"Mrs. Schiavo's death is a moral poverty and a legal tragedy. This loss happened because our legal system did not protect the people who need protection most, and that will change. The time will come for the men responsible for this to answer for their behavior, but not today. Today we grieve, we pray, and we hope to God this fate never befalls another. Our thoughts and prayers are with the Schindlers and with Terri Schiavo's friends in this time of deep sorrow." —Tom DeLay (h/t)
THERESA MARIE SCHIAVO SCHINDLER, 1963-2005
Terri finished dehydrating to death this morning, murdered under the pitiable veneer of legality by order of the courts.
Terri,
May your soul find greater succor committed into the arms of a loving God, than your body received at the cruel hands of men.
May the evil souls who accomplished your death be recompensed in double measure in the Day of Judgment.
Amen.
As Terri Schiavo passes away and the Pope is placed on a feeding tube, I am left considering my own end of life decisions. As Ith notes, the everchanging medical advances make it difficult to specify what the family members should and should not do. I had long handled this dilemma by telling the Calblog husband to follow Catholic doctrine. Then I learned from Lex Communis that Catholic hospitals are encouraging family members to not provide food and hydration at the end.
This morning's news explains that Catholic doctrine is unclear, or so some of the Church believes:
John Paul, who has long railed against a "culture of death" he saw in abortion and artificial birth control, surprised moral theologians in a speech in March 2004 by insisting Catholics can no longer make such decisions even in extreme cases.
"The intrinsic value and the personal dignity of every human being does not change no matter what the concrete situation of his life," he told doctors and ethics experts attending a Rome conference about patients in a vegetative state.
"The administration of water and food, even when provided by artificial means, always represents a natural means of preserving life, not a medical act," he said. Denying them this treatment would amount to "euthanasia by omission."
"Considerations about the 'quality of life,' often actually dictated by psychological, social and economic pressures, cannot take precedence over general principles," he said.
John Grabowski, associate professor of ethics at Catholic University of America in Washington, said the Pope had made his views clear but "left many theologians scratching their heads."
The problem was that he expressed this in a speech, not in a doctrinal document that made it official Church policy.
"The Pope can say any number of things but he has to tell the bishops' conferences when they have to change something," added Father James Keenan S.J., ethics professor at Boston College. "He hasn't done this."
As a result, he said, the U.S. bishops' conference and the Catholic Health Association have not renounced the more flexible earlier position even though many Catholic leaders support Schiavo's parents' demand to continue feeding her.
I've told the Calblog husband to feed me. Calblog children are planning to keep me on the heart-lung machine long past the point of medical hope and have made that clear so it's not as if he'll get a say.
AP—The Atlanta-based 11th U.S. Circuit Court of Appeals agreed to consider an emergency bid by Bob and Mary Schindler for a new hearing in their case, raising a flicker of hope for the parents after a series of setbacks in the case. But the court rejected the bid 15 hours later — the fourth time since last week the court ruled against the Schindlers.
[…]
[Judge Stanley F. Birch Jr.] went on to scold President Bush and Congress for their attempts to intervene in the judicial process, by saying: "In resolving the Schiavo controversy, it is my judgment that, despite sincere and altruistic motivation, the legislative and executive branches of our government have acted in a manner demonstrably at odds with our Founding Fathers' blueprint for the governance of a free people — our Constitution."
Ed Morrissey drills Birch's contempt for the other branches of government:
Talk about judicial arrogance! Not only did the Eleventh Circuit openly disregard the law written by Congress, this justice arrogantly tells the other equal branches that the only branch guaranteeing a free people is the one not accountable to the will of the electorate. […] [T]he judiciary simply and contemptuously disregarded a law which to this moment remains legal and valid.
[…]
Birch's comment demonstrates that this out-of-control judiciary constitutes the main threat to the Founding Fathers' blueprint. They have set themselves up as a star chamber, an unelected group of secular mullahs determining which laws they choose to observe and which they choose to ignore.
The Terri case has shown the Executive and Legislative branches to be emasculated entities, and the Judiciary as all-powerful. Each attempt at remedy by the U.S. Congress, the President, and the Florida Governor, has amounted to a powerless "pretty please," and actionable only at the discretion of the very courts that have treated every such attempt at remedy with open disdain.
So here we have single judges and micro-panels that with the tap of a gavel have unassailable veto power over the very apex of both the Legislative and Executive branches of American government, and have the trump card of law enforcement at their special disposal, which they order to enact their decrees by force of arms.
Somewhere along the way the Legislative and Executive branches have lost their power. American government is no longer a three-legged stool of roughly equal yet distinct powers. Now one power both calls the shots and orders the shots enforced, while the other two spheres of government stand by more as spectators than active participants in procedures, processes, and outcomes.
When petty-ante Circuit Judge George Greer can without repercussion flatly disregard U.S. Congressional subpoenas, and a couple of District Court judges on some three-judge panel can with impunity ignore the orders for a new review of the case (“de novo”) legally passed by the U.S. Congress, and duly signed by the President, something is very, very wrong; dangerously wrong.
There are many friends of Michael Schiavo in the press and the blogosphere—people who side with the courts, and are wildly indignant at the Congress, the President, and the Florida governor, for ‘interfering’ with the decisions of the courts. To these people I would say, On this particular issue you’re happy with the courts; you happen like the results of these individual judges, regardless of the fact they accomplish it by wholly disregarding the joint powers invested in the Legislative and Executive branches. When some future day a judge or a panel of judges flouts the other branches of government to ramrod through a result you disagree with, then perhaps you will see why it is imperative that judges or panels of judges take seriously attempted corrections sought by the other branches of government.
