Randy Cohen, ethicist for the New York Times, has an interesting spin on a reader’s question about pirating a book which he already bought. In short: it’s illegal, but not unethical. The reader in question already paid full price for the hardcover, so Cohen feels that there is no bad juju involved in downloading the same work for an ebook reader:

Buying a book or a piece of music should be regarded as a license to enjoy it on any platform. Sadly, the anachronistic conventions of bookselling and copyright law lag the technology. Thus you’ve violated the publishing company’s legal right to control the distribution of its intellectual property, but you’ve done no harm or so little as to meet my threshold of acceptability.

Cohen notes immediately after that, however, that publishers disagree:

Unsurprisingly, many in the book business take a harder line. My friend Jamie Raab, the publisher of Grand Central Publishing and an executive vice president of the Hachette Book Group, says: “Anyone who downloads a pirated e-book has, in effect, stolen the intellectual property of an author and publisher. To condone this is to condone theft.”

I’m definitely with Cohen on this, although he’s a bit wrong on what lags behind what (see the next paragraph). What the publishers want, of course, is the ability to re-sell the same product to the same consumer over and over again, and call them “separate” purchases. I liked my purchase of the Star Trek Blu-ray because it contained a digital copy which I could use on my computers and my iPhone. Including a DVD-compatible version would be even better. The point is, you should never be forced to pay twice for the exact same thing. Publishers, of course, want as much of your money any way they can get it, so they fight for the paradigm of device-centric purchases.

Partly to blame here is the mindset that came into play with business purchases of software. Because businesses would use the same software on hundreds or thousands of machines, instead of having to wastefully purchase that many physical copies of the software, they would buy just one copy. That copy would come with an EULA (End User License Agreement) that would spell out exactly how the software could be used–how many machines or users, in what environments, etc.

Soon enough, the EULA was popping up everywhere, including personal purchases of software. If you buy a copy of a program for personal use only, you may have to pay several times–one each for every computer you use it on. Sure, if there are different versions for different devices, like for Windows, OS X, and the iPhone OS–that represents separate products which the author must work to produce. But for the exact same product on two machines using the same OS? How is that really fair, when there’s only one user? Depends on how you see it, of course–and of course, sellers will want to see it in the way that makes them the most money.

Most users see it differently: I am one person using this content, I should not have to pay to use it in two different places. Some extend that not just to themselves, but to family–after all, if I buy a book, I don’t have to pay for my family members to read it; within the home, there is a “community property” sense at work. While the same could be said about lending to friends, most people would agree that the ethical line ends pretty sharply at the borders to your house, and some will say it ends around the individual user. Publishers insist that it ends around the individual device. Often times a compromise is met which reflects these sensibilities; for example, your iTunes account can be extended to five devices, enough for most families. Some software comes in heavily discounted “family” packs.

However, the EULA was seen as an opportunity for content publishers in the digital world, who applied it to music, video, and all other forms of media. Publishers realized that they could use the EULA to keep that cash register ringing: sell a movie on DVD, then on Blu-ray, then for the computer, then again for the mobile device. As the number of devices which can play media multiplied, publishers saw the number of sales opportunities similarly multiply, and so have since aggressively pushed the idea that any copying, in any form is illegal and shameful. That includes ripping your CDs to iTunes. You’re a criminal, they insist; instead, if you want to use your iPod to listen to the music which you already bought on CD, you must go to the iTunes Store and purchase it again digitally, like a good little consumer. Naturally, most consumers call bullshit on that and rip away.

What it comes down to is perception and control. Are you buying a thing, or the rights to use a thing in a very specific way in a very specific place? Once you buy something, do you own it for personal use, or does the publisher maintain both ownership and control, with you simply having the privilege of looking at it in the way the publisher approves of? It could be argued both ways, with publishers claiming that the idea of copyright in itself asserts eternal control by the owner over intellectual property. But publishers try to go beyond that, not just controlling the rights to the intellectual property, but also controlling a consumer’s personal use of that property. If John Grisham writes a book and I buy a copy, he still owns the story, but he does not control the specific book I bought, nor can he dictate to me how I read it. Publishers are trying to change that, at least in the digital world (though you know they would do the same in the physical world if they thought they could get away with it).

As I laid out a little more than fours years ago, once you apply the digital model to a physical purchase, the “eternal control” concept and most EULA terms come across as ludicrous. If you purchase a paperback book, it does not come with an agreement that you will only read it at home, and that reading it in a cafe, at the park, or at work would require additional payment. They can’t charge you extra for reading the book in bed, or using a book-light with it. In purchasing the book, there is no legal way for the publisher to prohibit you from later selling that book to another person. Nor will they try to–people would seriously balk at that, the idea being contemptible.

And yet this is precisely the kind of control and re-purchasing which the publishers are trying to foist on people with the transition to the digital medium. If you buy digital music, digital movies, or ebooks, you will not be allowed to re-sell these things, even if you paid more for them than you would have for a physical copy. And many will forbid you to transfer the work to another location, or else severely limit it. Technically, I am violating my purchase agreement when I rip a DVD I bought so I can view it on my computer or iPhone, unless they specifically say I can.

Screw them. I say the traditional model holds. Cohen is right: if you pay full price for a book, you paid for the book content to be at your disposal. Downloading the digital version of the book is no crime, as the publisher and author have already made their money off of you. In my book, forcing a consumer to pay again for something they already bought is, if not illegal, then certainly unethical. Now, if the electronic edition is different, if it contains extra content like audio, video, or even changes one would expect in a subsequent edition, that’s not kosher to download for free; it represents added work. Sure, you can grouse that the 47th re-re-release of the “Star Wars” soundtrack only adds two tracks that the other five versions you bought don’t have, and George Lucas is being a schmuck for trying to make you pay for the same music over and over again just to get the new snippets–but there’s new content, and so you can’t say you already paid for it.

Publishers instead insist that it’s all in the agreement, and will refuse to sell to you unless you agree to their terms. The law, over time, has sided with the traditional model (remember the whole debate over recording video at home?), but more and more I fear that the content cartels will get more and more restrictive laws passed, like the DMCA, and eventually consumers will be forced by a government bought and sold to work against them to toe the publishers’ line.

You know there’s a scam afoot when some big entity wants something enacted which will profit them handsomely, but holds up a sympathetic face as the “real” benefactor of the scheme. Wealthy people and corporations do this all the time through politicians–whenever there’s a tax cut for huge corporations, for example, the “small business owner” is always trotted out as the real reason the tax cut is being proposed. But in reality, small business owners end up getting reamed because the real benefactors, big business, become more engorged and able to crush the small business owners.

This is the strategy used by the music labels when they do anything concerning their “war on piracy”: they trot out the poor, beleaguered artist, claiming that it’s all for them. Of course, none of it’s for the artist–the artists, of course, get reamed by the labels, who force them into horrifically unfair contracts. The music industry is nothing more than a parasite, a middleman grown into a monster which dominates the entire business, holding both artists and audience hostage. Whenever the labels want a “piracy tax” on blanks CDs, digital audio players, or any music delivery system “for the artists,” you can be damned sure that the artists aren’t getting squat from it. Whenever they want new legislation which gives them perpetual control over something you have paid for, or the ability to violate your privacy or otherwise treat you like a criminal, or to sue more easily so they can extort more money from those unable to defend themselves, you can be sure that the winnings don’t ever get distributed to the artists.

Case in point: the artists are suing the music industry in Canada for stealing their music and not paying for it. Yep: the big music labels–Warner, Sony BMG, EMI, and Universal–have been pirating music for more than two decades. That’s right, they were pirates before online file sharing was even possible.

Here’s how the scam works: in Canada, there’s a loophole in the copyright law which says that if a music label wants to create a “compilation” CD (hey, that’s a mix tape!), then they don’t need to get the artists’ permission beforehand. Instead, they only need to make the CD’s and then place it on a “pending list,” the claim being that they will eventually get the permission of the artists and pay them the required royalties.

You get one guess as to how that worked out.

