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Posts Tagged ‘laws’

Every libertarian has a pet peeve, and mine is paternalism. Yes, I am deeply disturbed by the warspolice militarization, Obama’s pursuit of whistleblowers, regulations which make it illegal to do math without a license, and many other freedom-snuffing things. But the kind of stuff that gets me most riled up are laws to protect people from themselves.

It is impossible to have a discussion of these laws without referring to the following passage from John Stuart Mill’s influential work On liberty. The sentence in bold from the excerpt below is usually called the harm principle and is a cornerstone of libertarianism.

The object of this Essay is to assert one very simple principle … That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not sufficient warrant. He cannot rightfully be compelled to do or forbear because it will be better for him to do so, because it will make him happier, because, in the opinion of others, to do so would be wise, or even right… The only part of the conduct of anyone, for which he is amenable to society, is that which concerns others. In the part which merely concerns himself, his independence is, of right, absolute. Over himself, over his own body and mind, the individual is sovereign.

I suspect that many liberal-progressive types agree with the harm principle on some level. So they often tend to justify paternalistic laws not on paternalistic grounds but on the grounds of limiting negative externalities. For instance, in their support for motorcycle helmet laws, their argument might echo that of the Massachusetts high court, which in 1972 (when it affirmed that a motorcycle helmet law was rationally related to the public welfare) declared:

From the moment of injury, society picks the person up off the highway; delivers him to a municipal hospital and municipal doctors; provides him with unemployment compensation if, after recovery, he cannot replace his lost job; and, if the injury causes disability, may assume the responsibility for his and his family’s continued subsistence. We do not understand a state of mind that permits plaintiff to think that only he himself is concerned.

In other words, your decision to ride un-helmeted harms other people, and so society can rightfully coerce you to wear a helmet.

The word “harm”, of course, needs to be interpreted narrowly in order that the harm principle be meaningful. A harsh word hurts. Breakups hurt. Abandoning your wife and going off with someone else may cause intense emotional harm. Everytime I buy something from X and not from his competitor Y, I am harming Y and favoring X. All these activities are legal, and should be.  Only kinds of harm that directly violate others’ rights (by causing violence upon them, or depriving them of their life, liberty, or property) should enter into the calculus.

Still, it is clear that if society is forced to pay extra because of someone’s recklessness, it is indeed a harm inflicted by the reckless individual upon the other members of society; who then might be justified in their intervention. This is what the high court affirmed in its ruling. In doing so, however, the court committed an elementary (but common) mistake; the failure to consider the alternative. The pertinent questions — when considering whether there should be a helmet mandate — are the following:

  • Does a person who rides unhelmeted cause a negative externality greater than one who wears a helmet?
  • Can any such negative externality be removed (i.e. internalized) without resorting to a helmet mandate?

Let us tackle the first question first. It is almost an article of faith among many that the unsafe and the unhealthy incur higher health costs. However, a recent study by Dutch researchers found that smokers and the obese typically cost less to society than the average person, the reason being that they die younger. It is likely that similar conclusions hold for several other activities that the safety brigade frowns upon. There is no doubt that a typical mountaineer or a base jumper spends much less over his lifetime on health and hospital costs than your average grandpa. So even if one lives in a jurisdiction where health costs are socialized, the argument that these people cost more to society, and hence their unhealthy/unsafe activites should be restricted, is specious.

The data on motorcycle helmets is more ambiguous. Some studies have found that riding unhelmeted reduces health costs per person (for the same reason as above, namely untimely death). Others have found a slight increase. For instance a 1996 NHTSA study showed average inpatient hospital charges for unhelmeted motorcyclists in crashes were 8 percent higher than for helmeted riders ($15,578 compared with $14,377). Now, that’s a small difference, and it is worth noting that the study only considered motorcyclists who were actually admitted to a hospital. When those who die on the spot are included, it is quite possible that riding unhelmeted actually reduces costs to society. There is also evidence that helmet mandates make little difference to  insurance premiums. Currently there are 30 American states where there is no universal helmet law for motorcyclists. There are 20 states where such a law does exist. The health insurance premiums across these states show almost no correlation with helmet laws. None of this is to say that it is good to be reckless or unhealthy, merely that the claim that by doing so you cost extra to society is often not true.

For the sake of argument, however, let us assume that there is indeed a significant negative externality associated with the act of not wearing a helmet. I would argue that this does not justify a mandate. What it does justify are steps to internalize this externality. How can this be done? By making sure that those who ride helmetless pay for the consequences. Here’s a proposal: Every motorcyclist who does not wear a helmet should be forced to either a) carry adequate insurance, or b) have proof of sufficient personal funds, or c) pay a certain amount of money annually into a common pool that would pay for any accident related costs not covered by their insurance; the amount would be empirically adjusted to ensure that unhelmeted motorcyclists, as a group, are cost-neutral for the taxpayer with relation to their helmeted counterparts, or d) sign a waiver that no part of their health or other costs reasonably attributable to their decision to not wear a helmet can be charged to the taxpayer. Furthermore, insurance companies, if they wish, should be allowed to charge an extra premium on helmetless riders.

People often go bonkers saying that they do not care to pay for risky decisions taken by others. Well, they don’t need to! Switzerland, the country I currently live in, has the right attitude about some of these things. The Swiss mountains are beautiful but many of the activities people love to do here (hiking, skiing, mountaineering, sledging, climbing, paragliding, base-jumping and so on) carry inherent risks. They do not ban any of these things here or mandate protective gear (a recent straw poll on a Verbier ski-slope found almost everyone, including the helmeted, opposed to compulsory ski-helmets) or even skimp on the protections. In fact, every time someone is in trouble and calls for help so that he can be airlifted out, a helicopter comes in swiftly for the rescue. What they do later, however, is to make an airlifted person pay the bill. Unless, of course, the person is already a patron of REGA, which one can do by paying a measly sum of 30 francs. Most avid adventurers choose to do so, and this small fee (which is basically an insurance premium) covers any heli-rescues they may need to avail of. So if you happen to need an airlift, and you aren’t a REGA patron, you pay for your rescue to the last cent. If you are a patron, you don’t pay anything. Externality internalized.

The proposal on internalizing public costs due to helmetlessness that I briefly sketched above is similar in spirit. I really don’t see how anyone committed to the harm principle can reject such a proposal and continue to defend helmet mandates. Yet, I know from experience that many will. I think the reason is that many of those arguing for mandates on grounds of externalities haven’t really thought carefully about externalities, nor do they really care. As evidenced above, the externalities related to motorcycle helmets, whether positive or negative, are most certainly negligible as a fraction of total costs; no one will notice any real difference in taxes or insurance premiums whatever the helmet law. There are all kinds of legal activities that people regularly do that create far, far, larger externalities, or involve much bigger risks. Then there’s the fact that the people who call loudly for helmet laws (whether it be motorcycling, cycling or skiing) only do so when someone tragically dies, but they barely notice it if someone is injured and requires expensive long-term care. Yet it is the former that actually saves the taxpayer money. When these same people resort to the specious “externality” argument while debating their helmet laws, I want to scream at them: “Stop arguing in bad faith.”

