Pain doc vs. the pleasure police

Whichever side you fall on in the debate over the "war on drugs," there's a subset of America's continuing experiment with Prohibition that really should have everybody unified in horror. As part of its efforts to make sure that nobody takes unapproved intoxicants, the government has waged an ongoing campaign against doctors who use powerful medications to control pain in often-terminal patients. By their very nature, these drugs can also be used recreationally, causing the pleasure-police to suspect every prescription as a fake and every doctor as a pusher. The current poster-child for physicians on the receiving end of the government's puritanical wrath is Dr. William Hurwitz, whose retrial began this week in Alexandria, Virginia.

John Tierney of The New York Times has been covering the case, and covering it well. If you're late to the story, Tierney has an excellent roundup of the situation in his Findings column.

Hurwitz is being tried a second time because the jury the first time around was improperly instructed to ignore whether Dr. Hurwitz had acted in “good faith.” That first jury convicted Hurwitz, sending him to prison allegedly for trafficking in narcotics under cover of medicine. A review of the trial shows that Hurwitz was railroaded by a litany of misrepresentations and junk science. As Tierney points out:

During the first trial, the prosecution argued that it was beyond the “bounds of medicine” for Dr. Hurwitz to prescribe more than 195 milligrams of morphine per day, but dosages more than 60 times that level are considered acceptable in a medical textbook. The prosecution’s supposedly expert testimony on dosage levels and proper pain treatment for drug addicts was called “factually wrong” and “without foundation in the medical literature” in a joint statement by Dr. Russell K. Portenoy and five other past presidents of the American Pain Society.

Tierney reports on his blog that the new trial is already starting off with a better presentation by the defense team. His initial post on the proceedings is here.

With luck -- and good lawyering -- Hurwitz will go free this time. That will be an important signal to doctors and patients that DEA agents won't be freely second-guessing medical decisions.

Big Brother wants to know who your tenants are

Officials in McSherrystown, Pennsylvania are quite cross. It seems that several local landlords are refusing to surrender lists of their tenants, as required by law. A town ordinance requires landlords to report tenants' names to the borough every six months.

For what reason?

Your guess is as good as mine.

Failing to report on your tenants to the local authorities can carry a fine of up to $1,000, plus costs.

Local officials want information, so why not give them some? McSherrystown's city government can be reached at:

phone: (717) 637-1838
fax: (717) 637-3313
email: mcstown@earthlink.net

Give 'em an earful.

You may already be a terrorist

If your name -- or any monicker close to your name -- appears on a lengthy list of "specially designated nationals" maintained by the U.S. Treasury Department's Office of Foreign Assets Control, you may be unable to get a mortgage, buy insurance or purchase a car. That's because the federal government makes it illegal for businesses, under threat of both civil and criminal penalties, to have anything to do with individuals and organizations whose names appear on the list. As the Lawyers Committee for Civil Rights of the San Francisco Bay Area puts it in a recent report (PDF file):

[T]he law covered not just financial institutions or other businesses particularly susceptible to terrorist financing, but extended responsibility to all U.S. citizens, permanent residents, entities organized under U.S. law, and anyone present in the United States. In addition, the order made no exception for minimal transactions, so even a sale worth pennies could be penalized under the law.

Not surprisingly, many businesses choose to err on the side of caution rather than risk fines and jail time -- with civil penalties accruing for even inadvertent transgressions. The result is that innocent people have found themselves turned away for loans, purchases and insurance with little recourse except a drawn-out and potentially expensive effort to prove that they are not the same person as a sometimes vaguely identified terrorist on the watch list.

It's not a theoretical problem. The report, compiled by Shirin Sinnar, contains chilling anecdotes about normal people with common names turned away by mortgage brokers, car dealers and name-brand businesses like Western Union and PayPal.

In fact, the problem might be even worse except that many businesses aren't obeying the requirement that every potential customer be screened for terrorist connections. Many don't know about the law; others find the cost of compliance daunting, even in light of the penalties involved.

Major banks spend millions of dollars annually on checking the OFAC list and following other post-9/11 regulations. For smaller businesses, such as mini-marts that offer check cashing services, the burdens of implementation are even more formidable. The purchase of screening software alone can cost businesses thousands of dollars. ...

Theoretically, before a grocer sells a pint of milk, a deli serves a sandwich, or a doctor treats a patient, they should all be checking the OFAC list to make sure they are not assisting a person on the list.

Can you imagine how many thousands more Americans would become unpersons if the law was better known and more easily obeyed?

Your government -- protecting you from some guy with a slightly suspicious name.

Pricing Prohibition

Noted economist Gary Becker, of the University of Chicago, argued in 2005 that the ongoing war on drugs -- really, a crusade against personal choice -- has a stratospheric cost that can, at least in part, be measured in dollars and cents. wrote the noted Nobel Prize-winner:

After totaling all spending, a study by Kevin Murphy, Steve Cicala, and myself estimates that the war on drugs is costing the US one way or another well over $100 billion per year. These estimates do not include important intangible costs, such as the destructive effects on many inner city neighborhoods, the use of the American military to fight drug lords and farmers in Colombia and other nations, or the corrupting influence of drugs on many governments.

You might also add to that list of intangible costs the lives lost to misfired paramilitary police raids, the years wasted in prison by people engaged in victimless activities, and the liberty eroded in the name of pursuing a pointless and impossible ban on officially disfavored intoxicants.

Perhaps those soaring costs are why one-time drug warrior and former congressman Bob Barr has joined the ranks of political and law-enforcement figures who have had a change of heart. Barr, the one-time sponsor of a measure that that blocked the District of Columbia from legalizing medical marijuana, has taken on a new job as a lobbyist for the Marijuana Policy Project. The Politico quotes Barr saying:

“I, over the years, have taken a very strong stand on drug issues, but in light of the tremendous growth of government power since 9/11, it has forced me and other conservatives to go back and take a renewed look at how big and powerful we want the government to be in people’s lives.”

