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Enslaving Speech and Thought

“[...] I suggested in 'Repressive Tolerance' the practice of discriminating tolerance in an inverse direction, as a means of shifting the balance between Right and Left by restraining the liberty of the Right, thus counteracting the pervasive inequality of freedom (unequal opportunity of access to the means of democratic persuasion) and strengthening the oppressed against the oppressed [sic, should be "oppressors" -AMPP Ed.]. Tolerance would be restricted with respect to movements of a demonstrably aggressive or destructive character (destructive of the prospects for peace, justice, and freedom for all). Such discrimination would also be applied to movements opposing the extension of social legislation to the poor, weak, disabled. [...]”
-Herbert Marcuse, in a
1968 postcript to his 1965 essay "Repressive Tolerance"

Hear John McCain say “talking about campaign finance reform....I know that money corrupts....I would rather have a clean government than one where quote First Amendment rights are being respected, that has become corrupt. If I had my choice, I'd rather have the clean government.” on the Don Imus Show (MSNBC), 2006-Apr-21, Portsmouth, NH, video courtesy of

Read Lawrence Lessig's new (2004-Mar-26) book: Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity (PDF download). Lessig's bio (from opens: ``Lawrence Lessig is a Professor of Law at Stanford Law School and founder of the school's Center for Internet and Society. Prior to joining the Stanford faculty, he was the Berkman Professor of Law at Harvard Law School. Lessig was also a fellow at the Wissenschaftskolleg zu Berlin, and a Professor at the University of Chicago Law School. He clerked for Judge Richard Posner on the 7th Circuit Court of Appeals and Justice Antonin Scalia on the United States Supreme Court.''

Also read Defending the First Amendment from Antidiscrimination Laws, adapted from the book You Can't Say That!: The Growing Threat to Civil Liberties from Antidiscrimination Laws (Cato 2003), by David E. Bernstein.

Editor's note on free speech and the Internet: The Internet is like New York City, or in fact all the cities and towns and secluded cult and militia compounds in the world - plus, of course, all the libraries - all just milliseconds away. Parents of young children, indeed all adults entrusted with them, need to respect the Internet the way they respect the real world it reflects. It is their profound responsibility to do so. The state pursues lawbreakers whether the laws are broken on city streets or on the Internet, but it is neither a responsibility, nor indeed a permissible role, for the state to make city streets or the Internet safe for young children to explore and experience, unaccompanied and unguided by responsible, attentive adults. Children must not be left to fend for themselves in the marketplace of ideas. The Internet is not like a video game. When a young child sits in front of a networked computer, there should always be either a non-bypassable access control system gating network access (so that the child can only contact and be contacted by people approved by responsible adults, and web sites audited and approved by responsible adults), or a responsible adult at his side.

com.mis.sar \'ka:m-*\ n [Russ komissar, fr. G kommissar, fr. ML
   commissarius] 1a: a Communist party official assigned to a military unit to 
   teach party principles and policies and to ensure party loyalty 1b: one 
   resembling a political commissar in attempting to control public opinion or 
   its expression 2: the head of a government department in the U.S.S.R. until 

from the Wall Street Journal, 2017-Dec-18, by Mark Epstein:

The Google-Facebook Duopoly Threatens Diversity of Thought
A political website pulled an article after Google’s AdSense team threatened to withdraw advertising.

‘A monopoly on the means of communication,” Robert Shea and Robert Anton Wilson wrote in “Leviathan,” their 1975 novel, “may define a ruling elite more precisely than the celebrated Marxian formula of ‘monopoly in the means of production.’ ” Bear that in mind when you hear this next statistic: In 2017 Google and Facebook have accounted for 84% of all digital advertising outside China, including 96% of its growth, according to an industry forecast this month from Zenith, Magna and GroupM.

Those figures should create more than the typical economic concerns about market concentration. Specifically, the tech duopoly’s dominance threatens the marketplace of ideas. Beyond advertising, Google and Facebook control how millions of people find their news. Americans are far likelier, collectively, to encounter articles via search engines and social media than on a news site’s home page.

Google is used for nearly 90% of online searches in the U.S. A Pew survey this summer found that the four most popular social-media sites for getting news are Facebook, YouTube (owned by Google), Twitter (which has a Google partnership), and Instagram (owned by Facebook). No more than 5% of Americans use another social-media platform to get news.

In a November speech, Ajit Pai, chairman of the Federal Communications Commission, argued that “edge providers” like social-media websites and search engines “routinely block or discriminate against content they don’t like.” Mr. Pai cited YouTube’s decision to place age restrictions on and pull ads from videos by conservative commentator Dennis Prager’s Prager University, including a video by Alan Dershowitz on Israel’s founding.

He also pointed to Twitter’s suspension of a pro-life campaign ad from Rep. Marsha Blackburn, an action that would have been illegal if done by a TV or radio station. Twitter has refused sponsored tweets from immigration opponents, saying its hate-speech policy is triggered by messages such as “the fiscal cost created by illegal immigrants of $746.3b compares to total a cost of deportation of $124.1b.”

Google, Facebook and Twitter place stricter content policies on advertisers than general users. There are legitimate reasons for this. The tech companies are sensitive to accusations that they not only profit from controversial content but also fund it by giving its creator a slice of the ad revenue.

When virtually all online advertising goes through two companies, however, they have the power to harm websites arbitrarily. One political blog that posted an article trying to distinguish the “alt-right” from white nationalism received a warning email from Google’s AdSense team. An editor took the article down, explaining to readers that the blog “needs revenue from the Google ad platform in order to survive.” You needn’t agree with the editorial decision to publish the article to be troubled by Google’s vetoing it.

In his 2014 book “Zero to One,” Peter Thiel notes that because Google “doesn’t have to worry about competing with anyone, it has wider latitude to care about . . . its impact on the wider world.” If executives at a Silicon Valley monopoly believe that censoring certain content will push the world in a positive direction, market pressures cannot sufficiently restrain them.

Journalists also argue that tech companies are pushing media toward the lowest common denominator. Social media rewards clickbait—sensational headlines that confirm readers’ biases. Google and Facebook’s advertising duopoly bleeds traditional publishers of the revenue needed to produce high-quality news. At the same time, Google’s search engine is biased against subscription content, depleting another source of funding.

The bottom line is that Google’s and Facebook’s advertising policies and algorithms make it less profitable to produce high-quality journalism from any perspective. Their duopoly also gives tech executives the power to defund and block content they personally object to without taking a major hit to the bottom line.

While these two companies have faced little antitrust scrutiny, the Justice Department has filed suit to block AT&T’s purchase of Time Warner. But look how Randall Stephenson, AT&T’s chief executive, explained this summer one hope for the merger: “Once we complete our acquisition of Time Warner Inc., we believe there is an opportunity to build an automated advertising platform that can do for premium video and TV advertising what the search and social media companies have done for digital advertising.” Now the Justice Department’s lawsuit may perversely entrench the Google and Facebook duopoly.

In October 2016, Donald Trump’s economic adviser Peter Navarro advocated breaking up “the new media conglomerate oligopolies that have gained enormous control over our information, intrude into our personal lives, and in this election, are attempting to unduly influence America’s political process.” Mr. Navarro chose the wrong target. Antitrust authorities ought to be concerned about the undue influence of Google and Facebook.

Mr. Epstein is an antitrust attorney and freelance writer.

from the Wall Street Journal, 2018-Jan-15, by Allysia Finley:

OK Google, You’ve Been Served
The company may find its political monoculture hard to defend under California labor law.

Does Google discriminate against white, male and conservative employees? Two former Google workers allege as much in a class-action lawsuit they filed against the company last week. While they may have difficulty prevailing in court, they make a strong case that Google aggressively promotes a political agenda and is far from a neutral broker of information.

Former Google engineers James Damore and David Gudeman claim they were fired for failing to conform to the company’s progressive culture. Last summer Mr. Damore published what was initially an internal cri de coeur against Google’s “ideological echo chamber” that criticized its intolerance for alternative views and suggested biology may make men better suited, on average, for tech jobs. Many Google employees demanded Mr. Damore’s termination and a purge of those who shared his views. Senior managers allegedly told Mr. Damore that he was fired for “perpetuating gender stereotypes.”

Mr. Gudeman was fired after he questioned a Muslim co-worker who claimed he was being targeted by the federal government because of his religion. According to the lawsuit, Google claimed Mr. Gudeman had accused the colleague of terrorism.

Messrs. Damore and Gudeman claim to be victims of sex, race and political discrimination. Discrimination in employment on the basis of race, sex, national origin and religion are prohibited by Title VII of the Civil Rights Act of 1964. But federal law doesn’t forbid employers to discriminate based on their political or cultural views. So the plaintiffs are suing under California labor law, which prohibits employers from “forbidding or preventing employees from engaging or participating in politics.” Employers also cannot discharge or threaten to terminate employees to coerce them into political action.

To win certification as a class action, the plaintiffs must demonstrate that numerous Google employees suffered a common injury. To win their case, they’ll have to show that Google itself adopted or enforced a policy that forbade employees from engaging in politics and led to systematic discrimination against white, conservative men—or alternatively that Google fired Messrs. Damore and Gudeman to force employees to adopt progressive views.

Google’s likely defense will be that it pledges to “create a respectful culture that is free of harassment, intimidation, or unlawful discrimination of any kind,” and that the firing of Messrs. Damore and Gudeman was in furtherance of this policy. But the plaintiffs make a good case that Google has selectively and unfairly enforced its policy, and in doing so has promoted a hostile workplace.

Mr. Damore alleges that after he and some co-workers complained about Google’s ideological conformity and diversity training—“bias busting” seminars on “white male privilege” and the like—they were shunned, denounced and punished. One manager sent out a mass email describing Mr. Damore’s memo as “repulsive and intellectually dishonest” and allegedly “promoted posts that advocated for physical violence” against him. A co-worker emailed Mr. Damore: “You’re a misogynist and a terrible person. I will keep hounding you until one of us is fired. [Expletive] you.” Mr. Damore says he forwarded the email to the human-resources department and was told to work from home. He was fired soon after. Another manager allegedly threatened to ask Google’s employee-relations department to sift through old posts on Google’s “conservatives@” mailing list for code-of-conduct violations.

The plaintiffs also include nearly 100 pages of employee postings on Google’s chat system that disparage conservatives as well as white men. Several employees circulated a meme asserting that “ ‘America First’ is a slogan for American Nazis” and “you should absolutely punch Nazis.”

Others posted: “If you want to increase diversity at Google, fire all the bigoted white men” and “by being a white male you are in a privileged class that is actively harmful to others.” One described Mr. Damore and his supporters as “a cancer within our culture.” Many demonstrated an animus toward Christianity—for instance: “People in Indiana are bigots, but they don’t call it bigotry. What do they call it? Religious freedom.”

Managers allegedly maintained “blacklists” of conservatives who were blocked from working on their teams, which thwarted their advancement. One manager who blacklisted an intern because he refused to alter his political views allegedly wrote to a fellow manager: “I don’t think he was aware that there were real consequences for his actions. That might have given him the right motivation to change his beliefs or at least to keep his mouth shut.”

According to the lawsuit, Google “relies on crowdsourced harassment and ‘pecking’ to enforce social norms (including politics) that it feels it cannot write directly into its policies.” It’s as if the company were using machine learning to program its employees’ politics.

Even if Google prevails in the lawsuit, it may consider whether this is any way to run a business. Ideological uniformity can undermine the ability to connect with disparate consumers and generate innovative ideas. That’s especially true for a company like Google, whose founding mission was to make information “universally accessibly and useful.” People with divergent political views may have different ideas about what information is useful.

Silencing alternative views and sheltering employees from uncomfortable ideas, as many colleges do, will surely undermine Google’s own ability to attract creative thinkers. Employee intolerance might have also contributed to its subsidiary YouTube’s censorship in 2016 of conservative PragerU videos. And the Daily Caller reported last week that the search engine was providing selective and inaccurate “fact checks” for conservative, but not liberal, sites.

Google’s Orwellian conceptions of inclusivity and diversity also ought to raise questions about its commitment to an “open internet.” How exactly does it define open?

Ms. Finley is a member of the Journal’s editorial board.

from the Wall Street Journal, 2018-Feb-5, by Alan M. Dershowitz:

Poland Seeks to Censor History
Laws that impose an official view—even those banning Holocaust denial—are pernicious.

Poland’s nationalist government is in the process of enacting legislation to criminalize speech that “claims, publicly and contrary to the facts, that the Polish Nation or the Republic of Poland is responsible or co-responsible for Nazi crimes committed by the Third Reich.” The proposal would exempt “artistic or academic activity” but would prohibit ordinary citizens and politicians from accusing Poland of complicity in the murder of three million Polish Jews. Both the Israeli and U.S. governments have denounced the proposal, which restricts free speech and falsifies history.

True, the Germans built Auschwitz and other death camps on Polish soil. But the Germans could not have murdered the Polish Jews, and millions of other Europeans imported to death camps in Poland, without the active assistance of many Poles in identifying and rounding up victims. This complicity was incited by generations of anti-Semitic church sermons. Poles also murdered Jews during and after the German occupation—including in the Jedwabne pogrom in July 1941 and in Kielce in July 1946.

On the positive side, there were Polish Catholics, including priests and nuns, who risked their lives protecting Jews. There were many other righteous Polish individuals as well. Jan Karski risked his life by dressing as a death-camp guard so he could document the horrors, and the Ulma family was murdered for harboring Jews.

Poland’s role in the Holocaust is a mixed picture of complicity, heroism, complacency and willful blindness. It is up to historians to sort out the specifics and moralists to apportion blame. But it is not the role of law to stifle debate and to threaten those who question the current self-serving Polish government narrative.

Nor does history need laws to confirm that the Holocaust occurred. Yet several European governments have made Holocaust denial a crime. Denying the Armenian genocide is a crime in France; acknowledging it is a crime in Turkey. Israel’s Knesset is responding the Polish effort by weighing its own legislation that would make it a crime to deny or minimize the role of collaborators in the Holocaust. Both the proposed Polish and Israeli laws would have extraterritorial reach, so virtually any discussion or debate about this issue would risk prosecution and imprisonment in one of those countries. Such is the consequence of governmental efforts—no matter how well-intentioned—to criminalize debates about history.

It is understandable why people who believe there is only one side to a debate would seek to censor what they regard as malicious lies about deeply emotional issues such as the Holocaust and the Armenian genocide. It is also understandable that some American students and faculty, particularly on the hard left, seek to stifle “hate speech,” “micro-aggressions” and comments or ideas that make them feel “unsafe.”

But censorship comes around like a boomerang. To some Palestinians on campuses, Zionist speech creates an unsafe space, while to some Jewish students, anti-Israel speech offends and frightens. To some women, antiabortion advocacy is demeaning, while to some Christians, pro-abortion advocacy is offensive. It is not the role of governments or universities to take sides in these conflicts. It is very much their role to encourage civil discourse on these and other controversial issues that divide people emotionally and intellectually. It is also the role of these institutions to promote tolerance of conflicting views and to tell citizens and students that, in a democracy, there are no safe spaces from ideas.

So let the competing narratives regarding the role of Poland, the Polish Catholic Church and individual Poles continue to be debated without the heavy hand of governmental censorship and criminal punishment. Trust the open marketplace of ideas, rather than the self-serving biases of bureaucrats, to arrive at the complex truth about this terrible period in Polish and Jewish history.

Mr. Dershowitz is a professor emeritus at Harvard Law School and author of “Trumped Up! How Criminalizing Politics Is Dangerous to Democracy” (CreateSpace, 2017).

from the Wall Street Journal, 2018-Feb-1, by Lori Lowenthal Marcus:

The IRS Campaign Against Israel—and Us
It took seven years for Z Street to learn the truth about why our tax-exempt status was delayed.

The first IRS viewpoint discrimination case to be filed, Z Street v. IRS, has been settled, with disturbing revelations about how the Internal Revenue Service treated pro-Israel organizations applying for tax-exempt status.

I founded Z Street in 2009 to educate Americans about the Middle East and Israel’s defense against terror. We applied for tax-exempt status under Section 501(c)(3) of the tax code in December 2009—a process that usually takes three to six months.

Instead, the application languished. In late July 2010, an IRS agent truthfully responded to our lawyer’s query about why processing was taking so long: Z Street’s application was getting special scrutiny, the agent said, because it was related to Israel. Some applications for tax-exempt status were being sent to a special office in Washington for review of whether the applicants’ policy positions conflicted with those of the Obama administration.

So in August 2010 we sued the IRS for violating Z Street’s constitutional rights, including the First Amendment right to be free from viewpoint discrimination—government treatment that differs depending on one’s political position.

Now we know the truth, and it’s exactly as bad as we thought. IRS documents—those they didn’t “lose” or otherwise fail to produce—reveal the following:

• Our application was flagged because Z Street’s mission related to Israel, a country with terrorism. Therefore, an IRS manager in our case said in sworn testimony, the IRS needed to investigate whether Z Street was funding terror.

• Some applications for tax-exempt status were indeed being sent to IRS headquarters in Washington for more intense scrutiny. They were selected because of the applicants’ viewpoint.

• In August 2010, three other Jewish organizations applying for tax-exempt status were asked by the IRS to “explain their religious beliefs about the Land of Israel.”

Our own investigation disclosed that between 2009 and 2016, while Z Street’s application was stalled, the IRS needed no special scrutiny to grant numerous applications for tax-exempt status that explicitly proclaimed donations would be spent in Gaza—a territory formally under the jurisdiction of Hamas, which the U.S. State Department designates as a terror organization.

While claiming to be investigating Z Street’s funding of terror, the IRS never asked how or where Z Street spent its money. The IRS ultimately granted Z Street’s application, in October 2016, without asking anything about terror, or money, or anything else it hadn’t known in 2010.

As the IRS knew within six weeks of our case being filed, Z Street was sent for special scrutiny by an IRS employee using an outdated list of countries affected by terror. The new list didn’t include Israel. The IRS didn’t resume processing our application after it discovered this error, and it didn’t disclose the error for six years. Because we sued, the IRS froze Z Street’s application. It stayed on ice until August 2016, when a court held the IRS couldn’t get our case thrown out until it processed our application. Two months later we got our exemption.

The “terror” error turns out to have been a pretext. Within weeks of President Obama’s inauguration, IRS and State Department officials began considering whether they could deny or revoke tax-exempt status for organizations that provided material support to Jews living across the Green Line—the nonborder that delineates pre-1967 Israel from the territories Israel acquired in the Six Day War. The theory was that a Jewish presence in those areas is inconsistent with U.S. policy. The IRS drew up lists of such organizations based on information from anti-Israel websites such as Electronic Intifada and MondoWeiss.

The New York Times and the Washington Post ran articles that advanced the policy espoused by the Obama administration and its nonprofit ally, J Street. Unnamed “senior State Department officials” were quoted as saying that Jewish activity over the Green Line isn’t “helpful” to peace efforts.

While no formal policy was released barring U.S. tax-exempt entities from supporting Jewish activity over the Green Line, Obama IRS officials tried three times between 2009 and 2012 to create such a policy, and IRS employees made sure the effort wasn’t documented. One emailed her supervisor saying that she would answer his questions about IRS policy relating to Israeli settlements only orally. “Not doing email on this,” she explained.

Even if the IRS could legitimately institute such a policy, it should not have applied to Z Street. We believe Jews should be allowed to live beyond the Green Line, but we have never spent a penny outside the U.S.

To learn the truth, we fought in the courts for seven lonely years—defeating IRS arguments that it didn’t have to obey the First Amendment, that it was immune from the suit, and that it wasn’t obliged to produce in discovery any documents revealing why its employees did what they did. During the seven years Z Street’s application was frozen, it couldn’t raise funds. If my husband and I weren’t lawyers, able to pursue justice without getting paid, there’s no way we could have succeeded.

When Z Street’s creation was announced, thousands sought to join. Then the IRS attempted to kill us. No lawsuit can remedy that assault, as the IRS knew. The settlement gives us the truth, but we can’t get back our seven years.

Ms. Marcus is the founder of Z Street.

from the Wall Street Journal, 2017-Apr-21, by Heather Mac Donald:

Those ‘Snowflakes’ Have Chilling Effects Even Beyond the Campus
Academic intolerance is the product of ideological aggression, not a psychological disorder.

Student thuggery against non-leftist viewpoints is in the news again. Agitators at Claremont McKenna College, Middlebury College, and the University of California’s Berkeley and Los Angeles campuses have used threats, brute force and sometimes criminal violence over the past two months in efforts to prevent Milo Yiannopoulos, Charles Murray, Ann Coulter and me from speaking. As commencement season approaches, expect “traumatized” students to try to disinvite any remotely conservative speaker, an effort already under way at Notre Dame with regard to Vice President Mike Pence.

This soft totalitarianism is routinely misdiagnosed as primarily a psychological disorder. Young “snowflakes,” the thinking goes, have been overprotected by helicopter parents, and now are unprepared for the trivial conflicts of ordinary life.

“The Coddling of the American Mind,” a 2015 article in the Atlantic, was the most influential treatment of the psychological explanation. The movement to penalize certain ideas is “largely about emotional well-being,” argued Greg Lukianoff of the Foundation for Individual Rights in Education and Jonathan Haidt of New York University. The authors took activists’ claims of psychological injury at face value and proposed that freshmen orientations teach students cognitive behavioral therapy so as to preserve their mental health in the face of differing opinions.

But if risk-averse child-rearing is the source of the problem, why aren’t heterosexual white male students demanding “safe spaces”? They had the same kind of parents as the outraged young women who claim to be under lethal assault from the patriarchy. And they are the targets of a pervasive discourse that portrays them as the root of all evil. Unlike any other group on a college campus, they are stigmatized with impunity, blamed for everything from “rape culture” to racial oppression.

Campus intolerance is at root not a psychological phenomenon but an ideological one. At its center is a worldview that sees Western culture as endemically racist and sexist. The overriding goal of the educational establishment is to teach young people within the ever-growing list of official victim classifications to view themselves as existentially oppressed. One outcome of that teaching is the forceful silencing of contrarian speech.

At UC Berkeley, the Division of Equity and Inclusion has hung banners throughout campus reminding students of their place within the ruthlessly competitive hierarchy of victimhood. One depicts a black woman and a Hispanic man urging fellow students to “create an environment where people other than yourself can exist.” That’s not meant as hyperbole. Students have been led to believe they are at personal risk from circumambient bigotry. After the February riots at Berkeley against Mr. Yiannopoulos, a columnist in the student newspaper justified his participation in the anarchy: “I can only fight tooth and nail for the right to exist.” Another opined that physical attacks against supporters of Mr. Yiannopoulos and President Trump were “not acts of violence. They were acts of self-defense.”

Such maudlin pleas for self-preservation are typical. An editorial in the Wellesley College student newspaper last week defended “shutting down rhetoric that undermines the existence and rights of others.”

Offending “rhetoric” frequently includes the greatest works of Western civilization. In November 2015, a Columbia sophomore announced on Facebook that his “health and life” were threatened by a Core Curriculum course taught by a white professor. The comment thread exploded with sympathetic rage: “The majority of why?te [sic] students taking [Contemporary Civilization] and on this campus never have to be consistently aware of their identities as white ppl while sitting in CC reading racist, patriarchal texts taught by white professors who most likely are unaware of the various forms of impact that CC texts have on people of color.”

Another sophomore fulminated: “Many of these texts INSPIRED THE RACISM THAT I’M FORCED TO LIVE WITH DAILY, and to expect, or even suggest, that that doesn’t matter, is [obscenity] belittling, insulting, and WAY OUT OF [obscenity] LINE.” Those “racist” texts include works by Plato, Aristotle, Kant, Rousseau and Mill.

Many observers dismiss such ignorant tantrums as a phase that will end once the “snowflakes” encounter the real world. But the graduates of the academic victimology complex are remaking the world in their image. The assumption of inevitable discrimination against women and minorities plagues every nonacademic institution today, resulting in hiring and promotion based on sex and race at the expense of merit.

Seemingly effete academic concepts enter the mainstream at an ever-quickening pace. A December 2016 report on policing from the federal Office of Community Oriented Policing Services includes a section on “intersectionality”—the campus-spawned notion that individuals who can check off multiple victim boxes experience exponentially higher and more complex levels of life-threatening oppression than lower-status single-category victims.

Faculty and campus administrators must start defending the Enlightenment legacy of reason and civil debate. But even if dissenting thought were welcome on college campuses, the ideology of victimhood would still wreak havoc on American society and civil harmony. The silencing of speech is a massive problem, but it is a symptom of an even more profound distortion of reality.

Ms. Mac Donald is a fellow at the Manhattan Institute and author of “The War on Cops” (Encounter, 2016).

from the Wall Street Journal, 2017-Oct-2, by Heather Heying:

First, They Came for the Biologists
The postmodernist left on campus is intolerant not only of opposing views, but of science itself.

Who would have guessed that when America cleaved, the left would get the National Football League and the right would get uncontested custody of science?

The revolution on college campuses, which seeks to eradicate individuals and ideas that are considered unsavory, constitutes a hostile takeover by fringe elements on the extreme left. Last spring at the Evergreen State College, where I was a professor for 15 years, the revolution was televised—proudly and intentionally—by the radicals. Opinions not fitting with the currently accepted dogma—that all white people are racist, that questioning policy changes aimed at achieving “equity” is itself an act of white supremacy—would not be tolerated, and those who disagreed were shouted down, hunted, assaulted, even battered. Similar eruptions have happened all over the country.

What may not be obvious from outside academia is that this revolution is an attack on Enlightenment values: reason, inquiry and dissent. Extremists on the left are going after science. Why? Because science seeks truth, and truth isn’t always convenient.

The left has long pointed to deniers of climate change and evolution to demonstrate that over here, science is a core value. But increasingly, that’s patently not true.

The battle on our campuses—and ever more, in K-12 schools, in cubicles and in meetings, and on the streets—is being framed as a battle for equity, but that’s a false front. True, there are real grievances. Gaps between populations exist, for historical and modern reasons that are neither honorable nor acceptable, and they must be addressed. But what is going on at institutions across the country is—yes—a culture war between science and postmodernism. The extreme left has embraced a facile fiction.

Postmodernism, and specifically its offspring, critical race theory, have abandoned rigor and replaced it with “lived experience” as the primary source of knowledge. Little credence is given to the idea of objective reality. Science has long understood that observation can never be perfectly objective, but it also provides the ultimate tool kit with which to distinguish signal from noise—and from bias. Scientists generate complete lists of alternative hypotheses, with testable predictions, and we try to falsify our own cherished ideas.

Science is imperfect: It is slow and methodical, and it makes errors. But it does work. We have microchips, airplanes and streetlights to show for it.

In a meeting with administrators at Evergreen last May, protesters called, on camera, for college president George Bridges to target STEM faculty in particular for “antibias” training, on the theory that scientists are particularly prone to racism. That’s obvious to them because scientists persist in using terms like “genetic” and “phenotype” when discussing humans. Mr. Bridges offers: “[What] we are working towards is, bring ’em in, train ’em, and if they don’t get it, sanction them.”

Despite the benevolent-sounding label, the equity movement is a highly virulent social pathogen, an autoimmune disease of the academy. Diversity offices, the very places that were supposed to address bigotry and harassment, have been weaponized and repurposed to catch and cull all who disagree. And the attack on STEM is no accident. Once scientists are silenced, narratives can be fully unhooked from any expectation that they be put to the test of evidence. Last month, Evergreen made it clear that they wanted two of its scientists gone—my husband, Bret Weinstein, and me, despite our stellar reputations with the students they claimed to be protecting. First, they came for the biologists . . .

Science has sometimes been used to rationalize both atrocity and inaction in its face. But conflating science with its abuse has become a favorite trope of extremists on the left. It’s a cheap rhetorical trick, and not, dare I say, very logical.

Science creates space for the free exchange of ideas, for discovery, for progress. What has postmodernism done for you lately?

Ms. Heying is a former biology professor at Evergreen State College in Olympia, Wash.

from the Wall Street Journal, 2017-Sep-27, by Robert Shibley:

Keep Students Safe From the Heckler’s Veto
Colleges encourage more violence when they appease mobs.

Jeff Sessions has joined the debate over censorship on campus. At Georgetown Tuesday, the attorney general criticized institutions that capitulate to the heckler’s veto—when “administrators discourage or prohibit speech if there is even a threat that it will be met with protest.”

It’s been a banner year for hecklers, including violent ones. The University of North Carolina says that it “is not willing to risk anyone’s safety” to allow white nationalist Richard Spencer to speak on campus. He’s banned at Michigan State “due to significant concerns about public safety,” and at Texas A&M, though he spoke there last December.

At Evergreen State College in Olympia, Wash., professors had to hold classes off campus in a park while police politely asked radical students to stop arming themselves with bats and “patrolling” campus.

Social scientist Charles Murray was literally chased out of Middlebury College in Vermont, then disinvited from Assumption College in Massachusetts. Conservative provocateur Milo Yiannopoulos still hasn’t spoken at the University of California, Berkeley, where Antifa extremists rioted to stop his appearance in February. Neither has Ann Coulter, leading her would-be student hosts to sue.

A recent Associated Press report claims colleges are “grappling with how to balance students’ physical safety with free speech.” But the idea that free speech is in opposition with safety is nonsensical.

You are not safe if you are under threat of physical attack for expressing or listening to political views. Debate and dissent are normal parts of living in a free and diverse society, and that should be especially true at an educational institution. Silencing dissenters in the name of physical safety simply punishes the victims of wrongful, sometimes criminal behavior.

In no other situation do colleges simply throw up their hands and say that student safety is an unreachable goal. Campuses have vast bureaucracies dedicated to combating sexual assault, eliminating discriminatory harassment, and discouraging alcohol abuse. Emergency phones, designated drivers and safe-escort programs are thick on the ground. Colleges even attend to students’ “emotional safety” by setting up “bias response” teams that “intervene” when somebody says something hurtful.

Yet colleges have allowed the heckler’s veto to flourish, which only encourages more violence. Under its new chancellor, Berkeley reportedly spent up to $600,000 to ensure that commentator Ben Shapiro was able to speak on campus two weeks ago. Critics moan about the expense, dismissing such speeches as stunts unworthy of academia and not worth the price. But the cost of bowing to mob rule is far higher.

Making the statement that violence will not be allowed to substitute for debate will save far more in the long run—and, more important, teach the coming generation about how a free society resolves its differences.

Mr. Shibley is executive director of the Foundation for Individual Rights in Education.

from the Wall Street Journal, 2017-Oct-1, by Jay Weiser:

Campus Speech and Anti-Klan Laws
Have you been censored or shouted down? You may have legal recourse. Here’s a handy guide.

A brawl broke out in an “Empathy Tent” at the University of California, Berkeley last week, marking the official start of college riot season. Last week Attorney General Jeff Sessions braved protesters at Georgetown Law Center, where he promised to intervene in campus free-speech cases and urged students and universities to “stand up against those who would silence free expression by violence or other means.” The targets of suppression have ways to hold colleges and rioters to account using civil-rights statutes and common-law torts.

Administrators often “coddle” and “encourage” censorship, Mr. Sessions observed. That’s nothing new. After the Civil War, white students at what is now Washington and Lee University in Virginia attacked blacks associated with the Freedmen’s Bureau. The college president, Robert E. Lee, offered pieties and looked the other way. In response to similar incidents, Congress safeguarded civil rights with legislation known as anti-Ku Klux Klan acts.

Public universities are subject to the full sweep of the anti-KKK laws, as well as more recent civil-rights statutes. At San Francisco State University, Jewish students have filed suit under Section 1983 of the federal civil-rights law, alleging disruption of their events violates the First Amendment and the Equal Protection Clause of the 14th Amendment. The First Amendment requires public universities to treat speech neutrally, regardless of the message. Administrators may not tell police to stand down in the face of a “heckler’s veto.”

In 2013 at New York’s University at Buffalo, police let counterprotesters shut down a pro-life demonstration. This June the university settled, paying the plaintiffs’ attorney fees and promising to refrain from viewpoint discrimination in the future.

But universities are responsible only for taking reasonable precautions. A target of last semester’s antispeech riots, Bret Weinstein, was mobbed and hounded out of Evergreen State College after refusing to comply with a college-sponsored “Day of Absence” in which white people were “asked” to stay off campus. While Mr. Weinstein claimed that Evergreen State violated his right of free speech, the college could have argued that it acted reasonably because violent antispeech protests were still novel and Mr. Weinstein was physically threatened in class only once. He and his wife, also an Evergreen professor, settled their claim for $500,000 and an agreement to resign. Public universities now have notice of their duty to provide security, which UC Berkeley and the University of Utah just fulfilled for conservative writer Ben Shapiro.

Private universities have no First Amendment obligation to provide a forum for speech. But many riots purport to attack white “supremacy” or “privilege,” and if private universities act with deliberate indifference to racially motivated attacks, they may be liable to students or speakers. Colleges are subject to antidiscrimination statutes such as Section 1981, an anti-KKK act that would cover student and speaker contract rights. If they accept federal funding—and all but a handful do—they are also subject to Title VI of the Civil Rights Act of 1964.

Institutions are not the only prospective defendants. Campus rioters themselves may be liable under Section 1985(3), which covers private conspiracies and targets those who, like masked Antifa attackers, go in disguise—“a common tactic also used by the detestable Ku Klux Klan,” as Mr. Sessions noted. The statute applies most clearly to racially motivated physical attacks or efforts to exclude persons. Evergreen State is a classic case: After disrupting Mr. Weinstein’s class, students detained the college president and apparently posted photos of themselves brandishing baseball bats on Facebook . Some faculty members demanded disciplinary action against Mr. Weinstein and later assembled with masked Antifa members who attacked counterprotesters.

Section 1985(3) may also apply to racially motivated “no-platforming”—group intimidation to suppress speakers. Middlebury College demonstrators violently disrupted social scientist Charles Murray’s talk, pursued him, and physically attacked a Middlebury professor, giving her a concussion. Even without violence, Section 1985(3) makes protesters liable for racially motivated conspiracies at public universities and perhaps private ones. In contrast to the usual American rule, prevailing plaintiffs under civil-rights statutes are eligible for attorneys’ fees.

At both public and private universities, regardless of racial or religious motivation, state tort law allows people who are physically attacked, threatened or detained to bring civil lawsuits for damages. Businesses suffering property damage, such as the $100,000 attributed to February’s protests against Milo Yiannopoulos at Berkeley, can sue, too. Tort law can also make antispeech rioters liable for the loss of public-speaking contracts, as when DePaul University barred Mr. Shapiro because his appearances had been disrupted elsewhere.

While Section 1985(3) covers only conspiracies, state common law covers everyone who acts in concert to deprive victims of their rights, whether or not they conspired beforehand. Many college riots are planned in advance, but some participants just show up, like the Berkeley undergraduate who told Newsweek he wanted the safety of an anonymous mob. Liability for intentional torts is joint and several: Each member of the group is responsible for all damages caused by any member.

Unlike garden-variety street thugs, antispeech rioters often have substantial assets and potential earnings: 23% of Middlebury students come from households earning more than $630,000 a year. Plaintiffs can subpoena colleges to expose the perpetrators, unsealing disciplinary information that would otherwise be confidential under the Family Educational Rights and Privacy Act. And although criminal convictions require a “beyond a reasonable doubt” standard, civil cases apply the easier “preponderance of the evidence” standard.

Nonviolent, nondisruptive protests are crucial to American civic life, and conspiracy and action-in-concert lawsuits cannot suppress protesters’ right of free expression. In NAACP v. Claiborne Hardware Co. (1982), the U.S. Supreme Court struck down a conspiracy lawsuit by white merchants against a boycott. The justices held 8-0 that the defendants were merely exercising their First Amendment rights.

Students retain the right to advocate illegal acts, such as the demands for segregated facilities at several colleges. “Cultural appropriation” advocacy, which seeks to enforce Jim Crow -style identity etiquette, is also protected, including the Yale Halloween protests over whether blondes could costume themselves as Disney ’s Chinese heroine Mulan. But success in obtaining segregated facilities or cultural-appropriation penalties (such as Bowdoin College’s reported sombrero sanctions) could result in Section 1985(3) liability for students and colleges. One civil-rights-era case held theater-company managers potentially liable for conspiring with the local sheriff to enforce segregation. Police could also be liable under a related statute, Section 1986, which imposes a duty on law-enforcement agents to prevent Section 1985(3) conspiracies.

Like homecoming, political intimidation is a college tradition. With many college administrators seemingly seeking an empty plinth for one of those Robert E. Lee statues coming down elsewhere, civil lawsuits may save free speech from becoming a lost cause.

Mr. Weiser is an associate professor of law at Baruch College.

from the Wall Street Journal, 2017-Sep-1, by Jean M. Twenge:

The Smartphone Generation vs. Free Speech
Controversial speakers are being shut down on campus because today’s college students are obsessed with psychological safety and have little experience with negotiating conflicts

In the past few years, many U.S. college campuses have become embroiled in controversies over free speech. Students have insisted on “safe spaces” to protect themselves from ideas with which they disagree and have demanded the dismissal of faculty members who offend their sensibilities. Campus speakers have been “disinvited” when students object to their point of view. Such events were rare just five years ago but now seem to occur constantly during the school year. Why has this happened? What is so different about today’s students that many of them denounce faculty and administrators who suggest that a basic expectation of university life is for people with differing perspectives to talk to each other?

Meet iGen, the generation of young Americans born after 1995 and the first to spend their entire adolescence with smartphones in their hands. Puzzling as the recent campus controversies might seem, they are rooted in the unique psychology and life experiences of this cohort.

First, iGen’ers grew up in an era of smaller families and protective parenting. They rode in car seats until they were in middle school, bounced on soft-surface playgrounds and rarely walked home from school. For them, unsurprisingly, safety remains a priority, even into early adulthood.

As I found in analyzing several large national surveys of teens from all backgrounds, fewer of them in the 2010s (as compared with the 2000s) say that they like to take risks, and fewer say they get a thrill out of doing something dangerous. That has real benefits. Fewer get into car accidents or physical fights. In the annual Monitoring the Future survey of more than a half million 12th-graders, the number who binge-drank was cut in half between the late 1990s and 2016. In previous eras, teens were willing to live on the edge by doing things they knew weren’t safe—that was the nature of being a teen. Not anymore.

Nor are they just concerned about physical safety. The iGen teens I have interviewed also speak of their need for “emotional safety”—which, they say, can be more difficult to protect. “I believe nobody can guarantee emotional safety,” one 19-year-old told me. “You can always take precautions for someone hurting you physically, but you cannot really help but listen when someone is talking to you.” This is a distinctively iGen idea: that the world is an inherently dangerous place because every social interaction carries the risk of being hurt. You never know what someone is going to say, and there’s no way to protect yourself from it.

The result is a generation whose members are often afraid to talk to one another, especially about anything that might be upsetting or offensive. If everyone must be emotionally safe at all times, a free discussion of ideas is inherently dangerous. Opposing viewpoints can’t just be argued against; they have to be shut down, because merely hearing them can cause harm.

This frame of mind lies behind recent student agitation to keep controversial speakers off campus. According to the Foundation for Individual Rights in Education, a nonprofit watchdog group, campus disinvitations have risen steadily, reaching an all-time high of 42 in 2016, up from just six in 2000. In the American Freshman survey of more than 140,000 college students conducted by the Higher Education Research Institute in 2015, 43% agreed that campuses should be able to ban extreme speakers, up from just 20% in 1984.

The reasons for disinvitations frequently refer to the safety of students. When Williams College disinvited a speaker with provocative views on race, the campus newspaper wrote that his presence on campus would have caused students “emotional injury.” When controversial speakers do come, it is now fashionable to create a “safe space” where students can go if they feel upset.

Members of iGen are also taking longer to grow up. As I found in analyzing seven large national surveys of teens, today’s adolescents are less likely to drive, drink, work, date, go out and have sex than were teens just 10 years ago. Today’s 18-year-olds look like 15-year-olds used to. They don’t reach adulthood too early, but they also lack experience with independence and decision-making.

The result is a generation that looks to college administrators to settle disputes, like squabbling siblings appealing to their parents. Unaccustomed to independence, they want an authority figure to step in. At San Diego State University in 2016, students wanted the university president to apologize for fliers posted by an off-campus group. At Yale University in 2015, a faculty member suggested that students use their own judgment about potentially offensive Halloween costumes rather than let the administration dictate the rules. The students demanded that she resign.

Campus as a “home,” evoking the protected cocoon of childhood, is a theme in many of these incidents. During the controversy at Yale, a student yelled, “It is your job to create a place of comfort and home for the students…It is not about creating an intellectual space! It is not! It is about creating a home here!”

Members of iGen have spent more time with screens and less time interacting with each other in person than any previous generation. Because they communicate primarily online, most of the threats they experience come through social media or texts, not in person. For iGen, danger tends to take the form of words, not physical altercations. At the extreme, this has led to the belief that words can be violence—the belief at the core of disinvitations, “trigger warnings” to alert students to potentially offensive material, and campus speech restrictions. In the American Freshman survey, iGen college students were more likely than Gen X students in the 1990s to agree that “colleges should prohibit racist or sexist speech.”

Finally, in a time of growing income inequality, iGen believes that you either make it or you don’t—so you’d better make it. Compared with previous generations, they are more likely to say that they are going to college to get a good job and less likely to say that they hope the experience will broaden their education and point of view.

To faculty and administrators who grew up in previous eras, college is a place for being challenged by new ideas. Members of iGen disagree: They see college as a place to prepare for a career in a safe environment. They don’t necessarily see a connection between participating in big social and political debates and getting a job that pays well.

All of these iGen factors have combined to create a perfect storm at U.S. colleges. It isn’t hard to see why these young people, looking for safety and practicality, now clash so regularly with their elders when controversial ideas arrive on campus.

Dr. Twenge is a professor of psychology at San Diego State University and the author of “iGen: Why Today’s Super-Connected Kids Are Growing Up Less Rebellious, More Tolerant, Less Happy—and Completely Unprepared for Adulthood” (Atria).

from the Wall Street Journal, 2017-Aug-28, by The Editorial Page:

Behind the Bedlam in Berkeley
Antifa activists believe in censorship and don’t rule out violence, as they showed again Sunday.

Politically charged street brawls broke out in Berkeley, California, on Sunday, with police arresting 13 charming participants on charges including assault with a deadly weapon. One Twitter video showed masked activists kicking a man curled in fetal position on the ground; the beat-down stopped only when a journalist, Al Letson, shielded the man with his body. “I was scared they were going to kill him,” Mr. Letson said.

As Charlottesville drew attention to the worst elements of the far right, Sunday’s melee revealed an increasingly violent fringe of the radical left that has received far less media coverage, much less criticism. It’s called Antifa, pronounced “An-tee-fa,” which is short for “anti-fascist.”


Antifa members sometimes claim their movement spans the globe and dates to the 1920s and ’30s, citing the 1936 Battle of Cable Street, where protesters shut down a march by the British Union of Fascists. But in the United States and Britain, Antifa grew in the 1980s primarily out of the punk rock scene. As Nazi and white supremacist skinheads became a bigger part of this largely un-policed subculture, far-leftists met violence with violence, calling it self-defense.

As it grew beyond punk, Antifa’s adherents organized through the now-defunct Anti-Racist Action network and now sometimes through the Torch Network, as well as other less visible groups. Many activists also aligned themselves with the broader anti-globalization movement. But Donald Trump’s election has become the catalyst launching Antifa into a broader political movement.

The Antifa members we’ve interviewed shun the Democratic Party label, saying their activism constitutes its own political orientation. They’re mostly anarchists and anarcho-communists, and they often refer to fellow protesters as “comrades.” Adherents typically despise the government and corporate America alike, seeing police as defenders of both and thus also legitimate targets.

The anti-fascist anarchist website recently summarized its philosophy: “In this state of affairs, there is no such thing as nonviolence—the closest we can hope to come is to negate the harm or threat posed by the proponents of top-down violence . . . so instead of asking whether an action is violent, we might do better to ask simply: does it counteract power disparities, or reinforce them?”

Antifa’s activists use the Orwellian-sounding notion of “anticipatory self-defense” to justify direct confrontation. That can include violence, vandalism and other unlawful tactics. Many draw a false moral distinction between damaging private property and “corporate” property.

Antifa activists have also developed their own moral justification for suppressing free speech and assembly. As anarchists, they don’t want state censorship. But they do believe it’s the role of a healthy civil society to make sure some ideas don’t gain currency.

So they heartily approve of the heckler’s veto, seeking to shut down speeches and rallies that they see as abhorrent. Antifa activists also search for and publicize damaging information on their targets or opponents, or launch campaigns pressuring their bosses or companies to fire those opponents.

Words don’t constitute violence, despite what Antifa activists believe. But there are dangerous ideas and practices, and the radical left has embraced several of them. Democracies solve conflict through debate, not fisticuffs. But Antifa’s protesters believe that some ideas are better fought with force, and that some people are incapable of reason.

Implicit in this view is that Antifa alone has the right to define who is racist, fascist or Nazi. It’s a guerilla twist on the culture wars, when a microaggression must be met with a macroaggression.

Antifa has also widely embraced “Black Bloc” tactics, including disguising themselves with black garb and covering their faces with bandanas and balaclavas. It’s not a good look for a supposedly anti-authoritarian group to show up in uniform, like the KKK in white hoods, much less armed with batons.


Which brings us back to Berkeley. This weekend two right-wing groups sought to hold peaceful rallies. Their leaders—Patriot Prayer’s Joey Gibson, a Japanese-American, and Amber Cummings, a transgender Trump supporter—explicitly denounced racism. Amid fears of violence, both cancelled their events. Antifa showed up anyway, outnumbering and terrorizing any right-wingers or Trump supporters who dared show their faces.

Antifa views itself as fundamentally reactionary, as a necessary opposition to corrosive ideologies. But because your foe is a really bad guy doesn’t mean you’re inherently a good one. Movements are defined not merely by what they oppose but by what they do. Antifa’s censorious criminality resembles the very political behavior it claims to fight. The mainstream left ought to denounce it as much as the right should reject white supremacists.

from the Wall Street Journal, 2017-Aug-25, by Tunku Varadarajan:

The First Amendment Is for Neo-Nazis, Too
Richard Epstein says that curbs on ‘offensive’ speech are unworkable and would turn the public square into the grievance Olympics.

New York

Unfazed by a stream of hustling residents, chatty doormen, leashed dogs and well-born children, Richard Epstein holds forth in the lobby of the building where he lives, just off Manhattan’s Central Park. I worry about the background hubbub spoiling the recording of our conversation, but Mrs. Epstein—with good reason—has ruled their apartment out of bounds. She is packing and fussing for their son’s wedding, to take place four days later, and doesn’t want us underfoot.

The theme of our conversation is freedom of expression under the First Amendment, and there’s relish in discussing the subject with a man who talks in long, long sentences uttered without pause for breath, as if expression were a form of physical exercise. Mr. Epstein, a professor at the University of Chicago and New York University, is among the Anglo-American world’s foremost legal academics. Although often lauded as America’s leading intellectual libertarian, he prefers to describe himself as a “classical liberal.” With the violence in Charlottesville, Va., still fresh in the mind, Mr. Epstein is concerned that the debate on free speech has taken an unwelcome turn. The American left, he says, is pushing hard for curbs on “offensive” speech, and “no good will ever come of that.”

Mr. Epstein cites with evident distaste a recent New York Times op-ed by K-Sue Park, a fellow in critical race studies at the UCLA School of Law. Ms. Park lamented that the American Civil Liberties Union had defended the right of the white-supremacy group behind the Charlottesville protest to organize its march. The ACLU, Ms. Park argued, needs to “rethink free speech” and stop standing up for people with offensive views.

Perhaps you see the problems here. “There are certain harms that are nonactionable,” Mr. Epstein says, “and offense is one of them. If I say something that you find duly offensive, you may protest, you may speak—but what you may not do is to sue me in order to silence me, or to get compensation from me.” Counterspeech is “the appropriate ‘remedy’ under these circumstances; suppressing speech is not.”

Mr. Epstein imagines a society in which “offensive” speech is curbed: “Everybody offends everybody a large fraction of the time. So, if I am insulting to you because you’re a progressive and you’re insulting to me because I’m a conservative, and if we allow both people to sue, then neither can talk.” Those who advocate controlling speech, he says, tend to want only their sense of what’s offensive to count, and nobody else’s. Yet the “fundamental tenet of classical free-speech law is that the rules ought to be ‘viewpoint neutral.’ Nobody can use force against anybody, regardless of his viewpoint; but anybody can express his opinion, irrespective of how offensive everybody else will want to regard it.”

Even more complicating, controversial speech often isn’t conducted between two people alone but is shouted from a soapbox. How much offense is required before government pulls the plug? “The moment people start to speak publicly,” Mr. Epstein says, “there are 20 different views that you can take. Some will be deeply offended, some indifferent, others will be strongly pro. And the last thing you want to let the government do is to decide which of the two, the three, or the 10 interest groups is the one that ought to be able to dominate and to control the particular discourse.”

Some on the left, purporting to be mindful of the First Amendment, insist that what matters is severe offense. Mr. Epstein points to “the weird incentive effects” this creates. “People now have every motivation to ratchet up their level of indignation in order to say, ‘Look, you really hurt me,’ ” he says. “As a result, you make racial, ethnic, religious and social sensibilities an art form.” One recent technique of doing this is calling out the “microaggression,” by which he says people mean: “You may think that it’s small, but it goes to the very core of my particular being, and so it’s wrong and shouldn’t be allowed.”

Microaggressions make Mr. Epstein despair. Once you allow them, he asks, “are you going to allow them against everybody? At which point nobody can talk. So, you have to have preferences.” He fears what will come next: “You drop the ‘micro,’ keep the ‘aggression,’ and announce that since you’ve aggressed against me, I can now use force against you in self-defense.” This is part of the “modern left-wing First Amendment law,” he says, which holds that “anything you say that offends me is a form of violence, to which I can respond by the use of force.” The American left, he adds, “has become very solipsistic, and so all of their particular harms are enormous. And for those who are on the other side of this arrangement, they don’t care at all.”

In Mr. Epstein’s view, the best response to this push is to continue to underline what free speech truly means in America. We need to “go back and look at what Justice Robert Jackson said about free speech in Barnette in 1943.” That was the case in which the Supreme Court held that public schools could not compel Jehovah’s Witnesses to recite the Pledge of Allegiance.

It was a reversal of precedent, Mr. Epstein explains. In a 1940 decision, Minersville School District v. Gobitis, Justice Felix Frankfurter, “the son of immigrants, very much a kind of American loyalist, said that it was a libertarian fantasy to assume that Jehovah’s Witnesses could simply refuse to speak under the grounds of conscience.” It showed, Mr. Epstein says, “a genuinely authoritarian streak in our friend Frankfurter.”

Justice Jackson had a “more subtle mind, and he believed that if you’re a Jehovah’s Witness, and you thought that saluting the flag was a form of idolatry, you could stand aside.” As Mr. Epstein sums up the principle: “It doesn’t matter whether our views are high or low, this way or that—it’s not the job of the government to tell us what they ought to be.”

He contrasts Barnette with the temper of the present time. “Justice Jackson’s wasn’t the modern position, which says, ‘Since one person dissents from it, nobody can say the Pledge of Allegiance in class.’ ” The older accommodation was that you were given “a painless pass, but you had to suffer the offense of watching other people do things that you did not want to do. Now, we basically shut everybody else down if you take offense.”

Justice Jackson’s view of free speech is “pretty well secure in the judiciary today,” Mr. Epstein says. Judges are careful to distinguish between persuasion and communication on the one hand, and threats of violence on the other. But, Mr. Epstein says, “there’s a very large and angry left-wing group which is not willing to accept that view,” at least on its own home turf—the academy. He cites the conservative writers Heather Mac Donald and Jason Riley (contributors to this page), who had invitations to speak on campus rescinded under pressure, as well as the social scientist Charles Murray, whose March appearance at Middlebury College was disrupted and the professor who moderated it physically battered.

He also mentions the provocateur Milo Yiannopoulos, who was run out of Berkeley in February by intolerant leftists. Although Mr. Epstein says he considers Mr. Yiannopoulos a “dreadful human being,” he also doesn’t think a peaceful speaker should face rioters—who, in this case, caused an estimated $100,000 of damage.

The real question, Mr. Epstein says, “is not what we believe, it’s what we’re prepared to put on the line. The moment you start yielding to this sort of thing, it’s just an encouragement for the other side to shut you down. Berkeley should have said: ‘We’ll call in reinforcements, we’ll bring out the National Guard if necessary, but we’re not going to allow any group to intimidate and change the way in which campuses work.’ ”

Still an active teacher at 74, Mr. Epstein tells me a joke he sometimes uses in class. It comes from a 1950s comic strip. “I go to the top when it comes to sources and material,” he says slyly.

Jughead, a known mooch, comes to Archie’s house and asks: “Archie, do you believe in free speech?” Archie says sure. Jughead replies: “So you don’t mind if I use your phone to make a long-distance call?”

“Why is this funny?” Mr. Epstein asks. “Because freedom of speech means that you have the right to use your own resources to advance your own causes. But it doesn’t give you, in the name of free speech, the right to take somebody’s telephone, somebody’s house or somebody’s anything in order to use it for your own purposes.”

In effect, Mr. Epstein says, the notion of freedom of expression is embedded in a much larger and comprehensive system of property rights. Does the Supreme Court believe that? “In the case of individual speech, the answer is yes,” he replies. “But there’s another dimension to speech, which is the question of campaign finance and related topics. There’s a very deep cleavage of opinion, with progressives thinking that big business in speech is every bit as bad as big business everywhere else, so you’ll have to put limits on their ability to spend.”

This progressive model typically assumes all big companies and rich people act the same way. “But one of the things we know,” Mr. Epstein says, “is that there’s absolutely no uniformity among the rich as to how they view and spend their money. There’s New York liberals and Texas conservatives—and of course the American business community is undergoing a tectonic shift. The leadership of all the big tech companies is essentially of the left.” He cites Bill Gates and Mark Zuckerberg, as well as Google’s CEO, Sundar Pichai, whom Mr. Epstein calls “an economic illiterate.”

Mr. Epstein reserves special ire for Google. He cites the case of James Damore, the engineer fired from the company this month for suggesting in a memo that biological factors might contribute to the lack of women in the tech industry. Mr. Pichai was “saved from greater embarrassment by Charlottesville,” Mr. Epstein says. “People stopped talking about Google because they had more important things to talk about.”

He thinks the Google firing illustrates that the notion of inadmissible “offensive” speech now permeates both the public and the private spheres. “Google is basically massively intolerant,” he says. “Here was a guy, the data analyst, who was not against diversity. He said he wasn’t. So many Americans who are offended by the kind of ‘diversity inclusion’ methods you have at Google are not against diversity, nor against inclusion.

“They’re against people telling them how to be diverse, and exercising a moral superiority over them which forces them to grovel.”

Mr. Varadarajan is a fellow in journalism at Stanford University’s Hoover Institution.

from the Wall Street Journal, 2017-Aug-22, by William A. Galston:

The Assault on Free Speech
China censors an academic publisher, while U.S. academics become censors.

Two recent events on either side of the globe have underscored the importance of free speech—and the peril it faces today.

Just days ago, Cambridge University Press yielded to pressure from the Chinese government to remove more than 300 articles from the website of its journal China Quarterly. The censored articles covered topics that the Chinese consider incriminating, such as the Tiananmen Square massacre. The publisher was given the choice between accepting censorship and facing total exclusion from China, and it chose to acquiesce. After an international outcry, however, it reversed its position.

China’s government was not pleased. An editorial in the state-run Global Times was chillingly frank: “Western institutions have the freedom to choose. If they don’t like the Chinese way, they can stop engaging with us. If they think China’s Internet market is so important that they can’t miss out, they need to respect Chinese law and adapt to the Chinese way. It doesn’t matter if some articles . . . disappear on the Chinese internet.”

There is a striking resemblance between President Xi Jinping’s drive to extend Communist Party control over information available to the Chinese people and his government’s effort to appropriate the fruits of foreign innovation for its own nationalist purposes. As policy experts across the political spectrum now recognize, and as the Trump administration rightly insists, companies seeking to do business in China often are presented with a choice: transfer control of their intellectual property to Chinese entities, or risk outright exclusion from China’s massive and rapidly growing market.

It is easy to understand China’s economic strategy. Innovation is the heart of the 21st-century economy, and coercing its transfer enables China to reach the cutting edge while its indigenous research-and-development activities ramp up. But why the heavy-handed suppression of academic materials, viewed by only a tiny number of scholars?

