Tuesday, January 26, 2010

Hayek and Keynes face off over free markets -- rap-style

Explaining the massive hurdles you'd have to overcome to impose a "rational" controlled society to people -- the sheer impossibility of substituting government planning for the values and preferences of millions of people -- is often a lost cause. Eyes glaze over, yawns are politely stifled (or not stifled at all), and the virtues of freedom and dynamism get lost in the vast disinterest many people harbor toward matters philosophical. Frankly, people want bad times made better -- and they're not interested in hearing anybody tell them that the cure is usually worse than the disease.

So, don't waste your time boring your friends. Instead, point them toward this video, the work of economist Russ Roberts and creative director John Papola, in which free-market economist F.A. Hayek and liberty-distrusting economist John Maynard Keynes lay down their opposing views in rap form while out on the town.

No, really -- it's good.

By the way, this economic debate is important beyond the economic sphere because the fact of the matter is that liberty is not divisible -- you can't expect to enjoy full civil liberties, like freedom of the press, if the government nationalizes the media. As Hayek wrote, "Economic control is not merely control of a sector of human life which can be separated from the rest. It is the control of the means for all our ends."


Thursday, January 21, 2010

Supreme Court decision a win for free speech

In a closely watched case involving an opinionated documentary film that was highly critical of Hillary Clinton and her then-current run for the Democratic presidential nomination, the United States Supreme Court rolled back limits on political speech and delivered a resounding victory to First Amendment advocates. The court rejected arguments in favor of a narrow decision that would have preserved many limits on speech, and instead broadly expanded the ability of non-profit organizations, corporations and labor unions to expend resources on political advocacy.

Hillary: The Movie isn't a subtle exercise in political speech. Produced by the conservative group, Citizens United, the film was a torpedo aimed at Hillary Clinton's presidential ambitions. The torpedo never reached its goal, having been scuttled by the Federal Election Commission, which called it a violation of the censorious Bipartisan Campaign Reform Act of 2002, a piece of legislation that goes so far as to regulate "electioneering communications" by corporations, unions and non-profits in the weeks before federal elections. Specifically, broadcasting a film like the one at issue here is banned for 30 days before primaries and 60 days before general elections. Newspapers are excluded, as are new media, like YouTube, that were unknown at the time the law was passed.

A lower court upheld the law -- and the muzzling of Citizens United -- and the case made its way to the Supreme Court. Writing for the majority in the case of Citizens United v Federal Elections Commission (PDF), Justice Anthony Kennedy summarized the extreme nature of the law -- and the reason many observers expected at least an incremental win for free speech rights:
The law before us is an outright ban, backed by criminal sanctions. Section 441b makes it a felony for all corpora-tions -- including nonprofit advocacy corporations -- either to expressly advocate the election or defeat of candidates or to broadcast electioneering communications within 30days of a primary election and 60 days of a general elec-tion. Thus, the following acts would all be felonies under §441b: The Sierra Club runs an ad, within the crucial phase of 60 days before the general election, that exhorts the public to disapprove of a Congressman who favors logging in national forests; the National Rifle Associationpublishes a book urging the public to vote for the challenger because the incumbent U. S. Senator supports a handgun ban; and the American Civil Liberties Unioncreates a Web site telling the public to vote for a Presidential candidate in light of that candidate’s defense of free speech. These prohibitions are classic examples of censorship.
Anticipating that the court would role back at leat some of the law's restrictions, some groups had urged interpretations that would keep at least some censorship in place. These friend-of-the-court briefs called for fairly complex legal needle-threading that would have applied the law in some cases, but not others. Justice Kennedy bought none of it.
The First Amendment does not permit laws that force speakers to retain a campaign finance attorney, conduct demographic marketing re-search, or seek declaratory rulings before discussing themost salient political issues of our day. Prolix laws chill speech for the same reason that vague laws chill speech: People "of common intelligence must necessarily guess at [the law’s] meaning and differ as to its application."
For the same reason, Kennedy rejected the argument that the existence of highly regulated political action committees provides sufficient outlets for free speech.