In fact, the act of riding a motorcycle itself is highly risky; whether or not one wears a helmet makes a difference in only a small number of cases (if a motorcyclist gets into a serious crash, a helmet will rarely save him). Yet very few people would support actually banning motorcycles. If one only cared about externalities and costs to the taxpayer, one should support regulations and counteracting measures roughly in proportion to the size of the externalities. In reality, the regulations reflect the size of the moral disapproval. It is stupid to ride without a helmet. It is such a completely unnecessary risk. Riding helmetless or not wearing a seatbelt is incredibly foolish. There should be a federal law stopping all these. Period.

The true reason behind paternalism (whatever the purported reason) is the desire of people to impose their values on others. Quite simply, paternalists ignore that different people have different values. Like all nannies, they think they know best. They decide what risks are acceptable and what risks are unnecessary. They fail to see that maximizing health is not the same as maximizing happiness. To some people, the joy of riding down a hill, unencumbered by a helmet, unweighed by laws, feeling the wind in your face and hair, is indeed worth the risk of severe injury or death. Besides, there is an inherent value to freedom. As Jacob Sullum put it, when it comes to how people feel about their lives, they may well prefer to make their own bad choices rather than have better ones imposed on them.

Most people has a deep seated urge to control others and bring them to the “right” path. It is important to be able to recognize this urge as the greatest evil. Libertarians oppose laws that mandate helmets or seatbelts, and those that prohibit drug use, prostitution, raw milk sales and the infinitely many other things the unwashed masses are supposed to keep away from. Yes, we personally may not indulge in or encourage most of these behaviors. But we recognize our decision to do so for what it is, an exercise of our own values and cost-benefit analyses, which may not match those of others.

***

The group was driving south on Route 11 in Lafayette around 1:30 p.m., headed toward Lake Como, just south of the Finger Lakes. It was a nice day, but they were there to make a point.

In the group was Philip Contos, from Parish, NY, and he was 55 years old. They were participating in a helmet protest ride initiated by ABATE, an organisation that opposes mandatory helmet laws. A beautiful day it was, but Philip’s bootlaces got stuck in a chain. The biker looked down to inspect the problem, looked up and saw traffic slowing and slammed on the brakes. The bike fishtailed, and he was ejected. He hit the ground with a crunch and he died on the spot.

He died on the spot. What did he die for? Was it to preserve his freedom to be an idiot, a rebel, a reckless individual? Perhaps he would have survived if he was wearing a helmet. But then again, if there was no law in New York that mandated helmets, he would not be out protesting that day, that beautiful day, and maybe his shoelaces would have not stuck in the chain…. His brother, Richard Contos, said Philip would do it again, if he could. “He would have wanted it that way. … He protested everything.” So, who was this man who protested everything?

I never met Philip Contos, but I feel joined to him. 

He died defending the freedom to be himself, to be free of moral busybodies telling him how to lead his life. I would probably wear a helmet if I did ride a motorcycle, but if I were in New York that makes it illegal to ride without one, I’d probably be joining Contos in his protest.

Helmets make one safer. But safety is just one thing among many. We do not have to live life in a way that maximizes safety. We have the right to make whatever trade-offs we wish in our personal decisions. He died defending this sacred right.

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I am a great fan of Wikileaks. I think they are playing an extremely valuable role in “promoting the climate of transparency and accountability necessary for an authentically liberal democracy” *. As Clay Shirky puts it,

Citizens of a functioning democracy must be able to know what the state is saying and doing in our name, to engage in what Pierre Rosanvallon calls “counter-democracy”*, the democracy of citizens distrusting rather than legitimizing the actions of the state. Wikileaks plainly improves those abilities.

Still, I see the concerns of those who are worried that ongoing leaks from the US embassy cables will affect diplomacy adversely, push things further under the carpet, hurt the interests of the US and other nations, maybe even increase the chance of war. These concerns are legitimate and I will not try to go into a detailed explanation here as to why I think they are overwrought. Suffice it to say that I believe that the status quo is so much to the side of government secrecy these days that that, not too much transparency, is by far the greater danger.

So this post will not defend the thesis that Wikileaks is good and Julian Assange is a hero. That is a thesis both true and worth defending, but not what I wish to write about today. This post will be much more personal. It will be about darkness and disillusionment. It will be about the reaction to Wikileaks, and what it forebodes for freedom in the US.

***

Consider for a moment, what has been the reaction to Wikileaks from prominent US politicians and much of the mainstream American media.

(*) That Assange should be treated as a “traitor” and murdered with no due process has been strongly suggested by Marc Thiessen, Seth Lipsky (with Jeffrey Goldberg posting Lipsky’s column and also illiterately accusing Assange of “treason”), Jonah Goldberg, Rep. Pete King, and The Wall Street Journal.

Not all of the bullies were content with merely making statements. Joe Lieberman, chairman of the Senate’s committee on homeland security, contacted Amazon and pressured the company into cutting off Wikileaks from hosting its files on its cloud server. He did the same with Tableau, a small software company that was merely hosting some charts summarizing the material released by WikiLeaks , such as the charts counting the documents which originated from each country, the number of documents by year, etc. none of which is classified.

There is also strong evidence that the US government has itself been involved in compelling private companies, such as Paypal and Visa, to cut off Wikileaks’ fund sources. Moreover there has been absurd and sad attempts at censorship of American college students. A State Department official warned students at Columbia University’s School of International and Public Affairs that anyone who will be applying for jobs in the federal government could jeopardize their prospects by posting links to WikiLeaks online, or even by discussing the leaked documents on social networking sites (!)

And while I think it is irresponsible to make any definite conclusions about the legitimacy of the rape charges for which Assange is wanted in Sweden, going by the fact that the handling of the case has been highly irregular, I will not be too surprised if it turns out that the charges are essentially bogus and the prosecution is acting under pressure from the US so that they can hold on to him till the US formally submits an extradition request.

Note that neither Assange nor Wikileaks has ever been held directly or indirectly responsible for even a single death by their disclosures, and Robert Gates, the US defence secretary himself admitted that while some of the cable leaks were embarrassing or awkward, the consequences for US foreign policy would be “fairly modest”. All of this makes the extra-legal pursuits by the authorities, the dictating of terms to private companies and the equating of an information disseminator like Assange with actual violent terrorists extremely shocking. I think Shirky is right on the money here:

When authorities can’t get what they want by working within the law, the right answer is not to work outside the law. The right answer is that they can’t get what they want.

The Unites States is — or should be — subject to the rule of law, which makes the extra-judicial pursuit of Wikileaks especially nauseating. (Calls for Julian’s assassination are even more nauseating.)

***

But yet, strangely enough, it is not the extra-legal methods and the skirting of due process that disturb me the most about the whole affair. It is the fact that if the American authorities ever manage to get Assange extradited and then succesfully prosecute him (neither will be easy) for these disclosures, it will mean the end of the First Amendment as we know it.

