Some thoughts on the arrests at the Jefferson Memorial

Yesterday, five people were arrested inside the Jefferson Memorial for silently dancing. A group of about a dozen showed up to protest a recent court ruling upholding the governments right to ban certain expression at memorials.

 

If you have not heard about this, you can read the story and watch a video here.

The event stirred a lot of controversy, with folks coming down on every side of this multifaceted issue. Some praised the protestors for standing up for our free speech rights. Others condemned them as rabble-rousers, looking for trouble and finding it. As a result, several people thought the police were completely justified in their response. Others argued that the police actions illustrate a movement toward a police state in the U.S.

After contemplating the incident for about 24 hours, I thought I would share a few random thoughts.

First, I basically agree with the court decision. The First Amendment was never intended as a carte blance right to say whatever whenever. When the framers drafted the amendment, a well-defined understanding of what “free speech” meant already existed. For instance, slander was a punishable offense, as was “blasphemy” and “lewdness.” So the framers clearly didn’t mean all speech was permitted at all times.

In essence, the judges in the memorial case followed precedent, allowing the government to limit speech, keeping with the “purpose” of the place. A memorial serves as a place of honor and solemnity, and regulating expression to maintain that purpose does not strike me as a particularly insidious thing. We limit speech in this was all the time. I can’t go hold a noisy protest in the middle of my street at 2 a.m. I would find myself under arrest for disturbing the peace – assuming a neighbor didn’t come out and whip my butt before the cops showed up.

Opponents will counter that a plain reading of the First Amendment makes no exception for places. And this is true. But I would counter that if we are going to appeal to a literal meaning, the First Amendment offers no protection for dancing. There exists no indication that the framers considered all "expression" speech. That is a construct of our court system through the evolution of First Amendment law. It becomes difficult to argue that the courts can create a construction protecting "dance" as expression and then turn around and say the court cannot create a construction limiting speech in certain places.

That said; the police overreacted. The force used in no way correlated to the crime. If the police were concerned about maintaining decorum at the monument, they certainly botched that. They should have just let the group do its little dance (I doubt anyone would have noticed anyway. It was of course “silent”) and then cited them after the fact. But I suspect the police intended to make a point, just like the protestors.

I found the treatment of those filming the event particularly troubling. The police tried to shut down videotaping, threatening at least one man with a camera with arrest if he continued to record. That indicates to me the officers knew they were over the line and didn’t particularly want anybody to see it.

Courts have consistently held that police cannot stop anybody from filming as long as they remain in an area open to the general public. The police have the right and authority to clear a "crime" scene, for their own safety and the safety of bystanders. But once a person complied and was outside of the restricted area, he had every right to continue recording. Threatening arrest for filming was a clear violation of press rights.

I wonder if the camera man working for the local NBC affiliate lodged any protest. He was shoved out of the memorial and that was way out of line. There really wasn’t any reason to clear everybody out. The situation was well in hand at that point. Again, it appears the police wanted to limit their exposure. That is a dangerous thing. Nasty stuff happens in secret – thus the importance of a free press.

And by the way, press means every citizen. You don’t have to be a member of some secret club to enjoy the rights of a free press.

Finally, I commend the protestors. Even though don’t agree with their position from a constitutional standpoint, I do respect the fact that they stood up for what they believe. They didn’t just submit. And the reaction taught us a valuable thing about the police and how they handle such situations – pretty darn poorly.

The whole incident was rife with irony. Police arrest citizens exercising their rights in the shadow of the statue of a man who wrote, "Governments are instituted among Men, deriving their just powers from the consent of the governed."

It appears these folks don't consent.

Want to be searched? Take the bus

 A very poignant  turn of the tables courtesy of  Jeff Matthews, a lawyer from Houston.

While some people argue that travelers consent to unreasonable search by choosing to fly and that these travelers can remain free from search by choosing not to fly and taking a bus, it seems that a better Constitutional construction of the argument would be that if people can't bring themselves to board a plane without unreasonably searching everyone, perhaps they should choose not to fly and take the bus.  This is the entire premise of the Fourth Amendment - that a free people live with some degree of risk in order to preserve their freedoms.  Rather than taking away everyone's freedom, the risk averse segment ought to bear the burden of finding alternative means to avoid risk.  

