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Free Speech, Language, and the Rule of Law

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Oct 032015

Contents Some Thoughts on Free Speech, Language, and the Rule of Law by Thomas Streeter

(from Robert Jensen and David S. Allen (eds.), Freeing the First Amendment: Critical Perspectives on Freedom of Expression, New York University Press, 1995, pp. 31-53.)

This chapter discusses the relevance of research and reflection on language to recent critical trends in thinking on free speech. There is a tendency to interpret many of the recent revisionist approaches to free speech as if they were simply calls for exceptions to otherwise clear cut rules and principles, as if, say, pornography or racism are so exceptionally evil that they fall outside the parameters of the kinds of speech that are “obviously” protected under the First Amendment. This misses the fact that the new approaches, with varying degrees of explicitness, involve theoretical and epistemological challenges to the underlying premises of free speech law in general; over the long run, what the new approaches are calling for are not exceptions but a restructuring of free speech law as a whole. The ideas driving this profound rethinking come from a variety of traditions, including various currents of feminism, literary theory, and theories of race and ethnicity. This chapter focuses on just one of those traditions: the complex twentieth century theorizing of language, sometimes called the “linguistic turn” in twentieth century philosophy. Although the linguistic turn is only one aspect of the new thinking about free speech, and although its importance and character is not agreed upon by all those advocating the new thinking, calling attention to it is useful because it nicely highlights some conceptual difficulties of the traditional framework and because it helps differentiate the revisionist criticisms from social determinist and other subtly authoritarian criticisms of free speech.

On the one hand, this chapter argues that the linguistic turn involves some revelations about the nature of language and human communication that do not accord well with the understandings of language implicit in free speech law, particularly with the metaphor of the marketplace of ideas. On the other, it argues that part of what is at stake is the way American culture envisions the rule of law as a whole. In particular, important currents of the understanding of the rule of law suggest the possibility and necessity of constructing rules, procedures, and meanings that transcend or can be abstracted from context, whereas the linguistic turn suggests that this is impossible, that meanings can be determined only in relation to particular contexts. The final part of this chapter, therefore, suggests some avenues for exploring free speech in its historical and social context, as opposed to efforts to abstract it out of context.

In the course of a discussion of the campus hate speech controversy, literary critic Henry Louis Gates (speaking from an African American position) provided the following hypothetical examples of potentially “harmful” speech directed at a minority student:

Sociolinguistics offers an answer to the first question: the social phenomenon of linguistic style. It is not the contents of the first statement that give it force; the argument it makes is, at best, dubious and obfuscatory, whereas the second statement at least would communicate the true feelings of the speaker towards the hearer with considerable precision. The first statement’s power comes from its style.

It is a well established fact that fluency in any language involves mastery, not just of a single, “correct” version of a language, but of a variety of styles or codes appropriate to specific contexts.[2] Gates’ first example is a case of the formal or “elaborated” style of contemporary English, which is highly valued in academic and professional settings. It is characterized by, among other things, Latinate vocabulary (“demanding educational environments” instead of “tough schools”) and elaborate syntax. The second is an example of informal or restricted style, characterized by ellipsis (omitting “You get out of my face . . . “) and colloquial constructions.

Linguists also have long insisted that, in an absolute sense, formal style is no more correct or better for communication than informal style. Scientifically speaking, what makes a style appropriate or inappropriate is the social context in which it is used: in an academic setting, the formal character of the first example gives the statement force, but in another context, say, a working class bar, it might only elicit laughter and derision whereas the second statement might have considerable impact. In the appropriate context, therefore, one can use informal style brilliantly and subtly, and conversely, it is quite possible to speak in a thoroughly formal style and yet be inept, offensive, or simply unclear.[3]

What style differences communicate, then, are not specific contents, but social relations between speakers and listeners, i.e., relations of power, hierarchy, solidarity, intimacy, and so forth. In particular, formal language suggests a relation of impersonal authority between speaker and listener, whereas informal language suggests a more intimate (though not necessarily friendly) relationship. You can petrify a child by interjecting into an otherwise informal conversation, “No you may not.” The shift to formal style (no ellipsis, “may not” instead of “can’t”) shows that the speaker is not just making a request, but is asserting his or her powers of authority as an adult over the child listener.

Gates’s first example would be more wounding to a minority student, therefore, because, by couching itself in a formal, academic style, it is rhetorically structured as the expression of “impersonal,” rational, and thus institutionally sanctioned, sentiments. It thereby invokes the full force of the authority of the university against the student’s efforts to succeed in it. Gates’s second example, with its informal style, suggests that one individual, the speaker, harbors racist ill will towards the listener. The first example, by contrast, suggests that, not just one individual, but the entire institution of the university in all its impersonal, “rational” majesty, looks upon the student as unfit.

So why is it easier to penalize the second kind of statement than the first, when it is the first that is potentially more damaging (which is not necessarily to suggest that we should penalize the first kind of statement)? Contemporary law in general is insensitive to matters of linguistic style. Hollywood action movies have made a cliche of lampooning the incongruity of reading the highly formal, legalistic Miranda clause during arrests, which are typically emotional encounters between working class cops and criminals, i.e., contexts where informal style would be appropriate.[4] In First Amendment jurisprudence, where language is not only the vehicle but the subject matter of the law, this insensitivity can lead to conceptual confusion. Linguistic style may be a fact of life, but traditional legal liberal ways of thinking about free speech, especially those encapsulated in the metaphor of the “marketplace of ideas,” are strangely incapable of addressing it.

The marketplace metaphor in free speech law involves imagining symbolic and linguistic phenomena as if they were analogous to market exchange, which implies a number of things about language. Most obviously, it implies that language is primarily an exchange, a transference of something (perhaps “information”), from one person to another. Hence, in linguistic exchanges what matters is the contents of the exchange, not the style or form in which it is “packaged,” just as in real market exchanges it makes little difference if you pay by check or cash. Yet, as in Gates’ example, in language the “package” can be everything. The marketplace metaphor, then, draws our attention away from the importance of just the kind of stylistic differences that sociolinguists say are central to the workings of everyday language.

The marketplace metaphor, furthermore, tends to imply that the good that comes from unconstrained human speech comes from some neutral, universal, mechanical, and leveling process, a linguistic equivalent to the economist’s invisible hand out of which will emerge truth, or at least some form of democratic justice. That neutral, mechanical process, furthermore, is contrasted in law with “arbitrary” government interference. And yet, in several ways, linguistics has taught that language itself is arbitrary at its core; in language, the boundary between “natural” processes and arbitrary ones is difficult, some would argue impossible, to discern.

Linguists say that language is “arbitrary” in the sense that meaning emerges, not from anything logically inherent in words or their arrangement, but from the specific conventions and expectations shared by members of a given speech community, conventions and expectations that can and do change dramatically from time to time and place to place. Aside from language in general and perhaps some very deep-level aspects of syntax, there is very little that is universal, neutral, or mechanical about human languages. This insight grew out of the observation that languages differ profoundly from one another, not only in terms of the meanings of specific words, but in terms of basic aspects of the ways those words are arranged: some languages have only two or three words for color, for example, others have nothing English speakers would recognize as verb tenses. But it has also been bolstered by detailed analysis of the workings of language in general. Meanings are fixed neither by logic nor by some natural relation of words to things, but by the contextual and shifting system of interpretation shared by the members of a given speech community.

The arbitrariness of language presents two problems for traditional thinking about freedom of speech. One problem involves legal interpretation, the belief that properly expert judges and lawyers following the proper procedures can arrive at the correct interpretation of a dispute. Often described as the problem of the indeterminacy of law, the purely contextual character of meaning would suggest that legal decisions will always be forced to fall back on contingent, social or political values to decide where the boundaries in the law lie.[5] It is in the character of language, in other words, that a judge will never be able to look at the text of the Bill of Rights and legal precedents to decide whether or not flag burning is protected by the First Amendment; she will always in one way or another be forced to make a choice about whether or not she thinks it should be protected, and will always be faced with the possibility that a reasonable person could plausibly disagree.

Indeterminacy should not be mistaken for the absurd assertion that any word can mean any thing, that there is no stability to meaning whatsoever. As deconstructionist literary critic Barbara Johnson puts it,

A second problem suggested by the arbitrariness of language involves the impossibility of abstracting from context that is a linchpin of the formalist legal logic which today dominates thinking about freedom of speech. According to some understandings of the rule of law, justice is best served when applied according to indisputable, clear rules of procedure and decisionmaking. Hence the First Amendment protects Nazis marching in Skokie and flag burning, not because anything good is being accomplished in either case, but because the important thing is to uphold the rules impartially and unequivocally. And being impartial and unequivocal typically means that rules are upheld regardless of context.

If one were to suggest, say, that the harm from Nazis marching in a Jewish suburb outweighs the value of protecting their speech because of the history of the Holocaust and the irrational and violent character of Nazi ideology, or that flag burning is such an ineffectual form of political expression and so potentially offensive that nothing would be lost by restricting it, the formalist counterargument is that this would “blur” the boundaries, cross what lawyers call the bright lines, upon which our system of justice rests: the rules are more important than the context.

An important example of formalist reasoning is the Bellotti case, in which the Supreme Court struck down a Massachusetts law limiting corporate campaign donations. The Court reached its decision, not simply by weighing the positive and negative effects of the law, nor by deciding that it was a good thing in this case to grant large corporations the same rights as private individuals. The decision was based on the argument that even considering the source of the campaign donations (the “speech” in question) was inappropriate; every individual has a right to unrestricted political speech, and even asking whether corporate “individuals” are as worthy of protection as ordinary individuals would blur the bright lines upon which the rule of law is based.[7] Another example would be American Booksellers Association, Inc. v. Hudnut, when the court threw out an anti-pornography ordinance. The court argued that, even if pornography has negative effects, the same might be said of other forms of protected speech. From this it concluded that “[i]f the fact that speech plays a role in a process of conditioning were enough to permit governmental regulation, that would be the end of freedom of speech,” and thus negative effects do not justify restrictions. As Stanley Fish has pointed out, this is a peculiar logic: faced with facts which call into question the speech/action distinction which underlies the law, the court upholds the law against the facts which would undermine it. But it is a typically formalist logic: the point is to uphold the rule of law, i.e., abstract, neutral principles and procedures; if the coherence of those abstract principles is threatened by facts, you throw out the facts, not the principles.[8]

The problem is that, if the meanings of statements emerge from convention, from social context, then the insistence on excluding context, on divorcing rules and their enforcement from social and political complexities of a situation, is an impossibility. This is not simply an argument that it would be reasonable to sometimes include a little bit of context in legal decisionmaking, that First Amendment law should lean towards a more policy-oriented weighing and balancing of principles and rights in special circumstances such as highly concentrated or technologically inaccessible media. Rather, the argument is that formalist arguments of free speech can not be doing what they claim, that context is present in decisions in spite of claims to the contrary. Decisions that grant protection to marching Nazis and flag burning are not simply decisions that show a preference for bright line rules over context; on the contrary, such decisions are themselves a product of a particular social and historical context, and in turn contribute to the making of particular contexts.