Reports suggest that such action is being considered at the highest level. Eric Holder confirmed a couple of weeks ago that there is “an active, ongoing, criminal investigation” about Wikileaks. More recently, there have been reports that the Obama DOJ has convened a Grand Jury to consider bringing charges against WikiLeaks and Julian Assange. If this is correct, it would be a greater assault on press freedom than anything attempted by the much reviled Bush, indeed perhaps the greatest assault on press freedom in the last fifty years.

At this point, it is necessary to clear a few things.

1. For the purpose of American law, Wikileaks most definitely qualifies as a member of the press. Note that Wikileaks does not solicit newsleaks directly and they do not contact potential leakers. If the leaks come to them voluntarily, they simply take steps to protect the identity of the source, and eventually, if deemed newsworthy, the leaks are published on their site, along with commentary and explanations. If Wikileaks did not exist, the leakers would go to traditional newspapers, such as the New York Times. As far as this case is concerned, there is no intellectually coherent way to distinguish between Wikileaks and other members of the press that have also published the same leaked cables (NY Times, Guardian, Der Spiegel…), often before Wikileaks has.

2. Some have suggested that Wikileaks could be prosecuted for possession and distribution of stolen property. It seems ridiculous to have to point out something so elementary, but information isn’t and has never been “property”. A property exists in physical form and has a unique copy. In this case, the computer files were not stolen, but copied. If someone takes a book and makes unauthorised copies of it, he is not charged with violating property laws. He is charged with violating copyright laws, a very different beast. And there are no copyright issues involved in distributing embassy cables, because according to American law, any work “prepared by an officer or employee of the U.S. Government as part of that person’s official duties” is not entitled to  copyright protection. Yes, the person who actually leaked the cables can still be charged with high-level breach of contract, but Assange is not the leaker, and there is no evidence he or anyone at Wikileaks helped the leaker with the unauthorized copying.

3. Some have suggested that all these laws and protections don’t apply to Assange because he is not an American citizen. Apart from the gross immorality of such a stance and the terrible consequences it would lead to if actually implemented across the board, it is also factually untrue: once the US takes jurisdiction of someone, any prosecution must be in accordance to the law and the defendant, whether US citizen or not, typically enjoys all the constitutional protections (with a few exceptions that are not relevant in this context).

4. Some have suggested invoking privacy laws to go after Wikileaks. But privacy laws are very specific; they apply only to sensitive personal details (medical records, private letters) of private individuals and not to public figures in their official government correspondence.

But there is one law that Assange on a literal reading seems to have broken, and that is the Espionage Act of 1917, passed during the First World War. The language of the Act is breathtakingly broad: it makes it a felony for any person “having unauthorized access to…any document…relating to the national defense…which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully…[to] cause to be communicated delivered, or transmitted [any document]…to any person not entitled to receive it.” So on a literal reading, this Act would apply to the actual leaker as well as Wikileaks and the various newspapers that republished it, and even your next door neighbour who puts a link to Wikileaks on his Facebook profile. As American University law professor Stephen Vladeck told ABC News , “one of the flaws of the Espionage Act is that it draws no distinction between the leaker or the spy and the recipient of the information, no matter how far downstream the recipient is.”

There is just one problem. The Espionage Act has never been successfully used to prosecute a media organization. It is generally believed that such a prosecution would fail because of the First Amendment, which protects freedom of speech.

There is little doubt that the First Amendment applies in this case. Wikileaks is certainly a member of the press; besides, as the Supreme Court once noted, “Freedom of the press is a ‘fundamental personal right’ which is not confined to newspapers and periodicals.” Indeed, the freedom belongs to everyone from “the lonely pamphleteer who uses carbon paper or a mimeograph . . . [to] the large metropolitan publisher.”

Let me repeat that for emphasis. Wikileaks and its leaked cables is exactly the sort of thing that the First Amendment protects. Free speech gives Wikileaks, and other members of the press, the right to disseminate any information provided by a source, regardless of whether the said source obtained this information legally or illegally, so long as the material is not libelous (and even this would only invite a civil penalty) or incite imminent lawless action (which is a very high standard to meet and is certainly not the case here).

The closest parallel to Wikileaks was the Pentagon Papers case. There, the federal government took the New York Times to court under the Espionage Act because it was about to publish classified documents relating to the Vietnam war. The government lost that case. The New York Times went ahead and published the truth about the Vietnam war in what was a watershed moment in American history.

Dan Ellsberg, the whistleblower behind the NY Times Pentagon Papers leaks, is a fan of WikiLeaks in particular and whistleblowers in general. He argues that WikiLeaks founder Julian Assange “is serving our democracy and serving our rule of law… I’ve sort of been waiting for somebody to do this for forty years.”

Based on the Pentagon Papers precedent, it may seem obvious that Wikileaks is in no real danger of prosecution. But there is a small problem. In the Pentagon papers case, the government wanted the Supreme Court to issue a prior restraint injunction barring the publishing of the documents by the NY Times and other newspapers. The Supreme Court declined to do so on First Amendment grounds. But what if the government had gone to court again after the fact and sought to punish the newspapers for breaking the law? How would the judges have ruled then? It is unclear.

What is clear is this. In the unlikely event that the government succeeds in convicting Assange under the Espionage Act, it will set a tremendous precedent. It will mean that the Court will for the first time have ruled that when applied to the press, secrecy and national defence interests protected by the Espionage Act trump the First Amendment when the two are in clash. Previously only actual spies and leakers were under the ambit of this Act. Now everyone, in particular all journalists, bloggers and  whistleblowers, will be. Since there is no limit to what governments can classify, it will have a breathtaking effect on the future of investigative and political journalism. As I have already made clear, there is no intellectually coherent way to distinguish between Wikileaks and traditional newspapers. They will all be at risk from future prosecution. During the Bush administration, there were in fact several explicit threats to prosecute members of the press for reporting things the government wanted kept secret. The Bush administration never went ahead and did so because they thought such a prosecution could not succeed. If the Obama administration succeeds in this case, nothing will stop them, or future governments,  from using their new found power to censor free speech whenever they want to. Without the First Amendment as an effective bulwark against government overreach, it will be easy for the government, especially in times of war or fear thereof, to haul up dissenters and silence journalists. In fact the Espionage Act, as written, does not even require that information need be classified for its disclosure to be actionable.

Even the newspapers, previously detached or pro-prosecution, have started realising the grave danger. The Washington Times‘ reporter Eli Lake wrote:  “I oppose the application of the espionage statute to Assange because the same kind of prosecution would make me a criminal too.” The New York Times‘ Eric Lichtblau and The Washington Post‘s Dana Priest warned that prosecuting WikiLeaks would endanger investigative journalism generally. The Washington Post Editorial Page came out in opposition to prosecuting WikiLeaks on Sunday, recognizing that “the government has no business indicting someone who is not a spy and who is not legally bound to keep its secrets” and that “doing so would criminalize the exchange of information and put at risk responsible media organizations.”