Barr's move is an important one. More than his recent affiliation with the Libertarian Party, it pretty much closes the door on his participation in GOP politicking. It's difficult to imagine him seeking office again as a Republican after having advocated marijuana decriminalization. That's what convinces me of his sincerity. For a politician, there's no advantage to be gained, and much to be lost, by being right on the drug issue.

$100 billion per year, plus "intangible costs," can sway minds in powerful ways. Opinions can change when the dollars -- and lives -- start stacking up.

Lifestyle on a leash

Well, it's fuzzy critter day on the blog.

Louisville, Kentucky, has a new law intended to penalize people who don't have their pets spayed or neutered -- that's all pets, not just dogs and cats.

Norman Auspitz, the owner of the Kentucky Colonels Cat Club, said he joined as a plaintiff because the ordinance is "anti-pet."

"It's a bizarre thing," Auspitz said. "The law talks about unaltered animals, be they dogs, be they cats, be they rabbits."

The law apparently started off specifically targeted at "pit bulls" and rottweilers, but in reaction to public criticism of a breed-specific ban, it was widened to apply to just about any animal you can imagine -- and to their owners. More than just requiring that animals be altered, it hikes licensing fees and even dictates how animals are kept and how they're restrained.

Jon Fleischaker, attorney for the 12 organizations and individuals suing the city, said his clients believe the ordinance violates the federal and state constitutions. The suit, filed in Jefferson Circuit Court, claims that the ordinance isn't even a "dog law."

"It is a law that restricts the freedoms of people," the suit says.

"The law allows unfettered discretion by city officials in dealing with the property of people, without standards and without guidelines," Fleischaker said. "This is an effort by city officials to dictate how people deal with their pets, when their pets aren't bothering anyone."

I'm not entirely sure what's up with the flurry of anti-dog and anti-pet laws that have appeared in the news recently. To a certain extent, some of these laws are reaction to isolated incidents of dogs attacking people or other animals. To that extent they're a revival of the "pit-bull"-fever that fueled some remarkable stupid breed-specific legislation of the 1980s. But some of these law, like the Louisville law and the attempted greyhound racing ban in New Hampshire, seem targeted more at the way people interact with their animals than at specific types of animals.

My guess is that these laws are less about animals than they are about legislating lifestyle. If I'm right, the Louisville law has less in common with the old pit-bull bans than it does with San Francisco outlawing plastic bags. It's a way for people of a shared mindset to say: "Here we are, and we're in charge!" The ability to bludgeon "others" into submission with the power of the law then becomes an expression of cultural solidarity.

Think of it as the totalitarian underbelly of democracy. The majority rules -- and it wants you to clean up after your neutered, leashed pooch with a biodegradable bag. Or else.

Control freaks lose a round

Advocates of leaving people along to make their own choices won a small victory yesterday when the New Hampshire House voted down a measure that would have banned greyhound racing and shut down the state's tracks. By a solid vote of 198-138, state lawmakers turned aside the latest attempt to outlaw an activity -- actually, two activities if you count both the racing and the gambling -- that is considered politically incorrect by a well-funded cadre of finger-waggers.

To judge by the news reports, however, the debate over the bill was depressingly devoid of libertarian sentiment. The control freaks predictably claimed that racing dogs is cruel and that gambling is a moral failing, and the victorious opponents of the ban argued primarily on economic grounds, citing the potential cost in jobs and revenue for the state. Few people, if any, seem to have come right out and said that the issue is none of the government's business.

That's a shame, because keeping government within its proper boundaries is the most important argument. It ties together issues that otherwise have to be dealt with in a patchwork way. That's not to say that the economic arguments have no validity -- they're important for winning over the fence-sitters and pragmatists. But beating the control freaks requires going to the core of their argument -- their claim that they have the right to dictate to the rest of us -- and not just dealing with the surface details.

But a win is a win. We'll take 'em as they come.

21st-century slavery

Slavery -- forced labor -- still exists in parts of the world, and not just in backward hell-holes like the Sudan. Cloaked in patriotism and pretty uniforms, slavery still exists in some "civilized" countries that otherwise possess all the trappings of relative freedom, including open elections and a free press. In these countries, slavery continues to exist in the form of conscription.

Bermuda is one of the "civilized" places that still forces people to work for the state or face prison terms. Young men in Bermuda have long faced the prospect of a potential draft into service in the Bermuda Regiment. Unsurprisingly, such forced labor is not universally popular among those subject to its call. Now a minor revolt threatens to overturn military conscription in the island paradise -- and it's upsetting local leaders along the way.

Fourteen young men subject to the draft have filed a lawsuit against the authorities, challenging conscription on the grounds that it breaches the human right to be free, and that it's gender-biased. The men are backed by Bermudians Against the Draft, which is providing the lawyers and funding needed to fight the case before the island paradise's Supreme Court.

BAD's leader, the Rev. Larry Marshall Sr., has labeled conscription "21st-Century slavery," and it's hard to take issue with his choice of words. Hard, that is, unless you're Governor Sir John Vereker, or Premier Ewart Brown, both of whom have objected to the whole idea of letting people choose how to live their own lives. Premier Brown, in particular, emphasizes his affection for enforced national service.

Americans shouldn't be too smug about this situation. we have our fair share of political grand-standers who'd love to see conscription revived on the mainland, despite widespread rejection of the idea by the public. Defeating the draft in a neighbor like Bermuda might be a shot across the bow to would be slave-drivers in the U.S.

To help Bermudians Against the Draft with its efforts, go here to contribute.

Blow me

New Mexico may be poised to require new state residents with DUI convictions from elsewhere to install interlock-ignition devices on their cars, but Pennsylvania may go one step beyond. If State Representative Paul I. Clymer gets his way, all Pennsylvanians will have to puff into breathalyzers before starting their cars.