The collapse of the boundary between “natural” speech and arbitrary interference with it implied by indeterminacy creates a further problem for First Amendment interpretation: the collapse of the distinction between speech and conduct or speech and action. The exercise of free speech, the “free marketplace of ideas,” is imagined as a kind of neutral, free and equal exchange, contrasted with unfree or arbitrary coercion. What disappears in the face of the arbitrariness of language is the coherence of that contrast, the faith that there is an important categorical distinction between people talking and arguing and people coercing one another through some kind of action. It is now an axiom of sociolinguistics and many other schools of thought that language use is an important kind of social action, that words do not merely reflect reality or express ideas, they primarily are a way of doing things, a way of acting in the social world. Although J. L. Austin began his classic How to Do Things With Words by describing a limited category of statements that do things–“performatives”–he later enlarged the category and made its boundaries much less clear by acknowledging the frequency of “indirect performatives,” i.e., statements that might appear to be merely descriptive but in context can be shown to be in fact doing something.[9] Some have since argued that in a sense all utterances are performatives.

None of which is to suggest that a subtle verbal snub is identical to punching someone in the nose. We do not call trespassing on someone’s lawn and shooting them identical, though they are both categorized as violations, as coercive. When Stanley Fish argues that speech in everyday life should not be imagined as if it takes place in “the sterilized and weightless atmosphere of a philosophy seminar,”[10] or when Matsuda et. al argue that words can wound, the argument is not that every slight or insult ought to be treated as if it were assault and battery.[11] What they are criticizing is the belief that there is a fundamental, categorical dichotomy between speech and conduct, that the dichotomy is clear and generalizable enough to form one of the principle structures of our law and democracy.

All this points to a deeper critique of the marketplace metaphor. The metaphor implies that linguistic exchanges, like market exchanges, take place between individuals who, in the absence of some outside interference, exist merely as individuals, not as persons in particular contexts with particular backgrounds. These are the famous abstract individuals of legal liberalism, the persons referred to as “A” and “B” in law school lectures on contracts: persons bereft, in legal liberalism’s ideal world, of gender, class, ethnicity, history. People the world over, the marketplace metaphor suggests, all share the characteristics of being in essence rational, self-interested individuals, inherently active and desirous. Language use, then, is a matter of expressing pre-existing interests; it is a tool used by individuals to buy cheap and sell dear in the marketplace of ideas. Language is something one uses.

But, according to at least some schools of linguistics and language philosophy, language is also something that happens to us, something that “speaks us” as much as we speak it. Language is an inherently collective, social precondition to individuality. Most definitions of language exclude any notion of a language possessed by only one individual; for language to be language it must be shared. People do not choose, after all, their first language; in a sense it chooses people. And the particularities of the language that chooses people, many would say, in turn shapes their consciousness, their sense of what counts as reason, their perceptions of the world and their selves within it, even their desires.[12]

This is not to imply, however, some kind of simple social determinism. Here is where the linguistic turn in philosophy suggests something very different from the common assertion that individual behaviors are “caused” by social structures. For one of the central discoveries of linguistics and language theory is what Barthes called “a paradoxical idea of structure: a system with neither close nor center.”[13] Except for analytical purposes, linguistic structure does not exist outside of anyone’s use of it. Language is certainly structured, in some sense of that word; linguistic grammar is the central example of structure, although scholars have brought to our attention many higher-level structures like linguistic style. But that structure is not simply some kind of exterior constraint, a Hobbesian limit on individual action; it is not the “structure” of, say, Durkheimian sociology or orthodox Marxism. It is dynamic, changing, and creative. As Chomsky pointed out, one grammatical system is capable of generating an infinite variety of sentences. And grammar is a practical, thoroughly collective human accomplishment, not an exterior system imposed upon individuals by a reified “society.” It is enabling as well as constraining: linguistic structure is a precondition of self-expression, not just a limit to it.

Language thus troubles both legal liberalism’s happy vision of rational individuals and its dark side, its Hobbesian view of society as the basic constraint on individuals; it calls into question the marketplace metaphor’s notions of both individual freedom and social order. The attraction of the marketplace metaphor in law is much the same as the attraction of marketplace theory itself: it posits a realm that is both free of arbitrary constraint, and yet ordered by the certain yet neutral and unequivocal rules of the marketplace. What the fact of linguistic structure calls into question is not merely the “freedom” of linguistic exchange but also its certainty, its divisibility from “arbitrary” external restraints and interference.

When MacKinnon argues that pornography is a form of action, not of speech, or when Matsuda argues that the context of racism and the subjective experiences of minorities in the U.S. ought to be a primary consideration in the creation and interpretation of hate speech laws, in the long run what motivates these scholars is not just a desire for specific exceptions to an otherwise intact First Amendment doctrine.[14] The suggestion is not simply that pornography is so damaging, or that the specific horrors of slavery and its legacy of racism so evil that unusual exceptions to free speech protection are called for (though the evils of rape-culture and racism very well might be the most urgent problems in the U.S. today). Rather, the suggestion, at least implicitly, is that the evils of rape-culture and contemporary racism force us, or should force us, to fundamentally reconsider how American law thinks about freedom, speech, and their regulation.

Furthermore, the critique of the oppositions that underpin free speech law such as speech and action, rules and context, or politics and law, need not be read as a simple denial that any differences exist. It is obviously not the case that there is no difference between slighting someone with a racial epithet and hitting them in the head, or between decisionmaking in courts and decisionmaking in legislatures. The argument is rather that these differences are neither clear nor generalizable enough to coherently underwrite a system of decisionmaking that claims to be able to transcend context and achieve the neutrality that is the goal of law in the first place.

Inquiry does not come to an end when one accepts the criticisms of the formalist First Amendment framework, and acknowledges the inevitability of politics and context. Stanley Fish’s quip notwithstanding, there is such a thing as free speech. If something is not what we think it is, it does not follow that it does not exist. Free speech is one of the major and most influential political and legal discourses of this century; for better or worse, it has helped make American society, our world, what it is. So the task is to rethink the character of free speech, to specify its historical context and political incidence. This is a large task; here I can only speculate about one aspect of the historical context of free speech, its relation to notions of the rule of law, and one aspect of its political incidence, its relations to social class.

The concept of a neutral, objective system of law that transcends politics is not just an abstraction important to lawyers and judges. (Lawyers and judges, in fact, are often acutely aware of just how political and unstable legal interpretation can sometimes be on a day-to-day basis.) A faith in the neutral rule of law is an important element of American culture, of the popular imagination. Evidence for this can be seen in the way that legal institutions and documents are more often celebrated, more often used to define American democracy, than political institutions and accomplishments. One might think, for example, that in an electoral democracy the most important historical event, the event most widely celebrated, would be the extension of the vote to the majority of the population. Yet most citizens do not know the amendment or the year in which the vote was extended to women, much less the history of the long political struggles that led to the passage of the nineteenth amendment in 1920. On the other hand, the Constitution is regularly celebrated in fora ranging from scholarly conferences to reverential Philip Morris ads, even though that hallowed document underwrote a legal system that upheld slavery for three quarters of a century, excluded women from voting for more than half a century after that, and did not come to rigorously protect political dissent until about fifty years ago. Nonetheless, American culture tends to worship the Constitution and remain ignorant of the history of universal suffrage. The story of the Constitution is a story of law, whereas the story of women’s suffrage is a story of protracted political struggle. And in some ways, at least, mainstream American political culture worships the former more than the latter.

What is the substance of this worship? What makes law neutral, and how does it support democracy? The short answer might be that if a society makes its decisions according to fixed rules instead of individual or collective whims, individuals will be less able to gain systematic advantage over others. The long answer would involve an extended and controversial discussion of a large chunk of the literature of legal theory and political science. But there is a mid-range answer based in historical observations, which suggests that in the U.S. two patterns of argument or logics have tended to shape legal decisionmaking, particularly in this century. One logic has been called alternately formalist, classical, bright line, rule-based, or simply legal justice; the other, standards-based, revisionist, policy oriented, realist, or substantive justice.[15]

Arguably, the First Amendment has become the centerpiece of the American faith in the rule of law in this century, and not coincidentally, First Amendment law is also highly formalist. Formalism is not simply absolutism, a belief that there should be no exceptions. It is more a way of thinking about what law and legal interpretation are and how they work. (Describing the ACLU’s position on the First Amendment as “absolutist” is thus a bit of a red herring.) In at least many of its variations, formalism involves the claim that law is apolitical and neutral because it rests on a rigid, formal model, based on an ideal of axiomatic deduction from rules and unequivocal, “bright line” legal distinctions. The role of law, then, is to locate and uphold clear boundaries–bright lines–between the rights of individuals and between individuals and the state. Legal language and legal expertise are thought valuable precisely because they provide fixed, rigorous meanings unsullied by the political and social winds of the moment. Given a certain set of legal rules and a certain legally defined situation, it is assumed, a properly trained judge or lawyer, within certain boundaries, can use expertise in legal language and reasoning to arrive at, or at least approximate, the correct interpretation, which is generally a matter of pinpointing exactly where the boundaries lie.

Policy oriented decisionmaking, in contrast, tends to be context sensitive, accepting of blurry boundaries, functionalist, and messier. It is also much more common in legal decisionmaking than popular wisdom would suggest. In policy argument, justice is thought to be best served by subtle, well-informed analyses of particular contexts and judicial “balancing” of competing interests and principles; rights and values are treated, not as hard rules distinguished by bright lines, but as general standards that can be differentially implemented according to context. Administrative law, such as that involved in enacting the Federal Communication Commission’s public interest standard for broadcasters, is a classic example of policy oriented decisionmaking. Brown v. Board of Education also includes some exemplary policy argument.

Policy-oriented decisionmaking sometimes is justified in terms of head-on attacks on formalism of the type associated with the critiques of free speech just discussed. Both in practice and in theory, the argument goes, the supposedly “bright line” distinctions upon which formalism is based are rarely if ever as bright as imagined. Stanley Fish’s polemic, “There is no such thing as free speech,” is a recent example of such a critique, but in some ways his position echoes, for example, Felix Cohen’s legal realist argument earlier in the century, in “Transcendental Nonsense and the Functional Approach.”[16]

It is important, however, that outside the academy policy-oriented legal decisionmaking has been justified less by theoretical criticisms of formalism as a whole and more by a sense that, in certain limited and specialized contexts, policy-oriented decisionmaking is simply practical. Formalism seems to be the place our culture celebrates the ideal of the rule of law; policy argument seems to be the place where most of the detailed legal work of ordering society goes on. Policy argument dominates largely in domains unrelated to communication: the law of corporations, environmental law, urban planning, and so forth. The prominent example of policy logic in communication is probably government licensing of broadcast stations according to the public interest standard. Licensing was originally created because communication by radio waves was understood to be characterized by spectrum scarcity and other complicated and contingent technical matters, such as rapidly evolving technologies and strategic needs of the military. Treating broadcasters differently than newspapers was thus thought to be simply called for by context, not because there was thought to be a formal right or principle at stake such as the public’s right to access to communication.