***

But I have not yet really explained why I am so bothered by all this. I am not an American citizen; nothing binds me to that land. And if one takes the universal moral standpoint — why, yes it is immoral and rights-violating to persecute Wikileaks for its exercise of free speech — but there are far worse violations of rights happening around the world on most days. It may seem almost silly that I find the Wikileaks episode so disturbing and am less affected by the various attacks on individual liberty by the government of my home country, India.

Now, I despise collectivism. I am an Indian citizen who has lived in the US, but I owe allegiance to no country, and never will. But here’s the thing; as a principled libertarian, I don’t get to see our cherished principles in action very much. Even the US is not really particularly libertarian, it is better than most, but worse than many, especially on social  issues. And the US foreign policy over the last sixty years has been as unlibertarian and violative of rights as one can possibly get.

But on the single issue of freedom of the press, the US has for the most part, been outstanding. And there is really one reason for that. It is the First Amendment.

Laws  — and the rights granted therein — are the engines that sustain modern liberal democracies. And of all laws, there is none as special as the First Amendment. Of the innumerable fundamental rights enshrined in the constitutions of various countries, the First Amendment is the most amazing, the most successful, the most astonishing. It is, to me, the jewel of the entire legal compendium.

The greatness of the First Amendment lies in its absoluteness. Other countries that had incorporated weaker versions of free speech protection, — i.e. with caveats — were ultimately left with no real free speech at all. As I have often pointed out, it is only speech that offends that requires government protection. Recent events in Canada and Europe have amply displayed the chilling effects of hate-crimes legislation.

In the US one can insult entire groups and not be charged with hate speech. One can write books on how to commit suicide or pamphlets about how to be an effective anarchist and generally have no fear that the government will ban them. One can criticize the government or make parodies of well-known figures without fear of legal trouble. One can burn the American Flag if one chooses, even though most people think it should be illegal to do so, and not worry about ending up in jail.

Yes the First Amendment, or rather the version as currently applied after numerous interpretations by the courts — is not perfect. For instance, courts have ruled that obscene material — usually extreme pornography — that have no other social value do not enjoy First Amendment protection and can be banned. I think that is a huge blemish on the First Amendment. The First also, sadly, does not fully protect certain sorts of commercial speech. But we do not live in a libertopia, and these are some of the few rare blemishes. Overall, the free speech rights in the US exceed that of any country I know of and comes pretty close to being perfect. There are some other restrictions on free speech that the First Amendment does not protect, such as libel, or words that lead to imminent lawless action, but I think those restrictions are more or less justified.

Ah, free speech. It’s such a radical concept, if you think about it historically. And the fact that the founders of the US put in this clause in the constitution, without caveats or modifiers, over 200 years ago, is nothing short of astounding. There have been many proposed US laws that have been — rightly — ruled unconstitutional because they violated the First. It is almost a miracle to see a  sentence make so much difference, often working against heavy popular opinion.

As a NY Times commenter once put it, the point of freedom of speech isn’t to protect the content that everyone agrees is acceptable or even desirable–there’d be no purpose to an amendment that protected what everyone agreed was worth protecting. The point of freedom is speech is to protect the content that exists at the margins of society; the things that many people find to be objectionable or even reprehensible. Without such protections, core values of our civil society are at risk.

It is the rigorous application of the First Amendment that has, more than anything else, preserved these core values in America. And of all the forms of speech, none is as valuable as political speech, and by extension political reporting. It is this form of speech that governments and tyrants will seek to clamp upon, often in the guise of the national interest. It is important to be extremely vigilant against any attempt at doing so. Ben Franklin once wrote “Where liberty dwells, there is my country.” If the First gets distorted beyond recognition, as a successful Wikileaks prosecution will undoubtedly do, that country will not be the US.

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I may be on some sort of unannounced blogging hiatus, but how can I possibly go without writing a word on the arrest of Roman Polanski ?

The facts are well-known and I will keep it short: Polanski was accused in 1977  by the authorities of  plying then 13 year old Samantha Gailey with champagne and a sliver of a quaalude tablet and then having sex with her during a photo shoot at actor Jack Nicholson’s house. As a part of a plea bargain, Polanski pled guilty to unlawful sexual intercourse with a minor, but the judge refused to accept the plea, thinking it let him off too lightly. Ultimately Polanski fled to France, and has lived for the last 32 years without arrest, till the events of last week, when he was arrested while trying to enter Switzerland where he was going to be honored at a film festival.

Normally, I would be mildly indifferent to this incident. But because it is Polanski, I cannot. Since my early undergrad years he has been my favourite director, aye, the greatest of all time. His movies have an astonishing ability to move and horrify and mesmerize my insides, and some of them, such as Bitter Moon, are part of me in a sense I cannot adequately convey. Like a true fan, I have collected all his works, famous and less-known, and I have hunted down his autobiography in some obscure book-shop and then read it cover to cover. I know every trivia about him that’s  worth knowing. I have loved him with all my heart and cried for the tragic misfortunes that have marked his life. So naturally, I feel an extraordinary affinity for him and his fate.

So what really happened all those years ago with this 13 year old girl? First of all, I have always believed that statutory rape, especially with older victims (those who are in their teens), is an entirely different and far less serious crime than actual rape. Not just because the act is consensual but also because the age of consent is such an arbitrary construct. But Polanski’s case is even more interesting. For Polanski has always maintained that while (consensual) sex did take place, no drugging happened and the girl represented herself as an adult at the time of the event. I believe his version completely. Indeed the probation report itself quotes one of the witnesses as saying, “She appeared to be one of those kind of little chicks between — could be any age up to 25. She did not look like a 13-year-old scared little thing.” And if we were to accept that Polanski reasonably thought the woman was 18, I do not think he deserves to be charged for anything.

Could it be that my thinking is biased due to my immense admiration for the man? Possible, but if it is biased it is so in such an inextricable way from my being that it is hopeless to try and separate it out. And that’s why this post had to be written. For this is after all a personal blog, and Polanski’s fate is of personal importance to me.

And it all happened in the city I live in currently!

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I cannot really express how thrilled I am with this decision. The High Court, through its judgment, has given millions of Indians the right to be the way they are without facing harassment or prosecution. This is the biggest blow in favor of individual liberty that has happened in India for many, many years. In this blog, most of my political writings are about things that depress and outrage me; this one though, is pure joy.

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While I am not an expert on global warming, the available literature seems to indicate that when everything is considered, the damage of global warming is probably not as high as the damage of the proposed solutions to global warming. That’s of course not to discount the danger or reality of the phenomenon — global warming is undoubtedly real and very serious — but merely to say that too many proposals will achive very little at too much cost (both in terms of actual GDP and in their effect on the lives and cultures of peoples).  The existence of a serious problem does not mean we should jump and “do something”, we need to analyse whether what we do might actually make our overall lives much worse than if we did nothing.

Here’s Jim Manzi making the case against a carbon tax or similar approach to address global warming.

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To add to the list of depressing news for the day, have a look at the sorry fate that the medical marijuana bill in Minnesota suffered.

Nonetheless, I think the wind is blowing in one direction in the US; and that is towards legalization. These are not the wishful words of an optimist but a mere appraisal of the expression of views we are seeing currently. Major newspapers are running pro-legalization opeds like never before, the public attitudes have never been more favorable and if you look at the age-breakup of the polls that are being conducted, it is obvious that change is coming.

