Patterico's Pontifications


You Got Questions, I Got Answers

Filed under: Blogging Matters — Patterico @ 9:58 pm

As part of some obscure blogging ritual (don’t ask me, I have no idea), Xrlq recently asked me five questions. He’s starting to get antsy about the fact that I haven’t answered. Relax, dude. Here are the answers:

1. If you were a crayon, what color crayon would you be, and why?

Chestnut. That is the crayon formerly named “Indian Red” for reasons having nothing to do with “Native Americans.” Nevertheless, politically correct people with way too much time on their hands (a bad combination) forced the company to change the name of the crayon from “Indian Red” to “Chestnut.”

I’d change it back, just to irritate the P.C. crowd.

Runners-up: blizzard blue, magic mint, mulberry, and teal blue. All are recently retired. I’m jealous.

2. Suppose that the unthinkable happens, and California becomes a right-to-carry state, where everyone with a clean record can obtain a concealed carry permit with about as much difficulty as a driver license. A suspected gang member with no criminal convictions is caught carrying a concealed weapon, but is not suspected of any other crime. When asked why he did not have a permit, he became indignant, saying “I shouldn’t have to ask government for permission to exercise my constitutional rights.” Prosecute?

Absolutely — and let’s hope they got the confession on tape.

I understand, of course, that you’re mocking my position that the FEC has no right to pass regulations that limit bloggers’ (or anyone else’s) core First Amendment rights. But I don’t see it as the same issue.

Every right is subject to reasonable restrictions. The classic example is yelling “Fire!” in a crowded theater. (Incidentally, my con law professor Jack Balkin claimed that he once did exactly that. He said that a lot of people looked at him funny — but he wasn’t arrested.) You can’t engage in slander or libel. Etc.

People can debate whether it is a reasonable restriction to impose a licensing requirement for those seeking to possess a concealed firearm. I don’t have a strong opinion about it one way or the other. But least one blogger I respect says a CCW permit requirement is no big deal, as long as the permit is reasonably available to all law-abiding citizens — which it is in your hypothetical California, but isn’t in most of real-life California.

What the FEC might do is very different. If the FEC tries to place a value on links to a candidate’s web site, that means they could claim the right to limit the number of such links. This would amount to a direct muzzling of core political speech. It would be intolerable, and not even close to a reasonable restriction.

I understand that the FEC is indicating that it doesn’t plan to proceed down this road. But the fact that it claims the authority to do so should be deeply troubling to every American, even if it is currently taking a hands-off approach.

3. Suppose the FEC issues a new regulation that requires bloggers to publicly disclose any material affiliations they may have with the campaigns of any political candidates they promote on their private site. Suppose further that for reasons unrelated to this regulation, you become directly involved in that campaign, but continue blogging about that candidate like anyone else. Do you disclose your affiliation?

Yes, I do. This is a simple ethical question.

So why are you asking it? Because, of course, this is another “gotcha” question. You’re cleverly trying to justify your lawyerly re-writing of my free speech pledge, by presenting me with a situation where my ethics would require me to take steps that just so happen to constitute “obedience” to unconstitutional regulations.

I am not fazed. My pledge wasn’t bumper-sticker material anyway, but I didn’t want to fill it with so many qualifications that it lost all its spirit. I think people understood that, in context, the idea was to keep on keeping on, and f— the FEC (now that’s bumper-sticker material!).

It is beyond question that bloggers who want to be trusted by their readers must disclose any conflicts of interest whatsoever. I will always do that.

4. Given the opportunity, how would you change Florida and/or federal law to prevent the next Schindler/Schiavo debacle?

I have discussed this issue in this column. In essence, I would require a standard of “beyond a reasonable doubt” to be employed in cases where a court will directly determine whether someone lives or dies. I would also insist that such decisions be made by a unanimous jury, rather than a single judge. Finally, I would prevent any killing by means that a court would consider “cruel and unusual punishment” if used to execute a convicted killer.

5. What did you ever see in TalkLeft?

I am interested in criminal law issues, and in people who have a different perspective. She and her co-blogger are prolific and cover a wide range of topics. I often learned something new when I visited.

However, over time I came to realize that Jeralyn Merritt’s mission is not primarily to explore the truth, but rather to stoke partisan fires on the left side of the political aisle. I am not trying to insult her by saying so; she has admitted this on many occasions, though she might put it differently.

As that became more and more apparent, I lost interest in reading her site. Now, to stay in touch with the views of the left, I read Kevin Drum.

I suppose the idea now is that I am supposed to interview five other bloggers. Feel free to sign up in the comments.

Free Speech Pledge — Link Update

Filed under: Civil Liberties — Patterico @ 9:50 pm

If you have sent me a link to your free speech pledge, and it’s not up yet, don’t despair. I have been overwhelmed. I will try to put up all remaining links this weekend.

I am also interested in trading blogroll links with anyone who took the pledge. I am considering setting up a new category of blogroll links for those who took the pledge. If I do, it will take time. In the meantime, if you’re interested in being added to my blogroll, and you took the pledge, then 1) make sure I am blogrolled on your site, and 2) send me an e-mail at patterico *at* patterico *dot* com.

Calling All Lawyers

Filed under: Court Decisions,Schiavo — Patterico @ 5:04 pm

I have again read the federal judge’s latest opinion in the Schiavo case. Much of it appears sound. The one part that doesn’t ring true for me is the judge’s insistence that no state action is involved in this case. [See UPDATE below.]