It is sometimes suggested that policy arguments began to replace formalist ones in legal argument somewhere around the turn of the century, and formalism was finally defeated with the end of the Lochner era in 1937. On the level of legal metatheory, there may be truth to this, but it remains the case that in practice both logics remain today. Sometimes the two logics are associated with competing sides in a legal controversy. The argument that television violence ought to be censored because its measurably harmful effects on children outweigh considerations of free speech is a typical policy argument; arguing against such censorship because it would open the door to more serious restrictions of freedom of speech is to lean in a formalist direction. But the two logics are also often mixed in the context of any given argument. Conservatives argue that broadcast licensing violates free speech rights but also is inefficient in the context of new technologies; liberals argue that guarantied citizen access to mass communications would be beneficial for industrial society but also should be treated as a “new First Amendment right.”[17]

So it is perhaps the case that what has been changing over the years is not simply a shift from one kind of argument to the other, but a shift in the “mix” of the two, a shift in how the two kinds of argument have been used in which cases. And here the historical literature suggests that, gradually in this century, the focus of formalist argumentation has shifted from the realm of property and contract to free speech. Up through the late nineteenth century, during what Mensch calls the classical era of jurisprudence, property was the central, formal right; in theory property was celebrated as the essence of legal liberalism, and in practice it was used aggressively in a wide variety of areas. Property rights were invoked to justify bans on speaking in public parks, the picketing of factories during union drives, and turn-of-the-century social legislation. Gradually, this formalist application of property fell out of favor, and met its final demise in the 1937 overturn of Lochner, during the New Deal.[18]

Perhaps it is not entirely coincidental that, as formalist notions of property declined, the formalist understanding of free speech rose. In a familiar history, the First Amendment was gradually elevated to its current legal status, both in case law and in the popular imagination. What has triumphed in this period is not a policy-oriented understanding of free speech (in spite of the best efforts of a long line of scholars from Alexander Meiklejohn to Sunstein, but a rigidly formalist one. So today, property rights advocates who would like to see a return to something like the Lochner era interpretations of property, like Richard Epstein, argue that the rules applied to free speech should also be applied to property. Conversely, from somewhere towards the other end of the political spectrum, Cass Sunstein has called for “A New Deal for Free Speech” wherein the 1930s revisions of property law be extended to communication.[19]

Why has formalism in legal discourse shifted from property and contract to free speech? At this point, I can only speculate. It’s possible to put a cynical economic interpretation on the shift: Formal interpretations of property were abandoned because they became increasingly impractical in the face of the bureaucratic corporate form of business and other late nineteenth and early twentieth century economic developments. Conversely, the soap box speakers became sanctified in law precisely during the historical period that they ceased being effective. In the nineteenth century, union organizers, pacifists, and other “radicals” all made good use of the soap box–of face-to-face speaking in public places–as a communicative tool, and were regularly arrested for doing so. In this century, however, the key to popular communication has become access to radio, television, and other expensive technology-based mass media, which have rendered the soap box increasingly irrelevant as an organizing tool. A formalist interpretation of the First Amendment grants symbolic protection to soap boxes while in practice protecting media corporations much more effectively than dissidents.

Such an account of the shift, however, risks a functionalist tautology (explaining historical events in terms of the needs they serve for the power bloc) and fails to account for the imaginative power of First Amendment formalism. So a more comprehensive explanation might add two observations. First, from a distance, formalism is satisfying to a legal liberal vision of the rule of law, whereas policy argument can appear as arbitrary, obscure, and haughtily technocratic. College sophomores have little trouble understanding why it might be good for the rule of law to protect Nazis marching in Skokie, but it takes a lot of effort to convince them of the grand principles at stake in, say, the regulation requiring TV stations to charge political candidates the same rate for advertising time they charge their most favored advertiser instead of their standard rates. Second, from up close, from the perspective of those involved in everyday, small legal decisions, formalism is frequently impractical, whereas policy-oriented decisions seem reasonable and pragmatic. Few suburban homeowners would take kindly to the suggestion that their neighbors should be allowed to raise pigs or let their lawns go to weed on the grounds that to do so would be to uphold the sanctity of formal property rights.

It seems to be the case, then, that the American polity seems to want a legal system that can satisfy both the desire for legitimacy provided by formalism and the “practical” effectiveness of policy-oriented decisionmaking. Perhaps, therefore, the formalist interpretation of the First Amendment became popular in part because it came to take property’s place as a symbol of legal clarity and formal justice. In both the popular and legal imaginations, the image of the property-holding yeoman farmer was gradually supplanted by the soap box speaker as the central archetype and emblem of legally protected exercise of rights and freedoms in a democratic society.

1. Labor and Management

The polity, however, is not the public. The community of individuals who appreciate the formalist interpretation of free speech may include a wide range of people, such as lawyers, judges, politicians, journalists, professors, and many others in positions to directly or indirectly influence legal and political consciousness. And it includes a wide range of political positions: liberals at the ACLU seem to have little trouble agreeing with conservatives on the Supreme Court that flag burning is protected speech. But it certainly does not include everyone. The majority of the American public has a hard time seeing the justice of protecting flag burning. And this may not mean simply that the public disdains free speech. The ACLU reports that the majority of the complaints it receives come from workers who feel their speech has been restricted by their bosses–a kind of speech that the Supreme Court and the ACLU agree is not protected.

Elizabeth Mensch has remarked that, although many formerly bright lines have been blurred in twentieth century law, the boundary between capital and labor remains as bright and impermeable as ever.[20] The First Amendment, as it is currently interpreted, protects owners and managers more than individual speakers. It prevents government agencies from interfering with the speech of private agencies delineated by boundaries of ownership and management, not by individual human beings.

As a result, employees have basically no free speech rights with regards to their employers, including employees of media businesses. When a journalist is told by an editor to drop a story because it is politically inflammatory, the journalist can find little comfort in First Amendment law. Network program practices departments engage in systematic and thorough censorship of scripts for television series with all the zeal (if not the same principles) of Communist Party apparatchiks. Under law, there’s a sense in which A. J. Liebling’s bon mot–that the only freedom of speech in this country is for those who own one–is literally true.

For all that, Liebling’s quip is an oversimplification. There are many limits on the power of media owners to influence content, such as the resistance of the community of professional journalists to owner manipulation on both ethical and self-interested grounds. Evidence suggests that, among some groups, there probably is a popular ethic of free speech in the U.S. that extends beyond the powers of owners and managers. When conservative newspaper tycoon Rupert Murdoch bought the left-wing Village Voice and tried to dismiss its editor, for example, the threat of a staff walkout forced him to back down, and he left the paper’s editorial content alone thereafter.[21]

2. Social Class and Linguistic Style

Bringing “popular ethics” into the discussion, however, brings us back to the second question suggested by Gates’ examples: why does it seem easier to pass rules prohibiting direct racial epithets than elaborate, formal statements? It is well established that linguistic style is associated with social class. Sociolinguist Basil Bernstein demonstrated that children from middle and professional classes tend to do better in school than working class students in part because they speak more often and more fluently in formal style, or what Bernstein calls “elaborated code.” Working class students, in contrast, tend to be more comfortable, and are probably more fluent in, informal style, or what Bernstein calls “restricted code.”[22]

One style is not better than the other. Rather, each style is an adaptation to specific patterns of life and work. Informal style has the effect of stressing membership within a group; it is useful for interactions among people who are familiar with each other and work with each other on a regular basis, and thus live in “dense” social networks, i.e., high levels of interaction with a limited number of people. It has a high proportion of ellipsis and colloquialisms, not because such language is simpler, but because these take advantage of a higher degree of shared knowledge between speaker and listener. Similarly, it has a higher proportion of personal pronouns (you and they) and tag-questions soliciting agreement of the listener (nice day, isn’t it?), because these express a sense of cooperation and solidarity.[23]

Formal style, in contrast, is for people whose social networks are less dense, who regularly deal with strangers and thus communicate in contexts in which ellipsis and colloquialisms are more likely to generate confusion than solidarity. Similarly, formal style’s high proportion of subordinate clauses, passive verbs, and adjectives (besides connoting high-mindedness through its echo of Latin grammar) are adaptations to the need to explain details comprehensively when speaker and listener do not share as much background knowledge and cannot easily rely on features of the extra-linguistic context. Interestingly, in spite of the frequency of passive verbs, formal style also contains a higher proportion of pronoun “I.” This has the effect of imposing the speaker’s individuality on the utterance, of stressing her or his unique nature as a person, as opposed to expressing membership in a group. Some research suggests that formal style leads people to be judged as more intelligent, more educated, and less friendly and less likable than informal style.

It is not the case that working class people use only informal style and middle class people use only formal style. A garage mechanic will probably shift to formal speech when dealing with a customer irate over a bill, and only the most hopelessly pompous college professors use formal style when speaking with their friends and families. But mastery over the different styles is not evenly distributed. Bernstein’s work suggests that middle and professional class students’ relatively better skills and comfort with formal style functions as a form of what Bourdieu calls “cultural capital,” enhancing their life prospects.[24] Given the relation of style to the character of work, moreover, fluency in formal style (though not accent) is probably associated with a person’s present occupation, regardless of class background.

What does this have to do with free speech? James Carey has argued that the speech/action distinction in free speech law is an expression of distinctly middle class values and sensibilities. Carey tells the story of a middle class man who enters a working class bar and not long thereafter comes flying out the plate glass window; the man then says with astonishment, “but all I did was use words!” Carey’s point is that, to the working class individuals in the bar, words have power. For them, the difference between insulting someone’s mother and punching them in the nose is not as obvious or absolute as it is for the middle class person.

Carolyn Marvin has elaborated on these contrasting sets of values in our culture in terms of what she calls “text” and “body”:

The First Amendment as currently interpreted is envisioned largely in terms of that which middle and professional class people have mastery over, abstract formal expression in speech and writing. This is why it is harder to censure Gates’ first example than the second. Within the community of people who share those values, there is something equalizing about free speech. But it should not be surprising that, for people who do not make a living that way, for workers and other people whose bodies are the source of their value to society, formalist protection of free speech may not make sense, and might even appear as simply another way that people with privileges (such as academics writing about free speech) exercise their power over people who don’t.

The analyses and arguments of this chapter do not offer resolutions to all of the many important debates among non-formalist theorists of freedom of speech, such as those between Gates and Matsuda et al. over campus hate speech codes. But it does do two things. First, it tries to clarify some of the underlying principles and issues at stake today in debates over free speech, particularly the inevitability of context and the problems this poses for traditional formalist understandings of the rule of law. Second, it points in the direction of a rethinking of free speech based in context, and suggests two (among many possible) avenues to pursue: the historical shift of formalism from property to free speech and to matters of language and social class in both legal discourse and in nonlegal situations. Clearly, these examples of context-based analysis are intended only to be suggestive. But what they suggest, it is hoped, is that this kind of inquiry, if expanded into rich and subtle contextual analyses, might indeed help resolve some debates and contribute to a more fully democratic, substantive interpretation of the role of free speech in law and culture.

[1]. Henry Louis Gates, “Let Them Talk,” The New Republic, Sept. 20 & 27, 1993, pp. 37-49: p. 45.

[2]. “Style” is the generally accepted sociolinguistic term for language varieties that can be classified on a continuum for formal to informal. The word “code” is used by Basil Bernstein, Class, Codes And Control, 2d edition (Boston: Routledge & K. Paul, 1974).