The majority decision also rejected the recent trend toward recognizing media companies as a protected class that enjoys special free speech rights denied others.

Ultimately, wrote Kennedy, "If the First Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech."

The lower court decision against Citizens United's right to engage in independent expenditures in order to publicize its members' opinion of a presidential candidate was, therefore, reversed, although disclosure and disclaimer requirements remain in place. The ultimate decision, overturning pro-censorship precedent and joined in whole or part by Chief Justice Roberts, and Justices Alito, Scalia and Thomas (the last of whom would also would have knocked down diclosure, disclaimer and reporting requirements), was a broader victory for free speech than most observers had expected.


Tuesday, January 19, 2010

A little reality check on the choices in the Massachusetts Senate race

I'm as big a believer in throwing a monkeywrench into people's plans as anybody. Stripping the Senate Democrats of their filibuster-proof majority and reintroducing a wee bit of gridlock gives me a certain frisson of joy. But I don't get all the love for Scott Brown by critics of metastasizing government when there's a seemingly excellent candidate in the Massachusetts Senate race in the form of small-l libertarian Joe Kennedy, running as an independent.

Martha Coakley, the Democrat, is as disgusting a candidate as I can imagine. Not only is she for an ever-more expansive state that would intrude itself further into our lives, most particularly, into our medical decisions, but her record as a prosecutor has demonstrated a hideous disregard for civil liberties and even simple justice -- abandoning the usual advantage that Democrats, if only theoretically, maintain over Republicans.

But Scott Brown, aside from his clear appeal to straight women and gay men (and a reminder to the rest of us to do our sit-ups), seems to function largely as a representative of the dominant wing of the Republican Party that brought us eight years of suckage. On the issues, he's an authoritarian social conservative who supported Romneycare and is terrible on civil liberties -- even mediocre on gun rights, one liberty conservatives usually support.

A side-by-side comparison of the three candidates' positions shows Kennedy as the only one with consistent smaller-government, expanded-freedom credentials. Yet at least one faction of the Tea Party movement -- that supposedly independent, shrink-the-state grassroots network, urged Joe Kennedy to drop out in Brown's favor. (Kennedy declined.)

Yes, I understand that popular wisdom has it that only two candidates -- the Republican and the Democrat -- are serious contenders. But that's self-fulfilling prophecy. In other countries, when the dominant political parties prove to be repulsive to large swathes of the population, people start new parties or elevate small ones. I'm not just talking about nations with proportional representation, either. Canada and the United Kingdom, while parliamentary systems, use winner-take-all voting like the U.S. for picking legislators. Twenty years ago, the Canadian Prime Minister was Brian Mulroney, of the Progressive Conservative Party. That party doesn't exist anymore, having been challenged by the rather more ideologically rigorous Reform Party, and then absorbed by a new Conservative Party spawned by Reform.

In the United Kingdom, the twentieth century saw the replacement of the Liberal Party as one of the two major parties by the Labour Party. Having merged with the up-start Social Democrats, the Liberal Democrats continue as a significant player in British politics. More recently, the UK Independence Party has risen as a serious contender, out-polling Labour in the last election for the European Parliament.

In the United States, however, we treat the two major political parties as if they're features of the natural landscape, like the Grand Canyon, rather than human-made institutions than can be replaced when they cease to ... well ... not make us puke.

As long as we insist that we have to abandon something preferable in favor of officially approved Lousy Choice A or Lousy Choice B, we'll keep getting more of what we've suffered over the past decade.