Yes, that’s right: the music labels put more than 300,000 songs on the “pending list,” and never paid for them. Maybe that should be the legal defense for any P2P file sharer sued by the labels: “The songs were on my Pending List! I was eventually going to pay for them! After a few decades! Maybe!” Why not–after all, that’s what the music labels have been doing, cheating the artists out of at least $50 million in royalties.

The irony of this situation deepens: you know how the music labels lobbied for and got a ridiculous $7500-per-song penalty against file sharers? Well, by Canadian law, there is a potential $20,000 penalty per song which is abused in this fashion–meaning that the labels are now potentially liable for more than $6 billion in damages.

And the artists are suing.

It will be interesting to see how the industry defends itself. They’re the ones who have been claiming that ripping off artists is the primary crime committed; they’re the ones who have pressed for the full damages possible when they even have circumstantial evidence of stolen music. And in this case, the music labels themselves have admitted they’re doing this.

I am certain that I am not the only one here who hopes that (a) no settlement is reached, and (b) the court rules for the artists to the full extent of the law. The only regret here is that the labels will probably be able to limit damages to their Canadian branches only–the bulk of their businesses are probably shielded from damages. But if the Canadian labels claim they aren’t worth a collective $6 billion, then they can simply have 100% of all music profits redirected right into the artists’ pockets, with interest, until the full amount is paid off.

After all, it’s for the artists.

Sarah Palin, and not a comedic parody:

Noting that there had been a lot of “change” of late, Palin recalled a recent conversation with a friend about how the phrase “In God We Trust” had been moved to the edge of the new coins.

“Who calls a shot like that?” she demanded. “Who makes a decision like that?”

She added: “It’s a disturbing trend.”

As it happens, the Republican Congress and George W. Bush were the ones who made that call. But that’s not the really disturbing thing here. Let me again pull out my soapbox.

There is a very specific and intentional movement to allow a merging of church and state in this country, and the “In God We Trust” motto is a big part of it. The motto is a clear violation of the Establishment Clause of the Bill of Rights, and should never have been approved. The same goes for what is now a de facto religious test that politicians must add “So help me god” at the end of their oaths of office (if they did not, they would be accused of heresy–today called “being anti-Christian”–and would never win another election), despite this being 100% unconstitutional. Nor is the injected “under god” phrase in the Pledge of Allegiance constitutional, where government employees force children to mindlessly repeat it day after day.

None of these were part of the original plan for the United States, and despite right-wing claims, none would have been approved by founders like Jefferson. They chose they motto “E Pluribus Unum,” for example; that was replaced as the national motto in 1956; it was on coins since 1795, discarded when Congress assumed the power to appoint mottoes on coinage, and “In God We Trust” was imposed in 1873. The religious reference in the Pledge was tacked on in 1954.

At a few times in our history, pro-religious sentiment became so high that any protest on the grounds of constitutionality were simply not heard, and unconstitutional acts were made more or less official. And if anyone dared to challenge these illegal incursions, the two-pronged response was the same: first, the claim was made that the objections were an attack on religion, and second, the claims were belittled as frivolous, because these were not serious things. Just a few words in the pledge! Just a voluntary tack-on to an oath! What harm do a few words on a coin do?

The answer is: a lot. It is the proverbial camel’s nose.

Think I’m being paranoid? Then let me share with you words from a ruling written by Supreme Court Justice Antonin Scalia:

Presidents continue to conclude the Presidential oath with the words “so help me God.” … Our coinage bears the motto “IN GOD WE TRUST.” And our Pledge of Allegiance contains the acknowledgment that we are a Nation “under God.” …

With all of this reality (and much more) staring it in the face, how can the Court possibly assert that “ ‘the First Amendment mandates governmental neutrality between . . . religion and nonreligion,’” … and that “[m]anifesting a purpose to favor . . . adherence to religion generally,” … is unconstitutional?

Scalia wanted to make government endorsement of religion–of a specific denomination of religion, no less–constitutional. That was the minority opinion in McCreary v. ACLU (PDF)–but is was a minority by one vote only. Had Sandra Day O’Connor not voted the way she did, that opinion would now have force of law. Had that case been heard after she was replaced by Alito, it almost certainly would be the force of law. And it could become the force of law very soon.

These incursions are NOT minor, are NOT harmless; as is clearly shown in the above dissent that came so close to being law, it is precisely these incursions which would allow corrupt Supreme Court justices like Scalia to use them as a legal wedge and inject their own religious views into the highest laws of the land.

Which is precisely why Sarah Palin is so rattled by the fact that the words were moved from the main body of the coin to the edge–she, and others like her, fear that these illegal incursions, which could make America into a theocracy, are being marginalized–literally, in this case–and see any attempt to modify them in any way as a threat.

Tell me, if “In God We Trust” on the coin is not serious, then why do people like Palin rant and rage and rend their hair when it’s even moved from one part of coin to the other?

There should be a movement to remove that motto from all coinage and currency; to forbid the words “under god” from oaths as they constitute a de facto religious test; and to restore the Pledge of Allegiance to what it was before the Red Scare made it possible to inject it daily into the minds of millions of schoolchildren. (A dozen kids singing about Obama twice is indoctrination, but tens of millions chanting “under god” every day for decades isn’t? Please.)

And before we forget, this is not some atheistic coup. It is about the restoration of the founding principal: if religion and state become too close, then all religions, all beliefs, and all people fall under peril.

Good news, everyone: a federal judge swatted down a claim that every time a ringtone sounds, the copyright holder must be paid. The claim was that in addition to being paid for the ringtone outright, the rights-holder should also get money every time a “public performance” occurs–i.e., your phone rings.

A step in the right direction, but by no means a complete and final answer to the music industry’s relentless drive to have everyone pay them money every time anything happens with anything even remotely related to music.

I could become a Spanish citizen.

Under a law passed in 2007 designed to make amends for so many of the wrongs committed in the Franco era, the Spanish government has opened the gates for as many as half a million people (as much as 1% of the total population of Spain) around the world to claim Spanish citizenship. Anyone who was forced out under the Franco regime for political or economic reasons between 1936 and 1955, or their descendants for two generations, are eligible. Because my grandfather was forced out, as was my father when he was 2 years old, that means I am eligible. The Spanish citizenship would not require me to forego being American, so I could have dual citizenship. Those who wish to apply have until December 2010 to do so. Reportedly, the Spanish embassies and consulates in many countries are swamped with applications.

It would be an interesting option–at the very least, it couldn’t hurt (though I do want to check out tax laws to see there are any obligations there, and what they might be). It would make travel to Spain to see family, and to Europe in general much easier, and could potentially open up a possible venue for retirement in the future.

At the very least, simply the idea of dual citizenship is in itself somewhat of a draw. Gives me another reason to start studying Spanish at some point.

Sandra Day O’Connor is now critical of the new Roberts court, saying that they are “dismantling” some of the precedents that she helped to establish.

You don’t say? Sorry, Sandra, but you get no sympathy from me.

Seriously: you decided to retire under to most ardently conservative president in living history, somebody you knew would appoint a very young, hardcore, right-wing strict constructionist to replace you. Resigning while Bush was in office assured that this would happen. You made that decision, now you own it.

That O’Connor is complaining about this now demonstrates either a remarkable naivete on her part, else a desire to distance herself from the decision that she was ultimately responsible for. All she had to do was wait two more years, and she could have preserved her legacy. Maybe she had no choice (though she seems to have no trouble attending panels, at least), but she had in her hands to power to shape the future of Constitutional law for decades after she left–and she knowingly put that power into the hands of George W. Bush.

In short, she blew it, big time. Great going, Sandra.

In the case of Kentucky census worker Bill Sparkman’s death, what is really puzzling are the things police claim to be puzzled by.

Police, for example, claim that they cannot rule out suicide or accidental death.

Bill Sparkman was found hung by his neck against a tree, duct tape all over him, his ID taped to his shoulder, naked except for socks, the word “FED” scrawled across his chest; he died of asphyxiation, but his feet were on the ground.

So, exactly what about that hints at “suicide” or “accidental death”? I think pretty much anyone would find either suggestion extraordinarily ludicrous. And yet, local police actually told the press that the death might have been the result of auto-erotic asphyxiation, akin to what they think David Carradine died of.

There’s denial, and then there’s being stupid.