[3]. William Labov, “The Logic of Nonstandard English,” in Giglioli (ed.) Language and Social Context (Penguin, 1972), pp. 179-216.

[4]. For a sociolinguistically informed analysis of the role of linguistic style during arrest and interrogation see, Janet E. Ainsworth, “In a Different Register: The Pragmatics of Powerlessness in Police Interrogation,” Yale Law Journal, 103 (November, 1993): 259-322.

[5]. Mark Kelman, A Guide to Critical Legal Studies (Cambridge, Mass.: Harvard University Press, 1987), p. 12 and passim.

[6]. Barbara Johnson, A World of Difference (Baltimore: Johns Hopkins Univ. Press, 1987), p. 6.

[7]. First National Bank of Boston v Bellotti, 435 US 765, 776 (1978)

[8]. 771 F.2d 323 (7th Cir. 1985), aff’d, 475 U.S. 1601 (1986), p. 329; quoted in Stanley Fish, “Fraught With Death: Skepticism, Progressivism, and the First Amendment,” University of Colorado Law Review, 64 Fall 1993: 1061-1086, p. 1065.

[9]. See Ainsworth, “In a Different Register,” note 15: “Austin initially adopts the intuitively appealing assumption that constative utterances, unlike performatives, are true or false. Having set up these opposing categories of performative and constative utterances, Austin ultimately deconstructs this dichotomy” with his analysis of indirect performatives.

[10]. Fish, “Fraught With Death,” p. 1061.

[11]. Mari J. Matsuda, Charles R. Lawrence III, Richard Delgado, and Kimberle Williams Crenshaw, Words that Wound: Critical Race Theory, Assaultive Speech, and the First Amendment (Boulder, Colorado: Westview Press, 1993).

[12]. The classic and extreme version of this notion is the “Sapir-Whorf hypothesis” named after linguists Edward Sapir and Benjamin Whorf. For a post-structuralist variation of it, see Rosalind Coward and John Ellis, Language and Materialism: Developments in Semiology and the Theory of the Subject (London: Routledge and Kegan Paul, 1977).

[13]. Roland Barthes, Image, Music, Text (New York: Hill and Wang, 1977), p. 159.

[14]. Catharine A. MacKinnon, Only Words (Cambridge, Mass: Harvard University Press, 1993).

[15]. Elizabeth Mensch divides legal thought into classical and realist or revisionist forms. Duncan Kennedy talks of the distinction between rules and standards. Roberto Unger speaks of “legal justice” and “substantive justice.” See Elizabeth Mensch, “The History of Mainstream Legal Thought” in David Kairys, ed., The Politics of Law: A Progressive Critique (New York: Pantheon, 1982), pp. 18-39; Duncan Kennedy, “Form and Substance in Private Law Adjudication,” Harvard Law Review, 89 (1976): 1685, pp. 1687-89; see also Roberto M. Unger, Knowledge and Politics (New York: The Free Press, 1975), p. 91.

[16]. Stanley Fish, “There’s No Such Thing As Free Speech And It’s a Good Thing Too,” Boston Review, Feb. 1992, p. 3; Felix Cohen, “Transcendental Nonsense and the Functional Approach,” Columbia Law Review 35 (1935): 809.

[17]. For example, Jerome A. Barron, Freedom Of The Press For Whom? The Right Of Access To Mass Media (Bloomington: Indiana University Press 1973).

[18]. Jennifer Nedelsky, Private Property and the Limits of American Constitutionalism: The Madisonian Framework and Its Legacy (Chicago: University of Chicago Press, 1990).

[19]. Cass R. Sunstein, “Free Speech Now,” The University of Chicago Law Review, 59 (Winter 1992): 255; Richard A. Epstein, “Property, Speech, and the Politics of Distrust,” The University of Chicago law review 59 (Winter 1992): p. 41.

[20]. Mensch, “The History of Mainstream Legal Thought,” p. 26.

[21]. Alex S. Jones, “At Village Voice, A Clashing Of Visions,” The New York Times, June 28, 1985, Section B; p. 5, Column 1.

[22]. Bernstein, Class, Codes And Control.

[23]. This survey of Bernstein’s work relies heavily on Peter Trudgill, Sociolinguistics: An Introduction to Language and Society (London: Penguin Books, 1983, revised edition), pp. 132-140.

[24]. Pierre Bourdieu, Distinction: A Social Critique of the Judgment of Taste, trans. R. Nice (London: Routledge & Kegan Paul, 1984).

[25]. Carolyn Marvin, “Theorizing the Flagbody: Symbolic Dimensions of the Flag Desecration Debate, or Why the Bill of Rights Does Not Fly in the Ballpark,” Critical Studies in Mass Communication, 8, (June, 1991): pp. 120-121.

[26]. Social class is of course a complex construct, and is used here suggestively, not comprehensively or precisely. Marvin points out that the values of “body” in fact extend to and in many ways are exemplified by military personnel, a group which overlaps with but is not limited to working class individuals.

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What Is Libertarian – Institute for Humane Studies

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Sep 052015

According to Funk and Wagnalls Dictionary

lib-er-tar-i-an, n. 1. a person who advocates liberty, esp. with regard to thought or conduct. advocating liberty or conforming to principles of liberty.

According to American Heritage Dictionary of the English Language: Fourth Edition, 2000.

NOUN: 1. One who advocates maximizing individual rights and minimizing the role of the state.

The Challenge of Democracy (6th edition), by Kenneth Janda, Jeffrey Berry, and Jerry Goldman

Liberals favor government action to promote equality, whereas conservativesfavor government action to promote order. Libertarians favor freedom and oppose government action to promote either equality or order.

According to What It Means to Be a Libertarian by Charles Murray, Broadway Books, 1997.

The American Founders created a society based on the belief that human happiness is intimately connected with personal freedom and responsibility. The twin pillars of the system they created were limits on the power of the central government and protection of individual rights. . . .

A few people, of whom I am one, think that the Founders insights are as true today as they were two centuries ago. We believe that human happiness requires freedom and that freedom requires limited government.

The correct word for my view of the world is liberal. Liberal is the simplest anglicization of the Latin liber, and freedom is what classical liberalism is all about. The writers of the nineteenth century who expounded on this view were called liberals. In Continental Europe they still are. . . . But words mean what people think they mean, and in the United States the unmodified term liberal now refers to the politics of an expansive government and the welfare state. The contemporary alternative is libertarian. . . .

Libertarianism is a vision of how people should be able to live their lives-as individuals, striving to realize the best they have within them; together, cooperating for the common good without compulsion. It is a vision of how people may endow their lives with meaning-living according to their deepest beliefs and taking responsibility for the consequences of their actions.

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What Is Libertarian – Institute for Humane Studies

Freedom (Franzen novel) – Wikipedia, the free encyclopedia

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Aug 292015

Freedom is a novel by American author Jonathan Franzen. It was published by Farrar, Straus and Giroux and released on August 31, 2010.

Freedom received general acclaim from book critics, and was ranked one of the best books of 2010 by several publications.

Freedom follows several members of an American family, the Berglunds, as well as their close friends and lovers, as complex and troubled relationships unfold over many years. The book follows them through the last decades of the twentieth century and concludes near the beginning of the Obama administration.

Freedom opens with a short history of the Berglund family from the perspective of their nosy neighbors. The Berglunds are portrayed as the most ideal liberal middle-class family, and they are among the first families to move back into urban St. Paul, Minnesota, after years of white flight to the suburbs. Patty Berglund is an unusually young and pretty homemaker with a self-deprecating sense of humor; her husband Walter is a mild-mannered lawyer with strong environmentalist leanings.

They have one daughter, Jessica, and a son, Joey, who early on displays an independent streak and an interest in making money. Joey becomes sexually involved with a neighborhood teen named Connie and begins to rebel against his mother, going so far as to move in with Connie, her mother, and her mother’s boyfriend Blake, making Patty and Walter increasingly unstable. After several unhappy years, the family relocates to Washington, D.C., abandoning the neighborhood and house they worked so hard to improve. Walter takes a job with an unorthodox environmental project, tied to big coal.

The second portion of the book takes the form of an autobiography of Patty Berglund, composed at the suggestion of her therapist. The autobiography tells of Patty’s youth as a star basketball player, and her increasing alienation from her artistically inclined parents and sisters. Instead of attending an East Coast elite college like her siblings, she gets a basketball scholarship to the University of Minnesota and adopts the life of the athlete. She meets an attractive but unattainable indie rock musician named Richard Katz, and his nerdy but kind roommate, Walter Berglund. After her basketball career-ending knee injury, Patty suddenly becomes desperate for male affection, and after failing to woo Richard, she settles down with Walter, who had been patiently courting her for more than a year. We learn that Patty retained her desire for Richard and eventually had a brief affair with him at the Berglunds’ lakeside cabin.

The novel then jumps ahead to New York City in 2004 and shifts to the story of Walter and Patty’s friend Richard, who has finally succeeded in becoming a minor indie rock star in his middle age. His hit album Nameless Lake tells the story of his brief love affair with Patty at the Berglunds’ lakeside cabin in Minnesota. Richard is uncomfortable with commercial success, throws away his new-found money, and returns to building roof decks for wealthy people in Manhattan. Walter calls him out of the blue to enlist his help as a celebrity spokesman for an environmental campaign. Walter has taken a job in Washington, D.C. working for a coal mining magnate who wants to strip mine a section of West Virginia forest before turning it into a songbird preserve of future environmental value. Walter hopes to use some of this project’s funding to hold a concert to combat overpopulation, the common factor behind all his environmental concerns, and he believes that Richard will be able to rally well-known musicians to his cause. Meanwhile, Walter’s marriage to Patty has been deteriorating steadily, and his pretty young assistant Lalitha has fallen deeply in love with him.

In parallel, the Berglunds’ estranged, Republican son Joey attempts to finance his college life at the University of Virginia by taking on a dubious subcontract to provide spare parts for outdated supply trucks during the Iraq War. While at college, he marries his childhood sweetheart but dares not tell his parents. After visiting his roommate’s family in the DC suburbs, he also pursues his friend’s beautiful sister Jenna and is exposed to her father’s Zionist, neoconservative politics. After months of pursuing Jenna, when she finally wants him to have sex with her, he cannot maintain an erection. Later he becomes conflicted after making $850,000 selling defective truck parts to military suppliers in Iraq. In the end Joey gives away the excess proceeds of his profiteering, reconciles with his parents, settles down with Connie, and moves into a sustainable coffee business with the help of his father Walter.

Now, Richard’s re-appearance destroys Walter and Patty’s weakening marriage. Richard tries to convince Patty to leave Walter, but she shows Richard the autobiography she wrote as “therapy”, trying to convince him that she’s still in love with Walter. Richard deliberately leaves the autobiography on Walter’s desk, and Walter reads Patty’s true thoughts. Walter kicks Patty out of the house, and she moves to Jersey City to be with Richard, but the relationship only lasts six months. Later, she moves to Brooklyn alone and takes a job at a private school, discovering her skill for teaching younger children. When Patty leaves him, Walter has a catharsis on live television, revealing his contempt for the displaced West Virginian families and his various commercial backers. Local rednecks respond by dragging him from the platform and beating him up. He is promptly fired by the environmental trust, but his TV debacle makes him a viral video hero to radical youth across the nation. He and his assistant Lalitha become lovers and continue their plans to combat overpopulation through a concert to rally young people in the hills of West Virginia. Lalitha is killed in a suspicious car accident a few days before the concert is due to take place. Shattered, and having lost both of the women who loved him, Walter retreats to his family’s lakeside vacation house back in Minnesota. He becomes known to a new street of neighbors as a cranky old recluse, obsessed with house cats killing birds nesting on his property.