Clymer's proposal would require that, by 2009, all new cars sold in Pennsylvania have a device installed to estimate the amount of alcohol on the breath of a driver. If the machine believes the driver's BAC is greater than .025 percent -- significantly less than the legal limit of .08 percent -- the car will not start. By 2010, all motorists would be forced to install the devices on existing cars before being able to sell them as used vehicles.

.025 percent? Forget about having a beer at lunch and then heading back to the office. Forget, for that matter, about having a drink with dinner and then driving home.

And, of course, forget about the presumption of innocence; everybody will have to prove their sobriety over and over again if Rep. Clymer gets his way.

Interestingly, the people's representative apparently never checked to see how much his proposal would cost each person who owns a car.

The state representative was unaware of the cost of the installation of the interlock ignition systems, which range from $700 to $1,200. Pennsylvania Interlock, which provides the systems to court-ordered DUI offenders, leases the units for $1,050 for one year. The cost includes installation, routine calibrations, and removal within a year’s time.

He says he might consider some minor modifications to the bill because of the cost. Of course, that's only a reprieve -- maybe -- until the technology becomes less expensive. Then, it's sayonara Fourth Amendment as everybody is forced to demonstrate their alcohol-free-status to their own automobiles.

Hat tip to Radley Balko at Hit & Run.

Webb's Second Amendment moment

I expect that Phillip Thompson, a "top aide" to Senator Jim Webb, will escape the mini-scandal surrounding him with little more than a warning. His "crime" -- carrying a pistol without a license and possession of an unregistered firearm and ammunition in gun-phobic Washington, D.C. -- seems to have been inadvertent. More importantly, he has Senator Webb -- the apparent owner of the gun and ammunition -- in his corner, making sure that the legal difficulties that befall little people don't ensnare a trusted political operative.

But while he's getting his aide off the hook, Webb might want to consider that a potential political plum has fallen into his lap. First of all, the incident demonstrates that Webb is not
as hostile to firearms as some of his Democratic colleagues. At the very least, he thinks that he should be able to own them. Now he needs to demonstrate that he extends that same consideration to the rest of us.

He's off to a good start. In a profile shortly after the election, Bloomberg columnist Andrew Ferguson described Webb as "an absolutist on Second Amendment rights -- the right to keep and bear arms." In an interview last year for the Daily Kos blog, Webb said:

I support the Second Amendment, for many of the same reasons that I am more "liberal" on social issues. I believe the power of the government should stop at my front door, and that I should have the ability to protect myself and my family.

Now he's a senator and it's time for Jim Webb to show he means what he says. He could publicly regret his aide's violation of D.C.'s gun laws, but then (after Thompson is off the hook) point out that the problem is with the law -- not with an individual transporting a firearm. He should make it clear that nobody -- not just politically connected apparatchiks -- should run afoul of the law for owning the means of self defense.

Webb could endorse the decision in Parker v. District of Columbia, and call on the Supreme Court to affirm the reasoning adopted by the court of appeals.

Basically, Webb could use this incident to put himself on the side of individual liberty -- at least so far as the right to bear arms is concerned.

Of course, doing so may cause some friction with his Democratic colleagues. The question is whether he's really the man of principle he claims to be, or whether he's just another ambitious politician.

Eminent anger

Two-thirds of Ohio voters would ban the use of public domain even for such public projects as roads, says a Quinnipiac University poll released last week. The press release summed up the poll's findings thusly:

Ohio voters support 78 - 17 percent setting limits on government use of eminent domain. In other questions on this issue:

• Voters oppose 65 - 32 percent using government's eminent domain power to take private property for public projects such as roads;
• Voters oppose 82 - 14 percent using eminent domain to take property for economic development;
• Voters say 50 - 30 percent that government has abused eminent domain in the past.

"Despite their concerns about the economy, Ohio voters don't see the value of eminent domain as an economic development tool," Brown said.

Interestingly, opposition to the use of eminent domain for public use projects pulls a majority of support across Republicans, Democrats and Independents -- but is highest for Democrats at 67 percent, defying the stereotype that donkey-party voters are generally government-friendly. Hostility to the use of eminent domain for economic development is so overwhelming across the board that it should simply put the issue off the table for discussion by politicians.

It's no surprise that State Sen. Timothy J. Grendell told The Cincinnati Enquirer, "If we don't take responsible action in the Legislature, there may be groups that see those poll results and take the initiative to put something on the ballot that would be far more Draconian." With poll results like that, it's almost a given.

I think it's obvious that politicians and urban planners are reaping what they have sowed. Abuses of eminent domain have been so well-publicized, and the Supreme Court's
horrendous Kelo v. New London decision so roundly vilified, that the public is turning against the practice of forcible property takings for any purpose.

In the wake of Kelo, many local governments actually took advantage of the new legal landscape and stepped up their land-grabs -- promptly making headlines by doing so. Eminent domain rightly scares people under any circumstances, and all the more so when they see news reports about people just like them turned out of their homes.

In his column for The Orange County Register, Steven Greenhut captures exactly what's wrong with granting the government the power to seize property:

Today's code words and attitudes may be different than they were in the 1920s, but by giving government so much power to drive people off their land, we all are subject to the whims and rationales of officials. In the 1920s, officials didn't think blacks were "appropriate" for the neighborhood, and these days officials don't want "working-class people" enjoying prime land that could be home to upscale condos.

I would be happy to see eminent domain eliminated entirely. I flat-out don't see a justification for giving the government the power to forcibly displace people. Private property should be a refuge from the state, not a hostage to it.

Most reformers don't go as far as me and focus only on the abuse of eminent domain to displace people in favor of wealthy developers -- economic development, in other words. They're comfortable with -- or at least tolerant of -- the use of force to acquire land to build schools and roads. The ballot initiatives and bills of the past two years haven't sought to abolish eminent domain in its entirety.

But public opinion is a fickle things, and it can take strange turns when people have good reason to get angry. If that Quinnipiac poll is right, us radicals on the eminent domain issues are more in tune with the public than the moderates. Politicians might want to keep those poll results in mind.