Police say they can’t figure out why, if Sparkman had been hanged, his feet were on the ground when they found him. Really? Several possible reasons immediately come to mind. Maybe they wanted to check if he was dead. Maybe they wanted to do something to the body they didn’t do before he died, like write “FED” on his chest or duct-tape his ID to his shoulder. Maybe they wanted to take photos of themselves with the dead body as a gruesome souvenir. I could go on, but you get the picture: it’s not a mystery that it happened, but rather only a question of which of the many reasons they had for doing it.

One begins to get the feeling that the local police involved are not the sharpest of investigators. One can only hope that either they are intentionally playing stupid for some reason, or that the FBI is really running the show and the local police are just mouthing off or something. If neither is the case, there is fear that they could be badly bungling this case.

Is pirating media (books, music, video, software) illegal? Is it even “bad”? It’s easy enough to say it’s all illegal, or that “my position is right because those people are nothing more than petty crooks,” but the real situation is somewhat more complex than any of that. We have to realize that the world of “intellectual property” is literally what we make of it; it is defined by what we decide it to be, and is based not upon laws of physics but upon assumptions and assertions which are not necessarily set in stone–and may even have to change.

A great deal of the problem has to do with the pre-standing paradigm of entertainment content: for most of the past century, a lot of content has either been ‘free’ or available in a form that seems free. People do not equate commercials with cash payment, so generations have become used to getting music ‘for free’ over the radio, or video for free on the TV. Even printed material (books, magazines, etc.) are available for free via the public library. There are cash-paid versions of all of these media types, but more people experience them for free and expect that outlet. Then there was lending and borrowing, where one person would buy a book or a CD and would lend it to family and friends–not seen as criminal, but we would get content for free that way as well.

Then copying technology slowly emerged, and the “lending” paradigm transferred into that. People started copying music on cassette tapes, videotaping TV shows, even copying videotapes and so forth. The industry threw up objections, but for the most part, not much happened–for a few generations, we were copying music and video and there were no common penalties paid, and no great social stigma about it.

In comes the Internet, where even more content is free–you can get content from magazines and newspapers for free, where you used to have to pay for that. This, along with the new ability to digitally copy media, only intensified what had been going on in other forms for decades. Nothing new, only easier.

So we have a cultural paradigm that has been building over a very long period of time in which copyrighted media, intellectual property, has been regarded as free information in assumption if not in legal fact. Slowly but forcefully, the content owners have been pushing the counter-idea that this media is not free and that not paying for it is stealing, but they’re working against both a now-deeply-ingrained cultural sense of entitlement as well as the selfish disposition of people to defend something they enjoy doing with arguments that they should know are not fully justifiable. Like the cigarette smoker who uses data from ‘studies’ they know were funded by the tobacco industry to claim that smoking isn’t so bad.

Yes, the music industry *is* a collection of greedy corporate parasites who create nothing and use their powerful position to shake down the artists as much as possible and overcharge the customer while imposing unreasonable terms. But that does not change the fact that this is, I believe at least, legal (if more than a little unethical).

Yes, pirating may not actually have much of an impact on sales, profits, and incomes of artists, as emerging studies seem to suggest. It may even be that pirating has a positive effect on music sales; it may be that downward business trends are due only to a slow economy and poor decision-making at the industry level. It may be that artists lose money not from pirates but from the greedy SOB execs who use pirating as an excuse to shake down the artists. But none of that changes the fact that if media is copyrighted and privately owned, and if you acquire that media to possess (as opposed to borrowing as in a library loan or a friend lends you a CD which you listen to and return) without paying for it, then you have stolen it. It may not fulfill your sense of how things *should* be, but it is the way things *are*.

At the same time, we also have to face the fact that copying media is not considered a big deal. People may be initially shy with new acquaintances to reveal that they pirate music, software, or videos, but generally will not think badly of those who admit they do. It’s kind of like admitting that you go 10 mph over the speed limit–it’s technically illegal, but most people do it and few will really give you any guff about it at all. Those who do object may even be looked down upon as “goody two-shoes.”

All that said, we do have to understand that we are now living in an age where media is no longer what it used to be. The legal standards we apply today are based on a system in which copying was not even close to being as easy as it is today. We also have to remember that ownership, especially of intellectual property, is what we define it to be; it is not some magical absolute or law of nature. We can try to hold the ocean back with a broom, but unless the nature of pirating and policing changes radically towards a controlled environment, then either the current state of the ‘honor system’ (which not too many in fact follow) will persist, or a new legal structure must be hammered out.

In the meantime, suffice it to say that there is some grey in the issue.

(The bulk of this post was a comment I left on a post in Gizmodo.)

The Cambridge police released the 911 call and the tapes of the police radio, and things don’t look all that spiffy for the story of Sgt. Crowley. They do not come close to proving Gates was right, but two key elements suggest that Crowley might actually have racially colored the situation and strongly suggest that he was not being accurate in his police report.

The first element is that Crowley strongly mischaracterized the initial report by Gates’ neighbor, Lucia Whalen. Whalen has received a good deal of criticism because everyone accepted Crowley’s report, in which he claims Whalen describes the two men at Gates’ house as “two black males with backpacks.” In fact, in her 9/11 call (mp3, transcript), Whalen did not initially give the race of the two men, and when asked, said that one of them “looked kind of Hispanic but I’m not really sure,” and reported that she did not get a look at the other one at all. Whalen also specifically mentioned seeing luggage.

Now, this was what Whalen said on the 911 tape, and Crowley got his information directly from Whalen on the street, which was not recorded. But to imagine that “two men with suitcases who might live there and one seems Hispanic and I didn’t see the other one at all” would within a minute or so transform into “two black males with backpacks” is not credible. Clearly, either Crowley made up that part or he radically misunderstood what Crowley told him. And that suggests that there actually was racial bias on Crowley’s part, if he contributed both “black” and “backpacks” in place of “unsure” and “suitcases.” Considering Whalen’s 9/11 call, it seems unlikely that she would even mention race at all unless asked by Crowley, in which she would have given the same answer as the 9/11 call. So “black” seems to have been either assumed by Crowley, or else later inserted by him after he saw the men–either way, his police report was false.

The second element comes from Crowley’s transmissions (mp3, transcript), which seem to contradict what he wrote in his police report. In his report, Crowley wrote:

I again told Gates that I would speak with him outside. My reason for wanting to leave the residence was that Gates was yelling very loud and the acoustics of the kitchen and foyer were making it difficult for me to transmit pertinent information to ECC or other responding units.

This is belied by the radio transmission, in which Crowley had no transmissions which were made unclear by Gates’ alleged “yelling.” In the sections of the recordings of the police radio coming from Crowley, you can hear Gates a little in the background, but nothing more than would be expected of a normal conversation. Listen to this file (mp3) with only Crowley’s transmissions:

While Crowley could have been speaking of yelling that happened which prevented him from even trying to make the calls at all, that is certainly not supported; in the transmissions he makes, there is silence for most of the transmissions–not what would be the case if Gates were yelling so loudly and so often that Gates was forced to leave the house. Instead, it now seems far more likely that Crowley actually left the house in an attempt to draw Gates outside so that he could arrest him.

In this case, the media in general has given Crowley the complete benefit of the doubt and Gates almost none on the basis of believing police officers first and arrest subjects last. However, it now seems that this bias was not correct, and Crowley’s report is now seriously in doubt.

A lot of the controversy over the Gates arrest is now focused on racism. And the other day, when asked about the situation, Obama–clearly admitting that he was biased and did not have all the facts–suggested that the arrest was “stupid.” The problem is, conservatives–as well as a good chunk of the mainstream media–have now made this about Obama attacking the police for racism, when that is not even close to what was the case.

Here is Obama’s original statement:

My understanding is, at that point, Professor Gates is already in his house. The police officer comes in. I’m sure there’s some exchange of words. But my understanding is — is that Professor Gates then shows his ID to show that this is his house, and at that point he gets arrested for disorderly conduct, charges which are later dropped.

Now, I’ve — I don’t know, not having been there and not seeing all the facts, what role race played in that. But I think it’s fair to say, number one, any of us would be pretty angry; number two, that the Cambridge police acted stupidly in arresting somebody when there was already proof that they were in their own home.