After a few years living in Brooklyn, Patty’s father dies and she is forced to settle the fight that erupts within her family of spoiled bohemians as they attempt to split up the much-diminished family fortune. This experience helps Patty to mature. After a few years of living alone, she appraises the emptiness of her life and honestly faces her advancing age. She decides to hunt down Walter, the only man who had ever really loved her. She drives to the lakeside cabin in Minnesota, and despite his rage and confusion, he eventually agrees to take her back. The book ends in 2008 as they leave as a couple to return to Patty’s job in New York City, after turning their old lakeside vacation home into a cat-proof fenced bird sanctuary, named in memory of Lalitha.

After the critical acclaim and popular success of his third novel The Corrections in 2001, Franzen began work on his fourth full-length novel. When asked during an October 30, 2002 interview on Charlie Rose how far he was into writing the new novel, Franzen replied:

I’m about a year of frustration and confusion into it…Y’know, I’m kind of down at the bottom of the submerged iceberg peering up for the surface of the water…I don’t have doubt about my ability to write a good book, but I have lots of doubt about what it’s going to look like.[1]

Franzen went on to suggest that a basic story outline was in place, and that his writing of the new novel was like a “guerilla war” approaching different aspects of the novel (alluding to characters, dialogue, plot development etc.).[1] Franzen also agreed that he would avoid public appearances, saying that “…getting some work done is the vacation” from the promotional work surrounding The Corrections and How To Be Alone.[1]

An excerpt entitled “Good Neighbors” appeared in the June 8 and June 15, 2009 issues of The New Yorker.[2] The magazine published a second extract entitled “Agreeable” in the May 31, 2010 edition.[3]

On October 16, 2009, Franzen made an appearance alongside David Bezmozgis at the New Yorker Festival at the Cedar Lake Theatre to read a portion of his forthcoming novel.[4][5] Sam Allard, writing for North By Northwestern website covering the event, said that the “…material from his new (reportedly massive) novel” was “as buoyant and compelling as ever” and “marked by his familiar undercurrent of tragedy”.[5] Franzen read “an extended clip from the second chapter.”[5]

On March 12, 2010, details about the plot and content of Freedom were published in the Macmillan fall catalogue for 2010.[6]

In an interview with Dave Haslam on October 3, 2010 Franzen discussed why he had called the book Freedom:

The reason I slapped the word on the book proposal I sold three years ago without any clear idea of what kind of book it was going to be is that I wanted to write a book that would free me in some way. And I will say this about the abstract concept of ‘freedom’; it’s possible you are freer if you accept what you are and just get on with being the person you are, than if you maintain this kind of uncommitted I’m free-to-be-this, free-to-be-that, faux freedom.[7]

Freedom received general acclaim from book critics, particularly for its writing and characterization. Shortly after the book’s release, the front cover of a TIME magazine issue showed a picture of Franzen above the words “Great American Novelist,” making him the first author to appear on the front cover in a decade.

Sam Tanenhaus of The New York Times and Benjamin Alsup of Esquire believed it measured up to Franzen’s previous novel, The Corrections. Tanenhaus called it a “masterpiece of American fiction,” writing that it “[told] an engrossing story” and “[illuminated], through the steady radiance of its authors profound moral intelligence, the world we thought we knew.”[8] Alsup called it a great American novel. “[9] In The Millions, Garth Risk Hallberg argued that readers who enjoyed The Corrections would enjoy Freedom. He also wrote that they’re “likely to come away from this novel moved in harder-to-fathom waysand grateful for it.”[10] An editor for Publishers Weekly wrote that it stood apart from most modern fiction because “Franzen tries to account for his often stridently unlikable characters and find where they (and we) went wrong, arriving atincrediblygenuine hope.”[11]

Benjamin Secher of The Telegraph called Franzen one of America’s best living novelists, and Freedom the first great American novel of the “post-Obama era.”[12] In The Guardian, Jonathan Jones called him “a literary genius” and wrote that Freedom stood on “a different plane from other contemporary fiction.”[13]

Michiko Kakutani called the book “galvanic” and wrote that it showcased Franzen’s talent as a storyteller and “his ability to throw open a big, Updikean picture window on American middle-class life.” Kakutani also praised the novel’s characterization, going on to call it a “compelling biography of a dysfunctional family and an indelible portrait of our times.”[14]The Economist wrote that the novel contained “fully imagined characters in a powerful narrative.” The reviewer went on to say that it had “all its predecessor’s power and none of its faults.”[15]

Not all reviews were raving. Most lukewarm reviews praised the novel’s prose, but believed the author’s left-wing political stance was too obvious. Sam Anderson, in a review for New York magazine, thought the characterization was strong, but perceived the politics as sometimes too heavy-handed: “Franzen the crankmighty detester of Twitter, ATVs, and housing developments” occasionally “overpower[s] Franzen the artist […] but if crankiness is the motor that powers Franzen’s art, I’m perfectly willing to sit through some speeches.”[16]Ron Charles of The Washington Post also felt less favorably, remarking that it lacked the wit and “[freshness]” of The Corrections. Charles praised Franzen’s prose and called him “an extraordinary stylist,” but questioned how many readers would settle for good writing as “sufficient compensation for what is sometimes a misanthropic slog.”[17] In addition, Ruth Franklin of The New Republic believed the novel resembled a “soap opera” more than it did an epic, and that Franzen had forgotten “the greatest novels must […] offer […] profundity and pleasure.”[18]

Alexander Nazaryan criticized its familiarity in the New York Daily News remarking that the author “can write about a gentrifying family in St. Paul. Or maybe in St. Louis. But that’s about it. Nazaryan also didn’t believe Franzen was joking when he suggested “being doomed as a novelist never to do anything but stories of Midwestern families.”[19]Alan Cheuse of National Public Radio found the novel “[brilliant]” but not enjoyable, suggesting that “every line, every insight, seems covered with a light film of disdain. Franzen seems never to have met a normal, decent, struggling human being whom he didn’t want to make us feel ever so slightly superior to. His book just has too much brightness and not enough color.”[20]

Ross Douthat of First Things praised the “stretches of Freedom that read like a master class in how to write sympathetically about the kind of characters” with an abundance of freedom. Yet, Douthat concluded the novel was overlong, feeling the “impression that Franzen’s talents are being wasted on his characters.”[21]

Freedom won the John Gardner Fiction Award. Additionally, it was a finalist for the Los Angeles Times Book Prize and the National Book Critics Circle Award for Fiction. The American Library Association also named it a notable fiction of the 2010 publishing year.

Oprah Winfrey made Freedom her first book club selection of 2010, saying, “this book is a masterpiece.”[22][23] US President Barack Obama called it “terrific” after reading it over the summer.[24]

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Libertarianism versus other Political Perspectives

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Jul 222015

In simplest terms the primary difference between libertarianism and other political philosophies involves beliefs about the amount of authority government should have over peoples’ personal and business matters.

Liberals want government to focus on doing what is “good,” including providing what is often referred to as “social justice.” To do that, among other policies, liberals expect government to: a)tax corporations and “wealthy” and “high income” citizens heavily to pay for the social justice programs and b)regulate business and personal behavior to the extent necessary for social justice.

Conservatives want government to control “bad,” offensive, and immoral behavior, even if that behavior brings no harm or danger to non-participants. Most often bad is defined based on the prevailing interpretation of Judeo-Christian rules. And, though conservatives tend to express a belief in small government, they usually cannot resist government programs that serve their agenda such as “family values.”

Liberals and conservatives both believe that government’s mission is some combination of: a)making the world better, b)providing moral leadership, and c)protecting people from themselves. Of course conservatives and liberals tend to disagree about what is good and what is moral. And whether or not you agree with those objectives, you are forced to pay for them with your money and/or your liberty. Ironically you pay for liberal and conservative programs, rules, and regulations — with your money and your liberty.

Libertarians believe that goodness is voluntary, morality is personal, human nature cannot be legislated away, and only harm to others should be illegal.

And, though libertarians believe in limited government, as described in the U.S. Constitution, they do not want chaos. Libertarians recognize that government has a clear and critical mission: preserving and enhancing liberty. To achieve that goal government must: a)protect citizens from foreign enemies, b)arrest, try, and punish people that harm or endanger others, and c)make some judgment calls when peoples’ liberties conflict.

When considering where to locate your politics on the Nolan Chart first ask yourself: “How much should government do to make my preferences mandatory?” Then ask yourself, “How much should government control what I do based on what other people think, believe, or want?”

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Libertarianism versus other Political Perspectives

The Libertarianism FAQ – CatB

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Jun 202015

Definitions, Principles and History What is a libertarian? What do libertarians want to do? Where does libertarianism come from? How do libertarians differ from “liberals”? How do libertarians differ from “conservatives”? Do libertarians want to abolish the government? What’s the difference between small-l libertarian and big-l Libertarian? How would libertarians fund vital public services? What would a libertarian “government” do and how would it work? Politics and Consequences What is the libertarian position on abortion? What is the libertarian position on minority, gay & women’s rights? What is the libertarian position on gun control? What is the libertarian position on art, pornography and censorship? What is the libertarian position on the draft? What is the libertarian position on the “drug war”? What would libertarians do about concentrations of corporate power? Standard Criticisms But what about the environment? Who speaks for the trees? Don’t strong property rights just favor the rich? Would libertarians just abandon the poor? What about national defense? Don’t you believe in cooperating? Shouldn’t people help each other? Prospects How can I get involved? Is libertarianism likely to get a practical test in my lifetime? Resources Online Books Magazines Libertarian political and service organizations

There are a number of standard questions about libertarianism that have been periodically resurfacing in the politics groups for years. This posting attempts to answer some of them. I make no claim that the answers are complete, nor that they reflect a (nonexistent) unanimity among libertarians; the issues touched on here are tremendously complex. This posting will be useful, however, if it successfully conveys the flavor of libertarian thought and gives some indication of what most libertarians believe.

The word means approximately “believer in liberty”. Libertarians believe in individual conscience and individual choice, and reject the use of force or fraud to compel others except in response to force or fraud. (This latter is called the “Non-Coercion Principle” and is the one thing all libertarians agree on.)

Help individuals take more control over their own lives. Take the state (and other self-appointed representatives of “society”) out of private decisions. Abolish both halves of the welfare/warfare bureaucracy (privatizing real services) and liberate the 7/8ths of our wealth that’s now soaked up by the costs of a bloated and ineffective government, to make us all richer and freer. Oppose tyranny everywhere, whether it’s the obvious variety driven by greed and power-lust or the subtler, well-intentioned kinds that coerce people “for their own good” but against their wills.