This takes us to the heart of the matter: President Xi understands the power of free speech and free inquiry to call into question even the most entrenched claims that autocratic governments use to justify their rule. Allowing access to dissenting arguments and long-buried facts about Tiananmen and Tibet could have disruptive consequences. No one knows what scholars would write, who would be reading, or how they might react. Better to shut the door completely than to leave it open even a crack.

This sense of the fragility of political power is more than autocratic paranoia. In the former Soviet Union, the writings of a few brave men and women eroded the regime’s moral foundation. Communism collapsed in large measure because even those who claimed to rule in its name ceased to believe in its truth and virtue. When times were good, this loss of faith remained recessive. When the economy faltered, it proved decisive—a lesson that China’s leaders surely have pondered.

Seven thousand miles to the east, the neo-Nazi rally in Charlottesville, Va., sparked calls for the suppression of “hate speech”—bigoted rhetoric that any decent observer would condemn. Racism and anti-Semitism have no place in any society, and certainly not in a society dedicated to the proposition that all humans are created equal. If these doctrines contain no truth and yield only ill effects, runs the argument, why not prohibit their expression?

In academia, the critique of freedom of speech goes deeper. Many scholars want to censor speech that reinforces social imbalances, believing that it enhances the ability of the powerful to subordinate the powerless. Writing in the New York Times , K-Sue Park, the Critical Race Studies Fellow at the UCLA School of Law, charges that the American Civil Liberties Union’s willingness to offer legal support to right-wing as well as left-wing causes “perpetuates a misguided theory that all radical views are equal.” Her conclusion: The ACLU should reduce its focus on First Amendment case law and address restraints on freedom of expression that stem from inequality in all its forms.

To this line of thinking, David Cole, the ACLU’s national legal director, offers a pointed retort: “Allowing government officials to regulate speech based on their assessment of who is promoting equality . . . would be disastrous. How does Mr. Park think that Southern mayors would have used that power during the 1960s?”

One of the few clear lessons of history is that vesting any authority with the power to control speech is bound eventually to backfire. Firm adherence to the First Amendment enables public officials to impose reasonable time, place and manner conditions on speech—and to act to pre-empt the violence that may attend free expression in fraught situations.

Government should go no further—not in China, not in America, not anywhere.

from the Wall Street Journal, 2017-Aug-23, by The Editorial Board:

Beijing’s Threat to Academic Freedom
Cambridge Press pays a price for bowing to Chinese censorship.

Cambridge University Press taught the academic world a valuable lesson this week in how not to respond to Chinese government censorship. As Western universities become dependent on China-related funding and the Xi Jinping regime tightens control over speech, the temptation to sacrifice core values will grow unless schools stand up for academic freedom.

Last week news broke that CUP blocked online access to 315 articles published in the journal China Quarterly after its Chinese distributor relayed a threat from Beijing regulators. If CUP refused to take down the offending articles on sensitive topics such as Tibet and the 1989 Tiananmen Square massacre, it was told, the periodical would be banned in China.

The publisher bowed to Chinese pressure without consulting China Quarterly’s staff and tried to keep its action quiet. After an email from Editor Tim Pringle to his board leaked, CUP tried to portray the decision to block the articles as a temporary measure.

Academics who study China reacted angrily, circulating open letters of condemnation and petitions to boycott the journal or move it to another publisher. On Monday CUP reversed course and announced that it would repost the offending articles online and make them freely available to nonsubscribers. A terse statement from Cambridge University suggested that it intervened “to uphold the principle of academic freedom on which the University’s work is founded.”

Chinese authorities haven’t responded so far. But a state-run tabloid newspaper, the Global Times, wrote in an editorial last week, “Western institutions have the freedom to choose. If they don’t like the Chinese way, they can stop engaging with us.”

That’s not much of a choice for Cambridge and other Western schools. More than 91,000 Chinese students attended British universities in the 2015-16 school year, and they pay between two to three times the tuition of students from European Union countries. American universities enrolled 328,000 Chinese students that year.

Western schools also receive donations from wealthy and influential Chinese. The daughter of former Chinese Premier Wen Jiabao gave £3.7 million ($4.8 million) to Cambridge through her charitable foundation to fund a chair in Chinese Development studies. In 2014 the family of Ronnie Chan, a Hong Kong tycoon known for pro-Beijing views, gave $350 million to Harvard University, the largest gift in its history.

Cambridge University Press is doing a booming business selling textbooks in China, with its most recent annual report boasting of double-digit year-on-year growth for the past five years. The annual Beijing International Book Fair opened Wednesday, and the publisher acknowledged that it initially hoped to resolve the conflict at that event.

Chinese officials encourage the myth that quiet remonstration will yield some relief from unreasonable demands. But as CUP has learned, not being transparent can damage the integrity of Western institutions. It also prevents universities from forming a united front on specific problems such as the blocking of online articles.

Western academics who displease Beijing with their writings already risk being put on a visa blacklist that could impair their work. Now the Xi regime is starting to exploit financial leverage over Western institutions in their home countries. This week’s events suggest that the best hope of preserving academic freedom lies in openly discussing Chinese censorship.

from the Wall Street Journal, 2017-Oct-10, by Thomas Grove:

Wall Street Journal Reporter Sentenced to Prison by Turkish Court
Conviction on terrorist propaganda charges highlights government’s increased targeting of journalists; reporter to appeal decision

A Turkish court sentenced Wall Street Journal reporter Ayla Albayrak to two years and one month in prison Tuesday, declaring her guilty of engaging in terrorist propaganda in support of a banned Kurdish separatist organization through one of her Journal articles.

The conviction of Ms. Albayrak, who is currently in New York, highlights the increasing targeting of journalists in Turkey, where President Recep Tayyip Erdogan’s government has gained attention for deteriorating media freedoms.

“This was an unfounded criminal charge and wildly inappropriate conviction that wrongly singled out a balanced Wall Street Journal report,” said Wall Street Journal Editor in Chief Gerard Baker. “The sole purpose of the article was to provide objective and independent reporting on events in Turkey, and it succeeded.”

Ms. Albayrak plans to appeal the decision. “Given the current climate in Turkey, this appalling decision shouldn’t have come as a surprise to me, but it did,” she said.

The New York-based Committee to Protect Journalists said it condemned the Turkish court decision.

“The conviction of Ayla in Turkey is a very worrying sign and an escalation of the crackdown on the press,” said Nina Ognianova, the CPJ’s Europe and Central Asia program coordinator, calling Turkey the world’s top jailer of journalists. “We call on the Turkish authorities to overturn this decision immediately,” she said.

Turkish legal actions against Ms. Albayrak began after the publication on Aug. 19, 2015, on the Journal’s website of her article “Urban Warfare Escalates in Turkey’s Kurdish-Majority Southeast.” The article and accompanying video reported on the state of a conflict in Silopi, Turkey, between Turkish security forces and the outlawed Kurdistan Workers’ Party, or PKK. It included interviews with the local mayor and residents, a Turkish government official, as well as a representative of an organization Turkey says is the youth unit of the PKK.

Turkey, the U.S. and the European Union consider the PKK a terrorist organization.

In November of the same year, Ms. Albayrak, who has dual Finnish and Turkish citizenship, received a written order on her door to visit her local police station in Istanbul where she was notified she was under investigation for spreading terrorist propaganda.

At the police station, she gave a statement saying the article accurately reflected the state of the conflict between the PKK and the Turkish government. In April 2016, a prosecutor in southeastern Turkey filed an indictment against Ms. Albayrak alleging that she violated antiterror laws.

William Lewis, Dow Jones’s chief executive officer and publisher of The Wall Street Journal, said: “This ruling against a professional and respected journalist is an affront to all who are committed to furthering a free and robust press. We call on those who share this commitment to make their voices heard.

“The notion that our reporter’s commendable and insightful work led to a criminal prosecution that has resulted in this wrongful conviction is intolerable,” Mr. Lewis said. “We have stood by Ms. Albayrak’s side for nearly two years as we have robustly pursued all available options to defend this baseless prosecution, and we will continue to stand with her as we seek to overturn this conviction.”

As part of the article she was convicted for, Ms. Albayrak interviewed a person who described herself as a member of the Patriotic Revolutionary Youth Movement, or YDG-H, which the Turkish government says is the youth unit of the PKK.

Ms. Albayrak said in a statement included in the court documents that the original article didn’t include any praise for the group, but rather provided a balanced and objective view of urban warfare that had gripped areas of Turkey’s predominantly Kurdish southeast at the time.

“The decision shows the extent to which the authorities did not want the operations that were going on in Turkey’s southeast to be reported on,” said Ms. Albayrak. “It also shows yet again, that the international media is not immune to the ongoing press crackdown in Turkey.”

The court decision comes amid an escalating diplomatic spat between Washington and Ankara that has seen the U.S. suspend nearly all types of visa services for Turks. The row erupted after a U.S. consulate employee was arrested on suspicion of having ties to U.S.-based Turkish cleric Fethullah Gulen, whom Ankara blames for last year’s failed coup. Turkey in response said it was suspending U.S. visa applications. Mr. Gulen denies the accusation.

Court documents filed against Ms. Albayrak say the Journal article and accompanying video, which included images of men and women bearing PKK emblems, provided fodder for 24 Turkish-language websites that translated parts of the article. Turkish officials sent a list of the websites’ articles in late August to the country’s Telecommunication Directorate to have them blocked.

Ms. Albayrak and the Journal have said they have no relationship with any of the Turkish-language websites that published only parts of her article. The Journal said excerpts published by the websites were distorted.

Ms. Albayrak said she was charged around the same time that the Turkish government had begun a crackdown on Kurdish-majority cities in the country’s southeast, where many members of the ethnic minority live.

Mr. Baker said Ms. Albayrak embodies The Wall Street Journal tradition, “spending years as an intrepid journalist producing insightful, fair and impartial coverage from Turkey. We will work tirelessly to overturn this preposterous conviction.”

The case is a rare instance of terrorism charges brought against a reporter working for a Western media outlet. Deniz Yücel, a prominent German-Turkish journalist for newspaper Die Welt, was arrested in Istanbul in February under terrorism suspicions and remains in pretrial detention without official charges despite repeated protests from the German government. Mr. Yücel has denied any wrongdoing.

In the wake of last year’s failed coup against Mr. Erdogan’s government, authorities have increased focus on journalists they suspect harbor sympathies for Mr. Gulen, as well as those who report on Kurdish separatism.

Mesale Tolu, a Turkish-German citizen who worked as a translator for the leftist-leaning Etkin Haber Ajansi, was detained earlier this year on suspicion of spreading terrorist propaganda and belonging to a leftist organization considered a terrorist group in Turkey, CPJ said. She is scheduled to go on trial on Wednesday.

Amnesty International and other rights groups say Turkey has more journalists jailed than any other country in the world. Authorities have closed more than 150 media outlets under the state of emergency’s executive orders, according to Human Rights Watch and Freedom House.

Turkey ranked 155 on Reporters Without Borders Press Freedom Index this year, worse than Russia or Pakistan. The index is based on statistics of violence against journalists, along with evaluations of pluralism, media independence, self-censorship and legislation.

“Media freedom and pluralism has largely been crushed,” said Johann Bihr, who analyzes Turkey for Reporters Without Borders.

Under the state of emergency in place since the coup, authorities have applied antiterrorism laws in some cases to restrict access to legal counsel and increase the duration of pretrial detention.

The government “aggressively used the penal code, criminal defamation legislation and the country’s anti-terrorism law to punish critical reporting, and journalists faced growing violence,” said democracy advocacy group Freedom House last year.

The PKK picked up arms in 1984 to fight for an independent Kurdish homeland within Turkey’s borders.

Since the PKK’s first insurrection, the group has been responsible for numerous bombings of civilian and military targets in Ankara, Istanbul and numerous cities throughout the southeast.

from the Wall Street Journal, 2017-Oct-10, by The Editorial Board:

An Outrageous Prosecution
Turkey convicts a Journal reporter of promoting terrorism.

Recep Tayyip Erdogan is right when he complains that Turkey is threatened by terrorists who kill innocent citizens and want to bring down his government. But when Turkish authorities tar innocent journalists for abetting terrorism, they confirm to the world that Turkey’s President has turned his country into an authoritarian state.

On Tuesday a Turkish court falsely convicted Wall Street Journal reporter Ayla Albayrak of propagandizing on behalf of an outlawed Kurdish terror group. The evidence for Ms. Albayrak’s “crime”: An Aug. 19, 2015, Wall Street Journal news story about the bitter fighting in a remote, Kurdish-majority, Turkish city called Silopi that borders Syria and Iraq. Turkish forces fought there with the outlawed PKK, or Kurdistan Workers’ Party.

Ms. Albayrak quoted some members of the Patriotic Revolutionary Youth Group, which Turkish authorities say is affiliated with the PKK. But she also quoted government officials, local residents and the mayor—and explicitly identified the PKK as designated by both Ankara and Washington as a terrorist outfit. Nowhere in her balanced dispatch did she praise either the PKK or the youth group, and everything she did to report this story as fairly and objectively as possible was within the bounds of good journalism and Turkish law.

The indictment noted that some Turkish-language websites lifted parts of her story and an accompanying video for their own purposes. But they used selective quotes, and none are affiliated with the Journal and none were authorized by either the Journal or Ms. Albayrak.

There is no evidence Mr. Erdogan initiated these charges against our reporter. Yet they are surely a consequence of the repressive atmosphere he has created in Turkey, especially after a failed military coup in 2016. The Turkish president has taken advantage of the state of emergency to solidify his hold on power by cracking down on anyone his government doesn’t like.

This repression is now extending to the foreign media, and even beyond Turkey’s borders. In February Deniz Yücel, a reporter for Germany’s Die Welt, was arrested in Istanbul and remains detained without charges. Amnesty International notes Turkey now has more journalists in jail than any other country.

Ms. Albayrak, a dual Turkish and Finnish national, is now in New York. But that doesn’t mean the conviction isn’t damaging. The Erdogan government has already abused Interpol, the international police network, by issuing “red notices” to have journalists and critics arrested in other countries until they can be extradited. In this way a system meant to target criminals is turned on good journalists like Ms. Albayrak and makes it dangerous for them to travel and do their jobs.

When any local Turkish official can create an international incident by freelancing a political prosecution, it underscores Turkey’s descent under Mr. Erdogan and creates unnecessary rifts with other countries. Ms. Albayrak plans to appeal, which gives Ankara a path out of this injustice. But it requires a Turkish judiciary willing to assert itself by standing up for the rule of law and tossing this shameful and dishonest prosecution.

from the Wall Street Journal, 2017-Aug-22, by Matthew Prince:

Was I Right to Pull the Plug on a Nazi Website?
A handful of private companies control whether speech can appear online. That’s reason to worry.

I helped kick a group of neo-Nazis off the internet last week, but since then I’ve wondered whether I made the right decision. I’m the co-founder and CEO of Cloudflare. We run a global network that makes internet applications faster and protects them from cyberattacks. If you haven’t heard of us, I’m not surprised. We’re part of the internet’s infrastructure, one of the groups operating behind the scenes to bring you everything you enjoy online.

Although Cloudflare isn’t a household name, nearly 10% of all internet requests from 2.8 billion people pass through our network each month. We have almost 10 million customers, from small businesses to large financial institutions. During the 2016 presidential election, 17 major-party candidates used Cloudflare to protect their campaigns from hackers. ( Hillary Clinton was the notable exception.) Chances are you’ve used our network hundreds of times in the past 24 hours and, if we’re doing our job, all you’ve noticed is fast internet.

Nearly all of our clients are upstanding people and businesses. But every once in a while, someone will use one of our services to protect content I would consider repugnant. Such was the case with the Daily Stormer, a bulletin board for self-proclaimed white supremacists.

The site was used to help plan the neo-Nazi demonstrations in Charlottesville, Va. After Heather Heyer was murdered there, the Daily Stormer’s founder and editor mocked her as a “fat, childless 32-year-old slut” and a “drain on society.” By any reasonable standard it was vile. Not surprisingly, the site was constantly targeted by anti-Nazi hackers trying to knock it offline. Cloudflare had helped foil those cyberattacks until last week when I pulled the plug.

At some level, it’s easy to fire Nazis as customers. They don’t pay you much, if anything, since Cloudflare offers a free version of its service. Our terms of use give us broad discretion to choose whom we allow to use our network. Beyond the horrible content, the Daily Stormer began claiming that we secretly supported their ideology, causing a major distraction to our team. Firing a Nazi customer gets you glowing notes from around the world thanking you for standing up to hate.

But a week later, I continue to worry about this power and the potential precedent being set. The reality of today’s internet is that if you are publishing anything even remotely controversial, your site will get cyberattacked. Without a massive global network similar to Cloudflare’s, it is nearly impossible to withstand the barrage. Only a small group of companies—names you know, like Facebook , Google and Microsoft , along with a handful of others you may not, like Cloudflare—have sufficient scale to keep their users online.

The upshot is that a few private companies have effectively become the gatekeepers to the public square—the blogs and social media that serve as today’s soapboxes and pamphlets. If a handful of tech executives decide to block you from their services, your content effectively can’t be on the internet.

Before terminating the Daily Stormer, Cloudflare’s policy had been to stay neutral to the content that used our network. We’d comply with the law in the jurisdictions where we operate, but we wouldn’t bow to political or public pressure to boot anyone off our network. And make no mistake, there is pressure: Hackers actually tweeted to us asking that we get out of the way so they could take down the Daily Stormer.

When standing up to government requests or angry Twitter demands to silence unpopular speech, it was powerful to be able to say we’d never terminated a customer due to political pressure. I’m not sure we can say that anymore.

I’d like to fall back on the First Amendment. I’m the son of a journalist. I grew up with discussions around the dinner table on the importance of freedom of speech. But the First Amendment doesn’t compel private companies to let anyone broadcast on their platforms. Moreover, Cloudflare operates infrastructure in 70 countries, few of which have anything approaching American-style speech protections.

Yet in all nations, there is (or should be) a reasonable expectation of due process. It is the idea that no one is penalized without first receiving a fair hearing and a fair shake. In civilized societies, the law is applied equally by independent decision makers, not capriciously by mobs and tyrants.

Did we meet the standard of due process in this case? I worry we didn’t. And at some level I’m not sure we ever could. It doesn’t sit right to have a private company, invisible but ubiquitous, making editorial decisions about what can and cannot be online. The pre-internet analogy would be if Ma Bell listened in on phone calls and could terminate your line if it didn’t like what you were talking about.

Cloudflare is an expert at stopping cyberattacks, but we do not have the expertise to pass judgment on which of our 20 trillion monthly internet requests is racist, reprehensible or offensive. Even if we could solve the technical challenge of filtering them out, hidden behind the scenes is a problem of political legitimacy.

We’re going to have a long debate at Cloudflare to think these issues over. But terminating the Daily Stormer is likely to be the exception that proves the importance of content neutrality. My moral compass alone should not determine who gets to stay online.

Mr. Prince is the co-founder and CEO of Cloudflare.

from the Wall Street Journal, 2017-Aug-27, by Mary Anastasia O’Grady:

Google’s Broken Promise to Cubans
The company denies access to a pro-democracy website, blames the embargo.

During his March 2016 visit to Cuba, Barack Obama raved about an impending Google-Cuba deal “to start setting up more Wi-Fi access and broadband access on the island.” Greater access, he predicted, would mean “more information [that] allows [the Cuban people] to have more of a voice.”

Eighteen months later Mr. Obama’s forecast looks worse than a hollow platitude. Google has become a supplier of resources to the regime so that Raúl Castro can run internet at faster speeds for his own purposes. Meanwhile the company appears to be wholly uninterested in the Cuban struggle for free speech, as the island democracy project “Cuba Decide” learned last month.

Google started out making big promises to Cubans. In a March 2016 blog post, Brett Perlmutter, “Cuba Lead” for Google Access, boasted that the company was “thrilled to partner” with a regime-owned museum, featuring a Castro-approved artist. “New technologies and improved internet access can . . . help harness a country’s creativity and ingenuity,” Mr. Perlmutter wrote without the slightest irony.

By then Google must have understood that the dictatorship had no interest in mass internet access. In July 2015 the Miami Herald reported that Mr. Perlmutter had visited Cuba and pitched a proposal to build an island-wide digital infrastructure. The government reportedly rejected the proposal and warned of internet imperialists seeking to “destroy the Revolution.”

In December 2016 Google sealed a deal with Castro’s monopoly telecom company (and internet service provider) Etecsa to put Google servers in Cuba. Google fired up those servers in April, emphasizing the improvement they bring to viewing video because they allow Google to store content locally. A fiber-optic cable from Venezuela has also increased internet speeds.

Access is another matter. The internet in Cuba remains tightly controlled and, according to the 2017 “Freedom in the World” report, the regime has “cracked down” on “diverse independent digital media” and often blocks “critical blogs and websites.”

The report noted some of the creative ways that Cubans get around Etecsa’s blocking, including the use of virtual private networks. But that doesn’t work when Google is blocking access.

Rosa María Payá is the daughter of the late award-winning Cuban dissident Oswaldo Payá. He was killed, most likely by the regime, in a suspicious 2012 car crash. In 2015 Ms. Payá launched Cuba Decide, a project calling for a national plebiscite to ask Cubans if they want free elections and free speech. In the Miami Herald in March, Cuban-exile writer Jose Azel called the project “a strategic tool” to “spotlight . . . the people’s prerogative . . . to decide their form of government.”

Yet Cubans cannot access the Cuba Decide website, and Google is to blame.

On July 22 Ms. Payá tweeted “google joins censorship in Cuba,” along with the screenshot of the Google error message that Cubans get when they try to go to her website. I retweeted Ms. Payá’s tweet, noting “Google bows to Cuban censorship.”

Mr. Perlmutter’s response was not only condescending and arrogant. It was lazy. “id [sic] do more research,” he tweeted, accusing me of trafficking in “fake news,” and by extension slapping down Ms. Payá. “Definitely nothing to do w Google,” he wrote in a follow up tweet. “This type of error is generated by Chrome often when sites are blocked bc of US embargo.”

Mr. Perlmutter did not cite any provision of the U.S. embargo that requires the blocking of a nonprofit citizens’ initiative—because there is no such provision. On Wednesday a Google spokesperson told me “we can’t say for sure what’s causing the issue with that site but it isn’t something we’re doing on our end . . . If you want more details, I recommend you check with the ISP.”

By Friday the company was no longer blaming the ISP. Instead, Google told me—in a paradox that must be delicious for Castro—that it is Cuba Decide’s use of Google’s Project Shield that is causing the problem. The shield is offered at no charge for “news sites and free expression” against “distributed denial-of-service” attacks. When it is used, it triggers the use of Google’s App Engine even if Google is not the website’s host—which it isn’t in this case—and Cubans cannot access the site.

The company claims this is because of sanction restrictions, i.e., the embargo. But there is no reason to block a website that exists purely to promote freedom and civic participation. If Google wanted to advance the cause of free speech it could have reached out to Ms. Payá to find a solution rather than fire off a snotty tweet.

Google told me that Mr. Perlmutter’s Twitter comments “do not represent an official Google position.” It said they were made “before all the facts of the specific situation were known.” Talk about fake news.

from the New York Times, 2017-Aug-30, by Kenneth P. Vogel, with Kitty Bennett contributing research:

Google Critic Ousted From Think Tank Funded by the Tech Giant

WASHINGTON — In the hours after European antitrust regulators levied a record $2.7 billion fine against Google in late June, an influential Washington think tank learned what can happen when a wealthy tech giant is criticized.

The New America Foundation has received more than $21 million from Google; its parent company’s executive chairman, Eric Schmidt; and his family’s foundation since the think tank’s founding in 1999. That money helped to establish New America as an elite voice in policy debates on the American left and helped Google shape those debates.

But not long after one of New America’s scholars posted a statement on the think tank’s website praising the European Union’s penalty against Google, Mr. Schmidt, who had been chairman of New America until 2016, communicated his displeasure with the statement to the group’s president, Anne-Marie Slaughter, according to the scholar.

The statement disappeared from New America’s website, only to be reposted without explanation a few hours later. But word of Mr. Schmidt’s displeasure rippled through New America, which employs more than 200 people, including dozens of researchers, writers and scholars, most of whom work in sleek Washington offices where the main conference room is called the “Eric Schmidt Ideas Lab.” The episode left some people concerned that Google intended to discontinue funding, while others worried whether the think tank could truly be independent if it had to worry about offending its donors.

Those worries seemed to be substantiated a couple of days later, when Ms. Slaughter summoned the scholar who wrote the critical statement, Barry Lynn, to her office. He ran a New America initiative called Open Markets that has led a growing chorus of liberal criticism of the market dominance of telecom and tech giants, including Google, which is now part of a larger corporate entity known as Alphabet, for which Mr. Schmidt serves as executive chairman.

Ms. Slaughter told Mr. Lynn that “the time has come for Open Markets and New America to part ways,” according to an email from Ms. Slaughter to Mr. Lynn. The email suggested that the entire Open Markets team — nearly 10 full-time employees and unpaid fellows — would be exiled from New America.

While she asserted in the email, which was reviewed by The New York Times, that the decision was “in no way based on the content of your work,” Ms. Slaughter accused Mr. Lynn of “imperiling the institution as a whole.”

Mr. Lynn, in an interview, charged that Ms. Slaughter caved to pressure from Mr. Schmidt and Google, and, in so doing, set the desires of a donor over the think tank’s intellectual integrity.

“Google is very aggressive in throwing its money around Washington and Brussels, and then pulling the strings,” Mr. Lynn said. “People are so afraid of Google now.”

Google rejected any suggestion that it played a role in New America’s split with Open Markets. Riva Sciuto, a Google spokeswoman, pointed out that the company supports a wide range of think tanks and other nonprofits focused on information access and internet regulation. “We don’t agree with every group 100 percent of the time, and while we sometimes respectfully disagree, we respect each group’s independence, personnel decisions and policy perspectives.”

New America’s executive vice president, Tyra Mariani, said it was “a mutual decision for Barry to spin out his Open Markets program,” and that the move was not in any way influenced by Google or Mr. Schmidt.

“New America financial supporters have no influence or control over the research design, methodology, analysis or findings of New America research projects, nor do they have influence or control over the content of educational programs and communications efforts,” Ms. Mariani said. She added that Mr. Lynn’s statement praising the European Union’s sanctions against Google had been temporarily removed from New America’s website because of “an unintentional internal issue” unrelated to Google or Mr. Schmidt.

Ms. Mariani and Ms. Sciuto said Google is continuing to fund New America.

Hours after this article was published online Wednesday morning, Ms. Slaughter announced that the think tank had fired Mr. Lynn on Wednesday for “his repeated refusal to adhere to New America’s standards of openness and institutional collegiality.”

Ms. Slaughter also wrote on Twitter that the article was “false,” but was unable to cite any errors. New America would not make Ms. Slaughter available for an interview.

It is difficult to overstate Mr. Lynn’s influence in raising concerns about the market dominance of Google, as well as of other tech companies such as Amazon and Facebook. His Open Markets initiative organized a 2016 conference at which a range of influential figures — including Senator Elizabeth Warren of Massachusetts — warned of damaging effects from market consolidation in tech.

In the run-up to that conference, Ms. Slaughter and New America’s lead fund-raiser in emails to Mr. Lynn indicated that Google was concerned that its positions were not going to be represented, and that it was not given advanced notice of the event.

“We are in the process of trying to expand our relationship with Google on some absolutely key points,” Ms. Slaughter wrote in an email to Mr. Lynn, urging him to “just THINK about how you are imperiling funding for others.”

Mr. Lynn is now starting a stand-alone nonprofit with the same team to continue Open Markets’ work. The new group, which does not yet have a name, has funding commitments, though clearly is not expecting money from Google. It has launched a website called Citizens Against Monopoly that accuses Google of “trying to censor journalists and researchers who fight dangerous monopolies.” The site vows, “We are going to make sure Google doesn’t get away with this.”

After initially eschewing Washington public policy debates, which were seen in Silicon Valley as pay-to-play politics, Google has developed an influence operation that is arguably more muscular and sophisticated than that of any other American company. It spent $9.5 million on lobbying through the first half of this year — more than almost any other company. It helped organize conferences at which key regulators overseeing investigations into the company were presented with pro-Google arguments, sometimes without disclosure of Google’s role.

Among the most effective — if little examined — tools in Google’s public policy toolbox has been its funding of nonprofit groups from across the political spectrum. This year, it has donated to 170 such groups, according to Google’s voluntary disclosures on its website. While Google does not indicate how much cash was donated, the number of beneficiaries has grown exponentially since it started disclosing its donations in 2010, when it gave to 45 groups.

Some tech lobbyists, think tank officials and scholars argue that the efforts help explain why Google has mostly avoided damaging regulatory and enforcement decisions in the United States of the sort levied by the European Union in late June.

But Google’s Washington alliances could be tested in the coming months. Google emerged as a flash point in the latest skirmish of the culture wars this month after one of its male engineers posted a critique of the company’s efforts to diversify. And its data collection continues fueling questions about its commitment to privacy.

Then there are the mounting concerns about the market dominance of Google, which handles an overwhelming majority of all internet searches globally and dominates internet advertising. Its alleged tilting of search results to favor its services over those offered by competitors led to the European Union’s $2.7 billion antitrust penalty in June.

The Open Markets’ statement that drew Mr. Schmidt’s ire praised the fine, and called on United States regulators to more aggressively enforce antitrust rules against Google, Amazon and “other dominant platform monopolists.”

Last month, Democratic congressional leaders rolled out a policy platform that included a pledge to dismantle monopolies, including in cable and internet service, which some read as a challenge to Google in particular. That sentiment — which appears to have some support from populist elements of President Trump’s base — diverges sharply from the approach that had been taken by most Democrats until recently.

Google’s willingness to spread cash around the think tanks and advocacy groups focused on internet and telecommunications policy has effectively muted, if not silenced, criticism of the company over the past several years, said Marc Rotenberg, the president of the Electronic Privacy Information Center. His group, which does not accept corporate funding, has played a leading role in calling out Google and other tech companies for alleged privacy violations. But Mr. Rotenberg said it is become increasingly difficult to find partners in that effort as more groups accept Google funding.

“There are simply fewer groups that are available to speak up about Google’s activities that threaten online privacy,” Mr. Rotenberg said. “The groups that should be speaking up aren’t.”

from the Washington Post, 2017-Aug-31, by Barry Lynn:

I criticized Google. It got me fired. That’s how corporate power works.

Big businesses can threaten free speech when they accumulate too much power. For Google, that moment has come. (Marcio Jose Sanchez/AP)

I’ve studied monopolies for about 20 years. I got into this line of work back in 1999, when an earthquake in Taiwan resulted in the shutdown of computer factories all over the United States.

What happened was that an earthquake disrupted the flow of electricity to foundries in Taipei, where most of the world’s capacity for a key type of semiconductor was located. The loss of this capacity led to a cascading crash of industrial activity, similar to a financial crash.

For me, this realization opened a window into a world that our economic textbooks tell us shouldn’t exist: A world in which a few giant corporations control all of various types of production and supply. Worse, a world in which those corporations sometimes put almost all the capacity to build some vital industrial input in a single physical place in the world.

Since then, I’ve written two books on monopolies and written many articles and op-eds. Much of my work has continued to focus on the ways that concentration of capacity can make complex systems like banking and communications — in addition to industrial production — subject to potentially catastrophic disruption.

What I came to understand is that the changes in the enforcement of antitrust laws that had allowed a few corporations to use their power in ways that put all society at risk, had also resulted in huge threats to our economic and political well-being.

Antimonopoly law, I learned, dates to the founding of our nation. It is, in essence, an extension of the concept of checks and balances into the political economy. One goal of antimonopoly law is to ensure that every American has liberty, to change jobs when they want, to create a small business or small farm if they want, to get access to the information they want. Another goal of antimonopoly is to ensure that our democratic institutions are not overwhelmed by wealth and power concentrated in the hands of the few.

What I also learned is that since the early days of the Reagan Administration, power over almost all forms of economic activity in America has been steadily concentrated in fewer and fewer hands. This includes retail and transportation. It includes pharmaceuticals and farming. It includes almost every corner of the Internet.

This concentration affects our economic well-being. It’s what explains why, for example, the percentage of Americans who own their own businesses has been falling for the last generation. As more and more of the economy become sown up by monopolistic corporations, there are fewer and fewer opportunities for entrepreneurship.

It also explains why me must pay more or many services. As hospitals continue to merge into giant chains, for example, they are able to pass along ever higher prices without having to worry about losing business to competitors. And anyone who flies these days can attest to what happens when just four airlines control 80 percent of the market.

But even more important is the way increasing monopoly affects us politically.

It means that we all enjoy less freedom to do what we want in our jobs and our lives. It means that fewer and fewer companies are competing for our labor, allowing employers to gain more and more power not only over how we do business, but also how over we speak, think and act.

If you want a good example of how giant corporations sometimes misuse the power that concentration gives them, just look at what happened to me.

For the last fifteen years, I’ve done my antimonopoly writing and research at a think tank in Washington named New America. This last June 27, my group published a statement praising the European Union for fining Google for violating antitrust law. Later that day I was told that Google — which provides substantial support to other programs at New America — said they wanted to sever all ties with the organization. Two days later I was told that the entire team of my Open Markets Program had to leave New America by September 1.

No think tank wants to appear beholden to the demands of its corporate donors. But in this instance, that’s exactly the case. I — and my entire team of journalists and researchers at Open Markets — were let go because the leaders of my think tank chose not to stand up to Google’s threats. (In a statement, New America has denied that this was the case.)

We should all be worried about big business interfering with our speech, our thinking and our expression. By design, the private business corporation is geared to pursue its own interests. It’s our job as citizens to structure a political economy that keeps corporations small enough to ensure that their actions never threaten the people’s sovereignty over our nation. The first and most vital step to this end is to protect the media we use to communicate with one another from being captured by a few giants.

But today we are failing. Not only are we not preventing concentration of power over our economy and our media. We are not protecting the groups that are working to prevent and reverse that concentration of power.

Wherever you work, whatever you do, your livelihood and your liberties are every day more at risk as long as we allow a few giant corporations — especially in online commerce — to continue to extend their reach into and over the world of ideas.

Barry Lynn formerly directed New America's Open Markets program and is the author of "Cornered: The New Monopoly Capitalism and the Economics of Destruction."

from the Wall Street Journal, 2017-Aug-14, by Heather Mac Donald:

Don’t Even Think About Being Evil
Corporate America has managed to make higher education look like an open marketplace of ideas.

‘Just wait till those campus snowflakes enter the real world—that’ll shape ’em up!” So goes a typical response to totalitarian hysteria at colleges. The firing of a Google engineer last week for questioning the company’s diversity ideology exposes that hope as naive. The “real world” is being remade in the image of college campuses with breathtaking speed.

A conveyor belt of left-wing conformity runs from the academy into corporations and the government, so that today’s ivory-tower folly becomes tomorrow’s condition of employment. Google’s rationale for firing James Damore perfectly mimics academic victimology—the equation of politically incorrect speech with violence, the silencing of nonconforming views, the refusal to hear what a dissenting speaker is actually saying.

After attending a diversity training session, Mr. Damore wrote a 10-page memo titled “Google’s Ideological Echo Chamber.” He observed that “differences in distributions of traits between men and women may in part explain why we don’t have 50% representation of women in tech and leadership.” Among those traits are assertiveness, a drive for status, an orientation toward things rather than people, and a tolerance for stress. He acknowledged that many of the differences in distribution are small and overlap significantly between the sexes, so that one cannot assume on the basis of sex where any given individual falls on the psychological spectrum. Considerable research supports Mr. Damore’s claims regarding male and female career preferences and personality traits.

Mr. Damore affirmed his commitment to diversity and suggested ways to make software engineering more people-oriented. But he pointed out that several of Google’s practices for engineering diversity discriminated in favor of women and minorities. And he called for greater openness to ideas that challenge progressive dogma, especially the “science of human nature,” which shows that not all differences are “socially constructed or due to discrimination.”

Mr. Damore’s fate was foreshadowed by the sacking of Harvard president Larry Summers in 2006. At a conference the previous year, Mr. Summers had hypothesized that the unequal distribution of the highest-level mathematical abilities may contribute to the sex disparity of science faculties. Numerous studies have confirmed that men predominate at the farthest reaches of math skills (high and low).

Mr. Summers’s carefully qualified speculation infamously provoked MIT biology professor Nancy Hopkins to flee the room and tell reporters she “would’ve either blacked out or thrown up” had she stayed. Mr. Summers issued a groveling retraction and ponied up a cool $50 million for more gender-diversity initiatives, but his tenure as president was doomed.

Google CEO Sundar Pichai employed the same bathetic language of injury in his response to Mr. Damore. “The memo has clearly impacted our co-workers, some of whom are hurting and feel judged based on their gender,” he asserted in a memo of his own. Yonatan Zunger, a recently departed Google senior engineer, claimed in an online essay that the speculations of Mr. Damore, a junior employee, have “caused significant harm to people across this company, and to the company’s entire ability to function.” He added that “not all conversations about ideas even have basic legitimacy” (emphasis his).

Ironically, Google is making even stronger claims about its lack of bias against women than Mr. Damore is. U.S. Labor Department auditors allege that the company’s salary differentials reflect sex discrimination; Google strenuously denies it. “We remain committed to treating, and paying, people fairly and without bias with regard to factors like gender or race,” Eileen Naughton, vice president of “people operations,” said July 17. “We are proud of our practices and leadership in this area.” But typical of the cognitive dissonance affecting every diversity-obsessed company, Google puts its workers through “implicit bias” training on the theory that such biases inevitably cloud their ability to judge female and minority employees and job applicants fairly.

The corporate world is even mimicking academia in its inhospitality to nonconforming speakers. Earlier this year, a Google employee asked me if I would be interested in speaking there about the police. The employee ultimately abandoned the idea, however, citing “personal/professional matters.” An affiliation, however remote, with someone who challenges the Black Lives Matter narrative is apparently a job hazard at Google.

Don’t assume that the discipline of the marketplace will prevent this imported academic victimology from harming business competitiveness. Google sets managerial goals for increased diversity. Mr. Damore wrote that he has observed such goals resulting in discrimination. That is fully believable. A comment on an internal anonymous discussion app warned that more Google employees need to stand up “against the insanity. Otherwise ‘Diversity and Inclusion’ which is essentially a pipeline from Women’s and African Studies, will ruin the company.”

America’s tech competitors in Asia are not yet infected by identity politics. The more resources U.S. companies spend on engineering diversity while competing firms base themselves on meritocracy, the more we blunt our scientific edge. Employees are thinking about leaving Google because of its totalitarian ideology, Mr. Damore said in an interview after his firing. While the prestige of elite companies may outweigh the burden of censorship for now, there may come a point when the calculus changes.

Eric Schmidt, chairman of Google parent Alphabet Inc., told a June shareholder meeting that Google was founded on the principle of “science-based thinking.” It says a lot about the corporate world that it makes universities look like an open marketplace of ideas. Research into biological differences may be unwelcome in much of academia, but it proceeds on the margins nevertheless. In the country’s most powerful companies, however, it is enough to disparage a scientific finding as a “stereotype” to absolve the speaker from considering the question: But is it true?

Ms. Mac Donald is a fellow at the Manhattan Institute and author of “The War on Cops” (Encounter, 2016).

from the Wall Street Journal, 2017-Aug-8, by The Editorial Board:

Google’s Diversity Problems
Progressive cultural taboos have migrated from campus to business.

Google professes a commitment to diversity, inclusion and openness, so there is no small irony that it now finds itself in the hot center of America’s diversity culture wars. The tech giant’s dismissal of a contrarian software engineer this week also raises deeper questions about the atmosphere of ideological conformity in corporate America.

Google computer scientist James Damore triggered the uproar when he published a memo [see original full text here -AMPP Ed.] last week blasting the search company’s “politically correct monoculture” and progressive gender policies. After his cri de coeur went viral, Google CEO Sundar Pichai fired Mr. Damore for violating the company’s code of conduct by “advancing harmful gender stereotypes in our workplace.”

Mr. Damore, who says several times that discrimination exists and is a problem, could have used an editor to soften his stridency and to fact-check some of his many pop-psychology claims about emotional differences between men and women. But even Mr. Pichai wrote that “much of what was in that memo is fair to debate,” and posts on Google’s internal messaging board support Mr. Damore for some of the issues he raised.

His main argument is that Google’s policies have created a conformist culture. Silencing alternative viewpoints, he says, “has created an ideological echo chamber where some ideas are too sacred to be honestly discussed.” He writes that “discrimination to reach equal representation is unfair, divisive and bad for business.” That, essentially, is Supreme Court Justice Clarence Thomas’s criticism of racial preferences.

Mr. Damore proposes steps Google could take to increase intellectual diversity, such as “stop alienating conservatives,” “confront Google’s biases,” “de-moralize diversity,” and “reconsider making Unconscious Bias training mandatory.”

To what extent Mr. Damore’s former colleagues would agree or disagree with any of this in the privacy of their cars on the way home is unknowable. But what got him tossed out the door were his musings on women in the workplace.

In a note to employees, Mr. Pichai wrote that “we strongly support the right of Googlers to express themselves,” but “to suggest a group of our colleagues have traits that make them less biologically suited to that work is offensive and not OK.” In other words, it’s OK to express views as long as they are not antithetical to Google’s political culture.

Mr. Pichai’s note sounds like an increasingly familiar form of legal cover. Mr. Damore doesn’t belong to a union, and private companies aren’t bound by the First Amendment, so Google was within its right to fire him. But before his firing, Mr. Damore had complained to the National Labor Relations Board about superiors “misrepresenting and shaming me.” Now he is arguing that his dismissal constitutes retaliation. This is a stretch, since the labor board’s purview doesn’t extend to individual workplace disputes. But Mr. Damore could still try to take Google to court.

Google’s lawyers, on the other hand, may have noted the Justice Department’s definition of sexual harassment as “activity which creates an intimidating, hostile, or offensive work environment for members of one sex.” Once female workers complained, Google may have felt it had a legal obligation to fire Mr. Damore.

The liability imperative doesn’t stop there. Google is under pressure from an Obama-era Labor Department investigation of its pay practices, which then-Labor Secretary Tom Perez initiated and the Trump Administration has continued. In April, Labor officials claimed they had uncovered “systemic compensation disparities” and “compelling evidence of very significant discrimination against women.” In this brave new legal world, a James Damore is collateral damage.

One irony, though, is that Google in its defense against the government has advanced one of Mr. Damore’s arguments—that gender disparities to the extent they exist are a result of factors unrelated to discrimination. As to the underlying reality: The American Enterprise Institute reports that more than 80% of computer science and engineering majors are men, but women receive about 60% of biology and 75% of psychology degrees. Enforcing gender parity by the numbers could inadvertently cause more discrimination.

Google’s leftwing biases are hardly news. Recall YouTube’s censorship last fall of PragerU’s conservative educational videos on topics such as university diversity and the Iraq war. The Google subsidiary deemed the videos “potentially objectionable.” Potentially?

The Damore firing underscores why so many don’t think Google should be trusted as an arbiter of content. Google enjoys a quasi-monopoly in search, which it uses to subordinate paid content to free media. Its algorithms are secret and supposedly aim to make information useful. Determining utility, however, invariably involves value judgments. So the question: Does Google deprioritize content it deems objectionable or antithetical to its values?

Many on the left are dismissing Mr. Damore as an alt-right nut. But the monolithic progressive culture incubated on college campuses clearly has spread to corporate America. The emergence of a backlash is no surprise.

from the New York Times, 2017-Aug-11, by David Brooks:

Sundar Pichai Should Resign as Google’s C.E.O.

There are many actors in the whole Google/diversity drama, but I’d say the one who’s behaved the worst is the C.E.O., Sundar Pichai.

The first actor is James Damore, who wrote the memo [Brooks links to the Gizmodo version stripped of graphs and references, but the intact memo is available here -AMPP Ed.]. In it, he was trying to explain why 80 percent of Google’s tech employees are male. He agreed that there are large cultural biases but also pointed to a genetic component. Then he described some of the ways the distribution of qualities differs across male and female populations.

Damore was tapping into the long and contentious debate about genes and behavior. On one side are those who believe that humans come out as blank slates and are formed by social structures. On the other are the evolutionary psychologists who argue that genes interact with environment and play a large role in shaping who we are. In general the evolutionary psychologists have been winning this debate.

When it comes to the genetic differences between male and female brains, I’d say the mainstream view is that male and female abilities are the same across the vast majority of domains — I.Q., the ability to do math, etc. But there are some ways that male and female brains are, on average, different. There seems to be more connectivity between the hemispheres, on average, in female brains. Prenatal exposure to different levels of androgen does seem to produce different effects throughout the life span.

In his memo, Damore cites a series of studies, making the case, for example, that men tend to be more interested in things and women more interested in people. (Interest is not the same as ability.) Several scientists in the field have backed up his summary of the data. “Despite how it’s been portrayed, the memo was fair and factually accurate,” Debra Soh wrote in The Globe and Mail in Toronto.

Geoffrey Miller, a prominent evolutionary psychologist, wrote in Quillette, “For what it’s worth, I think that almost all of the Google memo’s empirical claims are scientifically accurate.”

Damore was especially careful to say this research applies only to populations, not individuals: “Many of these differences are small and there’s significant overlap between men and women, so you can’t say anything about an individual given these population-level distributions.”

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That’s the crucial point. But of course we don’t live as populations; we live our individual lives.

We should all have a lot of sympathy for the second group of actors in this drama, the women in tech who felt the memo made their lives harder. Picture yourself in a hostile male-dominated environment, getting interrupted at meetings, being ignored, having your abilities doubted, and along comes some guy arguing that women are on average less status hungry and more vulnerable to stress. Of course you’d object.

What we have is a legitimate tension. Damore is describing a truth on one level; his sensible critics are describing a different truth, one that exists on another level. He is championing scientific research; they are championing gender equality. It takes a little subtlety to harmonize these strands, but it’s doable.

Of course subtlety is in hibernation in modern America. The third player in the drama is Google’s diversity officer, Danielle Brown. She didn’t wrestle with any of the evidence behind Damore’s memo. She just wrote his views “advanced incorrect assumptions about gender.” This is ideology obliterating reason.

The fourth actor is the media. The coverage of the memo has been atrocious.

As Conor Friedersdorf wrote in The Atlantic, “I cannot remember the last time so many outlets and observers mischaracterized so many aspects of a text everyone possessed.” Various reporters and critics apparently decided that Damore opposes all things Enlightened People believe and therefore they don’t have to afford him the basic standards of intellectual fairness.

The mob that hounded Damore was like the mobs we’ve seen on a lot of college campuses. We all have our theories about why these moral crazes are suddenly so common. I’d say that radical uncertainty about morality, meaning and life in general is producing intense anxiety. Some people embrace moral absolutism in a desperate effort to find solid ground. They feel a rare and comforting sense of moral certainty when they are purging an evil person who has violated one of their sacred taboos.

Which brings us to Pichai, the supposed grown-up in the room. He could have wrestled with the tension between population-level research and individual experience. He could have stood up for the free flow of information. Instead he joined the mob. He fired Damore and wrote, “To suggest a group of our colleagues have traits that make them less biologically suited to that work is offensive and not O.K.”

That is a blatantly dishonest characterization of the memo. Damore wrote nothing like that about his Google colleagues. Either Pichai is unprepared to understand the research (unlikely), is not capable of handling complex data flows (a bad trait in a C.E.O.) or was simply too afraid to stand up to a mob.

Regardless which weakness applies, this episode suggests he should seek a nonleadership position. We are at a moment when mobs on the left and the right ignore evidence and destroy scapegoats. That’s when we need good leaders most.

from USA Today, 2017-Aug-14, by Glenn Harlan Reynolds:

Google needs a new CEO, but dumping Sundar Pichai is not enough
When a gigantic corporation that controls our data and knows us intimately takes a controversial political stance, it ought to make us worry.

David Brooks is right. In the wake of his atrocious mishandling of the James Damore matter, Google CEO Sundar Pichai must go. Damore authored a moderate proposal, stressing that he supported diversity and thought that people should be treated as individuals, while offering some suggestions as to why Google’s efforts to recruit more women techies had failed. Various people (most of whom, as The Atlantic’s Conor Friedersdorf noted, seem not to have read Damore’s actual memo, but rather to have been responding to an imaginary document instead) demanded that Damore be fired. CEO Sundar Pichai complied and gave Damore the boot. For this egregious piece of mob-induced misjudgment, Pichai must go. But that’s the least of the problems for Google, and Silicon Valley. The Damore firing, and Pichai’s disgraceful handling of it, represents colossal damage to Google’s brand. In essence, it’s an announcement — by a company that has access to everyone’s data — that it endorses the notion of thought-crime. As Brooks says: “(Pichai) could have wrestled with the tension between population-level research and individual experience. He could have stood up for the free flow of information. Instead he joined the mob. He fired Damore and wrote, ‘To suggest a group of our colleagues have traits that make them less biologically suited to that work is offensive and not OK.’ That is a blatantly dishonest characterization of the memo. Damore wrote nothing like that about his Google colleagues. Either Pichai is unprepared to understand the research (unlikely), is not capable of handling complex data flows (a bad trait in a C.E.O.) or was simply too afraid to stand up to a mob.” Or, worst of all, Pichai didn’t stand up to the mob because he agreed with the mob. But whatever, it’s a big problem for Google, and by extension for Silicon Valley in general. Since its 1990s heyday, Silicon Valley has transformed from an unruly collection of aggressive upstarts disrupting existing industries to a flabby collection of near-monopolies, now busy enforcing gentry-liberal norms on their employees and customers. Whether it’s censoring right-leaning political figures, or firing employees who dare say something truthful but politically incorrect, there’s not much of the old startup spirit there. These are flabby overstaffed Big Business corporations, run by their HR departments. You might find more dynamism at General Motors, these days. But worse yet, they exercise tremendous power and require tremendous trust. When you use Facebook or Google (or Twitter, or Amazon, or Netflix) you’re sharing a lot of data with a company that you have to trust won’t abuse that. It’s much harder to trust a company that has decided to aggressively pursue thoughtcrime. And it doesn’t matter where you are on the political spectrum – Damore describes himself as a centrist. But it only takes one politically incorrect utterance, as so many in academia have learned, to achieve Enemy Of The People status. And then, apparently, you’re fair game. Can you trust a self-driving car from Google, if some new company policy might reprogram it to avoid events Google doesn’t approve? Can you trust Google to prevent its (apparently many) “social-justice warrior” employees from trawling through your personal data looking for dirt, and then leaking it? As Robert Tracinski writes, this is the big danger for Google: “The most dangerous part is that they are now beginning to be seen by the public (or revealed, depending on how you look at it) as politicized entities. Politicized entities to whom we are giving enormous amounts of data on our lives, thoughts and interests.” People were already agitating for stricter antitrust scrutiny of Google, Facebook and other Internet giants. One of the main protections those companies enjoyed against such scrutiny was their general image as benign and – aside from a vague sort of libertarianism – nonpolitical. Pichai’s handling of the Damore matter destroyed that image. Now Silicon Valley looks political, partisan and maybe even a bit sinister. It’s not a good look. Glenn Harlan Reynolds, a University of Tennessee law professor and the author of The New School: How the Information Age Will Save American Education from Itself, is a member of USA TODAY's Board of Contributors.

from the Wall Street Journal, 2017-Aug-8, by Holman W. Jenkins, Jr.:

Memo to a Google Engineer
Hey, shut up. Google is fighting the diversity furies and you’re not helping.

Try as we might, we can’t find anything truly objectionable in what a now-fired Google engineer had to say about the company’s diversity efforts.

Throughout his memo [see original full text here -AMPP Ed.], James Damore repeatedly makes a point that will be purposely lost on many journalists, because they are afraid of it: The distribution of traits within a population says nothing about the traits of any particular person.

Men, on average, may be taller than women. Systematic science tells us so. But this does not allow anyone to accuse Julie Newmar of being shorter than Mickey Rooney. Neither does it allow Ms. Newmar’s admirers to complain about the science of height distributions.

Google says it dumped Mr. Damore for perpetuating “gender stereotypes,” which implies it’s forbidden to mention scientifically validated variations in the distributions of traits as they relate to gender. Why? Because it’s easier than reminding those who wish to feel aggrieved that such findings say nothing about their own traits or how they will fare at Google.

Which brings us to the real reason Mr. Damore’s prospective employment lawsuit won’t be the great air-clearing this issue needs: Google will pay him off handsomely because it knows it doesn’t have a leg to stand on.

The gist of his memo was not to insist on gender stereotypes but on the folly of directing people into jobs for which they are not suited purely to meet diversity goals. Especially when, as he says, a better alternative is to rethink how jobs are structured if the goal is to make them more attractive to people with a different set of traits than they attract now.

Inconveniently, Mr. Damore also points to the discriminatory nature of Google “programs, mentoring and classes only for people with a certain gender or race.” Inconveniently, he notes the intrinsic unfairness of treating trait-based disparities as gender-based.

Example: Studies suggest women, on average, may be more anxious and more concerned about work-life balance than men, but plenty of men share these traits too. Where are the programs to help these men advance in a culture that naturally tends to reward those who are single-mindedly focused on their jobs?

“Philosophically, I don’t think we should do arbitrary social engineering of tech just to make it appealing to equal portions of both men and women,” Mr. Damore writes. “For each of these changes, we need principled reasons for why it helps Google.”

He insists it’s not intellectually defensible to assume all differences are the product of “oppression” and “sexism.” Guess what? Founders Larry Page and Sergey Brin are not stupid. They know this. Mr. Damore’s real offense is exposing a necessary hypocrisy in Google’s plan for fending off the societal attacks that began in 2014 when its workforce was revealed to be 70% male and 61% white.

Mr. Damore is an embarrassment to the company’s strategy of appeasing the diversity furies with tokenism, perfectly acceptable to Google’s critics as long as it affirms their insistence that any and all disparities arise from discrimination and victimization.

Its critics don’t really care about outcomes. They care about Google endorsing their ideological and political fixations.

For all the world, this controversy is a dead ringer for the political correctness (before the term was commonplace) that descended on E.O. Wilson with his 1975 book “Sociobiology,” which made the now-undisputed claim that many human behavioral traits are shaped by evolution and passed along genetically.

Mr. Wilson was accused of every retrograde impulse, from Nazism to eugenics to a desire to keep women in the kitchen, though nothing could be further from the truth.

He was physically attacked at a meeting of the American Association for the Advancement of Science, later writing, with excessive optimism, that it was the only case in America of a scientist being physically assaulted for “the expression of an idea.”

Here’s where we don’t blame Google, though, for living in the world. Companies do lots of things in the service of “community relations” that amount to payola for critics. Yes, it’s an uncomfortable position for a company that prides itself on scientific rationality to be found practicing deliberate irrationality to placate politically motivated activists. But unless business gets more help from the larger culture, what can you expect?

The Harvard of his day bravely stood by Mr. Wilson, though it’s debatable whether it would today. It even (if quietly) congratulated itself in 2000 for rereleasing what it called a “classic work” whose controversial nature “reverberates to the present day.”

If you can’t expect universities any longer to be brave in defense of reason, how can you ask a company whose stock is traded in the public market and whose relations with politicians and regulators are crucial to its ability to adapt and grow?

But at least Mr. Damore is likely to get a nice settlement.

from the Wall Street Journal, 2017-Aug-11, by James Damore:

Why I Was Fired by Google
James Damore says his good-faith effort to discuss differences between men and women in tech couldn’t be tolerated in the company’s ‘ideological echo chamber’

I was fired by Google this past Monday for a document that I wrote and circulated internally raising questions about cultural taboos and how they cloud our thinking about gender diversity at the company and in the wider tech sector. I suggested that at least some of the male-female disparity in tech could be attributed to biological differences (and, yes, I said that bias against women was a factor too). Google Chief Executive Sundar Pichai declared that portions of my statement violated the company’s code of conduct and “cross the line by advancing harmful gender stereotypes in our workplace.”

My 10-page document set out what I considered a reasoned, well-researched, good-faith argument, but as I wrote, the viewpoint I was putting forward is generally suppressed at Google because of the company’s “ideological echo chamber.” My firing neatly confirms that point. How did Google, the company that hires the smartest people in the world, become so ideologically driven and intolerant of scientific debate and reasoned argument?