Monday, January 18, 2010

In Arizona, it's not a party without pepper spray

At a protest march that Arizona Republic columnist E.J. Montini described as "accommodating. Polite, even," police still found opportunity to hose the crowd down with pepper spray. Organized by Puente Arizona, the January 16 March targeted Maricopa County Sheriff Joe Arpaio's nativist-courting anti-immigration jihad, which has sent deputies crashing through the doors of homes, businesses and even government offices, and that has many hispanics who came to Arizona from elsewhere wondering if maybe the human rights record back home doesn't look so bad by comparison.

But if the protest didn't really touch on Arpaio's thuggery against people who speak out against him, it sure seemed to offer a taste of the risks of such an approach. People at the scene captured video of officers -- specifically, a female Phoenix officer on horseback -- spraying the crowd, including families with children, with a substance that appeared to be pepper spray.

In their defense, police say they arrested five "anarchists" and claim that officers were assaulted. That may or may not be true, but it's not apparent from the video of the mounted officer.


Friday, January 15, 2010

It's not just the feds; watch out for the neighborhood control freaks

There's been lots of justified concern in recent years that the federal government -- that crazy uncle in the attic -- has broken free of its restraints and is smashing the crockery and scaring the kids. Between George W. Bush's police state and Barack Obama's fascist economics (or is that Bush's fascism and Obama's police state?), the peril on the Potomac seems to represent an ever-growing threat to our liberty. But as the column I wrote earlier this week about a SWAT raid in small-town Arizona suggests, it's too easy to keep your eyes focused on D.C. and so miss the machinations of the control freaks in the local city hall.

The fact is that local governments have enormous power over the petty details of our day-to-day lives. Yes, the federal government may keep you awake at night fretting about wiretaps, bans, taxes and mandates, but it's local officials who get to decide whether you even have a bed in which to toss and turn. City councilmen, zoning and planning officials, building inspectors and the like get to determine whether you can move into a new home or open a business. A denied occupancy permit, a refused zoning variance or a hiked water fee can make all the difference in the world.

In a February 2010 article in Vanity Fair on the '70s disco scene, Ian Schrager of Studio 54 fame makes an interesting point about the far-reaching effects of petty regulations:
It wasn’t aids that made the nightclub business difficult. Government regulations did it in. Steve and I did our first nightclub [the Enchanted Garden, in Douglaston, Queens] for $27,000 and Studio 54 we did for $400,000. Now, with all the regulations, fire codes, sprinkler requirements, neighborhood issues, community planning boards … before you even put on the first coat of paint, you’re into it for over a million dollars. What it’s done is disenfranchise young people.
An April 2005 article in the North Bay Bohemian on the rise of underground restaurants in California made the same point:
"It costs $200,000 just for a permit to be allowed to buy water from the city!" exclaims [former underground restaurateur Michael] Hale. "You have to get tons of permits from various people. You've got to get a building permit, a permit if you want to remodel, you have to get licenses for beer and wine, and you have to get certified by the Health Board."
And, of course, the power of eminent domain is largely exercised at the local level, where bureaucrats and politicians decide who will be pushed off their own property to make way for some government-favored use.

Those rules can be a nightmare to navigate -- or an insurmountable hurdle -- if they are properly applied. But local government is a personal business. People know each other, develop friendships and enmities, and personal feelings can easily spill over into the application and enforcement of local rules. David Carl, the subject of my last column, insists that the SWAT raid on his Cottonwood, Arizona, business, over which he is filing a lawsuit, began as a dispute over signage regulations and an occupancy permit that turned personal. Indeed, a review of city records shows that one zoning commissioner displayed a continuing interest in the progress of the case.

Does that  prove that local rules were abusively applied? No. But it's suggestive. And even the fear of such abuse can cause people to mind their manners when dealing with local officials.

I remember when my wife and I, and our partners, went shopping for a general contractor to construct a building for my wife's medical practice. We received a lot of advice on who to use and who to avoid -- not just based on their personal merits, but also on their relations with local officials. We were warned that good relations could ease the way for permits and make inspections a breeze, while bad feelings could sabotage the whole project.