Modern libertarianism has multiple roots. Perhaps the oldest is the minimal-government republicanism of the U.S.’s founding revolutionaries, especially Thomas Jefferson and the Anti-Federalists. Adam Smith, John Stuart Mill and the “classical liberals” of the eighteenth and nineteenth centuries were another key influence. More recently, Ayn Rand’s philosophy of “ethical egoism” and the Austrian School of free-market capitalist economics have both contributed important ideas. Libertarianism is alone among 20th-century secular radicalisms in owing virtually nothing to Marxism.

Once upon a time (in the 1800s), “liberal” and “libertarian” meant the same thing; “liberals” were individualist, distrustful of state power, pro-free- market, and opposed to the entrenched privilege of the feudal and mercantilist system. After 1870, the “liberals” were gradually seduced (primarily by the Fabian socialists) into believing that the state could and should be used to guarantee “social justice”. They largely forgot about individual freedom, especially economic freedom, and nowadays spend most of their time justifying higher taxes, bigger government, and more regulation. Libertarians call this socialism without the brand label and want no part of it.

For starters, by not being conservative. Most libertarians have no interest in returning to an idealized past. More generally, libertarians hold no brief for the right wing’s rather overt militarist, racist, sexist, and authoritarian tendencies and reject conservative attempts to “legislate morality” with censorship, drug laws, and obnoxious Bible-thumping. Though libertarians believe in free-enterprise capitalism, we also refuse to stooge for the military-industrial complex as conservatives are wont to do.

Libertarians want to abolish as much government as they practically can. About 3/4 are “minarchists” who favor stripping government of most of its accumulated power to meddle, leaving only the police and courts for law enforcement and a sharply reduced military for national defense (nowadays some might also leave special powers for environmental enforcement). The other 1/4 (including the author of this FAQ) are out-and-out anarchists who believe that “limited government” is a delusion and the free market can provide better law, order, and security than any goverment monopoly.

Also, current libertarian political candidates recognize that you can’t demolish a government as large as ours overnight, and that great care must be taken in dismantling it carefully. For example, libertarians believe in open borders, but unrestricted immigration now would attract in a huge mass of welfare clients, so most libertarians would start by abolishing welfare programs before opening the borders. Libertarians don’t believe in tax-funded education, but most favor the current “parental choice” laws and voucher systems as a step in the right direction.

Progress in freedom and prosperity is made in steps. The Magna Carta, which for the first time put limits on a monarchy, was a great step forward in human rights. The parliamentary system was another great step. The U.S. Constitution and Bill of Rights, which affirmed that even a democratically-elected government couldn’t take away certain inalienable rights of individuals, was probably the single most important advance so far. But the journey isn’t over.

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Bitcoin, Intel, The NSA and Real Politics – Video

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Apr 112015

Bitcoin, Intel, The NSA and Real Politics
Vinay Gupta Networks With IamSatoshi… Tip BTC: https://www…

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MidPoint | Michael Barone discusses the recent furor over religious freedom laws – Video

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Apr 072015

MidPoint | Michael Barone discusses the recent furor over religious freedom laws
The senior political analyst for the Washington Examiner joins MidPoint to discuss the recent furor over religious freedom laws, and the politics involved in the Sen. Menendez indictment.

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MidPoint | Michael Barone discusses the recent furor over religious freedom laws – Video

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Indiana, Arkansas, and other 'religious freedom' laws: Trouble for the GOP (+video)

 Freedom  Comments Off on Indiana, Arkansas, and other 'religious freedom' laws: Trouble for the GOP (+video)
Apr 072015

The governors of Indiana and Arkansas Republicans Mike Pence and Asa Hutchinson likely are spending Easter weekend wondering what they might have done to avert the adverse political wave that rolled them over this past week.

It was worse for Indianas Gov. Pence, who had to backtrack on the Religious Freedom Restoration Act hed just signed, calling on state legislators to clarify the law so that it no longer so obviously allowed for discrimination of gays and lesbians.

Arkansas Gov. Hutchinson, learning from Pences experience, quickly said hed veto that states RFRA bill unless lawmakers wrote in that same clarification. That his own son had signed a petition against the bill no doubt got his attention.

“The issue has become divisive because our nation remains split on how to balance the diversity of our culture with the traditions and firmly held religious convictions,” Hutchison said at a press conference. “It has divided families, and there is clearly a generational gap on this issue. My son Seth signed the petition asking me, Dad, the governor, to veto this bill.”

That generational gap was a clear point former California governor Arnold Schwarzenegger made Friday in a Washington Post op-ed column excoriating his own Republican Party on the issue.

“As an American, Im incredibly concerned aboutwhat happened in Indiana this weekand thethreat of similar lawsbeing passed in other states, Mr. Schwarzenegger wrote. As a Republican, Im furious.

I know plenty of Republicans who are sensible and driven to solve problems for America. They believe in Reagans vision of a big tent where everyone is welcome. This message isnt for them, he wrote. It is for Republicans who choose the politics of division over policies that improve the lives of all of us. It is for Republicans who have decided to neglect the next generation of voters. It is for Republicans who are fighting for laws that fly in the face of equality and freedom.

“There are so many real problems that need solving. But distracting, divisive laws like the one Indiana initially passed arent just bad for the country, theyre also bad for our party, Schwarzenegger continued.In California, the GOP has seen the danger of focusing on the wrong issues. In 2007, Republicans made up nearly 35 percent of our registered voters. By 2009, ourshare droppedto 31 percent, andtoday, it is a measly 28 percent. That sharp drop started just after the divisive battle over Proposition 8 [which banned same-sex marriage]. Maybe thats a coincidence, but there is no question that our party is losing touch with our voters, especially with the younger ones who are growing the registration rolls.

(In 2013, the United States Supreme Court effectively killed Prop. 8.)

The struggle to balance religious freedoms with civil and personal rights continues in other states, where local and national businesses have become major players.

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Indiana, Arkansas, and other 'religious freedom' laws: Trouble for the GOP (+video)

Indiana, Arkansas, and other 'religious freedom' laws: Trouble for the GOP

 Freedom  Comments Off on Indiana, Arkansas, and other 'religious freedom' laws: Trouble for the GOP
Apr 052015

The governors of Indiana and Arkansas Republicans Mike Pence and Asa Hutchinson likely are spending Easter weekend wondering what they might have done to avert the adverse political wave that rolled them over this past week.

It was worse for Indianas Gov. Pence, who had to backtrack on the Religious Freedom Restoration Act hed just signed, calling on state legislators to clarify the law so that it no longer so obviously allowed for discrimination of gays and lesbians.

Arkansas Gov. Hutchinson, learning from Pences experience, quickly said hed veto that states RFRA bill unless lawmakers wrote in that same clarification. That his own son had signed a petition against the bill no doubt got his attention.

“The issue has become divisive because our nation remains split on how to balance the diversity of our culture with the traditions and firmly held religious convictions,” Hutchison said at a press conference. “It has divided families, and there is clearly a generational gap on this issue. My son Seth signed the petition asking me, Dad, the governor, to veto this bill.”

That generational gap was a clear point former California governor Arnold Schwarzenegger made Friday in a Washington Post op-ed column excoriating his own Republican Party on the issue.

“As an American, Im incredibly concerned aboutwhat happened in Indiana this weekand thethreat of similar lawsbeing passed in other states, Mr. Schwarzenegger wrote. As a Republican, Im furious.

I know plenty of Republicans who are sensible and driven to solve problems for America. They believe in Reagans vision of a big tent where everyone is welcome. This message isnt for them, he wrote. It is for Republicans who choose the politics of division over policies that improve the lives of all of us. It is for Republicans who have decided to neglect the next generation of voters. It is for Republicans who are fighting for laws that fly in the face of equality and freedom.

“There are so many real problems that need solving. But distracting, divisive laws like the one Indiana initially passed arent just bad for the country, theyre also bad for our party, Schwarzenegger continued.In California, the GOP has seen the danger of focusing on the wrong issues. In 2007, Republicans made up nearly 35 percent of our registered voters. By 2009, ourshare droppedto 31 percent, andtoday, it is a measly 28 percent. That sharp drop started just after the divisive battle over Proposition 8 [which banned same-sex marriage]. Maybe thats a coincidence, but there is no question that our party is losing touch with our voters, especially with the younger ones who are growing the registration rolls.

(In 2013, the United States Supreme Court effectively killed Prop. 8.)

The struggle to balance religious freedoms with civil and personal rights continues in other states, where local and national businesses have become major players.

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Indiana, Arkansas, and other 'religious freedom' laws: Trouble for the GOP

Ind. Governor Battles Backlash Over ‘Religious Freedom’ Bill – Video

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Mar 292015

Ind. Governor Battles Backlash Over 'Religious Freedom' Bill
Indiana Gov. Mike Pence is speaking out to “clarify” a bill that he says defends religious freedom, but opponents say allows discrimination. Follow Sebastian Martinez:…

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Democrats Caught Up In Controversial Indiana Religious Freedom Law

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Mar 292015

TIME Politics 2016 Election Democrats Caught Up In Controversial Indiana Religious Freedom Law Michael ConroyAP Indiana Gov. Mike Pence announces that the Centers for Medicaid and Medicare Services has approved the state’s waiver request for the plan his administration calls HIP 2.0, during a speech in Indianapolis. Obama, Clinton have backed similar religious freedom bills.

Indianas new religious freedom law, which has prompted calls for a state boycott because it might permit discrimination against gays and lesbians, was made law by a Republican governor and Republican legislature. But the controversy could also ensnare leading Democrats like President Barack Obama, Former Secretary of State Hillary Clinton and New York Sen. Chuck Schumer, who previously supported bills with similar effects years ago.

The Religious Freedom Restoration Act was signed into federal law by President Bill Clinton more than 20 years ago, said Indiana Gov. Mike Pence on ABCs This Week, defending his states actions by pointing to similar federal legislation. Indiana properly brought the same version that then state senator Barack Obama voted for in Illinois before our legislature.

The Indiana law prohibits the state from enacting statues that substantially burden a persons ability to follow his or her religious beliefs. Critics argue it could be used to allow businesses to discriminate against gay and lesbian Americans in the state, prompting criticism from executives at companies like Apple, and the NCAA, which will host the mens Final Four basketball tournament in Indianapolis next weekend.

Democrats, including Hillary Clinton and aides to President Obama have also criticized the law. Sad this new Indiana law can happen in America today. We shouldnt discriminate against ppl bc of who they love, Clinton tweeted over the weekend.

But the Indiana law was modeled on the federal Religious Freedom Restoration Act (RFRA) introduced by then-Rep. Chuck Schumer, who is now a senior Democratic Senator from New York, and signed into law in 1993 by then-President Bill Clinton. The bill passed the U.S. Senate by a vote on 97 to 3 in 1993. The power of God is such that even in the legislative process, miracles can happen, President Clinton joked at the time of the bipartisan consensus.

Unlike the federal law which is focused on restricting government action to protect religious freedom, the Indiana version has a broader scope, potentially giving new rights to claim religious beliefs for private parties, like wedding cake vendors, who do not want to serve gay couples.

As an Illinois State Senator in 1998, Obama also voted in favor of a version of the new Indiana law. Years after that law passed, Illinois passed an explicit ban on discrimination based on sexual orientation, making clear that the law could not be used to deny service between private parties. That provision is not on the books in Indiana.

