate speech laws. Both actions are extralegal, namely, given the constitutional characterization of the executive power, illegal and unconstitutional. Through the practice, the will of the legislator is overlooked and the role of the judiciary undermined. The practice is generally defended on the ground that this overlook is needed and will occur only in situations where the generality of the law presents flaws that put the state at risk. The only possible arbitrator for this is the people, and that supposes, therefore, that the people has an effective right to insurrection, which, absent a constitutional right to bear arms, is nonexistent. Otherwise, the practice should be set guidelines in the form of constitutional measures about the state of emergency. In the two cases discussed, the authorities are abusing their discretionary power without redeeming circumstances.

*

“[Female ex-BJP leader] Gets Gun License Citing ‘Life Threats’ Over Prophet Remarks.” (India Today, YouTube)

How long does it take to get a license? The authorities must verify the claim and that surely takes time. She seems to have had her license in no time, but is it the case for all Indian citizens? One day, you’ll hear that a man applied for a license because he was threatened, the claim was investigated by authorities, with a lot of red tape, and meantime the man was killed. Mark my words, you’ll hear about something like that, or I don’t know bureaucracy. An unconditional right to carry guns is the only correct alternative to a ban.

*

About current massive layoffs in big tech companies (Google, Meta, Twitter…). The revenue of a good deal of these so-called big tech companies is from advertising. Massive layoffs in big tech tell you manufacturing companies cut down their advertising spending because they are in poor condition. Badly impacted manufacturing and other companies first respond by cutting down on advertising. Big tech companies then have no other choice than cutting down on their workforce, because advertising is their main revenue. What massive layoffs in big tech tell you is the incoming massive layoffs in all other sectors, as advertising revenue dependent big tech companies are the first to cut down on the workforce.

*

“10 Palestinians Killed In ‘Deadliest’ Israel Raids in Years.” (NDTV, YouTube, Jan 27)

This headline is foolish. The raid is “deadliest in years” because of 10 casualties and one month ago 8, two months ago 9, three months ago 9 again, four months ago 6, and so on; something like that. About 200 Palestinians were killed in Israeli raids in 2022 alone. (212 according to the Palestinian Health Ministry.)

*

“Iranian drones program’s success and what are the lessons for India.” (The Print, YouTube, Jan 27)

Given the scathing indictment regarding Indian national production (“promising the moon and failing to deliver,” etc.), one should not disregard the possibility of corruption of national authorities by foreign suppliers. If decision-makers are biased toward foreign supply through corruption money, India will never develop serious programs of her own. At this stage, you may well ask the question.

Ironically, an excuse from the Indian side is that, in Iran, things are under control of the Guardians of the Revolution: “It is easier there because everything comes under the control of the Islamic revolutionary guard corps,” says a “source in Indian defense establishment.” Well, yes, the Guardians probably better enforce the country’s own anti-corruption laws, so the excuse almost sounds like an admission, or veiled whistleblowing.

*

FR

La guerre par procuration expliquée par la France

Le texte suivant complète notre essai « Casus belli : Réflexions sur la guerre en Ukraine » de mai 2022 (ici).

Un article en ligne du 5 mars 2022 du Club des juristes, « La fourniture d’armes à l’Ukraine : quel cadre en droit international ? » (ici, auteur : E. Castellarin), présente le dispositif juridique utilisé par les nations de l’OTAN pour légitimer leur action de fourniture d’armes à l’Ukraine contre la Russie. Cet article appelle plusieurs remarques.

La première est que ce cadre est purement multilatéral et que le raisonnement bilatéral que j’emploie dans mon essai semble désormais exclu du champ de la pensée ; à savoir, les accords préventifs bilatéraux de défense, dont l’idée brille par son absence dans cet article, n’entrent apparemment plus dans le raisonnement des États européens, de sorte que mon argument selon lequel les États d’Europe de l’Ouest auraient pu offrir à l’Ukraine la garantie d’une intervention armée en cas d’agression russe, doit passer pour une bizarrerie désuète aux yeux des juristes avertis. Cela les regarde. Mais quid des États-Unis ? Ces derniers n’offrent-ils pas leur bouclier militaire à plusieurs pays, dont l’Arabie Saoudite (politique « oil-for-security » depuis 1945) ? Qu’est-ce qui les empêchait alors d’offrir le même bouclier à l’Ukraine, par exemple après l’annexion de la Crimée par la Russie ? Il semblerait que ce puisse être en partie les dispositions du droit international elles-mêmes, dans la mesure où celles-ci peuvent désormais permettre à des États de conduire une « guerre par procuration » (proxy war) sans se voir pour autant qualifiés ipso facto de parties au conflit. Examinons les différents dispositifs juridiques présentés par l’article.