Asset forfeiture abuse

Jeff Doles was acquitted of selling "drug paraphernalia" through his head shop in Gillette, Wyoming, but that didn't deter authorities. Turned away by a jury, Campbell County prosecutor Bill Eichelberger found a cooperative judge who allowed him to seize Doles's inventory anyway, even in the absence of a conviction.

The key is civil asset forfeiture, a convenient, if bizarre, bit of legal legerdemain in which a legal action is brought against objects rather than people. Money and inventory can be found guilty of a crime and seized, even when criminal defendants win their cases -- and some people are never even charged with a crime.

Civil asset forfeiture hit the headlines briefly in the 1990s after some well-publicized abuses of the power. Some of the uses, such as the confiscation by federal officials of $9,000 from a landscaper named Willie Jones, seemed indistinguishable from muggings. As a results, a modest reform measure, the Civil Asset Forfeiture Reform Act of 2000 (CAFRA) was passed by Congress and signed into law by then-President Bill Clinton, somewhat reining-in asset-grabs on the federal level. Forfeiture pretty much dropped off the public's radar after that.

But as Doles's case demonstrates, abusive uses of asset forfeiture didn't go away; the practice is alive and well across the country. Forfeiture Endangers American Rights, a national organization, keeps a close eye on the practice, and it has yet to run short of examples of government officials using the power of the law to bypass the requirements of a criminal trial.

The fate of Doles's inventory -- convicted in lieu of its owner -- will be decided by the Wyoming Supreme Court.

NYPD watches over you

The New York Times confirms what many political activists of even a mildly radical stripe have long suspected: The NYPD is back in the business of spying on political groups.

The revelation comes almost three years after the 2004 Republican convention, in preparation for which city police officers traveled far and wide -- even overseas -- to monitor activist group's preparations for the upcoming event. Some of the results were, frankly comical.

Marco Ceglie, who performs as Monet Oliver dePlace in Billionaires for Bush, said he had suspected that the group was under surveillance by federal agents — not necessarily police officers — during weekly meetings in a downtown loft and at events around the country in the summer of 2004.

“It was a running joke that some of the new faces were 25- to 32-year-old males asking, ‘First name, last name?’ ” Mr. Ceglie said. “Some people didn’t care; it bothered me and a couple of other leaders, but we didn’t want to make a big stink because we didn’t want to look paranoid. We applied to the F.B.I. under the Freedom of Information Act to see if there’s a file, but the answer came back that ‘we cannot confirm or deny.’"

The primary goal of the police infiltrators was to forestall violence at the convention. This was all in the wake of 9/11 of course, and so fear of a terrorist reprise ran deep. Honestly, it makes sense that the police would keep an eye out for anybody who might see a major-party politial convention as a plum target for a bloody political statement.

Inevitably, though, perfectly peaceful individuals and organizations came under the watchful eye of the police.

In its preparations, the department applied the intelligence resources that had just been strengthened for fighting terrorism to an entirely different task: collecting information on people participating in political protests.

In the records reviewed by The Times, some of the police intelligence concerned people and groups bent on causing trouble, but the bulk of the reports covered the plans and views of people with no obvious intention of breaking the law.

The end results included the infiltration of harmless organizations, the compilation of dossiers on political dissidents and the arrests of perfectly peaceful people, including a grad student who designed a high-tech bicycle that could spray chalk political messages on the pavement as it was pedaled along.

The arrests, in particular, are what carry the NYPD's efforts over the line from over-enthusiastic to sinister. It's easy to see the surveillance having a chilling effect on speech and activism among people who'd really rather not spend nights as guests of the city of New York. Given the potential for being arrested for planning nothing more than a pointed expression of your views, it's tempting to leave the politicking to somebody with a stronger tolerance for jail cells.

This is why the NYPD got in trouble in the first case, with it's surveillance of anti-war groups back in the 1960s.

Pirate radio lives - online

Last month (OK, I'm a little late getting to this), the 9th U.S. Circuit Court of Appeals ruled against a San Francisco pirate radio station in a case that's probably most notable for how quaint it seems. In supporting the federal government's seizure of San Francisco Liberation Radio's broadcast equipment, the three-judge panel said, "Neither broadcasters nor listeners have a First Amendment right to engage in or listen to unlicensed broadcasts."

It was an unfortunate decision, but one which had less meaning for free speech than it would have just a few years ago. Indeed, pirate radio stations, despite their chaotic and sometimes heroic history, have less meaning for free speech than they did just a few years ago.

That's because technology marches on. In fact, San Francisco Liberation Radio had the ability to cover and broadcast the news of its own case, beyond the reach of the law. In addition to its traditional radio transmitters, the station maintains a Website and streams its shows across the Internet -- a medium much more free-wheeling and open to DIY entrepreneurs than the old-fashioned radio waves.

Which is not to minimize the loss suffered by the station through the seizure of its equipment, or the loss suffered by Americans in the court's legal nod to decades of government dominance and allocation of the broadcast spectrum.

But more people now than ever before have the ability to launch media operations and reach an audience beyond the stifling confines of government regulation. And the courts, as demonstrated by the just-decided case of American Civil Liberties Union v. Gonzales, seem inclined to keep regulators' mitts off the new medium, in stark contrast to the treatment of radio and television.

It would be best if radio were as free and unregulated as the Internet, but it's increasingly irrelevant that it's not. Someday, the broadcast media's near-exemption from First Amendment protections may well be seen as an odd blip between the dominance of comparatively freewheeling print operations and their online successors.

How about the death penalty for moving violations?

The Brooksville, Florida, city council proposes to seize homes -- yes, seize homes -- over unpaid parking tickets of as little as $5. Don't own a home, you say? Then they'll grab your car.

But what if you receive a bogus ticket?

Well, don't worry -- there's a handy-dandy appeals process just waiting for you.

Any motorist who believes a parking ticket may have been improperly issued must first pay a $250 "appeal fee" within seven days to have the case heard by a contract employee of the city. This employee will determine whether the city should keep the appeal fee, plus the cost of the ticket and late fees, or find the motorist not guilty.