And number three, what I think we know separate and apart from this incident is that there is a long history in this country of African-Americans and Latinos being stopped by law enforcing disproportionately. That’s just a fact.

Note that while race is mentioned here, Obama (1) does not refer to the arrest as stupid in any way related to race, and (2) makes no claim that actual racism was involved–he actually says “separate and apart from this incident” there is a history of racism, referring to either why Gates reacted as he did, or that sensitivity must be practiced by all parties when race even might be an issue, or both.

The result? The narrative now is that Obama’s remark was somehow an accusation of racism, and an attack on an honest, hard-working cop. One example of how the story is being reported:

Crowley’s account came on a day of dizzying debate over his actions, a furor that was touched off by President Barack Obama’s remarks at a news conference Wednesday night, when he said the police had “acted stupidly” and linked Gates’ arrest to the nation’s long history of racial profiling.

“Linked” being the key word. In a very loose sense, it’s true, but the use of that word implies that Obama accused the officer in some sense of racism–when Obama went to great lengths to avoid saying exactly that. Can you honestly say that Obama “linked Gates’ arrest to … racial profiling” when Obama said “separate and apart from this incident” there is a history of racial profiling? And he was right in that there is a history of racial profiling.

It’s a shame, because the real issue of importance here is not Obama, and not even racial profiling, but rather “contempt of cop” arrests–the “stupid” act that Obama referred to. And Obama was 100% right–it was a stupid arrest, almost certainly a case of a cop getting annoyed at someone and abusing his power to slap that person down.

But what about racism? Was is in fact involved?

While I strongly disagree with the arrest, I don’t think that the facts much support the idea that Crowley himself was racist. It’s possible that he made racially biased assumptions, but far from certain, and Crowley deserves the benefit of the doubt on this.

The initial situation that Crowley was put into was unavoidable: he received a call reporting a break-in, so naturally he had to investigate. He could not just say to himself, “Hmm, there’s an older gentleman inside, he’s probably the owner, I’ll just go away.” He had to check and find out who Gates was. Nothing wrong there.

What Gates identifies as racism is less of a clear-cut situation: that Crowley asked Gates to step out onto the front porch. Apparently, it is much more difficult for an officer to make an arrest if the individual is indoors rather than out; a policeman asking someone to step outside could be a prelude to an arrest. And if Crowley was intending to arrest Gates with no questions asked, then that would have been far more likely a case of racism–it is perhaps not as likely that a police officer would arrest a 58-year-old white person using a cane, in that situation, in such a fashion.

But this is where benefit of the doubt comes in: perhaps Crowley was simply asking Gates to step outside just to be on the safe side, allowing himself more options should the situation take a bad turn. We can’t know what Crowley’s actual intent there was, and so cannot make the assumption that Crowley was being racist–especially since it appears that he did not do anything after that which appeared significantly out of order–until the actual arrest, that is.

Gates, however, made that assumption right off the bat, but there was a contributing factor: that the call had been made at all. This was not Crowley’s fault, of course; the neighbor may have over-reacted. She saw a man forcing open a door–but she also noticed two men. This is critical. To see two men, she had to either see Gates before he entered the house, in which case she would have seen him go around and enter the house easily before the forced front-door entry occurred, or she had to see Gates inside the house when the door was forced open. Neither make sense in the context of an unlawful break-in.

The fact that the neighbor reported men with “backpacks” casts further suspicion: neither man was wearing a backpack–instead, they were dressed in suits, carrying luggage. Where did she get backpacks from, and how did she miss the suitcases? Seeing two men dressed in suits with luggage is a far cry from two men with backpacks; one suggests a returning resident, the other suggests young thugs. It is easy to question whether the neighbor would have reported things differently had she seen two white men in suits, one with greying hair and a cane, in the same situation.

So Gates had returned home in a context that did not match any reasonable expectation of a break-in, and yet moments later police come and act like he may be an intruder. The real turning point was Crowley’s request that Gates step outside, which Gates recognized as a possible prelude to an arrest. With these two facts–an accusation of a black man in an upscale white neighborhood breaking into his own home, and the likelihood that the police officer would simply arrest him right off the bat–Gates forms a new context, and from that point on, everything he sees is colored by it.

Race may very well have played a part in setting up the situation–but it is less than perfectly clear. The neighbor could have just seen things wrong and maybe race had nothing to do with it; the officer could have just been following procedure and might not have treated Gates differently than anyone else. But in the overall context, Gates did have reason to believe that race was involved–though he certainly over-reacted, even if you don’t take the officer’s account at full face value.

What is likely the case is that the neighbor saw the forced entry, and as witnesses are wont to do, painted in details that weren’t there–not an act of overt racism, but more than likely unconscious bias, giving us backpacks instead of suits and luggage, and ignoring the overall context where Gates was already indoors. The policeman came and made what he considered a by-the-book encounter; though he may have intended to act inappropriately and would have arrested Gates right off, we have to assume that he just wanted Gates outside to make the situation easier to deal with. But by that point, Gates had received one too many signals that he was being treated in a racist manner, did not give benefit of the doubt, and started making accusations–accusations that Crowley probably was strongly offended by. The main business of identifying the owner done, Crowley then makes the next big mistake: by wildly overreacting to an angry man who believed he had good reason to be upset, and arresting Gates on trumped-up charges.

That’s the main issue in the end. While actual racism may have played a small, contributory role in setting this up, it was the early taking of offense by both gates and Crowley which escalated things, and eventually Crowley was most at fault, using his authority to satisfy his personal grievance.

And that was the only part of this which was way over the line: the contempt-of-cop arrest.

Obama’s comment did not accuse the cop of racism, but because the media is playing it that way, it’s now about the stuck-up Harvard elitist and his reverse-racist pal in the Oval Office dumping on an honest, hard working cop by labeling him as a racist. Right-wing sites are already ginning up conspiracy theories, like the Boston Globe removing the police report from their web site because it was too embarrassing for Gates, or because it contradicted the paper’s liberal-media agenda to make Gates look like a victim–as if the police report is gospel or something.

So much for any attention on the abusive practice of “contempt of cop” arrests.

By the way, a comment just filed in the previous post sheds new light on why Crowley worded his police report so oddly. From Massachusetts state law, two of the four identifying qualities of what constitutes “disorderly conduct”:

“with purpose to cause public inconvenience, annoyance or alarm”

“engages in fighting or threatening, violent or tumultuous behavior”

Then, from Crowley’s report:

Due to the tumultuous manner Gates had exhibited in his residence as well as his continued tumultuous behavior outside the residence, in view of the public, I warned Gates that he was becoming disorderly. Gates ignored my warning and continued to yell, which drew the attention of both the police officers and citizens, who appeared surprised and alarmed by Gates’s outburst.

It seems pretty clear that Gates was very intentionally cribbing language from the state code so as to justify the arrest. These terms raised flags–note that my post pays special attention to these terms, as they stood out as rather unusual and unlikely. Now we know why: Crowley had to justify the arrest. Whether this is regular practice or not, it seems to cast doubt on the accuracy of what he claimed, as if it were tailor-made to fit the law, as opposed to being a true and objective account of what actually happened.

Henry Louis Gates Jr., a Harvard professor and director of the W.E.B. Du Bois Institute for African and African American Research, was arrested at his home last Thursday. The facts which are not in contention: Gates and his driver, both black, arrived at his home and had trouble entering; the door was jammed, and Gates’ driver had to shove at it to get it to open. A neighbor called the police to report two black men with backpacks breaking into the house; a policeman arrived and asked Gates for identification. Gates showed an ID, and after some discussion in which Gates asked for the officer’s ID, the police officer left the house. Gates followed him outside, and the officer arrested him on charges of disorderly conduct.

Outside of those facts, the stories are–not to use too ironic a phrase–as different as black and white.