It's become painfully clear that the balance of power among the branches of government has become very lopsided. America once again needs three branches that are truly a check and balance upon one another; where each branch listens to the other two; where one branch cannot flout the other two without being effectively countered.
Some (even many) may think that I am being a bit hyperbolic in my title for this post. But I honestly think its true.
As bad as the dilution of the neutral reportage privilege is in terms of free speech, a far more important case is currently in the hands of nine people with scant experience with the tools of the digital age that hold the key to keeping our freedoms at home - and spreading freedom around the globe.
How we communicate 20 years from now may very well be dictated by MGM v. Grokster. It will effect how the current war over media monopolies (i.e. blogs vs. mainstream media) is eventually resolved in the future. Some can't think that far ahead. Others don't see the bigger picture because they either can't think outside the pleading box of this particular case, or don't really understand the technology in question here - but I really think the stakes are that big.
Time will tell if I am a prophet or merely a chicken little, but I'll take the bet.
I will try and do an in depth analysis when I have time and if/when a transcript of the oral arguments are posted. Glad to see Scalia seems
to get it (as usual), but we will have to wait for the final decision.
Quick bottom line: It will be a disaster if the Court follows its usual instincts and refuses to issue a bright line rule and forces would-be innovators to never be sure if they are breaking the law or not.
Souter said: "The question is: how do we know in advance that we can give the inventor -- that is, the developer -- the confidence to go ahead? How do we avoid the foregone conclusion that the iPod developer is going to lose his shirt" in copyright damages?
A case-by-case approach will never provide such confidence. The chilling effect would be enormous and tremendous tragedy for this nation and the world.
Can you imagine the state of freedom in the world without the technological revolution that the VCR first ushered in? It almost didn't happen...by a 5-4 decision.
Of course I am not the only one who feels the need to speak ill of Johnnie Cochran.
But Cochran's death now begs the question: Since most courts still hold that you can't libel a dead man, is the important free speech case currently in front of the U.S. Supreme Court now moot?
You can make the case that Tory v. Cochran should be moot at this point, but I hope that the Supreme Court decides it anyway in order to bring some sanity back to gag-order happy courts in this country.
It is this same disrespect for the First Amendment by our courts that causes a slew of bad decisions that renders free speech a nullity under the false guise of protecting individual rights.
[ Note to Patterico: If you are actually "surprised" by the non-ruling that you post about, then you haven't read enough Justin Levine rants here at Calblog regarding the state of free speech from the onslaught of overly broad libel/IP/FEC/priavcy laws. ;-) ]
[Update: I'm a big Eugene Volokh fan, so it always feels good to beat him to the punch on a legal point. Gratifying that he agrees.]
Johnny Cochran took the most important moral issues of the day and trivialized them with simple rhymes.
What should I use for this occasion?
If you are a cad, then when you die, I'll be glad....
Its ain't exactly Byron, but it will do for Johnnie Cochran.
Today's news was foreshadowed on Calblog a few month's back.
Many people (especially in the legal community), feel that Cochran is deserving of respect for his career choices. Many fellow lawyers feel that we should sing the praises of Johnny because he was a zealous advocate working within the system who got results. Many legal bloggers may feel this way too.
I ain't one of them.
I understand having respect for figures who happen to be on the wrong side of history.
Like many, I have a great deal of respect for many of the Southern Generals of the American Civil War.
I even have a great deal of respect for someone like
Erwin Rommel, the formidable German General of World War II who eventually took part in failed coup against Hitler.
But this kind of mixed-emotion admiration does not extend to Cochran who made his living by causing a great deal of emotional torture of the innocent and who felt that the succeeding in America's adversarial legal system was a greater moral imperative than the pursuit of justice.
It is sickening that he has inspired so many to become lawyers. It is no different than a new generation of criminals being inspired by John Gotti.
We called Fred Goldman at the radio station today to see if we wanted to speak out. He declined, saying that he had "nothing good to say" about this man. I understand Mr. Goldman wanting to take the high road, but I can't bring myself to bite my metaphorical keyboard-as-tongue in this instance.
I wonder during his last days if really thought he lived a life he could be proud of. I wonder if he deluded himself into thinking that he made a positive impact in this world? I just want to thank the Almighty that he didn't give me a life like this man's.
I don't know where Cochran is destined for in the afterlife. But if he is in Heaven, then the bar to getting in there is considerably lower than I would have thought.
Enough said.
[Update (not quite enough said after all): For those who think that I should cut Cochran's corpse some slack, perhaps you should reacquaint yourself with what Fred Goldman had to say about him during the O.J. Simpson trial. Be sure to play the audio cuts...]
I started writing this as a comment to this post over at Xrlq but I later decided I figured I ought to post it, after all, I thought it explained the harm Christians (of which I am one) pose to society.
(In response to an article about the Colorado Supreme Court commuting a death penalty sentence because the jurors used...the Bible...dun dun dun.
Then again, so does the Colorado statute they were supposed to be enforcing, so I’m not sure what the harm is in having jurors read it.
You don't understand what the harm is!!! Do I need to explain it to you, my my, how Boalt has failed you (and coming from an only above average Hastings student).