Some random thoughts

A proposal to create a Confederate heritage license plate caused a big brouhaha in Kentucky last week. It got me to thinking about the way people react to symbols.

I have never considered the Confederate flag offensive, or necessarily racist, although I know many people use it in that sense. I have personally known several people who take great pride in their southern heritage and believe strongly in state sovereignty. They have never demonstrated any racist tendencies.

On the other hand, I also know some people who find any Confederate symbolism extremely offensive. They tend to assume anybody who displays these symbols MUST somehow harbor racist sentiments. They can’t conceive that the rebel flag could have any other meaning.

My initial reaction to those offended by the Confederate flag is to say, “Get over it and quit being silly.” But as I was pondering the issue the other day, it occurred to me that it’s not really fair to dismiss their interpretation of the symbol. Their view of the rebel flag evolved in a negative way due to events in their own lives that shaped their perception. You can’t simply say, “Quit feeling this way,” about something so deeply engrained. It stems as much an emotional reaction as rational, and we all know our emotions don’t always follow reason.

But it is equally unfair for those who equate all things Confederate with racism to project that view on somebody else, and then insist that they must harbor racist sentiments, or mean something harmful and negative. The southern heritage folks developed their view of things through very different experiences and sincerely view the symbolism differently.

I’m not sure you can call either side “wrong” in what they feel. Symbols aren’t objective. They find their meaning in the way each individual perceives that symbol. For instance, an American flag can stir some to prideful tears and induce blind rage in others.

So, how do we deal with the issue?

I think it comes down to something often talked about by the left, but not so often demonstrated – tolerance.

The problem arises when those who take offense at a given symbol seek to ban it. Really, what does it matter if some guy wants to drive around with a rebel flag on his truck? Why should someone else insist he doesn’t have the right to display a symbol because their own perception offends them? Last I checked we don’t have a right to live free from offense. Heck, even if the driver is a card carrying racist redneck, does it really matter if he has a rebel flag on his car?

I like my wife’s take on it. She says let them fly their rebel flags. Then she knows who they are.

***

I’m amazed at the power of media templates.

Take Ron Paul, for instance. For years, all I knew about Paul was the media spin, regurgitated through acquaintances - “He’s a nut.” There were always a few sound bites thrown in to demonstrate his nuttiness. But over the last few months, I’ve actually taken the time to LISTEN to what Paul says, in toto, without the media filter. I’ve had to conclude that either I’ve turned into a nut, or he isn’t one.

Truth is, most who tag Paul as a nut couldn’t actually tell you three things he legitimately advocates. I was one of those people – and I’m not proud of that fact.

Listen and read for yourself.

***

All those blasting Rand Paul for comparing the health care law and its effects on doctors should look past their own emotional reactions (Joel Pett) and ask themselves this question:

What exactly do you call it when somebody else dictates, by force, how you must dispose of your labor or intellectual efforts?

***

"Americans can always be counted on to do the right thing...after they have exhausted all other possibilities." – Winston Churchill

Fact checking Obama's oil production assertion

During a Town Hall meeting aired on CBS Early Morning on May 12, Pres. Obama claimed U.S. domestic oil production stands at the highest level since 2003.

“What's also true is the disruptions in the Middle East, particularly in Libya, ended up having some impact. Because people started worrying, ‘Well, even if there's still some supply now, what's gonna happen in the future.’ Those are -- things that we could not completely control. What we can control is number one -- are we producing as much as we can here in the United States? And in fact, we're producing more oil now than any time since 2003.

“So, production is actually up. Even after what happened in the Gulf, we're still saying to oil companies, ‘You can drill, as long as you do it safely. We don't want to go through another oil spill like we had -- last summer. But -- we are gonna give you permits if you show us that you've got a good plan for containing it if something goes wrong.’”

As with most things, it depends on how we look at the numbers.