We all have moral preferences and beliefs about how the world is and should be. Having these views challenged can be painful, so we tend to avoid people with differing values and to associate with those who share our values. This self-segregation has become much more potent in recent decades. We are more mobile and can sort ourselves into different communities; we wait longer to find and choose just the right mate; and we spend much of our time in a digital world personalized to fit our views.

Google is a particularly intense echo chamber because it is in the middle of Silicon Valley and is so life-encompassing as a place to work. With free food, internal meme boards and weekly companywide meetings, Google becomes a huge part of its employees’ lives. Some even live on campus. For many, including myself, working at Google is a major part of their identity, almost like a cult with its own leaders and saints, all believed to righteously uphold the sacred motto of “Don’t be evil.”

Echo chambers maintain themselves by creating a shared spirit and keeping discussion confined within certain limits. As Noam Chomsky once observed, “The smart way to keep people passive and obedient is to strictly limit the spectrum of acceptable opinion, but allow very lively debate within that spectrum.”

But echo chambers also have to guard against dissent and opposition. Whether it’s in our homes, online or in our workplaces, a consensus is maintained by shaming people into conformity or excommunicating them if they persist in violating taboos. Public shaming serves not only to display the virtue of those doing the shaming but also warns others that the same punishment awaits them if they don’t conform.

In my document, I committed heresy against the Google creed by stating that not all disparities between men and women that we see in the world are the result of discriminatory treatment. When I first circulated the document about a month ago to our diversity groups and individuals at Google, there was no outcry or charge of misogyny. I engaged in reasoned discussion with some of my peers on these issues, but mostly I was ignored.

Everything changed when the document went viral within the company and the wider tech world. Those most zealously committed to the diversity creed—that all differences in outcome are due to differential treatment and all people are inherently the same—could not let this public offense go unpunished. They sent angry emails to Google’s human-resources department and everyone up my management chain, demanding censorship, retaliation and atonement.

Upper management tried to placate this surge of outrage by shaming me and misrepresenting my document, but they couldn’t really do otherwise: The mob would have set upon anyone who openly agreed with me or even tolerated my views. When the whole episode finally became a giant media controversy, thanks to external leaks, Google had to solve the problem caused by my supposedly sexist, anti-diversity manifesto, and the whole company came under heated and sometimes threatening scrutiny.

It saddens me to leave Google and to see the company silence open and honest discussion. If Google continues to ignore the very real issues raised by its diversity policies and corporate culture, it will be walking blind into the future—unable to meet the needs of its remarkable employees and sure to disappoint its billions of users.

Mr. Damore worked as a software engineer at Google’s Mountain View campus from 2013 until this past week.

from PJ Media, 2017-Aug-31, by Tyler O'Neil:

Google Issues Ultimatum to Conservative Website: Remove 'Hateful' Article or Lose Ad Revenue

On Tuesday evening, Google sent a conservative website an ultimatum: remove one of your articles, or lose the ability to make ad revenue on your website. The website was strong-armed into removing the content, and then warned that the page was "just an example and that the same violations may exist on other pages of this website."

"Yesterday morning, we received a very bizarre letter from Google issuing us an ultimatum," Shane Trejo, media relations director of the Republican Liberty Caucus of Michigan, wrote on The Liberty Conservative. "Either we were to remove a particular article or see all of our ad revenues choked off in an instant. This is the newest method that Big Brother is using to enforce thought control."

The ultimatum came in the form of an email from Google's ad placement service AdSense. The email specifically listed an article on The Liberty Conservative's site, stating that the article violated AdSense's policies.

"As stated in our program policies, Google ads may not be placed on pages that contain content that: Threatens or advocates harm on oneself or others; Harasses, intimidates or bullies an individual or group of individuals; Incites hatred against, promotes discrimination of, or disparages an individual or group on the basis of their race or ethnic origin, religion, disability, age, nationality, veteran status, sexual orientation, gender, gender identity, or other characteristic that is associated with systemic discrimination or marginalization," the email stated.

The email warned The Liberty Conservative that it must either remove ads from that page, or "modify or remove the violating content to meet our AdSense policies."

"Please be aware that if additional violations are accrued, ad serving may be disabled to the website listed above," the AdSense email warned. "Please be aware that the URL above is just an example and that the same violations may exist on other pages of this website or other sites that you own."

Trejo argued that the article Google specified "contained no offensive content." Rather, it "was merely distinguishing the many differences between the alt-right and literal Nazis."

The Liberty Conservative writer suggested that the article was singled out because it was written by former Liberty Conservative contributor James Allsup. Allsup was involved in the "Unite the Right" riot (which Trejo described as a "rally-turned-riot") in Charlottesville, Va. Trejo said the article was targeted because "it was authored by a man deemed to be an 'unperson' by the corporate elite."

"Due to financial constraints, we had to comply with Google's strong-arming tactics for the time being," Trejo admitted. "An independent publisher such as The Liberty Conservative needs revenue from the Google ad platform in order to survive."

from the Wall Street Journal, 2017-Aug-16, by Yoree Koh and Jacob Gershman:

Tech Firms Break From Hands-Off Approach With Bans on White Supremacists
Citing policy violations, companies pull services from some users, setting off questions over free speech and legal rights

Technology companies’ recent moves to crack down on white supremacists thrust them into unusual territory for corporations that often take a more hands-off approach to who uses their services and how.

In the wake of weekend violence at a white supremacists rally in Charlottesville, Va., Alphabet Inc.’s Google and GoDaddy Inc. stopped providing hosting support for the Daily Stormer, a neo-Nazi site that the companies said violated their terms of service. Airbnb Inc. banned participants in the rally from staying in rentals booked through its site.

Uber Technologies Inc. blacklisted white supremacist James Allsup after Mr. Allsup and another passenger allegedly made racist remarks to their driver in Washington, D.C., on Friday night. In a video Mr. Allsup posted on Twitter , Mr. Allsup is heard asking the driver what he said was racist. Crowdfunding site GoFundMe removed campaigns to raise money to bail out the driver charged with speeding into a crowd of counterprotesters on Saturday, which killed 32-year-old Heather Heyer.

On Tuesday, payments company PayPal Holdings Inc. reiterated that it works to ensure “that our services are not used to accept payments or donations for activities that promote hate, violence or racial intolerance,” saying that includes white supremacists and Nazi groups. It is unclear if PayPal has recently removed or suspended any accounts that violated its terms of service.

Behind the swift action from the companies lie considerations about freedom of speech and the legal application of company policy, which seems to vary depending on who the end user is. Companies that are considered communications platforms have the greatest leeway to enforce policies that bar certain users, legal experts say.

Tech companies “certainly have the right to make their own judgments about what’s in the terms of service and whether it’s being violated,” said Mike Yang, former general counsel at Pinterest Inc. and a former deputy general counsel at Google.

Recently, the debate about what kind of speech tech firms allow on their platforms has focused on companies such as Facebook Inc., which has hosted fake news as well as violent live videos, and Twitter Inc., which has ramped up efforts to remove some accounts from its site.

Following the violence in Virginia, domain registrars—which act as intermediaries by making sure that a website’s domain name is linked to the correct IP address—have also become arbiters of free speech. If a registrar pulls service from a site, the site will appear offline to the public until it finds another registration provider.

“The number of net intermediaries acting as gatekeepers has increased,” since GoDaddy booted Daily Stormer, said Daphne Keller, who studies platforms’ legal responsibilities at the Stanford Center for Internet and Society. “Suddenly the domain registrars are sitting in judgment on content and speech,” joining the usual players around free speech such as Google, Facebook and Twitter.

Domain registrar GoDaddy said that, while it doesn’t usually take actions on complaints that would “constitute censorship of content,” it decided that an article Daily Stormer posted ridiculing Ms. Heyer crossed the line “to promoting, encouraging, or otherwise engaging in violence against any person.” On Sunday, it gave Daily Stormer 24 hours to find a new registrar.

Daily Stormer then registered on Google. Hours later, Google canceled Daily Stormer’s website-hosting registration, saying the site violated Google’s policies against inciting violence.

Daily Stormer, whose site was inaccessible Tuesday, didn’t respond to a request for comment.

Daily Stormer has reappeared on the web under what appears to be a new domain name, indicating it had found a new domain registrar.

Many of the actions that companies have taken against supremacists would probably be unconstitutional under the First Amendment if imposed by an elected official or public agency, experts say. The First Amendment’s protections of speech and expression are restrictions on government power.

“In general, the First Amendment is no barrier to discrimination on the basis of ideology or speech by a private person or entity,” said Dale Carpenter, a constitutional law professor at SMU School of Law in Dallas.

Airbnb rejected the reservations of some visitors to Charlottesville after it said it learned earlier this month that they were planning to stay in and organize “a series of after parties at several Airbnb listings while in town to attend this terrible event,” the company said in a statement. The company pointed to its community commitment as the reason for rejecting their reservations.

“We require those who are members of the Airbnb community to accept people regardless of their race, religion, national origin, ethnicity, disability, sex, gender identity, sexual orientation, or age,” the company said. “When we see people pursuing behavior on the platform that would be antithetical to the Airbnb Community Commitment, we take appropriate action.”

However, companies such as Airbnb and Uber could face more challenges to applying their policies because the business segments they operate in open them up to a host of local laws, experts say. Businesses that offer their services to the public must comply with state and local laws banning various kinds of discrimination. Those laws typically protect against discrimination on the basis of race, religion, ethnicity and gender. Unless a company is targeting supremacists because of their gender or race, those laws probably wouldn’t apply, according to UCLA constitutional scholar Eugene Volokh.

That’s not true everywhere. A few places like Seattle have laws that also ban discrimination on the basis of political ideology. Seattle’s public accommodations law says a business can’t turn away a patron because of conduct “reasonably related to political ideology” unless the customer’s conduct would “cause substantial and material disruption” of the owner’s property rights.

In California, where antidiscrimination laws are particularly strong, its courts ruled that a German restaurant in Torrance couldn’t evict patrons just for wearing swastika pins. An unsubstantiated fear of “troublemakers” didn’t justify a topless bar owner in San Diego denying admission to men clad in motorcycle club insignia, under a separate ruling.

Airbnb has argued in lawsuits against cities like San Francisco and Anaheim, Calif., that it is a communications platform, putting it in the same class as Facebook or Twitter, not a short-term rental business. The lawsuit against San Francisco settled in May without a clear resolution on whether Airbnb is a communications platform. Anaheim appeared to recognize Airbnb as a communications company.

For Airbnb, excluding renters based on their racist views is a shift from last year, when the company changed how information is shared on its site after renters said hosts discriminated against them for race or other characteristics.

from the Wall Street Journal, 2017-Sep-28, by The Editorial Board:

Hazing Justice Gorsuch
The left roughs him up before his first full Supreme Court term.

The Supreme Court begins its new term next week, with Neil Gorsuch seated for his first full term. He must have made an impression last year because the political left is already attacking him for . . . making speeches outside the Court. Seriously. As for the law, the Justices agreed Thursday to hear Janus v. Afscme, which could become a landmark case on coerced political speech and the First Amendment.

The case gives the Court another chance to atone for its mistaken 1977 ruling in Abood v. Detroit Board of Education that government can force employees to pay dues that unions spend on causes the employees might not support. Abood justified this on grounds that union “agency fees” financed collective bargaining, not political activities. This ignored that collective bargaining by public unions is inherently political since it involves issues like pensions, public services and the level of taxation. Advocacy about these issues is core protected speech under the First Amendment.

Agency-fee money is fungible, and it’s clear by now that unions also fund any political activity you can imagine—from Clinton for President, to advocating for a higher minimum wage, immigration reform, legal marijuana and even Supreme Court nominations. This violates what the Court said in 2014 (Harris v. Quinn ) is a “bedrock principle” that “no person in this country may be compelled to subsidize speech by a third party that he or she does not wish to support.”

The High Court has been gradually rolling back Abood in recent years, and it looked poised to go all the way in 2016 in Friedrichs v. California Teachers Association, a case brought by 10 public school teachers. But Justice Antonin Scalia’s death led to a one-sentence 4-4 decision “by an equally divided Court.” Janus offers a second chance, and Justice Gorsuch is likely to tip the majority in favor of free speech if his First Amendment jurisprudence on lower courts is any guide.

The stakes for unions are enormous. Earlier this month the Center for Union Facts reported that private and public unions together gave nearly $765 million to Democrats and liberal groups between 2012 and 2016. Afscme polled its members amid a wave of state right-to-work conversions, concluding in 2015 that if they had a choice about whether or not to give their money to the union, 15% would opt out, while half would be “on the fence.” A ruling in favor of free speech in Janus could extend that option to at least five million government employees.

This case among others may explain the political distemper aimed at Justice Gorsuch from the left. The outrage du jour is that the Justice has agreed to speak to conservative legal groups and an event Thursday was held at the Trump International Hotel in Washington, D.C. All of this is somehow deemed to be a conflict of interest, and the left is using it to blow smoke about the Justice’s ethics.

Senate Minority Leader Chuck Schumer piped up with a press release declaring that “Justice Gorsuch speaking to a conservative group in the Trump Hotel, where the President continues to hold a financial stake, is everything that was wrong with his nomination. There’s a reason we questioned his independence during his confirmation hearings.” The only thing missing from that cheap shot is a serious ethical point.

The last time we checked, a hotel is a venue, not a case or controversy before the High Court. If speaking at a Trump hotel is repaying President Trump for appointing him to the Court, we have entered the Twilight Zone of legal ethics.

As for speaking to conservative groups, join the Supreme Court club. Justices Clarence Thomas, Samuel Alito and Scalia have all spoken at past Federalist Society events, while Justices Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor have addressed the left-leaning American Constitution Society.

All of this is best understood as a warning to Justice Gorsuch of the kind of treatment he’ll receive if he rules against progressive causes. We assume he can take the hazing.

from the Wall Street Journal, 2017-Jun-21, by Daniel Henninger:

Saving Chief Wahoo
The Supreme Court’s breathtaking defense of the bedrock principle of freedom to speak.

Washington Redskins owner Dan Snyder immediately got the importance of the Supreme Court’s “Slants” decision this week. “I am THRILLED.” Mr. Snyder said in a written understatement. “Hail to the Redskins.”

No, hail to the Supreme Court, which stands in our times as the nation’s sturdiest dam against a determined assault on American free speech.

Set aside for a moment the Washington Redskins, and we’ll shortly get to the bigger issue of the Cleveland Indians’ embattled logo, Chief Wahoo. Several elevated thoughts are in order.

It is not possible to overstate the importance of the Supreme Court’s unanimous decision this week to confer free-speech protection on the Slants, an Asian-American rock band. That is because it is also hard to overstate the progressive left’s determination to establish, in practice if not in law, limits on America’s free-speech traditions.

Ruling against the U.S. Patent and Trademark Office’s determination that the name Slants had violated its “disparagement clause,” Justice Samuel Alito’s decision for the court was written with the rare clarity of a declarative sentence in the active voice: “This provision violates the Free Speech Clause of the First Amendment. It offends a bedrock First Amendment principle: Speech may not be banned on the ground that it expresses ideas that offend.”

Anyone half-awake to American life in recent years knows there is a large effort under way to banish that bedrock principle of protection for words that offend. Free-speech traditions are under pressure on campuses, in high schools, in the media, in the streets and in sports.

That the court’s liberal justices— Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan —joined the majority suggests these four see what is going on, that letting the ability to speak one’s mind slip away under this silencing weight will damage all Americans.

What the free-speech diminishers understand, however, is that the way around a stalwart Supreme Court is self-censorship. If you are trying to suppress certain ideas and thoughts, the most effective means is to get people to shut up. The ideas you don’t like will disappear.

Like the Washington Redskins or Chief Wahoo.

Some years ago, the notion emerged that school sports teams with names such as the Dartmouth Indians or the University of North Dakota Fighting Sioux were offensive, racist slurs.

In 2015 Sen. Harry Reid leaned on NFL Commissioner Roger Goodell to ban the Washington Redskins’ name. Mr. Goodell declined. The trademark office ruled in 2014 that the Redskins also violated its “disparagement” clause, and the Supreme Court decision at least ensures that the logo is legally protected.

That won’t stop the political coercion cops, who are still deploying intimidation and shaming tactics beyond the reach of the courts and Constitution. All the informal silencing elements are in play to extinguish Chief Wahoo, who after nearly 70 years is pretty much the symbolic representation of the entire city of Cleveland.

Unlike the NFL’s Mr. Goodell, Major League Baseball Commissioner Rob Manfred is leaning on Indians owner Paul Dolan to drop the logo. Last month, “Saturday Night Live”—which notably bills itself as “from New York”—described Chief Wahoo as “racist.” Naturally, an ESPN commentator in April did a number on Chief Wahoo. Editorial pages in Ohio routinely call for a ban, which, needless to say, gives us some idea of where the truth lies.

Last year, the Washington Post actually did a poll of Native Americans’ feelings about the Redskins logo. The percentage who were offended was . . . 9%. The rest checked off “doesn’t bother me.” A Cleveland friend who’s been going to Arizona for years says she has met plenty of Navajos who love Chief Wahoo.

What is going on? In two words, cultural appropriation.

“Cultural appropriation” is the sort of thing someone like me gets paid to absorb so other people can keep their heads clear. Among the phrase’s various uses, it means that the representative of one culture isn’t allowed to use the images or traditions of another culture unless the second culture gives its permission. Got it?

The art world has recently had several cultural-appropriation controversies, which get covered with eye-opening theoretical nuance by New York Times culture writers. Minneapolis’s Walker Art Center agreed to dismantle and ultimately burn a sculpture by a white artist after some members of the Dakota Nation objected.

People like MLB’s Rob Manfred think they are making a reasonable accommodation. But you can’t. The exterminating left will pocket any concession and roll forward toward the next target. Agree to delete Chief Wahoo or burn one uncomprehending artist’s sculpture as cultural misappropriation, and centuries of Western art will be heading to the furnaces or basements, with complicit museum directors holding the door open.

An exaggeration? These days? I recall a Buffalo Springfield lyric: Step out of line and they’ll take you away.

This happens because people in positions of authority buckle. Which is why the Supreme Court’s unanimous defense of the Slants and freedom of speech is breathtaking.

from the Wall Street Journal, 2017-Mar-8, by Daniel Henninger:

McCarthyism at Middlebury
The silencing of Charles Murray is a major event in the annals of free speech.

The violence committed against Charles Murray and others at Middlebury College is a significant event in the annals of free speech.

Since the day the Founding Fathers planted the three words, “freedom of speech,” in the First Amendment to the U.S. Constitution, Americans and their institutions have had to contend with attempts to suppress speech.

The right to speak freely has survived not merely because of many eloquent Supreme Court decisions but also because America’s political and institutional leadership, whatever else their differences, has stood together to defend this right.

But maybe not any longer.

America’s campuses have been in the grip of a creeping McCarthyism for years. McCarthyism, the word, stands for the extreme repression of ideas and for silencing speech.

In the 1950s, Republican Sen. Joe McCarthy turned his name into a word of generalized disrepute by using the threat of communism, which was real, to ruin innocent individuals’ careers and reputations.

Today, polite liberals—in politics, academia and the media arts—watch in silent assent as McCarythyist radicals hound, repress and attack conservatives like Charles Murray for what they think, write and say.

One of the first politicians to speak against this mood in 1950 was Republican Sen. Margaret Chase Smith of Maine. In her speech, “Declaration of Conscience,” Sen. Smith said: “The American people are sick and tired of being afraid to speak their minds lest they be politically smeared as ‘Communists’ or ‘Fascists’ by their opponents. Freedom of speech is not what it used to be in America. It has been so abused by some that it is not exercised by others.”

Three years later, in 1953, President Dwight Eisenhower gave a famous commencement speech at Dartmouth College. “Don’t join the book burners,” Ike told the students. Even if others “think ideas that are contrary to ours, their right to say them, their right to record them, and their right to have them at places where they are accessible to others is unquestioned, or it isn’t America.”

Today, the smear is common for conservative speakers and thinkers. Prior to Mr. Murray’s scheduled talk at Middlebury, a student petition, signed by hundreds of faculty and alumni, sought to rescind the invitation because “we believe that Murray’s ideas have no place in rigorous scholarly conversation.” Such “disinvitations” have become routine.

So let us plainly ask: Why hasn’t one Democrat stood in the well of the Senate or House to denounce, or even criticize, what the Middlebury mob did to Charles Murray and the faculty who asked him to speak? Have any of them ever come out against the silencing of speech they don’t like?

Let’s recognize that the failure to oppose McCarthyist creep from the left is also consuming liberal reputations. A key event here is what happened at Yale to Professors Erika and Nicholas Christakis, who were made to resign their positions last May over the infamous 2015 “Halloween” costumes incident.

Erika Christakis wrote later about the experience for the Washington Post and there is one unforgettable passage: “Few [of her colleagues] spoke up. And who can blame them? Numerous professors, including those at Yale’s top-rated law school, contacted us personally to say that it was too risky to speak their minds. Others who generously supported us publicly were admonished by colleagues for vouching for our characters.” That is McCarthyism at Yale.

Years back, well-intentioned people supported the creation of speech codes in academic settings. That was a poisoned chalice. Acquiescing to claims for ever-expanding definitions of “hurtful speech” led, inevitably, to rule by mob, like the one at Middlebury that sent Prof. Allison Stanger to the hospital. Some faculty of late have been setting aside the tedium of open discourse to join the thrilling student mobs.

For all this, Middlebury may be a turning point in this slow, steady and too often unresisted effort to replace the Founders’ First Amendment with a progressive rewrite.

A few days after the Murray incident, something extraordinary happened: Some 40 Middlebury professors, from many disciplines, signed a strong statement supporting “Free Inquiry on Campus.” It was published Tuesday on this newspaper’s op-ed page. By late Wednesday the number had grown to more than 80 signers.

The Middlebury Statement by these professors, some without tenure, is an important event.

Their statement doesn’t merely defend free speech and inquiry. It explicitly rejects arguments by the left justifying speech suppression, such as their notion that certain ideas are themselves a form of “violence.” The Middlebury dissenters assert: “Exposure to controversial points of view does not constitute violence.”

Readers who find that sentence self-evident cannot imagine how far eroded free-speech’s foundations have become. The Middlebury Statement is a thumb in the dike. Its signers deserve wide support, not least from political non-conservatives.

from the Wall Street Journal, 2017-Jun-21, by Jeryl Bier:

The Insidious Influence of the SPLC
Its branding of ‘hate groups’ and individuals is biased, sometimes false—and feeds polarization.

The Washington-based Family Research Council “advances faith, family and freedom in government and culture from a Christian worldview,” according to its profile on the website of GuideStar, the nation’s premier philanthropic rating agency. GuideStar gives the FRC a “silver” rating for demonstrating a “commitment to transparency.” But the top of the profile page also declares: “This organization was flagged as a hate group by the Southern Poverty Law Center.”

GuideStar announced this month that it would classify 46 nonprofits as hate groups based on the SPLC’s imprimatur. GuideStar CEO Jacob Harold told the Associated Press the move was justified by an increase in “hateful rhetoric” across the country.

Aided by a veneer of objectivity, the SPLC has for years served as the media’s expert witness for evaluating “extremism” and “hatred.” But while the SPLC rightly condemns groups like the Ku Klux Klan, Westboro Baptist Church and New Black Panther Party, it has managed to blur the lines, besmirching mainstream groups like the FRC, as well as people such as social scientist Charles Murray and Somali-born Ayaan Hirsi Ali, a critic of Islamic extremism.

A clear illustration of the SPLC’s pervasive and insidious influence is the March riot at Middlebury College, where Mr. Murray had been invited to speak. “The SPLC is the primary source for the protesters at my events,” Mr. Murray told me. “It is quotes from the SPLC, assertions by the SPLC that drive the whole thing.”

Mr. Murray’s politics are libertarian, but the SPLC labels him a “white nationalist.” In reporting on the Middlebury fracas, numerous news organizations repeated the SPLC’s characterization without noting it was false. The AP even put it in a headline: “College Students Protest Speaker Branded White Nationalist.”

How did the SPLC become the default journalistic resource on purported hate speech, racism and extremism? Morris Dees, still the SPLC’s chief trial attorney, founded the organization in 1971 along with Joseph Levin Jr., now an emeritus board member. In its early years, the SPLC made a name for itself by winning some high-profile cases against the KKK and other white-supremacist groups. But over time its mission changed. In recent years it has focused on “tolerance education,” hate-group tracking (including an online “hate map”) and fundraising.

Although the SPLC is a 501(c)(3) nonprofit and therefore statutorily prohibited from engaging in partisan politics, even a cursory review of its website belies its nonpartisan status. During the 2016 election, the SPLC posted “Margins to the Mainstream: Extremists Have Influenced the GOP 2016 Policy Platform” and “Here Are the Extremist Groups Planning to Attend the RNC in Cleveland.” The Democratic platform and convention received no such scrutiny.

An SPLC post titled “Electoral Extremism” ostensibly profiles “a dozen 2014 candidates, including Democrats, Republicans, Libertarians, independents and others.” Only a single Democrat is profiled, along with five Republicans and five third-party candidates. All of those listed are considered “right wing” or conservative, including the third-party ones. Even the Democrat on the list formerly belonged to the Constitution Party.

Last August SPLC senior fellow Mark Potok tied Donald Trump to David Duke, whom Mr. Trump had denounced. “Anyone with two brain cells to rub together can see the denunciations [of Mr. Duke] are not sincere,” Mr. Potok told the Huffington Post. “The sad reality is that David Duke and Donald Trump are appealing to precisely the same constituency.” Not quite. Mr. Trump took 58% of the vote in Louisiana. Mr. Duke, running for U.S. Senate on the same ballot, managed only 3%.

The SPLC reflexively plays down threats from the left. This February Mr. Potok wrote that in the 1990s “the American radical right” was “deprived of the bogeyman of communism.” Even when condemning far-left groups, the SPLC shows an odd deference. Describing black separatists, the SPLC avers that “much black racism in America is, at least in part, a response to centuries of white racism,” and “the racism of a group like the Nation [of Islam] may be relatively easy to understand.”

Kori Ali Muhammad allegedly murdered three white people in California in April. The SPLC reports that on Facebook Mr. Muhammad wrote of “grafted white devil skunks” and repeatedly referred to the mythical “Lost Found Asiaiatic [sic] Black Nation in America.” Yet in contrast with its unequivocal (and false) tagging of Mr. Murray, the group describes Mr. Muhammad as a “possible black separatist.”

The SPLC’s work arguably contributes to the climate of hate it abhors—and Middlebury isn’t the worst example. In 2012 Floyd Lee Corkins shot and wounded a security guard at the Family Research Council’s headquarters. Mr. Corkins, who pleaded guilty to domestic terrorism, told investigators he had targeted the group after learning of it from the SPLC’s website. The SPLC responded to the shooting with a statement: “We condemn all acts of violence.”

Last week the SPLC found itself in the awkward position of disavowing the man who opened fire on Republican members of Congress during baseball practice. “We’re aware that the SPLC was among hundreds of groups that the man identified as the shooter ‘liked’ on Facebook,” SPLC president Richard Cohen said in a statement. “I want to be as clear as I can possibly be: The SPLC condemns all forms of violence.”

Some journalists harbor doubts about the SPLC. “Any time a group like that is seen as partisan it undermines itself and its noble mission,” a network anchor told me on condition of anonymity. “Anti-LGBTQ bigotry is heinous, but classifying the Family Research Council in the same terms as Nazis did not help SPLC in its nonpartisan mission.”

Still, as long as journalists serve up what the SPLC dishes out, the group has little to gain by directly engaging its critics. (It did not respond to three inquiries for this article.) Now the GuideStar partnership may further burnish its credentials as an unbiased arbiter of hate.

Mr. Bier is an accountant and freelance writer.

from the Wall Street Journal, 2017-Jun-15, by Sohrab Ahmari:

Liberalism: Believers Need Not Apply
Progressives have triumphed spectacularly over faith and tradition. Now they are targeting conscience itself.

Does liberalism have any room left for Christians and other believers? The question has been posed countless times, and each time liberals answer more decisively than the previous: No.

On Thursday Britain’s Liberal Democrats delivered that message to their leader, Tim Farron, forcing him to resign over his mildly conservative views on homosexuality and abortion. The Lib Dems supposedly carry the torch of 19th-century classical liberalism, though more recently it’s been difficult to distinguish them from any progressive party, anywhere.

Not least when it comes to gender-and-sexuality orthodoxy. The media and many in his own party have hounded Mr. Farron for years because he deviated—gently, almost imperceptibly—from that orthodoxy. A working-class evangelical Christian, Mr. Farron imagined that his liberal opinions on other big issues like climate change and the European Union would protect him. He was wrong.

Soon after he took the party reins in 2015, Mr. Farron was asked whether, as a Christian, he considers homosexuality a sin. The Lib Dem leader gave the quintessential Christian reply: “We’re all sinners.” But it wasn’t enough. The question would resurface amid the election campaign this spring.

During a TV interview on April 18, he was pressed four times, and four times he demurred. Quiescence wasn’t enough.

Pressure mounted, and the next day Mr. Farron relented. No, he clarified in remarks at the House of Commons, homosexuality isn’t a sin. That still wasn’t enough. The latter-day Gletkins and Ivanovs needed to be sure that Mr. Farron believed this in his heart of hearts, not merely as a matter of public confession. If he didn’t think homosexuality a sin, asked a BBC interviewer a few days later, why had it taken him so long to say so? Mr. Farron was reduced to spouting gibberish.

Then the Guardian newspaper unearthed a 2007 interview, in which he had suggested that “abortion is wrong” but also cautioned Christian activists that an immediate outright ban would be impracticable. Confronted with his own words on the campaign trail, Mr. Farron pleaded that he’d never advocated abortion restrictions. It wasn’t enough.

In his resignation statement, Mr. Farron wrote: “To be a political leader, especially of a progressive liberal party in 2017, and to live as a committed Christian, to hold faithfully to the Bible’s teaching, has felt impossible.” He added: “I seem to have been the subject of suspicion because of what I believe and who my faith is in.”

The concept he was grasping for is conscience.

Mr. Farron’s politics recall the liberalism of Gladstone, Chesterton and Isaiah Berlin, which treated conscience as king. Today’s liberalism has triumphed so spectacularly over the claims of faith and tradition that it has nothing left to conquer but the individual conscience. This is why modern liberals are so unmagnanimous in victory.

It isn’t enough to emancipate transgender people—you, rabbi, must adhere to strict pronoun guidelines and feel in your soul that Chelsea Manning was always a “she.” It isn’t enough to legalize abortion—you, Tim Farron, must like it.

Liberals welcome believers insofar as religion can be deployed in service of liberal causes, to be sure. But any expression of theological or moral judgment is met with hostility.

Witness, across the Atlantic, Sen. Bernie Sanders’s tirade against Russell Vought, President Trump’s nominee for deputy director of the Office of Management and Budget. During a Senate confirmation hearing last week, the Vermont socialist grilled Mr. Vought about his contention, in a blog post published last year, that Muslims “do not know God, because they have rejected Jesus Christ his Son, and they stand condemned.”

Mr. Vought’s was a particularly stark summary of the basic Christian teaching that faith in the God-Man is essential to salvation. Plenty of Americans might disagree with the substance, phrasing or both. But Mr. Sanders went further, arguing that Mr. Vought’s views were “Islamophobic” and “hateful” and therefore disqualifying.

Set aside the senator’s riding roughshod over the Constitution, which prohibits religious tests for office. What was most depressing about his outburst was the bleak vision of civic life behind it.

To wit, Mr. Sanders implied that a devout Christian can’t hold fast to his faith’s most demanding claims and at the same time exercise public authority with decency and honor. If you disagree with someone’s theology, in other words, it must mean you hate him. Yet at its best the West has stood for the opposite principle: that people can build and share a democratic public square across and even through such differences.

That principle is decaying across much of the West, and authoritarian adversaries like Vladimir Putin are no doubt trying to accelerate its demise. But it wasn’t Mr. Putin who made Western politics so inhospitable to large segments of society—and to conscience.

Mr. Ahmari is a Journal editorial writer in London.

from the Wall Street Journal, 2017-Sep-7, by The Editorial Board:

Democrats and ‘Dogma’
Are you now or have you ever been an ‘orthodox Catholic’?

‘Why is it that so many of us on this side have this very uncomfortable feeling that—you know, dogma and law are two different things. And I think whatever a religion is, it has its own dogma. The law is totally different. And I think in your case, professor, when you read your speeches, the conclusion one draws is that the dogma lives loudly within you, and that’s of concern when you come to big issues that large numbers of people have fought for years in this country.”

Thus did California Sen. Dianne Feinstein pronounce on Wednesday that, by virtue of being a faithful Catholic, Amy Barrett, a respected law professor at Notre Dame, may have excluded herself from a federal judgeship. President Trump has nominated Ms. Barrett for the Seventh Circuit Court of Appeals. But the Democratic obsession with Ms. Barrett’s religion transformed what should have been a routine Senate confirmation hearing into a tour of the mind of the modern secular left.

The ugly implication of Mrs. Feinstein’s words is underscored by the context. She deployed them to suggest Ms. Barrett’s faith would lead her to substitute her personal beliefs for the law, basing the accusation primarily on a law review article Ms. Barrett wrote in 1998 as a law clerk.

Ms. Barrett and her co-author explicitly reached the opposite conclusion: “Judges cannot—nor should they try to—align our legal system with the Church’s moral teaching whenever the two diverge.”

The question addressed by the law review article was what Catholic judges ought to do when they conclude they cannot in good conscience apply the law as written because it clashes with their own moral views. If she was rattled by the question, Sen. Feinstein ought to have been reassured by the answer Ms. Barrett gave: They should recuse themselves.

David Rivkin, a constitutional litigator, says “the tenor of questions by Democrat Senators seemed designed more to challenge the ideas of Catholic orthodoxy—a subject more fitting for a theological debate than a Senate hearing.”

Proving Mr. Rivkin’s point. Sen. Dick Durbin jumped in to demand of Ms. Barrett: “Do you consider yourself an orthodox Catholic?” Does Mr. Durbin understand that he sounds like the Southern Baptist ministers in 1960 who thought Jack Kennedy shouldn’t be President because he’d take orders from the pope?

This questioning is part of a broader effort on the left to disqualify people with strong religious views from the public square. Ms. Feinstein’s smear about Ms. Barrett’s “dogma” dovetails with the left-wing Southern Poverty Law Center’s effort to label any outfit that doesn’t go along with its agenda a “hate group.”

Sen. Al Franken, the great legal philosopher, wrapped it all up nicely by accusing Ms. Barrett of having appeared before a “hate” group. He was referring to the Alliance Defending Freedom, a religious liberty outfit that the Southern Poverty Law Center designated a hate group because it adheres to traditional views about human sexuality and marriage.

As for judges imposing dogma over the law, it’s worth noting that not all dogmas are religious. Democratic interest groups are explicit in demanding that Democratic judicial nominees be committed to overturning Citizens United’s defense of free speech while brooking no modification in Roe v. Wade.

Let’s hope the Senate rejects the bigotry that marred Wednesday’s hearing and approves the eminently qualified Ms. Barrett for the Seventh Circuit. The federal bench could use more judges who understand their civic duty as well as Ms. Barrett does.

from the Washingtonian, 2017-Jun-27, by Andrew Beaujon:

The Washington Post’s New Social Media Policy Forbids Disparaging Advertisers
You can be fired if your social-media activity "adversely affects The Post's customers, advertisers, subscribers, vendors, suppliers or partners."

A new social-media policy at the Washington Post prohibits conduct on social media that “adversely affects The Post’s customers, advertisers, subscribers, vendors, suppliers or partners.” In such cases, Post management reserves the right to take disciplinary action “up to and including termination of employment.”

The Post‘s Guild sent out a bulletin Sunday night protesting the policy. “If you’re like most of us, you probably acknowledged its receipt without reading it,” says the note, which was written by Guild co-chair Fredrick Kunkle. “But what you don’t know could hurt you.”

The guild wants to jettison other parts of the policy, which the Post confirms to Washingtonian went into effect on May 1 and applies to the entire company:

The Post “assures us that no one would get in trouble for such social media activity,” Kunkle writes in the update, which is titled “The Post’s Social Media Mayhem.” He continues: “But that’s the way the policy is written.” The Post declined to comment on the policy to Washingtonian.

On May 30, perhaps not coincidentally just after a Denver Post journalist was fired after sending a racist tweet, Post employees received an email from deputy managing editor Tracy Grant that took “an opportunity to remind people of their obligations under the newsroom’s social media policy.” The policy with which many in the newsroom are familiar dates back to September 2011 and looks it—journalists are warned not to “place tokens, badges or virtual gifts from political or partisan causes on pages or sites,” for instance.

It is, in other words, a guideline. That’s the form news organizations’ social media policies often take–“Don’t write or post anything that would embarrass the LAT or compromise your ability to do your job” reads a vintage Los Angeles Times policy. The New York Times‘ policy is likewise guideline-y: Remember that what you do is public, and that “your online behavior should be appropriate for a Times journalist,” Philip B. Corbett, the paper’s associate managing editor for standards put it in 2012. (In an email, Corbett writes those are “still the operative principles.” Neither policy mentions advertisers or consequences for people who stray from the rules.)

In fact, for a once-internet-agnostic organization that has since become a pageview powerhouse, the Post‘s insistence on separating social media activity from the rest of employee conduct feels oddly fuddy-duddyish. (I thought it might be instructive to see what the social media policy is like at Amazon, which like the Post is owned by Jeff Bezos. The retailer has yet to respond to an request to read any such policy if it exists.)

The Guild says it became aware of the new policy on April 25 and is trying to remove these provisions from the policy as it pursues a new labor agreement with Post management, Kunkle tells Washingtonian. The Guild’s current agreement with the Post expired on June 10, and Kunkle says they’ve had about five meetings so far.

from the Wall Street Journal, 2017-May-24, by Douglas Belkin:

GOP Leads Efforts to Pass State Laws It Says Protect Free Speech
Moves follows high-profile demonstrations against conservative speakers

Demonstrators have chased away conservative speakers over the past few months at the University of California, Berkeley, and Middlebury College in Vermont.

Taking action to avoid similar scenes, universities in Illinois and Texas rescinded speaking invitations earlier this month to a Republican senator and a Nobel Prize-winning scientist before they even showed up.

Now, state legislatures, most led by Republicans, are advancing bills they say are intended to support free speech. The laws include measures to suspend troublemakers, remove free-speech zones that limit protests to small areas on campus and cut off money to schools that don’t protect the First Amendment.

“There’s been censorship of free speech on campuses around the country,” said Jesse Kreme, a Republican state representative in Wisconsin who is sponsoring a bill there. “We should have a free marketplace of ideas; people shouldn’t be shouted down for expressing themselves.”

In the past few months, governors have signed legislation protecting free speech on campus in Colorado, Tennessee, Utah and Virginia. Meanwhile, Republican legislators have proposed bills in Illinois, Wisconsin, Texas, California, North Carolina, Michigan, Louisiana and Georgia.

Republicans control the legislature in three of the four states where governors—two of them Democrats—have so far signed the bills. The GOP controls the legislature in six of the eight states where such legislation has been proposed.

Caiden Nason, the president of the Democratic-student group on the Berkeley campus, said he thought the legislation proposed for California was overwrought. He believes any speaker who comes to campus with provocative views needed to come prepared.

“If you can’t handle someone yelling at you then you probably shouldn’t speak here,” he said. “People are going to be loud sometimes.”

Much of the proposed legislation is based on a model bill published in January by the Goldwater Institute, a conservative-leaning think tank in Phoenix. It prohibits school administrators from bowing to political pressure and rescinding invitations to controversial speakers, mandates that every freshman be taught about the campus’s free-speech policy and require schools to discipline students who twice interfere with the free speech rights of others.

By interference, the model law refers to “protests and demonstrations that infringe upon the rights of others to engage in or listen to expressive activity.…”

The proposal nullifies any speech codes, some of which restrict protests to designated areas on campus. It also requires an annual report summarizing how school administrators handled free-speech issues.

“You want to carry a sign and march on the sidewalk? You can do that right up to the point where you block someone else’s ability to speak,” said Jonathan Butcher, co-author of the Goldwater Institute’s model legislation. “If you want to ask an antagonistic question, great, we want that to happen, but you cannot shout down a speaker and force them to leave the room.”

The American Association of University Professors said this month said it supports freedom of expression on campus but opposes any legislation “that interferes with the institutional autonomy of colleges and universities by undermining the role of faculty, administration, and governing board in institutional decision-making.”

In Wisconsin, where a bill based on the Goldwater Institute model was fiercely debated in a public hearing last week, critics have accused lawmakers of legislative overreach.

“I think there is a concerted effort by right wing groups in this country to try and make hay on this issue,” said Matthew Rothschild, executive director of the Wisconsin Democracy Campaign, which promotes government transparency.

“If someone yells ‘You lie,’ at a speaker is that enough to get them suspended?” Mr. Rothschild asked. “How about if they laugh derisively?”

The bill is still in a House committee but Mr. Kreme said he expected it to be passed out of the Republican-controlled legislature and signed into law by GOP Gov. Scott Walker next month.

In California, Republican Assemblywoman Melissa Melendez has introduced an amendment to the state constitution aimed at protecting speakers on public and private campuses. Her bill is based on the Goldwater model. Included is a mechanism that would allow the state cut a campus’s budget if it doesn’t comply.

She said she didn’t want her high-school aged son, when in college, “to be in an environment where you learn that if you don’t agree with someone not only do you not listen, but you keep other people from listening.”

Ms. Melendez’s bill would have to pass through a committee, chaired by Democratic State Assemblyman Mark Stone. Mr. Stone said he thought the bill was duplicative and designed to score political points rather than address a real need.

Republicans control both the legislature and governor’s office in Tennessee, where a bill was signed into law this month. Sponsors say the bill isn’t partisan.

The bill language says a free exchange ideas on campus shouldn’t be suppressed “because the ideas put forth are thought by some or even by most members of the institution’s community to be offensive, unwise, immoral, indecent, disagreeable, conservative, liberal, traditional, radical, or wrong-headed.”

Republican Rep. Eddie Smith, a co-sponsor of the bill in Tennessee, said “A lot of conservatives feel like they’re being shouted down by liberals and a lot of liberals feel like they’re being shouted down by conservatives.”

In February, the University of California, Berkeley canceled the appearance of conservative provocateur Milo Yiannopoulos after a violent protests broke out. In April, a conservative group on the campus withdrew its speaking invitation to conservative Ann Coulter after university officials canceled the event, citing safety concerns.

In March, demonstrators at Middlebury shouted down libertarian scholar Charles Murray. In April, conservative scholar Heather MacDonald spoke at Claremont McKenna College in California, but demonstrators blocked the entrance to her event, greatly reducing her in-person audience, according to media reports.

Last week Senator John Cornyn (R., Tex.) was disinvited from delivering the commencement address at Texas Southern University in Houston (an historically black institution) after students complained about his support of the Trump administration. Mr. Cornyn put out a statement saying that he respected the decision. The University of Illinois disinvited Nobel Prize winning scientist James Watson after some faculty complained that he has racist views.

from the Wall Street Journal, 2017-Mar-27, by Mike Rogers:

America Is Ill-Prepared to Counter Russia’s Information Warfare
Propaganda is nothing new. But Moscow is frighteningly effective—and worse is on the way.

When historians look back at the 2016 election, they will likely determine that it represented one of the most successful information operation campaigns ever conducted. A foreign power, through the targeted application of cyber tools to influence America’s electoral process, was able to cast doubt on the election’s legitimacy, engender doubts about the victor’s fitness for office, tarnish the outcome of the vote, and frustrate the president’s agenda.

Historians will also see a feckless Congress—both Democrats and Republicans—that focused on playing partisan “gotcha” and fundamentally failed in its duty to gather information, hold officials accountable, and ultimately serve the country’s interests.

Whether or not the Trump campaign or its staff were complicit in Moscow’s meddling is missing the broader point: Russia’s intervention has affected how Americans view the peaceful transition of power from one president to the next. About this we should not be surprised. Far from it.

Propaganda is perhaps the second- or third-oldest profession. Using information as a tool to affect outcomes is as old as politics. Propaganda was familiar to the ancient Greeks and Romans, the Byzantines, and the Han Dynasty. Each generation applies the technology of the day in trying to influence an adversary’s people.

What’s new today is the reach of social media, the anonymity of the internet, and the speed with which falsehoods and fabrications can propagate. Twitter averaged 319 million monthly active users in the fourth quarter of 2016. Instagram had 600 million accounts at the end of last year. Facebook’s monthly active users total 1.86 billion—a quarter of the global population. Yet even these staggering figures don’t fully capture the internet’s reach.

In February, Russia’s minister of defense, Sergei Shoigu, announced a realignment in its cyber and digital assets. “We have information troops who are much more effective and stronger than the former ‘counter-propaganda’ section,” Mr. Shoigu said, according to the BBC. Russia, more than any other country, recognizes the value of information as a weapon. Moscow deployed it with deadly effect in Estonia, in Georgia and most recently in Ukraine, introducing doubt into the minds of locals, spreading lies about their politicians, and obfuscating Russia’s true intentions.

A report last year by RAND Corp., “The Russian ‘Firehose of Falsehood’ Propaganda Model ,” noted that cyberpropaganda is practically a career path in Russia. A former paid troll told Radio Free Europe that teams were on duty around the clock in 12-hour shifts and he was required to post at least 135 comments of not fewer than 200 characters each.

In effect, Moscow has developed a high-volume, multichannel propaganda machine aimed at advancing its foreign and security policy. Along with the traditional propaganda tools—favoring friendly outlets and sponsoring ideological journals—this represents an incredibly powerful tool.

Now extrapolate one step further: Apply botnets, artificial intelligence and other next-generation technology. The result will be automated propaganda, rapid spamming and more. We shouldn’t be surprised to see any of this in the future.

Imagine an American senator who vocally advocates a new strategic-forces treaty with European allies. Moscow, feeling threatened, launches a directed information campaign to undermine the senator. His emails are breached and published, disclosing personal details and family disputes, alongside draft policy papers without context. Social media is spammed with seemingly legitimate comments opposing the senator’s position. The senator’s phone lines are flooded with robocalls. Fake news articles are pushed out on Russian-controlled media suggesting that the senator has broken campaign-finance laws.

Can you imagine the disruption to American society? The confusion in the legislative process? The erosion of trust in democracy? Unfortunately, this is the reality the U.S. faces, and without a concerted effort it will get worse.

Congress is too focused on the trees to see the frightening forest. Rather than engaging in sharp-edged partisanship, lawmakers should be investigating Russian propaganda operations and information warfare. They should be figuring out how to reduce the influence of foreign trolls, and teaching Americans about Moscow’s capabilities. That would go a long way to save the republic.

Mr. Rogers was chairman of the House Permanent Select Committee on Intelligence, 2011-15.

from the Wall Street Journal, 2016-Dec-16, by Friedrich Geiger:

German Law Would Require Facebook, Social Media to Delete Fake News, Hate Speech
Legislators’ proposal prompted by concerns over manipulating elections

BERLIN— Facebook Inc. and its social media peers would be required to swiftly remove fake news and hate speech from their platforms under a law proposed by senior German legislators aimed at addressing fears of meddling in next year’s parliamentary elections.

The companies would be required to act within 24 hours after a person affected by a post flagged it to them, said Volker Kauder, the parliamentary floor leader of Chancellor Angela Merkel’s Christian Democrats, on Friday. The governing coalition would move early next year to create a law obliging the platforms to establish a complaint-management system, he added.

Mr. Kauder’s statement followed allegations that the proliferation of fake news on social media affected public discourse during the U.S. presidential campaign. Developments in the U.S. have triggered fears in Germany and other countries that some people may try to tip the outcome of elections by spreading misinformation.

“After years of discussions, the social media must now unfortunately be forced to take responsibility,” said Mr. Kauder. “Only in this way we can counter further brutalization and willful manipulation of political debate in the net,” he said.

Thomas Oppermann, the floor leader of junior coalition partner the Social Democrats, said he largely agreed with Mr. Kauder’s demand for such a law. Facebook should face fines of as much as €500,000 ($520,750) if it failed to remove fake news in a timely manner, Mr. Oppermann told magazine Der Spiegel.

Facebook didn’t immediately respond to a request for comment.

The proposal comes amid warnings that Russia may attempt to sway Germany’s parliamentary elections, due in the second half of next year. Michael Grosse-Brömer, a senior lawmaker of the Christian Democrats, said Tuesday that Russia may try to weaken Ms. Merkel in the election and called for an assessment of how to combat manipulative activity on the internet.

Messrs. Kauder and Oppermann proposed the law a day after Facebook said it would take steps to demote some fake information from users’ news feed.

Mr. Kauder said that victims of fake news should have the right to get information from the social platforms to find out who created the hateful posts.

Mr. Oppermann said that social media platforms should be obliged to publish a correction and give it the same reach if demanded by an affected person, according to Der Spiegel.

Facebook started an initiative in Germany about a year ago aimed at encouraging users to counter hateful posts on its websites, in a response to criticism from politicians that the company didn’t do enough to counter racist comments.

from the Wall Street Journal, 2017-Jun-29, by Anton Troianovski and Sam Schechner, with Deepa Seetharaman in San Francisco contributing:

Germany to Social Networks: Delete Hate Speech Faster or Face Fines
Facebook, Google, civil-rights groups say law would stifle freedom of speech

BERLIN—German lawmakers are set to pass legislation Friday to fine social-media companies up to $57 million for failing to quickly delete hate speech, libel and other illegal content, one of the most aggressive efforts in the West to regulate content posted online.

Alphabet Inc.’s Google, Facebook Inc. and civil-rights groups criticized the law, warning it would stifle freedom of speech by encouraging social networks to delete controversial but legal posts. The law, some critics warned, could set the stage for authoritarian regimes to force tech firms to remove more content faster.

The law, on course to pass through Germany’s lower house of parliament Friday, would take effect Oct. 1. Large social networks such as Facebook and Twitter Inc. TWTR -1.67% would be required to delete “clearly illegal” content within 24 hours, while having the ability to set up an industry self-regulating body for processing borderline cases within one week.

The law’s quick passage—the bill was introduced by the Justice Ministry in March—illustrates the scramble across Europe to ratchet up pressure on tech companies to remove terrorist content and hate speech. It also reflects fears among European politicians that their democracies are vulnerable to propaganda campaigns spread via social media.

The new liability could test Facebook, Google and Twitter’s highly automated business models by forcing them to deploy more human expertise to make fine judgment calls on myriad individual posts. How they tackle this challenge could in turn set a costly template for the policing of social network posts world-wide.

“We cannot accept that social networks ignore our laws,” German Justice Minister Heiko Maas said. “They can no longer allow their infrastructure to be abused for committing crimes.”

But Susan Benesch, who studies ways to fight hate speech at Harvard University’s Berkman Center for Internet and Society, said the 24-hour time frame set by the law would lead internet companies to process complaints using algorithms “that are not yet up to the task.”

“The German bill would likely push internet companies into massive, over-broad censorship,” she said. “We can expect more, even more restrictive laws, in Europe and other parts of the world, especially if the German law passes.”

Tech executives, for their part, say they already do a lot to police their platforms for hate speech and terrorist propaganda. But one executive said that the new German law would hurt those efforts by forcing companies to shift resources away from their own efforts to focus on compliance with the German law.

Facebook said it already planned to increase its team examining user complaints to 7,500 from 4,500 world-wide and to more than 700 from 600 for Germany. Earlier this year, it told German parliament the law could lead to “the deletion of legitimate posts” because “even large social networks will not be able to implement completely legally sound and effective processes to examine all complaints within the short time-frame.”

Google told the Justice Ministry that it fields 200,000 user complaints globally a day on its YouTube video platform and that the tight deadlines and potential fines would create “a significant incentive to delete any content immediately after a complaint.”

Mr. Maas counters that overzealous deletion of posts by social networks isn’t a concern because internet companies have a business interest in allowing as much content as possible.

“Social networks won’t risk losing their users, who will surely turn away if their posts are constantly being unjustly deleted,” Mr. Maas said in a statement.

Mr. Maas in 2015 helped set up a voluntary program in which Facebook, Google and Twitter agreed to delete most hate speech reported by German users within 24 hours. But in March, Mr. Maas said a study commissioned by his ministry had found that Facebook and Twitter were too slow.

The new legislation details 22 sections of the criminal code social networks will have to help enforce. Among them: laws banning libel, character defamation, hate speech, insults against religions, offensive statements and privacy violations.

After the recent terrorist attacks in London and Manchester, British Prime Minister Theresa May called for new regulations, and potentially fines, to force tech firms to remove terrorist propaganda more quickly from their platforms. Later in the month, she was joined by French President Emmanuel Macron, who called tech firms’ efforts “insufficient.”

But Germany’s new law goes farther than any other in Western Europe by forcing tech companies to set up a system for users to flag illegal content and threatening fines for noncompliance. Until now, Brussels and other European governments have generally settled for a voluntary approach.

Indeed, earlier this month, the European Union’s executive arm reported improvement from those voluntary efforts, saying that tech companies had boosted removal of illegal content including terrorist propaganda 59% of the time when it was flagged for review, up from a rate of 28% six months ago.

Civil-rights groups, meanwhile, say the German law will embolden undemocratic regimes to make their own efforts to require global social networks to enforce domestic laws.

“This is a great opportunity for authoritarian states,” said Johannes Baldauf of the Amadeu Antonio Stiftung, a German foundation that fights hate speech but opposes the legislation.

from the Wall Street Journal, 2017-Jul-19, by Nick Kostov and Sam Schechner:

EU Court to Rule on ‘Right to Be Forgotten’ Outside Europe
Case could determine whether France can force Google to apply the right to be forgotten across the globe

PARIS—The European Union’s top court is set to decide whether the bloc’s “right to be forgotten” policy stretches beyond Europe’s borders, a test of how far national laws can—or should—stretch when regulating cyberspace.

The case stems from France, where the highest administrative court on Wednesday asked the EU’s Court of Justice to weigh in on a dispute between Alphabet Inc.’s Google and France’s privacy regulator over how broadly to apply the right, which allows EU residents to ask search engines to remove some links from searches for their own names.

At issue: Can France force Google to apply it not just to searches in Europe, but anywhere in the world?

The case will set a precedent for how far EU regulators can go in enforcing the bloc’s strict new privacy law. It will also help define Europe’s position on clashes between governments over how to regulate everything that happens on the internet—from political debate to online commerce.

France’s regulator says enforcement of some fundamental rights—like personal privacy—is too easily circumvented on the borderless internet, and so must be implemented everywhere. Google argues that allowing any one country to apply its rules globally risks upsetting international law and, when it comes to content, creates a global censorship race among autocrats.

“Each country should be able to balance freedom of expression and privacy in the way that it chooses, not in the way that another country chooses,” said Peter Fleischer, Google’s global privacy counsel. “We look forward to making our case at the European Court of Justice.”

The case exposes a deep trans-Atlantic divide over the role of regulations in everything from antitrust to personal privacy. In the U.S., the First Amendment forces officials to give broad leeway for free expression, even if objectionable. That makes it difficult for individuals to remove personal information gathered and published online by a slew of companies.

By contrast, Europe’s experience from World War II has led to laws banning Holocaust denial and hate speech. More recent experiences with East Germany’s police state have turned privacy into a fundamental right that can at times trump free expression.

The May 2014 decision granting the right to be forgotten reflects that division. That case concerned a Spaniard, Mario Costeja Gonzalez, who complained to privacy regulators about Google search links to a 1998 announcement in a Spanish newspaper mentioning debts that he had since resolved. The court said Google should remove the links from searches for Mr. Costeja’s name on privacy grounds.

The decision created a right for any EU resident to ask search engines to remove links from searches for their own names, if the information is old, irrelevant or infringes on their privacy. Google and other search engines vet requests, weighing privacy rights against the public interest in having that information tied to the person’s name.

After the decision, Google quickly applied the right in Europe, removing about 590,000 links from some searches in the last three years, according to its transparency report. But the company resisted applying those removals to its non-European sites, like Under pressure, Google agreed to do so only when those searches were done from within the European country where the removal request originated.

But in 2015, France’s privacy regulator ordered Google to go further: applying its right-to-be-forgotten removals to all of its websites wherever they are accessed, arguing that it is simple for internet users to mask their location using proxy services. After the regulator fined Google €100,000 ($115,000) last year for violating the order, Google appealed to France’s Conseil d’Etat, the highest administrative court.