This determination seems like an exaltation of form over substance. Michael Schiavo could not legally starve Terri Schiavo without the court’s involvement.

I am especially puzzled by the judge’s statement on page 9 of the order:

Michael Schiavo and Judge Greer are not state actors.

This may well be true as to Michael Schiavo, but it is assuredly not true as to Judge Greer. This statement is directly contradicted by one of the cases the judge cites: Harvey v. Harvey, 949 F.2d 1127 (11th Cir. 1992), which states:

A county probate judge clearly is a state actor.

I don’t have time to do the proper research (and the judge’s refusal to grant a stay may mean that he didn’t either). So, I am turning to the experts who read this site. I note that the judge appears to be relying upon section 1983 cases. Is he confusing the concept of “state action” for the claims in the Schiavo suit with the requirement under section 1983 that a plaintiff plead an action under color of law? Or are those the same thing?

I’d like the constitutional scholars to weigh in. Xrlq? Clam? Anyone else?

P.S. As I read the order, it struck me that what Congress did was necessarily quite limited in nature — despite the howls of protest you keep hearing from folks across the nation.

The reason is the limited jurisdiction of the federal courts. The law passed by Congress necessarily required a court to examine only violations under the laws or Constitution of the United States. If you accept the judge’s premise that there was no state action in this case, then the federal violations that can be alleged are really quite limited.

If Congress had ordered the federal courts to completely re-review the state decisions to determine whether state law had been applied correctly, that would indeed have been outrageous and improper — and (in my opinion) clearly unconstitutional. What Congress actually did was simply provide an avenue of federal review to ensure that no federal rights of Ms. Schiavo’s had been violated. If Judge Whittemore’s analysis was correct, then we have had that review.

Hysterics: the republic is not broken. You can all calm down.

UPDATE: Two comments below strengthen my argument that Congress’s action was a measured act, as opposed to the outrage so many portray it to be.

First, Matto Ichiban cites authority for the proposition that “state action” under the Fourteenth Amendment is the same as “under color of state law” for sec. 1983. This tends to indicate that the judge got it right — meaning the federal rights that the federal court was entitled to consider were indeed quite limited.

Second, Xrlq reminds us of the (I think rather far-fetched) idea that Congress could have allowed claims based on minimal diversity — which would have entitled the Schindlers to raise state-law claims if one of them had moved out of the state. He also reminds us that, if the Schindlers could have raised a valid federal claim (which they could not), then there would be ancillary jurisdiction to hear state-law claims as well.

This simply means that Congress did not go as far as it could have. In limiting claims to federal questions, Congress did indeed simply provide for the airing of limited causes of action in federal court, to ensure that Terri Schiavo’s federal rights were not violated. That is hardly an extreme measure.

The only thing that makes it sound odd at all is that it was limited to the Schiavo case only — but you can thank Democrats for that. Republicans wanted a broader law; Democrats were the ones who insisted that it be limited to this case. So if you don’t like that aspect of it, write your Democrat legislator and complain.

UPDATE: Ann Althouse says much the same thing about the statute.

What the Schiavo Case Is About

Filed under: Schiavo — Patterico @ 6:52 am

Here is one way of summing up the Schiavo case.

There is a group of people in the country who think Terri Schiavo should be taken off her feeding tube. They see no value in her life, and they wouldn’t want to live that way. They have a certain outlook on life.

There is also a significant group of people in the country who think Terri Schiavo should be allowed to live. They may have many reasons for this, including religion and distrust of doctors. Whatever the reason, they believe strongly that the feeding tube should stay. They have a very different outlook on life from the first group.

As far as I am concerned, the issue is whether Terri Schiavo herself, when she was able to make such decisions, was the type of person who fell into the first group, or the second.

If she was the first type of person, it would be terrible to force her to stay alive under these circumstances.

If she was the second type, it would be terrible to starve and dehydrate her to death.

And if we just don’t know, there cannot be clear and convincing evidence of her wish to die, and she should be kept alive.

The Florida courts found that Terri Schiavo would want to die. I am not so sure. Her friend Diane Meyer quoted Terri Schiavo as saying: “Where there’s life, there’s hope.” Her testimony was discounted by a judge primarily for a reason that was factually incorrect.

I have seen other friends of Terri Schiavo’s on television saying that they had heard her say things similar to that reported by Diane Meyer. While they never heard her talk about end-of-life issues specifically, they say that her basic attitude on life was: “Where there’s life, there’s hope.”

If she really was a person like that, she should not be forced to die.

That is one of the biggest reasons that I am disturbed by this case.

Second Federal Case Goes Nowhere

Filed under: Schiavo — Patterico @ 6:36 am

The Schindlers’ second try in federal court failed. The judge’s order is here.

I don’t envy the judge’s having to pull an all-nighter on this one.

UPDATE: A quick read of the opinion, which is all I have time for, reveals no obvious mistakes in logic. I am interested in some of the issues raised, and may look at them more closely when I have time.

I can only marvel at the difference between the speed with which this matter was handled, and the plodding way that death penalty cases move through the federal courts. Doesn’t it seem like there is some imbalance there? Even when a Death Row inmate raises clearly implausible claims, they are never disposed of in a week.

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