I have an almost perfect success rate in previous predictions I have made on this blog, and I am confident that the two I am going to make now will come true.

1) In ten years from now, recreational marijuana use will be either fully legal or decriminalized in more than 35 American states; the federal government will no longer seek to interfere in state policy on this matter; most major US urban cities will be as pot-friendly as Amsterdam is today.

2) On the other hand, regulations against tobacco, unhealthy foods and fatty burgers will get more stringent. Vice taxes associated to those will increase substantially. In ten years from now, it will be hard to light up even in most private owned properties except a few narrowly defined areas. Trans-fat bans will be almost universal. Companies will have much less freedom than now about what they can sell you; this will be done to protect you from your bad choices.

In short, the pro-marijuana legalization winds that are blowing today have less to do with libertarian principles and more to do with what is currently considered ok. Here’s an old post by me on this theme.

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Reason has some exclusive footage from the aborted sentencing yesterday.

Meanwhile, if you are a reader who is not entirely familiar with the timeline and details of the Charlie Lynch case, I strongly recommend this excellent Reason summary.

To read my various posts on the case, click here.

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The following piece of news seems relevant in the context of my earlier post on tobacco and the illusion of liberty caused by unprincipled value judgements.

From the incomparable Reason Brickbats:

Dutch police cited a 27-year-old man for smoking a joint in one of Amsterdam’s famous coffee shops. Smoking pot is legal there, but the man, who was not identified by the local press, mixed the pot with tobacco before rolling the joint. That broke the Netherlands’ ban on smoking tobacco in workplaces.

The above incident is so absurd that I cannot even feel outraged.

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(Followup to Domestic violence and consent)

In this post, I intend to discuss and clarify some issues related to violence and consent. For the most part, I will take for granted the libertarian philosophy of non-interference in any consensual act and explore some of the ramifications of this position with regard to acts of domestic violence. Of course, a lot of people do not attach a great deal of value to the idea that governments should not interfere in the consensual private affairs of adults. I am under no impression that my arguments will change their minds and so this post is not addressed at them. My goals are much more modest; if you are favourable to legalized gambling, prostitution, sexual freedom and so forth, in short if you are something of a social libertarian, then I hope to convince you that current domestic violence laws are contrary to your principles. I will also use my discussion on domestic violence as a launch-pad to say a few things about violence and consent in general.

Why focus on domestic violence first? Well, apart from the fact that this issue is topical, there are several factors that make domestic violence different from other types of violence. Violence is generally thought of as bad and private relationships as sacred. And as far as libertarianism goes, both of these are particularly important concepts: the non aggression principle appears to simultaneously forbid violence and protect private affairs from external interference. So a discussion of domestic violence laws, which govern the realm where privacy and violence intersect, is definitely a worthwhile endeavour.

Secondly, societal as well as legal attitudes towards domestic violence cases has undergone a sea change over the last hundred years. In the early part of the twentieth century, police often refused to register domestic violence complaints. Domestic violence was viewed as a mostly private matter and even vicious physical attacks rarely resulted in jail time. Victims, usually the wives, had a hard time convincing law enforcement to come to their aid — even when they did, the abuser was usually let off very soon.

Today on the other hand, the pendulum has swing to the other extreme. Many US states follow a mandatory arrest policy, where police can arrive at the scene of a fight on a simple call from a neighbour and once they do so, they are usually bound to arrest one of the parties. The ‘victim’s’ wishes are not respected. She might tell the police officer that it was mutual, or consensual, or a family matter; he would still be arrested if the policeman finds the slightest sign of violence. Making matters worse is the current system where such cases as treated as crimes against the state rather than the victim. Thus, once charges are filed, the victim cannot ‘drop them’ — she is treated merely as a witness, it is up to the state whether or not to respect her wishes regarding the fate of her alleged abuser.

Both approaches are wrong, because they ignore the crucial ingredient that defines a crime — lack of consent.

As I wrote in my earlier post:

Theft is a crime only because it is involves takings without permission. If I take my friend’s car keys and go for a spin without asking him and he later finds out about it and gets mad, he has every right to demand legal redress. However if he is perfectly ok with my disappearing act, it would be laughable to suggest that the law should override his wishes and punish me.

Rape is prosecuted not because it involves force or sex but because one of the parties has not consented to the act. Many birthday parties in India involve birthday bumps, where the special person is hoisted in the air and roundly smacked around. It is a violent act, but all good-natured and fun. However if you give bumps to a person despite his protests and he later goes and complains to the police, you will surely be charged with at least a misdemeanour assault.

For there to be a crime, there has to be a victim. The fundamental premise of libertarian jurisprudence is that there are no victimless crimes. And it is consent  alone that determines if there is a victim. Undoubtedly, in cases like murder where the victim can no longer testify, or cases involving abuse of children or the mentally disabled, the law is perfectly justified in presuming their victim-hood. However, when two adults are involved, their is no need for the law to make such value judgements. 

What people consent to is their business. When society imposes its fiat on such a matter, it infantilizes the parties involved.

Is violence necessarily bad? Simple surgery involves violence and bloodshed. A typical response to this example might be that surgery is done at the request of the victim and it serves a good purpose. Surely violence with the intent to hurt is an entirely different matter? But what then of boxing, professional wrestling and UFC? They involve people trying their best to hurt each other. Ok, but such sports are regulated affairs. But then what about violent sex or BDSM? Should the government outlaw them?

The correct libertarian response is that violence is wrong only if it is non-consensual. And if you agree with that response and support current domestic violence laws, I think there is a significant tension in your worldview.

First of all let’s consider the case where a couple has an explicit agreement that it is ok for their fights to get physical. That does not mean they welcome or like the violence, any more than they like non-violent fights such as verbal arguments or emotional attacks. It does not mean that the person(s) getting hit does not try to stop the attacker or does not hit back. It simply means that they think that an argument leading to a slap or a shove could occur in extreme circumstances and if so, they vow not to get the authorities involved. In short they think of it as a private matter just as name-calling or emotional blackmail is generally accepted to be. To make matters more explicit and sensible, they may even agree upon a last resort ‘safe-word’, which if uttered, would compel the attacker to stop hitting, failing which consent would automatically be withdrawn by the victim and the police justifiably called upon.

I presume that most social libertarians would be okay with the above setup. Let us, however examine the above scenario in more depth.

It is worth noting that consent in the above case is not to the particular slap or shove but to a general lifestyle where it is ok to do those things. Now, suppose I am a police officer and I catch a couple physically fighting. They claim consent in the above sense. I say it is clearly non-consensual because they are trying to hurt each other, defending themselves from the other and trying to stop the other from hitting. I might even say that I heard her tell him to stop (this is different from uttering the safe word, which would be an act of last resort).

All of my arguments would however be flawed as all of those things are part of their agreement! A simple comparison with the boxing/wrestling/BDSM example might be enlightening.