Given how matter-of-factly that advice was given -- and how often I've heard of similar advice given to people elsewhere -- that offers an important insight into the destructive power posed by local officials and their rules.

Local government is certainly closer to the people. But closer isn't always better. Often, we need to maintain a healthy distance from the people who want to wield coercive power over our lives. And as our experience with the federal government has demonstrated, even 3,000 miles and more isn't always enough.

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Wednesday, January 13, 2010

Boldly going where people have already screwed up before

I've been involved with Web publications for just about as long as there has been a commercial presence on the World Wide Web. I was an associate editor on the launch of ZDNet on the Web in 1994 (we hand-coded the HTML for those pages). My new media experience goes back a bit further, since earlier I was an associate editor on ZDNet's presence on the old Prodigy online service.

After that, I was senior editor on the launch of the New York Daily News online. I was editorial director of a dot-com during the gold-rush days. I was one of the original "guides" for The Mining Company/About.com ...

I'm sort of like a Zelig of the online world -- present at some pretty cool happenings, without actually making much of an impact myself. If you squint, you can just make out my face in the corner of the yellowing photo there...

I cite my history here, because I've been writing for The Examiner for a year and a half now, and I'm ...what? ... perplexed to see a company act, at this late date, as if it's inventing the business of publishing on the Web -- and in the process, making stupid mistakes that proved nearly disastrous for other companies a decade ago.

As I write, articles published by The Examiner aren't being picked up by Google News, and apparently not by regular Google Search either. That's for a good reason -- after an encouraging start, The Examiner has been publishing pretty much any crap by any warm body with access to a computer, devoid of quality control, in an effort to maximize page views and ad revenue for the short term. There's a lot of good material in there, too, but there's a flood of junk. Google apparently got tired of junk -- some of it plagiarized -- jamming its search results and has, at least temporarily, bounced The Examiner. This isn't precipitous -- the publisher has been on the equivalent of super-secret probation with Google for a while now.

The queered relationship comes after The Examiner has pretty much worn out its welcome at most of the social media sites, like Digg and Reddit, because examiners were pumping their pieces and those of their co-workers. 

But we've been down this path before. In the late '90s, The Mining Company gained a miserable reputation for hiring guides with little vetting, and exercising essentially no quality control over the content they produced. Guides were also urged to go out and manipulate their rankings on the search engines of the day (remember Altavista? Lycos? Infoseek?), many of which allowed results to be voted up or down.

Like The Examiner (and plenty of other modern publications), The Mining Company compensated writers according to traffic. And as with The Examiner, the emphasis came to be on quantity rather than quality in an effort to drive traffic and maximize revenue.

But when a brand gets a lousy reputation, people stop dropping by ...

That tactic made a certain sense in the context of the late '90s, when many dot-coms were in it for short-term venture capital and had little intention of building a long-term presence. That dot-com where I was the editorial director was one such operation, and it was a running joke in-house that the only business plan was to find new investors.

After a few years, the re-named About.com decided to take a long-term approach and cleaned up its act. There were several brutal purges of guides -- I think the first one dumped 40% of the topics and their writers. And greater editorial control was instituted over content (along with some other, problematic, policies -- but that's another issue).

But The Examiner is owned by an established company: Clarity Media. Presumably, Clarity, which also controls two print newspapers also called Examiner, doesn't plan to stuff its pockets with ad revenue and abandon its offices and its name. Driving the brand into the ground makes no sense under the circumstances since it's not a fly-by-night operation.

So it seems like The Examiner is staggering along in the poorly placed footsteps of its predecessors not, as part of a well-thought-out business strategy, but from sheer failure to learn from the past. In the end, if the project is to continue, the company will have to purge bad writers, implement some quality control and rebuild its reputation and relationships.

I hope it does so, because The Examiner's approach is an interesting one. I like the idea of a low-overhead platform for targeted journalists and opinionators. It has real potential. Provided, that is, that the project looks to long-term viability.