I'll just let the very very very VERY AND DON'T YOU QUESTION THAT Wise Supreme Court answer that in Stone v. Graham
Posting of religious texts on the wall serves no such educational function. If the posted copies of the Ten Commandments are to have any effect at all, it will be to induce the schoolchildren to read, meditate upon, perhaps to venerate and obey, the Commandments.
AHHHHH, and that is the end of society right there, kids honoring their mother and father, not taking the Lord's name in vain, Sundays (or Saturdays) off, and not committing adultery. It's just a slippery slope from there to well, being a decent society, and we can't have that as long as this Supreme Court sits!
It would be such a disaster too if there were more Jews and Christians running around too, I mean what if, gosh, they wanted to like, I don't know, influence government, that would be establishing like a total theocracy right there, and then they might impose such laws like, hmm, don't sue your brother and then like lawyers would have less work and that would really suck, and we might not be able to kill off people who don't leave living wills, and worst of all they might actually try to keep other people from going to hell and that would be very wrong of them don't you know! (A various amalgam of different "sane, moderate, thoughtful people.")
John Bambenek has generated a number of terrific posts on the Terri case, highlighting our out of control court system. I couldn't agree more with his spot-on assessments.
The Republic Dies with Terri Schiavo*
It's an alarmist statement to be sure. However, I think it is one more final nail in the coffin of any sense of democracy we have in this country.
The bad rulings that have no basis in law are being defended under "separation of powers" statements. The courts have ruled and the executive and legislature have no right to intervene. Let's talk about that for a second.
The separation of powers doctrine in our constitution goes along with another similar statement, checks and balances. Separation of powers is not enough to ensure a responsive and democratic republic. There must be oversight by other branches of government. The Senate reviews presidential appointments including those to the judiciary. The President can veto any law by Congress. Congress can limit juristiction of the courts and the President can pardon anyone convicted in the court system.
But here comes the "right to die" crowd trying to put Terri to death saying that no legislature or executive agency can do anything that might even stall the court for one minute because that would violate "separation of powers". The court has given the big "f*ck you" to all other government branches saying "we've made our decision, this woman dies and there is nothing you can do about it".
Well kids, it strikes me that the courts no longer recognize checks and balances as any restriction on what they can do, even in putting someone to death. Can we honestly say that this is a Republic? Where is the democracy of one man in a robe ordering someone to death and allowing no other branches of government, much less a jury of peers, have any say in the matter?
When and if Terri dies, the Republic is buried with her. We're in a juristocracy then.
______________________________
In the following post, Bambenek explains why the courts have circled the wagons around judge Greer:
Judicial Arrogance
… The judiciary is entrenched around Greer because they don't want to give the impression that the legislature or executive branches can touch their decisions. The federal court won't review this case despite the federal law that directs them to do so because they don't want laws passed diminishing their power. […] Separation of powers is invoked to protect their control to rule on anything they want any way they want any time they want. […]
How far does this have to go? How long will we tolerate judges controlling what we say and do? When will we tell judges that we don't want them writing our laws? How many more Terri's will have to die?
Read the whole post; it is right on the money.
______________________________
Finally, check out Bambenek's What's Happening to Terri Schiavo is not Euthanasia ... Indeed, as his post aptly concludes, Terri's death will not amount to 'mercy killing (aka euthanasia), but homicide.
Kevin Drum asks about the virtues of the BBC's The Office airing on NBC in an Americanized version. I agree with him, the show was pretty dull. I hear the second episode is supposed to be much funnier. In any event, while we all languish with dull and uninteresting comedies I strongly suggest Arrested Development on Fox. It has something for everyone that Red and Blue should be able to come together and enjoy. From a school election where the religious vote was underestimated, the federal government drastically misinterpreting pictures of bunkers in Iraq, and of course a messed up family of wealth.
For Kevin, and everyone else, if you want a really entertaining show, one couldn't do better than Arrested Development on Fox Sunday's at 8:30. And, if you've been missed a lot this coming Friday, Arrested will be on Friday's at 9 & 9:30. What a deal! And we all know as bloggers and blog-readers, we'll be home to watch TV then, so...take a look, I bet you'll enjoy...unlike G.O.B. (Job), You won't make a huge mistake.
p.s. Especially if you're a Neilsen family...please at least watch it for me...it really is that funny!
Judge's army stronger than Governor's army
According to blogs for terri, Jeb sent the Florida Dept of Law Enforcement down to seize Terri. As a courtesy, they called ahead and announced their visit.
The local police and the Sheriff's Department said they were not letting anyone in without the judge's permission.
Jeb's Charge backed down to avoid the physical confrontation. Apparently, there was no calculation of who the bystanders would support.
The proposed FEC regulation is here:
Under the proposal, a political ad paid for by a Web site operator and displayed on a different site would be considered a "public communication" subject to campaign finance controls. Internet material would otherwise be excluded from the definition of a public communication for regulatory purposes, Toner said.
News stories, commentaries and editorials appearing on Web sites would not be considered a contribution subject to limits.
The commission also proposed an exemption for individuals using their own computer or one at a public place, such as a library, for Internet activities.
It sought public comment on whether bloggers who are paid by candidates should or could be required to disclose these payments or have a disclaimer.
How to submit public comment seems a tad more obscure. As far as I can tell, comments are not open until April and when they open, they will be here.
Exhibit 8 here. (Not so much a case "exhibit" admittedly, but an interesting commentary worth reading.)
Tech Central Station seems to agree with the issue that I have been sounding the alarm bell over for some time now.