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According to the arresting officer in the police report (PDF), Sgt. James Crowley, Gates yelled at the officer, alarming the neighbors, and thus warranting the arrest. He claimed that when he first met Gates, upon being asked, he immediately identified himself, stating that he was there to investigate a reported break-in. He claimed that Gates responded, “Why, because I’m a black man in America?” Crowley wrote that after asking if anyone else was inside, Gates told him it was “none of his business” and accused him of being racist. He says he “assured” Gates he was responding to a legitimate crime report, but Gates made a phone call to someone, asking for the “chief,” and told someone over the phone that he was dealing with a “racist police officer.” He than asserted that Gates turned to him and said that Crowley “had no idea who I was ‘messing’ with and that I had not heard the last of it.”

Crowley then said that he was surprised that the legitimate owner of the home would act in such a fashion. He said that he asked Gates for ID, and that Gates refused, but later produced a Harvard I.D. card, which Crowley called in to verify. He claims that Gates asked his name again and that he started to reply, but Gates yelled another racist accusation at him before he could complete an answer. Crowley claimed that Gates again threatened that he was not to be “messed with,” and asked again for identification; Crowley claimed that he stated that he had identified himself twice and would now leave, and Gates could talk to him outside if he wanted. Crowley wrote in his report that Gates was yelling so loudly that he could not report anything using his radio, which is why he left the house. He then claims that Gates responded, “ya, I’ll speak with your mama outside!” Gates, he said, followed him outside and “continued tumultuous behavior .. in view of the public.” He held that outside, he warned Gates twice that he was becoming “disorderly,” and claims that bystanders “appeared surprised and alarmed by Gates’s outburst.” After ignoring repeated warnings, he then arrested Gates.

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Gates tells the story differently. In an interview the other day, he claims that he was returning from China to his Cambridge residence provided by Harvard University. He said that his driver, dressed in a suit, helped him with several bags–no backpacks–up to the front door, but it was jammed, with a footprint on the door suggesting that someone may have tried to break in. He went around to the kitchen door, unlocked it, and came to the front door from the inside, but still could not open the door. To get the door open, his driver shouldered the door open, damaging the lock. He said he then called someone at Harvard to get the damage repaired.

At that time, Sgt. Crowley arrived. Gates says that he began by asking, “Officer, can I help you?” and that Crowley asked him to step out on the porch. Gates says that he got a bad feeling then–that the officer would not ask him out on to the porch just to talk to him. He claims that the officer informed him that he was responding to a 911 call about a break-in, to which Gates replied, “That’s ridiculous because this happens to be my house. And I’m a Harvard professor.” When asked to prove it, Gates says he provided both a Harvard ID and a drivers license. At this point, Gates says that Crowley asked another (undefined) question, but Gates instead started insisting that the officer provide his name and badge number, because he wanted to file a complaint–Gates explained that the officer did not act like a policeman usually would, asking if it was his house, but instead started by trying to draw Gates outside, and Gates felt that this is not how a white person would be treated.

Gates said that he asked the officer to identify himself three times, but the officer refused; Gates claims he said, “You’re not responding because I’m a black man, and you’re a white officer,” at which time Crowley turned to leave. Gates followed him out to the porch, where he said that at least a half dozen policemen had gathered, and demanded the ID of another officer there–at which point the officer turned around, said “Thank you for accommodating our request. You are under arrest,” and handcuffed him.

As for the yelling, Gates claims that the officer’s charge is ridiculous, in that Gates had contracted a “severe bronchial infection” in China and had not yet fully recovered, thus rendering him incapable of shouting as Crowley claimed.

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You can see how greatly the account clash. Each presents himself as calm, reasonable, and measured, and the other as unreasonable. In such cases, it is safe to presume that the truth lies somewhere in between. The question is, where in between? Crowley paints Gates as being far more unreasonable than Gates paints Crowley. Crowley asserts that Gates, a professor of African and African-American Studies at Harvard University, shouted, “ya, I’ll speak with your mama outside”; while that is not impossible, it does come across as incredibly unlikely, even if Gates were truly pissed off.

It would interesting to see what neighbors who witnessed the event would say about how Gates and the officer were acting outside–for example, was Gates in fact yelling loudly, and were the neighbors truly so “surprised and alarmed” that it warranted an arrest?

Short of that, one should ask if the officer’s reaction was warranted even if we take his word 100% and completely disregard Gates’ version of events. And I think that the answer to that is, clearly, the officer was out of line. Gates was, after all, the one being accused of breaking into his own home; while some people would be happy that police are on the job and assuring the security of one’s home from intruders, some people would not take it in that light. There’s no law saying you have to be grateful. And with the history in America of police and black people, one could at the very least understand how a black man might not be thrilled at being accused of breaking in to his own house.

But the deciding factor was not whether or not Gates was too ungrateful, but rather, was there cause to arrest him at all. Even if you had a severely pissed-off individual here, was he creating so difficult a situation that an arrest was necessary? Let’s face it–we’re talking about a 58-year-old man using a cane, and the worst that even Crowley claims that he’s doing is yelling. Is yelling on your front porch a crime, especially if there is a reason–whether you agree with it or not–for him to be so aggrieved?

What did Crowley feel would happen without the arrest? Did he think it would spiral into violence? While that might sound ridiculous, that is the prima facia reason that Crowley made–he made the arrest only after Gates’ “tumultuous” (dictionary definition: making a loud, confused noise; uproarious) yelling, which “surprised and alarmed” his neighbors. Crowley justifies the arrest by making it seem that Gates was acting in a way that was disruptive to some damaging degree.

I wasn’t there, of course, but from reading the accounts, I cannot possibly see this as being the case.

Instead, what appears to have happened is that Crowley arrested Gates for what is commonly referred to as “Contempt of Cop.” This is when a police officer, in his opinion, finds a citizen to be sufficiently disrespectful, and so arrests the citizen on a trumped-up charge–usually disorderly conduct or obstructing a police officer. The idea is to arrest the person, humiliate them in public, have them go through the process of being booked, and jail them overnight, fully intending all along to drop the charges and release them. Kind of an instant punishment that avoids any oversight or regulation. We can cause you severe humiliation, discomfort, and inconvenience, and jail you for a day, just because we want to.

This practice has some rather obvious problems, the greatest being potential abuse. Since the offense is completely dependent on the officer’s subjective, emotional judgment, it essentially becomes a license to put innocent people through an ordeal for not being respectful to a police officer. There are situations where you can easily imagine this to be justified, but Gates’ case does not even come close–as one would expect that any justified use of this practice should involve more than just offending the police officer.

One problem is that, in Seattle at least, it was found that blacks were eight times as likely to be arrested in this way than whites. This aspect is very likely to have an impact on how we see the Gates arrest–and since “contempt of cop” depends on a trumped-up charge, it follows that the police report will be prejudiced to justify the arrest, explaining Crowley’s implausible “neighbors were alarmed” rationale.

If police are to use “contempt of cop” at all–if police hold that they have to arrest people sometimes for bad behavior–then there should be an actual law drawn up for such circumstances. Otherwise, it is an unconstitutional assault on the citizen. That the police do this with full intent to drop the charges is simply an end-run around the Constitution. The fact that courts dismiss charges that are not dropped hint that such contempt-of-cop laws are not passed because they would not be constitutional.

So what we have is an abuse of police power. No one should be arrested for simply offending a police officer’s feelings.

Recently, Congress passed legislation that would expand hate crime laws to include not just crimes motivated by hatred for race, ethnicity or religion, but also those motivated by hatred for gender, sexual orientation, gender identity or a disability. This is not legislation against hate speech, but rather against violent acts committed because the attacker targets the person for the quality they represent.

There’s a lot of criticism for this kind of law, including from liberal quarters, the most-argued being that hate crime laws are laws against thought–on the grounds that the only thing different from a hate crime and a random mugging is a belief held by the attacker.

This argument tends to be over-simplistic, explaining only that one is punished for ones thoughts or beliefs, as if the thought alone is enough to convict. This is what religious organizations are claiming, that these laws will prevent them from even just speaking out about homosexuality. But that is not even close to being the case: thoughts or beliefs alone could not be punished.

Instead, there must be a violent crime, and not just that, but the beliefs of the attacker must be demonstrably responsible for the crime. If a Christian violently attacked a gay person for reasons not related to homosexuality and was convicted of a hate crime because his religious beliefs tended against gays, that would be unjustifiable–but that’s not what the laws are about.