For now, I'm still writing for The Examiner -- until somebody in the Denver office stumbles on this blog post, that is. But if you know anybody who might be interested in a slightly used writer/editor/blogger (who was there when it all started, I'm tellin' ya), don't be afraid to drop me a line.


Monday, January 11, 2010

What? You mean there are consequences to calling out SWAT without a reason?

Just about anytime a journalist covers some bizarre excess of law-enforcement behavior, in which armored vehicles, or heavy weapons or military tactics are invoked in obviously inappropriate contexts, the police-state cheerleaders come out of the woodwork. They assure us that we'll regret our words when it's shown that the target of some podunk town's aerial strike to collect overdue parking tickets was a danger to the republic worthy of the harshest measures. So it's with a measure of satisfaction that I report that David Carl, the fellow on the receiving end of a SWAT raid in Cottonwood, Arizona, last summer, not only faces no charges in the wake of that raid, but the city planning department even dropped a civil action against him. Not surprisingly, Carl plans to sue.

"Helmeted officers ... armed with automatic weapons" (according to a local newspaper, the Verde Independent) crashed through the doors of Carl's Wild West Express -- a package handling and delivery service -- last summer, supposedly on allegations that  the man had abused his twin teenage daughters. Returning to town after the fact of the raid, Police Chief Jody Fanning justified a subordinate's decision to call out the troops by saying, "We didn't know if he had a safe house or fortress." Officials also said that Carl owned guns and claimed he had anti-government views.

As I pointed out at the time, though, police can always claim that you might have forted up your residence -- we all might  have done anything to prepare for a siege. "Might" is a weasel word that requires no evidence. And as for guns and anti-government views ... This is Arizona. Rural Arizona. If the Constitution were to be suspended and anti-government political views and gun ownership declared sufficient rationale for forceful police action, they'd have to build a wall around the state.

But the official story that David Carl was a threat to children and law-enforcement officers seemed flawed from the very beginning. For starters, police didn't take the guns they claimed to fear so much. And after an initial trip to the police station, they let the girls go back home.

In fact, David Carl's conflicts with local authorities are more long-standing, deep-seated -- and boring -- than the dramatic raid suggests. At the time of the raid, Carl insisted that the city was just escalating a zoning battle over signs and an occupancy permit to a ridiculous extreme. In fact, city Planning and Zoning Commission records document precisely such a conflict -- pursued, in particular, by Darold Smith, a then-board member and current City Council member.

From May 19, 2008 minutes (PDF):

Two pending Hearing Officer cases: one involving a contract post office substation owned by David Carl and operating without a certificate of occupancy; and Gardner’s recycling operation on North Main Street.

From June 18, 2008 minutes (PDF):

Commissioner Smith talked about the Code Enforcement report, boarding houses, and that it
appears that David Carl is going out of business.

From October 20, 2008 minutes (PDF):

Darold Smith questioned enforcement status of zoning violations against David Carl (Wild West
Express) and Angela Lozano (boarding houses).

From November 17, 2008 minutes (PDF):

Darold Smith asked about the David Carl case and why it has taken over a year.

From February 23, 2009 minutes (PDF):

Darold Smith asked when David Carl would be shut down. Gehlert said after the
administrative process was exhausted, it went into the criminal phase, but the City Magistrate
refused to hear it.

From March 16, 2009 minutes (PDF):

Darold Smith inquired about the David Carl zoning enforcement case. Director Gehlert said
there was nothing new. He understood they would send it back through the system.

From April 20, 2009 minutes (PDF):

Darold Smith asked about enforcement on Gila (David Karl) and group homes.
Gehlert answered that on the Gila matter they were waiting for the new magistrate to
come onboard. The group home code was on the Council agenda the next evening.

