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.