The only thing that the writer is out to lunch on is that he fails to recognize that
the war is already here in terms of libel and copyright law. A further expansion of those already overbroad laws are hardly needed in order to shut bloggers down. His implication that copyright and libel laws are currently well balanced against First Amendment interests strikes me as utterly loony.
The expansion of FEC laws are already in the works. Talk radio was the canary in the blogger birdcage as far as that front is concerned.
I will keep saying it until I am blue in the face - the only viable long-term solution is to scale back the entire scope of libel and copyright laws.
Simply attempting to carve out a "blogging exception" will never work and will easily be bypassed by a legal establishment that looks for loopholes. (Just like carving out a "blog" exception to the Apple case won't work either. Courts will never accept that since it would effectively end their ability to subpoena witnesses altogether. The attack shouldn't be directed at evidentiary "privileges" or arguments as to what constitutes a "journalist", but rather must be waged against "trade secret" laws in general - something that the conservative/blog/legal establishment isn't up for quite frankly.)
Exhibit 7 here.
Exhibit 6 here (with further links to exhibits 1 - 5).
"Listen. Understand. That Terminator is out there. It can't be reasoned with, it can't be bargained with... it doesn't feel pity or remorse or fear... and it absolutely will not stop. Ever. Until you are dead." —from The Terminator
The courts have hunted down Terri Schiavo Schindler with as merciless, inhuman, and unrelenting a purpose as famously exhibited by the fictional Terminator.
Incredibly, the courts seem to have even exceeded the Terminator in terms of lethality. While the Terminator failed in his mission, these gavel-wielding Terminators in black seem certain of success.
Let none of us delude ourselves that once they’ve killed Terri they’re through. No, they’ve only just begun. In their ongoing thirst to impel forward the culture of death, they’ll be back.
Donald Sensing has a pretty good post on the Terri Schindler issue, from the perspective of keeping the feeding tube removed.
I do think members of both debating sides have gotten very ginned up over the whole thing. In any event, I think his post summed up the differences fairly well.
At least to some degree, there seems to be a big divide among people along the lines of how much one trusts the Judicial System, and while some have been suggesting that this is a Rohrsach test about one's own end of life planing, I really think it's more of a Rohrsach about how you view the Judiciary. If one is willing to accept the facts found at the state court one is going to come out at a very different place than if you don't. FWIW, courts of all stripes have been giving us reasons to doubt their honesty though for years.
And I suppose, that's my main reason of concern. The fact that a number of bloggers I respect tend to also come out on the same side further hightens my concerns. It wasn't that long ago that a most people agreed about the bias in the media about Iraq, and now we accept the court's and media's slants on the facts?
There was an article in MSNBC towards the beginning of the whole issue it stated that the Multi-Society Task Force on Persistent Vegetative State says in its 1995 guidelines on the condition Survival beyond 10 years is unusual. The chance for survival of greater than 15 years is approximately 1 in 15,000 to 1 in 75,000. According to those numbers, Terri, if in a PVS, had a .0033-.0066% chance of making it these past 15 years. (Apparently MSNBC realized the questions that article raised as it became much more difficult to find subsequently). In addition, everything I've read suggests that other than the need of a feeding tube, she could survive indefinately. And yet still, many pound on the table and say "the experts say so!" That won't move the ball forward...of course perhaps it's best to just say the ball can't be moved and accept the different perspectives.
So much of your perspective on this issue is going to turn on the facts. Saying that we should just take one judge's word on it, isn't going to fly for a lot of people and that's the way it's going to be.
Also, it's worth noting, that this wouldn't be an issue for a lot of reasons...if. a. Terri had a living will b. Terri could speak for herself now c. The Schindler's and Michael have vastly different perspective on the state of Terri d. The Schindler's feeling shut out of the process, e. The fact that it was 3 interested parties 4 years after the onset of "PVS" who testified as to Terri's wishes, and probably quite a bit more. Look this case is extraordinary for a lot of reasons, and that makes it hard.
Dred Scott was forced to abide by the "rule of law" too, doesn't make it right or just. Dred Scott was properly "found" to be property by the law. Scott's personhood was the issue that was still there, and just 'cause a court said it wasn't so, didn't resolve the issue, it can't.
Similarly, if someone doubts the findings of the court in the Schindler case, it isn't going to persuade them by saying "but the court said so."
One of my more dangerous habits is to compare seemingly disparate situations. Sometimes it produces insights. Sometimes it just muddles things up.
The courts have exerted all control in the Schiavo case. A single judge, Judge Greer, given deference by every appellate avenue has denied her food and water. When the executive branch tried to take custody, through the DCF, Greer issued an order preventing them.
Judge Moore should have exerted the same control over the Ten Commandments. It was different in that case because the appellate courts did not back him. Perhaps he should have made better friends with the appellate judges so they stuck by him. If they had, there would have been no men in uniforms rolling away the blocks of stone.
I have spent the last three days barnstorming the state and meeting with bloggers. What strikes me as we gear up for 2006 is that bloggers want more access to original news sources. We want to talk to the politicians directly, go to the news conferences, and get our material firsthand.
There was blogger credentialing for the conventions and some controversy over who got credentialing and who did not. Bill of the INDC apparently lost his credentialing from the Democratic National Convention when his site did not pass muster. Political State Report generally gets interviews only with those politicians who view the interviewer as a "friendly" ear.
How do we get full access (in which those handing out credentials are not looking to see if you agree with them first) and still make sure that there is some minimum standard? Who sets the minimum standard and how high above "not a terrorist looking to kill the interviewee" should we set it?