This example already shows how difficult it would be to disprove a consent defence like the above; it would be as hard (and yes, as unwelcome) as trying to police a thought crime. It also shows that intent is irrelevant to such a case, as are physical evidences like bruises.

Now, most couples do not have such an explicit agreement. So let’s take a modified scenario, the one that essentially seems to have happened between Rihanna and Chris Brown.

Chris Brown hit Rihanna (it is unclear who provoked whom) and she was left with visible but not life-threatening injuries. The police came on the scene and the next day Brown turned himself over. However, Rihanna had a change of heart and forgave him. The couple reconciled and she refused to testify against him. She now wants the charges dropped and in fact, it seems that she might even testify in his defence if he is prosecuted. The district attorney and the police however, seem set to try and prosecute Brown.

Does Rihanna not wanting Brown charged make her a consenter? Indeed it does, not to the blows that Brown gave her, but to a lifestyle in which their private boundaries are extended, where hitting her is unwelcome perhaps but where she prefers it be dealt with privately by them and not by the law. In effect she is saying exactly what my hypothetical couple in the above example are saying: leave us alone. Is there a difference at all between the two cases?

Actually there is. Rihanna and Brown did not probably have an explicit agreement of that nature before the physical violence. In short this is a case of ex-post facto consent. But should that make it any less valid?

It is a general principle of ethics (and common sense) that our later views and positions, formed after more time, experience and evidence, ought to rightfully occupy a superior position vis-a-vis our earlier or more premature ones. Let me relate two examples. The first is the case where I take my friend’s car for a drive without his permission. Clearly I do so without his consent. You might say that if he knew, he would have consented. That may very well be true, but let us assume he does not know who took the car, comes home and sees the keys gone and gets very angry. However I come back soon and because I am his friend, he forgives me and we have a laugh about the whole episode. 

Or take another example, where I arrange for my girlfriend to be kidnapped (slightly violent, and obviously without consent) by some hired men. She is terrified for a while but then the kidnappers take her to the island of her dreams where I am waiting to propose to her with a diamond ring (forgive the cliches for a moment). She is overjoyed and not just forgives my daring scheme but in fact agrees to marry me instantly.

Both these are cases of ex post facto consent to what originally might have seemed as a violation to them. Most people would agree it would be ridiculous for the police to override the ‘victim’s’ wishes in either case and prosecute me. Yes, in both cases, initially there was lack of full information. However, that is hardly relevant, the crucial point is that on further deliberation, the victim changed his or her mind. And besides one could always argue that Chris Brown’s behavior after the act gave Rihanna new ‘information’ about his true nature. Thus information is not really the point here and the point is simple; in all three cases (car, island, Rihanna) one of the parties insisted in the end that she does not consider herself a victim. And if in any of these cases, the state decides to go ahead and prosecute the alleged ‘victimizer’, it means they are prosecuting a victimless crime.

There is another, pragmatic reason why if one agrees that (pre–fact) consent is a valid defence, then one should consider ex post facto consent equally valid. It is virtually impossible for the authorities to prove that consent was ex post facto if the victim claims it was not. So if Rihanna decides to tell the court that she and Brown had an agreement of the sort I described, there is no way she can be disproved beyond doubt. Right now, the police are using her bruised photograph as evidence to prosecute Brown, but that would be useless under this defence. Even any statement she might have given to the police would not really be useful, because she could always say that she said those in the heat of the moment but in reality she did not think his behavior crosses their privately defined boundary. 

The simplest and most just approach in all cases of violence by one citizen on another then is this: treat them as crimes against the person (provided the person is alive and able to articulate his or her wishes) rather than the state and drop those charges if the person does not want the accused punished. Anything else, as a commenter wrote in my previous post, is a mockery of justice. (Or at any rate, this is what you ought to believe if you subscribe to libertarian principles on social issues.)

The above arguments are mostly philosophical, grounded on individual liberty. However, there are some people who agree morally that consent, both before the act and after, ought to be an absolute defence against acts of violence but support the status quo on pragmatic grounds. They think that if the victim is allowed to drop the case, many will be intimidated to do so. But even if that were true, surely the obvious solution is to protect the victim from intimidation or reprisal! Laws that provide strong deterrence and efficient justice in the case of a violation, a system where it is easy to file cases, obtain no-contact orders and get police protection, where the victims know that the police is fighting for them, not against their wishes — will provide far more security from intimidation than one where the victim’s wishes are not respected.

A case in point is the mandatory reporting law that exists in a few states: any domestic violence injury must be reported to the police by the physician. The funny part is that women who have never been abused support the law by a 70-30 margin while among women who have been abused in the past and have thus reaped the benefit of the law, the aupport drops to 55-45. This fact and others are laid out in this paper by three medical researchers who explore the effects of such mandatory laws. Their recommendation? At the least, “the efficacy of mandatory reporting of domestic violence to police should be further assessed, and policymakers should consider options that include consent of patients before wider implementation”, they think.

The same is true for other laws of a similar nature: mandatory arrests, inability of the victim to unilaterally cancel a no-contact order, etc. Thus, even on pragmatic grounds, there is little rationale behind laws like these which do not value the consent of the alleged victim. At any rate, even if a law like that did some good, there are always alternate pragmatic solutions that preserve liberty and serve the same purpose, that is protect victims from intimidation or coercion.

And if anyone thinks I am raising too much hue and cry defending wife-beaters and other scum, all I can say is, if you  believe in a principle, you are bound to defend it in all cases, including the unpleasant ones. Freedom of speech entails defending the right to disseminate hate speech. Freedom of association entails defending the rights of bigots to not employ or serve those who they irrationally hate. And if privacy and consent are worthy principles, one must also defend the right to indulge in private consensual behavior we would not personally approve of.

Besides, if one is willing to make exceptions to these principles in such cases or if one takes the view that certain kinds of violence are (absolutely) bad or that the state can rightfully define victimhood without regard to the wishes of the ‘victim’, then governments might some day start categorizing even non-violent consensual behavior, such as prostitution, as violence against the woman and using that as justification to outlaw it. Oh wait, they already did that!

But then, the law has never really treated the consent principle with anywhere near the respect libertarians think it deserves. In most jurisdiction, one cannot consent to harm to self beyond a certain point unless the act is strictly regulated, such as sports. This has led to paradoxical situations where severely hurtful consensual behavior is sometimes allowed (think ultimate fighting, or some extreme sports) while relatively less dangerous behavior is outlawed. An excellent reference for such examples is the paper Sex is not a Sport: Consent and Violence in Criminal Law. The author, who chooses to focus particularly on examples related to sports and sadomasochism does not exactly subscribe to the libertarian principle of absolute non-interference in private matters, indeed she takes the opposing view that governments have a legitimate interest in controlling violence. Nevertheless I think it is a worthy read.