In the first two months of 2004, the U.S. produced 11,126,000 barrels of oil per day, according to the U.S. Energy Information Administration. In the first two months of 2011, America produced 11,095,000 barrels per day, slightly less than the same period in 2004.

If we are going to take the president’s words literally, they are false. U.S. production during the first two months of this year lagged slightly behind 2004 figures.

But in fairness, average production is running slightly higher than at any time since the 2003 daily average of 5.7 million barrels per day - if we look at the bigger picture and assume 2011 will follow the trend of 2010.

U.S. production dropped significantly in 2004 averaging 5.46 million barrels per day. And it dropped even lower throughout the rest of the decade. But domestic production rebounded in 2010 averaging 5.51 million barrels per day.

Here’s where things get interesting. There is a reason Pres. Obama choose 2003 for his cutoff date. The years 2004 through 2009 represented a low-water mark in domestic oil production. Going back to 2000, we find the U.S. produced significantly more oil than it does today. Domestic production averaged 5.82 million barrels per day that year.

This still doesn’t give a clear picture of U.S. oil producing potential. The peak came during the early 70s. In 1970, U.S. production averaged a whopping 9.64 million barrels per day. In November 1970, the U.S. produced the highest average per day ever- 10,044,000.

So, is the U.S. producing all it can? Again, it depends on how you care to interpret the numbers. We are certainly doing better today than we were in the early mid and late 2000s. But U.S. production certainly isn’t setting any records.

In summary, I would call Obama’s statement mostly true, but you should keep in mind that he choose 2003 as his benchmark for a reason and his broader argument loses some of its force when you look at a broader oil production perspective.

I'll make you!

As I’ve mentioned before on this blog, over the last several years, I’ve taken a journey in my political philosophy from what most would define as conservatism (some would likely use the term neo-con) to a more libertarian worldview.

The journey hasn’t always proven easy. I will admit, sometimes standing on a libertarian principle makes me queasy. I’m not thrilled with standing up for someone’s right to smoke pot. Or hire a prostitute. Or gamble away their life savings. I am a devout Christian and these activities represent moral shortcomings in my mind. Even setting aside my faith, these activities wreck lives and destroy families.

Not a good plan.

But I recognize the fragility of liberty. When I start imposing my values on others, it becomes more difficult for me to defend my own choices. I find the most obvious example in protecting freedom of speech. If I don’t defend the neo-Nazi’s right to express his ideas, how can I defend my own right to criticize the government? Some would find my speech just as “dangerous” as the skin-head’s.

I think that’s the point Ron Paul was trying to make during the debate in South Carolina last week when he challenged laws criminalizing heroin.

Washington Post op-ed writer Michael Gerson didn’t get it.

“The de facto decriminalization of drugs in some neighborhoods — say, in Washington, D.C. — has encouraged widespread addiction. Children, freed from the care of their addicted parents, have the liberty to play in parks decorated by used needles. Addicts are liberated into lives of prostitution and homelessness. Welcome to Paulsville, where people are free to take soul-destroying substances and debase their bodies to support their ‘personal habits.’”

I could make the same argument for alcohol. In fact, I would argue that booze ranks equally high on the “soul-destroying substance” scale, and has wrecked far more lives than drugs like cocaine and heroin.

I wonder if Gerson advocates prohibition.

Paul went on to make the point that laws won’t stop people from engaging in destructive behavior, a point Gerson completely misconstrued.

“Paul was claiming that good people — people like the Republicans in the room — would not abuse their freedom, unlike those others who don’t deserve our sympathy.”

Gerson later piled on.

“Paul is not content to condemn a portion of his fellow citizens to self-destruction; he must mock them in their decline. Such are the manners found in Paulsville.”

I’m not sure I’m willing to pick up Gerson’s compassion card here, considering his solution lies in locking the heroin addict up in a cage.

Paul’s point, and one any thinking person has to accept as true, is that a law doesn’t stop self-destructive behavior. We have draconian drug laws. The federal government spent over $15 billion in the “war on drugs” in 2010, according to the Office of National Drug Control Policy. And we still have children being raised by drug addicted parents, kids playing on needle littered play grounds and all of the other drug-related social ills Gerson lists. Perhaps a better approach exists.