About a dozen people stood in front of the hospice to bring water to [Terri], but police arrested most of them, as they have done to others who had similar motives in recent days.
Chris Keys, 45, of Burnet, Texas, held his 2-year-old daughter, Farrah, as he prepared to get arrested with three of his other children. The toddler was taken by her mother so police could handcuff Keys and the other children.
"Jesus said, 'Whatever you do to the least of men, you do for me.' I'm a little nervous but I think this is what God wants me to do," said Keys' daughter, Josie, 14. She and her brothers Cameron, 12, and Gabriel, 10, kneeled on the ground as police handcuffed them.
I wish everyone had the ability to be there, and the moral conviction and courage to submit one's wrists to the cuffs for daring to take a cup of water to a woman dying of dehydration by court order. Were things as they should be, willing wrists would be in infinitely greater supply than available cuffs.
It’s a national tragedy, disgrace, and ill portent for our nation’s future that there resides so much more basic decency, ethics, and sense of humanity in the guileless 14 year old quoted above than our entire judicial system can muster.
Last fall, the MSM inundated us with propaganda supporting Proposition 66, which would have seriously watered down California's tough "three strikes" law and immediately freed thousands, if not tens of thousands of repeat offenders. Now, you can't turn on the TV without hearing about Jessica Lunsford. What they don't tell you is that Lunsford's alleged killer, John Evander Couey, had "only" one sex offense but a long list of other felonies, most of which were residential burglaries that currently count as "strikes" but would not anymore if Prop 66 had passed. Couey's profile seems quite similar to that of Richard Allen Davis, before he kidnapped and murdered Polly Klaas in 1993. As surely as Davis symbolized the need for a three strikes law in 1994, Couey symbolizes the need for one in Florida (and everywhere else) now. If any of Couey's post-1994 felonies had been committed in California, or if Florida had matched our three strikes law with a similar law of their own, Couey would have been locked away a long time ago, and Jessica Lundsford would be alive today.
The next time someone lectures you about our three strikes law supposedly being too harsh, just remember this: while the good people of Florida debate what to do with John Evander Couey and how to prevent the next person like him from doing the same (see petition here), somewhere here in California, some family you've never heard of is enjoying some quality time with their photogenic, nine-year-old daughter, blissfully unaware of the monster who would have kidnapped, raped and murdered her last week if he hadn't been rotting in prison over a series of "nonviolent" offenses he committed many years ago.
Maddy started blogging again. Now she and the BOY, known in our house as not-the-boyfriend, have their own blog where they argue about politics. It is quieter than the phone and easier to monitor. It is starting to look like it could be interesting, too. Drop by and let me know what you think.
Justin writes here and here about the Gary Condit suit that just settled. He notes that Condit was challenging free speech rights and it didn't get enough attention.
Well, he filed it in July 2001. In fact, All we talked about in summer of 2001 was Gary Condit or so it seemed. On the morning of September 11, 2001, I am pretty sure that the news had yet another Condit piece on when I decided I was bored to tears and went to do some work on the computer. Then there was a news alert when the first plane hit.
9/11 was like a death in the family. Not only is there the horror and grief but later you find the bills you were going to pay that day or you remember the diet you were going to start or the friend you meant to call and go shopping with.
Almost 4 years later, we have healed enough to start to pick up all the pieces.
From an unlinked article cited today at National Review’s "The Corner":
WASHINGTON - House Majority Leader Tom DeLay (R-Texas) today condemned the removal of Terri Schiavo's feeding tube and pledged to continue working for a legal or legislative means to save her life.
"Right now, murder is being committed against a defenseless American citizen in Florida," DeLay said. "Terri Schiavo's feeding tube should be immediately replaced, and Congress will continue working to explore ways to save her.
"Mrs. Schiavo's life is not slipping away - it is being violently wrenched from her body in an act of medical terrorism," DeLay said. "Mr. Schiavo's attorney's characterization of the premeditated starvation and dehydration of a helpless woman as 'her dying process' is as disturbing as it is unacceptable. What is happening to her is not compassion - it is homicide. She doesn't need to die, and as long as Terri Schiavo can breathe and her supporters can pray, we will not rest."
I applaud Senator DeLay. His statement speaks my heart.
UPDATE BY JUSTENE: Calblog is part of Blogs for Terri, which anyone interested in this case should read. Not only are there detailed updates but also the background on her medical condition (she has not had the MRI and PET tests that would determine whether she is in a persistent vegetative state) and action items (call your representative in Congress and support their actions to save Terri).
If the FEC makes rules that limit my First Amendment right to express my opinion on core political issues, I will not obey those rules.
There wasn't any doubt that I would sign up for this one, was there?
[Technically though, I'm still just a house-guest at this here blog. So I ultimately take my cues from Justene on this one since I don't want to drag her into legal disputes that she doesn't want to deal with. But I suspect that she is sympathetic to the cause.]
UPDATE BY JUSTENE: I will stand behind you on this one, complete wth all the legal resources I can bring. Now, what would make you feel like more than a houseguest? The name on the sidebar apparently didn't do the trick.
Breaking news that Gary condit might have settled his lawsuit with Dominic Dunne.
[Update]: It's true. Stroy here. Analysis to follow when I have the time.
More details as they develop.
Meanhwile, my extensive blog analysis of the case can be found here.
"I'd like to thank Commissioner Thomas for providing the most cogent argument yet for the abolition of the FEC."