Don't even ask what happens if you blow through a stop sign.

Whiff of smoke

It's hard to know whether the bar owner or his customers are the ones defying Washington's new smoking ban, but it's obvious that somebody isn't knuckling under to the mandate. Good for them.

County environmental health specialist Dale Tahja, who investigated the case, said Schnarrs was the only proprietor in the county who still was not compliant with the state anti-smoking law.

Tahja said he received a citizens complaint Jan. 10 about customers smoking inside the bar, as well as two similar reports by an off-duty county building inspector and code-compliance officer Jan. 19 and Jan. 26. In addition, Tahja said he did not see the required "no smoking" sign when he visited Schnarrs' tavern Jan. 11.

For his part, sports bar owner Frankie Schnarrs claims that he's trying to enforce the ban, but he can't always be in the bar monitoring his customers' activities. Given his past vows of defiance, that may just be a coy way of sliding out from under legal penalties that would otherwise be levied against him.

It's hard to understand the prosecutors' enthusiastic pursuit of this case. While the county didn't get its wish, its representatives sought fairly hefty penalties.

"Clearly, he didn't get the message," Deputy Prosecuting Attorney Jane Futterman told Hirsch on Friday. Futterman had asked the judge to impose fines against Schnarrs of $100 per day dating to the Dec. 29 injunction, or $7,500.

Is the county so crime-free that it can afford to expend resources to punish consensual behavior that business owners permit on their own premises? Actually, my guess is that it's a matter of pride -- government officials just can't stand it when the masses don't do their bidding.

Setback for property rights

Utah Governor Jon Huntsman joined his state legislature in bucking the national tide of concern for property rights; he signed a contemptible law expanding the use of eminent domain.

House Bill 365 allows a public body, a redevelopment authority, to condemn blighted land if 80 percent of owners in the targeted area agree.

The bill also requires a two-thirds vote of a community’s redevelopment board to approve the condemnation.

It is a significant change in a state that had a moratorium on the use of eminent domain for private development.

Among other consequences, the law is expected to pave the way for the city of Ogden to condemn land so that Wal-Mart can open a new store in its preferred location.

Big win for online free speech

A high-profile federal attempt to censor the Internet took a body-blow today when a federal court ruled that the Child Online Protection Act, the great blue-nose hope of 1998, is unconstitutional. COPA was intended to restrict children's access to "harmful" material by imposing age-verification requirements on Web sites that host such content. Penalties for violating the law included a $50,000 fine and up to six months in prison -- a hefty incentive to self-censor or relocate overseas for online publishers of even mildly risque material.

In his ruling in the case of American Civil Liberties Union v. Gonzales (PDF file), Judge Lowell A. Reed, Jr. of the U.S. District Court, Eastern District of Pennsylvania, found that COPA violates both the First and Fifth Amendments to the Constitution because:

(1) COPA is not narrowly tailored to the compelling interest of Congress;
(2) defendant has failed to meet his burden of showing that
COPA is the least restrictive and most effective alternative in achieving the compelling interest; and
(3) COPA is impermissibly vague and overbroad.

He issued a permanent injunction against the law's enforcement.

Not surprisingly, Judge Reed found that COPA is overinclusive -- that is, it censors too much -- because it "prohibits much more speech than is necessary to further Congress' compelling interest."

For example, as discussed above in Conclusions of Law 3 and 4, the definitions of "commercial purposes" and "engaged in the business" apply to an inordinate amount of Internet speech and certainly cover more than just commercial pornographers, contrary to the claim of defendant.

Interestingly, Judge Reed also found that COPA is underinclusive because "there is a significant amount of sexually explicit material on the Internet which originates from outside of the United States" that is not subject to the law -- indeed, is beyond the reach of U.S. law.

On both points, the judge said that Internet content filters chosen by parents would be "at least as effective" in fulfilling the purpose of the law.

The court's ruling is a welcome one for advocates of free speech -- especially those of us who enjoy the DIY publishing power of the Internet. Laws like COPA threatened to impose burdens on everybody, but they posed special hazards for small-scale operators who may have the power to post to the Web, but who lack the savvy or resources to set up age-verification systems, or to transfer their operations to overseas servers.

At least for the moment, free speech prevails.

What do you do again?

If you want to work in New Mexico -- and four other states as an interior designer, you can go ahead and do so. But if you want to call yourself an "interior designer," you'd better take a state-mandated licensing exam, or face the full wrath of the law. And that barrier to accurately describing your profession on your business cards and in the yellow pages isn't exactly a low hurdle. According to the Institute for Justice:

New Mexico’s speech-licensing requirements for interior designers are not easy to meet. First, applicants must pass an exam administered not by the State, but by a private, national credentialing body called the National Council for Interior Design Qualification (NCIDQ). But not just anyone may take the NCIDQ exam. Just to sit for the exam, NCIDQ requires people to have six years combined college-level interior design education and work experience.[15] That education/experience requirement is reflected in New Mexico law, which likewise provides that applicants for an interior design free-speech license must either have six years total experience and education from an “accredited institution” or an eight-year apprenticeship under a designer who has passed the NCIDQ exam described above.[16] Essentially, what New Mexico has fashioned is a guild of interior designers.

Four other states go even further: Alabama, Florida, Nevada and Louisiana plus the District of Columbia all prevent people from even working as interior designers unless they jump through hoops established by government bureaucrats.

Not surprisingly, these licensing laws have been pushed not by consumers suffering bad feng shui from the ravages of incompetent interior designers, but by the design industry itself. The American Society of Interior Designers has waged a campaign to "professionalize" the industry -- and, incidentally, limit the competition -- by establishing legally enforceable barriers to entry.

Fortunately, most states see little reason to test and license people before allowing then to decide where to put your sofa. But the residents of New Mexico are among the minority who have to beg, hat in hand, to be allowed to openly and fully practice their craft.