I think this passage is particularly noteworthy:

Historically, under the common law, violence, even if consensual, was illegal. Thus, consent was no defense when one engaged in an activity that could cause physical injury or death, even if the “victim” did not complain. Assaultive behavior is criminal behavior, as the wrongdoer infringes upon and threatens the state’s monopoly on the legitimate use of force. The victim is merely a witness for the prosecution. Yet, courts have carved out exceptions to this general rule on a case-by-case basis. In this section, I review the Anglo-American history of consensual violence in the sporting context, drawing primarily from English, Canadian and American jurisprudence. Although few American appellate courts have examined the doctrine of consensual violence, both the Canadian Supreme Court and the British House of Lords have taken up the issue in the last decade. Thus, American legal scholars can benefit from the experiences of our common law cousins in this area.

When discussing the issue of consensual violence, it is quite common for commentators to assume that courts use the “harm test” to decide the relevancy of consent—the more likely injury is to occur, the less likely a court will allow the activity. In 1895, for example, in the first American article to examine the issue of violence and consent within the criminal law, the Harvard Law Review summarized the doctrine of violent consent. “A game which involves physical struggle may [be] a commendable and manly sport, or it may be an illegal contest in which the participants are or may become criminals; this depends on whether it is a game which endangers life.” The premise was that the level of injury inherent to the activity is what is crucial to the law.

But courts have allowed all sorts of activities, including prize fighting and hockey, which carry a high probability of injury, and disallowed barroom brawling, which is arguably no more dangerous. In practice, the likelihood of harm is more or less legally irrelevant. What is legally relevant is the social utility of the activity itself. The law clearly distinguished between those contexts in which men competed to enhance their manliness and those contexts in which their aggression went unchecked, or inspired runaway passion by the parties or observers. Instrumental violence—that which serves a “manly” purpose—is legal, but expressive, emotional violence, which carries with it too high a risk of social unrest, is not. Thus, lawmakers have whittled down the playing field, so to speak, by legalizing only those sporting activities that promote what I call civilized masculinity.

She is right. The reason why law treats consent in such an inconsistent and muddled manner is because the majority, through the state, has always tried to outlaw behaviors they disapprove of. So the doctrine that one cannot consent to violence beyond a point (unless it is with regard to a fashionable activity) has less to do with principles and more with a desire to simultaneously preserve the state monopoly on violence, let the powerful majority have fun but keep in check deviants.

But then, I suspect I have fundamental differences with paternalists and public-interest-apologists that logical arguments cannot resolve: how can you possibly disprove someone whose axioms differ from yours? I hope to convince only those who already have a healthy scepticism of government power and a strong respect for individual liberty. And if any of them still believe that the law should recognize victimhood irrespective of consent or the victim’s wishes, I urge them to reconsider.

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Celebrity couple Rihanna and Chris Brown are back together again, three weeks after Brown hit her during an altercation that left her with visible injuries. However, the case against Brown may not be dropped, despite Rihanna’s decision to forgive her man. In a criminal case like this, the police has the power to press charges against someone even if the alleged victim refuses to testify.

Now Rihanna is probably dumb to get back with someone who hit her. However she certainly has the right to make that decision and I strongly believe that if she does not want to press charges against him, the law should leave them alone.

It all boils down to consent. Theft is a crime only because it is involves takings without permission. If I take my friend’s car keys and go for a spin without asking him and he later finds out about it and gets mad, he has every right to demand legal redress. However if he is perfectly ok with my disappearing act, it would be laughable to suggest that the law should override his wishes and punish me.

Rape is prosecuted not because it involves force or sex but because one of the parties has not consented to the act. Many birthday parties in India involve birthday bumps, where the special person is hoisted in the air and roundly smacked around. It is a violent act, but all good-natured and fun. However if you give bumps to a person despite his protests and he later goes and complains to the police, you will surely be charged with at least a misdemeanour assault.

For there to be a crime, there has to be a victim. The fundamental premise of libertarian jurisprudence is that there are no victimless crimes. And it is consent  alone that determines if there is a victim. Undoubtedly, in cases like murder where the victim can no longer testify, or cases involving abuse of children or the mentally disabled, the law is perfectly justified in presuming their victim-hood. However, when two adults are involved, their is no need for the law to make such value judgements. 

What people consent to is their business. When society imposes its fiat on such a matter, it infantilizes the parties involved.

For most couples, occasional verbal fights are a perfectly normal part of the relationship. However, if a couple happens to think that it is also ok sometimes to slap each other, what right does society have to use the force of law to stop them?

One of the arguments advanced for treating assaults and other violent crimes not as torts but as crimes against society is that if the victim is allowed to drop the case, many will be intimidated to do so. Even if that were true, surely the obvious solution is to protect the victim from intimidation or reprisal! Laws that provide strong deterrence and efficient justice in the case of a violation, a system where it is easy to file cases, obtain no-contact orders and get police protection, where the victims know that the police is fighting for them, not against their wishes — will provide far more security from intimidation than one where the victim’s wishes are not respected.

In the end, it is a simple affair: if Rihanna is ok with Brown hitting her and does not want any charges filed against him, it her private matter. If the police still go ahead and prosecute him, it means that they are prosecuting a victimless crime. Not uncommon and not unsurprising but an affront to liberty nevertheless.

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The diplomat, 47-year-old Rowan Laxton, allegedly shouted “f***ing Israelis, f***ing Jews” while watching television reports of the Israeli attack on Gaza last month.

He is also alleged to have said that Israeli soldiers should be “wiped off the face of the Earth” during the rant at the London Business School gym near Regents Park on January 27. [...]

After a complaint from a member of the public, Mr Laxton was arrested for inciting religious hatred – which can carry a seven-year prison term – and bailed to reappear at a central London police station at the end of March.

Here’s the full report.

The wisdom of having a law directed against incitement of racial hatred is questionable; the particular application here borders on the absurd. Or perhaps I am merely arguing from a strictly American viewpoint — courts here have repeatedly ruled that “incitement” must always carry an element of imminence — which might not apply in the land of the Queen.

Anyway, the point is, a person would never be prosecuted for a racial tirade in the US. Reminds me that in many ways, the US still offers free-speech protection far superior to anywhere else. I should do some research on Switzerland law before I move there.

Also read: My short post comparing free-speech protections in some selected countries.

Update: I should add that the free speech protections in this country exist primarily because they are constitutionally granted. If the present public had its way, it would certainly get diluted, as it has in so many other places.

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Having praised Obama yesterday, I think it is all the more important to point out that so far, there are no signs he has reversed the policy of raiding medical marijuana units in states like California (where medical marijuana is legal).

As Jacob Sullum puts it:

“I’m not going to be using Justice Department resources to try to circumvent state laws on this issue,” Obama told the Southern Oregon Mail Tribune last March. How many more raids will it take before that counts as a lie?

Obama categorically said on the campaign trail — to the Tribune as well as to other questioners — that he would end these raids (the raids themselves are possible because of  a ridiculous state-federal law incompatibility on this issue). For many libertarian leaning people, that statement of Obama’s was one of the primary reasons they supported him. 

Yes, he deserves some slack. It takes a little while to change policy, and he has been in power for just a few weeks. He has  had a lot on his plate, with the economic crisis and appointment troubles, and it is understandable if he hasn’t been able to deal with this matter yet.

So I am going to give him three months. If these raids continue beyond that, I’ll call him out for what he will then have proved to be — a liar with ruined lives on his hands.