Google’s lawyer, Patrice Spinosi, argued to the Conseil d’Etat that Google’s current system for applying the right to be forgotten in Europe “is perfectly effective unless you want to be a fraudster,” saying the court should toss out France’s privacy order on more fundamental grounds, without even asking the EU court.

“This order would give global effect to a national authority, with a negative impact on free expression,” Mr. Spinosi told the court. “The danger is that tomorrow, it won’t be the French authorities making these decisions, but authorities in other countries that are less democratic than France.”

On Wednesday, however, the Conseil d’Etat said “the scope of the right to be forgotten poses several serious difficulties in the interpretation of European Union law.”

from National Public Radio, 2016-Dec-10, by Brakkton Booker:

Trump Questionnaire Raises Concerns About Retaliation Against Energy Department Staff

Donald Trump's transition team circulated a survey asking for names of Department of Energy employees who attended climate change conferences. Legal experts question the new administration's motives.

Among the queries included in a questionnaire sent by President-elect Donald Trump's transition team to workers at the Department of Energy is a request for an inventory of all agency employees or contractors who attended meetings or conferences on climate change. Another question asks for a current list of professional society memberships of any lab staff.

The 74-point questionnaire has raised fears among civil rights lawyers specializing in federal worker whistleblower protections, who say the incoming administration is at a minimum trying to influence or limit the research at the Department of Energy. And at worst, attempting to target employees with views that run counter to the president-elect.

The questionnaire also asks employees for a listing of when the climate change meetings took place, and to provide any materials distributed to them "or materials created by Department employees or contractors in anticipation of or as a result of those meetings."

"This is a very scary indication of what might happen under a Trump administration," says Jason Zuckerman, a former legal adviser to the U.S. Office of Special Counsel, an agency which protects federal workers, particularly on matters of retaliation.

As we reported Friday, environmental groups and Democratic lawmakers issued a sharp rebuke over the intent of the survey.

Sen. Ed Markey of Massachusetts issued a statement that said:

"This request suggests that your administration may intend to retaliate against career employees who faithfully executed their responsibilities."

For his part, Trump has not announced who he wants running the Energy Department, but last week tapped Oklahoma Attorney General Scott Pruitt, an outspoken skeptic of climate change, to be the next head of the Environmental Protection Agency.

The Trump transition team did not respond to requests regarding this story.

"They're in for a rude awakening if they believe they can just order these experts to ignore the reality, all of the data, and just claim there is no such thing as climate science or global warming," says Zuckerman, who worked on the Obama administration's Whistleblower Protection Advisory Committee.

As for whether the questionnaire violates any laws, however, Zuckerman does not think it has crossed that threshold.

"I think we're probably not there yet, but the real issue will be, what will they do with that information?"

Tom Divine is the legal director of the Government Accountability Project and says he's represented thousands of whistleblowers over the years. He says the questionnaire has all the "symptoms" of trying to pin down employees' personal views.

"This type of action is designed to create the infrastructure to create an enemies list or a menu of federal workers who will be targeted and also to lay the foundation to engage in surveillance against potential whistleblowers," Divine says.

Divine also says information gleaned from the survey could potentially violate federal workers' rights afforded to them by the First Amendment.

"The First Amendment has a first principle, which includes freedom of association. And it means who you associate with, the organizations that you participate in, those are your business — not the federal government's."

Civil rights attorney Debra Katz agrees.

While Katz says federal workers are more limited in their speech compared to those who work in the private sector, there may be grounds for employees at the Department of Energy to take preemptive legal action against the incoming administration.

"If in fact there is an effort to determine if individuals not only did climate change activity in the course of their professional duties, but did this in other areas of their life — were environmentalists, participated in other groups, and decisions were being made to weed them out on that basis — that is clearly a First Amendment violation," Katz says.

So what about the employees faced with the question: Should they or shouldn't they fill out the questionnaire?

Zuckerman, the former Office of Special Counsel adviser, says employees at the agency don't have many easy options.

"One has to be very careful about this. In the U.S. government you don't want to engage in insubordination. If you are asked to do something that's reasonable and it's legitimate, you have to do it."

He adds that if there's evidence that certain employees get marginalized or have their responsibilities altered as a result of the information on the survey, then there may be grounds for action.

"At that point there would be a violation and those employees might be able to bring a claim."

from the Wall Street Journal, 2017-Feb-5, by Michael A. Carvin and Anthony Dick:

A Libel Suit Threatens Catastrophe for the Climate of Public Debate
Michael Mann sues to silence critics, and errant courts ignore the First Amendment to help him.

The First Amendment provides robust protection for political and scientific debate, but it faces a new threat from a climate activist determined to silence his critics. In a case pending before the District of Columbia Court of Appeals, Penn State professor Michael Mann is waging an aggressive campaign of lawfare, accusing of defamation those who dare to question his work. So far, the courts have given this assault on free speech a green light.

Mr. Mann is famous as the creator of the “hockey stick” graph, which portrays a dramatic trend in global warming over the past century. Numerous critics have cast doubt on the quality and accuracy of his work. They argue that his historical temperature proxies are unreliable, his data presentation misleading, and his statistical techniques skewed.

Even among those who support the theory of global warming, some have singled out Mr. Mann’s work as sloppy and exaggerated. David Hand, a former president of Britain’s Royal Statistical Society, has written that Mr. Mann’s technique “exaggerated the size of the blade at the end of the hockey stick,” which corresponds to the 20th-century temperature rise.

Not content to answer his critics in the public square, Mr. Mann has sued them. One target of his lawsuit is the political magazine National Review, which published a 270-word blog post criticizing Mr. Mann as “the man behind the fraudulent . . . ‘hockey-stick’ graph.” His lawsuit objects to the magazine’s decision to quote a critic who wrote that Mr. Mann “could be said to be the Jerry Sandusky of climate science, except that instead of molesting children, he has molested and tortured data.”

National Review moved to dismiss the suit, citing a phalanx of Supreme Court precedent. The Constitution obviously does not allow crippling damages to be imposed for voicing one’s opinion, however vehemently or caustically. Punishing such criticism because a jury disagrees with it does not aid the search for truth, but impedes it by stifling conflicting views. As the liberal Justice William Brennan observed: “Truth may not be the subject of either civil or criminal sanctions where discussion of public affairs is concerned.” Such speech “is the essence of self-government.”

As a federal court once put it in the particular context of scientific controversies: “More papers, more discussions, better data, and more satisfactory models—not larger awards of damages—mark the path toward superior understanding of the world around us.” Even a meritless defamation suit can be an effective weapon to intimidate critics and shut down debate through ruinous litigation costs.

In this case the trial court refused to dismiss Mr. Mann’s libel suit. Judge Natalia Combs Greene ruled that the defamation claims were “likely” to succeed because “to call his work a sham or to question his intellect and reasoning is tantamount to an accusation of fraud,” when in fact Mr. Mann “has been investigated by several bodies (including the EPA)” which determined that his research was “sound and not based on misleading information.” For procedural reasons, the case was reassigned to Judge Frederick Weisberg, who largely adopted Judge Greene’s reasoning.

Appellate courts, which exist to reverse such legal error, in this case compounded it. National Review was supported in friend-of-the-court briefs by such unlikely allies as the American Civil Liberties Union, the Electronic Frontier Foundation, the Washington Post and the Reporters Committee for Freedom of the Press. Yet a panel of the D.C. Court of Appeals—Judges Vanessa Ruiz,Corinne Beckwith and Catharine Easterly—held in December that Mr. Mann’s suit should proceed to a jury. The court again relied on various “official” investigations that had cleared Mr. Mann of misconduct, including an inquiry by the federal government. Speech that disagrees with the government is at the core of the First Amendment’s protection—though not in this court’s topsy-turvy world.

National Review has filed a petition for rehearing along with its co-defendants, the Competitive Enterprise Institute and Rand Simberg. If the full court of appeals does not correct the error and end this assault on the First Amendment, the case will doubtless proceed to the Supreme Court.

Those hoping Mr. Mann prevails because they agree with him about global warming are missing the point. If he succeeds in diminishing the right to free speech, he and his fellow climate activists have just as much to lose. Mr. Mann has attacked his critics for peddling “pure scientific fraud,” engaging in what he calls “the fraudulent denial of climate change,” and taking “corporate payoffs for knowingly lying about the threat climate change posed to humanity.” He accused Fox News of trying to “mislead its viewers” through a “deceptive” report about climate change.

None of this is particularly polite, but it is common in the cut-and-thrust of public debate. If such caustic criticism is now to be fair game for legal action, big oil companies and other well-heeled interests can launch their own lawsuits asking juries in Texas or Oklahoma to silence Mr. Mann and his allies.

The logic of Mr. Mann’s position threatens to convert political and scientific debate into a litigation free-for-all, with all sides seeking to sue one another into submission instead of resolving differences through the free exchange of ideas. For those who care about the spirit of open inquiry at the heart of the scientific enterprise, it is scarcely possible to imagine a greater legal disaster than the prospect of Mr. Mann’s succeeding on his claims.

Messrs. Carvin and Dick are Washington lawyers. They represent National Review in Mr. Mann’s lawsuit.

from the Wall Street Journal, 2017-Jan-26, by Jillian Kay Melchior:

Censorship Is Free Speech? It Must Be the Class of 1984
Political correctness on campus has reached the stage of a perfect Orwellian inversion.

Higher education’s suppression of speech is well-publicized. But in an odder and less well-known twist, campuses are increasingly co-opting the language of free speech and using it to justify censorship. One example: The designated “free speech zones” that exist on roughly 1 in 10 U.S. college campuses, according to a report released last month by the Foundation for Individual Rights in Education.

The very existence of a “free speech zone” suggests that students’ expression is limited elsewhere on campus. And even in the “free” zones, administrators often restrict who can speak, when and for how long.

Dozens of universities have also used the language of free speech to justify trendy “Language Matters” or “Inclusive Language” campaigns. The point of these programs is to condition students to wince away from words and phrases deemed offensive, instead using politically correct substitutes.

Among the campaigns’ common targets are “hey guys” and “man up” (too gendered), as well as “crazy” (inconsiderate of people with mental illness) and “lame” (disrespectful to the disabled). Ironically—and insidiously—these “inclusive” language campaigns seek to exclude opposing political or cultural viewpoints. It’s an attempt to ban not only words but also thoughts.

The University of Northern Colorado’s “Language Matters” campaign last year warned students not to say “All lives matter.” The dean of students, Katrina Rodriguez, defended the program in an email last June to Heat Street, where I am political editor, saying it was “about being mindful about how words can affect others and the conversations provide an opportunity for individuals to understand why particular language may be hurtful to someone else in our community of learners.”

She continued: “We believe that fostering dialogue on a college campus so that multiple perspectives are explored and debated is the essence of free speech.”

The inclusive-language campaigns at the University of Wisconsin’s campuses in Milwaukee and River Falls have also discouraged students from saying “illegal immigrant” or “illegal alien,” because either term “fixates on legal status instead of people as individuals” and “asserts that only certain groups belong in the U.S.”

UW-Milwaukee even included “politically correct” on its list of disfavored terms, arguing that it “has become a way to deflect, say that people are being too ‘sensitive’ and police language.”

Which brings us to the warped idea that by suppressing “dominant” voices, universities actually further free speech. Katherine Kvellestad, a University of Pennsylvania student, recently used a version of this argument to defend students who wanted a portrait of Shakespeare removed from the English department. The students also pushed for an English curriculum with fewer white, male writers.

“I think, in a way, the whole PC culture idea can almost promote free speech because there are a lot of people who have been marginalized in the past,” Ms. Kvellestad told Heat Street during a phone interview in December. “So it’s kind of free speech in a different sense, that we’re giving credence and voices to voices that we were not hearing.”

One of Ms. Kvellestad’s fellow Penn students made a related argument in a Jan. 11 op-ed in the student newspaper, claiming that his white professors’ refusal to censor class content had hindered his ability to learn. Sophomore James Fisher described how one Penn professor showed depictions of slavery and let students make comments Mr. Fisher considered “ignorant.” He told the professor that “what he was doing was traumatic to me . . . [so] I would not allow him to continue.”

The professor, Mr. Fisher wrote, “then used the argument that, in order to make the class a ‘safe space,’ he had to protect the voice of all students in class. . . . So, because my professor wanted to protect the voices of the white students who benefit from black oppression, the oppression unfortunately continued.”

In “Politics and the English Language,” George Orwell describes how the misuse of language can lead to messy thinking—and how, even worse, intentionally imprecise language can soften or obscure abhorrent ideas. He anticipated a world in which administrators, professors and students demand the right to act as censors even as they claim to venerate the right to unrestricted expression.

Ms. Melchior is political editor of Heat Street.

from the Wall Street Journal, 2017-Apr-2, by Peter Berkowitz:

A Lawsuit Accuses Yale of Censoring Even Inoffensive Ideas
A class essay condemning rape was ‘unnecessarily provocative,’ the Title IX coordinator allegedly said.

Yale’s president, Peter Salovey, took to these pages last October to affirm that “we adhere to exceptionally strong principles of free expression.” He invoked Yale’s exemplary 1974 Woodward Report, which states that the university’s educational mission is inextricably bound up with “the right to think the unthinkable, discuss the unmentionable, and challenge the unchallengeable.”

A February lawsuit tells a different story. Tucked inside the amended complaint, Doe v. Yale, is the extraordinary claim that Yale punished the anonymous male plaintiff for writing a class essay in which he condemned rape.

Like dozens of lawsuits now working their way through state and federal courts, Doe v. Yale alleges that university officials grossly mishandled sexual-assault allegations. According to the complaint, a university panel found in spring 2014 that Doe had engaged in sexual intercourse with a woman without her consent. He alleges that the woman expressly consented and on that evening she harassed him. He adds that Yale’s disciplinary procedures were stacked against him and administered by biased officials who presumed his guilt.

This case is unusual in several respects. Doe advances one relatively new and one completely novel legal theory. The relatively new one revolves around Title IX, the 1972 federal law that provides that “no person” may be discriminated against based on sex in educational programs that receive federal assistance.

In April 2011, the Education Department’s Office for Civil Rights issued a “Dear Colleague” letter declaring that Title IX imposed a duty on colleges and universities receiving federal funding—as virtually all do—to investigate, prosecute and adjudicate sexual-assault allegations and impose punishments where appropriate. The letter also directed schools to reduce due-process protections for the accused, typically men.

Doe insists that Title IX must protect men as well as women. In punishing him for sexual assault on the basis of allegations that were either unfounded or refuted by facts to which both sides of the dispute agreed, the lawsuit argues, Yale discriminated against him on the basis of his sex in violation of Title IX.

The novel legal theory flows out of a reading of “state action” doctrine developed by Jed Rubenfeld of Yale Law School, who served as Doe’s faculty adviser during the university’s sexual-assault proceedings. Doe argues that through the “Dear Colleague” letter, the Education Department conscripted Yale to enforce criminal law—thereby transforming the private university into an agent of the government.

That would subject the university to constitutional limitations. Thus Doe alleges Yale violated his 14th Amendment rights to due process and equal protection of the law.

This case also involves free expression because it began, Doe alleges, with Yale’s draconian regulation of his speech. According to his lawsuit, in late 2013 a female philosophy teaching assistant filed a complaint with the university’s Title IX office about a short paper Doe had written. In the context of Socrates ’ account in Plato’s “Republic” of the tripartite soul, the paper argued that rape was an irrational act in which the soul’s appetitive and spirited parts overwhelm reason, which by right rules.

According to the lawsuit, Pamela Schirmeister, Title IX coordinator and an associate dean in the Graduate School of Arts and Sciences, summoned Doe to her office and told him his rape example was “unnecessarily provocative.” She ordered him to have no contact with the teaching assistant and directed him to attend sensitivity training at the university’s mental-health center. She also informed him that he had become a “person of interest” to Yale, which meant that the university had to intervene to ensure he “was not a perpetrator himself,” in the lawsuit’s words. A few months later, the same Title IX office initiated the sexual-assault investigation against him.

Through a spokeswoman, Yale described the lawsuit as “legally baseless and factually inaccurate” but declined on confidentiality grounds to address any specific factual allegations.

If the lawsuit’s account is accurate, Yale has reached a new low in the annals of campus policing of speech. Surely no female student would incur criticism, much less censorship or punishment, for providing weighty philosophical authority in support of the proposition that rape is wrong.

If Doe’s story is true, Yale is no longer satisfied in enforcing correct opinions. To utter the correct opinion, Yale also demands that you be the correct sex. Far from protecting the right to “discuss the unmentionable” in accordance with the Woodward Report, Yale is stretching the boundaries of censorship by abridging the right to discuss even the uncontroversial.

Mr. Berkowitz is a senior fellow at the Hoover Institution, Stanford University.

from the Wall Street Journal, 2016-Dec-2, by Roger Pielke Jr.:

My Unhappy Life as a Climate Heretic
My research was attacked by thought police in journalism, activist groups funded by billionaires and even the White House.

Much to my surprise, I showed up in the WikiLeaks releases before the election. In a 2014 email, a staffer at the Center for American Progress, founded by John Podesta in 2003, took credit for a campaign to have me eliminated as a writer for Nate Silver’s FiveThirtyEight website. In the email, the editor of the think tank’s climate blog bragged to one of its billionaire donors, Tom Steyer: “I think it’s fair [to] say that, without Climate Progress, Pielke would still be writing on climate change for 538.”

WikiLeaks provides a window into a world I’ve seen up close for decades: the debate over what to do about climate change, and the role of science in that argument. Although it is too soon to tell how the Trump administration will engage the scientific community, my long experience shows what can happen when politicians and media turn against inconvenient research—which we’ve seen under Republican and Democratic presidents.

I understand why Mr. Podesta—most recently Hillary Clinton’s campaign chairman—wanted to drive me out of the climate-change discussion. When substantively countering an academic’s research proves difficult, other techniques are needed to banish it. That is how politics sometimes works, and professors need to understand this if we want to participate in that arena.

More troubling is the degree to which journalists and other academics joined the campaign against me. What sort of responsibility do scientists and the media have to defend the ability to share research, on any subject, that might be inconvenient to political interests—even our own?

I believe climate change is real and that human emissions of greenhouse gases risk justifying action, including a carbon tax. But my research led me to a conclusion that many climate campaigners find unacceptable: There is scant evidence to indicate that hurricanes, floods, tornadoes or drought have become more frequent or intense in the U.S. or globally. In fact we are in an era of good fortune when it comes to extreme weather. This is a topic I’ve studied and published on as much as anyone over two decades. My conclusion might be wrong, but I think I’ve earned the right to share this research without risk to my career.

Instead, my research was under constant attack for years by activists, journalists and politicians. In 2011 writers in the journal Foreign Policy signaled that some accused me of being a “climate-change denier.” I earned the title, the authors explained, by “questioning certain graphs presented in IPCC reports.” That an academic who raised questions about the Intergovernmental Panel on Climate Change in an area of his expertise was tarred as a denier reveals the groupthink at work.

Yet I was right to question the IPCC’s 2007 report, which included a graph purporting to show that disaster costs were rising due to global temperature increases. The graph was later revealed to have been based on invented and inaccurate information, as I documented in my book “The Climate Fix.” The insurance industry scientist Robert-Muir Wood of Risk Management Solutions had smuggled the graph into the IPCC report. He explained in a public debate with me in London in 2010 that he had included the graph and misreferenced it because he expected future research to show a relationship between increasing disaster costs and rising temperatures.

When his research was eventually published in 2008, well after the IPCC report, it concluded the opposite: “We find insufficient evidence to claim a statistical relationship between global temperature increase and normalized catastrophe losses.” Whoops.

The IPCC never acknowledged the snafu, but subsequent reports got the science right: There is not a strong basis for connecting weather disasters with human-caused climate change.

Yes, storms and other extremes still occur, with devastating human consequences, but history shows they could be far worse. No Category 3, 4 or 5 hurricane has made landfall in the U.S. since Hurricane Wilma in 2005, by far the longest such period on record. This means that cumulative economic damage from hurricanes over the past decade is some $70 billion less than the long-term average would lead us to expect, based on my research with colleagues. This is good news, and it should be OK to say so. Yet in today’s hyper-partisan climate debate, every instance of extreme weather becomes a political talking point.

For a time I called out politicians and reporters who went beyond what science can support, but some journalists won’t hear of this. In 2011 and 2012, I pointed out on my blog and social media that the lead climate reporter at the New York Times,Justin Gillis, had mischaracterized the relationship of climate change and food shortages, and the relationship of climate change and disasters. His reporting wasn’t consistent with most expert views, or the evidence. In response he promptly blocked me from his Twitter feed. Other reporters did the same.

In August this year on Twitter, I criticized poor reporting on the website Mashable about a supposed coming hurricane apocalypse—including a bad misquote of me in the cartoon role of climate skeptic. (The misquote was later removed.) The publication’s lead science editor, Andrew Freedman, helpfully explained via Twitter that this sort of behavior “is why you’re on many reporters’ ‘do not call’ lists despite your expertise.”

I didn’t know reporters had such lists. But I get it. No one likes being told that he misreported scientific research, especially on climate change. Some believe that connecting extreme weather with greenhouse gases helps to advance the cause of climate policy. Plus, bad news gets clicks.

Yet more is going on here than thin-skinned reporters responding petulantly to a vocal professor. In 2015 I was quoted in the Los Angeles Times, by Pulitzer Prize-winning reporter Paige St. John, making the rather obvious point that politicians use the weather-of-the-moment to make the case for action on climate change, even if the scientific basis is thin or contested.

Ms. St. John was pilloried by her peers in the media. Shortly thereafter, she emailed me what she had learned: “You should come with a warning label: Quoting Roger Pielke will bring a hailstorm down on your work from the London Guardian, Mother Jones, and Media Matters.”

Or look at the journalists who helped push me out of FiveThirtyEight. My first article there, in 2014, was based on the consensus of the IPCC and peer-reviewed research. I pointed out that the global cost of disasters was increasing at a rate slower than GDP growth, which is very good news. Disasters still occur, but their economic and human effect is smaller than in the past. It’s not terribly complicated.

That article prompted an intense media campaign to have me fired. Writers at Slate, Salon, the New Republic, the New York Times, the Guardian and others piled on.

In March of 2014, FiveThirtyEight editor Mike Wilson demoted me from staff writer to freelancer. A few months later I chose to leave the site after it became clear it wouldn’t publish me. The mob celebrated., founded by former Center for American Progress staffer Brad Johnson, and advised by Penn State’s Michael Mann, called my departure a “victory for climate truth.” The Center for American Progress promised its donor Mr. Steyer more of the same.

Yet the climate thought police still weren’t done. In 2013 committees in the House and Senate invited me to a several hearings to summarize the science on disasters and climate change. As a professor at a public university, I was happy to do so. My testimony was strong, and it was well aligned with the conclusions of the IPCC and the U.S. government’s climate-science program. Those conclusions indicate no overall increasing trend in hurricanes, floods, tornadoes or droughts—in the U.S. or globally.

In early 2014, not long after I appeared before Congress, President Obama’s science adviser John Holdren testified before the same Senate Environment and Public Works Committee. He was asked about his public statements that appeared to contradict the scientific consensus on extreme weather events that I had earlier presented. Mr. Holdren responded with the all-too-common approach of attacking the messenger, telling the senators incorrectly that my views were “not representative of the mainstream scientific opinion.” Mr. Holdren followed up by posting a strange essay, of nearly 3,000 words, on the White House website under the heading, “An Analysis of Statements by Roger Pielke Jr.,” where it remains today.

I suppose it is a distinction of a sort to be singled out in this manner by the president’s science adviser. Yet Mr. Holdren’s screed reads more like a dashed-off blog post from the nutty wings of the online climate debate, chock-full of errors and misstatements.

But when the White House puts a target on your back on its website, people notice. Almost a year later Mr. Holdren’s missive was the basis for an investigation of me by Arizona Rep. Raul Grijalva, the ranking Democrat on the House Natural Resources Committee. Rep. Grijalva explained in a letter to my university’s president that I was being investigated because Mr. Holdren had “highlighted what he believes were serious misstatements by Prof. Pielke of the scientific consensus on climate change.” He made the letter public.

The “investigation” turned out to be a farce. In the letter, Rep. Grijalva suggested that I—and six other academics with apparently heretical views—might be on the payroll of Exxon Mobil (or perhaps the Illuminati, I forget). He asked for records detailing my research funding, emails and so on. After some well-deserved criticism from the American Meteorological Society and the American Geophysical Union, Rep. Grijalva deleted the letter from his website. The University of Colorado complied with Rep. Grijalva’s request and responded that I have never received funding from fossil-fuel companies. My heretical views can be traced to research support from the U.S. government.

But the damage to my reputation had been done, and perhaps that was the point. Studying and engaging on climate change had become decidedly less fun. So I started researching and teaching other topics and have found the change in direction refreshing. Don’t worry about me: I have tenure and supportive campus leaders and regents. No one is trying to get me fired for my new scholarly pursuits.

But the lesson is that a lone academic is no match for billionaires, well-funded advocacy groups, the media, Congress and the White House. If academics—in any subject—are to play a meaningful role in public debate, the country will have to do a better job supporting good-faith researchers, even when their results are unwelcome. This goes for Republicans and Democrats alike, and to the administration of President-elect Trump.

Academics and the media in particular should support viewpoint diversity instead of serving as the handmaidens of political expediency by trying to exclude voices or damage reputations and careers. If academics and the media won’t support open debate, who will?

Mr. Pielke is a professor and director of the Sports Governance Center at the University of Colorado, Boulder. His most recent book is “The Edge: The Wars Against Cheating and Corruption in the Cutthroat World of Elite Sports” (Roaring Forties Press, 2016).

Employee Lawsuit Accuses Google of ‘Spying Program’

from Computerworld, 2016-Dec-21, by John Ribeiro, Bangalore Correspondent, IDG News Service:

Google sued by employee for confidentiality policies that 'muzzle' staff
Google says rules are intended to protect proprietary business information

A product manager at Google has sued the company over its allegedly illegal confidentiality rules, which, among other things, prohibit employees from speaking even internally about illegal conduct and dangerous product defects for fear that such statements may be used in lawsuits or sought by the government.

The alleged policies, which are said to violate California laws, restrict employees' right to speak, work or whistle-blow, and include restrictions on speaking to the government, attorneys or the press about wrongdoing at Google or even “speaking to spouse or friends about whether they think their boss could do a better job,” according to a complaint filed Tuesday in the Superior Court of California for the city and county of San Francisco.

“The policies prohibit Googlers from using or disclosing all of the skills, knowledge, acquaintances, and overall experience at Google when working for a new employer," according to the complaint, which alleges that the company’s confidentiality policies are contrary to the California Labor Code, public policy and the interests of the state.

Google’s Global Investigation Team “also relies on ‘volunteers’ to report other employees who might have disclosed any information” about the company, according to the complaint, which paints a picture that is in sharp contrast to the glowing image one usually gets about Google's workplace culture and perks.

Under a program called Stopleaks, Google asks employees to report on “strange things” around them such as anyone asking detailed questions about an employee’s project or job, according to the complaint. Employees are also said to be banned from writing creative fiction such as “a novel about someone working at a tech company in Silicon Valley,” without Google’s approving the book idea and the final draft.

The policies are said to be be intended to control Google’s former and current employees, limit competition, infringe on constitutional rights and block the reporting of misconduct. The complaint goes on to state that the case does not concern Google’s trade secrets, consumer privacy or information that should not be disclosed under the law, but reflects the company’s use of confidentiality and other policies for illegal and improper purposes.

In the lawsuit, first reported by The Information, the employee who has filed anonymously as John Doe, claims that Brian Katz, Google’s director of global investigations, intelligence and protective services, had falsely informed some 65,000 Google employees that the plaintiff was terminated for leaking information to the press, without naming him. Katz and Google used him as scapegoat to ensure that other employees continued to fall in line with the company’s confidentiality polices, according to the complaint, which asks that the employee should not be asked “to self-publish” his name.

Google could not be immediately reached for comment on the lawsuit after business hours. The company was quoted by some news outlets as saying in a statement that its "employee confidentiality requirements are designed to protect proprietary business information, while not preventing employees from disclosing information about terms and conditions of employment, or workplace concerns."

In September, the employee had complained to the Labor Workforce and Development Agency, after which Google made an amendment in which it “purported to broaden Googler’s right to discuss pay, hours or other terms of employment and to communicate with government agencies regarding violations of the law,” according to the complaint.

Employees were not informed of the amendment and other policies were not changed, and “in fact, Google’s actual policies and practices remained unchanged,” it added.

The employee has asked the California court for penalties for each of the 12 alleged violations under the Private Attorneys General Act on behalf of himself, the state of California and other Google employees.

from, 2016-Dec-20, by Chance Miller:

Google employee lawsuit claims company violates CA laws, details clandestine ‘Stop Leaks’ program

Google has been hit with a lawsuit by one of its project managers that alleges it goes so far with its internal confidentiality policies that it is breaching California labor laws. The lawsuit was filed by an employee who wishes to remain anonymous, going simply by John Doe in the document.

First reported on by The Information, the lawsuit specifically claims that Google runs an internal “spying program” to help combat employees leaking information to the media…

The suit, filed in the California Superior Court in San Francisco, alleges that Google’s policies violate labor laws in that they effectively prevent employees from discussing workplace conditions, wages, and potential regulatory and legal violations inside the company.

The policies stem from Google’s confidentiality agreement, which defines confidential information as “without limitation, any information in any form that relates to Google or Google’s business that is not generally known.”

On the other hand, Google’s Code of Conduct Policy states that confidential information consists of “everything at Google.” This policy restricts Google employees from posting any sort of opinions about Google online, even if they don’t contain confidential information. Additionally, it states that employees cannot converse with the press in any fashion.

Doe alleges that Google has put such a focus on stopping product leaks that one of its cofounders stated at an all-hands meet recently that anyone found to be leaking confidential information will be fired.

It doesn’t stop there, however. The lawsuit also describes an internal program at Google called “Stop Leaks,” which as you can probably guess from the name, carries a goal of stopping information related to Google from leaking online and/or via the media.

Here’s how Stop Leaks works, according to Doe’s lawsuit:

The Stopleaks program is managed through an internal website that includes a Chrome extension to facilitate the reporting of alleged “leaks” on the internet. Employees are required under Google policies to report “leaks” to Stopleaks. A violation of Google’s policies can result in termination.

Under its “Stopleaks” program, after a Googler submits a leak report to the Stopleaks site, Google’s “team of Stopleaks super sleuths investigate every leak. . . . The Stopleaks team researches the project/product that was leaked and aims to determine the leak’s origin. From here, [the Stopleaks team] often liaise with other cross-functional Google teams that may contribute additional context to the investigation.”

The purpose of Google’s “Stopleaks” program is to deter employees from asking questions (even of one another), or disclosing any information about Google in violation of their constitutional and statutory rights.

The central point of Doe’s case against Google is that the company must inform employees that they are allowed to discuss ongoings related to the company, in certain circumstances, with the press and government.

The lawsuit also alleges that Google’s director of global investigations, intelligence, and protective services, Brian Katz, falsely accused Doe of leaking information to the press, which is likely part of the reason for this lawsuit in the first place.

As for damages, The Information calculated the following:

Under the Private Attorneys General Act, Google could be fined up to $100 for each of the 12 alleged violations in the suit, multiplied by 65,000 employees. If an allegedly unlawful policy lasted for more than one pay period, the fine doubles to $200 per pay period, per employee, for up to a year. Based on a biweekly pay period schedule, if “Doe” prevails on every allegation in the lawsuit, the maximum fine would be $3.8 billion, with about $14,600 going to each Google employee.

Now, that’s very much a “worst case scenario” calculation, at least for Google. It’s unlikely that Doe will win every allegation he made.

You can read the full lawsuit here.

from the Wall Street Journal, 2016-Oct-21, by Sohrab Ahmari:

Remember When Art Was Supposed to Be Beautiful?
Contemporary art is obsessed with the politics of race, gender and sexuality.

Soon after seizing power in 1979, Iran’s new Islamist regime set about transforming the country’s identity by staging a “cultural revolution.” Followers of the Ayatollah Khomeini temporarily closed the universities, purged thousands of ideologically suspect faculty and students and rewrote the curriculum wholesale.

My mother, then an art student in Tehran, remembers how the revolutionaries raided the country’s great libraries, using markers to cross out offensive images in the art books. The nascent Islamic Republic was fighting a bloody war against Iraq at the time, but there was also a battle on the home front: against Hellenistic sculpture, the Renaissance nude and American cinema.

Growing up in that climate alerted me to the power of great art. Khomeini’s regime was a seemingly omnipotent police state that claimed to derive legitimacy from Almighty God. Yet it was somehow fearful of the human form (and the human soul) as represented by, say, Titian.

There was some connection between beauty and freedom—a link I only made years later after immigrating to the U.S. as a teenager. The mullahs resorted to censorship and violence to sever that connection. But in the Free World today it has been severed, not by any repressive regime, but by the art world itself.

In today’s art scene, the word “beauty” isn’t even part of the lexicon. Sincerity, formal rigor and cohesion, the quest for truth, the sacred and the transcendent—all of these ideals, once thought timeless, have been thrust aside to make room for the art world’s one totem, its alpha and omega: identity politics.

Now, identity has always been at the heart of culture. Who are we? What is our nature? How are we—as individuals and as groups—distinct from each other, from the animals, from the gods or God? But identity politics cares little for such open-ended questions. Its adherents think they already have all the answers, a set of all-purpose formulas that tell you who’s right and who’s wrong at a particular intersection of identity, power and privilege.

Contemporary art is obsessed with articulating those formulas in novel ways. If you ever find yourself wondering why nothing stirs inside you when you encounter contemporary art, chances are you’re suffering the effects of the relentless politicization of the arts. Every form and genre—whether high or low, or whether in the visual, literary or performing arts—is now obsessed with the politics of race, gender and sexuality.

This summer I spent a few weeks attending as many plays, exhibit openings, gallery talks and screenings as I could find in London. Every single one had something to do with identity politics.

Start with theater. At the Globe, built near the site of the original theater cofounded by Shakespeare, new artistic director Emma Rice is rewriting the Bard to fit her trendy politics. Among her rules: All productions must feature 50-50 sex parity among actors, regardless of the ramifications for narrative and meaning. “It’s the next stage for feminism and it’s the next stage for society to smash down the pillars that are against us,” Ms. Rice said in a recent interview.

At Gasworks, a prestigious gallery in Vauxhall, multimedia artist Sidsel Meineche Hansen used EVA 3.0, a digital humanoid figure used in video games and adult entertainment, to “explore the overlap between subjects in real life and objects in virtual reality, focusing on their accumulation by capital through the gender binary.” Her degraded, pornographic art is difficult to describe in a family newspaper.

A film festival at the Institute of Contemporary Arts was devoted to “themes of social and political identity,” as the program put it. The dozens of films, installations and talks on offer dealt with “how political identities are depicted”; “black aesthetics”; “politics as something you do with your body”; photography’s role as a “colonial tool”; “culture, aesthetics and learning through the lens of contemporary feminism”; “queer representational politics”; “the politics of gender and representation”; and on and on.

A group exhibition in ultra-hip East London was titled “Perform Gender: A Multidisciplinary Event Celebrating Art, Theatre, Queer Culture and Gender Equality.” It featured mounds of plaster breasts on the floors, menstrual pads taped to the walls and lots of sadomasochistic imagery.

Not even dance is immune. An artist’s talk at the South London Gallery was devoted to exploring “dance and identity politics” and “the political virtues of the twerk.”

It is inconceivable that so many directors, painters, filmmakers, dancers and performance artists could be inspired by nothing but the politics of race, gender and sexuality. There must be other subjects, in the world outside or in their inner lives, that deserve creative interest. Yet the art world’s ideological atmosphere is so thick and pervasive that those inside don’t even realize it is the air they breathe.

This state of affairs should alarm anyone who cares about the future of liberal civilization. Free societies need art that aspires to timeless ideals like truth and beauty, and that grapples with the transcendent things about what it means to be human. Such art allows us to relate to each other across identitarian differences and share a cultural commonwealth. When all culture is reduced to group identity and grievance, tyranny is around the corner.

Mr. Ahmari is a Journal editorial writer in London. This is adapted from his book, “The New Philistines: How Identity Politics Disfigure the Arts,” out this week from Biteback Publishing.

from the Wall Street Journal, 2016-Oct-2, by Bari Weiss:

The PC Police Outlaw Make-Believe
In our surreal age of identity politics, pretending is politically incorrect.

Last month the novelist Lionel Shriver delivered the ultimate macroaggression at a writers conference in Brisbane, Australia: She spoke the truth. And it triggered a leftwing meltdown.

What did she say that caused the festival organizers to disavow her talk? She made the argument that fiction writers should be permitted to write fiction. Her speech—and events that have followed—shows how the secular religion of identity politics is threatening imagination itself.

“Taken to their logical conclusion,” Ms. Shriver said in her address, “ideologies recently come into vogue challenge our right to write fiction at all. Meanwhile, the kind of fiction we are ‘allowed’ to write is in danger of becoming so hedged, so circumscribed, so tippy-toe, that we’d indeed be better off not writing the anodyne drivel to begin with.”

To write in the voice, say, of a black woman if you are a white male writer, is rapidly becoming taboo—a form of cultural appropriation, to use the proper jargon. But such theft is the job of fiction writers. The novelist, as Ms. Shriver put it, is “the premier pickpocket of the arts.”

“If Dalton Trumbo had been scared off of describing being trapped in a body with no arms, legs, or face because he was not personally disabled—because he had not been through a World War I maiming himself and therefore had no right to ‘appropriate’ the isolation of a paraplegic—we wouldn’t have the haunting 1938 classic, ‘Johnny Got His Gun,’ ” she said.

Ms. Shriver delivered her speech while wearing a sombrero—a literal representation of her deeper point, which is that the job of fiction writers is to embody characters unlike themselves. If identity politics reaches its absurd conclusion, Ms. Shriver said, “all I could write about would be smart-alecky 59-year-old 5-foot-2-inch white women from North Carolina.”

If that seems like an exaggeration, consider the past few weeks in the life of Kendall Jenner, the supermodel scion of Kris and Caitlyn Jenner, who has come under fire for the sin of playing dress-up.

Ms. Jenner’s first transgression took place at New York Fashion Week in September, where, in Marc Jacobs’s show, she walked the runway wearing purple peep-toe platforms and a pile of woolen “dreadlocks” in various shades of pink, lavender and turquoise.

It wasn’t the babydoll dress that made the digital dictators lose their minds, but the dreadlocks—an apparently egregious act of cultural appropriation. Never mind that some of the models doing the appropriating were black. Or that the locks in question were completely fantastical, like an anime cartoon come to life. Or that the inspiration for the look was the signature hairstyle of the transgender filmmaker Lana Wachowski, one of the minds behind “The Matrix.”

Days later, Ms. Jenner had the gall to pose in pointe shoes for a Vogue España photoshoot. As one Twitter twit summed up the outrage: “The shoot was wrongfully appropriated. Dancers like Misty Copeland or Maddie Ziegler could have been way more powerful and graceful.”

In our surreal age, pretending is now politically incorrect. What’s the over-under on when Brad Pitt will only be permitted to play a celebrity going through a humiliating divorce? Give it a year.

Ms. Weiss is an associate book review editor at the Journal.

from National Public Radio, 2016-Oct-17, by Rebecca Hersher:

WikiLeaks Says Julian Assange's Internet Access Cut Off By 'State Party'

The activist organization WikiLeaks says the Internet connection for its founder, Julian Assange, has been severed by what it called a "state party."

The accusation came in a tweet early Monday.

WikiLeaks ✔

Julian Assange's internet link has been intentionally severed by a state party. We have activated the appropriate contingency plans.
5:33 AM - 17 Oct 2016
36,153 Retweets 37,195 Likes

The WikiLeaks founder has been living at the Ecuadorean Embassy in London for more than four years. As The Two-Way has reported, Assange sought refuge there after Sweden issued a warrant for his arrest over allegations of sex crimes. He has said that if sent to Sweden, he fears he would be handed over to the U.S. and could face trial over the release of classified U.S. material on WikiLeaks.

An NPR call and email to WikiLeaks were not immediately returned. The Associated Press reported Monday on its efforts to corroborate the Internet outage accusation:

"Calls, texts and emails left with WikiLeaks weren't immediately returned Monday. A woman who picked up the phone at the [Ecuadorean] embassy said: 'I cannot disclose any information.' An email to Ecuador's ambassador wasn't immediately answered. London's Metropolitan Police declined comment."

On Saturday, WikiLeaks published another round of emails purportedly linked to John Podesta, chairman of Democratic presidential nominee Hillary Clinton's campaign, NPR's Meg Anderson reported.

Here's more from Meg:

"This batch was the eighth installment of what WikiLeaks says are Podesta's emails, and the controversial organization claims to have more than 50,000 emails in total that they plan to release.

"The Clinton campaign has not confirmed that the hacked emails are real and NPR has not been able to confirm their authenticity, but the campaign has linked the hack to Russia and says Moscow is interfering with the election to promote Donald Trump's candidacy.


"If the emails are authentic, they provide insight into the private conversations happening at the highest levels of the Clinton campaign. So far, those conversations have included how to defend Clinton's use of a private email server while she was secretary of state and potential problematic excerpts from her Wall Street speeches."

At a press conference on Oct. 4, Assange said via video link that WikiLeaks would be releasing information he felt was relevant to the U.S. election beginning that week, and that he hoped the organization would "be publishing every week for the next 10 weeks," leading up to and through the Nov. 8 presidential vote.

from Reuters, 2016-Oct-17, by Mark Hosenball, with editing by Julia Edwards and Sandra Maler:

Ecuador cuts Julian Assange's internet access: WikiLeaks

WASHINGTON — Anti-secrecy group WikiLeaks said on Monday that its founder Julian Assange's internet was shut down by the government of Ecuador, deflecting blame from the U.S. or British governments who have sparred with Assange for releasing sensitive material.

"We can confirm Ecuador cut off Assange's internet access Saturday, 5pm GMT, shortly after publication of (Hillary) Clinton's Goldman Sachs speechs (sic)," the statement from WikiLeaks said.

Assange has lived and worked in Ecuador's London embassy since June 2012, having been granted asylum there after a British court ordered him extradited to Sweden to face questioning in a sexual molestation case involving two female WikiLeaks supporters.

WikiLeaks said Assange lost internet connectivity on Sunday night.

"We have activated the appropriate contingency plans," added the Twitter message on Monday. People close to WikiLeaks say that Assange himself is the principal operator of the website's Twitter feed.

Over the last two weeks, Democratic Party officials and U.S. government agencies have accused the Russian government, including the country's "senior-most officials," of pursuing a campaign of cyber attacks against Democratic Party organizations ahead of the Nov. 8 U.S. presidential election.

WikiLeaks has been one of the most prominent internet outlets to post and promote hacked Democratic Party materials. While denying any connection with a Russian hacking campaign, Assange has refused to disclose WikiLeaks' sources for hacked Democratic Party messages.

Sources close to both the Democratic Party and WikiLeaks say they believe WikiLeaks has acquired as many as 40,000-50,000 emails hacked from the personal accounts of John Podesta, the former White House advisor who now chairs of Hillary Clinton's presidential campaign.

Despite Assange's complaint that his internet connection was cut, WikiLeaks posted on Monday afternoon what it said was a fresh batch of Podesta's emails.

According to a summary of the latest emails posted on Russia Today, a media outlet with close links to the Russian government, highlights include campaign staff discussions about "galvanizing Latino support" and about how to handle media queries about Clinton's "flip-flopping" on gay marriage.

from the Wall Street Journal, 2016-Oct-16:

Queen Elizabeth Gives Orders to Hillary
Senator Warren wants veto power over the economic-policy team.

As Hillary Clinton expands her lead in the polls, Democrats are angling to influence her choices for policy-making jobs. Witness Elizabeth Warren’s extraordinary demand on Friday that President Obama demote Mary Jo White as chair of the Securities and Exchange Commission.

The Massachusetts Senator made her demand in a letter to the President that is remarkable for its vitriol toward someone nominated by a President of her own party. The Bay State progressive accuses the SEC chair of “brazen conduct” in choosing not to require new disclosures from public corporations regarding their political activities.

She also rants that Ms. White is “ignoring the SEC’s core mission of investor protection” and trying to reduce the amount of information that investors receive. And she demands that he “immediately designate another SEC commissioner as Chair of the agency,” which is supposed to be independent.

The idea that Ms. White is reducing public disclosures must be news to everyone now struggling to comply with new reporting rules on asset management, CEO pay ratios, conflict minerals, derivatives, and more. The Warren charge springs from the fact that, like every other person who has run the modern SEC, Ms. White has wondered if disclosures can be simplified to make it easier for investors to find the information they need. As for ignoring investor protection, the record shows that in the 12 months ending in September, the SEC brought more enforcement cases than in any other year in its history.

But the Warren letter really has nothing to do with disclosure or investor protection. Ms. Warren has never forgiven the SEC chief for her 2013 decision not to turn the agency into an IRS-style political targeting operation.

Under pressure from then-Rep. Barney Frank and liberal activists, Ms. White’s predecessor Mary Schapiro overrode objections from career staff and put a new political disclosure rule on the SEC’s regulatory agenda. Commission staff rightly cautioned that the agency’s job is to ensure the disclosure of information that is relevant and material to those making investment decisions, not to regulate political speech.

But having failed to get its way in Congress or the courts, the left wants to use the regulatory power of the SEC to cut off corporate support for the Chamber of Commerce, trade associations and other groups that oppose more taxes and regulation. The idea is to impose heavy reporting requirements on business—but not on labor unions—for providing financial support to groups engaged in public debate. Left-wing activists will then take the information and use it to beat up CEOs or boycott companies that donate.

Ms. Warren’s letter claims that “corporations are flooding our elections with millions of dollars in secret political contributions, drowning out the voices of working families.” But corporate Pac donations to candidates or to Super Pacs must be disclosed under current law. Notice how she doesn’t target billionaire progressive donors like Tom Steyer or George Soros—perhaps because Politico reported on the weekend that Hillary “Clinton has built the biggest big-money operation ever.”

To her great credit, Ms. White dropped the partisan political disclosure idea from the SEC’s to-do list, and progressives have been carping ever since. Ms. White has stood firm against this threat to the SEC’s integrity, and White House spokesman Eric Schultz says the President continues to believe Ms. White "is the right leader" for the job, according to the Associated Press.

But with Mr. Obama a short-timer, Ms. Warren’s broadside is really aimed at Mrs. Clinton. It’s a warning that she should replace Ms. White with a new chair who will impose the political rule, and that anyone Mrs. Clinton nominates as SEC chair won’t make it through a Democratic Senate without the approval of Queen Elizabeth.

This Warren gauntlet is already the talk of Wall Street Democrats who are wondering how they can please her highness and get back in government. The New Republic reports that Peter Orszag, an expert in the Beltway-Broadway revolving door, has suggested a trade-off of giving Ms. Warren her way on personnel in return for her tolerating a tax reform-public works spending deal with House Republicans.

All of which shows the sway the Bernie Sanders-Elizabeth Warren left will have over a Clinton Presidency. Get ready for much more anti-business law-writing by decree.

from the Wall Street Journal, 2016-Sep-11, by L. Gordon Crovitz:

Congress Can Save the Internet
The White House will end U.S. oversight at month’s end, unless lawmakers step in.

President Obama wants this to be the last month of an open, uncensored internet guaranteed by the U.S. government. His plan to end American stewardship would hand new power to authoritarian governments offended by the internet as we know it.

The good news is it appears congressional leaders have agreed to rescue the internet in time to prevent the Sept. 30 expiration of U.S. oversight. Sen. Ted Cruz, who has pushed hard against the plan since it was announced two years ago, told me last week he’s “cautiously optimistic” legislators will block it through a rider to the federal budget: “The basic proposition of keeping the internet free has united Republicans across the spectrum and should also unite Democrats with Republicans.”

Top Senate and House Republicans have signaled they will ensure U.S. oversight continues to protect the Internet Corporation for Assigned Names and Numbers, or Icann, and its stakeholders. The leaders of the four congressional committees that oversee the internet—Sen. John Thune and Rep. Fred Upton (Commerce) and Sen. Chuck Grassley and Rep. Bob Goodlatte (Judiciary)—sent a detailed letter last week to Commerce Secretary Penny Pritzker and Attorney General Loretta Lynch: “This irreversible decision could result in a less transparent and accountable internet governance regime or provide an opportunity for an enhanced role for authoritarian nation-states.” They focused on several fatal problems with the Obama plan:

Several countries are committed to ending Icann’s status as a U.S. legal entity, which would invalidate its legal protections. “The matter of jurisdiction alone raises questions,” the legislators wrote. “These critically important jurisdictional issues cannot wait for resolution after the transition occurs.”

Icann’s monopoly over the root zone of domain names earns it hundreds of millions of dollars in annual revenues. Icann should not become an unregulated monopoly. “We have serious concerns about the ability to ensure that Icann would follow its own bylaws” absent oversight, the lawmakers wrote. An unregulated monopoly is more dangerous than a monopoly regulated by the U.S.

The legislators also rejected the claim of Icann’s general counsel, in a letter in today’s Wall Street Journal, that Icann never had an antitrust exemption. They cited a federal appeals court decision in 2000 finding antitrust immunity arising from operating the root zone under the U.S. government contract. That’s important because authoritarian governments would argue Icann could only regain antitrust exemption by joining the United Nations or another government-led organization. The lawmakers found it “troubling” that Obama administration lawyers failed even to ask what happens to Icann’s antitrust status if the U.S. contract ends.

The Constitution says Congress must approve the sale of government property. The Icann contract is government property worth billions of dollars, yet the Obama administration has ignored the requirement to seek congressional approval. “Absent clear legal certainty, moving forward with the transition could have devastating consequences for internet users,” the legislators write, because litigation would create questions about who has authority to award and manage internet addresses.

Each of these objections is enough to retain U.S. oversight, but the broader point is that the internet ain’t broke and doesn’t need fixing. Icann’s stakeholders—developers, engineers, network operators and entrepreneurs—are free to operate an open internet because U.S. protection prevents Moscow, Beijing, Tehran and other authoritarian regimes from meddling. The Obama administration may not be comfortable with American exceptionalism, but the internet fosters free speech and innovation because it was built in the image of the U.S.

The administration has been reduced to arguing that having been promised an end to U.S. oversight, other countries will now be upset if this doesn’t happen. Too bad. Why make authoritarians happy by giving them the power to censor websites globally, including in the U.S.?

Sen. Cruz observed it was interesting that the Obama plan “doesn’t have much in the way of outspoken Democratic support,” though the Democratic platform supports the Obama handover, which the Republican platform opposes. It would be fascinating if internet freedom became an issue in the presidential election.

One of the first people to object to the Obama plan was Bill Clinton, whose administration created the system of U.S. stewardship of the internet in the 1990s. Soon after the plan was announced in 2014, Mr. Clinton warned: “A lot of people who have been trying to take this authority away from the U.S. want to do it for the sole purpose of cracking down on Internet freedom and limiting it and having governments protect their backsides instead of empower their people.”

What does Mrs. Clinton think?

from Bloomberg News Internet Law Resource Center, 2016-Sep-22, by Alexis Kramer in Washington, with assistance from Nancy Ognanovich, and editing by Keith Perine:

Senate Stopgap Spending Bill Free of Internet Rider

A U.S. plan to cede oversight of the internet’s technical functions has skirted a potentially huge roadblock—for now.

The Senate Appropriations Committee Sept. 22 released text of a stopgap funding bill that doesn't contain language to block a two-year effort to transition oversight to a non-profit entity, despite GOP efforts led by Sen. Ted Cruz (R-Texas) to include such a provision.

With just days left before the scheduled transition, it is still unclear whether the issue will resurface before lawmakers finish work on the stopgap bill. Senate Majority Leader Mitch McConnell (R-Ky.) has made procedural moves to prevent Senate amendments to the measure amid Democratic opposition to other provisions in it. Lawmakers will have four days to consider the stopgap before it is put to a vote, according to McConnell.

Philip Corwin, the founder of Virtualaw LLC in Washington who is involved with the non-profit Internet Corporation for Assigned Names and Numbers, told Bloomberg BNA Sept. 22 that the “situation is very fluid” and the filed continuing resolution isn't the final word. “If Senate Democrats push to add additional items from their wish list to the continuing resolution, that could revive the horse-trading and put the transition freeze back into play,” he said.

Cruz said in a statement that he is “profoundly disappointed that Senate negotiators appear to have given in to the White House demands to hand over increased control of the Internet to authoritarian regimes like China, Russia, and Iran.” Cruz urged House lawmakers “to continue to stand united to ensure that the government funding bill prevents the Obama administration from permanently undermining free speech on the Internet.”

The transition is scheduled to occur Oct. 1, barring language in the continuing resolution to block it or any other legal impediment. After the transition, a set of accountability measures would take effect that are designed to enhance ICANN's accountability to the global internet community. The measures would enable community members to, among other things, remove individual ICANN board members and recall the entire board.

An ICANN spokesman declined to comment Sept. 22.


The continuing resolution as written provides $1.1 billion in Zika funds and $500 million in disaster aid for Louisiana. It doesn't include the internet transition rider and offers no assistance to Flint, Mich. to address drinking water contamination.

Jonathan Zuck, president of ACT | The App Association and longtime participant in the ICANN community, told Bloomberg BNA that there is a 25 percent chance the internet transition language will make its way into the continuing resolution, due to “all the horse-trading that goes on in the budget at the last minute.”

Cruz has introduced legislation, the Protecting Internet Freedom Act (S. 3034), in June that would prevent the Commerce Department from carrying out the transition (21 ECLR 954, 6/15/16).

Cruz isn't the only GOP lawmaker leery of the transition. House Judiciary Committee Chairman Robert Goodlatte (R-Va.) and Senate Judiciary Committee Chairman Charles Grassley (R-Iowa) asked the Justice Department in a Sept. 21 letter for details concerning its input in the transition plan as well as its insight into whether the plan would involve an unconstitutional transfer of government property.

“Simply put, with so many unanswered questions and from what available evidence we do have, this transition is not in the best interest of a free, open, and secure Internet—nor is it in the best interest of the United States,” Goodlatte and Grassley wrote.

from the Wall Street Journal, 2016-May-19, by Kimberley A. Strassel:

The IRS's Ugly Business as Usual
How much has really changed?' a judge asks. Answer: not much. The scandal goes on.

Amid the drama that is today's presidential race, serious subjects are getting short shrift. No one is happier about this than Barack Obama. And no agency within that president's administration is more ecstatic than the Internal Revenue Service.

That tax authority's targeting of conservative nonprofits ranks as one of the worst federal scandals in modern history. It is topped only by the outrage that no one has been held to account. Or perhaps by the news that the targeting continues to this day.

That detail became clear in an extraordinary recent court hearing, in front of a panel of judges for the D.C. Circuit Court of Appeals. The paired cases in the hearing were Linchpins of Liberty, et al. v. United States of America, et al. and True the Vote Inc. v. Internal Revenue Service, et al. They involve several conservative nonprofits—there are 41 in Linchpin—that were, as they said, rounded up and “branded” by the IRS. The groups are still suffering harm, and they want justice.

A lower-court judge had blithely accepted the IRS's claim that the targeting had stopped, that applications for nonprofit status had been approved, and that the matter was therefore moot.

The federal judges hearing the appeal, among them David B. Sentelle and Douglas H. Ginsburg, weren't so easily rolled. In a series of probing questions the judges ascertained that at least two of the groups that are party to the lawsuit have still not received their nonprofit approvals. The judges determined that those two groups are 501(c)(4) social-welfare groups, which are subject to far less scrutiny than 501(c)(3) charities, yet are still being harassed by the IRS five years later. The judges were told that not only are the groups still on ice, but that their actions are still being “monitored” by the federal government.

As one lawyer for the plaintiffs noted, despite the IRS's claim that it got rid of its infamous targeting lists, there is “absolutely no showing” that the agency has in fact stopped using the underlying “criteria” that originally “identified and targeted for mistreatment based on political views.”

The hearing also showed the degree to which the IRS has doubled down on its outrageous revisionist history, and its excuses. IRS lawyers again claimed that the whole targeting affair came down to bad “training” and bad “guidance.” They blew off a Government Accountability Office report that last year found the IRS still had procedures that would allow it to unfairly select organizations for examinations based on religious or political viewpoint. The lawyers' argument: We wouldn't do such a thing. Again. Trust us.