Despite weighing in on other controversial legislation in states, including this months passage of an anti-union bill in Wisconsin, Obama has not commented on the Indiana law, leaving his aides to critique it.

Look, if you have to go back two decades to try to justify something you are doing today, it may raise some questions about the wisdom of what youre doing, White House Press Secretary Josh Earnest said Sunday on ABCs This Week. Obama ducked a question on the Indiana law Saturday from reporters before departing on a two-day golf vacation to Florida.

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Government must act on cynical tax operators like Netflix

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Mar 252015

Reed Hastings, Netflix CEO.


The giant American global corporations do not lack gall. The idea that they should recycle a fair share of their profits back into the communities where they operate is not a concept embraced by Amazon, Apple, Google and others who have become notorious for shifting profits between subsidiaries and claiming absurdly low levels of profit in Australia as a percentage of their turnover here. It is legal but it is also cynical. We can now add Netflix to the list of cynical operators.

Netflix entered the Australian market on Tuesday. It is operating with the advantage of not having to charge its customers GST because it is not a “local entity”. Netflix is selling its on-demand, video- streaming service for a monthly subscription price of $8.99 for use on one device. (Using multiple platforms costs more.) This price is $1 a month less than its local competitors, whose customers are paying GST. The price advantage just happens to be almost exactly equal to the GST that Netflix is not charging, and which its local competitors, Presto and Stan, are charging. This is absurd tax policy.

GST is a tax on consumers, and consumers are happy to avoid it, but in an increasingly online, digital, borderless global economy, the tax advantage being handed to overseas companies by the federal government makes no sense, especially as it is grappling with a structural budget deficit that endangers the entire economy, long-term, if not brought into check.


Next Tuesday the government will release its long-delayed tax discussion paper, held back during Prime Minister Tony Abbott’s string of political bungles and appalling poll numbers. Given the public rejection of the government’s first budget, and given the government’s inability to get much of its budget agenda through the Senate, Australia is now drifting into the politics of debt and deficit.

This drift requires all sides of politics to confront Australia’s enormously expensive middle class welfare. There are several major areas of tax reform on which the government, and the opposition, should show courage. Superannuation concessions are costing $15 billion a year. Negative gearing is a huge game that is hitting housing affordability. The GST could be extended to food. People with large assets could be means-tested for various benefits including the pension. The GST could be extended to local services provided by foreign companies.

The American giants mentioned at the outset are all household names here because of the each have dominant market positions in the Australian market. The combined market capitalisation of Apple, Google and Amazon is $1.64 trillion, equivalent to one third the size of the entire Australian economy. For years, these companies have been shifting revenue into low-tax havens around the world, which has helped their profitability and their growth.

Support for extending the GST to foreign service companies has already been expressed by the Assistant Treasurer, Josh Frydenberg. He told Fairfax media this week: “Netflix is just another example of the growing digitisation of the Australian economy and the challenges related to taxing the trade of services and intangibles across borders.”

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Government must act on cynical tax operators like Netflix

House Freedom Caucus Gets an Executive Director

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Mar 132015

The upstart band of House conservatives that has challenged Republican leaders has hired an executive director, bolstering the groups organization ahead of budget and debt ceiling negotiations expected to divide GOP lawmakers.

The House Freedom Caucus has hired Steve Chartan to serve as its executive director, according to the group. Mr. Chartan, who begins his work with the Freedom Caucus on Monday, previously worked as a policy adviser for the Senate Republican Steering Committee under that groups chairman, Sen. Mike Lee(R., Utah.) His salary will be funded through dues paid by caucus members.

Steves experience on the Senate Steering Committee makes him an ideal executive director for the House Freedom Caucus, said the groups chairman, Rep. Jim Jordan (R., Ohio). His relationships on and off the Hill will help HFC to successfully promote common-sense solutions that benefit the countless Americans who feel that they are forgotten by Washington.

Mr. Chartan is the first staff member hired by the Freedom Caucus, a group of more than 30 of the Houses most conservative Republicans. The caucus has already bucked GOP leadership in the recent fight over Homeland Security Department funding and has indicated it will focus next on the budget, expected to be released in the House next week.

A graduate of Duke University, Mr. Chartan also worked in the Senate steering committee under its prior chairman, Sen. Pat Toomey (R., Pa.).

Having an executive director will enable the caucus to put together a formal whip operation and keep better track of its members position on issues, said Rep. Mick Mulvaney (R., S.C.).

Officially established in late January, the House Freedom Caucus was formed in part to have a smaller, nimbler alternative to the Republican Study Committee, once the conservative bastion of the House GOP that has grown to include most of its ranks.


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Lois Lerner Out From Under Freedom Path Lawsuit For Now

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Mar 102015

Lois Lerner might have had a bit of a breathing spell for a couple of days before the announcements about more e-mails being found. It was so short that it has largely been missed, but since I am playing catch-up I noticed it. Lerners brief reprieve was the work of Judge Sidney Fitzwater, a Reagan appointee, of the District Court for the Northern District of Texas. Judge Fitzwaters decision in Freedom Path Inc v Lois Lerner et alat least gets Lois Lerner out from under one lawsuit. Freedom Path was suing Lois Lerner, unnamed officials of the IRS, the IRS and the United States. The suit was about targeting FP due to its conservative views as it was applying for exempt status, illegally releasing information about FP and the general use of a facts and circumstances test in the IRS evaluation of political activities. Freedom Path complained in its lawsuit about the slow pace of its application and additional intrusive questions. Also a copy of its application (Form 1024) was released to ProPublica. On the application FP had indicated that it would not be engaging in political activity. ProPublica released a story Controversial Dark Money Group Among Five That Told IRS They Would Stay Out of Politics, Then Didntthat mentioned Freedom Path as one of the five. In April 2013 Freedom Path was asked for further information, which it was hesitant to release because of the disclosure to ProPublica. The IRS then offered FP the opportunity to enter into a new expedited process, but that did not work for them.

Under this process, Freedom Path could obtain approval of its pending application if it made certain representations regarding the organizations past, current, and future spending on political activities. Freedom Path alleges that it declined to participate in this optional expedited process because it viewed the required representations as unconstitutionally broad and as an IRS attempt to force Freedom Path to relinquish some of its First Amendment rights.

Lois Lerner Not A Texan The reason that Lois Lerner was dismissed from the suit is one that her supporters, if there are any, might not find very satisfying. Her detractors, who are legion, will probably find it infuriating. She was dismissed, because she does not have enough connection with Texas which is where the suit was brought (although in a federal court).

Freedom Path maintains that it has made a prima facie showing of in personam jurisdiction based on Lerners contacts with the state of Texas in connection with the IRSs unconstitutional scheme to target conservative organizations like Freedom Path. Alternatively, Freedom Path requests leave to conduct limited jurisdictional discovery to demonstrate Lerners contacts with the state of Texas. In Freedom Paths complaint, its only allegations related to the courts power to exercise personal jurisdiction over Lerner are that she oversaw the IRSs Office of Exempt Organizations, whose Examinations unit was headquartered in Dallas, Compl. 13, and that she sent an email to the Director of the Examinations unit, located in Dallas, regarding an audit of an organization not involved in the present case, Compl. Ex. 10 at 4; P. Resp. 34. These allegations are insufficient to make a prima facie showing of either specific jurisdiction or generalin personam jurisdiction over Lerner. Freedom Path has certainly failed to make a prima facie showing of general jurisdiction, that is, that her affiliations with the state of Texas are so continuous and systematic as to render her essentially at home in Texas. And it has also failed to make a prima facie showing of specific jurisdiction. Freedom Path does not allege that Lerner took any actions in Texas that are relevant to its complaint or that she directed any actions at Texas. In fact, Freedom Path does not even allege that Lerner had any personal involvement with its application for tax-exempt status or was even aware of the application.

Other Counts Dismissed Without Prejudice Because the IRS has not taken final action on Freedom Paths application, its other claims about use of the facts and circumstances test and view point based targeting were also dismissed, although Freedom Path is allowed to refile.

In count IV, Freedom Path challenges as unconstitutional the IRSs use of certain policies and procedures to target conservative organizations for heightened review of applications for tax-exempt status. Although the IRSs adherence to these policies and procedures may ultimately culminate in a final decision regarding Freedom Paths tax-exempt status, the use of these policies and procedures neither marks the consummation of the IRSs decisionmaking process nor determines Freedom Paths rights or obligations or precipitates legal consequences. Therefore, the policies and procedures that Freedom Path challenges in count IV do not constitute final agency actions, as 704 requires to state a claim for relief under the APA. Because Freedom Paths claims in count IV arise under the APAs general provisions and do not challenge final agency action, the court concludes that count IV does not state a claim on which relief can be granted, and it grants the federal defendants motion to dismiss count IV under Rule 12(b)(6).

Death By Delay? According to this Politico story Freedom Path is one of the organizations whose exempt determination is still waiting for word from the IRS on its exempt status.

Nearly two years after the IRS was exposed for improperly sidetracking requests for tax exemptions from tea party groups, POLITICO has learned that at least a half-dozen conservative applicants are still waiting for an answer.

It is likely the lawsuit that is continuing to hang it up. Whether Freedom Path was a dark money group or not to begin with remains undetermined, but apparently the group has gone entirely dark except for the lawsuit.

Without an answer, Freedom Path, currently suing the IRS, stopped operating in late spring of 2012 out of concern that it would be denied tax-exempt status and forced to pay back taxes. It also feared donor information could be revealed to the IRS. Freedom Path exists mostly in name now. It doesnt even have a website. Its six-figures in debt for legal bills suing the IRS. Weve had to reduce all of our expenses, and really were in a position now where were just struggling with legal bills, Bensing said. Were closer to bankruptcy than to solvency.

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Can the Senates new Republicans usher in NSA surveillance reform?

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Feb 232015

With the snow-capped Montana mountains behind him, flannel-clad Steve Daines blasted the National Security Agencys sweeping surveillance practices. I stood up to the Washington establishment in support of [a bill] to stop the NSA from collecting the records of innocent Americans, he said. Big government can take away our freedoms.

That was Mr. Daines campaign ad. And the message clearly resonated Daines, a former House representative from Montana, won his election to the Senate.

Security and privacy became hot-button issues in political races across the country after former NSA contractor Edward Snowden disclosed the spy agencys collection of millions of Americans call records. With several national polls showing Americans support curbing the controversial program, many wannabe senators, like Daines, spoke out about the need to protect civil liberties.

Now, 13 new senators are here in Washington and their votes will be crucial in the upcoming debates over surveillance reform.

Congress failed to pass a reform bill last year, despite President Obamas urging and recommendations from government-appointed privacy and civil liberties boards to end the domestic call record bulk collection program. In a Republican-controlled Congress, however, the politics of privacy are even more complex.

After the November elections, incoming Senate Majority Leader Mitch McConnell encouraged his Republican colleagues to oppose advancing the USA Freedom Act because it could hurt the fight against terrorism. With the threat from the Islamic State in the news, the vote to debate the surveillance reform bill fell short by just two votes. This time around, privacy advocates are warily watching the fresh crop of senators all Republican but one.

If they stay consistent with their past pro-privacy positions, they could very well tip the precarious balance in the upper chamber in favor of reform.