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• Tom Daschle — big government healthcare lord with plenty of tax issues  – is out. Obama admits he screwed up. Refreshing.

• He might actually kill the terrible protectionist clause from the stimulus. I certainly did not expect this. 

• He has selected an excellent nominee for the secretary of commerce post, it’s a Republican who once voted to abolish the position!

These are early days yet. However, so far, from a libertarian viewpoint, Obama has proved to be excellent in the areas Democrats are supposed to be good at (due process, civil rights of detainees) and if his appointments and attitudes are any indication, significantly better than Bush in the areas the Democrats are supposed to be bad at (economics). I would be interested in seeing what stance he takes though if the Dems start pressing more contentious legislation (card check, fairness doctrine).

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In this excellent piece, security guru Bruce Schneier comments on efforts by the Indian government to ban Google Earth in the aftermath of the Mumbai terror attacks.

Let’s all stop and take a deep breath. By its very nature, communications infrastructure is general. It can be used to plan both legal and illegal activities, and it’s generally impossible to tell which is which. When I send and receive email, it looks exactly the same as a terrorist doing the same thing. To the mobile phone network, a call from one terrorist to another looks exactly the same as a mobile phone call from one victim to another. Any attempt to ban or limit infrastructure affects everybody. If India bans Google Earth, a future terrorist won’t be able to use it to plan; nor will anybody else. Open Wi-Fi networks are useful for many reasons, the large majority of them positive, and closing them down affects all those reasons. Terrorist attacks are very rare, and it is almost always a bad trade-off to deny society the benefits of a communications technology just because the bad guys might use it too.

Communications infrastructure is especially valuable during a terrorist attack. Twitter was the best way for people to get real-time information about the attacks in Mumbai. If the Indian government shut Twitter down – or London blocked mobile phone coverage – during a terrorist attack, the lack of communications for everyone, not just the terrorists, would increase the level of terror and could even increase the body count. Information lessens fear and makes people safer.

[...] Criminals have used telephones and mobile phones since they were invented. Drug smugglers use airplanes and boats, radios and satellite phones. Bank robbers have long used cars and motorcycles as getaway vehicles, and horses before then. I haven’t seen it talked about yet, but the Mumbai terrorists used boats as well. They also wore boots. They ate lunch at restaurants, drank bottled water, and breathed the air. Society survives all of this because the good uses of infrastructure far outweigh the bad uses, even though the good uses are – by and large – small and pedestrian and the bad uses are rare and spectacular. And while terrorism turns society’s very infrastructure against itself, we only harm ourselves by dismantling that infrastructure in response – just as we would if we banned cars because bank robbers used them too.

I made a related point last month in my reaction to the same news.

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“Never doubt that a small group of thoughtful, committed citizens can change the world. Indeed, it is the only thing that ever has” – Margaret Mead.

As we all know, governments do one thing really well — telling us how to run our lives. Thus, most places in the world (for instance every US state except New Hampshire) makes it mandatory that you wear seatbelts while driving. Surprisingly though, most US states do not require motorcycle riders to wear helmets. How did this strange situation come about?

The answer is fairly simple; motorcyclists, against all odds, fought for their freedom and won it. That stirring story is recounted with delicious pleasure by Jacob Sullum in this old Reason article.

In 2003 there were 5.4 million registered motorcycles in the U.S., compared to about 136 million registered cars. Despite their relatively small numbers, motorcyclists have been far more effective than drivers at resisting traffic safety paternalism. After some initial grumbling, most motorists got used to buckling up and are now unlikely to put up much resistance as states move toward primary enforcement, allowing police to pull people over for not wearing seat belts (as opposed to issuing citations after stopping them for other reasons). By contrast, going back to the 1971 founding of the American Brotherhood Against Totalitarian Enactments (ABATE) by the staff of Easyriders magazine, motorcyclists have been willing to invest the time, effort, and money required to fight helmet laws.

And this happened because motorcyclists, with a fierce passion, think that people ought to be able to lead their lives the way they deem fit. They believe they should have the freedom to make their own choices, including ones that are risky or potentially lethal. And they are prepared to protect this freedom by every means at their disposal.

“Motorcyclists believe in freedom, and we attack anything that is attacking our freedom,” explains Robert Fletcher, coordinator of the Texas ABATE Confederation. “Helmet laws go against the grain of everything this country stands for,” says New York Myke, ABATE of California’s state director and owner of San Diego Harley Davidson. Just as abortion rights groups insist they do not favor abortion, motorcyclist groups are at pains to make it clear they do not oppose helmets. Jeff Hennie, vice president for government relations at the D.C.-based Motorcycle Riders Foundation, says, “What we’re advocating is freedom of choice….It should be the decision of the rider whether to put on extra safety equipment.” He describes the attitude of helmet law opponents this way: “Let me decide what is right for me, instead of the government jamming regulations down my throat.”

[...]

The view of helmets as confining and stifling meshes with the sentiment that forcing people to wear them ruins what is for many riders a visceral experience of freedom. “We’re passionate about our motorcycles,” says ABATE of California’s Myke. “This is something that’s more of a way of life than a hobby or a sport. It really goes to the core of our being….Riding a motorcycle is my celebration of freedom.” Few motorists feel the same way about driving, which for most of us is a workaday means of getting around, not an important part of our identities.

Sullum goes into details about how the motorcyclists argued, demonstrated and lobbied. There were defeats and there were victories. But they never gave up.

What makes their achievement all the more astounding is that they never had either the numbers or the support of the public.

To block or repeal helmet laws, activists must convince legislators to defy public opinion. While a 1978 Louis Harris poll found that 57 percent of Americans thought motorcyclists should be free to ride without helmets, a 2001 survey by the same organization found that 81 percent thought helmets should be required. Add to that the fact that the fatality rate per mile traveled is more than 25 times as high for motorcycles as it is for cars, and the success of helmet law opponents is even more impressive.

But my favourite part of Sullum’s article is the last paragraph, where he is at his eloquent best.

In the final analysis, not enough people took seat belt laws personally. For the most part, whatever objections they harbored were overcome by force of law and force of habit. By contrast, substantial numbers of motorcyclists have complained loudly, conspicuously, and persistently about helmet laws for more than three decades. “Apparently,” says the National Safety Council’s Ulczycki, “legislators are easily convinced that the perceived rights of motorcyclists to injure themselves are more important than the public good.” Aside from the tendentious definition of “the public good,” this gloss is misleading on two counts: Resistance to helmet laws hasn’t been easy, and it hasn’t necessarily involved convincing legislators of anything but the motorcyclists’ determination. Politicians didn’t have to understand their passion to respect it. And therein lies a lesson for the world’s busybodies and petty tyrants.

Sullum is right. If a small group of people care strongly enough for liberty, there are ways to make legislators fall in line. For that you do not have to make them understand you, merely make them understand your resoluteness . How I wish car-owners shared some of this passion that motorcyclists have!

However my short review does no justice to Sullum’s long, well-researched and wonderfully narrated article. Read the whole thing.

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