The attacker cannot be punished under hate crime laws just because they attack someone who offends their beliefs; there has to be clear evidence that the attack was motivated by the belief, that the person was not targeted because of some other reason. For example, if a Christian were goaded into violence by a gay person with insults, and the Christian did not indicate anything about homosexuality in his attack, then hate crime legislation would not kick in. But if the Christian person attacked a gay person and had no reason to attack that person other than their sexuality, and shouted out insults at the person’s sexual orientation during the attack, that would suggest that the attack was based on hate.

For me, there are two solid reasons why hate crime legislation is justified. Both relate to the same reasoning which applies greater punishment if a person attacks a police officer. First, if a violent act is committed against a person primarily because they belong to a certain group, then it is an attack not just against that person but an attack against that entire segment of society. Just as a person attacking a police officer is considered to be committing a crime against society as a whole and is therefore held more accountable, a person committing a hate crime is not just attacking the individual. In some ways, this is not unlike a terrorist act–striking fear in all of those who belong to the community.

Second, a person who commits a hate crime is a greater danger to society on the whole. When one person attacks or kills another, it tends to be for a specific reason, and is targeted against that specific individual; they are not a danger to society as a whole. But a person who attacks or kills for their hatred of an entire group is far more likely to commit such an act again, and therefore poses a much greater threat. Again, this is the same reasoning for greater punishment for assault on a police officer.

These are not “special privileges” or “special protection” for minorities; Christians, Heterosexuals, or Caucasians are covered too. The laws protect all groups. If minorities tend to be the ones who are violently attacked far more often, then this legislation is not necessarily a protection the majority would want to deserve.

If the legislation does not demand high standards of proof for the intent to be colored by the specific hatred, then it is wrong; if the legislation outlaws only criticism against groups, banning anything short of clear incitement to violence, then it is wrong. But it is my understanding (please correct me if I am wrong here, citing the evidence please) that most hate crime legislation does not go that far.

There is a person whom you hate for ideological reasons. To borrow the tobacco analogy from my recent post, let’s say it’s the head of a tobacco giant, someone who you believe has blatantly lied to Congress, paid off politicians, designed cigarettes to addict people more effectively, and focused advertising on kids to get them hooked. You feel that this person is a mass murderer.

So you put him in the spotlight. You rant to a very large audience of passionate fellow travelers, telling them that this person is a mass murderer, and will continue to addict kids and murder people, and is getting away with it cold. So far, socially responsible.

But there’s more to it than that. You know, from experience, that there are people in your audience who are on the extreme fringe, so passionate in their zealotry that they are willing to harm people. You know from experience that these people craft bombs, collect guns, and from time to time, will follow a pointed finger and carry out an assassination. You have seen it happen several times before.

But it’s even more specific than that, in this case: it happened before to the tobacco executive you rant against now, whose office was bombed and who suffered one armed attack on his person already, clearly due to publicity aimed at him.

Far from relenting at this realization, you step on the gas. You continue to broadcast their name with the label “mass murderer,” insist that something should be done to stop them. You graphically relate horrific, bloody scenarios on the air and say this person has the blood on his hands, is a Nazi, a fascist, a baby-killer, and so on. You are fully aware that information about where this person’s home is, where they work, where they go to church, and when they do all of this, this information has been spread among the zealots. Perhaps even you are the one spreading it.

And then when the inevitable day comes when this person is gunned down in cold blood, you express “shock” at the murder, and innocently protest that you had nothing whatsoever to do with the killing.

At what point does criticism cross the line and become incitement to violence?

A story that’s bouncing around the media now is the potential responsibility of people like Bill O’Reilly in Tiller’s murder:

O’Reilly has mentioned Tiller 29 times on his show since 2005, calling the doctor guilty of “Nazi stuff,” a moral equivalent to NAMBLA and al-Qaida, and saying that Tiller “has blood on his hands.”

Media Matters uncovered several video segments from O’Reilly’s show ambushing Tiller and his attorney, as well as a 2006 radio broadcast by O’Reilly where he rants against Tiller, accusing him of fully delivering a baby then drilling a hole in its head, and of pumping money into politics to get himself off the hook legally. He then begins a statement: “And if I could get my hands on Tiller….” At this point, he suddenly backpedals: “well, you know. Can’t be vigilantes. Can’t do that. It’s just a figure of speech.” Clearly, his mind strays to violence, a suggestion he immediately recognizes he could be held liable for, thus the backpedaling. But the statement is clear evidence that O’Reilly knew full well what ballpark he was playing in.

O’Reilly, to his credit (using a rather low bar), did not–I think–publish Tiller’s address, though Randall Terry and Operation Rescue did, and the information remained available on pro-life web sites. Tiller has been harassed for years, suffering previous bombings and shootings. The protestations that one could not possibly foresee the result of such vivid, hateful verbal attacks against Tiller resulting in actual violence are, to say the least, untenable. Of course the prolonged public attacks on Tiller would spur violence against him. It already had, more than once. It was only a matter of time before it would happen yet again.

So we return to the question: if prior attention on an individual resulted in violence against them, and you continue to sling the most graphic and hateful accusations imaginable against this person, how complicit are you when the inevitable killing occurs? Can you honestly free yourself of all responsibility by falling short of expressly calling for someone to kill the target of your rage?

There is a mass entanglement of rights and other issues involved, of course. Though free speech does not cover incitement to violence, there is a rather large grey area when you do not specifically incite violence, but rather you do so tangentially. Much depends on what people like O’Reilly and Terry knew, something you can guess at but cannot prove in court.

Of course, O’Reilly and Terry will never suffer criminal consequences of their actions. At the same time, however, I find it impossible to consider that they bear no responsibility for what happened.

Republican Senator Jim Inhofe released this statement today:

“Of primary concern to me is whether or not Judge Sotomayor follows the proper role of judges and refrains from legislating from the bench. Some of her recent comments on this matter have given me cause for great concern. In the months ahead, it will be important for those of us in the U.S. Senate to weigh her qualifications and character as well as her ability to rule fairly without undue influence from her own personal race, gender, or political preferences.”

Let’s look at a few key parts of this statement.

Of primary concern to me is whether or not Judge Sotomayor follows the proper role of judges and refrains from legislating from the bench.

Keep in mind that “legislating from the bench” is a Republican code phrase meaning “making decisions that I don’t like.” Originally, the phrase was restricted to Roe v. Wade, which right-wingers often cite as the worst case of such judicial legislating. As I pointed out in the last post, however, conservative justices are the ones going wild legislating from the bench. In addition to Scalia on the Establishment Clause, you have the whole right wing of the court rewriting the meaning of the Second Amendment, at the very least relative to how all past Supreme Court decisions observed the amendment. In the re-writing, they did their fair share of Roe-style “legislating,” specifying what was or was not legal in terms of gun control. In short, Republicans are fine with “legislating from the bench,” it’s any decision that they disagree with that is unacceptable to them.

In the months ahead, it will be important for those of us in the U.S. Senate to weigh her qualifications and character…

What happened to the inviolable prerogative of the president to choose whomever he pleases for the court? Oh yeah, that was just for Bush. Well, at least until he tried to put Miers on the court.

…as well as her ability to rule fairly without undue influence from her own personal race, gender, or political preferences.

Two major points here. First, “without due influence from her own … political preferences.” Really? Shall we talk about Alito, Roberts, Thomas, and Scalia, then? None of them hold up to that standard, but I am quite certain that Inhofe would be delighted to vote for one of their political clones, especially if their political preferences played an undue influence on their rulings. Again, the only real right-wing concern here is politics.

But the very interesting statement is “without undue influence from her own personal race [and] gender.” If Sotomayor were a white male, do you think Inhofe would have mentioned either? Not a chance–which means that what Inhofe really means is that she cannot be capable of making any ruling that does not observe and respect preference to whites and men.

More to the point, keep in mind that conservatives who apply their religious beliefs to their lawmaking defend the practice by claiming that their religion shapes who they are, or that in a sense, it is who they are, and they cannot escape it–nor should they, they say. But if your (non-white) race or (non-male) gender should shape your official actions, that’s unacceptable. If Sotomayor were not Christian, you can bet whatever amount you’d like that Inhofe would have included “religion” to that list of things that Sotomayor should not allow to influence her decisions.