Glenn Reynolds' opening remarks to the Politics Online Conference. Glenn was following the mind numbingly dull remarks by the Chairman of the Federal Elections Commission, Commissioner Scott E. Thomas. —Wizbang
OUCH! As McGehee would say, "That's gonna leave a mark!"
When it comes to the problems with the Establishment Clause cases created by the clueless Supreme Court, nobody does a better analysis than Dahlia Lithwick who goes on a tear against the Justices over the Ten Commandments cases.
Vintage Lithwick -
Imagine a bunch of elderly, black-robed medieval clerics absorbed in a scholarly dialogue on the number of angels (better make that "secular" angels—candy stripers or maybe Hell's Angels) able to dance on the head of a pin. You'd have a good idea of how oral argument went this morning in the pair of cases involving displays of the Ten Commandments on state property.
At one level everything appears scholarly and doctrinal. Until you realize that
the doctrine is a mess, and the justices are so tangled up in old tests, old glosses on old tests, and new glosses on new tests that they don't even know how to talk about the Establishment Clause cases, much less how to resolve them. Perhaps the court is waiting to resolve the chaos until there are as many different Establishment Clause tests (legal scholars currently count about seven) as there are commandments.
...
The court has painted itself into a corner. It's decided too many cases too narrowly and with too much attention to every menorah, pine needle, and reindeer on the scene. There's virtually no way to pull back now and do things differently. Come June, you'll likely know whether the displays in Kentucky and Texas are constitutional. But nothing at all about the ones in Ohio.
I wish there could be two Frays tonight: one for the law professors and scholars who truly believe in the commandments as a purely secular foundational document, and one full of the brave Scalia-like souls willing to admit that this case is about whether or not to welcome religion to the public square, pure and simple. I'd rather party with the second group.
Do your mind a favor - read the whole thing.
Exhibit 7 of the coming legal superstorm against bloggers. (hat-tip: Instapundit)
This case fits the pattern of my original prediction: Not just libel allegations, but copyright claims will be at the forefront of the superstorm.
Exhibit 6 here (with links to more previous exhibits).
I am as concerned about North Korea as any other news issue but my learning curve is pretty steep. I read this part of the interview between Hugh Hewitt and LA Times writer Barbara Demick.
Is Kim Jong Il capable of launching an attack on the South or on
Japan without warning?
- Conventional, no. Asymmetrical, yes.
I realized that I did not know what asymmetrical weapons are and I was sure it wasn't lopsided bullets. So I made some email inquiries. I got three responses. All different. So I am opening it up to Calblog readers. Is there general consensus?
SoCal Lawyer recommends the John & Ken interview of Mayor Hahn today. As far as I can tell, the argument was whether Hahn is the new Gray Davis or Hertzberg is the new Gray Davis. Up until now, I had failed to spot that whole issue.
On the other hand, traffic light synchronization is about to be my new hot button. My evening commute has added 10-20 minutes to its usual "good weather, no accident" length and after careful analysis, I think someone changed the light timing at Glendale and Alvarado and I did not win in the reallotment of time.
Compare the response to conservative students hanging paper on professors' doors to the response to a liberal activist hanging a soldier in effigy.
Now, government regulation of speech must be content neutral (unless we get to the exceptions like hate speech). Private reaction need not be. I can rail about anti-Bush rhetoric but love the anti-[Clinton Gore Kerry] rhetoric. Just because I can, doesn't mean I should. I try to maintain neutrality about free speech rights and express my opinion as opinion. Those that I respect most on either side of the aisle try to do the same. We all fail sometime.
Both Mark and Digger will be following the respective stories.
This article sheds a little more light on the “bloggers as journalists” controversy (not that there is any question in my mind). As Chris Nolan points out:
"Those protections should be available to anyone who reports regardless of what process they go through," said Chris Nolan of San Francisco, who calls what she does at www.chrisnolan.com "standalone journalism."
Also weighing in with some reasonable insight is Paul Grabowicz of the UC Berkeley Graduate School of Journalism:
"Under the First Amendment of the Constitution, I would be hard-pressed to find any distinction between bloggers and journalists," said Paul Grabowicz, director of the New Media program at the UC Berkeley Graduate School of Journalism. But, he added, "There are some potentially really bad things that could come without any distinction. Principal among them is, if there is no distinction, things like shield laws that protect journalists go away, because they apply to everybody else."
Frankly, however, I’m getting a little tired of being accused of wearing pajamas. Right now, I’m wearing a t-shirt and Levi’s. Let’s get our facts straight.
Beginning tomorrow, I will be spending four days out of the week in Carmel-By-The-Sea, hanging doors in a hilltop estate overlooking a private "wildlife preserve". (Yes, there are a lot of doors!)
On the way in to look the job over yesterday, we had to stop at a gatehouse and be issued a daypass. As we got ready to proceed up the road, the woman at the gatehouse called out, "Enjoy the animals!"
We looked at each other, trying to figure out if we had taken a wrong turn and ended up at Safariland.
Eight miles and a couple of hours later, all we had seen was a bluejay. No other "wildlife". As we approached the gatehouse on the way out I told my compadre that if the woman asked how the "animals" were, to tell her that they were delicious. Maybe Clint beat us to them.
An article in yesterday's Santa Rosa, California, Press-Democrat underscores the ever-increasing divide between left and right of the political spectrum: Students are taking their professors to task for allegedly inserting left-wing bias into their lectures:
"I feel wronged," philosophy instructor Michael Aparicio said, as he and several other instructors denounced the posting of red stars and copies of a state law against inculcating communism on 10 office doors.