So IJ has taken on the task of representing New Mexicans who work as interior designers and want to exercise their right to accurately describe to the public what they do to earn their keep.

The Institute’s legal challenge is straightforward: prohibiting people from truthfully describing what they do—interior design—violates their First Amendment right to free expression. With very narrow exceptions, all types of speech are protected by the Constitution, including so-called “commercial speech” that “does no more than propose a commercial transaction.”[21] Thus, to regulate advertising, the government must have a substantial reason for restricting speech, and any limits must be carefully designed to actually achieve the government’s objectives while having only the narrowest infringement on speech.[22]

Offering your services to willing customers is a right -- not a privilege. And, as IJ points out, accurately describing the services you offer is simple free speech.

Here's hoping IJ and the plaintiffs prevail.

Nannies in the news

The nanny state is in the news again. This from Associated Press:

Lawmakers around the country are passing or proposing laws to regulate the grease your doughnuts are fried in, the calls you make from the road, what you listen to when you cross the street, even the bat your kid hits a baseball with.

The ideas are offered with the best intentions -- usually to minimize a newly recognized danger or to encourage healthy behavior. Lawmakers worry, for example, that text-messaging while driving can be deadly, and that foods fried in trans fats promote heart disease.

Critics counter that regulating french fries and Blackberries infringes on personal liberties. "Nanny government" some critics call it, and they point to a playpen full of behavior-related bills before city councils and state legislatures.

The Cato Institute's David Boaz gets in an excellent quote:

"If I prefer doughnuts to the promise of a long life, well, I think that's my choice."

Amen

Showdown in Cowlitz County

Washington state voted down I-933, and the fallout is already painful. I-933 would have required government to compensate landowners for the loss of use and value in their land due to intrusive regulations. It was a carefully crafted ordinance, modeled on one in effect in Oregon and similar to one approved here in Arizona, but it lost in Washington largely due to urban disinterest in property rights. As many homeowners are discovering, that's a shame.

Localities are required by state law to maintain and update "critical areas ordinances" -- laws dictating where people can and can't build on their own property. Some places -- rural areas in particular -- held off on doing so pending the outcome of the vote. Rural Cowlitz County voted for I-933, but the locals swam against a state-wide tide. Now their officials are getting with the program dictated by state politicos.

The consultant from Portland stood at the front of the room in a pair of dress slacks. The rural landowners, a long beard here, a pair of work jeans there, lined up in chairs.

"It's called socialism!" a man in the crowd shouted.

"Vote Republican!" crowed another.

Yet another man said the government is run by "overeducated idiots."

"We're getting awful tired of it," he said.

The flyer said the meeting would be about Cowlitz County's critical areas ordinance, the local environmental regulations that govern where people can and can't build on their own property.

But, really, it was about much more. The landowners said they didn't like laws being shoved down their throats by educated elites.

Local reaction is understandable -- the law is being shoved down their throats by self-appointed elites who have accumulated political power and aren't shy about imposing their desires on people who live far away. To such people, individual rights are unpleasant and archaic obstacles to policies intended to make the world a better place -- better to their taste, of course. It's pure hubris, but it's an attitude that prevails in today's America -- to the point that it's barely concealed.

Jason Franklin, who works for Parametrix, the firm hired to help update the ordinance, said the "best available science" would be used to determine what's a wetland, what isn't, where it's OK to build, where it isn't.

"I don't agree with coming out of college, reading best science and making decisions unless you've been out there," said Bob Janisch of Castle Rock.

"We have some higher degrees between us," Franklin acknowledged. "Those smarty people that read all those studies and write all those books --- that's us. ... We have a lifestyle that we choose and you choose yours and we try to meet in the middle."

In a county typically feisty about property rights, those were fighting words.

"These laws that they want to make today is just a screw down on you," another landowner, Jerry Reagor called out to his comrades. "It's not about protecting the environment. It's about controlling your life."

Am I alone in thinking that the consultant from Parametrix sounds like a condescending putz?

Absent the protections of legislation like I-933, the landowners of Cowlitz County -- and elsewhere -- are probably doomed. Angry public meetings don't matter to urban-based authoritarians who make the rules -- and who frankly have the support -- for now -- of a majority. Homeowners like those in this article will simply be outvoted and ignored.

If people get angry enough -- if -- they may yet have another chance at the ballot box.

Or maybe Cowlitz County -- among other places -- needs an open revolt.

Surprise! The FBI abused its power

Oh my, the FBI has apparently been very bad indeed over the past few years. Who knew that handing J. Edgar's boys (and girls) new, intrusive tools would lead them to abuse those tools the way they've abused the power given them in the past?

Well, anybody with realistic expectations, I guess.

This from The Washington Post:

The Justice Department's inspector general told a committee of angry House members yesterday that the FBI may have violated the law or government policies as many as 3,000 times since 2003 as agents secretly collected the telephone, bank and credit card records of U.S. citizens and foreign nationals residing here.

The IG testimony fleshes out the details of the report released earlier this month on FBI use and abuse of national security letters. In particular, the IG admits that upwards of 600 of the violations may be "cases of serious misconduct" in which the FBI improperly used the letters to force companies to surrender information about their customers. More troubling is that these abuses are in addition to the improper uses of national security letters already detailed in the report.

Fine's extrapolated tally of 3,000 likely illegal or improper letters did not include three other categories of wrongdoing disclosed in his report: One was a headquarters unit's use of 739 "exigent circumstances" letters to obtain telephone records from AT&T, Verizon and MCI on an emergency basis using false statements or improper documentation. The second was an improper use of 300 national security letters to obtain information for a single classified project. And the third was the FBI's use of improper letters to obtain the financial records of 244 people from banks.

Strictly speaking, I'm not at all surprised that the FBI abusively used national security letters. This is a federal agency that has a history of overstepping the bounds of its power. The bureau has been caught spying on political dissidents and even covering up crimes. To hand the bureau the authority to compel private organizations and individuals to surrender records without any judicial oversight is equivalent to dangling a bottle of whiskey in front of an alcoholic. You're just begging for bad results.