Just sayin’.

If you don’t believe me, come visit me here in Kentucky and we’ll go into some of these communities waging war against meth – and see just how many people are on meth – despite the law enforcement efforts.

But my biggest issue with Gerson, and like-minded conservatives, is this notion that they possess some kind of lock on exactly which moral values government should enforce for the good of society.

“It is the teaching of classical political philosophy and the Jewish and Christian traditions that true liberty must be appropriate to human nature.”

I happen to agree with Gerson’s view. It’s the forcing part I have a problem with.

You see, some radical Islamists believe sharia law must be enforced in order to “appropriate” true morality to human nature. They view adherence to their religion as a higher moral value than the western concept of liberty – something they presumably reject in favor of their religious law.  Adherents see no line between religious and civil law.

You have to wrap your head around the concept that some people don’t accept our view of liberty and they believe in the moral superiority of their position as strongly as the social conservative hold to theirs.

So, the question for Gerson is this – if the radical Islamists were one day able to win the hearts and minds of a majority of Americans putting his “conservative” values in the minority, would he accept sharia law? Would they not have the same “right” to dictate their values if they had the power?

If Gerson’s not willing to stand up for the right of others to engage in activities he happens to disagree with, or even finds morally repugnant, who is going to stand up for him when somebody with power comes along who finds his “Jewish and Christian traditions” a moral shortcoming?

This leads us to the root of our problem. The progressive mindset has completely infused both the left and right. Both seek to use the power of government to achieve their ends. Both look to government first.

But government was never intended to shape moral values. Its role is to protect life, liberty and property. The job of the church, the synagogue, the mosque, and whatever institution atheists create is to change the hearts and minds, to mold people into morally responsible citizens, and keep them from ruining their lives with drugs, alcohol, gambling, prostitution, et all. We need private social organizations to step up and help the addict, the poor and the sick. We need individual citizens to reach out and lend a hand to their fellow man and woman. 

But we’ve abrogated our responsibilities as Christians and as citizens, leaving everything to the government and pleading hopefully to our saviors in D.C. Too many Americans have convinced themselves that by voting for the right politician and getting the right law passed, they’ve done their job.

I respectfully disagree.

Liberty presents the only logically consistent standard and truly viable political philosophy. Each individual enjoys the freedom to live their lives as they see fit (short of infringing upon another's life, liberty or property) and also the freedom to try to convince their fellow-citizen their way is best. We retain the freedom to work to mold society into our own vision trough churches and other institutions, minus coercive force of government. If our way is truly "good" others will certainly join. If not, we will eventually come to see the error in our thinking.

I happen to believe the truth is strong enough to stand testing.

The Joshuah Glover story

In March 1852, a posse led by a federal marshal and a former "master" apprehended a runaway slave in Wisconsin. They drug him from his home and locked him in a jail in nearby Milwaukee, prepared to send him back south into bondage.

The next day, more than 3,000 Wisconsin citizens broke this former slave out of jail . Over the next several weeks, the Underground Railroad facilitated his ultimate escape to freedom in Canada.

A Milwaukee newspaper editor named Sherman Booth played an important role in motivating the people to free this runaway slave. The incident set off a seven year legal saga, with the federal government vigorously prosecuting Booth for violating the Fugitive Slave laws, and the state of Wisconsin adamantly defending him.

Wisconsin refused to cooperate with federal authorities, overruling federal courts, releasing Booth, refusing to pass trial information to the Supreme Court.

On March 19, 1859, the Wisconsin legislature passed a joint resolution.

Resolved, that this assumption of jurisdiction by the federal judiciary, in the said case, and without process, is an act of undelegated power, and therefore without authority, void and of no force.

Nullification in action.

This is the story of Joshua Glover, a man simply seeking freedom, and the citizens of Wisconsin, who helped make that dream reality.

There ain't no proof

The recent release of President Obama's birth certificate and the ensuing hoopla simply served to remind me why I typically avoid debates with conspiracy theorists.

No matter the evidenced produced, you will never convince the true believer to abandon their position.