Two students, Molly McPherson and Danielle Carter, president and secretary, respectively, of the SRJC (Santa Rosa Junior College) Republicans stated that they were trying to make a salient point, i.e., that they pay for objective teaching, something they feel they are not getting from numerous instructors:
"I don't pay to be taught what to think," said McPherson, a political science major.
Incredibly, some professors argued that punishment was in order.
One professor, Brenda Flyswithhawks, stated that she felt the students were deserving of disciplinary action:
Brenda Flyswithhawks, a psychology instructor, went further, calling for disciplinary action against students Molly McPherson and Danielle Carter for allegedly creating "an environment of hostility" with the postings.
While I do not necessarily agree with the method that McPherson and Carter used to call attention to their grievance (bringing it to the Academic Senate first might have been more appropriate), I take great exception to Professor Flyswithhawks' stance that the two deserve to be punished for essentially stating their opinion in a non-violent manner. McPherson and Carter are entitled to their opinion. In their turn, the SRJC professors who were the specific targets of the postings (and, in fact all of the college's faculty and students) should welcome this opportunity as the springboard for what can be a lively and informative lesson in civics, introspection, and self-respect as well as respect for others' opinions. This is not the time to squelch what amounts to the free and open dissemination of information, even if it is information you don't want to hear, i.e., that there might just be a problem with how your lectures are being perceived by some students.
Those calling for the heads of McPherson and Carter should be aware that accusations of faculty bias are on the increase. This article outlines much of what I already know: There is a distinct trend towards anti-Semitism on many campuses that is being fueled by faculty members who take a dim view of Israel, Zionism and America in the wake of the most recent Intifadah and the Al-Qaeda attack on America on 9/11/2001:
What many people outside the academic world do not seem to know is that students' violent outbursts did not come from nowhere. They are only possible in an institution whose leaders—in our case, faculty and administration-- sanction and even encourage such outbursts. At the University of Chicago, anti-Semitism has been made acceptable, even fashionable, by a long process of academic delegitimizing of Israel and Judaism. Outbursts against other religions and ethnicities, including Islam, are not considered acceptable, and they occur much more rarely. Complicit in this delegitimizing are professors, students, administrators, and a host of institutional practices.
Note to SRJC faculty: Now is the time to encourage, not stifle, the voice of dissent embodied by the actions of McPherson and Carter.
Exhibit 6 in the coming legal superstorm against bloggers is getting a lot of attention and comments around the blogosphere. McCullagh even takes a page from this series of posts when he came up with the title of his article. (Probably a coincidence - but just maybe he's a calblog fan. Who knows?)
Of course, the notion of using the FEC to chill blogging was already foreshadowed by the earlier abuse of campaign finance laws against other aspects of the new media.
You can now add campaign finance laws to the arsenal of the coming legal superstorm, in addition to libel, privacy laws, and the various tentacles of intellectual property.
Those who think that there is not much to worry about since actual FEC prosecutions against bloggers are unlikely to succeed miss the point entirely. The goal of the legal establishment is to strangle the blogging baby simply by threatening pajama wearing bloggers with the notion of dragging them into a time consuming and costly legal battle - even if they know the outcome would eventually favor the blogger in court.
Most bloggers are individuals with no corporate or legal resources to back them up. So in the end, it will still be easier just to censor themselves in the face of litigious environment.
I have found that most people still refuse to recognize the broad-based asymmetirical war going on in this country against
the First Amendment. Congress might not pass laws explicitly prohibiting speech about specific topics or viewpoints, but they and the legal establishment have crafted various legal structures that effectively sensor free speech and communications by couching them in notions of "property rights" or ensuring "fair elections". Because the censorship is crafted through these indirect means using philosophical pillars that resonate with various factions within the conservative, liberal and even libertarian wings of politics, it has succeeded in advancing against a population that is only on guard against overbroad "time, place and manner" restrictions - the traditional battleground where First Amendment debates have been waged.
So the censorship battle in this country hasn't waned. It has actually greatly intensified in the past few decades, only people don't realize it since the modes of censorship have been outsourced to private special interests groups who are still able to use governmental coercion (i.e., courts backed up by Congressional mandates) to suppress information that they find troublesome.
No true "freedom of information" constituency has arisen since the usual political groups act as mere special interests when faced with questions of censorship in the new asymmetrical information war. (Republicans will still be happy to use FEC laws against GOP critics. Dems witll use them against Republicans. Conservatives will want to censor Michael Moore and Al Franken over trademark concerns (or at least be silent about such attempts), while Democrats will want to suppress potential dirty laundry using copyright schemes. Meanwhile, libertarians are split on the issue since many of them often can't think outside of the "personal property" box to understand the problems with equating "real property" with "intellectual property".
The end result - the coming legal superstorm against bloggers will continue...even if specific campaign finance laws are eventually rescinded.
[ Previous Exhibits: here (5), here (2-4), and here (1) ]
Last October, I predicted that the Supreme Court would embarrass themselves and insult us by actually making Establishment Clause jurisprudence even more muddy than it already is. (No small feat mind you!)
Court observers of today's oral arguments in the Ten Commandments display cases seem to confirm that my prediction will be proven right.
There is no longer any discernable Establishment Clause jurisprudence. The Supreme Court simply decides such issues on a complete case-by-case basis according to the personal desires and biases of the Justices. The decisions are based neither on law nor Constitutional wording, but rather on a results-oriented process wherein the justices will split factual hairs to an infinite degree in order to reach an outcome that jibes with their own personal comfort level in regards to religion.