The only way to keep an agency like the FBI within spitting distance of proper conduct is to strictly limit its power and carefully oversee its activities. In the absence of enforced boundaries and the scrutiny of skeptical eyes, the FBI will transgress again and again.

And we'll act like we're surprised each time.

Joe Frederick's free-speech battle

How far can public school officials go in muzzling their charges when the little darlings go "off-message"? Does the authority of school officials reach beyond the classroom -- even off school grounds? Those questions and more are raised by the case of Joe Frederick, a former high school student in Juneau, Alaska, who was punished for exercising his right to free speech in a forum that many people would consider beyond the reach of teachers and administrators.

In 2002, Frederick and his fellow students were released from school to attend a Winter Olympic torch relay event along a public street. As TV cameras panned across them, Frederick and his buddies unfurled a banner reading, "Bong Hits 4 Jesus." Whether Frederick and company meant it to be a pro-drug message, or were just being wise-asses is unclear. But Principal Deborah Morse had no doubt as to the banner's meaning. She tore down the banner and suspended Frederick for ten days.

Frederick sued, alleging that his free speech rights had been violated. A lower court disagreed, but the Ninth Circuit Court of Appeals sided with the prankster, and the case has now reached the U.S. Supreme Court.

What's important to remember is that, even if Frederick had pulled his stunt on school grounds, the case wouldn't be a slam-dunk for school officials. According to the standard set in Tinker v. Des Moines, schools can restrict students only if their speech is disruptive to the educational process. It's not obvious that the banner represents any such thing.

But Frederick was, in fact, on a public street. His free speech rights should be even more strongly protected there, beyond the conformist embrace of the holding pen managed by Ms. Morse. School officials may not like their students to voice opinions contrary to what they're being taught in the classroom, but there's no obvious reason why they should be able to gag students who want to voice dissent -- unless that dissent is expressed in such a way that it actually disrupts the function of the school.

But Tinker was a bit of a high-water mark for students' free speech rights. Our black-robed high priests of legaldom have hedged their bets on the issue in decisions ever since, finding repeatedly in favor of administrators' power to regulate speech.

With public schools housing and (allegedly) educating the vast majority of America's youth the stakes are high. If school officials can control what students say on -- and off -- school grounds, they'll exercise enormous power over the boundaries of debate permitted to young people. Any opinion deemed to vary too greatly from the official stance of government-run schools could essentially become off-limits to students until they achieve adulthood and suddenly, like prisoners emerging from dark cells, enter a world where speech is still protected.

That's enormously dangerous.

A decision in Joe Frederick's case is expected in June.

He should have known

Until recently, New York allowed government agencies to seize private property after nothing more than an obscure public notice published in a newspaper. The notice's publication started a 30-day clock ticking, at the conclusion of which property owners lose the right to appeal the condemnation. Government officials can then proceed at their leisure. Empire State legislators have since amended the process to require mailed notice of pending land-grabs to property owners -- but that won't help William Brody.

Brody lost his land years ago, and he's been fighting to get it back. While a federal appeals court has already ruled in his favor, the case continues, and it may be small comfort if he wins. That's because his property has already been "redeveloped" by the city of Port Chester. As the Institute for Justice puts it:

While Bill Brody was restoring four abandoned buildings in Port Chester, the village issued him permits but never once informed him that in the end it planned to take his buildings, bulldoze them, and hand the land over to a private developer for a Stop & Shop supermarket parking lot. Instead of mailing Bill notice of the imminent loss of his rights, the village published a legal classified ad that didn't mention anything about the fact that property owners would be waiving their rights if they didn't file a lawsuit within 30 days. Now, six years into his legal fight—and after scoring two victories in federal appeals courts overturning various trial court decisions—Bill Brody remains in federal court fighting for his rights and his property.

While a court has already found that Brody's due process rights were violated, Port Chester insists that he's not entitled to any redress because he should have known anyway that his land was targeted for a taking. City officials continue to battle the man in court.

Brody's rights remain up in the air -- but then again, as this case illustrates, so do yours.

Taxed for tinkering

Just how petty and intrusive can the government get? Ask David and Eileen Wetzel of Decatur, Illinois. The environmentally conscious -- and technically innovative -- couple are wrestling with Illinois tax authorities over their efforts to reduce fossil fuel use by running a 1986 Volkswagen Golf on used vegetable oil.

Illinois law apparently allows no exceptions from the fuel tax for people who run their vehicles on the waste fat from fried foods -- and the authorities take their mandate very seriously. When the Illinois Department of Revenue heard about the Weitzels' canola-mobile, they sent a couple of agents around to pay a call.

"They told me I am required to have a license and am obligated to pay a motor fuel tax," David Wetzel recalled. "Mr. May also told me the tax would be retroactive."

Since the initial visit by the agents on Jan. 4, the Wetzels have been involved in a struggle with the Illinois Department of Revenue. The couple, who live on a fixed budget, have been asked to post a $2,500 bond and threatened with felony charges. ....

Eileen Wetzel, a former teaching assistant, calculated that the bond, designed to ensure that their "business" pays its taxes, would cover the next 51 years at their present usage rate.

The taxes are bad enough for a fixed-income couple creatively relying on alternative fuels. The threats of criminal prosecution are even worse.

A couple of weeks later, David Wetzel received another letter from the revenue department, stating that he "must immediately stop operating as a special fuel supplier and receiver until you receive special fuel supplier and receiver licenses."

This threatening letter stated that acting as a supplier and receiver without a license is a Class 3 felony. This class of felonies carries a penalty of up to five years in prison.

Five years in prison for running your car on used fryolator oil? Surely, they're joking!

But they're not. Illinois government officials make no allowances for tinkerers following the great American tradition of invention. To experiment with alternative fuels, as far as the Department of Revenue is concerned, is to be a refinery -- with all the red tape that entails.

Government -- an institution where common sense need not apply.

Hat tip to Radley Balko at The Agitator.