More incredibly, the IRS team claimed that the fault for some of the scandal rests with the conservative groups, for not pushing back hard enough during the targeting. In response to complaints that the groups had been forced to hand over confidential information (information the IRS now refuses to destroy), one agency lawyer retorted: “They didn't have to give the information to the IRS if they thought it was inappropriate, they could have said so.” Really.

The government lawyers also smugly noted that some of the targeted conservative groups had blown their chance for nonprofit approval when they turned down the IRS's “fast track” procedure (an Obama Treasury creation that bestows nonprofit status on groups that agree to give up their political speech rights). The IRS team even excused its continuing harassment of these groups by blaming Congress: The Obama IRS came up with a new rule in 2013 to help “clarify” nonprofit regulations—by essentially outlawing nonprofit speech—but congressional Republicans keep blocking it.

At one point, an incredulous Judge Sentelle noted that the IRS might be more believable if it had ever shown “a bit more contrition.” He said: “The Court would have to be awfully ignorant not to recognize that there has likely been an egregious violation of the First Amendment rights of American citizens by the IRS, and the IRS to this day seems very resistant to acknowledgment of that.”

An IRS lawyer rolled out the defense used by former agency official Lois Lerner that the targeting was just the unfortunate use of “inappropriate” criteria, but Judge Sentelle reminded the lawyer of the IRS's vindictiveness. He noted that on one occasion the IRS simply shelved the application of an organization that had sued it. The agency “came to Court not having done anything to eliminate” the problem, he said, so “It's just hard to find the IRS to be an agency we can trust, isn't it?”

Judge Sentelle said there is a “pretty good case” that “egregious violations of the Constitution” had been committed, and he dared an IRS lawyer to “stand there with a straight face” and say otherwise. Judge Ginsburg, who spent the hearing catching out the IRS's conflicting statements, at one point simply asked: “How much has really changed?”

Answer: not much. It was good news, then, that the House Judiciary Committee recently announced it will hold two hearings to examine the conduct of IRS Commissioner John Koskinen in this matter. Donald Trump, as the presumptive GOP nominee, could do worse than to use his megaphone to draw attention to the hearings. The IRS scandal needs to remain a story.

from the Wall Street Journal, 2016-Jun-6:

The IRS Hit List
The agency finally discloses the groups it politically targeted.

Three years on, the Internal Revenue Service has finally handed over its list of the organizations the agency's tax-exempt division targeted for their political views. All it took to shake the disclosure from the agency were dozens of lawsuits and a federal appeals-court order.

In a court filing last month, the IRS produced a list of 426 groups that were singled out for special scrutiny and in some cases had approval of their application for tax-exempt status delayed. The filing was in response to a lawsuit by NorCal Tea Party Patriots, which has struggled for three years to get the agency to acknowledge the names of those it mistreated, so that the targets have the option of joining the litigation. The targets run the gamut from big outfits such as the Tea Party Patriots to local groups that used the “tea party” moniker.

The list doesn't include 40 groups that have already opted out of the suit, so the actual number targeted is 466. The lawsuit's goal is to find out how the targeting occurred and to seek damages for “viewpoint discrimination,” among other legal violations.

The IRS hasn't explained why its number is so much higher than the 298 groups that Treasury Inspector General Russell George identified in his 2013 audit that disclosed the targeting. The latest list also contains more liberal groups than Mr. George's original report mentioned.

Mark Meckler, president of Citizens for Self Governance, which is financing the NorCal lawsuit, suspects this is more proof of IRS misbehavior: “I think what more discovery will show is that once the IRS came under fire, it started adding [liberal] names to obfuscate what it was doing.”

The agency wouldn't have turned over even these names if not for the Sixth Circuit Court of Appeals, which in March excoriated the IRS for stonewalling on NorCal's discovery request and ordered the list's release. The Senate voted to confirm IRS Commissioner John Koskinen in 2013 only after he promised to clean up the agency, yet on his watch the bureaucracy has resisted efforts by Congress and the courts to investigate the scandal. In this case, and others, the tax agency has earned all of the public enmity that comes its way.

from the Washington Post, 2016-Jul-16, by David Weigel:

Clinton will push constitutional amendment to `overturn Citizens United'

ST. LOUIS — Hillary Clinton will call for a constitutional amendment to "overturn Citizens United" in her first 30 days as president and plans to make that announcement today to progressive activists at the annual Netroots Nation conference.

"I will also appoint Supreme Court justices who understand that this decision was a disaster for our democracy," Clinton will say in a video message, scheduled to run near the end of today's final keynote session. "I will fight for other progressive reforms, including small-dollar matching and disclosure requirements. I hope some of the brilliant minds in this room will seek out cases to challenge Citizens United in the courts."

In a statement accompanying the announcement, Clinton pledges to promote Securities and Exchange Commission "rulemaking requiring publicly traded companies to disclose all political spending to their shareholders" and to sign an "executive order requiring federal government contractors to fully disclose all political spending." She has discussed versions of those ideas on the campaign trail, but the forum of Netroots Nation — a conference in its 11th year that she visited in person only once — was a striking place to make the statement.

Clinton's campaign previewed the announcement for some progressive groups, which gave it their seal of approval. "Hillary Clinton's commitment to overturning Citizens United, and her other systemic proposals like public financing of congressional elections, are key to improving our chances of victory on every other issue," said Marissa Barrow, a spokeswoman for the Progressive Change Campaign Committee.

Since 2010, the Citizens United decision has become a metonym for a series of conservative Supreme Court decisions that unwound campaign finance regulations. Democrats have repeatedly tried to pass disclosure measures, as well as an amendment to the Constitution, intended to reverse the decisions. Republicans, often led by Sen. Ted Cruz (Tex.), have characterized those efforts as attacks on the First Amendment.

Even though the case was fought over an anti-Hillary Clinton documentary, Sen. Bernie Sanders (Vt.) became its most prominent critic in the 2016 primaries. He never finished a speech without mentioning Citizens United v. Federal Election Commission, blaming it for the money gushing into politics, and pledging to appoint a Supreme Court that would undo it.

"I know that many of the people in this room supported Sen. Sanders in the primary," Clinton will tell Netroots activists in the video, as footage of the senator and his wife, Jane, a popular campaign surrogate, plays behind her. "I'm looking forward to hearing from you, learning from you, and working with you."

from the Wall Street Journal, 2016-Jul-20, by Kimberley A. Strassel:

A Free-Speech Divide
Clinton targets the First Amendment; the GOP rallies to its side.

The left is slamming the GOP's recently passed party platform, taking the expected shots at what they are calling the party's “extreme” cultural and social agenda. A far more important and extreme divide can be found between the right's growing embrace of free-speech protections and the left's growing ambitions to muzzle its political opponents.

That contrast was on stark display last weekend, when Hillary Clinton, in a video address to the annual Netroots Nation conference in St. Louis, pledged to undertake what amounts to a gutting of the First Amendment.

Mrs. Clinton vowed that within 30 days of taking office she would call for a constitutional amendment putting government in charge of deciding who can spend money in elections. Just as notable, Mrs. Clinton embraced the left's new weapon of using financial “disclosure” to intimidate opponents into abandoning political speech. She called on the Securities and Exchange Commission to forge ahead with a controversial rule to force companies to make public all their political giving. She also promised an executive order to make federal contractors disclose the candidates and causes they support.

These seeming “good government” reforms mask what become a hardball tactic by the left to silence its opposition. State attorneys general such as New York's Eric Schneiderman and California's Kamala Harris are attempting to force nonprofits to disclose their donors—making them easy targets for liberal groups who want to harass and intimidate individual donors.

When such information does become available, Democratic politicians publicly revile conservative donors; overeager federal and state bureaucracies, taking the cue, then target the donors with audits or inspections. Left-wing activist groups threaten corporate donors with attack ads and boycotts unless they withdraw from the political realm. Democrats want to take this kind of harassment up several notches.

The GOP party platform, overwhelmingly passed by convention delegates on Monday, is a rebuke to all this. Republican platforms have for several cycles now taken strong First Amendment positions, but in a clear nod to the growing threats from the left, the 2016 version contains important additions. In broadly opposing any “conditions that would discourage citizens from participating in the public square,” the GOP platform this year goes out of its way to list a specific example. To wit, it will fight efforts “requiring private organizations to publicly disclose their donors to the government.”

The platform this year also expressly calls for protecting the “political speech of advocacy groups, corporations and labor unions”—all of which would be targeted by Mrs. Clinton's speech-muzzling “reforms.”

This new GOP platform position is a big shift. For years, Republicans have embraced “transparency” as their own alternative to campaign-finance laws. They have argued that we should get rid of speech restrictions in favor of full disclosure. But attacks during the Obama years on conservative and free-market nonprofits, companies and donors have finally caught their attention, and they are adopting a broader view of the need for constitutional speech guarantees and protection against harassment. And just in time.

from the Wall Street Journal Best of the Web, 2015-Aug-11, by James Taranto:

`Speech Nuts'
Does the left like anything in the Bill of Rights?

“The First Amendment has something in common with the Second Amendment,” writes the New Yorker's Kelefa Sanneh: “Both are unusually broad legal guarantees that mark a difference between America and the rest of the world.”

Swells you up with patriotism, doesn't it? (Or envy, if you're from Canada, France or one of the other non-U.S. countries too numerous to mention.) But Sanneh means it as an invidious comparison. He writes: “Speech nuts, like gun nuts, have amassed plenty of arguments, but they—we—are driven, too, by a shared sensibility that can seem irrational by European standards.”

As that parenthetical “we” suggests, Sanneh's essay—which is about free expression, and mentions the Second Amendment only for the sake of this comparison—is more nuanced than the “speech nuts” epithet might suggest. He counts himself among the nuts, but only equivocally: “Perhaps America's First Amendment, like the Second, is ultimately a matter of national preference.”

One further similarity between the First and Second amendments is that these days the political left is relatively hostile to both. That's long been true of the Second but is a relatively recent development with regard to the First. Although we were not reading the New Yorker in 1987—when, as now, it was America's leading forum of middlebrow left-liberalism—we feel fairly confident in saying an article like this would not have appeared there then.

In those days, by and large, liberals were the “speech nuts,” and they reacted with outrage when conservatives argued that free expression had in some respects gone too far. In a 1971 law-review article, Robert Bork described pornography as “a problem of pollution of the moral and aesthetic atmosphere precisely analogous to smoke pollution.” The left pilloried him for that during his Supreme Court confirmation hearings in 1987. By 2013, as we noted at the time, no less than the New York Times editorial page was demanding federal action against “polluting” speech (though not pornography).

Meanwhile, Sanneh's piece is a critical response to two pro-free-speech books—one by a pair of conservative authors (Mary Katharine Ham and Guy Benson) and one by a dissident liberal (Kirsten Powers). Powers, incidentally, turns out to be less of a dissident than we thought. We learn from Sanneh that she “disagrees” with what he rightly calls “probably the most consequential free-speech ruling of the modern era,” Citizens United v. Federal Election Commission, “which explains why she wrote a book about free speech without mentioning it.”

By 1987 the campus left was beginning to turn against free speech, as we learned from personal experience. But even the liberal media generally treated political correctness as an object of curiosity and mockery. These days it isn't hard to find articles so silly they could have been put out by some diversity administrator at Podunk State. An example, from Vox's Amanda Taub:

A programmer from New Zealand named Byron Clark has come up with a perfect way to show what people really mean when they talk about political correctness. He set up his browser to automatically change all mentions of the term “political correctness” to “treating people with respect.”

The venn diagram of “political correctness” and “treating people with respect” no doubt would show some overlap, but the claim that the two are equivalent is feeble even by Vox's standards.

Sanneh's piece is at least thoughtful, and it presents some arguments that, while unsound, are worth rebutting. One comes from the literary theorist Stanley Fish:

His mischievous contribution to the debate, published [in 1994], was “There's No Such Thing as Free Speech: And It's a Good Thing, Too,” which argued that free expression was no one's “primary value.” . . . Free speech, in Fish's unsentimental account, was a “political prize,” a tag awarded by politically powerful groups to whatever forms of expression they approved of. . . . The question of whether to regulate so-called “hate speech” was “no more or less difficult than the question of whether spectators at a trial can applaud or boo the statements of opposing counsels.” . . .
Perhaps it is no coincidence that one of the most influential free-speech skeptics in America today is an immigrant. Jeremy Waldron is a law professor from New Zealand who teaches at New York University. In 2012, he published “The Harm in Hate Speech,” a powerful little book that seeks to dismantle familiar defenses of the right to indefensible speech. Waldron is unimpressed by the “liberal bravado” of free-speech advocates who say, “I hate what you say but I will defend to the death your right to say it.” In his view, the people who say this rarely feel threatened by the speech they say they hate.

Sanneh himself halfway endorses that view: “Some kinds of free speech really can be harmful, and people who want to defend it anyway should be willing to say so.” For our part, we wonder if perhaps it's time to cut off immigration from New Zealand.

But seriously, is the unwillingness to acknowledge that speech “can be harmful” really a problem? This columnist would surely qualify as a “speech nut,” but just yesterday we decried the anti-Semitic overtones of President Obama and his supporters' attacks on opponents of his Iran deal. Surely readers understood us to be arguing that such rhetoric is harmful. On the other hand, it never would have occurred to us to call for it to be answered with censorship.

Fish's claim that free speech is no one “primary value” seems at odds with Sanneh's idea that some people are “speech nuts.” It is no doubt true, however, that even many “speech nuts” tend toward a degree of hypocrisy—that is, they are more apt to object to censorship of the speech they like. It seems to us quite wrongheaded, though, to reject free speech as a principle on this basis.

Consider the question at a higher level of generality: Most people claim to favor fairness but are less likely to object to unfairness when it is to their benefit. It does not follow that all appeals to fairness are without substance. True, “fairness” is such a vague and multifaceted concept that it is insufficient to serve as a legal standard or a policy goal. But that criticism does not apply with any force to “free speech,” which, some ambiguity notwithstanding, has a clear meaning under American law.

As vague the idea of “fairness” is, it is at the heart of the rule of law. And here there is a crucial difference between a legal regime based on restricting government (free speech) and one based on empowering it (“hate speech”): The latter is far more amenable to abuse by people in authority.

Enforcing the law and prosecuting crimes—and this is as true of actual crimes as it would be of speech crimes—necessarily entails a substantial amount of discretion, if only because law-enforcement resources are finite. Even assuming a facially neutral hate-speech law could be written, it would be enforced in ways that reflect the political priorities of the powerful—just as, for example, the Obama IRS used ostensibly neutral speech regulations to persecute the administration's critics.

To take a concrete example: Even if we thought Obama and his supporters deserved to be prosecuted for anti-Semitic hate speech (we do not, just in case that isn't already clear), and laws were on the books making it theoretically possible, it's safe to assume no attorney general would seek charges against the president who appointed him.

Hate-speech laws, then, would give those in power not only a tool to suppress their foes but also a license to engage in hateful speech themselves. Those who favor censorship at least ought to be willing to acknowledge it is harmful.

from the Wall Street Journal, 2015-May-5, by Donald F. McGahn II:

Hillary's Constitutional Aversion to Criticism
Candidate Clinton signs on to the campaign to rewrite the First Amendment to limit political speech.

Progressivism's ever-tightening grip on the Democratic Party is on full display in Hillary Clinton's presidential platform. Starting with her kickoff speech in Iowa, and in subsequent venues across the country, she spoke of her campaign's “four fights,” one of which is a constitutional amendment on campaign finance. This marks Mrs. Clinton as an adherent to one of the newest and most fervently held tenets of modern progressive teaching: Citizens United v. FEC is an evil that must be destroyed at any cost.

Yet it's worth dwelling on that cost. Recent history demonstrates that the anti-Citizens United campaign quickly devolves into an assault on the First Amendment and a free and fair electoral system.

In a sense, it's fitting that Mrs. Clinton supports efforts to overturn the Supreme Court's 2010 ruling that dealt with the right to buy television ads for a movie that criticized her. The constitutional amendment she wants could return American elections to where they were in 2008, when her opponents and critics were often muzzled in the public square.

Despite the hyperbole surrounding Citizens United, the justices were actually debating a simple issue: Whether a movie critical of then-Sen. Hillary Clinton could be aired on pay-per-view television. Under the Bipartisan Campaign Finance Reform Act of 2002, such activity was banned within 30 days of a primary election. The justices struck down this prohibition, ruling that “the First Amendment protects political speech.” Chief Justice John Roberts was even more blunt, arguing that such bans subvert “the vibrant public discourse that is at the foundation of our democracy.”

There was a time when most Americans agreed with this logic. The American Founding was partially triggered by the Stamp Act, which squelched speech by mandating that publications possess a stamp purchased from the British government. Following the Revolution and the ratification of the Constitution, the first Congress wisely passed the First Amendment to prevent politicians from banning speech that criticizes officeholders. Throughout American history, this constitutional guarantee of free speech has been the bulwark of the country's experiment in self-government.

Yet this consensus disappeared following Citizens United. The Democratic Party's leadership, fearing the electoral losses that ultimately came to pass, called for a crusade to undo the Supreme Court's decision. Their holy war found its fullest expression in the demand for a constitutional amendment that would, in essence, repeal the First Amendment.

Hillary Clinton is now on board this campaign, based on her recent pledge to “fix” our political system “even if that takes a constitutional amendment.” For a hint of what her proposed amendment might look like, consider the measure then-Senate Majority Leader Harry Reid (D., Nev.) brought to the Senate floor last year. The so-called Udall Amendment—introduced by Sen. Tom Udall (D., N.M.), co-sponsored by 48 other Democratic senators, and ultimately supported by 54 senators, but no Republicans—was designed to reverse Citizens United.

The amendment—which was filibustered in the Senate in September—promises to “advance the fundamental principle of political equality for all” and “protect the integrity of the legislative electoral process.” In reality, it would give politicians unlimited authority to stifle the speech of their political opponents.

As with most campaign-finance reform measures, the Udall Amendment's goal is to get money out of politics. It seeks to accomplish this by allowing Congress to regulate and limit how “candidates and others” raise and spend money.

Yet free speech is toothless without money—especially when it concerns elections and public policy. It is necessary to print campaign mailers, organize phone banks, air television and radio ads, build websites and pay for a thousand other things.

By giving legislators authority to regulate the money that finances this speech, politicians would only succeed in making it harder for Americans to make their voices heard in the political process. The American Civil Liberties Union argued in a 2014 letter to Congress that the Udall Amendment would “lead directly to government censorship of political speech.” The ACLU also warned that it would “fundamentally `break' the constitution and endanger civil rights and civil liberties for generations.”

It isn't hard to see how. The Obama administration admitted in 2010 that its position in Citizens United would empower the government to ban books, ads and anything else that contains a political message that regulators and politicians don't like. The only limit the Udall Amendment placed on Congress is that any campaign-finance law must be “reasonable.” This led Sen. Ted Cruz (R., Texas) to remark in a 2014 Senate subcommittee hearing on the amendment that “I am not content to have . . . free speech rights protected by the reasonableness of members of Congress, Republicans or Democrats.”

No one, left or right, should be comfortable with giving politicians such power. When elected officials are able to handicap and silence their electoral opponents, they will rarely refrain from doing so. This is true whether it's the man or woman in the White House, representatives and senators in Congress, state legislators and governors, or even the members of the local PTA. A constitutional amendment on campaign finance can't change human nature.

Before she goes down in history as the first presidential candidate to make gutting the First Amendment a central part of her platform, Mrs. Clinton might want to remember the liberal heroes of yesteryear who defended free speech. Supreme Court Justice Oliver Wendell Holmes Jr. was right when he declared in 1919 that “the best test of truth is the power of the thought to get itself accepted in the competition of the market.”

Justice Louis Brandeis was also right in 1927 when he called for “more speech, not enforced silence” in America's political debates. And so was Sen. Ted Kennedy, who 80 years later declared that “we have never amended the Bill of Rights, and now is not the time to start.”

It's a shame that the Democratic Party's de facto presidential candidate has abandoned this wisdom.

Mr. McGahn is a former chairman of the Federal Election Commission.

from the Washington Post, 2015-May-14, by Matea Gold and Anne Gearan, with Robert Barnes and Karen Tumulty contributing:

Hillary Clinton's litmus test for Supreme Court nominees: a pledge to overturn Citizens United

Hillary Clinton told a group of her top fundraisers Thursday that if she is elected president, her nominees to the Supreme Court will have to share her belief that the court's 2010 Citizens United decision must be overturned, according to people who heard her remarks.

Clinton's emphatic opposition to the ruling, which allowed corporations and unions to spend unlimited sums on independent political activity, garnered the strongest applause of the afternoon from the more than 200 party financiers gathered in Brooklyn for a closed-door briefing from the Democratic candidate and her senior aides, according to some of those present.

"She got major applause when she said would not name anybody to the Supreme Court unless she has assurances that they would overturn" the decision, said one attendee, who, like others, requested anonymity to describe the private session.

If the make-up of the court does not change by 2017, four of the justices will be 78 years of age or older by the time the next president is inaugurated.

Clinton's pledge to use opposition to Citizens United as a litmus test for Supreme Court nominees echoes the stance taken by Sen. Bernie Sanders of Vermont, who is challenging her for the Democratic nomination.

“If elected president, I will have a litmus test in terms of my nominee to be a Supreme Court justice,” Sanders said on CBS' “Face the Nation” on Sunday. “And that nominee will say that we are all going to overturn this disastrous Supreme Court decision on Citizens United because that decision is undermining American democracy. I do not believe that billionaires should be able to buy politicians.”

On Thursday, Clinton also reiterated her support for a constitutional amendment that would overturn Citizens United, a long-shot effort that is nonetheless popular among Democratic activists.

"She said she is going to do everything she can," the attendee said. "She was very firm about this – that this Supreme Court decision is just a disaster."

A campaign spokesman did not immediately respond to a request for comment.

Clinton has made overhauling the current campaign finance system one of the major planks of her campaign, even as she has tacitly endorsed the efforts of two big-money super PACs working to help get her elected in 2016 -- Priorities USA Action and Correct the Record. Advisers have said that they cannot reject such vehicles when they are being vigorously embraced by the Republican field.

Still, the prominent role that wealthy donors are expected to play in boosting her bid could make it hard for Clinton to cast herself as a champion of campaign finance reform, particularly in the eyes of some advocates who remember the soft-money scandals of the Bill Clinton administration.

On Thursday, the former secretary of state spoke and took questions for about 45 minutes in a converted warehouse on a pier in Brooklyn's Red Hook neighborhood, with sweeping waterfront views of the Manhattan skyline and the Statue of Liberty. The fundraisers on hand for the meeting -- a mix of longtime Clinton backers and a small number of bundlers who played major roles in the campaigns of President Obama -- had all raised at least $27,000 for her campaign.

In response to questions from the group, Clinton spoke about the need for renewable energy and strongly endorsed Obama's free community college plan.

She avoided taking a position on the controversial Trans-Pacific Partnership trade accord, saying she first wants to see what comes out of Congress.

Afterward, Clinton stayed and shook hands for 45 minutes. There was no sense that old Clinton loyalists had higher ranking than newer supporters, attendees said. “She spent time with every single person -- new friends and old friends equally," said a second participant.

from the Wall Street Journal, 2016-Jun-13, by L. Gordon Crovitz:

The Battle Over Obama's Internet Surrender
Congress must act this summer to keep U.S. oversight and protection intact.

It's make or break for the internet as we know it. Unless Congress acts this summer, the Obama administration will end U.S. protection of the internet, handing authoritarian regimes the power they have long sought to censor the web globally, including in the U.S.

The battle lines were drawn last week when the Obama administration backed a plan submitted by the Internet Corporation for Assigned Names and Numbers, or Icann, to free itself in September from the U.S. oversight that has kept the internet open since the 1990s. In response, bills were introduced in the Senate and House to block the Obama internet surrender.

The administration falsely spins the U.S. role as “largely clerical.” In fact, U.S. control over Icann and the root zone of the internet though a Commerce Department contract stops China, Russia and others from interfering with the engineers, developers and others who operate the open internet. The administration delayed ending its internet oversight by a year to find protections, but Icann's 346-page plan falls far short.

Instead of shielding the internet from governments, the plan gives governments new powers. Authoritarian regimes would gain greater influence over the Icann board, and for the first time governments would have a vote on bylaw changes, removal of the board and the budget.

The Obama administration knows that the new internet-governance plan offers nothing like the guaranteed open internet under continued U.S. control. In a lame defense of the plan, Commerce official Larry Strickling last week told the Washington Post, “At the end of the day, this whole system is built on trust.”

Trusting China and Russia to leave the internet alone takes Obama administration naïveté to a new level.

The administration justifies unilateral surrender of U.S. oversight with the contention that authoritarian regimes will reciprocate by refraining from setting up domestic systems separate from the global internet. This is fantasy: Despite the Obama kowtow, Beijing has accelerated the requirement for its own domains for web access in China.

Even the administration's handpicked “independent” analysis found risks in the Icann plan. Commerce gave a single-source contract to the politically reliable Berkman Center at Harvard. Its analysis includes a citation to warnings in an earlier Information Age column on how authoritarian regimes would fill the power void left by the U.S., but called these concerns “largely without foundation.” Note the word “largely.” The analysts further hedged: “Our appraisal is necessarily provisional, as important aspects of the transition remain to be determined.”

Amazingly, the Obama administration says it is ready to implement a plan that remains incomplete. Icann postponed key issues for a “Phase Two,” timed for after the U.S. gives up its contract and loses its leverage. Among the topics to be decided only later is whether Icann, currently based in California, remains under U.S. legal jurisdiction, moves overseas or becomes part of the United Nations, fully controlled by governments. Internet-governance lawyer Philip Corwin recently wrote a 26-page paper entitled, “The Irritating Irresolution of Icann Jurisdiction.”

Congress should insist on continued U.S. stewardship because of the uncertain legal jurisdiction alone. The governance protections in the new plan—weak as they are—can only be enforced if Icann remains subject to U.S. law. Authoritarian regimes intend to end U.S. legal jurisdiction as quickly as possible. Shifting Icann's legal status away from the U.S. is a top agenda item for an Icann working-group meeting in Helsinki June 26.

Aside from flaws in the new plan for internet governance, the Obama gambit to end U.S. oversight without congressional approval is unconstitutional. Congress must authorize transfers of U.S. property, which includes the Icann domain system, worth billions of dollars. If the courts later rule that Mr. Obama's unilateral action violates the separation of powers, there will be no remedy because the contract will be gone forever.

The “Protecting Internet Freedom Act” introduced by Sen. Ted Cruz and Rep. Sean Duffy requires congressional approval before Mr. Obama abandons the internet. Five senators led by Marco Rubio take a middle ground by seeking an extension of U.S. oversight to test the new governance plan. The House is using its power of the purse to block the transfer of the contract.

Congress has insisted on U.S. oversight to guarantee an uncensored internet. The only way for authoritarian regimes to obtain the power to censor websites outside their own countries, including in the U.S., would be if the Obama administration hands it to them. Time is running out for Congress to insist that the U.S. continue to protect Americans and everyone around the world who values the open internet.

from the Wall Street Journal, 2016-Mar-20, by L. Gordon Crovitz:

Stop Obama's Internet Giveaway
It's up to Congress to block a surrender that could give control to authoritarian rulers.

Two years after President Obama decided to give up U.S. protection of the open Internet, his administration is now considering how to give away power to other governments, most of which want a closed, censored Internet.

In 2014 the administration asked the engineers and developers who run the Internet to come up with a plan to keep the Internet open without U.S. protection. That was an impossible task: The alternative to having the U.S. keep other governments out of the way was always going to be letting other governments get in the way.

The Commerce Department official charged with ending U.S. oversight, Lawrence Strickling, originally claimed that the U.S. role was merely “clerical,” so could easily be replaced. Last week he bragged: “Stakeholders spent more than 26,000 working hours on the proposal, exchanged more than 33,000 messages on mailing lists, and held more than 600 meetings and calls.”

The plan was supposed to ensure that U.S. control could never be replaced “with a government-led or intergovernmental organization solution.” Yet it does precisely that, giving foreign governments new powers over the Internet Corporation for Assigned Names and Numbers, or Icann, and a path to full control. They would get a say in removing or appointing Icann board members, in violation of Icann's articles of incorporation. The Icann board would have to muster 60% of its members to reject advice from governments, up from the current 50%. The Icann board would also be able to launch “accountability” reviews of all stakeholder groups—except the government group.

Robin Gross, former head of the Icann group representing nonprofit stakeholders, filed a dissent with Icann against upgrading the government role “from an advisory to a decisional role over Icann's policies, operations and corporate governance matters.” She noted this change was especially surprising considering that the U.S. government, including Congress, has “sent a number of clear signals that government influence should not be expanded.”

The main risk of government control is to the root zone of the Internet, currently protected by the U.S. government through its contract with Icann. If authoritarian governments can get access to the underlying website names and addresses globally, they could disable sites they don't like everywhere in the world, not just in their own countries.

In secret planning discussions last year leaked to me, the Russian representative told other authoritarian governments that full government control over Internet stakeholders is a topic that “needs to be further examined” only after the U.S. withdraws, creating a vacuum of power.

Icann already has been kowtowing to authoritarian regimes. Its CEO, Fadi Chehade, shocked stakeholders in December by agreeing to become a senior adviser to China's World Internet Conference, a new organization Beijing created to compete with Icann and its multistakeholder system. Its goal is to replace the open Internet with full government control and global censorship.

“We all need to give a big hug to China,” Mr. Chehade said. “And China typically hugs back.” Mr. Chehade had earlier announced he would step down from his position at Icann.

The Icann board refused to disavow Mr. Chehade's move after what one board member called “somewhat heated discussion.” Washington Internet Daily quoted a board member: “The view eventually prevailed that no reactive action should be taken lest China lose face.”

Senators, including Ted Cruz, asked whether this participation in China's version of Internet governance “makes Icann complicit in the Chinese censorship regime.” Mr. Chehade's reply was that if Congress retains U.S. oversight of the Internet, this “would have grave repercussions on the U.S.”

Philip Corwin, an Internet governance lawyer, noted on the CircleID website that this “less than complete and somewhat argumentative response may have implications for congressional review” of the plan to hand over oversight of Icann.

Congress has used budget bills to defund any action by the Obama administration to end the U.S. contract with Icann, at least through this September. There is a good constitutional argument that Congress must approve any transfer of the Icann contract, as valuable property belonging to the U.S. A new president should decide the wisdom of abandoning the Internet before it is given up with no chance of return.

The Obama administration doesn't like to acknowledge American exceptionalism, but the open Internet reflects the American values of free speech and open innovation. The Internet as we know it won't survive if other governments get their way. At least until there is a new president, it's up to Congress to insist that the U.S. remains the essential steward of Internet freedom.

from the Wall Street Journal, 2016-Mar-1:

Apple Is Right on Encryption
The FBI doesn't want merely one phone, and its warrant is legally suspect.

The Apple encryption conflict has turned nasty, as the Obama Administration, most Republicans and public opinion turn against the tech company. But, lo, Apple won its first court test on Monday, and its legal briefs against the court order to unlock an iPhone used by the San Bernardino jihadists show it has a better argument than the government.

The FBI is attempting to extract information on Syed Rizwan Farook's device but has been frustrated by Apple's encryption. So a California magistrate ordered the company to design a custom version of its operating software that will disable certain security features and permit the FBI to break the password. Apple has cooperated with the probe but argues that forcing it to write new code is illegal.

One confusion promoted by the FBI is that its order is merely a run-of-the-mill search warrant. This is false. The FBI is invoking the 1789 All Writs Act, an otherwise unremarkable law that grants judges the authority to enforce their orders as “necessary or appropriate.” The problem is that the All Writs Act is not a catch-all license for anything judges want to do. They can only exercise powers that Congress has granted them.

Congress knows how to require private companies to serve public needs. The law obligates telecoms, for example, to assist with surveillance collection. But Congress has never said the courts can commandeer companies to provide digital forensics or devise programs it would be theoretically useful for the FBI to have—even if they are “necessary” for a search.

Congress could instruct tech makers from now on to build “back doors” into their devices for law-enforcement use, for better or more likely worse. But this back-door debate has raged for two years. In the absence of congressional action, the courts can't now appoint themselves as a super legislature to commandeer innocent third parties ex post facto.

What makes the FBI's request so extraordinary is that the iPhone encryption and security methods were legal when they were created and still are. Apple has no more connection to the data on Farook's phone than Ford does to a bank robber who uses an F-150 as a getaway vehicle.

If the government can compel a manufacturer to invent intellectual property that does not exist in order to invade its own lawful products, then there is no limiting legal principle. Could the FBI require a tech maker, for example, to send a malware worm to a user's device in the form of a routine update?

The other myth is that Apple is merely being asked to crack “one phone in the entire world,” as Marco Rubio puts it. This is also false. The Justice Department is beseeching Apple to provide software retrofits in at least a dozen public cases, and state and local prosecutors have stacks of backlogged iPhones they want unlocked too. In the New York case Apple won this week, prosecutors want Apple to unlock an iPhone even though the owner has pleaded guilty.

If Apple now writes the program the G-men desire, then the technique will be used in investigations that have nothing to do with terrorism as other prosecutors use the same argument. This is the back door by degrees that Apple CEO Tim Cook describes.

FBI director James Comey told Congress last week that the Apple case was “unlikely to be a trailblazer” and that it also would be “instructive for other courts.” Well, which is it? This contradiction isn't the only reason to wonder if Mr. Comey prefers an encryption legal precedent over Farook's actual data.

One question is why the phone wasn't immediately shipped in a faraday bag to Fort Meade. The National Security Agency has a formidable decryption unit, and U.S. spooks probably have the ability to hack Farook's phone without Apple's services, especially because it is an older, less sophisticated model.

We bow to no one in defense of antiterror programs whose political popularity waxes and wanes, especially on surveillance. But this case isn't about “privacy.” This is about engineering security and its implications for the security of all Americans.

Back doors are engineering vulnerabilities that make devices less secure. But terrorists and criminals will always be able to find some underground encrypted communication channel, so regulating back doors into legal devices achieves little national-security benefit. To borrow a line from James Burnham, if there's no alternative, there's no problem.

If Congress is really going to outlaw stronger encryption for law-abiding Americans, well, the political class has the right to make mistakes. But it would be a far more dangerous precedent for the courts to do so without guidance from Capitol Hill.

Mr. Comey may be leading the government to defeat, which makes the White House's incoherence—backing this unnecessary showdown while claiming to oppose back doors—all the stranger. If this debate really is critical to protecting public safety, then Mr. Comey should appeal to Congress to change the law, rather than insist that the courts should resolve a major policy dispute in his favor.

from the New York Times, 2016-Mar-5, by Michael D. Shear and David E. Sanger:

Competing Interests on Encryption Divide Top Obama Officials

WASHINGTON — The intensifying legal battle over encryption between Apple and the Justice Department has all but obscured another more subtle division, the one inside the Obama administration itself.

Driven by competing and sometimes clashing interests about privacy, national security and the economy, some of the president's most senior aides are staking out a variety of positions on the issue.

The White House denies there is disagreement over the effort to force Apple to break into the phone used by one of the terrorists in the San Bernardino, Calif., shootings, but the differences on how to deal with the broader questions raised by encryption have become increasingly apparent.

The Federal Bureau of Investigation wants the ability to break into smartphones and computers for investigations. The Pentagon and intelligence officials worry that the same techniques could be used by foreign powers or hackers to drain data from phones used by the United States government, and that countries like China will demand the same access provided to American law enforcement officials.

The conflicting positions were on display last week. On Tuesday, James B. Comey Jr., the director of the F.B.I., testified in Congress about the need for some kind of government action — he avoided the word “legislation” because the White House has specifically said it is not seeking that now — that would guarantee access to law enforcement, no matter how encryption technology evolves.

Less than a day later, Defense Secretary Ashton B. Carter, talking to technologists at an annual computer security conference in San Francisco, struck a very different tone. “Data security, including encryption, is absolutely essential” to the Pentagon, he said. “None of our stuff works unless it's connected.” He also warned against a legislative solution.

A law “written in an atmosphere of anger or grief,” he said, is “not likely to be the right answer.” Later he drove home the point, saying “it would be better to work this out rather than have a law written.” And throughout his talk, Mr. Carter made it clear that he is more interested in securing data than prying into it.

Administration officials insist the comments do not reflect serious internal disagreements about policy. They say, for example, that the Justice Department and F.B.I. also support strong encryption — with limits — while the heads of the intelligence agencies, responsible for securing government communications, understand the stresses on those investigating serious crimes.

In a statement, the White House said on Friday that “our policy on encryption is clear.” But the policy it described delineated the differing positions rather than resolving them.

“The United States government firmly supports the development and robust adoption of strong encryption, which is a key tool to secure commerce and trade, safeguard private information, promote free expression and association,” it said. “At the same time, encryption poses a grave challenge for our national security and law enforcement professionals.”

But officials from the National Security Agency, the Department of Homeland Security and the Pentagon describe meetings in the White House Situation Room that go over the same territory, and in the end cannot find a middle ground.

The arguments were touched off two and a half years ago, with the revelations by Edward J. Snowden, the N.S.A. contractor, that the agency had gone to some lengths to undercut encryption.

There was evidence — none confirmed, or discussed by the Obama administration — that the N.S.A. had gained access to the unencrypted communications of servers around the world owned by Google and others to tap into foreign communications. There were suggestions that it had also tampered with the products of a foreign manufacturer of SIM cards, which go into every mobile telephone, to make it easier to intercept calls and emails.

The issues were taken up by a presidential commission that included legal scholars and intelligence experts, like Michael J. Morell, the former deputy director of the C.I.A., and Richard A. Clarke, a former senior national security official in the Clinton and Bush administrations who now works in cybersecurity. Their conclusion was unambiguous in opposing the building of so-called back doors for encrypted devices.

The commission told President Obama that the United States government should “not in any way subvert, undermine, weaken or make vulnerable generally available commercial software,” and it urged more companies to adapt such systems.

The technology company has been locked in a major legal battle against law enforcement officials over privacy and security.

Last month, Admiral Michael S. Rogers, commander of the United States Cyber Command — the Pentagon's digital arm, which both protects the Defense Department's networks and conducts offensive action — as well as director of the N.S.A., echoed that view in remarks to the Atlantic Council.

The view of Admiral Rogers, many experts say, may be affected by the fact that his agency has the best code-cracking capabilities in the world, and he does not need to make public what systems he is already inside. Because he cracks the codes of foreign adversaries (and more than a few allies), he does not need a warrant, as Mr. Comey does. And his agency's less publicized job is securing the government's most vital secrets.

With more and more government communications relying on mobile devices, including a so-called hardened version of the iPhone and the iPad, the N.S.A. is also not interested in advertising to the world ways in which those devices can be defeated.

So far Mr. Obama has fully backed legal efforts by the F.B.I. to force Apple to help authorities unlock the iPhone of the San Bernardino terrorist, who was killed in the attack. But he has rarely spoken about the broader questions, and when asked recently, a senior administration official said the White House still does not favor legislation to solve the issue.

The encryption issue seems particularly acute at the State Department and the Commerce Department, both of which have their own sets of concerns.

One of Hillary Clinton's favorite pilot programs as secretary of state, accelerated during the 2011 Arab Spring crisis, was to equip dissidents and activists around the world with the “Internet in a suitcase,” devices to help communicate and evade censorship.

But the system relies on encrypted conversations, to keep them away from Chinese state security or Egypt's brutal internal police. Any effort to force Apple to break that encryption, several American officials said — insisting on anonymity because the administration is still debating these issues — would be replicated from Beijing to Cairo.

Commerce Department officials have made the point that if Congress ultimately mandates that all encrypted products must be accessible to investigators, it will be a boon to foreign producers of encryption hardware and software. And there are a lot of them.

Bruce Schneier, a cybersecurity expert, published a study recently that said there were “at least 865 hardware or software products incorporating encryption from 55 different countries.” After the United States, Germany tops the list with 112. Most products, Mr. Schneier said recently, “are as good as what you would find in the United States.”

But so far users are not flocking to them in mass numbers for a simple reason: For novices, they can be hard to use.

Apple's design is of particular concern to the F.B.I. because the encryption is automatic; users do not have to do a thing to make it work. As a recent Harvard study about the problem of “going dark” — when law enforcement can no longer get access to evidence because of technological advances — pointed out, the more times users have to manipulate the programs, the greater the opportunity for error.

Which is exactly what the F.B.I. is hoping for.

from Reuters, 2016-Feb-10, by Julia Fioretti, with editing by Adrian Croft:

Google to scrub web search results more widely to soothe EU objections

Google (GOOGL.O) will start scrubbing search results across all its websites when accessed from a European country to soothe the objections of Europe's privacy regulators to its implementation of a landmark EU ruling, a person close to the company said.

The U.S. company has been at loggerheads with several European Union data protection authorities since the European Court of Justice ruled in May 2014 that people could ask search engines such as Google and Microsoft's Bing (MSFT.O) to remove inadequate or irrelevant information that appears under searches for their name - dubbed the "right to be forgotten".

The French data protection authority in September threatened to fine Google if it did not scrub search results globally across all versions of its website, such as

But the company has stuck to its position that it should clean up search results only on European domains such as or because to do otherwise would have a chilling effect on the free flow of information.

To address the concerns of European authorities, the Internet giant will soon start polishing search results across all its websites when someone conducts a search from the country where the removal request originated, a person close to the company said.

That means that if a German resident asks Google to de-list a link popping up under searches for his or her name, the link will not be visible on any version of Google's website, including, when the search engine is accessed from Germany.

The company will filter search results according to a user's IP address, meaning people accessing Google from outside Europe will not be affected, the person added.

Since the ruling in 2014, Google has received 386,038 requests for removal, according to its transparency website. It has accepted about 42 percent of them.

The company has notified all EU data protection authorities of the upcoming changes.

A spokeswoman for Britain's data protection watchdog said the change proposed by Google appeared to address concerns it had previously expressed “on the scope of the requirement to de-list”.

A spokeswoman for the French CNIL - which chairs a working group of EU privacy regulators - said authorities had been informed of Google's plans, which showed that the "issue of territorial scope requires careful thought."

"These elements are currently the object of an inquiry by the services of the CNIL," she said.

from the Wall Street Journal, 2016-Jun-16, by Kimberley A. Strassel:

Exxon's Inquisitors Feel the Heat
Court filings reveal the true aim of this `fraud' case: silencing conservatives.

The first thing to know about the crusade against Exxon by state attorneys general is that it isn't about the law. The second thing to know is that it isn't even about Exxon. What these liberal prosecutors really want is to shut down a universe of their most-hated ideological opponents.

That became startlingly clear this week, with Exxon's latest filing in federal court. The oil company revealed that it has received another subpoena for documents, this one from Massachusetts Attorney General Maura Healey. But Ms. Healey, whose fervor exceeds her political sense, gives away the game.

The 17 attorneys general participating in this cause have always been careful to identify Exxon as their only target. It's easier to accuse a big, bad oil company of nefarious deeds, so they make the bogus claim that Exxon somehow “defrauded” the public and its shareholders by engaging in “climate denial.” All the better if they can beat Exxon into cutting a giant check to settle any future charges—a payoff for their states (and for the trial lawyers helping them).

But the Healey subpoena shows that Exxon is a front. The real target is a broad array of conservative activist groups that are highly effective at mobilizing the grass-roots and countering liberal talking points—and that therefore must (as the left sees things) be muzzled. This is clear from the crazy list of organizations Ms. Healey asked for information about in her subpoena. She demanded that Exxon turn over decades of correspondence with any of them.

Take Americans for Prosperity. AFP confirms it has never received a dime from Exxon. But its 2.3 million activists nationwide are highly effective in elections, and it receives funding from the left's favorite boogeymen, Charles and David Koch.

Or, closer to home: Ms. Healey named the Beacon Hill Institute, a right-leaning think tank in Boston. My sources confirm Beacon Hill has also never seen Exxon dollars. But it is a perpetual thorn in the side of liberal Massachusetts politicians like Ms. Healey.

Also named: the American Legislative Exchange Council. ALEC doesn't now, and hasn't ever, taken a position on the climate. The group is, however, one of the most powerful forces in the country for free-market legislation, having written hundreds of model bills that states use in their efforts to reduce taxes, cut regulations and reform tort laws. Democratic activists have, for the past five years in particular, waged a vicious campaign to run ALEC out of business, and Ms. Healey is now doing her bit.

The same tactics were on display in a subpoena to Exxon from Virgin Islands Attorney General Claude Walker. He appears to have cut-and-pasted from an anti-Exxon website maintained by Greenpeace, since his subpoena lists the same groups in pretty much the same order. The exercise was so sloppy that Mr. Walker named numerous organizations that have been defunct for years, listed several targets twice, and misidentified others.

The goal of the Exxon probe isn't to protect consumers or help the environment. It's a message: Oppose us, and we will marshal our terrifying government powers to intimidate and threaten you, to force you to spend millions defending yourself, to eat up the time you'd otherwise use speaking out.

The Exxon investigation is “pure harassment,” civil-liberties attorney Harvey Silverglate told the Boston Herald this week. “It is outrageous for any law enforcement official,” he continued, “to be seeking to win this battle for minds by flexing law enforcement muscle and trying to shut up the other side.”

That goal is all the more clear given the dishonesty of the legal claim. New York Attorney General Eric Schneiderman is pursuing Exxon under his state's sweeping Martin Act, which covers securities fraud. Yet at a recent panel discussion in New York, Columbia Law Professor Merritt B. Fox noted that Exxon's actions were irrelevant in a market already “well supplied with information about climate change.” He skewered Mr. Schneiderman for pursuing a case “so unlikely” to “be a winner.” This was even as he expressed solidarity with concerns about global warming.

The attorneys general are feeling so much pushback that Mr. Schneiderman felt compelled to give a speech last week delineating his own made-up limits on free speech. Groups that question his harassment of them are engaged in “First Amendment opportunism,” he said, and any right they claim is trumped, apparently, by his righteous, self-defined calling to pursue “fraud.” He clearly sent this memo to his persecutors-in-arms, since Ms. Healey was parroting the same lines this week in response to questions about her subpoena.

The Exxon campaign is only the latest in liberals' broad, coordinated strategy to shut down conservatives. We've seen it in the IRS targeting, the Wisconsin John Doe probe, the campaign against ALEC, the harassment of conservative donors. And the only way to stop it is for targets to speak out—even louder.

Ms. Strassel is the author of “The Intimidation Game: How the Left Is Silencing Free Speech,” out next week from Twelve. Write to

from the Wall Street Journal, 2016-Apr-29:

The Climate Police Escalate
A subpoena hits a think tank that resists progressive orthodoxy.

Sometimes we wonder if we're still living in the land of the free. Witness the subpoena from Claude Walker, attorney general of the U.S. Virgin Islands, demanding that the Competitive Enterprise Institute cough up a decade of emails and policy work, as well as a list of private donors.

Mr. Walker is frustrated that the free-market think tank won't join the modern church of climatology, so he has joined the rapidly expanding club of Democratic politicians and prosecutors harassing dissenters.

New York Attorney General Eric Schneiderman started the assault last autumn with a subpoena barrage on Exxon Mobil. His demand for documents followed reports by Inside Climate News and the Los Angeles Times that claimed Exxon scientists had known for years that greenhouse gases cause global warming but hid the truth from the public and shareholders.

Those reports selectively quoted from Exxon documents, which in any case were publicly available and often peer-reviewed in academic journals. Some Exxon scientists changed their views over the years, and several years ago the company even endorsed a carbon tax.

Mr. Schneiderman nonetheless says he is investigating Exxon for “defrauding the public, defrauding consumers, defrauding shareholders.” He also tipped a broader assault by claiming that the oil and gas company was funneling climate misinformation through “organizations they fund, like the American Enterprise Institute,” the “American Legislative Exchange Council” and the “American Petroleum Institute.” He wants to use the Exxon case to shut down all “climate change deniers.”

Mr. Schneiderman didn't single out CEI, and CEI doesn't disclose its donors. But in January CEI senior attorney Hans Bader blasted Mr. Schneiderman for violating Exxon's First Amendment rights. “Government officials cannot pressure a private party to take adverse action against a speaker,” he wrote. Mr. Scheiderman responded by inviting more than a dozen state AGs to join him in “collectively, collaboratively and aggressively” investigating fossil-fuel companies and their donations. He rolled out Al Gore for the press conference.

Mr. Walker belongs to this climate prosecution club and so he unleashed his subpoena attack on CEI, as well as on DCI Group, a Washington-based PR firm that represents free-market and fossil fuel groups. His demand for a decade's worth of papers on climate research is a form of harassment. The process is itself punishment, intended to raise the cost of speaking freely on climate policy lest it invite legal bills and other political headaches.

Mr. Walker is also over the line in demanding the names of nonprofit CEI's donors, who can remain secret under federal law. Anyone on the list will become a new target for the Schneiderman climate posse.

CEI has filed to quash the subpoena, and the nonprofit has hired attorneys Andrew Grossman and David Rivkin, who recently founded the Free Speech in Science Project to defend First Amendment rights against government abuses. The project is much needed.

Rhode Island Senator Sheldon Whitehouse has asked the Justice Department to use the RICO statutes to bring civil cases against climate dissenters. Attorney General Loretta Lynch recently referred to the FBI a request from two Democrat Congressmen seeking a criminal probe of Exxon. Democrats on Capitol Hill have sent letters pressuring companies to disavow the Chamber of Commerce for its climate heresy.

This is a dangerous turn for free speech, and progressives ought to be the first to say so lest they become targets for their own political heresies. Rather than play defense, the targets of the climate police need to fight back with lawsuits of their own.

from the Guardian, 2016-Aug-19, by Amelia Hill:

Man faces jail term in Dubai for Facebook link to charity
Australian-UK citizen charged under law banning non-authorised fundraising after sharing link to charity for Afghan children

A man with joint British and Australian citizenship could spend a year in jail in Dubai after posting a link on his Facebook page to a US charity raising funds for blankets and socks for refugee children in Afghanistan.

Scott Richards, an economic development adviser from Adelaide, was arrested on 28 July and held for 22 days at Al Muraqqabat police station before being charged on Friday under a new law banning “fundraising without permission”.

The post he shared was a link to a campaign by the Zwan Family Charity to raise funds for new tarpaulins, blankets, warm clothes and socks and sleeping bags for children at the Chahari Qambar refugee camp on the outskirts of Kabul. More than 100 children froze to death at the camp four years ago.

Richards, who grew up in Australia, was living with his wife and two sons in Dubai when he fell foul of a strict new law prohibiting the operation of any charity not registered in the United Arab Emirates.

The 42-year-old could now be sentenced to a prison term of between two months and one year, and a fine of up to 100,000 dirhams (£20,000).

The law, which was created last year, prohibits donations or advertising fundraising campaigns without prior written approval from the Islamic affairs and charitable activities department in Dubai.

Richards's mother, Penelope Haberfield, told the BBC that her son had only been able to change his clothes once every seven days while detained and had to pay for water.

“His wife is under extreme stress,” she said. “She can only take the clothes to him once a week. She takes him money so that he can buy water and extra food.

“She's worried for him, she's worried for herself because if she runs out of money, will she have to leave the country? She's frightened for her children.”

Radha Stirling from the group Detained in Dubai told the Australian broadcaster ABC: “There are constantly expats falling foul of the law [in the United Arab Emirates] and also being victims of other people because it's so easy in the UAE for an individual to take out a police complaint against someone.

“There are so many laws, it's so different, yet so many expats, but UAE doesn't make any effort to inform expats.

“In a case like this where it's so obviously unjust we are hoping for diplomatic intervention which the Australian government has done in the past.”.

from the Associated Press via the New York Times, 2016-Aug-16:

Poland Plans Prison Terms for Using Term 'Polish Death Camp'

WARSAW, Poland — The Polish government approved a new bill on Tuesday that foresees prison terms of up to three years for anyone who uses phrases like "Polish death camps" to refer to Auschwitz and other camps that Nazi Germany operated in occupied Poland during World War II.

The bill aims to deal with a problem the Polish government has faced for years: foreign media outlets — and even U.S. President Barack Obama — referring to the Nazi camps as "Polish."

The Justice Ministry said the Cabinet of Prime Minister Beata Szydlo approved the legislation during a weekly session on Tuesday. It is expected to pass easily in the parliament, where the nationalistic right-wing ruling Law and Justice party enjoys a majority.

Poles fear that as the war grows more distant younger generations across the world will incorrectly assume that Poles had a role in running Auschwitz, Treblinka and other German death camps, a bitter association for a nation that was occupied and subjected to brutality that left some 5.5 million Polish citizens dead during the war, about 3 million Jews and 2.5 million non-Jews.

"It wasn't our mothers, nor our fathers, who are responsible for the crimes of the Holocaust, which were committed by German and Nazi criminals on occupied Polish territory," Zbignew Ziobro, the justice minister, said Tuesday. "Our responsibility is to defend the truth and dignity of the Polish state and the Polish nation, as well as our fathers, our mothers and our grandparents."

Many Poles support such legislation and feel that it differs little from laws that some countries, including Poland and Germany, have that make Holocaust denial a crime.

However, critics note that the government will ultimately be powerless to punish people outside of Poland, those most likely to use such language. They fear its true intent is to repress historical inquiry within Poland into Polish behavior toward Jews. Though the Polish state never collaborated with the Nazis, there were some Poles who killed Jews or identified them to the Germans. That subject is anathema to the country's nationalistic leadership, which has an official "historical policy" of promoting knowledge of the heroic episodes in Poland's past.

There were also Poles who risked their lives to help Jews. The Israeli Holocaust museum Yad Vashem has recognized more than 6,000 Poles as "Righteous Among the Nations" for rescuing Jews, more than from any other country.

The bill had been under discussion for many months and originally foresaw a prison term of up to five years. The version approved Tuesday is milder. The Justice Ministry says that prison terms of up to three years would be reserved for those who intentionally slander Poland's good name by using terms like "Polish death camps" or "Polish concentration camps." Those who use such language unintentionally would face lesser punishments, including fines.

from the Wall Street Journal, 2016-Mar-25, by Alexis Flynn:

British Man Charged Over Brussels Attacks Tweet
Police accuse man of inciting racial hatred

LONDON—A British man who sent a Twitter message about challenging a Muslim woman over the Brussels attacks has been charged with inciting racial hatred, London police said Friday.

Matthew Doyle, a 46 year old public relations executive from South London, provoked criticism—and some support—after putting his post on the social media platform in the wake of Tuesday's twin bombings in the Belgian capital that claimed more than 30 lives.

“I confronted a Muslim woman yesterday in Croydon. I asked her to explain Brussels. She said 'Nothing to do with me'. A mealy mouthed reply,” said the post from a Twitter account in Mr. Doyle's name.

Police arrested Mr. Doyle on Wednesday after widespread reaction to his post.

He has since been charged with a public order offense, namely “publishing or distributing written material which is threatening, abusive or insulting, likely or intended to stir up racial hatred,” said the Metropolitan Police in a statement.

Under U.K. law, posting offensive social media messages can be classed as a hate crime and lead to criminal prosecution.

Attempts to reach associates of Mr. Doyle for comment on Friday weren't immediately successful.

In an interview with the U.K. newspaper The Daily Telegraph published on Wednesday, Mr. Doyle said he had been arrested for sending the tweet, and defended his actions.

“What everyone's got wrong about this is I didn't confront the woman,” Mr. Doyle was quoted as saying by the newspaper. “I just said: 'Excuse me, can I ask what you thought about the incident in Brussels?'”

“She was white, and British, wearing a hijab, and she told me it was nothing to do with her,” he was quoted as saying in the newspaper. ”I said 'thank you for explaining that,' and her little boy said goodbye to me as we went our separate ways.”

Mr. Doyle is scheduled to appear before a judge at Camberwell Green Magistrates Court on Saturday morning.

from the Wall Street Journal, 2016-Mar-15:

Plenty of Political Climate Change
Sen. Whitehouse used to pretend he opposed jailing dissenters.

Sheldon Whitehouse took to the Senate floor last fall to assail our coverage of his climate agenda. We had criticized his plan to use the RICO law, created to prosecute mobsters, against people who disagree with him about global warming. We also criticized George Mason University's Jagadish Shukla, who wrote to Attorney General Loretta Lynch and other federal officials urging them to follow the Senator's advice. New developments aren't helping the credibility of Messrs. Shukla and Whitehouse.

In October Mr. Whitehouse denied that the RICO litigation threat—with its potential for treble damages—was intended to shut down scientific debate. The Rhode Island Democrat claimed he wants civil rather than criminal prosecutions of climate dissenters. As if bringing financial ruin on defendants accused of independent thought isn't bad enough.