Outrageous!
Whether you agree or disagree with Scalia's views on the subject,
it is at least a consistent, self-contained philosophy that can be applied to most any religious display case in such a way that the Court can finally settle the issue as a Constitutional matter and not be distracted by it in the future.
You could also respectfully argue for an opposite "zero tolerance" approach that consistently bars all religious displays and invocations in governmental buildings (including the ones in the Supreme Court itself, the Congressional building, and on the U.S. currency). At least one could plausibly argue that this approach is also intellectually consistent and based in the text of the Constitution (albeit, a textual interpretation that is extremely broad in my view).
The O'Connor/Kennedy-style approach will doom the courts of America to perpetual litigation over any display that vaguely invokes religious themes, as attorneys argue the significance of micro-issues such as: how big the display is, what surrounds it, whether or not it is near a court or a school (and why that should even matter), what the intent of the display creator was, what the subjective feelings of the viewer are, whether or not the display actually invokes themes that are "religious" versus secular, etc.
Is this the future that you actually want over this issue? If so, you're probably a lawyer....
Article in today's Wired that really hits home for me.
One of my first jobs in Hollywood was as a post-production coordinator for the now defunct MTM Enterprises.
I had one assignment on that job that broke my heart - having to completely excise all of the original rock music from every episode of the classic television show WKRP in Cincinnati.
All of the popular rock songs were taken out and replaced with generic upbeat Muzak that could be used with a one-time, flat licensing fee.
Since even the accidental airing of an original, unaltered episode on a single station could trigger a massive lawsuit against the studio, the order came down to
destroy every known copy of the original show except for a single 1" Master video, any 2" tape copies (which cannot be played without the use of rare and defunct 2" video tape players) and the original production elements which were sent into deep storage. (The only reason the 1" Masters were retained is because my boss fortunately figured that it might be important to have at least one copy left for preservation purposes).
Once again, living proof that the current copyright scheme does not encourage the dissemination of works - but actually hinders it instead.
It is simply a mistake to have all rights under copyright schemes to be freely divisible in terms of time, territories and the media that the underlying work is delivered on. The concept of music "residuals" also makes increasingly little sense in today's digital world - serving no purpose other than to repress works from the past and fill-up the coffers of media conglomerates.
The whole concept of "residuals" has been problematic to begin with. If you need a toilet fixed, which economic model makes more sense -
1. Paying a single fee upfront for work rendered by the plumber? or
2. Paying a somewhat smaller fee upfront, and then continuing to pay the plumber $0.25 every time you flush during the entire life of the plumber (and perhaps the life of his children) since you are using the benefits of his work? With more popular plumbers charging a higher "residual rate" per flush perhaps?
I suspect the idea of "toilet residuals" would impact the economic decisions of most people - perhaps forcing them to always "hold things in" except for a fixed number of times in a given week.
If this idea seems silly (and it should seem silly to most rational people), then why is it a good idea to apply it to the use of music? If people insist on equating intellectual property with the elements of real property, then there is no reason not to also equate real property with elements of intellectual property.
Why not go to a single flat-fee system that is paid up front? The lack of residuals might force such fees to increase more than they otherwise would, but it would bring economic certainty and a more efficient and thorough use of creative works that are unencumbered by future calculations of costs and litigation (not to mention the time it takes to research who actually owns the rights to works in question if the works are given to third parties for further distribution).
A more reasonable scheme should be a one-time flat fee to use an already copyrighted work within the body of another newly created work (assuming that the use wouldn't already be covered under a robust scheme of fair-use). In exchange for the one-time fee, the "author" of the first work (i.e., the corporate entity in most cases) relinquishes all rights to prevent distribution of the new work in all territories and mediums for the length of the copyright in the new work.
But once again, copyright law is no longer about providing incentives - it is simply an economic monopoly created for a class of special interests.
Sorry WKRP lovers...one of the best shows in the history of television is doomed to be relegated to the historical-cultural black hole of intellectual property laws.
Part IV (with links to Parts 1-3)
I have spent much of the last week in a courtroom or preparing to be in a courtroon. Every time I tried to pull info on the Lebanon story, all I could access quickly was Michael Jackson. Argh. So, this morning, it was the blogs for news.
As I was trying to put into words my reaction to what is going on, I found that Hugh Hewitt says it better. (This comes as a surprise because usually he says it better before I have even thought it. Rarely am I am thinking of how to say it when I get to him.)
As with the Poles, so with the Lebanese --they are putting their lives on the line to face down their oppressors. But American policy stands with them and encourages them, and pressures the dictators not to strike back, and threatens the tyrants if they do. The refusal to recognize that American policy does indeed have consequences is yet another exhibit in the huge array of arguments as to why Democrats cannot be trusted to run the nation's foreign policy ---they don't think it matters.
I have liked Bush for a long time but he has done more than even I expected. I have often wondered if Reagan got lucky with the Soviet Union what with Lech Walesa, Gorbachev, and Pope John Paul II all around at the same time. This administration's string of changes in the Middle East with rhetoric and harsh action in Afghanistan and Iraq is producing results that convince me.
Another 4 years of Bush and 4 years of a true successor in ideology and I think we will see a very different world.
Cheap aside but I have to say it because I think it several times a day: Condi Rice looks like a rock star. She has just taken charge of that position.