Civil disobedience and public health

Over at FindLaw, Julie Hilden details the process by which a New York Times reporter defied a court order to ferret out health problems linked to the widely used anti-psychotic drug Zyprexa. Zyprexa, produced by Eli Lilly and Co., has been linked to serious weight gain and diabetes among patients who take the drug to control ailments including schizophrenia and bipolar disorder -- a fact the public might not have learned had reporter Alex Berenson stayed on the "right' side of the law.

As befits an officer of the court, Hilden, more in sorrow than in anger, criticizes reporter Alex Berenson and his allies for their tactics in evading the court order -- after she takes Judge Jack Weinstein to task for issuing the order to begin with. Her position is that Berenson should have gone through official channels to obtain the documents instead of setting up a clever ruse to bypass the court.

Well, official channels and a buck will get you a cup of coffee.

It's the information about the ruse, though, that's so interesting.

Here's how the ruse worked: Berenson - with the help of one of the experts in the case, who was bound by the protective order -- convinced an Alaskan attorney to subpoena the documents by intervening in a separate case. (In a civil case, attorneys can typically serve subpoenas themselves, without court approval; if the recipient believes the subpoena is improper, she can legally fight it in court, and not comply until she gets a ruling.) Since the protective order contained an exception for the production of information sought pursuant to a valid subpoena, the documents were produced.

Not only did the ruse participants hide their real identities with the subpoena gambit, using the Alaska attorney as a "beard," they also "gamed" Lilly regarding the timing of the matter - so that Lilly believed it had more time to challenge the documents' production, than it actually did. Ultimately, the documents ended up all over the Times, then all over the Web.

It's a peek inside the complicated and sometimes fascinating world of court procedures -- and the even more fascinating ways those procedures can be gamed by people who know what they're doing.

Just as important, the story is an important lesson, pace Hilden, in why it's important to not take official decrees too seriously. If Berenson had sought these documents the "proper" way, they may, eventually, have been revealed in whole or in part. On the other hand, a little creative guerrilla action definitely brought to light in a timely manner all of the relevant information about important health issues involving a popular drug.

Is defiance of court orders always justified? No -- no more so than is obedience. But a little well-exercised judgment is preferable to blind allegiance to "proper" procedures.

Guru of Ganja's ordeal nears end

The federal government's vendetta against so-called "Guru of Ganja" Ed Rosenthal may finally be over. After first dismissing money-laundering and tax evasion charges against Rosenthal on the grounds that they're the result of vindictive prosecution, U.S. District Court Judge Charles Breyer granted the prosecution's motion for a postponement -- and then urges the government to seriously consider whether it's worth going forward with the retrial.

Rosenthal was convicted in 2003 of growing marijuana by a jury that was not informed that he had been working for the city of Oakland, California, as part of a medical marijuana program. After the fact, five of the jurors held a press conference to denounce the prosecution and call for a new trial.

The government was a little embarrassed.

Judge Breyer sentenced Rosenthal to one day in jail, which he served before his conviction was overturned. The remaining indictment against Rosenthal is the growing charge for which he already served time.

Notably, after the Rosenthal trial, the jurors were publicly asked -- by Matt Gonzalez, president of San Francisco's Board of Supervisors, among others -- why they didn't nullify the law if they suspected that the prosecution was wrongheaded. One of the jurors, Marney Craig, replied that they'd had no idea they had the power to disregard the law, and so had followed the script the government prepared for them.

It's good that Ed Rosenthal's ordeal is finally coming to an end. But he could have been spared much pain and expense if the jury had been aware that it didn't have to participate in a kangaroo court proceeding, and could free him no matter what the prosecutor and the judge said.

And Rosenthal's case was widely publicized and watched. How many other Ed Rosenthals are out there, suffering because jurors don't know their own power?

Caught in the spiderweb

The grassroots tyranny represented by the spiderweb of local laws and regulations with which we increasingly live is aptly exemplified by the plight of Dale Sanders and his trucking business in Ridgefield, Washington. For years, Sanders ran his business from a rural, six-acre lot, providing jobs for 22 employees. Then, about two years ago, the state decided it wanted his land.

Sanders was "offered" $470,000 for the land -- an amount that wouldn't begin to cover the property's replacement cost. That's because the trucking business was located on land zoned "residential," reducing the offer well below the property's commercial value. And the culture that once treated zoning laws with the casual contempt they so richly deserve eroded in the years that Sanders has been in business; in the spotlight as he was, he now had to find commercial land for his business.

After a year of fruitless searching for a suitable site, Sanders persuaded the state to raise -- almost double -- its offer. With more money in-hand, he was now able to find commercial land to relocate his business. But even the new offer didn't cover the cost; Sanders was left with a hefty mortgage as his compensation for being forced off his own property. Commercial land for trucking is an increasingly rare commodity in Clark County -- not because land is scarce, but because restrictive laws make such uses nearly impossible.

At one point, Sanders said, a state Department of Transportation worker advised him to look for a residential site with "big bushes where nobody will see you."

Of course, Sanders is still in business despite running afoul of eminent domain and zoning laws. That can't be said of everybody on whom the government paints a target.

I guess you can count Dale Sanders lucky.

Expensive scenery

Two years after the news first broke, New Hampshire taxpayers are still struggling with the taxman over the value of their scenic views. It seems that, when calculating property tax bills, state officials add an estimate of the value of the view from the property in question -- a picture-perfect view of the mountains can add a hefty tax premium to even a humble shack.

New Hampshire's David Bischoff built a one room hunting cabin with no power, no water, just an outhouse.

And a "200,000 dollar view," he says.

State officials insist that they've been including views in their tax calculations all along -- they're just now openly including the item on the tax assessment forms. But property owners want to know why their taxes have skyrocketed since the state "came out" about the view tax.

The answer should be obvious: The state wants more money and found a new and intangible asset to tax. A view is worth whatever an official says it is, so it's an open-ended source of income.

Somebody needs to launch a tax revolt.