But now it looks like the campaign to silence climate dissidents could move beyond a potential civil case—and we're not hearing a peep from Mr. Whitehouse. Attorney General Lynch told the Senate last week that her department had referred a request to prosecute climate dissent to the Federal Bureau of Investigation. Specifically, it was referred to the FBI's criminal investigative division. A Justice official says on background that this is “not an indication or recommendation of whether a matter merits investigation, but is simply a referral to an appropriate investigative authority at the Department.”

Even as Sen. Whitehouse questioned Ms. Lynch on this very matter at the hearing, he uttered no criticism. His spokesman says the Senator still doesn't favor criminal investigations and that Mr. Whitehouse thought the FBI referral “appeared unusual for the pursuit of a civil investigation.” But if Justice does throw people in jail for scientific skepticism, the message seems to be: Don't count on Mr. Whitehouse to defend your liberty.

While the FBI ponders whether to slap the cuffs on people who don't believe in U.N. climate models, scientists who agree with Mr. Whitehouse are thriving beyond the dreams of most academic researchers.

Check out Mr. Shukla, who egged on Ms. Lynch in the pursuit of climate skeptics. We noted recently the House Science Committee report that the George Mason professor had appeared to violate university policy in raking in more than $511,000 in combined compensation in 2014 from the school and his tax-exempt outfit, the Institute of Global Environment and Society. His wife collected another $166,000 that year to serve as the IGES business manager, and their daughter has been listed as an employee.

We've reviewed a 2012 memo from Mr. Shukla's lawyer to IGES trustees saying that in some cases he would be entitled to fly business class and to bring his wife on trips, and also to have a leased car with a monthly payment not to exceed $600. IGES has been funded almost entirely by taxpayers. Many young scientists would be thrilled to win a federal grant even a fraction of the Shukla family haul. Mr. Shukla did not respond to requests for comment.

We understand why Messrs. Whitehouse and Shukla want to use the power of government to stifle their scientific and political opponents. But it's harder to understand why George Mason wants to be associated with this sort of taxpayer fleecing and the silencing of academic dissent.

from the Wall Street Journal, 2016-Mar-23, by David B. Rivkin Jr. and Andrew M. Grossman:

Punishing Climate-Change Skeptics
Some in Washington want to unleash government to harass heretics who don't accept the `consensus.'

Galileo Galilei was tried in 1633 for spreading the heretical view that the Earth orbits the sun, convicted by the Roman Catholic Inquisition, and remained under house arrest until his death. Today's inquisitors seek their quarry's imprisonment and financial ruin. As the scientific case for a climate-change catastrophe wanes, proponents of big-ticket climate policies are increasingly focused on punishing dissent from an asserted “consensus” view that the only way to address global warming is to restructure society—how it harnesses and uses energy. That we might muddle through a couple degrees' of global warming over decades or even centuries, without any major disruption, is the new heresy and must be suppressed.

The Climate Inquisition began with Michael Mann's 2012 lawsuit against critics of his “hockey stick” research—a holy text to climate alarmists. The suggestion that Prof. Mann's famous diagram showing rapid recent warming was an artifact of his statistical methods, rather than an accurate representation of historical reality, was too much for the Penn State climatologist and his acolytes to bear.

Among their targets (and our client in his lawsuit) was the Competitive Enterprise Institute, a think tank prominent for its skeptical viewpoint in climate-policy debates. Mr. Mann's lawsuit seeks to put it, along with National Review magazine, out of business. Four years on, the courts are still pondering the First Amendment values at stake. In the meantime, the lawsuit has had its intended effect, fostering legal uncertainty that chills speech challenging the “consensus” view.

Mr. Mann's lawsuit divided climate scientists—many of whom recognized that it threatened vital scientific debate—but the climate Inquisition was only getting started. The past year has witnessed even more heavy-handed attempts to enforce alarmist doctrine and stamp out dissent.

Assuming the mantle of Grand Inquisitor is Sen. Sheldon Whitehouse (D., R.I.). Last spring he called on the Justice Department to bring charges against those behind a “coordinated strategy” to spread heterodox views on global warming, including the energy industry, trade associations, “conservative policy institutes” and scientists. Mr. Whitehouse, a former prosecutor, identified as a legal basis for charges that the Racketeer Influenced and Corrupt Organizations Act, or RICO, the federal statute enacted to take down mafia organizations and drug cartels.

In September a group of 20 climate scientists wrote to President Obama and Attorney General Loretta Lynch encouraging them to heed Mr. Whitehouse and launch a RICO investigation targeting climate skeptics. This was necessary since, they claimed, America's policy response to climate change was currently “insufficient,” because of dissenting views regarding the risks of climate change. Email correspondence subsequently obtained through public-records requests revealed that this letter was also coordinated by Mr. Whitehouse.

Reps. Ted Lieu (D., Calif.) and Mark DeSaulnier (D., Calif.) followed up with a formal request for the Justice Department to launch an investigation, specifically targeting Exxon Mobil for its funding of climate research and policy organizations skeptical of extreme warming claims. Attorney General Lynch announced in testimony this month that the matter had been referred to the FBI “to consider whether or not it meets the criteria for what we could take action on.” Similar investigations are already spearheaded by state attorneys general in California and New York.

Meanwhile, Mr. Whitehouse, joined by Sens. Edward Markey (D., Mass.) and Barbara Boxer (D., Calif.), sent letters to a hundred organizations—from private companies to policy institutes—demanding that they turn over information about funding and research relating to climate issues. In his response to the senators, Cato Institute President John Allison called the effort “an obvious attempt to chill research into and funding of public policy projects you don't like.”

Intimidation is the point of these efforts. Individual scientists, think tanks and private businesses are no match for the vast powers that government officials determined to stifle dissent are able to wield. An onslaught of investigations—with the risk of lawsuits, prosecution and punishment—is more than most can afford to bear. As a practical reality, defending First Amendment rights in these circumstances requires the resources to take on the government and win—no matter the cost or how long it takes.

It also requires taking on the Climate Inquisition directly. Spurious government investigations, driven by the desire to suppress a particular viewpoint, constitute illegal retaliation against protected speech and, as such, can be checked by the courts, with money damages potentially available against the federal and state perpetrators. If anyone is going to be intimidated, it should be officials who are willing to abuse their powers to target speech with which they disagree.

That is why we are establishing the Free Speech in Science Project to defend the kind of open inquiry and debate that are central to scientific advancement and understanding. The project will fund legal advice and defense to those who need it, while executing an offense to turn the tables on abusive officials. Scientists, policy organizations and others should not have to fear that they will be the next victims of the Climate Inquisition—that they may face punishment and personal ruin for engaging in research and advocating their views.

The principle of the First Amendment, the Supreme Court recognized in Dennis v. United States (1951), is that “speech can rebut speech, propaganda will answer propaganda, free debate of ideas will result in the wisest governmental policies.” For that principle to prevail—in something less than the 350 years it took for the Catholic Church to acknowledge its mistake in persecuting Galileo—the inquisition of those breaking from the climate “consensus” must be stopped.

Messrs. Rivkin and Grossman practice appellate and constitutional litigation in Washington, D.C.

from the Wall Street Journal, 2016-Mar-15, by Andrew Browne:

China's Censors Battle Mounting Defiance
Pushback suggests influential sections of society have reached limits of tolerance

SHANGHAI — Yang Jisheng knows all about censorship. His book “Tombstone,” an epic account of Mao Zedong's great famine, is banned in China.

His former employer, Xinhua News Agency, refused to let him go to the U.S. to pick up an award at Harvard last week. That didn't stop the retired journalist from writing a speech, which triumphantly noted that pirated editions of Tombstone circulate even in the remotest parts of China, despite the efforts of censors.

He said he knows this because readers send him fervent letters of support, what he termed testament to “the power of truth to break through the bronze walls and iron ramparts constructed by the government.”

It was a message of defiance: Despite a monumental edifice of controls, censorship is losing.

Lately, President Xi Jinping's administration has run into mounting resistance to its efforts to tighten its vise even more completely over the country's printed works, its airwaves and digital networks, while it strengthens the Great Firewall to keep out foreign content.

This pushback is going well beyond the passive kind, like Mr. Yang's secret readers; much of it is now active and in the open. China's government stripped prominent and outspoken businessman Ren Zhiqiang of his social media accounts after he issued a rare direct challenge to President Xi Jinping over the loyalties of state-controlled news media.

Last month, the retired property mogul Ren Zhiqiang, who has a following of tens of millions on social media, directly assailed Mr. Xi after he paid visits to Xinhua, the People's Daily and China Central Television to lecture their editors on the need to toe the Communist Party line. These organizations “bear the surname `party,'” Mr. Xi declared.

That was too much for Mr. Ren, nicknamed “the Cannon,” who fired off an online salvo saying that Chinese media organizations are supposed to represent the public, which pays their salaries through taxes, not the party. Censors promptly shut down his social media accounts.

Then the influential business publication Caixin hit back when authorities forced it to take down an article posted on its Chinese-language website that quoted one of the government's own advisers, the Shanghai professor Jiang Hong, defending the right to free speech. In response, Caixin posted an account of the censorship on its English-language website, illustrated by a picture of a mouth taped shut. That article, too, disappeared.

The full implication of these events is not yet clear. They may indicate deeper undercurrents in a political system that is increasingly under stress, buffeted by Mr. Xi's anticorruption campaign within the bureaucracy and his sweeping reorganization of the armed forces that have produced resentful senior officials and disgruntled generals. Mr. Ren is a party insider, a member of the so-called “Red Aristocracy” whose opinions carry weight; Caixin's editor in chief, Hu Shuli, has close links to the economic-reform wing of the government led by central-bank Gov. Zhou Xiaochuan. Chinese real-estate mogul and social-media cannon Mr. Ren in 2012. ENLARGE Chinese real-estate mogul and social-media cannon Mr. Ren in 2012. Photo: Associated Press

At the very least, though, the episodes suggest that Mr. Xi's pervasive controls may be pushing sections of society beyond their limits of tolerance.

This is not the Mao era, however much Mr. Xi would like to revive some of the language and political practices of that time, including public confessions and “self-criticism” sessions at party meetings. Today's population is not so easily cowed—and it has many more ways to register protest.

Some engage in online jousting with censors, using word play to disguise criticisms of government policies and puns to identify top leaders. For instance, Mr. Xi becomes “tricky too-big” or “breathe spirit-bottle”—nonsense terms now banned.

Others vote with their feet; the wealthy are applying for passports en masse. Although the exodus is driven mainly by economic insecurities, the atmosphere of political repression is a factor, not just censorship but detentions and disappearances of human-rights lawyers, labor activists, ethnic minority figures and feminists.

Students are flocking to the West for a liberal college education. Writing in The Australian newspaper last week, Jasmine Yin, who identifies herself as the granddaughter of one of Mao's favorite generals and who is now studying at New York's Columbia University, used the Chinese proverb “same bed, different dreams” to describe the gulf that separates young Chinese people from Mr. Xi and his peers in the party. The wish list of her millennial generation: “Less political interference in our lives, more openness to the outside world, dismantling the detested Great Firewall.”

At age 75, Mr. Yang, the “Tombstone” author, is old enough to have experienced all the brutal excesses of the Mao era.

Yet, he can't escape Mao's political legacy. His book deals with the 1958-1962 famine that grew out of the disastrous policies of Mao's Great Leap Forward. Mr. Yang concludes that 36 million people starved to death, making it the worst famine in history. The party doesn't want that story out, fearing the damage to Mao's godlike image—and its own legitimacy.

It no longer has a choice, though: The bulwarks of censorship may be made from iron, but they're far from impregnable.

from the Wall Street Journal, 2015-Aug-23, by L. Gordon Crovitz:

Plotting Against the Internet
The U.S. delays giving up Web oversight, but other nations are already planning a power grab.

The Obama administration last week caved in to critics by admitting that it needs more time to give up U.S. protection of the Internet. But instead of delaying its plan, the administration should have killed it. Dropping the plan has become urgent with new evidence of how other governments plan to take control of the Internet if the U.S. gives them the chance.

The saga began in March 2014 when the Commerce Department announced that the U.S. would end its long-standing contract with the Internet Corporation for Assigned Names and Numbers, or Icann. American oversight gives the multistakeholders of network operators and engineers the freedom to run the global Internet without political interference—and is why China and Russia are unable to block the open Internet elsewhere even as they censor the Internet within their own borders.

The Obama administration at first claimed that the U.S. role was merely “clerical.” This ignored the American exceptionalism at the heart of the Internet as we know it. U.S. oversight created a global Internet that protects free speech and open innovation, which are now core digital values around the world. Authoritarian regimes are forced to invest billions of dollars to close off access to the open Internet while they monitor and censor their citizens.

The Obama administration naïvely imagined other governments would keep their hands off Icann and the root zone of the Internet. In its announcement last week, the administration postponed the handover from its original deadline of September this year to September 2016, saying “it has become increasingly apparent over the last few months that the community needs time to complete its work, have the plan reviewed by the U.S. government and then implement it if it is approved.”

The Obama administration pulled a fast one by extending the contract with Icann by only one year. The U.S. contract with Icann says renewals are for two years, which should have extended the agreement to September 2017. This would have given the next president the chance to kill the Obama plan.

Icann recently published a 199-page draft proposal on supposed protections if the U.S. gives up control of the Internet. It suggests convoluted new structures for governance but can't guarantee the open Internet without U.S. stewardship. Meanwhile, evidence mounts of how other governments plan to take control of the Internet once the U.S. abandons its role.

A concerned participant in the Internet-governance negotiations sent me the synopsis of positions taken by governments at an Icann planning meeting held in Paris in July. Behind closed doors, governments spoke openly about their plans once the Obama administration gives up U.S. oversight.

Based on the views expressed in the Icann planning meetings, the overwhelming majority of countries want more power for governments and less for the multistakeholders. Over the objections of a handful of countries such as the U.S., Britain, Australia and Japan, governments plan to “upgrade” their current advisory function over the Internet to a controlling role.

China says governments “should acquire relatively independent status.” Argentina says the “current imbalance of government participation in Icann structure must not persist.” India says the “operating principles should be reviewed” to give governments more power. Spain wants the role of governments to be “advisory plus.”

Russia endorses more power for governments, but it wants to complete plans only after the U.S. gives up protection for the Internet. Moscow says the role of governments “should be more meaningful than just advisory,” but it cautions that this “topic needs to be further examined in [the] post-transition period.” In other words, governments should move to control the Internet only after the U.S. gives up the ability to block such a move.

One goal of other governments is ending Icann's status as a U.S. legal entity, subject to U.S. law. At the Icann meeting in July, Russia said the “combination of Icann's international mission and national legal status creates complexity; needs further consideration.” Changing Icann's legal status would undermine whatever protections are put in place if the U.S. gives up its role. Another plan is to introduce majority voting among governments to give them more power over the Internet, ending today's requirement of unanimity.

Now that other governments have made their intentions clear, Congress should redouble its opposition to the Obama Internet-surrender plan. Congress used its power of the purse to block the administration from abandoning the Internet during 2015. For 2016 the House passed a bill requiring the administration to give notice of its new plan for Internet governance. The Senate is considering whether to require that Congress get to vote to up or down on such a plan, not just be told about it.

The clear evidence is that many governments around the world are eager to wrest control over the Internet for themselves. Canceling the Obama plan would deprive them of the chance.

from the Wall Street Journal, 2015-Sep-27, by L. Gordon Crovitz:

Not Obama's to Give Away
Lawmakers told the administration it will need Congress's OK to surrender Web control.

The flaw in President Obama's plan to give up U.S. protection of the open Internet becomes clearer with each delay in carrying it out: The Internet isn't broken, so why fix it? The good news is congressional leaders have found a way to block the plan in the Constitution, which makes clear that the Internet isn't Mr. Obama's to give away.

Since the launch of the commercial Internet, the Internet Corporation for Assigned Names and Numbers, or Icann, has operated under a contract from the U.S. Commerce Department. American oversight freed engineers and developers to run the networks without political pressure from other governments. China and Russia can censor the Internet in their own countries, but not globally because Washington would block tampering with the “root zone” of Web addresses.

The Obama administration, looking to placate other governments after the Edward Snowden disclosures in 2013 about U.S. surveillance, said it would end this American exceptionalism. Surveillance is unrelated to Internet governance, but the White House thought it would be an easy concession.

No one has found a way to keep authoritarian regimes at bay without U.S. protection. The administration originally planned to surrender U.S. control this month, but was forced to postpone to September 2016. Last week the Commerce Department admitted there is still no post-U. S. plan for the Internet. Assistant Secretary Lawrence Strickling posted an update online saying there are “many questions still to be answered, both about the substance of the overall plan as well its implementation” and “significant confusion and uncertainty.” He wants a plan “as simple as possible”—but a simple plan would have been crafted by now.

Instead, the process is frustrating the Internet stakeholders it was supposed to protect. “In an extraordinary, almost surreal three-hour teleconference,” an industry blog reported this month, “the working group drawing up plans to make Icann—wannabe masters of the Internet—more open and responsive to the public were treated to a level of Orwellian `double speak' rarely seen outside the British civil service.”

The Icann board says it is willing to be held accountable but rejects the key accountability proposals developed over the past year. Icann doesn't want to share power or let stakeholders replace its board if it misbehaves or comes under the influence of authoritarian regimes. “It may be prudent to delay the transition” from U.S. control, Icann acknowledges.

This column has quoted confidential Icann documents detailing steps authoritarian regimes will take if the U.S. cedes authority. The Russian representative says governments will get a role “more meaningful than just advisory,” to be accomplished in the “post-transition period”—that is, after the U.S. surrenders control and can't block other governments.

In addition to the immediate risk of other governments seeking power, the stakeholders also want more accountability for Icann's core function, running an efficient Internet. Icann has earned hundreds of millions in fees, collected from registrars for every .com, .org and .net address they sell. Without U.S. control, Icann would go from being a regulated monopoly to being an unregulated monopoly. That could boost its coffers at the expense of Internet companies and users.

Congress may yet save the Internet by blocking the administration's plan. Sen. Ted Cruz last week joined Chuck Grassley and Bob Goodlatte, respectively chairmen of the Senate and House Judiciary committees, in sending a letter to the Government Accountability Office arguing that the executive branch cannot act alone. The letter, which is not yet public, notes the constitutional requirement that only Congress can “dispose” of federal property.

The U.S. contract with Icann says deliverables, including the root zone of the Internet, are “the property of the U.S. government.” Icann's monopoly over the root zone and its Web addresses is worth billions. Any disposal of the Icann contract without congressional approval—which is unlikely—should be voided by the courts.

“Mr. Obama lacks the authority to give away what isn't his,” Mr. Cruz told me last week. He says the letter to the GAO shows “grave concern in both the Senate and House.” He and fellow Republican presidential candidate Jeb Bush are campaigning against the plan, which adds an important technology topic to the race. American protection for the Internet had bipartisan support until Mr. Obama decided to give it up.

If the Obama administration wants a simple solution to the Internet-governance mess it created, it should announce that the U.S. will retain its stewardship and support more accountability from Icann to its stakeholders. The open Internet is too important to be abandoned by an administration that thought surrendering the Web would be easy.

from the Wall Street Journal, 2015-Aug-11, by James L. Gattuso:

Europe's Latest Export: Internet Censorship
If French regulators have their way, the `right to be forgotten' will go global, stifling speech.

American Web surfers may soon find their search-engine results censored, thanks to a recent decision by French regulators.

In June, France's Commission Nationale de l'Informatique et des Libertés, or CNIL, publicly ordered Google to apply Europe's rather bizarre “right-to-be-forgotten” rules globally. The rules give European Union residents the right to request that Internet search engines remove links that appear in searches for their own names. Google responded on July 30, firmly rejecting the French regulator's demand.

If Google is forced to comply with the EU rules globally, the result would be unprecedented censorship of Internet content world-wide, as well as a dangerous expansion of foreign regulators' control over what Americans can see on the Web.

The EU's right-to-be-forgotten rules were first articulated in May 2014 by the European Court of Justice. The case involved Mario Costeja González, a Spanish citizen whose house was foreclosed on in 1998 due to a debt that was subsequently “resolved.” Citing Mr. Costeja González's privacy rights under EU law, the court ordered search engines to stop providing links to news accounts of the incident in response to searches of his name.

The new rule has triggered a tsunami of requests for removal. Google reported in July that in less than a year it has received requests to delist over a million URLs related to individual name searches. Supporters of the rule argue that it is a vital protection of privacy rights. Individuals, they say, should not be dogged forever by indiscretions of their youth, or fear damage to their businesses or reputations from dated information on the Internet.

But the mandate to forget is not so benign. Since taking effect, the rule has produced a disturbing record of censorship, covering a broad range of stories of legitimate interest to the public. Links blocked from certain search results have included a 2003 BBC report about a woman convicted of running a prostitution ring that quoted a former employee, a 1998 BBC report about German skinhead soccer fans that quotes one saying “I like violence,” and a 2009 Daily Mail story about employees of the grocery store Tesco posting insulting comments online about their customers.

The right to be forgotten has spurred Russia, no amateur at censorship, to adopt its own such law, openly modeled on the European example. And in the U.S. last month, an advocacy group, Consumer Watchdog, filed a complaint against Google with the Federal Trade Commission for not following right-to-forget rules in America. The group argues that for Google to claim to protect its users' privacy and not follow such rules is an “unfair and deceptive” practice under the Federal Trade Commission Act.

Since the EU court's ruling last year, Google has only shown limited search results on European extensions of its service, such as, and CNIL argues that this is not sufficient, since Europeans are still able to see unfiltered search results at Thus the French regulator ordered that results be applied to “all extensions” of the search engine—including Google's main site, the one based in the U.S.

What exactly this means is not yet clear. One possibility is that Google would have to identify the location of its users, and filter results for all that are physically in EU countries. This is not unprecedented—in a controversial 2000 case, French authorities ordered Yahoo to filter an online auction of Nazi paraphernalia from Web surfers in France. But it would represent a troubling new use of such geolocation data. It would also be an odd way to enforce a law ostensibly meant to protect individual privacy.

Regulators might find it more practical to try to force Google to filter the search results for right-to-be-forgotten URLs world-wide, meaning that no Google user would be able to see them. This would mean that Internet users around the globe, including in the U.S., would have the content of the searches results they receive censored by French bureaucrats. Such global implementation would be an affront to U.S. sovereignty, as well as a blow to free speech. But even if confined to Europe, it is an indefensible restraint.

The next step is up to CNIL, which has called Google's refusal to comply “political,” claiming its own position is based “strictly on legal reasoning.” Litigation is expected to go on for some time. Ironically, the one certainty is that Mario Costeja González, the Spaniard who started the right-to-be-forgotten controversy, will not soon be forgotten.

Mr. Gattuso is a senior research fellow in regulatory policy at the Heritage Foundation.

from the Wall Street Journal, 2015-Oct-9:

Shut Up—Or We'll Shut You Down
Elizabeth Warren isn't the only one trying to silence her opponents.

Elizabeth Warren recently drove out a think-tank scholar for having the nerve to report that a new federal regulation could cost billions, but the progressive censor movement is broad and growing. Advocates of climate regulation are urging the Obama Administration to investigate people who don't share their views.

Last month George Mason Professor Jagadish Shukla and 19 others signed a letter to President Obama, Attorney General Loretta Lynch and White House science adviser John Holdren urging punishment for climate dissenters. “One additional tool—recently proposed by Senator Sheldon Whitehouse—is a RICO (Racketeer Influenced and Corrupt Organizations Act) investigation of corporations and other organizations that have knowingly deceived the American people about the risks of climate change, as a means to forestall America's response to climate change,” they wrote.

In other words, they want the feds to use a law created to prosecute the mafia against lawful businesses and scientists. In a May op-ed in the Washington Post, Mr. Whitehouse specifically cited Willie Soon of the Harvard-Smithsonian Center for Astrophysics, who has published politically inconvenient research on changes in solar radiation.

The RICO threat is intended to shut down debate because it can inflict treble damages upon a defendant. Enacted to stop organized crime and specifically to prosecute individuals tied to loansharking and murder-for-hire, it was long seen as so powerful a tool that the government warned prosecutors to limit its use.

“The demand by Senator Whitehouse and the 20 climate scientists for legal persecution of people whose research on science and policy they disagree with represents a new low in the politicization of science,” says Georgia Tech's Judith Curry on the Fox News website. She should know, as one of seven academics investigated last winter by Rep. Raul Grijalva (D., Ariz.) for their climate research.

By the way, Mr. Shukla appears to have no problem taking money from the government to support his climate theories. Though it has since been taken down, the letter from the Shukla gang demanding a RICO assault was published on the website of the Institute of Global Environment and Society (IGES), a tax-exempt entity run by Mr. Shukla that the website says has also employed his wife and daughter. The House Science Committee says the outfit has received more than $25 million in federal grants since 2008. House Science Chairman Lamar Smith says the family's earnings from IGES are “in addition to an annual salary of approximately $314,000 paid to Dr. Shukla by George Mason University.”

When we contacted George Mason to sort out these financial arrangements, the school suggested we contact Mr. Shukla directly. He hasn't responded to our inquiries.

Meanwhile, Sen. Warren also doesn't seem to want to live by the rules she enforces on others. Recall that she drove Robert Litan out of the Brookings Institution last week in part because his research on new financial regulations was funded by the asset manager Capital Group—which he clearly disclosed. The website says Ms. Warren has accepted more than $600,000 from the securities and investment industry, including more than $6,000 from Capital Group executives.

Perhaps she'd say it's fine for her to use her Senate Banking Committee perch to rake in contributions from financial firms because she often disagrees with them. Then again, lawyers and law firms that benefit from her policy interventions have given her more than $2 million. She's also collected more than $1.3 million from the education industry, which benefits from her campaign to expand education subsidies.

We called Sen. Warren's office to ask why the Senator isn't living by the Warren standard. A press aide replied that among other alleged offenses, Mr. Litan had accepted “editorial input” from the sponsors of his research. Yes it's true, as Mr. Litan has said forthrightly all along, he did accept comments from the sponsor. He has also maintained that the analysis and conclusions were his own and those of co-author Hal Singer.

If accepting “editorial input” is grounds for dismissal, academics or journalists wouldn't be the only ones preparing resignation letters. Is Sen. Warren now going to tell us that a campaign donor has never made a suggestion to her about government policy?

The strategy of the progressive left is no longer to win public debates, but to forcibly silence their opponents. And to enforce a double standard in the bargain.

from the Wall Street Journal, 2016-Mar-1:

The Climate Change 1%
The well-paid professor who wanted to punish climate skeptics.

Remember the university professor who wanted the government to use the RICO law created to prosecute mobsters as a tool against global-warming dissenters? Well, taxpayers may be the ones calling for an investigation after examining the nonprofit venture that George Mason University Professor Jagadish Shukla has been running with generous government funding.

On Tuesday evening House Science Committee Chairman Lamar Smith wrote to the inspector general at the National Science Foundation. Chairman Smith reported that Mr. Shukla has recently been audited by the university in connection with his outside position running the Institute of Global Environment and Society (IGES).

According to Chairman Smith's letter, the audit “appears to reveal that Dr. Shukla engaged in what is referred to as `double dipping.' In other words, he received his full salary at GMU, while working full time at IGES and receiving a full salary there.”

Mr. Smith cites a memo from the school's internal auditor in claiming that Mr. Shukla appeared to violate the university's policy on outside employment and paid consulting. The professor received $511,410 in combined compensation from the school and IGES in 2014, according to Mr. Smith, “without ever receiving the appropriate permission from GMU officials.”

The school didn't respond to our Tuesday afternoon request for comment. We reached Mr. Shukla by phone and asked if it is correct that George Mason had audited his finances. He replied, “I don't know. I don't want to talk to you. I'm in a meeting.” Then he hung up the phone.

Last year Prof. Shukla wasn't shy about urging President Obama and other senior federal officials to investigate those who don't share his beliefs about climate change. He should now open up about the finances of his organization, which according to the House Science Committee has consumed more than $25 million in taxpayer grants.

from the Wall Street Journal, 2015-Dec-4, by Peggy Noonan:

The First Amendment Needs Your Prayers
Jumping on anyone who publicly expressed a religious feeling after the San Bernardino massacre. Where are we heading?

What gets you about what happened in San Bernardino is the shattering sameness of it. Once and not so long ago such atrocities, whatever their cause, whether the work of schizophrenics or jihadists, constituted a signal and exceptional moment. Now they're more like this week's shooting. We are not becoming blasé but increasingly inured. And, of course, armed up.

You can see a coarsening in how we respond and react on social media. No one feels ashamed to exploit the tragedy for political purposes even while it is happening.

We are all free to say what we think, and must be, for without this freedom we will no longer be America. More on that below. But you always hope what is said will be constructive, helpful, maybe even at some point heartening. You have a responsibility as an adult to do your best in this area.

But as soon as the story broke Wednesday afternoon, and while it was still going on, there were accusations and bitter words flung all over the Internet. The weirdest argument came almost immediately. A person named Chris Murphy, who is a U.S. senator representing Connecticut, sent out what struck me as the most manipulative message of recent political history.

The background is that Republican presidential contestants responded online to the shootings with the only helpful thing you can say—or do, frankly, from faraway—when a story like this occurs. “Praying for the victims, their families & the San Bernardino first responders,” said Jeb Bush. Mike Huckabee said he was “praying.” John Kasich: “My thoughts & prayers go out to those impacted.”

This managed to enrage the progressive left. You can take your prayers and stuff 'em. The answer and the only answer to this tragedy is gun control, and if you're not for it you're not allowed to be part of the conversation. “Please shut up and slink away,” tweeted a reporter. Another: “Your thoughts and prayers don't mean a damn thing.” A reporter at the Huffington Post damned public officials' “useless thoughts and prayers.” Markos Moulitsas of Daily Kos: “How many dead people did those thoughts and prayers bring back to the life?”

Mollie Hemingway of the Federalist noted that all these denunciations were literally coming in while victims of the shooting were sending out requests for prayer.

Journalists, bloggers, contrarians and citizens jumped into the fray. Then the U.S. senator, Chris Murphy, came forward rather menacingly. “Your `thoughts' should be about steps to take to stop this carnage. Your `prayers' should be for forgiveness if you do nothing—again.”

Wow. You might think he was aiming this at President Obama, who when he was a popular president with an overwhelmingly Democratic House and Senate did not prioritize gun control. But it was clearly aimed at all those Republicans and religious people who were praying, saying they were praying, and implicitly asking you to pray, rather than doing what they should do, which is supporting the senator's cause.

All this immediately won a name: “prayer shaming.”

Here's an odd thing. If you really are for some new gun-control measure, if you are serious about it, you just might wait a while, until the blood has cooled, for instance, and then try to win people over to see it your way. You might offer information, argument, points of persuasion. Successful politics involves pulling people together. You don't use a tragedy to shame and silence those who don't see it your way; that only hardens sides. Which has left me wondering if gun-control proponents are even serious about it. Maybe they're just using their wedge issue at a moment of high stress to hammer people on the other side of the ideological and philosophical divide.

As long as they do this, they'll lose. Which they must be bright enough to know. Which again suggests either cynicism or, perhaps, an assumption that they are so inarguably right that they're above debate. They certainly point their fingers from a great height. A number of tweets and posts had an air of, “You better be asking your make-believe friend in heaven for mercy.”


I suspect part of the problem is that a number of the progressive finger-pointers do not really know what a prayer is. Maybe no one ever told them. But prayer is a very active endeavor—it takes time, energy, concentration. You have to stop everything and ask God to hear you. Father Gerald Murray defined it for me this way: “Prayer is the movement of our mind, heart and soul in which we confess our belief in God and his goodness. We ask him to manifest that goodness in answer to our petitions.”

In the case of San Bernardino those petitions were for help, consolation and safety for those in danger or mourning.

It is hard to pray, much harder than it is to punch out a series of tweets. What actually is irritating about politicians saying they're sending thoughts and prayers is the suspicion you sometimes have that they're not, actually, thinking or praying. Maybe someone could ask Jeb Bush if he really prayed. Maybe he could talk about that. Maybe it would be interesting and constructive.

A connected point, it seems to me, is that Americans are growing weary of being told what they can and cannot publicly say, proclaim and think. We all know what's going on at the colleges, with the mad little Marats and Robespierres who are telling students and administrators what they are and are not allowed to say or do. This is not just kids acting up at this point, it's a real censorship movement backed by an ideology that is hostile to the First Amendment to the U.S. Constitution. It is led by students who, though they managed to get into the greatest universities in the country, seem never to have been taught to love the little amendment that guarantees free speech and free religious observance, the two pillars without which America collapses. And too bad, because when you don't love something you lose it.

It is my impression that what is happening on the campuses is starting to break through as a real threat to what used to be called normal Americans.

There's been a great gnashing of veneered teeth by the Republican establishment about Donald Trump and his so far unstoppable rise. That rise rests on two issues: opposition to illegal immigration to the U.S. and an obvious and visceral rejection of political correctness and the shaming and silencing it entails.

Mr. Trump, interestingly, has more or less stopped talking about issues, even his issues, and amuses himself by entertaining audiences. You get the impression he's trying to keep himself awake.

Why doesn't some thoughtful candidate on the Republican side address the issue of shaming and silencing? Why doesn't someone give a deep and complete speech on what the First Amendment means, how it must be protected, how we pay a daily price for it in terms of anger, hurt, misunderstandings and crudity, but it's worth it. Why doesn't someone note that you fight bad speech with better speech, you don't try to tape up the mouths of an entire country.

The censorship movement is radical. It is starting to make everyone in the country feel harassed and anxious. It is odd to see candidates miss a rising issue that is giving pause to so many Americans.

I pray someone will address it. Literally, I just did.

from the Wall Street Journal, 2015-Dec-9:

Speech Crimes on Campus
The First Amendment makes a comeback at some universities.

The student censors at Yale claimed a scalp—pardon the micro-aggression—this week when lecturer Erika Christakis resigned her teaching position on childhood education. She had been pilloried for asking in an email if students weren't too sensitive if they are offended by politically incorrect Halloween costumes.

Yale's powers-that-be ducked and covered in response, but the news on campus isn't all bad, according to a forthcoming report by the Foundation for Individual Rights in Education (Fire). The foundation's annual survey of 440 colleges—comprising 336 four-year public and 104 private institutions—finds that the share of schools maintaining “severely restrictive” speech codes has dropped to below 50% (49.3%) for the first time in the organization's history. As many as three-quarters of colleges boasted restrictive speech codes in 2007 and 55% did as of last year.

Another positive sign: The number of schools receiving Fire's highest “green light” rating has nearly tripled since 2006 to 22, up from 18 last year. These beacons include Purdue University, the University of Virginia and University of North Carolina, Chapel Hill. More than twice as many colleges have received ratings upgrades as downgrades this year.

Some colleges have reaffirmed, in principle, their commitment to free speech. In January the University of Chicago endorsed “the principle that debate or deliberation may not be suppressed because the ideas” are perceived as offensive. Princeton adopted a similar resolution in April while Johns Hopkins in September identified “free and independent inquiry” as one of its “core principles.”

The state of Missouri this year enacted the Campus Free Expression Act barring public colleges from restricting speech to prescribed zones on campus. Ironically, University of Missouri protesters this fall benefitted from this First Amendment protection while seeking to muzzle (and muscle) dissident voices. As the conflagration of free speech at Mizzou showed, colleges often contravene the law and their stated principles.

Princeton prohibits “offensive” sexual comments while Johns Hopkins forbids “rude, disrespectful behavior.” At Boise State University, students may not publish, display or transmit “inappropriate or offensive material.” That could apply to just about every student's Facebook page and Instagram.

The University of South Dakota proscribes bullying, which—don't laugh—is loosely defined as “teasing, making fun of, laughing at or harassing someone over time.” Middlebury College's code of civility censures “flagrant disrespect for persons.” Wesleyan even grants students “the right to be protected against actions that may be harmful to the health or emotional stability of the individual.”

Trigger warning: The First Amendment protects offensive, distasteful and derisive remarks. Public colleges can't punish micro-aggressions any more than the Justice Department can prosecute Donald Trump's oafish comments. While private institutions may promulgate restrictive codes of conduct, doing so chills free expression and inquiry. These have long been the bedrocks of higher education.

Censorship on campus will take time to beat back, but the latest Fire report shows that opposition is showing some progress. We're glad to have them on the case.

from the Wall Street Journal, 2016-Jun-3, by Zachary Young:

How the Yale Halloween Vigilantes Finally Got Their Way
Nicholas and Erika Christakis step down from their administrative posts, closing a sorry chapter at the university.

Nicholas Christakis and his wife, Erika, came to Yale University in 2013 with high expectations. At Harvard, the couple had held prominent teaching and administrative roles. At Yale, Dr. Christakis, a sociologist and physician, received a laboratory directorship and four appointments; Ms. Christakis, an expert in early-childhood education, became a seminar instructor. Two years after their arrival at Yale, Dr. Christakis and Ms. Christakis were awarded positions as master and associate master of Silliman College, Yale's largest residential college. (I attend the university and reside at Silliman).

Last week, the Christakises resigned those posts.

Their departure comes as no surprise. For seven months, the couple has been subject to bullying, harassment and intimidation. They inadvertently became a national media story last fall and catalyzed a month of campus protests, prompting Yale President Peter Salovey to tell minority students: “We failed you.”

The Christakises encountered a witch-hunt mentality on a contemporary college campus. It began fittingly on the day before Halloween, when Ms. Christakis questioned guidelines from Yale's Intercultural Affairs Committee warning against “culturally unaware or insensitive” costumes. Ms. Christakis reasoned, in an email to Silliman residents, that students should decide for themselves how to dress for Halloween, without the administration's involvement.

Student radicals of the 1960s might have recognized her note as a defense of free expression, but those days are long gone. Instead, Ms. Christakis was denounced as a proponent of cultural insensitivity. Irate students circulated petitions, wrote editorials and posted social-media tirades. They scribbled criticisms in chalk outside the Christakises' home and posted degrading images of them online. Two student groups demanded their removal from Silliman.

In one incident captured on video, dozens of students confronted Dr. Christakis, berating and cursing him, while a Yale dean looked on. One student screamed at Dr. Christakis: “You should not sleep at night. You are disgusting.” Yale College Dean Jonathan Holloway did not help matters when, the next day, he offered his “unambiguous” support for the Intercultural Affairs Committee's guidelines, calling their intent “exactly right.”

Though President Salovey rejected calls for the Christakises' firing, animus for the couple simmered. In December, a crate appeared outside their Silliman office containing a sombrero and a Rastafarian wig—the sort of Halloween paraphernalia now taboo on college campuses. In January, a fake email purporting to be from Ms. Christakis objected to the administration's safety ban on hoverboard scooters. The couple canceled teaching plans for the spring.

At Silliman College's graduation ceremony on May 23, several seniors refused to accept their diplomas from Dr. Christakis or to shake his hand. Two days later, the Christakises announced that they would step down from Silliman. Many students celebrated the news on Facebook.

While the Christakises remain affiliated with Yale and could return to teaching, their resignations from Silliman had the air of a chapter closing in one of the more disturbing episodes of modern campus intolerance.

The Christakises made remarkably unlikely targets for purging by student activists. The couple has a long record of advocating for minority students, and the Christakises have devoted much of their academic work to highlighting health and development problems facing underserved communities.

In the months since the controversy erupted, the Christakises have met one-on-one with offended students. They have invited their critics over for a group lunch to “continue the conversation.” Though not always with success, the Christakises tried to improve a fraught situation, with little backup from the administration.

“We have great respect for every member of our community, friend and critic alike,” Dr. Christakis wrote in announcing the couple's resignation from Silliman, effective in July. “We remain hopeful that students at Yale can express themselves and engage complex ideas within an intellectually plural community.”

On the evidence of the past year or so across American campuses, such hope is becoming ever more beleaguered. With luck, the sorry episode at Yale will cause students to spend less time vilifying professors and more time engaging with their ideas.

Mr. Young, a Robert L. Bartley Fellow at the Journal this summer, will be a senior at Yale University in the fall.

from the Wall Street Journal, 2016-Jan-10:

A First Amendment Do-Over
The Justices can correct a 39-year-old error on unions and free speech.

Defending free speech has been a notable strength of the current Supreme Court, and on Monday the Justices hear a case that gives them a rare and splendid opportunity to repair damage to the First Amendment done by the Court itself.

In Friedrichs v. California Teachers Association, 10 public school teachers object to a California law that forces them to pay union fees that finance causes they oppose. For 39 years the Court has allowed such coercion thanks to an anomalous 1977 ruling in Abood v. Detroit Board of Education. Now is the time to overturn it.

As the brief for the teachers says, California runs the “largest regime of compelled political speech in the Nation.” It does so by coercing teachers to pay roughly 2% of their pay in “affiliate fees” to the union even if they choose not to join the union.

The California Teachers Association then takes that money and spends it on collective bargaining as well as a variety of political causes. It also sends some of it to the National Education Association to spend nationwide. California and the union argue that this coercion is justified because all workers benefit from union collective bargaining.

But as the teachers point out, collective bargaining in government is impossible to separate from matters of ideological speech. For public teachers, collective bargaining involves wages and benefits that inevitably implicate fiscal policy and the tax burden. It also includes such controversial political matters as teacher evaluations and tenure. Individual teachers who object to the union's positions on these issues must nonetheless subsidize them.

This violates what the Court said in 2014 (Harris v. Quinn) is a “bedrock principle” that “no person in this country may be compelled to subsidize speech by a third party that he or she does not wish to support.”

In her dissent in Harris, Justice Elena Kagan justified this state coercion for unions on grounds that the government has an interest in labor peace. But no great harm to the state or the public is caused by letting teachers exercise their free-speech right. The union won't vanish, or even lose its monopoly bargaining power. It will merely have less money to spend to influence politicians.

The other union defense is that California's law allows teachers to “opt out” of the portion of the fees that goes to politics. But this opt-out system is onerous, requiring a teacher to make the request each year within a narrow window that is usually about six weeks. If the teacher forgets to do so, he is forced to subsidize union political causes for the year. This isn't close to being the “carefully tailored” process that the Court has typically required when government is infringing on such a fundamental right as free speech.

If one or more of the Justices lack the nerve to overturn Abood, fearing a progressive media and political backlash, the least they can do is require governments to let teachers keep the political portion of their dues money unless they “opt in” to the union scheme.

Unions are so afraid they may lose this case that they have even thrown themselves at the mercy of that great progressive bete noire, Antonin Scalia. The conservative Justice wrote an opinion in a 1991 case (Lehnert v. Ferris) that tolerated forced dues for union bargaining, and the union is throwing that back at him in unquiet desperation.

However, Justice Scalia has since voted with the majority in cases that recognized the First Amendment problems with union-fee schemes, including Harris and Knox v. SEIU in 2012. Justice Scalia has always been alert to threats to free speech, and we find it hard to believe he would tolerate California's coercive design.

Conservative Justices are wary of overturning precedents, and for good reason. Continuity is crucial to the integrity of the law, and the Court cannot be seen as a body that overturns settled law based on the election returns. But the Court has a special obligation to re-examine cases in which a fundamental constitutional right has been compromised.

Abood is an outlier in Supreme Court jurisprudence, and this is the chance to send it to the mistake file.

from the Wall Street Journal Best of the Web, 2015-Nov-13, by James Taranto:

Let It Snow
Campus madness reaches the progressive workplace.

America's recent outbreak of collegiate madness has prompted many critics to ask: How will these snowflakes ever survive once they leave campus for the real world? It turns out that some nominally real-world institutions are eager to accommodate them.

One of them is Vox Media, publisher of the eponymous young-adult website among others. “We want our team to be a fun, productive, and safe space for all members,” states the company's Code of Conduct, which is most notable for the three-paragraph section on “Unacceptable Behaviors.”

The first paragraph concerns discrimination and harassment, and while it's a bit heavy on PC jargon, it's largely consistent with ordinary employment law. But the next two paragraphs go quite a bit further in the behaviors they proscribe:

Furthermore, any behavior or language which is unwelcoming—whether or not it rises to the level of harassment—is also strongly discouraged. Much exclusionary behavior takes the form of microaggressions—subtle put-downs which may be unconsciously delivered. Regardless of intent, microaggressions can have a significant negative impact on victims and have no place on our team.
There are a host of behaviors and language common on tech teams which are worth noting as specifically unwelcome: Avoid “well, actuallys”—pedantic corrections that are often insulting and unproductive; make an effort not to interrupt your colleagues while they are speaking; never respond with surprise when someone asks for help; and take care neither to patronize your colleagues nor assume complete knowledge of a topic. This last point is especially important when talking about technical topics: Many women and people of color in the tech industry have many tales of being either mansplained about a field in which they are experts, or else excluded from learning opportunities because a colleague wouldn't make an effort to answer questions—don't be that person. Remember that your colleagues may have expertise you are unaware of, and listen at least as much as you speak.

The links in the above quotation (the first of which goes to an article from Vox itself) are part of the original document; the terminology is so obscure that Vox execs expect even some Voxen to be unfamiliar with it.

Well, actually, these rules appear to apply only within the office, which is to say they are not editorial guidelines—or if they are, they are not honored in the observance. Blogger James Heaney finds a dozen Vox headlines that would violate the ban on “well, actuallys,” from “Philosophy Majors Actually Earn a Lot More Than Welders” to the priceless “The Truth About `Political Correctness' Is That It Doesn't Actually Exist.”

We wonder if the Code of Conduct has been fully vetted with Vox Media's general counsel. After all, this stuff is fun until somebody gets sued.

One problem with prohibiting “microaggressions” is that it easily leads to damned-if-you-do-damned-if-you-don't dilemmas—a point the Vox code itself demonstrates, one presumes unwittingly. “Don't be that person,” it commands—that person being the one who either explains “technical topics” to his colleagues or fails to make “an effort to answer questions.”

It's a test with no right answer. The Los Angeles Times, in an earnest article titled “College Students Confront Subtler Forms of Bias: Slights and Snubs,” offers another example, from the University of California:

Telling people of color they speak English well sends a message they are perpetual foreigners in their own land or asserting that America is a “melting pot” denies the significance of a person's racial or ethnic experiences.

Such no-win situations could create legal liability for Vox and its executives. Thought experiment: Suppose Vox hires an employee who is a Scotsman. The Scotsman takes offense at Matt Yglesias's tartan costume, construing it as an appropriation of the Scotsman's cultural heritage, and files a complaint with dean of students—sorry, editor in chief—Ezra Klein.

Klein laughs and dismisses the complaint as frivolous. (Remember, it's a hypothetical.) Normally that conclusion would be correct; Yglesias's garb obviously does not rise to the level of discrimination or harassment. But Vox has promised to protect its employees even from microaggressions that would not ordinarily be actionable under employment law. The Scotsman might have a case of breach of contract.

An alternative scenario: Klein takes the complaint seriously and undertakes to remedy it by decreeing that only True Scotsmen are permitted to wear plaid to work. An employee dress code based on national origin is a prima facie case of discrimination, is it not?

As far as we know, such a scenario has not arisen at Vox. Maybe Klein is a deft enough executive that it never will. But elsewhere in Progressistan, a campus-style grievance arose this week. Bloomberg's Eli Lake has the story:

It's official: Thanks to Benjamin Netanyahu, the Center for American Progress is no longer a safe space for progressives.
At least this is the considered opinion of about a dozen of the liberal think tank's staff members who endorsed a 13-paragraph statement expressing how their employer's decision to invite Israel's prime minister to speak on Tuesday wounded their feelings.
The statement says that inviting Netanyahu was “a humanity and human rights issue universally felt,” and “we are in a place of confusion and hurt.” The staffers complain that it will be difficult to explain the invitation to their progressive allies.

Lake does not exaggerate. Here's an excerpt from the statement (which is quoted in full by the Nation):

Coming to work at CAP gives many of us the opportunity to make this country safe and accepting of all. While we watch the hate crimes, discrimination and biases faced by some of our communities, we come to work every day proud that this institution is a space where our voices will be respected and where our leadership assures we feel safe, respected and heard. In that sense this place isn't so much a job or a profession or a nine-to-six. It's a survival tactic. But it's not just about our individual struggles because, in the words of MLK, we're not free until we're all free.
And at CAP we are a family. We spend more hours with one another at this institution than we do with our own families and friends outside the office. It is imperative that we feel confident in this building to improve the lives of all Americans, and essentially to work on getting us all free. It becomes difficult to step outside of our building and say to our allies why this visit is happening, for some of us here we ourselves feel that we were not considered in that decision.

This has a distinct echo on campus, as Ruthie Blum reported Wednesday in the Algemeiner:

Student groups planning a protest on Thursday at Manhattan's Hunter College are using classical antisemitic tropes for advertising.
The rally is part of a nationwide campaign called “Million Student March,” demanding tuition-free education and the cancellation of student debt. . . .
The Facebook ad for the event reads:
“On November 12th, students all across CUNY will rally to demand a freeze on tuition and new contracts! We must fight for funding for our university, and for CUNY to be accessible to working class communities in NYC as the public university system. The Zionist administration invests in Israeli companies, companies that support the Israeli occupation, hosts birthright programs and study abroad programs in occupied Palestine, and reproduces settler-colonial ideology throughout CUNY through Zionist content of education. While CUNY aims to produce the next generation of professional Zionists, SJP [NYC Students for Justice in Palestine] aims to change the university to fight for all peoples [sic] liberation.

This lays bare both the viciousness and the incoherence of today's self-styled progressives. For what is modern Israel but a safe space for a people actually in need of one?

from the Wall Street Journal, 2015-Aug-14:

A Free-Speech Clinic for the FDA
A judge says companies can tell the truth about off-label drug uses.

The Food and Drug Administration thinks its powers are so total that it can even prohibit drug companies from making true claims about their products. Not so fast. A federal judge in an important and closely watched test case in New York has called this political control a violation of the First Amendment.

At issue are off-label prescriptions. Once the FDA approves new drugs, they are often repurposed by physicians in all fields for diseases, in doses or for patient populations that the agency has not reviewed. A therapy for breast cancer, say, might also prove effective against tumors elsewhere in the body, or a medicine for adults might be used in pediatric care. About one of five U.S. prescriptions are for non-FDA-sanctioned uses.

In a small miracle, these off-label experiments are legal, and they drive innovation. The artificial conditions that the FDA demands for clinical trials are increasingly divorced from how medicine is practiced, and modern care advances far faster than the FDA's regulatory molasses. Off-label use is vital for complex conditions like cancer and psychiatric disorders that require trial and error for individual patients, who can't wait years for the FDA's blessing.

But the FDA and Justice Department are targeting off-label prescriptions as a threat to their hegemony. Their goal is to force drug makers and physicians to seek FDA approval for every new real-world use, as if it were an entirely new drug. Until recently, drug makers were banned from making off-label claims backed by solid evidence or even from distributing peer-reviewed journal articles.

Prosecutors have also become increasingly aggressive. In 2012 GlaxoSmithKline paid $1 billion for encouraging doctors to use Paxil to treat depression in patients under 18, which research shows helps although the FDA has not endorsed this conclusion. The FDA construes some forms of off-label promotion as crimes, and people are serving jail time.

In U.S. v. Caronia in 2012, the Second Circuit Court of Appeals overturned one such conviction—of a drug rep caught in a sting urging doctors to use a narcolepsy medicine for unapproved uses. He didn't make a false or misleading statement but merely described the modern state of the literature.

The Second Circuit held that “the truthful promotion” of off-label uses is constitutionally protected speech that the FDA can't regulate. The off-label speech prohibition “`paternalistically' interferes with the ability of physicians and patients to receive potentially relevant treatment information; such barriers to information about off-label use could inhibit, to the public's detriment, informed and intelligent treatment decisions.”

Instead of appealing Caronia to the Supreme Court, where it might lose, the FDA interpreted the decision narrowly and said drug makers could engage in off-label marketing in limited ways if the FDA edited and signed off on the materials first. The word for this is censorship, which a small company called Amarin Pharma is now challenging, at considerable risk of FDA retaliation.

Amarin makes a triglyceride-reducing drug called Vascepa, which is approved for people with very high levels that can contribute to cardiovascular disease. Amarin wants to market the drug for people with somewhat lower triglyceride levels, and it conducted a successful clinical trial whose design was approved by the FDA that showed Vascepa reduces their levels too.

But the FDA rejected Amarin's application because it has new doubts about the relationship between triglycerides and cardiovascular risk. The agency threatened to sue or prosecute Amarin if it told doctors of the results of the study, and Amarin countersued.

In court, the FDA claimed that distributing the information would be a “frontal assault” on its drug-approval authority and likened it to other forms of illegal speech like blackmail or insider trading. But then the agency tried to moot the case by offering to settle. Amarin refused, with good reason.

Judge Paul Engelmayer last week told the FDA it couldn't end-run the Caronia decision to “chill Amarin's First Amendment rights.” He added that, “Had the FDA believed that Caronia gravely undermined the drug approval process, it should have sought review of that decision.”

Judge Engelmayer's opinion ensures that the off-label controversy will be resolved fairly and transparently. The Second Circuit—and likely the Supreme Court—could protect both medical progress and the Constitution by rebuking the FDA's power grab.

from the Wall Street Journal, 2015-Jul-24:

The Taxman's Politics
New evidence that IRS bias may have extended to tax audits.

The Obama Administration has made a two-year career of dismissing concern about IRS policies targeting conservative tax-exempt groups. That evasion just got harder. New information shows the agency may have shown similar bias in tax audits.

A new Government Accountability Office report says protocols in place at the IRS Exempt Organizations unit made it possible for groups to be unfairly targeted for audit “based on the organization's religious, educational, political, or other views.” That's our emphasis. The report also shows a process that allowed reviewers to wield significant discretion over whether certain groups were selected for scrutiny.

GAO says that once the audit targets were chosen, the process lacked transparency and documentation, including why the groups were selected. Of the audits that came in from outside referrals, the agency had no documentation for around 25% of the original complaints. This raises the possibility that some groups may have been flagged for audits by political opponents who disapproved of their tax-exempt purpose. In some cases, the GAO says the IRS never disclosed why a group was selected for audit.

The IRS is dismissing the findings as hypothetical. At a House Ways and Means hearing Thursday, IRS Commissioner John Koskinen told Rep. Peter Roskam that “at this point we do not have indications that anyone improperly was selected for an exam.” But information from Treasury Inspector General for Tax Administration J. Russell George suggests IRS audit selection has already led to improperly selected audits.

In fiscal years 2013 through 2015, Mr. George initiated 102 internal investigations based on complaints by tax-exempt groups and individuals who say they were unfairly targeted for audit. It's not public how many of those 102 may have been improperly targeted. But according to the House Ways and Means Committee, 12 presented facts so egregious that the IRS referred them to the Justice Department for criminal prosecution. Not for tax evasion, mind you, but for improper conduct by IRS employees.

A criminal referral is a big step, suggesting the audit selections met a high bar of evidence that IRS employees may have knowingly violated the law when choosing an audit target. Thursday's hearing also included testimony from groups that believe they were improperly audited.

Michelle Easton, president of the conservative Clare Boothe Luce Policy Institute, said the agency told her in 2011 that it was auditing her group for 2008, the same year Ms. Easton volunteered to work for Sarah Palin's campaign for Vice President. In the “first of seven separate requests for massive amounts of documents,” Ms. Easton said, “the IRS asked for a `List of contributors and Amounts,'” information that is beyond proper IRS review.

Another target was the Leadership Institute, which says its mission is to “increase the number and effectiveness of conservative activists and leaders in the public policy process.” Vice President Joseph Metzger said he was told his group was referred for audit by an outsider and that the IRS wanted to investigate “the institute's use of the word `conservative.'”

Lawyer Elizabeth J. Kingsley, who represents nonprofit groups, also testified that the rate of audits had risen sharply beginning in late 2012 and included audits of liberal groups. “My assessment,” she said in prepared testimony, “indicates that we have handled more audits in the past five years than in the preceding fifteen.”

Those incidents smack of the hailstorm of federal audits that hit Catherine Engelbrecht when her True the Vote nonprofit was infuriating Washington Democrats. Our Kimberley Strassel reported in 2012 that Idaho businessman and Mitt Romney contributor Frank VanderSloot was hit with a federal tax audit not long after being called out by name in an email from President Obama's re-election campaign.

An IRS audit can impose huge burdens in time and legal expense, and an adverse report often means a group's tax status is revoked, a killer for 501(c)s that raise money from individuals and foundations. The stigma also means that few who are audited dare to challenge the agency's decision.