Theres a pretty short list of issues where our phones start ringing off the hook here, Daines told Passcode. Guns, he says, is a key one and when you start looking at surveillance and the federal government overreach, our phone really starts ringing.

This year, the pressures on: A key provision of the Patriot Act the NSA says provides the legal authority for the domestic spying program is set to sunset in June.

Its something the Republican Party is going to have to debate, says Mark Jaycox, legislative analyst for the Electronic Frontier Foundation. The question is going to be, can new members convince the leadership that these authorities need to be reformed?

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Can the Senates new Republicans usher in NSA surveillance reform?

NSA Bulk Data Collection Will Continue Despite Reforms – Video

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Feb 222015

NSA Bulk Data Collection Will Continue Despite Reforms
U.S. intelligence critics say the reforms for the NSA and other agencies fell short of expectations. Follow Christian Bryant:…

By: Newsy Politics

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NSA Bulk Data Collection Will Continue Despite Reforms – Video

First Amendment Rights [] – US History

 First Amendment  Comments Off on First Amendment Rights [] – US History
Feb 162015

American Government 1. The Nature of Government a. The Purposes of Government b. Types of Government c. What Is a Democracy? d. Democratic Values Liberty, Equality, Justice 2. Foundations of American Government a. The Colonial Experience b. Independence and the Articles of Confederation c. Creating the Constitution d. The Bill of Rights 3. Federalism a. The Founders and Federalism b. Tipping the Scales Toward National Power c. Federal-State Relations Today: Back to States’ Rights? 4. American Political Attitudes and Participation a. American Political Culture b. What Factors Shape Political Attitudes? c. Measuring Public Opinion d. Participating in Government e. Voting: A Forgotten Privilege? 5. How Do Citizens Connect With Their Government? a. Political Parties b. Campaigns and Elections c. Interest Groups d. The Media e. The Internet in Politics 6. Congress: The People’s Branch? a. The Powers of Congress b. Leadership in Congress: It’s a Party Matter c. The Importance of Committees d. Who Is in Congress? e. How a Bill Becomes a Law 7. The Presidency: The Leadership Branch? a. The Evolution of the Presidency b. All the President’s Men and Women c. Selection and Succession of the President d. The President’s Job e. Presidential Character 8. The Bureaucracy: The Real Government a. The Development of the Bureaucracy b. The Organization of the Bureaucracy c. Who Are the Bureaucrats? d. Reforming the Bureaucracy 9. The Judicial Branch a. The Creation of the Federal Courts b. The Structure of the Federal Courts c. The Supreme Court: What Does It Do? d. How Judges and Justices Are Chosen e. The Power of the Federal Courts 10. Civil Liberties and Civil Rights a. Rights and Responsibilities of Citizens b. First Amendment Rights c. Crime and Due Process d. Citizenship Rights 11. Policy Making: Political Interactions a. Foreign Policy: What Now? b. Defense Policy c. Economic Policy d. Social and Regulatory Policy 12. State and Local Governments a. State and Local Governments: Democracy at Work? b. Financing State and Local Government c. Who Pays for Education? 13. Comparative Political and Economic Systems a. Comparing Governments b. Comparing Economic Systems c. A Small, Small, World?

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.” -First Amendment to the Constitution

A careful reading of the First Amendment reveals that it protects several basic liberties freedom of religion, speech, press, petition, and assembly. Interpretation of the amendment is far from easy, as court case after court case has tried to define the limits of these freedoms. The definitions have evolved throughout American history, and the process continues today.

The First Amendment guarantees freedom of religion in two clauses the “establishment” clause, which prohibits the government from establishing an official church, and the “free exercise” clause that allows people to worship as they please. Notice that the phrase “separation of church and state” does not appear in the First Amendment, nor is it found anywhere else in the Constitution. Most people do not realize that the phrase was actually coined later by Thomas Jefferson. In 1802, when he was President, he wrote the opinion that the First Amendment’s freedom of religion clause was designed to build “a wall of separation between Church and State.”

Court cases that address freedom of religion have dealt with the rejection of prayer in public schools, the denial of aid to parochial schools, the banning of polygamy (the practice of having more than one wife), the restriction of poisonous snakes and drugs in religious rites, and limiting the right to decline medical care for religious purposes.

Free speech is one of the most cherished liberties, but free speech often conflicts with other rights and liberties. The courts have had to consider the question, “What are the limits of free speech?”

The “clear and present danger” test is a basic principle for deciding the limits of free speech. It was set by the famous Schenck v. the United States case from World War I. Antiwar activist Charles Schenck was arrested for sending leaflets to prospective army draftees encouraging them to ignore their draft notices. The United States claimed that Schenck threatened national security, and the justices agreed. The principle was established that free speech would not be protected if an individual were a “clear and present danger” to United States security.

What is free speech? The definition is not easy, and the courts have identified three types of free speech, each protected at a different level:

Many of the same principles that apply to freedom of speech apply to the press, but one with special meaning for the press is prior restraint. The courts have ruled that the government may not censor information before it is written and published, except in the most extreme cases of national security.

Freedom of assembly and petition are closely related to freedom of speech, and have been protected in similar ways. Former Chief Justice Charles Evans Hughes wrote, “Peaceable assembly for lawful discussion cannot be made a crime.” Generally, that point of view has prevailed. Freedom of assembly has to be balanced with other people’s rights if it disrupts public order, traffic flow, freedom to go about normal business or peace and quiet. Usually, a group must apply for a permit, but a government must grant a permit provided that officials have the means to prevent major disruptions.

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‘West won’t drop goal to bring Ukraine into NATO’ – Marcus Papadopoulos – Video

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Feb 102015

'West won't drop goal to bring Ukraine into NATO' – Marcus Papadopoulos
RT talks to Marcus Papadopoulos for some insight into the situation in Ukraine. He's the publisher and editor of Politics First, and a regular commentator on Russia and the Balkans. Munich…

By: RT

‘West won’t drop goal to bring Ukraine into NATO’ – Marcus Papadopoulos – Video

Right-libertarianism – Wikipedia, the free encyclopedia

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Feb 072015

Right-libertarianism (or right-wing libertarianism) refers to libertarian political philosophies that advocate both self-ownership and the unequal appropriation of natural resources,[1] leading to strong support of private property rights and free-market capitalism. This position is contrasted with that of left-libertarianism, which maintains that natural resources belong to everyone in some egalitarian manner, either unowned or owned collectively.[2] Right-libertarianism includes anarcho-capitalism and laissez-faire, minarchist liberalism.[note 1]

The non-aggression principle (NAP) is the foundation of most present-day right-libertarian philosophies.[3][4][5] It is a moral stance which asserts that aggression is inherently illegitimate. NAP and property rights are closely linked, since what constitutes aggression depends on what rights a person has.[6] Aggression, for the purposes of the NAP, is defined as the initiation or threat of violence against a person or his legitimately owned property. Specifically, any unsolicited action that physically affects another individual’s property or person, no matter if the result of those actions is damaging, beneficial, or neutral to the owner, are considered violent or aggressive when they are against the owner’s will and interfere with his right to self-ownership and self-determination.

Supporters of the NAP often appeal to it in order to argue for the immorality of theft, vandalism, assault, and fraud. In contrast to nonviolence, the non-aggression principle does not preclude violence used in self-defense or the defense of others.[7] Many supporters argue that the NAP opposes such policies as victimless crime laws, coercive taxation, and military drafts.

There is a debate amongst right-libertarians as to whether or not the state is legitimate: while anarcho-capitalists advocate its abolition, minarchists support minimal states, often referred to as night-watchman states. Minarchists maintain that the state is necessary for the protection of individuals from aggression, theft, breach of contract, and fraud. They believe the only legitimate governmental institutions are the military, police, and courts, though some expand this list to include fire departments, prisons, and the executive and legislative branches.[8][9][10] They justify the state on the grounds that it is the logical consequence of adhering to the non-aggression principle and argue that anarchism is immoral because it implies that the non-aggression principle is optional, that the enforcement of laws under anarchism is open to competition.[citation needed] Another common justification is that private defense agencies and court firms would tend to represent the interests of those who pay them enough.[11]

Anarcho-capitalists argue that the state violates the non-aggression principle by its nature because governments use force against those who have not stolen or vandalized private property, assaulted anyone, or committed fraud.[12][13] Many also argue that monopolies tend to be corrupt and inefficient, that private defense and court agencies would have to have a good reputation in order to stay in business. Linda & Morris Tannehill argue that no coercive monopoly of force can arise on a truly free market and that a government’s citizenry can’t desert them in favor of a competent protection and defense agency.[14]

Libertarian philosopher Moshe Kroy argues that the disagreement between anarcho-capitalists who adhere to Murray Rothbard’s view of human consciousness and the nature of values and minarchists who adhere to Ayn Rand’s view of human consciousness and the nature of values over whether or not the state is moral is not due to a disagreement over the correct interpretation of a mutually held ethical stance. He argues that the disagreement between these two groups is instead the result of their disagreement over the nature of human consciousness and that each group is making the correct interpretation of their differing premises. These two groups are therefore not making any errors with respect to deducing the correct interpretation of any ethical stance because they do not hold the same ethical stance.[15]

While there is debate on whether left, right, and socialist libertarianism “represent distinct ideologies as opposed to variations on a theme,” right-libertarianism is most in favor of private property.[16] Right-libertarians maintain that unowned natural resources “may be appropriated by the first person who discovers them, mixes her labor with them, or merely claims themwithout the consent of others, and with little or no payment to them.” This contrasts with left-libertarianism in which “unappropriated natural resources belong to everyone in some egalitarian manner.”[17] Right-libertarians believe that natural resources are originally unowned, and therefore, private parties may appropriate them at will without the consent of, or owing to, others (e.g. a land value tax).[18]

Right-libertarians (also referred to as propertarians) hold that societies in which private property rights are enforced are the only ones that are both ethical and lead to the best possible outcomes.[19] They generally support the free market, and are not opposed to any concentrations of economic power, provided it occurs through non-coercive means.[20]

Libertarianism in the United States developed in the 1950s as many with Old Right or classical liberal beliefs in the United States began to describe themselves as libertarians.[21]H. L. Mencken and Albert Jay Nock were the first prominent figures in the United States to call themselves libertarians.[22] They believed Franklin D. Roosevelt had co-opted the word liberal for his New Deal policies, which they opposed, and used libertarian to signify their allegiance to individualism. Mencken wrote in 1923: “My literary theory, like my politics, is based chiefly upon one idea, to wit, the idea of freedom. I am, in belief, a libertarian of the most extreme variety.”[23]

In the 1950s, Russian-American novelist Ayn Rand developed a philosophical system called Objectivism, expressed in her novels The Fountainhead and Atlas Shrugged, as well as other works, which influenced many libertarians.[24] However, she rejected the label libertarian and harshly denounced the libertarian movement as the “hippies of the right.”[25] Philosopher John Hospers, a one-time member of Rand’s inner circle, proposed a non-initiation of force principle to unite both groups; this statement later became a required “pledge” for candidates of the Libertarian Party, and Hospers himself became its first presidential candidate in 1972.[citation needed]

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Right-libertarianism – Wikipedia, the free encyclopedia

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