Monday, December 30, 2013

An invalid defense for vacuuming metadata

Eric Posner's piece "The NSA's Metadata Program Is Perfectly Constitutional" supports its legal argument (a sound one based on existing Supreme Court precedent) with what at first blush seems to be an appeal to common sense. Posner asserts:
People can more easily find out things about each other today than in 1979, thanks to the Web, and so people now expect strangers—including potential friends, mates, and bosses—to know more about them today than they did in the past. People can also more easily share personal information about themselves, and rather than refrain from doing so in order to protect their privacy, they enthusiastically post photos and videos of themselves on Facebook and other social media sites. Thus, it is possible that people’s sense of privacy is also greatly altered, as if the whole country moved from a big city to a small town, trading in the benefits of anonymity and independence for the advantages of community and security.
It's always risky to proclaim, "Thus it is" and make that a crux of your argument. Even if he's right — and I'm far from convinced he is (my sense of privacy isn't "greatly altered") — his argument is irrelevant. The government can mine our social media to its heart's content: that doesn't give it free rein to poke into other aspects of our lives. (Well, there is that nasty Supreme Court precedent, but I think that rests on shaky reasoning. I hew to Justice Marshall's dissent, and I think a lot of other people do, too.)

Posner is simply too eager to convince us we have moved beyond the expectation of privacy. His eagerness betrays his knowledge that the argument holds no water.

Saturday, December 28, 2013

Why I love Black Adder

From "Nob and Nobility":
Am I jumping the gun, Baldrick, or are the words "I have a cunning plan" marching with ill-deserved confidence in the direction of this conversation?
... and:
Unless I think of something, tomorrow we go to meet our Maker: in my case God, in your case God knows.
Finally, from "Ink and Incapability":
Believe me, Baldrick, eternity in the company of Beelzebub and all his hellish instruments of death will be a picnic compared to five minutes with me ... and this pencil.

A&E's message

The A&E Network's hit reality TV series Duck Dynasty was in danger for a time due to paterfamilias Phil Robertson's inflammatory remarks about gays and blacks. A&E suspended him from the show for an "indefinite" period shortly after the remarks hit the news. The rest of the Robertson family swiftly declared they would not participate in the show without him.

A&E caved, announcing that Phil would be back when shooting resumed in the spring. That "time of danger" for the show? Not quite a whole week.

If you care, James Hibberd at Entertainment Weekly explains the business reasons for A&E's backing-down.

In spite of all the heated commentary in the national conversation, the dynamics of this situation owe nothing to the peanut gallery. Everything that has happened is the result of actions by the Robertson clan and the network. Yet we in the peanut gallery will have the last word. Will the TV show remain a big moneymaker for the network, or will the audience fall away out of disgust with Phil?

One way or another, a message will be sent to A&E.

A&E already sent its message to us: money speaks louder than anything else.

(On a separate note, why aren't you Christians who aren't white supremacists and homophobes drowning out Robertson and his defenders with your outrage? They've said their views derive from the Bible and thus are literally holy writ. I don't know of a more obscene and self-serving assault on Christianity than that.)

Monday, December 23, 2013

Corporations and religious beliefs

[I started this entry nearly a month ago, but have been struggling to express myself cogently on the subject. I'll try to ensure I've taken current events into account.]

It should surprise no one who has been paying attention that the Supreme Court will be addressing whether corporations can exempt themselves from the Affordable Care Act's rule that compliant insurance plans must provide coverage for contraception. (The rule wasn't part of the legislation per se; it was an operational detail determined by the enforcing agency, the Department of Health and Human Services.) The protesting company is Hobby Lobby, which is privately owned.

(I found "Hobby Lobby: Federal Agent" by Joey Fishkin at the Balkinization blog to be an informative, evenhanded look at the implications of the Hobby Lobby case. Fishkin specifically explains why the Affordable Care Act "changed the baseline" for what employer-provided health insurance means and why employers are less able to assert First Amendment freedoms than they were before the ACA. He reaches similar conclusions to mine, but I wrote the bulk of this entry long before I found Fishkin's piece.)

Attorneys for business owners objecting to the contraception-coverage rule welcomed the Court's decision to take up their challenge.

Kyle Duncan, a lawyer with the Becket Fund for Religious Liberty, which represents Hobby Lobby, said he was pleased that the justices had agreed to resolve the split among the federal appeals courts. “We hope the Supreme Court will vindicate the rights of family business owners,” he said.
The challenges to the contraception-coverage mandate are as absurd a distortion of what it means to be a "person" under the law as anything I've ever seen.