Mr. Koskinen, the IRS director, has already shown through his previous stonewalling that his assurances can't be trusted. We hope Congress keeps digging into the growing evidence of a politicized tax agency.

from the Wall Street Journal, 2015-Nov-9:

Yale's Little Robespierres
Students berate faculty who try to defend free speech.

Someone at Yale University should have dressed up as Robespierre for Halloween, as its students seem to have lost their minds over what constitutes a culturally appropriate costume. Identity and grievance politics keeps hitting new lows on campus, and now even liberal professors are being consumed by the revolution.

On Oct. 28 Yale Dean Burgwell Howard and Yale's Intercultural Affairs Committee blasted out an email advising students against “culturally unaware” Halloween costumes, with self-help questions such as: “If this costume is meant to be historical, does it further misinformation or historical and cultural inaccuracies?” Watch out for insensitivity toward “religious beliefs, Native American/Indigenous people, Socio-economic strata, Asians, Hispanic/Latino, Women, Muslims, etc.” In short, everyone.

Who knew Yale still employed anyone willing to doubt the costume wardens? But in response to the dean's email, lecturer in early childhood education Erika Christakis mused to the student residential community she oversees with her husband, Nicholas, a Yale sociologist and physician: “I don't wish to trivialize genuine concerns,” but she wondered if colleges had morphed into “places of censure and prohibition.”

And: “Nicholas says, if you don't like a costume someone is wearing, look away, or tell them you are offended. Talk to each other. Free speech and the ability to tolerate offence are the hallmarks of a free and open society.”

Some 750 Yale students, faculty, alumni and others signed a letter saying Ms. Christakis's “jarring” email served to “further degrade marginalized people,” as though someone with a Yale degree could be marginalized in America. Students culturally appropriated a Puritan shaming trial and encircled Mr. Christakis on a lawn, cursing and heckling him to quit. “I stand behind free speech,” he told the mob.

Hundreds of protesters also turned on Jonathan Holloway, Yale's black dean, demanding to know why the school hadn't addressed allegations that a black woman had been kept out of a fraternity party. Fragile scholars also melted down over a visiting speaker who made a joke about Yale's fracas while talking at a conference sponsored by the school's William F. Buckley, Jr. program focused on . . . the future of free speech.

The episode reminds us of when Yale alumnus Lee Bass in 1995 asked the university to return his $20 million donation. Mr. Bass had hoped to seed a curriculum in Western civilization, but Yale's faculty ripped the idea as white imperialism, and he requested a refund. Two decades later the alternative to Western civilization is on display, and it seems to be censorship.

According to a student reporting for the Washington Post, Yale president Peter Salovey told minority students in response to the episode that “we failed you.” That's true, though not how he means it. The failure is that elite colleges are turning out ostensible leaders who seem to have no idea why America's Founders risked extreme discomfort—that is, death—for the right to speak freely.

from the Wall Street Journal, 2015-Nov-10:

Bonfire of the Academy
As liberal adults abdicate, the kids take charge on campus.

By bonfire of the academy we mean a conflict of values about the idea of a university that now threatens to undermine or destroy universities as a place of learning. Exhibit A is the ruin called the University of Missouri.

In the 1960s—at Cornell, Columbia, Berkeley and elsewhere—the self-described Student Left occupied buildings with what they often called “non-negotiable” demands. In the decades since, the academy—its leaders and faculties—by and large has accommodated many of those demands regarding appropriate academic subjects, admissions policies and what has become the aggressive and non-tolerant politics of identity and grievance.

This political trajectory arrived at its logical end this week at Missouri with the abrupt resignation of the school's president, quickly followed by its number two official. The kids deposed them, as their liberal elders applauded either out of solidarity or cowardice.

The cause of President Tim Wolfe's resignation is said to be his failure to address several racially charged incidents on campus and the threat by its Division One football team to boycott this weekend's game unless he stepped down.

The university's campus, in Columbia, is not far from Ferguson, Mo. Among the charges against President Wolfe was that his response to the shooting of Michael Brown was inadequate, which is to say, he did not sufficiently take the side of the protesters or rioters. Since Ferguson, the left-wing Black Lives Matter group has come to prominence and intimidated even presidential candidates. This has been accompanied by successive claims of racial grievance against public and private institutions.

In the United States, by now the instinct of the overwhelming majority of people is to address such complaints in good faith, investigate them and remediate where necessary. Only the tiniest minority would wish to see racial grievances bleed indefinitely. Yet the kids assert that America is irredeemably racist.

Behind the headlines was also a festering dispute between the school administration and graduate students over cutbacks to their health-care coverage. Student Jonathan Butler listed among the reasons for his hunger strike that “graduate students [were] being robbed of their health insurance.”

Less noted in the news coverage is that an August posting on the website of the university's division of graduate studies explains in detail that the health-insurance cutbacks are the explicit result of the Affordable Care Act. ObamaCare's regulations forbid employers, such as universities, from paying for their grad students' health insurance. Another case of progressives eating their own.

So now the University of Missouri and its 35,000 students are leaderless. We can assume that the students who brought Missouri to this pass do not have a clue what comes next—unless one of them would like to step into the presidency and give it a fling. It would serve the faculty right, though not the tens of thousands of other students who want an education.

What was evident at the University of Missouri, and in last weekend's confrontation over free speech at Yale, is that political dialogue on universities is disintegrating to the level of 1968, when many schools became places of physical and intellectual chaos.

Missing today, as then, is adult leadership. Too often university presidents, their boards of trustees and leading political figures default, and quickly, to the most reactionary progressives in modern student bodies. We want to be clear about this, because so many of these university leaders regard themselves as principled liberals. But their timidity is putting at risk the classical liberal values that are the essence of the idea of a university.

Many of our readers by now have seen the video of the Missouri communications professor calling for “muscle” to ban a student reporter from covering their protest. Or last weekend's video of a Yale student shrieking at a dean to resign for defending free speech. Professors increasingly acquiesce to student demands for “trigger warnings” about course material that might offend them. Small student minorities ban commencement speakers or boo them into silence.

Today's progressive activists, unlike their liberal antecedents, believe that ideas with which they disagree or which they deem morally repugnant don't deserve to be heard. And so they shout them down or tell their speakers to “shut up” or “resign.” They believe that free-speech protection is a quaint obstacle to getting what they want, which is control.

Missouri Governor Jay Nixon said Mr. Wolfe's resignation “was a necessary step toward healing and reconciliation.” At the White House, Press Secretary Josh Earnest said this shows “that a few people speaking up and speaking out can have a profound impact.”

We'd respect these words if they had any purpose beyond progressive political piety. The politicians will walk away. The forces that have been dividing campuses like Missouri's for years and eroding them as serious centers of learning will stay. That most people staring at what happened at the University of Missouri feel a sense of loss is no accident. Expect more of it.

from the Wall Street Journal, 2015-May-21, by Peggy Noonan:

The Trigger-Happy Generation
If reading great literature traumatizes you, wait till you get a taste of adult life.

Readers know of the phenomenon at college campuses regarding charges of “microaggressions” and “triggers.” It's been going on for a while and is part of a growing censorship movement in which professors, administrators and others are accused of racism, sexism, homophobia, classism, gender bias and ethnocentric thinking, among other things. Connected is the rejection or harassment of commencement and other campus speakers who are not politically correct. I hate that phrase, but it just won't stop being current.

Kirsten Powers goes into much of this in her book, “The Silencing.” Anyway, quite a bunch of little Marats and Robespierres we're bringing up.

But I was taken aback by a piece a few weeks ago in the Spectator, the student newspaper of Columbia University. I can't shake it, though believe me I've tried. I won't name the four undergraduate authors, because 30 years from now their children will be on Google, and because everyone in their 20s has the right to be an idiot.

Yet theirs is a significant and growing form of idiocy that deserves greater response.

The authors describe a student in a class discussion of Ovid's epic poem “Metamorphoses.” The class read the myths of Persephone and Daphne, which, as parts of a narrative that stretches from the dawn of time to the Rome of Caesar, include depictions of violence, chaos, sexual assault and rape. The student, the authors reported, is herself “a survivor of sexual assault” and said she was “triggered.” She complained the professor focused “on the beauty of the language and the splendor of the imagery when lecturing on the text.” He did not apparently notice her feelings, or their urgency. As a result, “the student completely disengaged from the class discussion as a means of self-preservation. She did not feel safe in the class.”

Safe is the key word here. There's the suggestion that a work may be a masterpiece but if it makes anyone feel bad, it's out.

Later the student told the professor how she felt, and her concerns, she said, were ignored. The authors of the op-ed note that “Metamorphoses” is a fixture in the study of literature and humanities, “but like so many texts in the Western canon it contains triggering and offensive material that marginalizes student identities in the classroom.” The Western canon, they continue, is full of “histories and narratives of exclusion and oppression” that can be “difficult to read and discuss as a survivor, a person of color, or a student from a low-income background.”

That makes them feel unsafe: “Students need to feel safe in the classroom, and that requires a learning environment that recognizes the multiplicity of their identities.” The authors suggest changing the core curriculum but concede it may not be easy. Another student, they report, suggested in her class that maybe instead they could read “a Toni Morrison text.” A different student responded that “texts by authors of the African Diaspora are a staple in most high school English classes, and therefore they did not need to reread them.” That remark, the authors assert, was not only “insensitive” but “revealing of larger ideological divides.” The professor, they report, failed at this moment to “intervene.”

The op-ed authors call for “a space to hold a safe and open dialogue” about classroom experiences that “traumatize and silence students,” with the aim of creating environments that recognize “the multiplicity” of student “identities.”

Well, here are some questions and a few thoughts for all those who have been declaring at all the universities, and on social media, that their feelings have been hurt in the world and that the world had just better straighten up.

Why are you so fixated on the idea of personal safety, by which you apparently mean not having uncomfortable or unhappy thoughts and feelings? Is there any chance this preoccupation is unworthy of you? Please say yes.

There is no such thing as safety. That is asking too much of life. You can't expect those around you to constantly accommodate your need for safety. That is asking too much of people.

Life gives you potentials for freedom, creativity, achievement, love, all sorts of beautiful things, but none of us are “safe.” And you are especially not safe in an atmosphere of true freedom. People will say and do things that are wrong, stupid, unkind, meant to injure. They'll bring up subjects you find upsetting. It's uncomfortable. But isn't that the price we pay for freedom of speech?

You can ask for courtesy, sensitivity and dignity. You can show others those things, too, as a way of encouraging them. But if you constantly feel anxious and frightened by what you encounter in life, are we sure that means the world must reorder itself? Might it mean you need a lot of therapy?

Masterpieces, by their nature, pierce. They jar and unsettle. If something in a literary masterpiece upsets you, should the masterpiece really be banished? What will you be left with when all of them are gone?

What in your upbringing told you that safety is the highest of values? What told you it is a realistic expectation? Who taught you that you are entitled to it every day? Was your life full of . . . unchecked privilege? Discuss.

Do you think Shakespeare, Frieda Kahlo, Virginia Woolf, Langston Hughes and Steve Jobs woke up every morning thinking, “My focus today is on looking for slights and telling people they're scaring me”? Or were their energies and commitments perhaps focused on other areas?

I notice lately that some members of your generation are being called, derisively, Snowflakes. Are you really a frail, special and delicate little thing that might melt when the heat is on?

Do you wish to be known as the first generation that comes with its own fainting couch? Did first- and second-wave feminists march to the barricades so their daughters and granddaughters could act like Victorians with the vapors?

Everyone in America gets triggered every day. Many of us experience the news as a daily microaggression. Who can we sue, silence or censor to feel better?

Finally, social justice warriors always portray themselves—and seem to experience themselves—as actively suffering victims who need protection. Is that perhaps an invalid self-image? Are you perhaps less needy than demanding? You seem to be demanding a safety no one else in the world gets. If you were so vulnerable, intimidated and weak, you wouldn't really be able to attack and criticize your professors, administrators and fellow students so ably and successfully, would you?

Are you a bunch of frail and sensitive little bullies? Is it possible you're not intimidated but intimidators?

Again, discuss.

By the way, I went back to the op-ed and read the online comments it engendered from the Columbia community. They were quite wonderful. One called, satirically, to ban all satire because it has too many “verbal triggers.” Another: “These women are like a baby watching a movie and thinking the monster is going to come out of the screen and get them.” Another: “These girls' parents need a refund.”

The biggest slayer of pomposity and sanctimony in our time continues to be American wit.

from Entertainment Weekly, 2015-Jun-8, by Dana Rose Falcone:

Jerry Seinfeld: Politically correct college students 'don't know what the hell they're talking about'

Like Chris Rock and Larry the Cable Guy, Jerry Seinfeld avoids doing shows on college campuses. And while talking with ESPN's Colin Cowherd on Thursday, the comedian revealed why: College kids today are too politically correct. “I hear that all the time,” Seinfeld said on The Herd with Colin Cowherd. “I don't play colleges, but I hear a lot of people tell me, `Don't go near colleges. They're so PC.'” Seinfeld says teens and college-aged kids don't understand what it means to throw around certain politically-correct terms. “They just want to use these words: `That's racist;' `That's sexist;' `That's prejudice,'” he said. “They don't know what the hell they're talking about.” The funnyman went on to recount a conversation he and his wife had with their 14-year-old daughter, which he believes proved his point. “My wife says to her, `Well, you know, in the next couple years, I think maybe you're going to want to be hanging around the city more on the weekends, so you can see boys,'” Seinfeld recalled. “You know what my daughter says? She says, `That's sexist.'” Cowherd pointed out the flack comedian Louis C.K. received after his controversial appearance on Saturday Night Live last month, further proving Seinfeld's point. “Louis' great gift is that he doesn't worry, he just does his thing,” he said. And Seinfeld's not scared to make his point, either: “If I wanted to say something, I would say it.” But for now, Seinfeld will stick to covering the topics he can feels he can make humorous, PC or not. “I talk about the subjects I talk about because for some reason I can make them funny,” he said. “The ones I can't make funny, you don't hear.”

from the Wall Street Journal Best of the Web, 2015-Jun-4, by James Taranto:

Varsity Calvinball
The “excesses” of political correctness are inevitable.

One of our favorite tropes from Bill Watterson's brilliant comic strip Calvin and Hobbes was “Calvinball.” The eponymous 6-year-old boy invented the game because he didn't care for organized sports. The central feature of Calvinball is that the rules change all the time, at either player's whim. That infinity of rules amounts to an absence of rules, making Calvinball a pure battle of determination—whoever is more willful in the imposition of rules wins.

Of late progressive academics have been discovering that Calvinball is no fun when you're not making the rules.

Last week Laura Kipnis, a communication professor at Northwestern University, published a much-discussed piece in the Chronicle of Higher Education titled “My Title IX Inquisition.” Kipnis, a self-described feminist, had been brought up on “sex discrimination” charges for an article she wrote criticizing the way such charges are adjudicated. The essay is quite something to read, but it requires a subscription, so we'll let Jezebel's Natasha Vargas-Cooper sum things up:

The trouble for Kipnis started a few months ago when she published an essay in the Chronicle of Higher Education about the growing sexual paranoia on college campuses. . . .
Student activists at Northwestern protested Kipnis' essay by carrying around mattresses. . . . The students, with mattresses in tow, went to Northwestern's president with a petition demanding swift and official condemnation of [the] Kipnis essay. . . .
After the petition was circulated and mattresses dragged to the University President's office, two students filed Title IX complaints against Kipnis. Kipnis was informed of the complaints through email but was not told what she had done or to whom she had allegedly done it.

“Kipnis was then plunged into a secretive and labyrinthine bureaucratic process that she believes threatens her academic freedom” and that she describes in hair-raising detail in the new Chronicle essay. In the end she was cleared of the charges, but the process itself was quite punishing, enough so to have a chilling effect on other academics who may be inclined to express similar views.

Yesterday Vox published another long essay in the same genre, titled “I'm a Liberal Professor, and My Liberal Students Terrify Me.” The author, “a professor at a midsize state school” who evidently does not have tenure, is called Edward Schlosser, but that's not his name. “All my remotely offensive or challenging opinions, such as this article, are expressed either anonymously or pseudonymously,” he explains.

As we read the Schlosser piece, we felt more Schadenfreude than sympathy, and we wondered if that reflected poorly on us. (Spoiler: Nah.) To our mind, he got off on the wrong foot with his opening anecdote, which was about a conservative student whom he depicts as a knucklehead. This column acknowledges the existence of conservative knuckleheads, and we are in no position to dispute Schlosser's account or his evaluation of this student. But the anecdote seemed gratuitous. And even under cover of anonymity, Schlosser is much more respectful of knuckleheads when they are on the left.

A piece by National Review's Charles Cooke clarified our lack of sympathy for Schlosser:

For all the unconfined joy that conservatives will take from such clear and unadulterated admissions of this fact, the important part of Schloss's [sic] essay in fact lies in the first clause of its headline, not the second. We already knew that our present discontent is the fault of the lunatic Left and its many young acolytes. What we did not know, however, is that their nominal allies within the academic and journalistic establishments would have such an early breaking point. If you want to take something crucial away from this story, notice who is doing the mourning: “I'm a liberal professor . . .”
I am not at all convinced that this is a sign that the “most recent wave of political correctness is cresting.” Rather, I suspect that it is merely in the process of mutating into a form in which it is less obviously damaging to progressive interests. That “backlash” that David notes? It's not really a backlash at all. It's a rearguard action. And that “concern” that we are supposedly hearing from Jezebel and The Nation? It is not the product of intellectual honesty or of a more general desire to institute academic liberty on campus; it's a self-serving attempt to fight back against those revolutionaries who are eating their own.

In other words, progressives (e.g., Schlosser) want to keep playing by Calvinball rules when their opponents are conservatives, but they expect their dispute with the left to be governed by the rules of old-fashioned liberalism—such as free speech, due process, academic freedom and the scientific method.

Cooke argues, quite rightly, that that's an outrageous demand—that progressives shouldn't (or shouldn't be allowed to) impose such a double standard. We propose that they cannot do so—that the desired double standard is both logically incoherent and impossible to sustain in practice.

One obvious objection to any double standard is that liberalism—and let us emphasize we are using the term in its old-fashioned sense; the opposite of “liberal” is “illiberal,” not “conservative”—makes universal claims, so that any double standard amounts to a betrayal of liberalism. That's a fine argument, but it doesn't establish the impossibility of a double standard. Social systems have existed—think of the American South under slavery and Jim Crow—in which a dominant ingroup governed itself in accord with liberal principles while subjecting the outgroup to a combination of oppressive rules and often-cruel whims.

An objection to our analysis of the political-correctness problem is that our taxonomic categories—“progressives,” “conservatives” and “the left”—are vague, fluid and relative. But that's what makes it dauntingly complicated simply to define an outgroup (conservatives) to which to apply Calvinball rules. Many individuals can't easily be classified as members of the ingroup or outgroup. Most pertinent to this point, it is probable that the people Schlosser describes as his “liberal students” think of him as a conservative.

Still, the categories are clear enough that we can apply them in the specific cases at hand. Kipnis and Schlosser are progressives seeking to limit political correctness; the students who complained against the former and terrify the latter are leftists seeking to push the boundaries.

The progressive wants the leftist to respond to an appeal to reason. Let's see how that works in practice.

Toward the end of his essay, Schlosser quotes a pair of tweets from “critic and artist” Zahira Kelly, which we run together but otherwise quote verbatim: “when ppl go off on evo psych, its always some shady colonizer white man theory that ignores nonwhite human history. but `science'. ok. most `scientific thought' as u know it isnt that scientific but shaped by white patriarchal bias of ppl who claimed authority on it.”

Schlosser responds, in effect (and in contrast to his treatment of that conservative student), Come, let us reason together:

Kelly is intelligent. Her voice is important. She realizes, correctly, that evolutionary psychology is flawed, and that science has often been misused to legitimize racist and sexist beliefs. But why draw that out to the extreme of rejecting scientific inquiry as a whole? Can't we see how it's dangerous to reject centuries of established thought so blithely? Or how scary and extreme that makes us look to people who don't already agree with us? And tactically, can't we see how shortsighted it is to abandon a viable and respected manner of inquiry just because it's associated with white males?

A contributor to the Ace of Spades blog quotes Kelly's tweets in response to Schlosser's essay, which begin as follows: “so @voxdotcom has illustrated what passive aggressive white male violence looks like against black women, whining that we overreact. & see white man is protected while targeting me while I have less power & no recourse. this is your progressive journalism @voxdotcom.”

To be sure, Kelly's tweets are fully protected by the First Amendment and she has not in any way infringed upon Schlosser's rights. (We'd add that her response makes his point far more strongly than he dared, even anonymously.) But if she were a student at his institution, her complaints would have real force.

Conservatives are at a disadvantage when progressives subject them to Calvinball rules; most are predisposed, both temperamentally and ideologically, to expect predictable rules. That's one reason they shun academia (another is that academia shuns them). Having introduced Calvinball to academia, they are asking for a return to liberalism from those who are least committed to it. Some of us who are now experiencing Schadenfreude were in the same position long ago.

Schlosser concludes his essay with a warning to his fellow progressives:

Debate and discussion would ideally temper this identity-based discourse, make it more usable and less scary to outsiders. Teachers and academics are the best candidates to foster this discussion, but most of us are too scared and economically disempowered to say anything. Right now, there's nothing much to do other than sit on our hands and wait for the ascension of conservative political backlash.

In response Cooke is scathing: “The American Left has started to rebel at the exact moment that its own interests are being hurt? Naturally. This isn't about standards; it's about power.”

We've got a different take: Schlosser is wistful for an electoral deus ex machina that he would find ideologically repugnant. That's an expression of profound powerlessness. A counsel of despair is his only hope—though assuming it is a political possibility, it is a genuine hope for any progressive who has, however belatedly, awakened to liberalism's worth. By and large what today's conservatives hope to conserve is the liberal principles that underlie America.

from the Wall Street Journal Best of the Web, 2015-Jun-12, by James Taranto:

When Words Fail
What if someone is retraumatized by trigger warnings?

When this columnist was in the flower of our youth, parents sometimes responded when their children used foul language by saying: “When you talk that way, it just shows you have a limited vocabulary.” A guy we knew, having received such an admonition from his mother, quipped: “My sister knows more bad words than I do. Does that mean her vocabulary is more limited?”

But maybe Mom had a point. Our generation must've really overdone it with the offensive language, because these days it's the youngsters who are censorious. A case in point comes from the young-adult website, where Jenée Desmond-Harris makes what Voxen chief Ezra Klein calls “a really convincing case” against the phrase “you guys.”

Specifically, Desmond-Harris, who confesses that she herself is “a big user of `guys,' ” now thinks the phrase should never be uttered in mixed company:

As I read up on the issue, I realized that my knee-jerk response (”It doesn't seem like that big a deal to me, personally, and changing would require effort on my part and that's hard and tiring”) is nothing more than a very typical lazy excuse for avoiding the tiny tweaks to our lives that can, as a whole, make society more equal.
Now I'm convinced that “guys”—unless we are actually addressing a group of guys—has got to go. . . .
In an interview filmed in 2012, author and activist Alice Walker argues it's especially troubling when women refer to themselves as “guys,” because it represents a “fear of being feminine.” 

Perhaps you know a woman in her 40s who has failed to reach her full potential because her feminine spirit was crushed by “The Electric Company.” Desmond-Harris acknowledges that “you can think of the push to drop `guys' as political correctness run amok,” but urges you instead to “think of it as making a tiny change that doesn't cost you anything and will . . . help you make the world just a tiny bit more fair.”

And it's not as if there aren't plenty of alternatives. Desmond-Harris suggests “friends,” “folks,” “everyone,” “colleagues,” “gang,” “team,” “y'all” and “guys and girls.” Other inclusive possibilities might include “guys and gals,” “guys and dolls” or “guys and guyesses.” Our personal favorite is a classic that never gets old, “ladies and germs.”

Even if one thinks—as Desmond-Harris herself did until she “read up on the issue”—that this is all a bit silly, it goes too far to characterize it as “political correctness run amok.” After all, not every phrase is appropriate for every situation. A judge would not address a jury as “you guys,” even in the statistically unlikely event that it was composed of 12 men, none of them angry.

But political correctness can run amok. You've probably heard of “trigger warnings,” which are all the rage on campus these days. If you haven't, the Everyday Feminism blog has a lengthy explainer, written by Gillian Brown. It begins with the following “editor's note”:

Like this phenomenal article, Everyday Feminism definitely believes in giving people a heads up about material that might provoke our reader's trauma. However, we use the phrase “content warning” instead of “trigger warning,” as the word “trigger” relies on and evokes violent weaponry imagery. This could be re-traumatizing for folks who have suffered military, police, and other forms of violence. So, while warnings are so necessary and the points in this article are right on, we strongly encourage the term “content warning” instead of “trigger warning.”

That is followed by a “content warning”: “This article discusses triggering in detail and mentions common topics of triggering (sexual assault, anxiety, health anxiety, depression, death, non-specific fears and phobias).”

Note that the content warning not only twice uses the triggering word “triggering” but also “mentions common topics of triggering,” albeit without discussing them in detail. Which in turn raises the question: What if trigger warnings, however delicately phrased, are themselves triggering? That's the whole point of a warning, is it not? The proximate purpose of a fire alarm, for instance, is precisely to induce alarm.

Further, both articles use the triggering nomenclature right in the headlines, which precede any warnings. Vox: “Why I'm Finally Convinced It's Time to Stop Saying `You Guys.' ” Everyday Feminism: “Not Sure What People Mean by `Triggering?' This Article Is Your One-Stop 101.”

That points to a practical difficulty with the entire effort to banish offensive terminology. If the number of taboo words is small, euphonyms like “F-word” and “N-word” will suffice. But once the list grows beyond a handful, that approach becomes unmanageable.

Try rephrasing Everyday Feminism's content warning so that it conveys the message without including any language that might be triggering. The best we can do is “DO NOT READ this phenomenal article,” and we suspect Gillian Brown would object to that.

Anyway, isn't all language potentially triggering? Yes it is—and not just language, according to Brown. One of her headings asks “What Sorts of Things Can Be Triggers?” and she answers:

Anything. Absolutely anything.
In the most straightforward of cases, triggers are anything the person can sense that reminds them [sic] of the cause of the triggering.
For instance, if a person is sensitive about sexual assault, they might be triggered by seeing somebody who reminds them of an attacker, or by being touched in a certain way, or by seeing news articles that mention sexual assault.
However, due to the completely illogical way in which the mind works sometimes, triggers are often more convoluted than that.
To give a personal example, I am often triggered when I see books by Terry Pratchett. I have been told that his books are fantastic, but I cannot bring myself to read any of them because Pratchett now suffers from Alzheimer's disease.
I have mentioned this particular trigger to friends and family before and have been met with surprise, disbelief, and remarks on how silly I'm being.
As you might imagine, such remarks are not helpful.

That, ladies and germs, is political correctness run amok.

from the Wall Street Journal, 2015-Jun-7, by Jessica Gavora:

How Title IX Became a Political Weapon
Now that the law is used to suppress free speech, even liberals are alarmed. Where have they been?

Since its passage 43 years ago, Title IX has proved to be a remarkably elastic law. It has been stretched and warped from its original intent to end discrimination on the basis of sex in schools that receive federal funding. As long as Title IX's victims were wrestlers or swimmers from low-revenue men's sports that were jettisoned to achieve participation-parity with women's sports, nobody much cared. But now that the law is being turned into a tool to suppress free speech on college campuses, even liberals are starting to cry foul.

A tipping point was reached earlier this year when a Northwestern University film professor and feminist, Laura Kipnis, dared to criticize new Title IX regulations governing campus sex. The regulations, promulgated in the name of preventing a “hostile environment” for women, broadly defined sexual harassment as “any unwelcome conduct of a sexual nature.” An unwelcome touch or comment was grounds for a Title IX investigation, with college administers forced to be police, judge and jury in allegations of sexual harassment from offensive speech to rape.

In February Ms. Kipnis wrote in the Chronicle of Higher Education that the new rules infantilize women by encouraging them to “regard themselves as such exquisitely sensitive creatures that an errant classroom remark could impede their education.” Instead of preventing a hostile environment, she wrote, such rules instead have created an atmosphere of “sexual paranoia” that is spinning out of control. “In the post Title IX landscape,” she noted, “sexual panic rules. Slippery slopes abound.”

For her candor about the overreach of Title IX, Ms. Kipnis was hit with . . . a Title IX investigation. In an argument that would have made Joseph Stalin blush, two Northwestern students charged that Ms. Kipnis's criticism of Title IX violated Title IX. The university launched an investigation and subjected Ms. Kipnis to what she has called an “inquisition.”

She was eventually acquitted, but the episode has left academics and the liberals who love them suddenly complaining about abuse under the law. As the liberal writer Josh Marshall declared on his Talking Points Memo blog, “The very idea that a professor could be hit with a Title IX investigation over an opinion article she wrote in The Chronicle of Higher Education is so palpably ridiculous that there is simply no need to go further.”

To which many coaches and male athletes who have seen their sport's program unfairly penalized or canceled under Title IX might reply, like John McClane greeting the LAPD in “Die Hard”: “Welcome to the party, pal.”

The road that took Title IX from a classically liberal antidiscrimination law to an illiberal gender-quota regime began in 1996 with an innocent-seeming “Dear Colleague” letter written by federal education officials in the Clinton administration. The letter targeted colleges and universities struggling to answer the difficult question of what constitutes (unlawful) discrimination under Title IX in sports programs that are already segregated on the basis of sex. It instructed schools that quotas—equalizing the participation of men and women in athletics, despite demonstrated disparities of interest—were the way to comply with the law.

Activists who had been instrumental in creating the new standard took the federal guidance and ran with it. Aided by the trial bar, they initiated lawsuits that enshrined the new bureaucratic “guidance.” The case brought against Brown University in the early 1990s by a coalition of feminists and trial lawyers set the stage. It alleged that Brown—which offered more women's sports teams than men's at the time—had violated the law by downgrading two women's teams. The university produced reams of data showing that women at Brown had more opportunities to play sports than men, but more men than women played intramural sports by 3 to 1 and club sports by a whopping 8 to 1.

To the applause of the Clinton administration, the court ruled that such data didn't matter. The responsibility of the school wasn't to provide equal opportunity to participate in sports—it was to educate women to be interested in sports. In effect the ruling said that Brown women didn't know what they wanted. They only thought they were dancers or actors or musicians. They had to be taught that they were really athletes. They didn't know what was good for them but the government did.

With that, Title IX was transformed. It no longer mattered if schools offered equal or more-than-equal opportunities for women in athletics. If colleges couldn't produce enough actual female bodies on the playing field, the schools were forced to cut male athletes until the participation rates of both sexes were the same. No legislation, let alone public discussion, made this so. When it comes to Title IX, quaint notions of the people's representatives having anything to do with the law ended when the law passed.

The movement of Title IX into areas as remote as the mere discussion of sexual politics on campus has followed the same trajectory. Beginning in 2011 the Obama Education Department wrote “Dear Colleague” letters to schools. Suddenly, schools were responsible for harassment and assault that occur off campus. A lower standard of evidence was established to prove the guilt of the accused. Earlier protections for academic freedom and free expression were dropped.

With that, the pas de deux with activist groups commenced. Title IX investigations of accusations of sexual assault and harassment on campuses exploded. Just as they had with Title IX in sports, activists went in search of victims to be the media face of a rape crisis—and to become plaintiffs in litigation against schools.

The notorious and now-debunked story of the University of Virginia's “Jackie” gang-rape is a case in point. Rolling Stone reporter Sabrina Rubin Erdely was, in her words, searching for a victim who would show “what it's like to be on campus now . . . not only where rape is so prevalent but also that there is this pervasive culture of sexual harassment/rape culture.”

The new demands to combat what federal education officials also call a “rape culture” on campus are so excessive that even current and former Harvard Law professors have publicly complained that their school's attempt to comply has undermined due process and is “overwhelmingly stacked against the accused.” But for Ms. Kipnis, it is the reduction of women to helpless, permanent victim status that has roused her and other feminists to anger.

Feminists might not be so surprised today if they had paid more attention when college women, as a feature of Title IX enforcement, were being treated like impressionable children incapable of choosing to join a sports team. Most of the attention was focused on supposedly sexist men, and when Title IX targeted male athletes, academics like Ms. Kipnis didn't speak out. Now academics are in the cross hairs. Who will be next?

Ms. Gavora is the author of “Tilting the Playing Field: Schools, Sports, Sex and Title IX” (Encounter, 2002).

from, 2015-Jul-28, by Joe Newby:

Facebook: Marine Corps emblem violates community standards

Late Monday, Facebook unpublished the popular pro-military "Locked and Loaded" page, while telling administrators that a picture of the United States Marine Corps emblem with a ribbon marked "In Remembrance" violated their community standards. Jason Light, an administrator from Atlanta, Georgia, told Examiner in an exclusive interview the page was covering the funeral and burial of Marine Lance Corporal Skip Wells, who was killed in Chattanooga.

Administrator Robert Combs also received a three-day ban over the image of the Marine Corps logo. Combs told Examiner all he can do for the next three days is chat, but he intends to replace the page.

"I am just speechless as to how this violates community standards," he said. The screenshot provided by Light did not indicate why the image was yanked, other than Facebook's claim it violated their standards.

The Facebook page boasted over 53,000 likes and was set up to help promote a blog by the same name. While not as large as other pages, Light said, it reached over 1 million people.

Light also posted the graphic to Twitter, where it was re-tweeted by talk show host Neal Boortz. "I'm going to post it back to FB," one person said in response. "Let's see what happens."

It's not the first questionable call by Facebook, as we have reported many times. Recently, the social media giant told one conservative user that her picture of a lilac tree was considered pornographic. On the other hand, it once said that a page calling for the murder of a Texas Tech cheerleader who hunts big game does not violate its standards.

In 2013, Facebook banned one conservative blogger for 30 days over a link she never posted. Another conservative was punished for simply saying "thank you."

Light told Examiner he believes the page was targeted by "fake conservative trolls," people who pretend to be friendly but really aren't. "Many people," he told Examiner, "wanted to be the one to take us down." Facebook has not responded to our request for comments. A screenshot of the allegedly "offensive" emblem can be seen in the slideshow above.

from, 2015-May-22, by Joe Newby:

Facebook to conservative user: Picture of lilac tree considered 'pornographic'

On Thursday, a conservative Facebook user who wished to be identified only as "Carol" told that Facebook declared a picture of a lilac tree to be pornographic after a liberal "troll" complained. Additionally, she said Facebook also called a picture of her granddaughter opening Christmas presents pornographic after complaints from "trolls" who wished to silence her.

Those, she said, were just two of the "stupid" items Facebook took down because of false reports. A picture of Glenn Beck, a friend's dog, and a picture of another friend fishing were also falsely deemed to be pornography after being reported.

This happened, she added, at about the same time Facebook blocked her for 30 days. It all happened, she said, because she accepted a friend request. She "unfriended" the person and was asked to enter a "Security" code. She was then slapped with a 30-day ban from using most of Facebook's features.

This is just one of the many stories we have received from Facebook users in the last few days. While participating in an online "Q&A" with Fox News' Megyn Kelly on Thursday, one user told Kelly that Facebook would not allow her to add new members to her group. Another person asked why Facebook is removing people based on false reports with no follow-up to see if the reports are real. Kelly did not respond.

In another incident, Facebook blocked the administrators of one page based on posts that were forged. The forgeries were reported to the FBI and Facebook was notified, but took no action to mitigate the punishments. An administrator of a pro-Sarah Palin page told Examiner that Facebook locks her out as many as 10 to 12 times per day. This, she added, started about three days ago.

This isn't the first time Facebook has gone "ban-happy." As we have reported in the past, users have been slapped for saying "thank you" and clicking "like," even though a court ruled that doing so is Constitutionally-protected free speech.

While Facebook called Carol's lilac tree "pornography," it has said that a page calling for the murder of a Texas Tech cheerleader who hunts big game does not violate its standards. It also shut down James O'Keefe's page for a time after he posted a voter fraud expose.

Facebook has claimed in the past that it supports free speech. The conservatives we have spoken to over the last several years, however, say otherwise.

from the Wall Street Journal, 2015-Jul-17, by John H. McWhorter:

How Dare You Say That! The Evolution of Profanity
From `Odsbodikins' to `belly,' the banned words of our ancestors look as bizarre today as tribal rituals

At street level and in popular culture, Americans are freer with profanity now than ever before—or so it might seem to judge by how often people throw around the “F-bomb” or use a certain S-word of scatological meaning as a synonym for “stuff.” Or consider the millions of fans who adore the cartoon series “South Park,” with its pint-size, raucously foul-mouthed characters.

But things might look different to an expedition of anthropologists visiting from Mars. They might conclude that Americans today are as uptight about profanity as were our 19th-century forbears in ascots and petticoats. It's just that what we think of as “bad” words is different. To us, our ancestors' word taboos look as bizarre as tribal rituals. But the real question is: How different from them, for better or worse, are we?

In medieval English, at a time when wars were fought in disputes over religious doctrine and authority, the chief category of profanity was, at first, invoking—that is, swearing to—the name of God, Jesus or other religious figures in heated moments, along the lines of “By God!” Even now, we describe profanity as “swearing” or as muttering “oaths.”

It might seem like a kind of obsessive piety to us now, but the culture of that day was largely oral, and swearing—making a sincere oral testament—was a key gesture of commitment. To swear by or to God lightly was considered sinful, which is the origin of the expression to take the Lord's name in vain (translated from Biblical Hebrew for “emptily”).

The need to avoid such transgressions produced various euphemisms, many of them familiar today, such as “by Jove,” “by George,” “gosh,” “golly” and “Odsbodikins,” which started as “God's body.” “Zounds!” was a twee shortening of “By his wounds,” as in those of Jesus. A time traveler to the 17th century would encounter variations on that theme such as “Zlids!” and “Znails!”, referring to “his” eyelids and nails.

In the 19th century, “Drat!” was a way to say “God rot.” Around the same time, darn started when people avoided saying “Eternal damnation!” by saying “Tarnation!”, which, because of the D-word hovering around, was easy to recast as “Darnation!”, from which “darn!” was a short step.

By the late 18th century, sex, excretion and the parts associated with same had come to be treated as equally profane as “swearing” in the religious sense. Such matters had always been considered bawdy topics, of course, but the space for ordinary words referring to them had been shrinking for centuries already.

Chaucer had available to him a thoroughly inoffensive word referring to the sex act, swive. An anatomy book in the 1400s could casually refer to a part of the female anatomy with what we today call the C-word. But over time, referring to these things in common conversation came to be regarded with a kind of pearl-clutching horror.

By the 1500s, as English began taking its place alongside Latin as a world language with a copious high literature, a fashion arose for using fancy Latinate terms in place of native English ones for more private matters. Thus was born a slightly antiseptic vocabulary, with words like copulate and penis. Even today modern English has no terms for such things that are neither clinical nor vulgar, along the lines of arm or foot or whistle.

The burgeoning bourgeois culture of the late 1700s, both in Great Britain and America, was especially alarmist about the “down there” aspect of things. In growing cities with stark social stratification, a new gentry developed a new linguistic self-consciousness—more English grammars were published between 1750 and 1800 than had ever appeared before that time.

In speaking of cooked fowl, “white” and “dark” meat originated as terms to avoid mention of breasts and limbs. What one does in a restroom, another euphemism of this era, is only laboriously classified as repose. Bosom and seat (for the backside) originated from the same impulse.

Passages in books of the era can be opaque to us now without an understanding of how particular people had gotten: In Dickens's “Oliver Twist,” Giles the butler begins, “I got softly out of bed; drew on a pair of…” only to be interrupted with “Ladies present…” after which he dutifully says “…of shoes, sir.” He wanted to say trousers, but because of where pants sit on the body, well…

Or, from the gargantuan Oxford English Dictionary, published in 1884 and copious enough to take up a shelf and bend it, you would never have known in the original edition that the F-word or the C-word existed.

Such moments extend well into the early 20th century. In a number called “Shuffle Off to Buffalo” in the 1932 Broadway musical “42nd Street,” Ginger Rogers sings “He did right by little Nelly / with a shotgun at his bell-” and then interjects “tummy” instead. “Belly” was considered a rude part of the body to refer to; tummy was OK because of its association with children.

Obviously, it was people of a certain class who most avoided profanity in these times. Novelist Frances Trollope was appalled at the amount of cursing she heard among working people when she toured America in the 1820s. At the turn of the 20th century, a slang dictionary notes that the F-word was already in widespread use, although we hardly know it from anything anyone put in writing at the time. In the early 20th century, a cigar-chomping man-of-the-people sort like journalist H.L. Mencken freely used the term euphemized as SOB among friends, despite never venturing it in his newspaper columns.

Still, a sense reigned that one kept the “bad words” out of polite society. The same year that Ginger Rogers was substituting tummy for belly on Broadway, Cole Porter put the SOB term into a song lyric sung by a woman in “Gay Divorce”—but with the joke that when the singer uttered the final word in the expression, a drum smack from the pit drowned her out. Certain proprieties were assumed in public settings.

We may congratulate ourselves for being beyond such uptightness. When hit television shows like “The Sopranos,” “Girls” and “Louie” would attract criticism for not having their characters regularly use the classic four-letter words, those words are no longer truly profane. They qualify more as salty. That Martian anthropologist would hardly recognize them as “bad words,” as opposed to ones we avoid using in certain public spaces, such as school and work (to an extent).

But we heartily erupt with those same words the second we escape those settings, and young people drink them in avidly in music and social media.

In other respects, we're actually quite a bit like our ancestors. We are hardly beyond taboos; we just observe different ones. Today, what we regard as truly profane isn't religion or sex but the slandering of groups, especially groups that have historically suffered discrimination or worse. Our profanity consists of the N-word, that C-word once suitable for an anatomy book discussion of women's bodies, and a word beginning with f referring to gay men (and some would include a word referring to women beginning with b).

It might seem strained to compare our feelings about the N-word with a bygone era's appalled shuddering over the utterance of “By God!” But do note that I have to euphemize the N-word here in print just as someone would have once have felt compelled to say, “By Jove!”

As late as the early 1960s, an episode of “The Dick Van Dyke Show” had middle-class Everycouple Rob and Laura Petrie horrified that their son had uttered what the context suggests was the F-word. The Petries were portrayed as rather “hip” for their era, but Rob actually refers to the word as “evil.”

Today, it is the N-word that such a couple would smack down with precisely this indignation. The response is the same; only the issues of concern have changed.

Use of the N-word turned the previously beloved comedian Michael Richards into a persona non grata in 2006, led to the end of Laura Schlessinger's syndicated radio show in 2010 and put football player Richie Incognito on the defensive for months in 2013.

Society tiptoes around a stipulation, as fragile as it is formal, that black people can use it but white people can't. A recent book by Jabari Asim is wholly devoted to outlining the justification and parameters of this arrangement, “The N-Word, Who Can Say It and Why.”

Anthropologists call this sort of response the policing of a taboo, much as we might associate that label exclusively with distant lands. Taboos are about what we fear. In one era, it is the wrath of God; in another, hanky-panky; in ours, the defamation of groups.

We may feel that the taboo against discrimination is a moral advance. Indeed, we can celebrate that we are blissfully past the days when, in 1934, an aide to young Nelson Rockefeller would write of a new secretary, “She weighs close to 200, has red hair, and is a niggir [sic],” as Richard Norton Smith recounts in his recent biography.

History does bring progress, as it also has in how we refer to homosexuality. After his lyricist partner Lorenz Hart—who was given to drinking binges—died in 1943, the composer Richard Rodgers grumbled that he had enjoyed writing his latest score by himself, without having to “search all over the globe for that little fag.” A man of Rodgers's place would be unlikely to say that to the star of his latest show today, and the dismissive expression “that's so gay” is increasingly on the ropes among anyone with even pretensions of enlightenment.

But we are just as capable as previous eras of policing our taboos with unquestioning excess. An administrator in Washington, D.C.'s Office of the Public Advocate had to resign in 1999 for using the word niggardly in a staff meeting. At the University of Virginia, there was a campus protest in 2003 after a medical school staffer said that a sports team called the Redskins “was as derogatory to Indians as having a team called n— would be to blacks.” Julian Bond, who was then the head of the NAACP, said that only his respect for free speech kept him from recommending that she be fired. In 2014, the lawyer and writer Wendy Kaminer elicited aggrieved comments for saying, during a panel discussion at Smith College, that when we use euphemisms for the N-word we all “hear the word n— in our head.”

The basic idea that slurring groups is intolerable and unenlightened is welcome and urgent. But we fail to make important distinctions when we reflexively insist that it is a moral abomination even to refer to such words. And usages change.

Many black men use the N-word to mean, basically, “buddy.” As black speech, music, greetings and even demeanor become an increasingly large component of the cultural default setting of young Americans of all colors, we will continue to see nonblacks casually calling each other the N-word in emulation. We should check the impulse to compare such usage to the venom of Bull Connor.

Some might object that we should not check that impulse, and that extremism is necessary to create lasting social change. But it's useful to recall that, when it comes to profanity, there were once people who considered themselves every bit as enlightened as we see ourselves today, with the same ardent and appalled sense of moral urgency. They were people who said “Odsbodikins” and did everything they could to avoid talking about their pants.

Dr. McWhorter teaches linguistics, American studies, philosophy and music at Columbia University. His latest book is “The Language Hoax” (Oxford University Press).

from the Wall Street Journal, 2015-Jun-29, by William McGurn:

Justice Kennedy's Bitter Truth
The same-sex marriage ruling will unleash the legal furies against those who disagree with it.

In the heady days since Anthony Kennedy unearthed a constitutional right for Americans “to define and express their identity,” the extravagance of the Supreme Court's claim has taken some by surprise. It shouldn't have. In finding for same-sex marriage the way he did, Justice Kennedy made official what he made inevitable a quarter-century back.

That was in 1992. The occasion was a Supreme Court decision on abortion into which Mr. Kennedy inserted a new definition of liberty. Where Thomas Jefferson had grounded human liberty in self-evident truth, Mr. Kennedy holds that the mere self suffices.

“At the heart of liberty,” he wrote, “is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life.”

Now he has followed through. In Obergefell v. Hodges, the court substitutes for the laws passed by the people acting through their state legislatures a new constitutional right to “dignity” based on the court's “better informed understanding.”

Back when poor Harry Blackmun in Roe v. Wade established a right to privacy that likewise appears nowhere in the Constitution, he wrote under the conceit that his decision would resolve the issue once and for all. Instead, his 1973 ruling launched the culture wars.

Obergefell is Roe on steroids. Roe legalized a market for abortion for those who wanted them and those who provided them. It was qualified by conscience protections plus riders attached to federal legislation greatly limiting the use of taxpayer dollars to underwrite the practice. So Roe didn't demand much of those on the other side—or on the sidelines.

Obergefell is another thing altogether. In one of the great flimflams of American life, it is a prescription for endless litigation smuggled in under libertarian clothing. This began with the opening question put to all those who held the classic view of marriage: What can it possibly matter to you, they were asked, if two men or two women who love each other call their relationship marriage?

We learned that it matters a great deal.

It matters to Brendan Eich, who was forced to resign last year as CEO of the company he co-founded after it became public that he had donated $1,000 to Proposition 8, the successful California ballot measure banning same-sex marriage.

It matters to Chick-fil-A, which in 2012 saw the mayors of Chicago and Boston declare the restaurant chain had no place in their cities because its chief executive held the same view of marriage that Barack Obama held until very recently.

It matters to Catholic Charities, which in several states has been forced out of the adoption business either because the charity does not offer same-sex spousal benefits or declines to place children for adoption with same-sex couples.

It matters for cake bakers, photographers, florists, jewelers and pizza-parlor owners who happily serve gay customers but draw the line at assisting gay weddings.

Finally, it matters to all religious schools and religious institutions. Give the Obama administration its due: The president's solicitor general admitted during the Obergefell oral argument that a victory for same-sex marriage would put the tax-exempt status of such institutions on the chopping block.

The reason for all this is that the right for men to marry men or women to marry women is only half of the equation—and not even the most important half at that.

The other half involves antidiscrimination statutes and regulations, not to mention the discretion of federal, state and even private bureaucracies regarding everything from funding and accreditation to tax exemption.

In short, there is nothing live-and-let-live about the way this movement has operated the past few years, and to pretend otherwise requires a willful blindness. Now, with Obergefell, the full furies have been released.

As Justice Samuel Alito suggested in his dissent, thousands of Americans who never dreamed that the issue would affect them will soon get highly personal lessons in how the legalization of same-sex marriage by judicial fiat threatens their schools, their institutions and even their livelihoods. This is not your father's culture war.

A century ago, another Supreme Court justice famously wrote that the Constitution “is made for people of fundamentally differing views.” How far we have traveled since.

Those seeking to crush all dissent from the new judicial orthodoxy on marriage will not always win, not least because the right to the free exercise of religion—in bald contrast to Mr. Kennedy's right to dignity—is in fact in the Constitution. Still, however individual cases may turn out, by foreclosing the option for democratic debate and compromise the Supreme Court has ensured a bitter national harvest.

Welcome to Justice Kennedy's world. Where upholding the Kennedy definition of liberty—the right to define your own truth—turns out to mean denying that same right to millions of Americans who define marriage and truth in a way different from his.

from the Wall Street Journal Best of the Web, 2015-Jun-29, by James Taranto:

`Progress' Needs Enemies
The ungracious victory of same-sex marriage.

It didn't take long for the backlash to emerge after the Supreme Court handed down Obergefell v. Hodges. From opponents of same-sex marriage one heard the usual empty talk about constitutional amendments and civil disobedience. The fiercer—and uglier—backlash came from the victors.

A case in point is the Patriot-News. The Harrisburg, Pa., paper rushed out an editorial that began celebratorily enough: “June 26 just became a de facto national holiday for gay Americans. . . . [Justice Anthony] Kennedy nailed it: There are no rights more fundamental than due process and equal treatment under the law.”

Not even free speech? Definitely not, according to the Patriot-News, which in the same editorial announced this new policy: “As a result of Friday's ruling, PennLive/The Patriot-News will no longer accept, nor will it print, op-Eds and letters to the editor in opposition to same-sex marriage.”

That quote comes from the Daily Caller's Betsy Rothstein, who reports that “after receiving strong pushback,” the paper softened its policy a tiny bit. The editorial now reads:

As a result of Friday's ruling, PennLive/The Patriot-News will very strictly limit op-Eds and letters to the editor in opposition to same-sex marriage.
These unions are now the law of the land. And we will not publish such letters and op-Eds any more than we would publish those that are racist, sexist or anti-Semitic.
We will, however, for a limited time, accept letters and op-Eds on the high court's decision and its legal merits.

Of course Advance Publications Inc., which owns the Patriot-News, has a perfect right under the Constitution to make its own editorial decisions. The announcement, however, is both strange and gratuitous.

It's strange because the Patriot-News's intolerant new policy actually is at odds with the ruling to whose authority the paper claims to bow. “It must be emphasized,” Justice Kennedy wrote, “that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned. . . . The same is true of those who oppose same-sex marriage for other reasons.”

It's gratuitous because ordinary editorial practices would have yielded the same result. Now that the question is settled as a matter of law, letters and op-eds arguing the policy merits can be rejected as untimely. The same will be true “after a limited time” about those dealing with the legal merits.

In an email to the Caller's Rothstein, Patriot-News editorial page editor John Micek attempted a further explanation:

No reasonable person would publish anti-Semitic speech, racist speech or sexist speech. It seems entirely reasonable to me to specifically add homophobic speech to that list.
While that sort of speech has long been banned under our community guidelines for commenting, the Opinion page had never explicitly stated such a policy. . . .
We will not accept letters/op-Eds that use the Court's ruling as a pretext to engage in hate speech.

To his credit, Micek acknowledges in his email that “hate speech” is “constitutionally permissible”—i.e., protected. So—let us repeat—is a private corporation's right not to publish such speech. But even the revised editorial does not distinguish “hate speech” from other speech “in opposition to same-sex marriage.” The latter category is entirely a subset of the former, in the editorial view of the Harrisburg Patriot-News: If you oppose same-sex marriage, you are by definition a hateful person.

That's not even the most extreme such reaction. Dylan Byers, who covers media for Politico, noticed on Friday “three news organizations—BuzzFeed, Huffington Post [sic] and Mashable—changed their Twitter avatars to feature the rainbow flag,” a gay-pride symbol:

The decision to endorse a legal ruling that is opposed by many conservatives—including the vast majority of Republican presidential candidates—signals how comfortable some news outlets have become with backing certain political causes, and highlights a divide among media organizations not always accounted for in the familiar dichotomies of old vs. new, right vs. left, etc.

As Byers notes, there are other “digital-first organizations,” like Bloomberg News and Politico itself, which it would be “difficult to imagine” taking sides in a controversy in the manner of BuzzFeed et al.

There's a fairly obvious explanation: The latter category of online “news organizations” are more like opinion magazines than old-fashioned (purportedly) objective newspapers. Even before the Web no one was surprised when the New Republic or National Review espoused a point of view.

That, however, is not the answer Byers got from one editor:

For Ben Smith, the editor-in-chief of BuzzFeed, same-sex marriage is an issue which does not have sides. On Friday, he told the On Media blog that BuzzFeed's Twitter avatar was in keeping with its standards guide: “We firmly believe that for a number of issues, including civil rights, women's rights, anti-racism, and LGBT equality, there are not two sides.”

That belief is obviously absurd. According to a Friday BuzzFeed news story, “The U.S. Supreme Court ruled in a 5-4 decision that states cannot ban same-sex marriage.” If there aren't two sides, that should have read “a 5-0 decision.” But actually, even the zero implies another side. How about “a 5 decision”? But how could there have been a decision without an alternative to decide against? The sentence should have read: “The U.S. Supreme Court ruled in a 5 that states cannot ban same-sex marriage.”

Aside from being logically incoherent, Smith's denial that another side of the question even exists demonstrates a lack of filial piety. In Hernandez v. Robles (2006), New York's highest court considered the question and reached the opposite conclusion: “We hold that the New York Constitution does not compel recognition of marriages between members of the same sex. Whether such marriages should be recognized is a question to be addressed by the Legislature.”

The author of that decision, Judge Robert S. Smith, is Ben Smith's father. (The New York Legislature legalized same-sex marriage in 2011, and Bob Smith left the bench when his term ended in 2014.)

We're having some fun here; obviously Smith wasn't speaking literally and meant simply that he and his colleagues consider the other side to be beneath contempt. But then there is this, from a blog post by Andrew Rosenthal, editorial page editor of the New York Times:

Gov. Bobby Jindal of Louisiana said: “This decision will pave the way for an all out assault against the religious freedom rights of Christians who disagree with this decision. This ruling must not be used as pretext by Washington to erode our right to religious liberty. The government should not force those who have sincerely held religious beliefs about marriage to participate in these ceremonies.”
All of that, of course, is ridiculous. No one has ever attempted, or will attempt, to force anyone to participate in any same-sex marriage ceremony.

That last statement is a flat-out factual falsehood, and Rosenthal surely knows it. There have been several widely publicized cases in which state and local government agencies have attempted to coerce small-business proprietors with conscientious objections to participate in same-sex ceremonies (not all of which, ironically, the states in question recognized as marriages at the time).

In an editorial Saturday, the Times comes close to acknowledging the untruth of Rosenthal's claim: “The dwindling number of Americans who oppose same-sex marriage have shifted tactics to rely on so-called religious-freedom laws, which they say allow them to, among other things, decline to provide business services for same-sex weddings.”

The American Civil Liberties Union chose this moment to announce—in a Friday Washington Post op-ed by deputy legal director Louise Melling—that it no longer favors religious freedom:

The ACLU supported the RFRA's passage at the time because it didn't believe the Constitution, as newly interpreted by the Supreme Court, would protect people such as Iknoor Singh, whose religious expression does not harm anyone else. But we can no longer support the law in its current form.

The Obergefell decision left many religious people worried that, as headline of a Rod Dreher column at chillingly puts it, “Orthodox Christians Must Now Learn to Live as Exiles in Our Own Country.” Leading progressives, in contrast with Justice Kennedy, are not even offering weak reassurances that Dreher is overreacting. To the contrary, they are doing their best to make clear their determination to crush all dissent.

It seems to us that the headline's conclusion is premature. Dreher agrees; his essay begins: “No, the sky is not falling—not yet, anyway.” It is quite possible that public opinion, which has moved quickly in support of same-sex marriage, will recoil at efforts to bully conscientious objectors, whose numbers, as the Times notes, are “dwindling” anyway.