It is not that I completely disagree with everything he says, but rather the plainly hypocritical contrast between what Republicans deem acceptable from conservative nominees and liberal ones, in addition to the tones of racism and sexism involved.

Surprise! The right wing is now declaring that Sotomayor is “a liberal judicial activist of the first order”! Various sources have different ways of expressing it, but that’s the general tone. She’s liberal! And activist! Who’da guessed they’d come up with those arguments?

After the last several SCOTUS appointments from the right, representing about as right-wing you can possibly imagine without nominating Attila the Hun, conservatives don’t get to claim this without people snickering. Especially when it is the conservative Supreme Court justices who “legislate from the bench”–that is, they either strike down laws passed by Congress far more than liberal justices, or they simply ignore the law and instead proscribe whatever the hell they feel like, as in Scalia’s dissent to McCreary in which he uses legal violations as precedent to rewrite the establishment clause of the First Amendment.

Surely, the right wing has depleted the whole “most liberal” attack after having claimed that every Democratic presidential candidate is “the most liberal Democrat” around, and that every nominee is “the most liberal nominee” out of all candidates.

In short, all the arguments against Sotomayor amount to this: “She’s not conservative.” That’s virtually the only meaningful description of why the right wing will rail against her and claim that she is the Nth coming of the Liberal Satan.

And, of course, after the last eight years of Republicans claiming that the president gets to choose anyone and the Congress is required to rubber-stamp it, they don’t get to do much more than impotently rant. By their own standards.

Which, of course, they never follow themselves.

Lately, there has been a lot of chatter on the right about Obama and what he meant by “Empathy” when he was describing what he was looking for in a Supreme Court justice nominee. The idea is that Obama was using a code word for “liberal activist judge.” The problem is, I’ve never heard that particular code word before. Now, “strict constructionist,” that’s a firmly established code word. But “empathy”? Not really. However, according to Orrin Hatch:

It’s a matter of great concern if he’s saying he wants people who will take sides. He’s also said that the judge has to be a person of empathy. What’s that mean? Usually, that’s a code word for an activist judge.

As I said, that doesn’t sound familiar to me. So I did a search for the term relative the Supreme Court nominees, and found this from last October:

“What I do want is a judge who is sympathetic enough to those who are on the outside, those who are vulnerable, those who are powerless, those who can’t have access to political power and as a consequence can’t protect themselves from being — from being dealt with sometimes unfairly, that the courts become a refuge for justice,” said Mr. Obama, who taught constitutional law for years at the University of Chicago.

Several conservative observers of the court said they interpreted those remarks as code for Mr. Obama’s intention to select “liberal activist judges.”

“That comment was pretty remarkable to a lot of us,” said Neomi Rao, a teacher at George Mason University Law School who is a former associate counsel in the Bush White House and a former clerk for Justice Clarence Thomas. “When I hear about a judge who rules on the basis of empathy, I think of an activist judge.”

Hmmm. Still Obama, still conservatives reading into his statement. So I went farther back and found this statement:

I regard law as a discipline in which you have to have empathy for people you are trying to understand.

Aha! That quote was not by Obama, and it related directly to the nomination of a Supreme Court justice! So, what liberal activist judge said that? Let’s see… it was… Robert H. Bork.

Judicial prudence (at least where the courts have not been stacked with right-wing loons) seems to be one of the only things holding back the nutcases in many instances. Like the courts deciding that a brain-dead woman’s body should be allowed to die, especially if the preponderance of evidence says that’s what she would have wanted. Or that a boy should be returned to his father according to law, instead of being put on display by relatives as part of a major political PR game. Or that creationism dressed up as fake science should not be taught in Science classes alongside scientific theories tried and tested for over a century, as if they were somehow equal.

In this case, the courts decided that a person must actually commit a crime before they can be sued for committing a crime, as opposed to being sued for a crime simply because there was the potential for a crime to be committed. In this case, it was the RIAA claiming that they could sue someone literally out of house and home for making a few CD’s of music available over the Internet, even if there was no evidence of any sort that anyone actually stole anything. The court disagreed, saying that there had to be evidence that file sharing actually took place.

However, the judge still gave the RIAA an out: he said that if someone made “an offer to distribute, and that the offer to distribute was for the purpose of further distribution, public performance, or public display,” then a suit could be filed. I suppose that’s under the same category as arresting someone for solicitation without the crime being solicited actually taking place.

Now, what that means may be open to interpretation, but the one that seems evident is that one must prove that there was the intent to distribute copyrighted material–and that could be pretty hard to prove. The RIAA can sue based on that claim, but proving that claim might be a lot more difficult.

It’s official!

“If the House had nothing better to do, this futile partisan act would be a waste of time,” said Dana Perino, the White House spokeswoman. “The ‘people’s House’ should reflect the priorities of the American people, not the fantasies of left-wing bloggers.”

Well, maybe not me, probably they’re referring to Josh Marshall. This is about the House vote to hold presidential chief of staff Josh Bolten and former White House counsel Harriet Miers in contempt for not responding to subpoenas issued by the House compelling them to testify under oath.

The background is familiar over the past few years: the Bush White house fired nine US Attorneys and apparently pressured a great many more for reasons that are completely improper. The attorneys were pressured to pursue election fraud charges against Democrats even if the attorneys felt the charges had no merit, and they were similarly pressured not to pursue legitimate cases against Republicans. In the investigations that followed, the Attorney General and other White House officials made misleading and false statements under oath to Congress, and the White House has refused to surrender documents and has “accidentally” destroyed mountains of evidence, much pertaining to this case.

The White House refused to allow Miers and Bolton to testify on the grounds of “executive principle,” which is a code word for “we want to deny the checks and balances guaranteed under the Constitution.” Bush offered to allow them to testify, but only if their testimony were not under oath–of course, the only reason to make this demand is if there is an intent to lie to Congress. When House Democrats voted for the contempt charges, the Crybaby Republicans stomped their feet and held their breath, staging a walkout–as if it were the height of impropriety to investigate massive corruption, if the focus of the investigation were Republican.

If anything, the Democratic Congress has been far too soft in its investigation, letting the White House drag its heels and show utter contempt for Congress’ authority for the past year. The move to hold the White House officials in contempt is, quite frankly, very late in coming. The intensity and depth of political corruption in this White House far exceeds that in any presidency in U.S. history, and deserves far more scrutiny and investigation.

Worse, since the Bush White House controls the enforcement of laws, it simply refuses to honor any charges held against it. It is exactly as if a prosecutor were a serial criminal offender, but was put in charge of the prosecution of the cases against himself–and simply declined to do anything. In any other such case, there would be a higher authority that would step in and clobber the scofflaw–but here, we are dealing with an executive branch that has no higher authority than the Constitution, which they hold in contempt and refuse to follow. There being no higher corporeal authority, there is not much else that can be done.

The Bush White House’s legacy will have been to establish that the president is above the law, that he can violate any statute, make any ethical breach, and get away with it.

Theoretically, the next president could reverse these decisions and release any documents not shredded or deleted by this administration (which will probably be very few by that time), and allow justice to be realized. But if a Democratic president tried to do so, he or she would instantly be attacked in fury by conservatives, accusing the new president of “wallowing in the past,” not allowing “bygones to be bygones,” and of “abusing the power of the presidency to exact partisan political retributions.” In short, the claim will be that a president can break any law, refuse to prosecute himself, and then enjoy immunity the day after he leaves office.

After all, this is the presidency that promised to “restore honor and dignity” to the White House.

We’re still waiting.

Yep, our favorite conservative slimeball is at it again, this time in an interview with the BBC:

[Scalia] said it was “extraordinary” to assume that the ban on “cruel and unusual punishment” – the US Constitution’s Eighth Amendment – also applied to “so-called” torture.

“…Is it really so easy to determine that smacking someone in the face to determine where he has hidden the bomb that is about to blow up Los Angeles is prohibited in the constitution?” he asked.