To claim "personhood" for a corporate entity — meaning any group of people, not just a corporation — is a travesty of logic. It's an error that the Supreme Court almost incidentally committed in 1886 in Santa Clara County v. Southern Pacific Railroad Company. Have you ever read what the Court actually wrote about corporate personhood in that landmark decision? Actually, it wrote nothing on the subject in the decision itself. Here's the sum total of the Court's reasoning on corporate personhood, and it is entirely within the syllabus:

One of the points made and discussed at length in the brief of counsel for defendants in error was that "corporations are persons within the meaning of the Fourteenth Amendment to the Constitution of the United States." Before argument, MR. CHIEF JUSTICE WAITE said:

"The Court does not wish to hear argument on the question whether the provision in the Fourteenth Amendment to the Constitution which forbids a state to deny to any person within its jurisdiction the equal protection of the laws applies to these corporations. We are all of opinion that it does. "

That's it. There's no explanation as to how the Court arrived at that blunt, unanimous conclusion.

Notice how I referred to the Court as if it had thoughts. That's a mere figure of speech (one I will use again and again in this little screed). "The Court" is an institution comprising human beings. Those human beings each have thoughts. The institution does not. No matter how many human beings comprise a group, that group doesn't think. Neither does it have a conscience, nor ethics, nor experience, nor any of the mental states a human being can experience.

That's the central, inescapable and fatal flaw with the Court's finding that corporate personhood is real.

"Can't the thoughts of the majority be the 'thoughts' of the group?" Sometimes, perhaps, but hardly always. When the thoughts in question touch on a flesh-and-blood person's deepest beliefs, how is it fair that the majority should rule? Just because everyone around me is Methodist doesn't mean I should have to be Methodist. And the patent unfairness of the situation is far worse if it's the sole owner of a business who wants to shape the company's "thoughts" on the subject.

It's astonishing and infuriating that this seemingly unconsidered, incidental remark that isn't even part of a decision has guided the Court's decisionmaking for more than a century. It's way, way past time the Court was required to show its work, so to speak — required to tackle the thorny (il)logic of corporate personhood and to decide what, if anything, that pernicious term means.

If the Citizens United majority had had an ounce of integrity, it would have confronted Santa Clara head-on and would have articulated a defensible standard for how corporate entities should be treated under the law, and along the way would have disavowed the very notion of corporate personhood. At the very least the Court should have explained how corporate entities like Citizens United should be regarded under the law, and should have done so in some way that didn't leave open the possibility — nay, the certainty — that lower courts would have to extend "personhood" to such groups in ways that pervert both the law and good sense. The Court's revisiting of the personhood of corporate entities was inevitable because of its asinine prior holdings. And the worst part of this giant waste of the Court's time? The right-wing Justices will waste even more time twisting the law to suit the ideological axes they're grinding.

Looking at the matter less ideologically, what does it mean for a group of people to exercise religion?

When we think of a group of people exercising religion, we think first and foremost of groups assembled to worship. The people are assembled for the express purpose of carrying out the rituals called for by their religious beliefs. Such a group can be thought to have a religious identity. However, as we saw above, that identity is an illusion, or rather, it is an illusion that "the group" has a fixed identity representing all of its members.

Adherents, in the United States anyway, are free to reject the consensus by leaving the group. Advocates of "religious freedom" for businesses make freedom of association a key defense of their position: if you, the employee, don't like the business' religious stance, you're free to leave. By contrast, the owners can't leave. Thus business owners must be free to run their businesses free from governmental rules that violate the owners' religious principles.

Should this be an acceptable argument?

Consider what the religious-freedom-for-businesses advocates are claiming: the right of a business owner to honor his religious beliefs is more important than the right of his employees to access legal goods and services.

Religious-freedom-for-businesses advocates insist that nobody is preventing employees from accessing those legal goods and services. Advocates simply object to paying for those goods and services out of the business owner's pocket.

Yet that's what happens no matter what if the employee seeks contraception!

Right now, if the employee wants contraceptive products or services, he or she pays for them out of pocket. Under the Affordable Care Act, the employee could purchase them using healthcare insurance. In both cases, the money to buy the contraceptives came from the employer. In neither case is the employer required to purchase the contraceptives directly. Once the employee has been paid — and healthcare insurance is part of the employee's compensation — the employer has no right to dictate how the employee should spend the money. To object to healthcare insurance premiums because the insurance might pay for contraception is as nonsensical as objecting to paying the employee at all because he might use his salary to pay for contraception at the drugstore.

How far can you exercise your right to practice your religious beliefs?

The answer had better stop short of, "where your beliefs affect my beliefs".

Your morality may not be mine. You may hate that. I might, too. Yet if we're to coexist in this wildly varied country — if we're to preserve the spirit and the letter of the social compact that is our constitutional republic — we have got to shape the law so as not to deprive each other of our rights.