« Dans l’affaire relative aux activités militaires et paramilitaires au Nicaragua, la Cour internationale de justice a été confrontée à la fourniture d’armes par les États-Unis aux contras, un groupe rebelle actif au Nicaragua. Elle a exclu que la fourniture d’armes puisse être qualifiée d’agression armée, mais elle a affirmé qu’on peut y voir une menace ou un emploi de la force (§ 195). » Ça ne commence pas très bien pour l’OTAN, du côté de la CIJ. Le § 195 de la décision de la Cour, de 1986, pourrait en effet servir à la Russie de fondement juridique à l’invocation d’un casus belli : « menace ou emploi de la force ». (Le terme même de casus belli est sans doute devenu tout aussi désuet que les contrats bilatéraux de défense territoriale évoqués dans notre précédent paragraphe, vu que cette notion simple est à présent décomposée en agression armée, d’une part, et menace ou emploi de la force, d’autre part.)

Notre juriste considère cependant que la décision de la CIJ est inapplicable au cas de l’Ukraine : « En réalité, l’analyse de la CIJ n’est pas applicable au conflit armé international en cours en Ukraine. L’armée ukrainienne a le plein contrôle, ponctuel et global, de ses actions, si bien qu’on ne peut pas analyser la fourniture d’armes un emploi indirect de la force par les États occidentaux contre la Russie. » Voire ! Il faudrait tout d’abord s’assurer que la CIJ a bel et bien prétendu que « le plein contrôle, ponctuel et global, de ses actions » par une armée excluait a priori un emploi indirect de la force par ceux qui lui fournissent des armes. Certes, l’armée ukrainienne est différente d’une organisation comme celle des contras au Nicaragua, et le conflit lui-même est différent. Mais nous ne voyons pas ce que veut dire cette réserve émise par l’auteur : en quoi les contras n’avaient-ils pas eux aussi « le plein contrôle, ponctuel et global, de [leurs] actions » ? Que signifie cette formule alambiquée ? Un tel embrouillamini peut-il se trouver dans une décision de justice internationale ? Nous en doutons. Nous mènerons cette recherche et y reviendrons. Pour le moment, nous considérons que c’est là une simple pirouette, une argutie sans queue ni tête. L’armée ukrainienne ne se distingue pas des contras sous l’angle obscur ici présenté, et, à défaut de plus ample explication, nous considérons donc que la décision de la CIJ s’applique au présent conflit. Poursuivons.

« Du point de vue du droit coutumier des conflits armés, la fourniture d’armes est incompatible avec le statut de neutralité » Cela ne continue guère mieux pour l’OTAN, du point de vue du droit international coutumier. Les États fournissant des armes à l’Ukraine ne sont pas neutres. Mais sont-ils pour autant, comme un raisonnement fondé sur le principe logique du tiers exclu pourrait le laisser penser, des parties au conflit ? La réponse du droit international est, selon notre juriste, négative : « Cependant, cela signifie simplement que les États qui fournissent des armes ne peuvent pas se prévaloir des droits des États neutres, par exemple celui d’obtenir la réparation d’éventuels dommages collatéraux subis en raison d’un bombardement sur le territoire d’un État partie au conflit. En revanche, la perte du statut d’États neutres au conflit en Ukraine ne signifie pas que ces États sont devenus parties au conflit. » Notre juriste croit donc qu’il existe, relativement « au conflit en Ukraine », des États ni neutres ni parties au conflit. « Cette situation, » de partie au conflit, « qui impliquerait notamment le droit de la Russie de cibler les forces armées de ces États, ne se produirait que si celles-ci prenaient directement part aux hostilités ». Les États de l’OTAN sont donc sortis de leur neutralité mais, comme ils ne prennent pas directement part aux hostilités, ils ne sont pas non plus des parties au conflit. Cela confirme l’analyse russe de la guerre par procuration menée par ces États. En effet, si ces États ne faisaient pas la guerre, ils seraient neutres, or ils ne sont pas neutres, et s’ils prenaient directement part aux opérations, ils seraient parties au conflit, or ils ne le sont pas non plus : ils font donc la guerre par procuration (proxy war). L’analyse russe est entièrement conforme à ces éléments juridiques.