“It would be absurd to say you couldn’t do that. And once you acknowledge that, we’re into a different game. How close does the threat have to be? And how severe can the infliction of pain be?”

Where to begin? Scalia is interpreting the Eighth Amendment here to mean that “punishments” which are cruel and unusual are only unconstitutional when they are meted out as punishments for a crime committed–meaning that it’s perfectly okay to be cruel and unusual in all other aspects. Scalia’s explanation in full:

[The Eighth Amendment] is referring to punishing one indefinitely, would certainly be cruel and unusual punishment for a crime. But a court can do that when a witness refuses, or can just commit them to jail until you will answer the question, without any time limit on it, as a means of coercing the witness to answer, as the witness should. And I suppose it’s the same thing about “so-called” torture; is it really so easy to determine that smacking someone in the face to find out where he has hidden the bomb that is about to blow up Los Angeles, is prohibited by the Constitution? Because smacking someone in the face would violate the Eighth Amendment in a prison context, you can’t go about smacking people about. Is it obvious, that what can’t be done for punishment can’t be done to exact information that is crucial to the society?

Again, so many concerns. The Eighth Amendment only refers to the length of incarceration? And Scalia sees even that as being obviated in certain contexts? Does any right truly exist in Scalia’s eyes? What he’s saying here is that it’s okay to be cruel, so long as it does not take on the very specific form of incarcerating someone indefinitely, and even that’s OK if the witness isn’t answering questions like you want them to–in other words, no restrictions at all.

And what about the Fourth Amendment? If we believe that someone is a criminal and they have information we want, surely the revealing of this information will incriminate them. I’m not saying that’s it’s not an attractive trade-off in immediate terms, but torturing someone to reveal self-incriminating information is also in violation of the Fourth Amendment–but Scalia doesn’t even bat an eye here, does not even refer to the Fourth Amendment. Like I said, in immediate terms one would think, “of course I’d violate one person’s rights to save the lives of others”–but in constitutional terms, it’s not so easy. What Scalia is doing is stringing together rationalizations and justifications that allow him to assume what he wants to assume, with the Constitution being cut up and rearranged to suit his whims.

The interviewer brings up a very cogent point: the idea of a nuclear explosion being imminent and we happen to have the mastermind in custody and all we need to do is torture him, this is as unlikely a situation as to be imaginable. Sure, it’s fine for Jack Bauer (Scalia’s a fan, as you can guess–note his reference to a “bomb that is about to blow up Los Angeles”), but in real life, it ain’t gonna happen. The worry: that what might be reasonable in a fantasy situation could lead to an approval of torture that is used commonly in far more questionable circumstances. Scalia’s response: it’s perfectly reasonable to ask the fantasy-scenario question to open the door, and then “once you acknowledge that [torture is OK in that scenario], we’re into a different game. How close does the threat have to be? And how severe can the infliction of pain be?” So, according to Scalia, you can use the unlikeliest of scenarios to open a door which can then be used to do constitutionally questionable actions in a variety of contexts, so long as you suss them out in a way that sounds reasonable to you personally. The problem is that any action could be justified by dreaming up the most bizarre and extreme scenario possible; using Scalia’s metric, just about anything could then be rationalized as within constitutional grounds.

You can also see Scalia making excuses for torture even beyond his legal maneuverings; he speaks of “so-called” torture, characterizing it more than once as “smacking someone in the face,” as if smacking someone in the face in any way characterizes torture; this demonstrates a willingness to trivialize the infliction of horrific pain in order to further justify it. And if you look closely, he even violates his own principles: he’s willing to judge specifically how cruel you can be, after having said that the Constitution doesn’t apply. Isn’t that “legislating form the bench”?

In short, Scalia is doing what strict constructionists do best: using the letter of the law to violate the spirit of the law, and then weaseling with definitions to allow for a reconstruction of law to read into it a conservative dream of what should and should not be allowed. If you read the Bill of Rights, it is impossible to come away with the impression that the founders felt it was hunky-dory to torture criminal suspects for information. Everything there is carefully constructed to protect the rights of the innocent, and even in many cases the rights of the guilty; to assure that criminal suspects are not mistreated, that all care is taken to assure justice is being carried out fairly, and that the government is not doing anything questionable or harmful.

To parse the Bill of Rights to such extremes as to allow for torture is a clear violation of the spirit of the Bill of Rights. Of course, as a strict constructionist, Scalia spits on the spirit of the Constitution. Understand that, and you can understand the context of Scalia’s statements.

From the way the Supreme Court justices were forming their questions, it seems pretty clear that the Republican majority among them, this time including Kennedy, was biased in favor of supporting Republican attempts to disenfranchise Democratic voters.

The case in question is an Indiana law that requires voters to present a photo ID in order to cast a ballot. Supporters of such ID laws (coincidentally, they are pretty much always Republicans) argue that the measure will stem voter fraud, though they cannot produce evidence of voter fraud that they are supposedly guarding against. Nationwide, it has been an open secret that such laws are favored by conservatives because mostly Democratic voters are the ones who lack such IDs. And while in most (but not all) cases, it is possible for people to get such IDs, the fact remains that it is an additional hurdle, and every additional hurdle causes a certain number of voters to turn away from the polls.

A way of measuring this is actually pretty easy: imagine that a law is passed which requires only Republican voters to first go to their county office and pick up a “voting slip,” for free, which would then be presented at the polling place to allow the person to vote. The method is easy, it’s free (beyond transportation costs and time), and does not deny a single person the right to vote–so why object? Well, of course, because it only requires Republicans to do so, not Independents, Democrats, Libertarians, or others. All the arguments you hear the right-wing Supreme Court justices using could apply to this law as well: the process is easy and free, everyone would still be able to vote, etc.

Three problems: it is a hurdle which discourages legitimate voters, there is no genuine reason to do so, and it is a law used almost exclusively by one political party which unfairly burdens an opposing party. Such laws are nothing but watered-down, modern-day Jim Crow poll taxes. The entire matter, cast by Republicans as a law enforcement issue, is almost by definition a wholly political issue. The laws are drafted, campaigned for, and passed by Republicans over the protests of Democrats, have little or no effect on Republican voters while bearing a definite burden on Democratic voters, and in courts, the laws are upheld by Republican-appointed judges and dissented to by Democratic-appointed judges.

Naturally, such niceties slipped right past the conservative justices. Alito said, “There is nothing to quantify the extent of the problem or the extent of the burden,” but despite this, showed signs that he would uphold the Republican law. So, it’s OK to disenfranchise voters so long as you work in grey areas? I’m glad that his standards are so high; usually, where there is doubt, I would think one should lean toward protecting people’s rights instead of stripping them away, but then I’m not a Supreme Court justice like Alito is.

Roberts said, “”You cannot point to a single instance of someone who was denied the right to vote,“ despite the fact that the plaintiffs did exactly that, in the case of one Mary-Jo Criswell. Not to mention that the Republicans defending this cannot point to a single instance where this law would prevent voter fraud. And, apparently, Roberts is OK with people who are unfairly and unnecessarily burdened and discouraged from voting, so long as they are not demonstrably stripped of their voting rights.

Scalia went double-time in his conservative defense of the law; he reportedly ”wondered why the Democrats were the ones filing the lawsuit, saying it should have been filed by individual voters who may have been directly harmed by the law.“ Apparently Scalia forgot to ask why the Republicans were the ones pushing for the laws in every state; apparently, only the motives of Democrats, not Republicans, are suspect. Scalia also suggested that ”the Democrats’ claim should be thrown out because it did not rely on instances of people who were actually prevented from voting.“ Two problems: as stated above, they did show people who were prevented from voting (and could point to hurdles unfairly discouraging specific groups), and then there’s the fact that the Republicans who drafted the law did not rely on instances of people who were actually committing voter fraud. Apparently none of these ironies registered with the justice whose political party would benefit from the law.

Thomas was quiet, as always, but one can pretty easily guess as to what he was thinking.

Hopefully, the idea that Kennedy will add some caveats to the decision will come true, and we’ll see some reasonable restrictions that will not condone the full-out Republican drive to stem voter fraud that doesn’t exist in order to suppress Democratic voters.