To require you to purchase health insurance that covers contraception may seem to you like an intolerable infringement of your rights. I don't understand why: if you object to contraception, don't use it! However, fairness requires that as a business owner (or at least as the person in charge), you may not express your religious belief in a way that denies your employees legally permitted goods and services.

Yes, this is a balancing act. I don't see a way of satisfying the religious beliefs of the business owner and access by employees to a legal benefit without making someone unhappy — without infringing on someone's claimed right. I unhesitatingly come down on the side of the employees who are being deprived of a legal good because I think the employer's freedom to exercise his or her religious belief is afforded enough scope outside the context of his or her business. For this reason, I also think a business cannot be allowed to be a legally recognized venue in which to exercise your religious beliefs.

It may well be that you consciously run your business according to religious tenets. You may deserve kudos for bringing virtue to your vocation. However, your religious belief has to give way if it infringes on your employees' rights. The balance of power already favors the employer; the coercive effect of forcing employees to be subject to their (human) employer's religious freedom would be an intolerable burden on the employees' own First Amendment rights.

The bottom line:

  • Corporate entities are not natural persons.
  • Businesses cannot have First Amendment rights.

We may choose one day to grant businesses, corporate or otherwise, certain rights that resemble those under the First Amendment. However, the sweeping rights afforded to individual human beings cannot be extended in their entirety to businesses and groups. As Citizens United and the current cases arguing for religious rights for corporations attest, corporate personhood is a dangerous, destructive concept that the U.S. Supreme Court should never have indulged. The Roberts Court's integrity, and fidelity to the spirit of the Constitution, will be judged by whether they return our society to fairness by repudiating corporate personhood as logic and comity demand.

Sunday, December 22, 2013

Gun advocates' blind spot

An article headlined, "When the Right to Bear Arms Includes the Mentally Ill" by Michael Luo and Mike McIntire, mentions state-level gun-seizure laws that are stricter than corresponding federal laws. These laws all involve situations in which the suspect is alleged to be mentally unstable.

The stricter state laws do not please everyone.

Gun rights advocates worry that seizure laws will ensnare law-abiding citizens who pose no threat. In Connecticut, with its imminent-risk standard for seizure, the law sometimes “reaches pretty normal people,” said Rachel Baird, a lawyer who has sued police departments over gun confiscations.

“People make comments all the time when they’re angry or frustrated — ‘I’m going to come down there, and it won’t be pretty’ — but if you say that and you own a firearm, it immediately takes on a context that it otherwise wouldn’t,” said Ms. Baird, a former prosecutor.

Baird's implication is that the "context" surrounding the remark isn't justified. Her position is clearly that the gun owner is, first and foremost, an ordinary law-abiding citizen.

Well, guess what? Guns alter the equation. You may be a law-abiding citizen, but in such circumstances what the rest of us have to contend with is that you're a gun owner, and at the moment we don't know how law-abiding you are. "Innocent until proven guilty" doesn't mean we shouldn't take minimal precautions just in case you are guilty, or in this case, mentally unstable.

If you've got a gun, you don't keep it for decorative purposes: you could use it. Sorry if you don't like how that truth affects how law enforcement treats firearms owners when they make threatening remarks, but your right to own firearms doesn't trump my right to be safe.

It's not always easy to tell whether someone is just blowing off steam, or is involuntarily expressing serious mental illness. It's a reasonable public safety measure to deprive that person of guns while the authorities figure out whether he or she is of sound mind.

Innocent people are inconvenienced by the law all the time. It's unavoidable. Being a gun owner doesn't exempt you from inconvenience when the law is reasonably trying to safeguard all of us.

By the way — gun owners, are you still there? Because the rest of the article talks about how little can be done under federal and most state laws to keep guns out of the hands of the mentally ill. So Ms. Baird, relax. The law is still overwhelmingly on your side. Unfortunately.

Saturday, December 21, 2013

Idle observation of the moment

When did Slate's home page become such a visual disaster? It looks like content has been vomited at random onto the screen.

"Nelson Mandela vs. his hagiography", Benjamin Fogel

Now that Nelson Mandela's body has had a chance to cool, figuratively speaking, we can appraise him and his legacy with a more objective eye. I found Benjamin Fogel's essay (from Jacobin via Salon) to be persuasively evenhanded. Caveat: I'm not a Mandela scholar. All I know is, Fogel plausibly explains Mandela's sometimes baffling contradictions and seeming lurches in policy direction, not to mention the dissonance between the ideals Mandela putatively exemplified and the realities of South African life.
There were really two Mandelas. The first is that of the revolutionary, the lawyer, the politician, flaws and all. The second is a sanitized myth: the father of the nation, the global icon beloved by everyone from the purveyors of global humanitarian platitudes to even the erstwhile enemies of the African National Congress. This Mandela is removed of his humanity and touted as an abstract signifier of moral righteousness.
It's hard not to be reminded of George Washington and some of the other so-called Founding Fathers of the United States. They, too, were real men with real flaws (and virtues, to be sure) who have been mythologized by those in successive generations who have found the myths more useful than the reality. One day, I'm sure, there will be a story told to South African children about Mandela and whatever the South African equivalent is of a cherry tree.