Ummm ... Did David Carl run over Darold Smith's dog? The city official's interest seems a bit ... stalker-iffic.
In any case, the April 20 Planning and Zoning minutes were the last mention I could find of Carl (or Karl, assuming that's the same person) in city records, with Darold Smith's pet case apparently going nowhere in the courts. Smith took a seat on the city council in May. And then the police raided Wild West Express on July 20.

And now, according to the latest news, "Police Chief Jody Fanning says the County Attorney's Office will not prosecute Carl at this time. There are no pending charges against Carl or the business. An earlier planning department civil case against Carl was dismissed by the city."

There may well be more to this case than the public record shows. Perhaps David Carl is truly a danger and the police screwed up with their violent raid and its aftermath -- that is, they're incompetent rather than malevolent.

But I wouldn't bet on it. Right now, I'd take the scandal in Cottonwood, Arizona, as a lesson to be careful who you're ticking off when you go head-to-head with government officials. And keep a good lawyer on speed dial.


Sunday, January 3, 2010

It's a rule, damn it, it doesn't have to make sense

I'm parked, with my family, in a tiny bungalow in the Los Angeles area right now. The bungalow belongs to my mother-in-law, who is in Pasadena's Huntington Memorial Hospital, awaiting either a quadruple or quintuple heart bypass operation tomorrow, as the situation dictates at the time (oh hell, why not go for six?).

Anyway, the hospital currently has unusual restrictive limits on visits by kids in place. It's not uncommon for hospitals to have some limits on minors during "RSV season" -- the time of year when kids might catch a virus that causes a cold in adults, but can be nastier in little ones. The RSV concerns often get wound up with flu season fears and result in restrictions -- like those at the Flagstaff Medical Center, near my home, confining the fresh-faced little weaklings (and potential vectors of contagion) to common areas, ground floors, and the like.

At Huntington Memorial Hospital, the restrictions (PDF) are a bit more far-reaching -- as in absolute. Taking the whole oh-so-last-summer swine flu panic and running with it, the hospital administration has apparently barred everybody's favorite beasties from anyplace to which the provider of "quality, uninterrupted healthcare" (editorial note: the word "quality" requires a modifier) can lay claim.

Today, not only was my four-year-old barred from wishing grandma the best, but he and I were then tossed out of an outdoor courtyard open to the street at either end and the sky above -- you know, a place where squirrels and pigeons shit -- while we waited for my wife. The uniformed security guard was polite enough, but he was insistent that the courtyard was hospital grounds, and children can't be anywhere on hospital grounds.

He was kind enough to suggest that we could wait outside the main entrance. Thanks anyway. We preferred a stroll through the streets of Pasadena.

Never mind that H1N1 has proved to be yet another disappointment to our neighborhood false Cassandras -- sure it's unpleasant to catch, but that's true of any flu, and lots of other bugs besides. Swine flu just hasn't been as big a threat as originally feared -- it's such a bust, epidemic-wise, that many European countries are trying to unload their wildly excessive H1N1 vaccine stocks, even though half the doses haven't even been delivered yet (buy your swine flu novelty collectibles now and watch the value soar!).

Nobody is putting in place specific swine flu-related restrictions these days -- especially not panicky ones that treat toddlers like emissaries from the Children of the Corn. The Huntington Memorial Hospital policy was clearly implemented months ago, at the height of the panic. Now that flu frenzy is passe, we're still stuck with security guards enforcing draconian policies that kick tykes to the curb.

But so it often is with rules and restrictions of any sort. Some urgent concern (often a social panic of one sort or another) seems to call for immediate response -- a really poorly thought out and wide-sweeping response, thank you. Fears subside, but the boneheaded policies remain in place months or years later, having acquired an awesome bureaucratic inertia that can overcome even irrefutable pointlessness.

As that security guard told me that, for the sake of protecting against an epidemic that fizzled, my son was persona non grata in a place where rodents run free and wind rats rule the skies, I couldn't help imagining what airports will be like, long after the fruit of the loom bomber has, himself, been forgotten.