La suite de l’article tend à montrer que ce comportement est « internationalement licite ». Tout d’abord, le Traité sur le commerce des armes n’est prétendument pas violé, car les États n’ont pas connaissance, au moment de fournir ses armes, qu’elles « pourraient servir à commettre » un génocide, des crimes contre l’humanité ou des crimes de guerre. Cette clause du traité est cependant suffisamment générale pour que des livraisons d’armes lors d’un conflit en cours soient susceptibles de servir à commettre de tels actes. L’article ne dit pas en effet que les fournisseurs n’ont pas connaissance que leurs armes « serviront à commettre » des crimes, une formule qui serait moins contraignante pour les fournitures d’armes. On rétorquera peut-être que, de la façon dont je l’entends, peu de fournitures d’armes resteraient licites, mais n’est-ce pas précisément l’intention des concepteurs et signataires du traité que de lutter contre la prolifération ? En l’occurrence, exclure que des crimes de guerre puissent être commis par l’une des parties lors d’un conflit en cours est ou bien de l’angélisme ou bien un parti pris belliqueux qui ne peut être conforme à l’esprit du traité.

Cependant, l’UE a souhaité se garantir à ce sujet, en introduisant une clause suspensive en cas de violation du droit international par l’Ukraine, ce qui est interprété par notre juriste comme une preuve de respect formel du traité par l’UE. Voire ! Cette clause montre au contraire, selon nous, que l’UE se doute que ces armes « pourraient » servir à commettre des crimes de guerre etc., et qu’elle n’a donc formellement pas le droit de fournir ces armes. En prétendant prévenir les crimes de guerre etc., elle avoue être consciente que de tels crimes pourraient être commis, et c’est précisément cette prise de conscience qui devrait l’empêcher de livrer des armes.

Enfin, la résolution ES-11/1 de l’Assemblée générale des Nations Unies ayant qualifié l’opération russe d’agression, l’Ukraine est « indéniablement » en légitime défense. L’auteur précise certes que la résolution onusienne est « dépourvue d’effet obligatoire et silencieuse sur la fourniture d’armes » (ce qui est un peu regrettable en termes de droit positif) mais affirme que c’est une « interprétation authentique de la Charte, objectivement valable pour tous les membres ». Ce qui est objectivement valable et en même temps dépourvu d’effet obligatoire, est surtout dépourvu d’effet obligatoire, en droit. Autrement dit, la question de l’agression et de la légitime défense reste ouverte. Le traitement des minorités nationales en Ukraine invoqué par la Russie est en débat. Or c’est la légitime défense qui est le principal élément de justification des nations de l’OTAN. En légitime défense, « [l]’emploi de la force de sa part [l’Ukraine] est licite (art. 51 de la Charte des Nations Unies) et ne peut pas engager sa responsabilité (art. 21 des articles de la Commission du droit international sur la responsabilité de l’État pour fait internationalement illicite), ni celle des États qui l’aident et l’assistent. » La légitime défense est plus qu’une légitimation, selon cette présentation, c’est un véritable blanc-seing (et la présentation est donc douteuse : certaines violations du droit naturel ne peuvent recevoir aucune justification et engagent toujours la responsabilité). Mais c’est aussi un point contestable, l’Ukraine ayant peut-être conduit sur son territoire une politique contraire au droit humanitaire envers la minorité russophone, et contraire également aux intérêts fondamentaux de son voisin, comme le prétend la Russie s’agissant des régions frontalières du Donbass et autre, dont la situation extrêmement troublée avant l’intervention russe n’a échappé à personne.