Wednesday, December 18, 2013

One less arrogant fool

Harold Camping is dead.

He's the fellow who spent years crunching numbers in the Bible, coming up with various dates for the Rapture. The best-known of those dates was 21 May 2011, in no small part because Camping took out a lot of advertising for his prediction.

It's not nice to speak ill of the dead, but he was a putz.

His arrogant certainty that the world would end led many in his credulous radio audience to ruin their Earthly lives in preparation for a heavenly one. Yet when his "Rapture 2011" prediction failed to come off, did Camping make restitution to those of his listeners who overturned their affairs because of him? Of course not.

Yes, those snookered listeners were foolish, but Harold Camping took shameless advantage of them in the name of religion.

By the way, how egotistical do you have to be to claim to have cracked the Almighty's secret code singlehandedly — multiple times?

Did even a scintilla of doubt ever cross his mind? Maybe a trace of, oh, I don't know — humility?

I suppose it's kind of hard to walk back the consequences of such hubris. That's why false prophets are reviled.

If you arrogate to yourself special insight into the divine will, you, too, can count on being reviled — like Harold Camping.

Saturday, December 14, 2013

That noise out of South Africa ...

... is a shredder working overtime to destroy all evidence of who hired that bogus sign-language interpreter for Nelson Mandela's memorial service.

NBC News' Alexander Smith reports that the would-be interpreter, Thamsanqa Jantjie, was the subject of a complaint in 2012 for meaningless signing. Apparently, though, the complaint by the Deaf Federation of South Africa didn't stop the African National Congress from using Jantjie for at least one other event, not including the Mandela memorial service.

Nobody can find the sign-language schools he claims to have attended. The South African government now can't even find the agency that employs him. He says he suffered a schizophrenic attack during the service — not before, not after, during — that left him seeing angels.

Whew. If Jantjie is legit, he must have ticked off Somebody Upstairs in a big way to be left looking like such an utter fraud.

The South African government has been embarrassed and heads will roll. The only question is whether Jantjie and the government functionaries who wlll be blamed for this fiasco will wind up in the unemployment line, or in jail.

Friday, December 6, 2013

"Sun City", the video

A while back I waxed rhapsodic about the anti-apartheid protest song, "Sun City". The video is online.

It would be hard to mess up this powerful piece of music, but this video almost succeeds. Many of the singers marching through the streets look as if they know how stagey and inauthentic their lip-syncing is. Worse, the dancing makes them look like they're partying rather than protesting.

Yet intercut with these inept sequences is powerful imagery. An animated fist rips the screen as if it were a poster, revealing in the jagged tears footage from South Africa that includes peaceful protests, police beatings, funeral processions, and oblivious vacationers in the showcase South African resort of the song's title.

I was reminded of the song in the wake of Nelson Mandela's death. He and it have nothing in common except that they're both linked to "South Africa" in my mind. Even so, the song reminds us of what South Africa once was and why Mandela mattered.

Thursday, December 5, 2013

Nelson Mandela, 1918-2013

You've probably heard that former South African president Nelson Mandela died today. He was 95.

I don't look for public figures to be heroes. Even Mother Theresa has her detractors and I don't know whether they have malice in their hearts or not. Nelson Mandela, it should be remembered, advocated violence against the South African government, and advocating violence makes me uncomfortable no matter how justified it is. It's much easier to venerate the martyred Martin Luther King, Jr., who steadfastly rejected violence.

But Mandela did something that few of us can imagine doing. After serving 27 years in solitary confinement under harsh conditions, doing hard labor for 18 years of that time (per a report I just saw on The Rachel Maddow Show), Mandela, upon being set free, didn't lead his legions of followers in bloody retribution against the government that imprisoned him. To the contrary, he exerted all his influence to guide his nation in search of reconciliation — between the jailers and the jailed, between blacks and whites.

I like to think King, under similar circumstances, would have acted likewise. But we'll never know. And whatever we like to think King would have done, Mandela actually did it.

As I said, I don't look for public figures to be heroes. But in spite of my cynicism about human nature, I find it impossible not to admire Mandela deeply. I am certain that most of us would not have the greatness of spirit to rise above our bitterness the way Mandela did. I doubt I would. That saddens me. But I try to keep Mandela's example in mind, and hope that one day his example will find its way into my heart.