But why can't progressives be gracious in victory? Why, having won the war, do they so greedily anticipate the next battle? We can think of psychological and political explanations but would like to offer a philosophical one.

A common refrain among supporters of same-sex marriage has been that they are on “the right side of history.” In other contexts as well, that's been a common refrain of President Obama, America's leading progressive politician. As Jonah Goldberg noted in a 2014 column, such rhetoric serves multiple functions: In foreign policy—as when Obama declared ISIS to be “on the wrong side of history” last summer, it's “a sign of weakness” (we'd say an excuse for inaction). “On social issues like, say, gay marriage, it amounts to a kind of impatient bullying that you can afford when time is on your side; `Your defeat is inevitable, so let's hurry it up.' ”

Goldberg summarizes the intellectual history of this idea of “progress”:

The idea that history moves in a predetermined, inexorable path amounts to a kind of Hallmark-card Hegelianism. Marx, who ripped off a lot of his shtick from the philosopher Hegel, popularized the idea that opposition to the inevitability of socialism was anti-intellectual and anti-scientific. The progression of history is scientifically knowable, quoth the Marxists, and so we need not listen to those who object to our program. Later, Lenin, Stalin, Mao and others would use this reasoning to justify murdering millions of inconvenient people. It was a “God is on our side” argument, minus God.
In fairness, I doubt Barack Obama and John Kerry have Marx or Hegel on the brain when they prattle on about the right and wrong sides of history. They more properly belong in what some call the “Whig school” of history, coined in 1931 by historian Herbert Butterfield. The Whiggish tendency in history says that the world progresses toward the inevitable victory of liberal democracy and social enlightenment.

The rapid social acceptance of same-sex marriage—an almost unheard-of idea 30 years ago, a fringe one 20 years ago, a controversial one 10 years ago, a fait accompli now—fits the theory perfectly.

But when “history” triumphs, as it did (according to the theory) last Friday, it does not thereby come to an end. It continues to move, and the only way it can move is foward. In order to remain on the right side of history, the progressive needs to define others as being on the wrong side. Thus “progress” will always find an enemy to oppose.

from the Daily Signal, 2015-Jul-2, by Kelsey Harkness:

State Silences Bakers Who Refused to Make Cake for Lesbian Couple, Fines Them $135K

Oregon Labor Commissioner Brad Avakian finalized a preliminary ruling today ordering Aaron and Melissa Klein, the bakers who refused to make a cake for a same-sex wedding, to pay $135,000 in emotional damages to the couple they denied service.

“This case is not about a wedding cake or a marriage,” Avakian wrote. “It is about a business's refusal to serve someone because of their sexual orientation. Under Oregon law, that is illegal.”

In the ruling, Avakian placed an effective gag order on the Kleins, ordering them to “cease and desist” from speaking publicly about not wanting to bake cakes for same-sex weddings based on their Christian beliefs.

“This effectively strips us of all our First Amendment rights,” the Kleins, owners of Sweet Cakes by Melissa, which has since closed, wrote on their Facebook page. “According to the state of Oregon we neither have freedom of religion or freedom of speech.”

The cease and desist came about after Aaron and Melissa Klein participated in an interview with Family Research Council's Tony Perkins. During the interview, Aaron said among other things, “This fight is not over. We will continue to stand strong.”

Lawyers for plaintiffs, Rachel and Laurel Bowman-Cryer, argued that in making this statement, the Kleins violated an Oregon law banning people from acting on behalf of a place of public accommodation (in this case, the place would be the Kleins' former bakery) to communicate anything to the effect that the place of public accommodation would discriminate.

Administrative Law Judge Alan McCullough, who is employed by the Oregon Bureau of Labor and Industries and was appointed by Avakian, threw out the argument in the “proposed order” he issued back in April.

But today, Avakian, who was in charge of making the final ruling in the case—and is also an elected politician—reversed that decision.

“The Commissioner of the Bureau of Labor and Industries hereby orders [Aaron and Melissa Klein] to cease and desist from publishing, circulating, issuing or displaying, or causing to be published … any communication to the effect that any of the accommodations … will be refused, withheld from or denied to, or that any discrimination be made against, any person on account of their sexual orientation,” Avakian wrote.

The Kleins' lawyer, Anna Harmon, was shocked by the provision.

“Brad Avakian has been outspoken throughout this case about his intent to `rehabilitate' those whose beliefs do not conform to the state's ideas,” she told The Daily Signal. “Now he has ruled that the Kleins' simple statement of personal resolve to be true to their faith is unlawful. This is a brazen attack on every American's right to freely speak and imposes government orthodoxy on those who do not agree with government sanctioned ideas.”

Hans von Spakovsky, a senior legal fellow at The Heritage Foundation, called the order “outrageous” and said citizens of Oregon should be “ashamed.”

“This order is an outrageous abuse of the rights of the Kleins to freely practice their religion under the First Amendment,” he said.

It is exactly this kind of oppressive persecution by government officials that led the pilgrims to America. And Commissioner Avakian's order that the Kleins stop speaking about this case is even more outrageous—and also a fundamental violation of their right to free speech under the First Amendment.

Avakian would have fit right in as a bureaucrat in the Soviet Union or Red China. Oregon should be ashamed that such an unprincipled, scurrilous individual is a government official in the state.

The case began in February 2013 when Rachel and Laurel Bowman-Cryer filed a complaint against the Kleins for refusing to bake them a wedding cake.

At the time of the refusal, same-sex marriage had not yet been legalized in Oregon.

The Bowman-Cryers' complaint went to the Oregon Bureau of Labor and Industries, which is in charge of defending the law that prohibits businesses from refusing service to customers based on their sexual orientation, among other characteristics, called the Equality Act of 2007.

In January 2014, the agency found the Kleins unlawfully discriminated against the couple because of their sexual orientation. In April, McCullough recommended they pay $75,000 to Rachel and $60,000 to Laurel.

In order to reach the total amount, $135,000, Rachel and Laurel submitted a long list of alleged physical, emotional and mental damages they claim to have experienced as a result of the Kleins' unlawful conduct.

Examples of symptoms included “acute loss of confidence,” “doubt,” “excessive sleep,” “felt mentally raped, dirty and shameful,” “high blood pressure,” “impaired digestion,” “loss of appetite,” “migraine headaches,” “pale and sick at home after work,” “resumption of smoking habit,” “shock,” “stunned,” “surprise,” “uncertainty,” “weight gain” and “worry.”

In their Facebook post, the Kleins signaled their intention to appeal Avakian's ruling, writing, “We will not give up this fight and we will not be silenced,” already perhaps putting themselves at risk of violating the cease and desist.

from the Wall Street Journal, 2015-Aug-13, by Jacob Gershman:

Civil Litigation
Christian Baker Can't Turn Down Gay Couple, Colorado Court Rules

A state appeals court in Colorado ruled on Thursday that a Christian baker outside of Denver can be fined for refusing to design a cake for a same-sex wedding.

The Colorado Court of Appeals rejected the argument by lawyers for the cake shop owner who argued that forcing him to create and sell a cake to a gay couple planning a wedding celebration violated his First Amendment rights.

Coming in the wake of the Supreme Court's landmark ruling for gay marriage, the decision is the latest to limit the rights of religious business owners involved in wedding services to turn away same-sex couples.

The dispute started in 2012 when Charlie Craig and David Mullins visited Masterpiece Cakeshop in Lakewood and requested a cake to celebrate their planned wedding. The couple had plans to marry in Massachusetts but wanted to celebrate with their friends in Colorado, which at the time did not permit same-sex marriages, according to the opinion.

Masterpiece owner Jack Phillips declined the couple's request, telling them he doesn't create wedding cakes for same-sex weddings because of his religious beliefs, according to the opinion, which said he advised the two men that he would be happy to sell them other baked goods.

“Phillips believes that decorating cakes is a form of art, that he can honor God through his artistic talents, and that he would displease God by creating cakes for same-sex marriages,” the opinion said.

The couple then filed a complaint with the Colorado Civil Rights Commission, alleging discrimination based on sexual orientation under the Colorado Anti-Discrimination Act. After a commission judge ruled for the couple — a decision affirmed by the commission itself — Mr. Phillips took his case to the appellate court.

The court rejected the baker's argument that his refusal to create the cake was because of his opposition to same-sex marriage, not because of his opposition to the customers' sexual orientation.

Judge Daniel M. Taubman, author of the opinion, said “such distinctions are generally inappropriate,” citing this year's U.S. Supreme Court opinion that declared gay marriage to be a constitutional right nationwide.

“We conclude that the act of same-sex marriage is closely correlated to Craig's and Mullins' sexual orientation, and therefore, the [administrative law judge] did not err when he found that Masterpiece's refusal to create a wedding cake for Craig and Mullins was `because of' their sexual orientation, in violation of CADA,” wrote Judge Taubman, who said Mr. Phillips is free to post a disclaimer online or in his store indicating that his services don't constitute an endorsement of gay marriage.

“This is an important decision for civil rights in Colorado and for the country,” Denver attorney Paula Greisen, who represented the couple, told Law Blog.

An attorney with Alliance Defending Freedom, which represented Masterpiece, said they're considering their legal options. “The court is wrong to deny Jack his fundamental freedoms,” said ADF senior legal counsel Jeremy Tedesco in a statement.

Gay couples have won similar cases in other states. In 2013, the highest court in New Mexico ruled that the owners of an Albuquerque wedding photography company may not deny services to same-sex couples.

Earlier this summer, the Oregon labor commissioner ordered the owners of “Sweetcakes by Melissa” bakery to pay a lesbian couple $135,000 in damages “for emotional and mental suffering resulting from” its refusal to bake them a wedding cake.

Ms. Griesen in Denver said another baker in the area who heard about the case donated a cake to Messrs. Craig and Mullins.

from the Wall Street Journal, 2015-May-13, by Bjorn Lomborg:

The Honor of Being Mugged by Climate Censors
I believe in global warming but also in responsible policies to address it. That can get you in trouble.

Opponents of free debate are celebrating. Last week, under pressure from some climate-change activists, the University of Western Australia canceled its contract to host a planned research center, Australia Consensus, intended to apply economic cost-benefit analysis to development projects—giving policy makers a tool to ensure their aid budgets are spent wisely.

The new center in Perth was to be a collaboration with a think tank I run, Copenhagen Consensus, which for a decade has conducted similar research. Working with more than 100 economists, including seven Nobel laureates, we have produced research that measures the social and economic benefits of a wide range of policies, such as fighting malaria, reducing malnutrition, cutting air pollution, improving education and tackling climate change.

Therein lay the problem. This kind of comparison can upset those who are committed to advocating less effective investments, particularly poor responses to climate change.

Copenhagen Consensus research shows that policy makers considering climate change have practical solutions. Cutting fossil-fuel subsidies is a great idea. Each year $550 billion is wasted, mostly by developing nations, on subsidies that mainly help the rich. A dramatic increase in spending on green-energy R&D is needed, as innovation will drive down the price of green energy to the point that it can outcompete fossil fuels. A well-crafted carbon tax would help too.

But our analyses also show that Kyoto-style approaches—poorly designed EU climate policies, or the pledge to hold warming to two degrees Celsius—are costly and ineffective. There are much better ways we could spend money to help the planet.

That conclusion draws the ire of some climate-change activists. When the collaboration between Copenhagen Consensus and the University of Western Australia was announced, the Australian Climate Council, led by paleontologist Tim Flannery, called it “an insult to the scientific community.” Making up facts, the Climate Council warned supporters that I think “we shouldn't take any steps to mitigate climate change.” This set the tone for the ensuing attacks.

A Sydney Morning Herald columnist wrote that I had produced “anti climate change” work: a documentary, called “Cool It,” exploring the smartest solutions to climate change. In this columnist's topsy-turvy world, one need never even question the science of global warming to be “anti climate change.”

Under pressure, the university canceled its contract with the Australian government to host the new research center. The UWA's vice chancellor said he believed the center would have delivered “robust, evidence-based knowledge and advice” but that “the scale of the strong and passionate emotional reaction was one that the university did not predict.”

A small but loud group of opponents deliberately ignored the Copenhagen Consensus's endorsement of smart climate policies. They also ignored that most of our research has nothing to do with climate. The bulk of our papers focus on health, education, nutrition and the many other areas where relatively small investments can help millions.

Philanthropists, donors and policy makers must prioritize development goals. What Copenhagen Consensus does is ensure that such parties understand the price tags and potential outcomes for each option.

This work has shown that some aid projects do phenomenally well: For instance, providing contraception to the 215 million women across the globe who lack access to it would reduce maternal mortality and boost growth, producing $120 in social benefits for each dollar spent.

Other policies have lower multipliers. Getting sanitation to the poorest half of the world, for example, would produce only $3 of benefits for each dollar spent. This is worthy, but for a government with a limited development budget, it probably isn't the first place to spend money.

We should focus resources where they will do the most good—not where they will make us feel the most good. The United Nations is setting 169 global development targets for the next 15 years. These are laudable aims, but together they're a laundry list: reduce arms trafficking; finance sustainable forest management; achieve universal access to drinking water; halve deaths and injuries from traffic accidents; increase market access for “small-scale artisanal fishers.”

Studies by Copenhagen Consensus show that if the U.N. focused on only 19 of the most efficient projects, each dollar of development spending would do four times more good.

There is a strong sense among some climate-change activists, however, that global warming should not be subject to such comparison. Thus it is easier for them to use emotional labels like “climate denier” than to acknowledge our entire volume of research on aid, development, environmental and health spending, simply because in one specific area, current climate policy, some findings don't line up with their unyielding views.

“Australia's culture of open debate is increasingly sick,” Tim Wilson, Australia's human rights commissioner, wrote Monday. “Outrage, confected or otherwise, is a popular tool to condemn your opponents because it avoids the need to actually debate ideas.”

An 88-year-old UWA fellow said he had never seen anything like this at the university. “People have been rejected on account of insufficient abilities but not because they do not have the right type of view,” Prof. Hank Greenway told the Australian.

What is the lesson for young academics? Avoid producing research that could produce politically difficult answers. Steer clear of results that others might find contentious. Consider where your study could take you, and don't go there if it means upsetting the status quo.

The Australian government remains committed to Australia Consensus, and I am still enthusiastic about working with academics to build a research center that will be judged on its actual output, improving global efforts on aid and development.

Our research will continue to go where the economic evidence leads, rather than where idealism might make us want to end up. Facts must never, ever be seen as an unwelcome contribution to policy debate.

Mr. Lomborg, director of the Copenhagen Consensus Center, is the author of “The Skeptical Environmentalist” (Cambridge Press, 2001) and “Cool It” (Knopf, 2007).

from the Wall Street Journal, 2015-Aug-3:

Thank You, Super Pacs
Trump agrees with liberals who want to regulate politics.

Republicans are fielding an unprecedented array of presidential candidates, yet the media are full of laments about the political role of rich donors and super Pacs. Sorry, folks, you can't have it both ways. Voters who want more political competition should thank the super Pacs for making more candidates competitive.

Friday's quarterly reports of super Pac contributions produced the usual moaning about the rich and powerful dominating the presidential campaign. Multiple super Pacs raised a total of some $258 million through July 31, with Jeb Bush's Pac collecting $102 million. The difference from previous years is that this time nearly every candidate has a super Pac, and even some of those polling back in the pack have raised notable sums. Ted Cruz's super Pacs took in nearly $38 million, while one backing Scott Walker raised $20 million.

The point to keep in mind is that these contributions are political speech protected under the First Amendment. Donations to a candidate are one important measure of support, and the ability to raise money is a sign of political organization. A candidate who trails badly in fund-raising in the primaries is also likely to be less competitive during the general election.

Campaign laws limit donations to individual campaigns to $2,700, which gives an advantage to well-known or wealthy candidates. Super Pac donations can be unlimited and so they give lesser-known candidates like neurosurgeon Ben Carson or Ohio Governor John Kasich a fighting chance.

Donald Trump is taunting those who attended the Koch brothers' retreat for donors this weekend by suggesting that his competitors are “puppets.” What he really means is that he'd prefer if they raised less money so he can have the advantage. As Mr. Trump likes to say, it's good to be rich. But why shouldn't a middle-class politician like Mr. Walker have a chance to raise enough money to compete with a billionaire?

Another myth is that these big donors so dominate the political debate that they drown out the voice of unrich Americans. But the candidates still have to persuade voters, and there is no shortage of media voices. Mr. Bush's super Pac haul hasn't spared him from being pounded by the anti-immigrant right. Super Pacs make it more likely that more candidates will be able to last beyond the three early contests in Iowa, New Hampshire and South Carolina and into the more populous states. This also broadens political competition.

The other complaint, especially on the political left, is that much of this cash is “dark money” because it's secret. But nearly all such donations are disclosed, including those to super Pacs. The liberals who deplore big donations don't mind what our friend David Rivkin calls “dark power,” which is the regulatory discretion of government bureaucrats. This can lead to the secret abuses of power we've seen in Wisconsin and IRS. We'll take our chances with donations freely given than with the arbitrary and partisan rulings of Lois Lerner at the IRS or Ann Ravel at the Federal Election Commission.

In a better world Americans could donate as much as they want to any candidate, not merely to super Pacs. This would make it easier to hold candidates responsible for advertising done on their behalf. But until that day arrives, thank the super Pacs and their donors for increasing political competition.

from the Wall Street Journal, 2015-Jun-19:

The IRS Loses Again
Z Street may soon get to see why the agency sat on its application.

The story of IRS targeting of conservative groups that disagreed with Obama Administration policy isn't over. On Friday the IRS lost another big battle, as the D.C. Circuit Court of Appeals ruled that a viewpoint discrimination lawsuit against the agency can proceed. Next stop, discovery.

The lawsuit began when the Pennsylvania-based pro-Israel group Z Street applied for tax-exempt status in 2009. When Z Street called to inquire about its application, it says an IRS agent said the agency had a policy that required Israel-related applications to get extra scrutiny in a special unit in Washington. Z Street sued in federal court but the IRS claimed the Anti-Injunction Act prevents suits meant to evade the collection of taxes and because the IRS was protected by the doctrine of sovereign immunity. The IRS lost in district court but appealed.

Last month we told you about the oral argument at the D.C. Circuit when appellate judges Merrick Garland, David Tatel and David Sentelle were appalled by the IRS argument. Is the agency's position really that “the IRS is free to discriminate on the basis of viewpoint, religion, race [for 270 days]?” Judge Garland asked, “You don't actually think that?” The court's decision on Friday echoed those sentiments.

The IRS now has seven days to appeal (Z Street v. Koskinen) to the full circuit court. The agency has been using every tool to delay the lawsuit to get through the last days of the Obama Administration. But if this long-shot fails, Z Street may soon be able to begin discovery, and Z Street says it will seek every document and communication within the IRS as well as between the IRS and other parts of the government germane to its lawsuit or to the special policy regarding pro-Israel groups.

We already know from the IRS's Be On the Lookout lists that the agency was flagging groups having to do with “occupied territory advocacy.” Soon we may see what else no good the agency was up to.

from the Wall Street Journal, 2015-Jun-18:

Free Speech for Whom?
The Supreme Court overturns `content' speech regulation.

Clarence Thomas isn't often the Supreme Court's swing Justice, but he was on Thursday as the Court ruled on two cases that illuminate when the government can restrict speech. His answer is that the government has more power to do so when the speech belongs to the government.

The High Court issued a welcome verdict in Reed v. Town of Gilbert, ruling unanimously that the Arizona town's limits on signs announcing church services violated the First Amendment. Gilbert said that Pastor Clyde Reed's signs directing people to his church could be no larger than six square feet and displayed only 12 hours before and one hour after an event. The town put no such limits on political and ideological signs, and the Court ruled that this amounted to content discrimination against Rev. Reed.

“Innocent motives do not eliminate the danger of censorship presented by a facially content-based statute, as future government officials may one day wield such statutes to suppress disfavored speech,” wrote Justice Thomas, who was joined by the four conservatives and Justice Sonia Sotomayor.

Justices Stephen Breyer and Elena Kagan concurred in the judgment, but they wrote separately to say that such speech regulations should not be subject to “strict” legal scrutiny. “Regulatory programs almost always require content discrimination,” Justice Breyer wrote. “And to hold that such content discrimination triggers strict scrutiny is to write a recipe for judicial management of ordinary government regulatory activity.”

To the contrary, strict scrutiny is a brushback pitch to local governments that regulations restricting speech can't discriminate by content. A more lenient standard would invite more speech regulation, and thus more judicial challenges.

Justice Thomas joined the Court's liberals in the day's other speech case, Walker v. Texas Division, Sons of Confederate Veterans. Texas denied the group its application for a specialty license plate featuring a confederate flag, and the Court ruled 5-4 that this speech restriction passes constitutional muster.

Freedom of speech doesn't apply when the government is the speaker, wrote Justice Breyer for the majority, because Texas license plates “are, essentially, government IDs.”

Y'all must be crazy if you believe anyone thinks the personal messages on license plates are the government's opinion, Justice Samuel Alito wrote in dissent for the four conservatives: “If a car with a plate that says `Rather Be Golfing' passed by at 8:30 am on a Monday morning, would you think: `This is the official policy of the State—better to golf than to work?'”

He added: “What Texas did here was to reject one of the messages that members of a private group wanted to post on some of these little billboards because the State thought that many of its citizens would find the message offensive. That is blatant viewpoint discrimination.”

As harrowing as it is to disagree with such a principled constitutionalist as Justice Thomas, we're with Justice Alito on this one. If Texas wants to object to certain kinds of expression on license plates, it ought to get out of the business of vanity plates and leave the speech to bumper stickers.

from the Wall Street Journal, 2015-Jun-12, by Sam Schechner:

French Privacy Watchdog Orders Google to Expand `Right to Be Forgotten'
Move escalates the fight over the divisive rule

PARIS—France's data-protection regulator ordered Google to expand Europe's new right to be forgotten to the search engine's websites world-wide, escalating a fight over the territorial scope of the divisive new rule amid a broader battle between U.S. tech firms and European authorities.

France's Commission Nationale de l'Informatique et des Libertés, or CNIL, said Friday that it issued a formal order to Google to begin applying right to be forgotten removals it is processing to “all domain names” of the search engine globally, including, not just those that are aimed at Europe, such as

“For delisting to be effective, it must be world-wide,” said Isabelle Falque-Pierrotin, the head of the CNIL. “It is a question of principle. Google must respect the rights of European citizens.”

Google has made clear it believes the takedowns should apply only to its websites in Europe, presaging a new legal battle over the line between privacy and free speech—and the reach of national laws—in the Internet age. “We've been working hard to strike the right balance in implementing the European Court's ruling,” said a Google spokesman. “The ruling focused on services directed to European users, and that is the approach we are taking in complying with it.”

The French order gives Google 15 days to conform, after which the CNIL can open sanctions proceedings that could lead to a fine of up to €150,000 ($168,000). While the fine is small compared with Google's revenue, the company can challenge the order or any resulting sanction in court.

The order ramps up conflict over a new right, established by the European Union's top court a year ago. Google has so far removed nearly 1 million links under the ruling that gives European residents the ability to demand that search engines remove links that appear in searches for an individual's name. But European regulators have assailed the company's approach, arguing the ruling says nothing about applying only to European domain names.

The battle comes amid an unprecedented wave of investigations into U.S. tech giants in Europe, with regulators cracking down on alleged violations ranging from unfair competition to tax avoidance. On Thursday, the EU launched an antitrust inquiry into Inc.'s e-book business. Under pressure from France and Germany, the EU is also considering new regulations aimed at reining in the behavior of big Internet platforms such as Google and Facebook Inc.

When it comes to the right to be forgotten, since last summer, Google executives have repeatedly said that they would move quickly to implement the decision, but would only remove links from the European versions of Google's search engine, such as, or, not from The reason: They say doing so could create the precedent that one region can set global rules for the Internet.

Several European regulators respond that—while they are generally happy with Google's quick cooperation on the right to be forgotten—the company is undermining the decision and Europe's protections of its own citizens by not applying it globally. They say they have jurisdiction because Google offers its global search engine in Europe.

Some data-protection experts and regulators, including a top official at the UK's data-protection authority, have suggested Google could use geolocation to remove links from only for searches conducted within the EU. That would mean results could be removed from when accessed in Paris, but not when viewed from New York.

But such a solution wouldn't be sufficient for the CNIL, Ms. Falque-Pierrotin said.

“This is about Europe's ability to say that if you come here, you must respect our laws,” Ms. Falque-Pierrotin said. “Either they will comply, or there will be legal action and a judge will decide.”

from the Washington Examiner, 2015-Jun-7, by Paul Bedard:

NRA: Gun blogs, videos, web forums threatened by new Obama regulation

Commonly used and unregulated internet discussions and videos about guns and ammo could be closed down under rules proposed by the State Department, amounting to a "gag order on firearm-related speech," the National Rifle Association is warning.

In updating regulations governing international arms sales, State is demanding that anyone who puts technical details about arms and ammo on the web first get the OK from the federal government — or face a fine of up to $1 million and 20 years in jail.

According to the NRA, that would include blogs and web forums discussing technical details of common guns and ammunition, the type of info gun owners and ammo reloaders trade all the time.

"Gunsmiths, manufacturers, reloaders, and do-it-yourselfers could all find themselves muzzled under the rule and unable to distribute or obtain the information they rely on to conduct these activities," said the NRA in a blog posting.

"This latest regulatory assault, published in the June 3 issue of the Federal Register, is as much an affront to the First Amendment as it is to the Second," warned the NRA's lobbying shop. "Your action is urgently needed to ensure that online blogs, videos, and web forums devoted to the technical aspects of firearms and ammunition do not become subject to prior review by State Department bureaucrats before they can be published," it added.

At issue is the internet. State is updating International Traffic in Arms Regulations (ITAR), which implement the federal Arms Export Control Act (AECA). The rules govern everything from guns to strategic bombers.

The NRA said that the rules predate the internet, and now the federal government wants to regulate technical arms discussions on on the internationally available web.

State's proposal is highly technical. It took 14 pages in the Federal Register to explain. But the NRA boiled it down for gun owners with this warning:

"In their current form, the ITAR do not (as a rule) regulate technical data that are in what the regulations call the 'public domain.' Essentially, this means data 'which is published and which is generally accessible or available to the public' through a variety of specified means. These include 'at libraries open to the public or from which the public can obtain documents.' Many have read this provision to include material that is posted on publicly available websites, since most public libraries these days make Internet access available to their patrons.

"The ITAR, however, were originally promulgated in the days before the Internet. Some State Department officials now insist that anything published online in a generally-accessible location has essentially been 'exported,' as it would be accessible to foreign nationals both in the U.S. and overseas.

"With the new proposal published on June 3, the State Department claims to be 'clarifying' the rules concerning 'technical data' posted online or otherwise 'released' into the 'public domain.' To the contrary, however, the proposal would institute a massive new prior restraint on free speech. This is because all such releases would require the 'authorization' of the government before they occurred. The cumbersome and time-consuming process of obtaining such authorizations, moreover, would make online communication about certain technical aspects of firearms and ammunition essentially impossible."

Below are the State changes drawing the NRA fire:

Paragraph (b) of the revised definition explicitly sets forth the Department's requirement of authorization to release information into the ''public domain.'' Prior to making available ''technical data'' or software subject to the ITAR, the U.S. government must approve the release through one of the following: (1) The Department; (2) the Department of Defense's Office of Security Review; (3) a relevant U.S. government contracting authority with authority to allow the ''technical data'' or software to be made available to the public, if one exists; or (4) another U.S. government official with authority to allow the ''technical data'' or software to be made available to the public.

The requirements of paragraph (b) are not new. Rather, they are a more explicit statement of the ITAR's requirement that one must seek and receive a license or other authorization from the Department or other cognizant U.S. government authority to release ITAR controlled ''technical data,'' as defined in § 120.10. A release of ''technical data'' may occur by disseminating ''technical data'' at a public conference or trade show, publishing ''technical data'' in a book or journal article, or posting ''technical data'' to the Internet.

This proposed provision will enhance compliance with the ITAR by clarifying that ''technical data'' may not be made available to the public without authorization. Persons who intend to discuss ''technical data'' at a conference or trade show, or to publish it, must ensure that they obtain the appropriate authorization.

from the Wall Street Journal, 2015-Jun-7:

King Salman and the 1,000 Lashes
A liberal Saudi reformer may not survive his Medieval sentence.

Saudi Arabia's highest court on Sunday upheld a 1,000-lash flogging sentence against the country's leading liberal dissident, Raif Badawi. The blogger and activist will also be jailed for 10 years and fined $266,000. Mr. Badawi has now exhausted the appellate process, and the ruling can't be overturned save for a pardon by King Salman.

Mr. Badawi's alleged crimes include founding the Saudi Liberal Network, an online-only forum promoting reform, individual rights and gender equality in the Kingdom, where women are still barred from driving cars and authorities behead people suspected of practicing witchcraft.

He was convicted last year of “insulting Islam” and committing cybercrimes. Mr. Badawi has already received the first 50 of the 1,000 lashes, and there is a real concern that he won't survive the other 950 when the flogging resumes, perhaps as early as this week.

It is up to King Salman, who ascended the Saudi throne earlier this year, to undo this horrific and unjust sentence. The threats to the House of Saud come from Islamic jihadists who are suicide bombers, either Sunni or Shiite, not from liberals who want a modicum of more personal autonomy.

The King has been praised, rightly, for galvanizing the Sunni Arab states to act against growing Iranian hegemony in the region. But he can ensure a larger legacy if he adds to his foreign policy a domestic-reform agenda. Pardoning Raif Badawi would be a good start.

from the Wall Street Journal Best of the Web, 2015-May-6, by James Taranto:

`The Terrorists Will Have Won'
A post-9/11 fatuity takes on real meaning.

Remember the post-9/11 cliché “If we [do X], the terrorists will have won”? X was some change in antiterror policy or practice that the speaker thought an affront to civil liberties—or, as it was often put, to “our most cherished values.”

The cliché was based on a premise that, in our view, was both fatuous and overblown: The terror threat was (and remains) real, more-vigilant policies were necessary to protect the public, and the purported threats to civil liberties were imaginary. To be sure, on the last point there is room for disagreement. Perhaps the government would have been less sensitive to civil liberties but for the alarmists.

In any case, “the terrorists will have won” was a non sequitur. It made no sense to think that America's enactment of stronger antiterror policies, even misguided ones, was a terrorist objective. The World War II internment of Japanese-Americans really was an overreaction and an affront to “our most cherished values,” but it did not mean Japan won the war.

Today, however, that post-9/11 cliché has real meaning. Some intellectuals are arguing for curtailments of civil liberties that would both fulfill terrorist objectives and damage one of our most cherished values, namely the freedom of speech.

Exhibit A is this Washington Post headline: “Event Organizer Offers No Apology After Thwarted Attack in Texas.” The event is the “Texas cartoon contest attacked by two gunmen late Sunday,” featuring images of Muhammad, the Muslim prophet; and the organizer is Pamela Geller, a truculent critic of Islam. From the story, by Sandhya Somashekhar:

“Pamela Geller has every right to hold this event. And she should be able to do that—as ugly as others, including me, think it is—without facing any type of violence,” said Heidi Beirich of the Southern Poverty Law Center, which has Geller on a list of extremists.
Still, “I think decent people would say: `Why would you need to do that?' ” Beirich said.

Perhaps, but decent people for whom that is an honest query and not a rhetorical one might want to read our Monday column on the subject. What is truly indecent is the headline's suggestion that a violent attack calls for an apology from its target.

Fleshing out that claim is Noah Feldman, a Harvard law professor and Bloomberg View columnist. Feldman, who specializes in constitutional law, knows his subject well enough to acknowledge that the event was constitutionally protected speech. “But it's also easy to be distracted by the First Amendment,” he writes. Uh-oh:

The protected status of free speech says nothing about whether particular speech is morally right or wrong. That status allows me to advocate for child abuse or witch-burning or killing members of a race I don't like. These kinds of speech are morally repugnant, even though they are constitutionally protected.

Feldman goes right for the argumentum ad Hitlerum: “Insulting the Prophet to make a point is a bit like showing Nazi propaganda to prove that Jews can be subject to criticism: effective, but repulsive.”

That is, to say the least, a sloppy analogy. Yes, Nazi propaganda is protected by the First Amendment; see National Socialist Party v. Skokie (1977). But it is of a different order of repugnance. Nazism is not mere “criticism” of Jews; it is an ideology devoted to their extermination. It is repugnant to universal (and secular) moral principles.

“Insulting the Prophet,” by contrast, is repugnant only within the context of Islamic religious law. To be sure, insulting others' religion is ill-mannered, but by secular standards cartoons of Muhammad are no more repugnant than other forms of expression mocking religion, such as the musical “The Book of Mormon,” the photograph “Piss Christ” or the painting “The Holy Virgin Mary.”

Anyway, Feldman's ad Hitlerum turns out to be gratuitous, which is to say it is not central to his argument. His primary claim is that the cartoon exhibition was immoral not because of the offense to innocent Muslims but because of the violence committed by guilty ones: “Geller was trying to provoke a reaction. If the reaction was reasonably likely to be violent, she can't hide behind the notion that she didn't want anyone to get hurt.”

Was it reasonable to anticipate a violent reaction? On that point, Feldman rather hilariously equivocates: “Fairness toward American Muslims would seem to require us to say that the violent reaction wasn't reasonably likely to occur. We'd then have to absolve Geller on a ground she probably wouldn't much like.”

That seems to have been the approach taken by the Department of Homeland Security. PJMedia's Patrick Poole reports:

As online chatter about a Muhammad cartoon contest began to escalate last week, the FBI and Department of Homeland Security (DHS) issued a Joint Intelligence Bulletin last Thursday. The bulletin acknowledged the potential threat, but downplayed the possibility of any violence targeting the event.
The bulletin concluded that while the event could inspire violence abroad by contributing to terrorist messaging, it was “unlikely” that such violence would happen in the United States. . . .
According to those close to the investigation, the real heroes who quickly eliminated the threat on Sunday were the Texas Department of Public Safety, who took the online threats seriously. The threats included inciting tweets from known foreign Islamic State operatives overseas (namely, IS cybercaliphate chief Junaid Hussain), leading [police] to deploy a “massive” presence at the cartoon contest event.

To his credit, Feldman notes parenthetically that “the guard who shot and killed the attackers counts as a hero who saved lives, regardless of Geller's motives.” But by his standard, the federal DHS's complacency about the threat is morally preferable to the Texas DPS's vigilance, because “fairness toward American Muslims would seem to require” the former.

Would it really? Many Catholics took offense when the Brooklyn Museum displayed Chris Ofili's “The Holy Virgin Mary”—featuring elephant dung and cutouts from pornographic magazines—in 1999. As New York's Daily News reported at the time, one of them vandalized the work by throwing white paint on it. But there was no violence against persons, and as far as we recall no one thought there would be.

Nobody expected the Spanish Inquisition, but not because “fairness” toward American Catholics “required” it. Rather, it was because such an expectation would have been empirically unfounded—inconsistent with experience and observation. American Catholics—and Mormons and other Christians—who respond with violence to religious insults do not appear to exist. The same cannot be said of American Muslims, even if those inclined to such violence are a tiny minority.

Feldman's conclusion:

If—and I say if—Geller intended to provoke violence, she did something much worse than giving offense. By willfully trying to provoke violence, Geller was trying to create a situation in which innocent people could have been harmed or killed. . . . If Geller wanted violence to happen, her actions were morally culpable—even though she obviously didn't commit it.

We asked Feldman on Twitter yesterday to explain how this logic would apply to Martin Luther King's acts of nonviolent resistance, which, as we noted Monday, were designed to make a point by provoking a violent response. So far he has not responded.

Again, Feldman at least acknowledges that the cartoon exhibit was constitutionally protected. The same cannot be said for all putative experts in constitutional law. This is from a McClatchy report titled “After Texas Shooting: If Free Speech Is Provocative, Should There Be Limits?”:

There are two exceptions from the constitutional right to free speech—defamation and the doctrine of “fighting words” or “incitement,” said John Szmer, an associate professor of political science and a constitutional law expert at the University of North Carolina at Charlotte.
“Fighting words is the idea that you are saying something that is so offensive that it will lead to an immediate breach of the peace,” Szmer explained. “In other words, you are saying something and you should expect a violent reaction by other people.”
The exhibit of cartoons in Texas might have crossed the line, Szmer said.
“I don't think it is unreasonable to expect what they were doing would incite a violent reaction,” he said.
Organizers knew, he said, that caricatures of the Prophet Muhammad, which many Muslims consider insulting, have sparked violence before. In a recent case that drew worldwide attention, gunmen claiming allegiance with the self-described Islamic State killed 12 people in an attack on the Paris offices of the French magazine Charlie Hebdo, which was known for satirical depictions of the Prophet Muhammad.

If the McClatchy reporters accurately describe Szmer's views, he really does not know his subject. For one thing, there are other narrowly drawn categories of unprotected speech besides the “two” cited—obscenity, invasion of privacy, child pornography, threats. Commercial speech also receives only limited protection.

More important, fighting words and incitement are two different doctrines. “Incitement,” defined in Brandenburg v. Ohio (1968), refers to speech that encourages violence against an adversary. Only “fighting words” is applicable to speech that provokes violence by an adversary.

The fighting-words doctrine has been interpreted narrowly since the U.S. Supreme Court set it down in Chaplinsky v. New Hampshire (1942), but the Chaplinsky definition is still good law inasmuch as it stipulates necessary conditions for regarding speech as unprotected. “Fighting words,” according to the Chaplinsky court, are “those which by their very utterance inflict injury or tend to incite an immediate breach of the peace.”

The key word is “immediate.” The Post's Somashekhar notes that the two gunmen “drove 1,000 miles from Phoenix” and “shot at a police car outside the event.” A premeditated attack is not “an immediate breach of the peace,” and if they didn't even get inside the event, their actions cannot have been incited by any of the speech (literal or symbolic) inside.

It's telling that Szmer and like-minded “experts” are responding to the Texas attack by citing “fighting words” rather than “incitement”—that is, by arguing to restrict speech critical of Islam rather than speech encouraging acts of violent jihad. The latter would be difficult to prosecute as well; Brandenburg held that speech advocating violence is protected absent an “imminent” threat, a limitation similar to Chaplinsky's “immediate” breach of the peace.

The consequence of following Feldman's moral theory and Szmer's legal one would be to empower violent fanatics to constrain the free-speech rights of Americans. In the case at hand, it would effectively make Shariah's prohibition on images of Muhammad the law of the land. The terrorists really would have won.

from NewsMax, 2015-May-7, by Drew MacKenzie:

FBI, DHS Didn't Contact Pamela Geller After Texas Attack

Anti-Islam activist Pamela Geller, who was targeted by terrorists over the weekend, has slammed President Barack Obama for fostering an environment that has put the United States in danger of increasing terror attacks.

Geller also told Fox News host Sean Hannity that to her surprise she has not been contacted by the FBI or the Department of Homeland Security (DHS) since the attack on her Prophet Muhammad cartoon competition, in which two terrorists were killed.

Later during the interview Geller got into a screaming match with British-based Muslim Anjem Choudary over whether she should be put to death for organizing the controversial "Draw the Prophet" contest in Garland, Texas.

"They have not contacted me," Geller said about the FBI. "But of course we've now increased my team. I have a team now, private security, and NYPD counterterror has been in touch with me."

After Geller informed Hannity that she had reached out to the FBI without reply, he asked whether Homeland Security had tried to speak to her, according to The Weekly Standard.

"This is a serious threat," said Hannity. "Basically a Fatwa, a death threat, has now been issued."

Geller replied: "No, and this is interesting because this is a terrorist threat. And the FBI, President Obama should provide security. There's no question about it. Because he created an environment that raised the stakes on this."

Suspected jihadist gunmen Elton Simpson, 31, and Nadir Soofi, 34, attacked the cartoon contest Sunday, wounding a security guard before the two were shot dead.

Depictions of the Prophet Muhammad are considered offensive to many Muslims and have prompted attacks in the past. In January, 12 people were gunned down in an Islamist attack on the French satirical paper Charlie Hebdo in Paris, which had also published cartoons of Muhammad.

Choudary, who has been a guest on "Hannity" several times, was asked by the conservative host: "Do you support this death threat against Pam Geller because she ran a free speech contest?"

"Let's be clear we are not talking about Mickey Mouse or Donald Duck," Choudary replied, according to Daily "We are talking about people who deliberately had a competition to insult the messenger Muhammad."

Choudary, who once said "the flag of Islam will fly over the White House," pointed out that Geller knew many Muslims consider blasphemy against Muhammad to be a crime worthy of the death penalty.

Geller, the head of the American Freedom Defense Initiative, shot back: "To blame me and say that my cartoons are controversial ... murdering cartoonists is controversial."

According to Mediaite, Geller also said to Choudary, "I know you're used to stepping over women."

Choudary then called Geller worse than a "Khanzier" -- Arabic for pig -- before he started ranting about Americans "murdering innocent people." Hannity then said he was "evil and pathetic" before ending the interview with him.

from the Wall Street Journal, 2015-Mar-30:

The New Intolerance
Indiana isn't targeting gays. Liberals are targeting religion.

In the increasingly bitter battle between religious liberty and the liberal political agenda, religion is losing. Witness the media and political wrath raining down upon Indiana because the state dared to pass an allegedly anti-gay Religious Freedom Restoration Act. The question fair-minded Americans should ask before casting the first stone is who is really being intolerant.

The Indiana law is a version of the federal Religious Freedom Restoration Act (RFRA) that passed 97-3 in the Senate and that Bill Clinton signed in 1993. Both the federal and Indiana laws require courts to administer a balancing test when reviewing cases that implicate the free exercise of religion.

To wit: Individuals must show that their religious liberty has been “substantially burdened,” and the government must demonstrate its actions represent the least restrictive means to achieve a “compelling” state interest. Indiana's law adds a provision that offers a potential religious defense in private disputes, but then four federal appellate circuits have also interpreted the federal statute to apply to private disputes.

The federal RFRA followed the Supreme Court's Employment Division v. Smith ruling in 1990 that abandoned its 30-year precedent of reviewing religious liberty cases under strict scrutiny. Congress responded with RFRA, which merely reasserted longstanding First Amendment protections.

In 1997 the Supreme Court limited RFRA's scope to federal actions. So 19 states including such cultural backwaters as Connecticut, Rhode Island and Illinois followed with copy-cat legislation, and Indiana is the 20th. Courts in 11 states have extended equally vigorous protections.

Indiana was an outlier before the new law because neither its laws nor courts unambiguously protected religious liberty. Amish horse-drawn buggies could be required to abide by local traffic regulations. Churches could be prohibited from feeding the homeless under local sanitation codes. The state Attorney General even ruled Indiana Wesleyan University, a Christian college which hires on the basis of religion, ineligible for state workforce training grants.

In February, 16 prominent First Amendment scholars, some of whom support same-sex marriage, backed Indiana's legislation. “General protection for religious liberty is important precisely because it is impossible to legislate in advance for all the ways in which government might burden the free exercise of religion,” they explained.

That hasn't stopped the cultural great and good from claiming Indiana added the religious defense in private disputes as a way to target gays. If this is Indiana's purpose, and there's no evidence it is, this is unlikely to work.

The claim is that this would empower, say, florists or wedding photographers to refuse to work a gay wedding on religious grounds. But under the RFRA test, such a commercial vendor would still have to prove that his religious convictions were substantially burdened.

And he would also come up against the reality that most courts have found that the government has a compelling interest in enforcing antidiscrimination laws. In all these states for two decades, no court we're aware of has granted such a religious accommodation to an antidiscrimination law. Restaurants and hotels that refused to host gay marriage parties would have a particularly high burden in overcoming public accommodation laws.

In any event, such disputes are rare to nonexistent, a tribute to the increasing tolerance of American society toward gays, lesbians, the transgendered, you name it.

The paradox is that even as America has become more tolerant of gays, many activists and liberals have become ever-more intolerant of anyone who might hold more traditional cultural or religious views. Thus a CEO was run out of Mozilla after it turned out that he had donated money to a California referendum opposing same-sex marriage.

Part of the new liberal intolerance is rooted in the identity politics that dominates today's Democratic Party. That's the only way to explain the born-again opportunism of Hillary Clinton, who tweeted: “Sad this new Indiana law can happen in America today. We shouldn't discriminate against ppl bc of who they love.”

By that standard, Mrs. Clinton discriminated against gays because she opposed gay marriage until March 2013. But now she wants to be seen as leading the new culture war against the intolerant right whose views she recently held.

The same reversal of tolerance applies to religious liberty. When RFRA passed in 1993, liberal outfits like the ACLU were joined at the hip with the Christian Coalition. But now the ACLU is denouncing Indiana's law because it wants even the most devoutly held religious values to bow to its cultural agenda on gay marriage and abortion rights.

Liberals used to understand that RFRA, with its balancing test, was a good-faith effort to help society compromise on contentious moral disputes. That liberals are renouncing it 20 years after celebrating it says more about their new intolerance than about anyone in Indiana.

from the Wall Street Journal, 2015-Apr-3:

Liberal Intolerance, Round II
To stamp out cultural dissent, the left is willing to stomp on religious liberty.

The political delirium over Indiana's law protecting minority religious beliefs doesn't seem to be abating, and the irony is that it may be illustrating why such statutes are necessary. Much of the modern political left has abandoned the American tradition of pluralism in favor of an all-or-nothing social model that brooks no dissent.

On Thursday the Indiana legislature passed and Governor Mike Pence signed an amendment to the state's Religious Freedom Restoration Act emphasizing that the law is not the license to discriminate that it never was. This concession is unlikely to temper the media portrait of Indianapolis as the new Selma, circa 1965, because this rumpus long ago kicked free of the legal merits or even the basic facts. The political goal behind the uproar is to intimidate or destroy people who think they are still allowed to articulate traditional moral convictions.


Take the family-owned pizza parlor in Walkerton, Indiana—population 2,144. A local TV reporter went door-to-door asking restaurants how they would respond if they were asked to cater a gay wedding. The innocents at Memories Pizza, who had never faced the question in daily business, said that they would prefer not to participate in a hypothetical same-sex pizza party ceremony. Cue the national deluge.

They were suddenly converted into the public face of antigay bigotry across cable news and the Internet, and became the target of a social-media mob, as if they somehow screened for sexual orientation at the register. The small business closed amid the torrent, although a crowd-funding counter-reaction supplied tens of thousands of dollars in recompense.

The episode is a discredit to U.S. civil society, which we used to think was strong and friendly enough to tolerate all people of whatever religious or sexual persuasion.

For the record, the federal and state Religious Freedom Restoration Acts, or RFRAs, very rarely implicate gay rights, and most of these religious cases are noncontroversial. They simply say that government must use the least restrictive means of achieving a compelling state interest when infringing on religious practice.

RFRA disputes typically involve Muslim prisoners who are told they cannot wear beards, or the inner-city Chicago churches that zoning laws prohibited from feeding the homeless in 2000, or the Arizona carillon bells that neighbors complained were too loud in 2010. They are about the Sikh who was fired by the Internal Revenue Service in 2005 for carrying a kirpan, the small knife that Sikhs believe is an emblem of justice.

Nonetheless, the Indiana revision clarifies that RFRA does not authorize a business to refuse to offer “services, facilities, use of public accommodations, goods, employment, or housing” on the basis of sexual orientation or gender identity. This is mostly symbolic, since there is no evidence anyone was doing so before the law passed, but Indiana's Republicans felt they had little choice lest the state suffer economic damage. The confusion and retreat was not Governor Pence's finest hour.

Indiana was reacting to unfair abuse from Democrats and corporate leaders eager to demonstrate their social justice bona fides. White House spokesman Josh Earnest flatly and wrongly said the law would “legitimize discrimination,” while several states with their own RFRAs like Connecticut have banned taxpayer-funded travel to Indiana. A raft of companies including Apple and the Indiana-based diesel engine maker Cummins have also denounced the law.

Well—hold on. Liberals have instructed us time and again that corporations aren't people or persons, that companies cannot express speech and have no right to engage in politics. But now Tim Cook is celebrated for delivering a moral lecture to Hoosiers on behalf of Apple because liberals agree with him. Perhaps Mr. Cook and other CEOs who've criticized Indiana should reconsider their offices in China and other places around the world that have contempt for human rights, or in some cases open hostility to gays and lesbians.

To the extent anyone is offering a good-faith criticism, it seems to apply to the narrow exceptions of sole proprietors in the wedding industry, such as florists, bakers, photographers and singers. Our view is that their speech and conduct is protected by the First Amendment, but do liberals really now believe that the very few vendors who object to working at same-sex weddings should be forced to participate in what they believe to be a moral wrong?

For that matter, should a Native American printer be legally compelled to make posters with an Indian mascot that he finds offensive, or an environmentalist contractor to work a shift at a coal-fired power plant? Fining or otherwise coercing any small number of private citizens—who aren't doing anyone real harm but entertain politically unacceptable thoughts—is thuggish stuff.


A principle in quantum physics holds that everything not forbidden is mandatory, and social liberals seem intent on importing it into politics. But they may well come to regret this choice.

The movement for state recognition of same-sex marriages has succeeded in changing public opinion by appealing to people's sympathy and values like love and acceptance. They will lose this good will if they adopt the illiberal standard that “equality” must mean stomping on religious liberty.

Correction: An earlier version of this editorial misstated where Apple Inc. has stores.

from, 2015-May-19, by Donna Rachel Edmunds:

Christian Bakery Guilty of Discrimination for Refusing to Bake Pro-Gay Marriage Cake

A Christian bakery has been found guilty of discrimination for refusing to make a cake bearing the slogan “support gay marriage”. The ruling was handed down by District Judge Isobel Brownlie following three days of evidence at Belfast County Court, Northern Ireland, in March.

Gay rights activist Gareth Lee placed the order for the cake, which also featured Sesame Street characters Bert and Ernie with Ashers Baking Company, which employs 80 people across nine branches and delivers across the UK and Ireland.

Founder and owner Karen McArthur, a born-again Christian, at first accepted the order, but two days later phoned Mr Lee to inform him that the company would not be able to fulfil the order. He subsequently had the cake made by another company.

During the evidence sessions, Mr Lee told the court that the McArthur's refusal to make the cake had left him feeling like a lesser person. “I wasn't worthy of service because they were Christian. That was the message that struck me. It made me feel not worthy, like I'm a lesser person and to me that is wrong,” he said.

The case was brought on behalf of Mr Lee by the Northern Ireland Equality Commission, which monitors compliance with the region's anti-discrimination laws.

Mrs McArthur told the court that she had initially taken the order to avoid embarrassment or confrontation, but knew that her company would not be able to complete it. The family, who are all devout Christians, discussed how to proceed amongst themselves before deciding to decline the order. They told the judge they “could not stand before God” and produce a cake which declared support for same sex marriage.

Speaking ahead of the judgement, Ashers' General Manager Daniel McArthur said: “Our faith is very important to us; it determines how we live, how we bring up our children, how we run our business, how we meet and how we engage with other people in society, so yes we can't leave it out whenever we go to work in the morning.

“It's been a difficult and exhausting time for us as a family but God has been faithful to us. And He has given us the strength to deal with this, and we know and trust in Him that going forward He will continue to give us His strength.”

Ashers was supported by The Christian Institute which funded their defence.

The Institute's Deputy Director Simon Calvert said: “The McArthurs, like countless other Christian business owners across the country, simply want to live and work in accordance with their Christian beliefs – beliefs which have long had a positive influence on Western culture and history.”

The case has prompted calls for a “conscience clause” to be included in equality legislation. Sinn Fein has vowed to veto the clause.

Ashers' General Manager Daniel McArthur has said:

“We've said from the start that our issue was with the message on the cake, not the customer and we didn't know what the sexual orientation of Mr Lee was, and it wasn't relevant either. We've always been happy to serve any customers that come into our shops.

“The ruling suggests that all business owners will have to be willing to promote any cause or campaign no matter how much they disagree with it. Or as the Equality Commission has suggested, they should perhaps just close down, and that can't be right.

“But we won't be closing down, we certainly don't think we've done anything wrong and we will be taking legal advice to consider our options for appeal.

“The loss of the case and the possibility of a financial penalty is disappointing but that is a small burden to bear as the case has provided us with an opportunity through which we have been able to speak about our faith and our beliefs. And for that we give thanks to the Lord.”

Institute's Deputy Director Simon Calvert has said: “We are extremely disappointed at today's ruling against the McArthur family and Ashers Baking Company. It will also sadden all those who value freedom of conscience and freedom of speech.

“Judge Brownlie recognised that there were competing rights in this case but has favoured sexual orientation over religious belief.

“We are equally baffled by the court's decision to uphold the Equality Commission's claim of political discrimination. This was a late addition to the case and the ruling suggests all business owners now have to be willing to promote any political cause or campaign, no matter how much they disagree with it, or – as the Equality Commission has suggested – close down.

“It appears that we are all now required by law to support same-sex marriage. What next? Will the Muslim printer now be obliged to print cartoons of Mohammed? Will the lesbian T-shirt printer now be forced to print T-shirts promoting traditional marriage? We should all consider the real concern and confusion that will result from this ruling.”

from the Wall Street Journal, 2015-Apr-30, by Charlotte Allen:

Modern Sin: Holding On to Your Belief
Trying to put florists, bakers and others out of work for unapproved ideas about marriage.

On Tuesday the Supreme Court heard oral arguments in Obergefell v. Hodges, the case that asks whether the Constitution requires states to allow same-sex couples to marry. Four days before the hearing, in Oregon, an administrative-law judge proposed a $135,000 fine against Aaron and Melissa Klein, proprietors of the Sweet Cakes bakery in Gresham, for the “emotional distress” suffered by a lesbian couple for whom the Kleins, citing their Christian belief that marriage is between a man and a woman, had declined to bake a wedding cake in 2013.

Same-sex marriage wasn't legal in Oregon when the Kleins made their decision. But the couple was found to have violated a 2008 Oregon law forbidding discrimination in public accommodations on the basis of sexual orientation.

Media sympathy for the Kleins' claim that being forced to participate in a same-sex wedding would violate their consciences ranged from nonexistent to . . . nonexistent. A CNN headline dubbed the Kleins' since-closed business the “anti-gay bakery”; the Huffington Post prefers “anti-gay baker.”

Supporters of the Kleins—who have five children and operated the bakery out of their home—quickly went on the crowdfunding website GoFundMe to try to raise money to help the family pay legal fees and the fine, which still requires approval by the state labor commissioner. The effort managed to raise more than $100,000 in a few hours. But then, on Saturday night, GoFundMe abruptly shut down the online appeal because the Kleins' case involved “formal charges.”

The Kleins join a small number of bakers, florists and photographers around the country, most of whom say they serve and even employ gays in their over-the-counter operations but who also insist that their Christian beliefs in man-woman marriage preclude their providing services to same-sex weddings. Those numbers will probably dwindle further: Many states are treating those acts of conscience as ordinary bigotry and, by levying or threatening fines, forcing those small business owners into costly and potentially ruinous litigation.

In Washington state, 70-year-old Barronelle Stutzman, owner of Arlene's Flowers in Richland, has asked the state Supreme Court to overturn a $1,000 fine against her last month for refusing to arrange flowers for the same-sex wedding of a longtime customer; Ms. Stutzman had recommended another nearby florist instead.

The lower court that levied the fine also issued a permanent injunction ordering Ms. Stutzman, a Southern Baptist who has cited her “relationship with Jesus” as the reason for her refusal, to serve same-sex weddings in the future. She also faces the potential costs of awards for damages and attorney's fees in a lawsuit brought by the American Civil Liberties Union on behalf of the customer and his partner.

In 2014, the U.S. Supreme Court declined to review a New Mexico Supreme Court ruling that a Christian-owned photography studio could not refuse to take photos of a lesbian commitment ceremony. Colorado baker Jack Phillips announced that he would no longer make wedding cakes after the Colorado Civil Rights Commission ruled that he had discriminated against a gay couple in 2012 for declining to produce a cake for their wedding reception.

The irony is that only a few years ago, when the legalization of same-sex marriage didn't appear so inevitable, gay-marriage advocates eagerly assured a skeptical public that scenarios like those above would never happen. Typical was since-retired California Supreme Court Chief Justice Ronald M. George, who wrote in the 2008 decision legalizing gay marriage in that state: “Affording same-sex couples the opportunity to obtain the designation of marriage will not impinge upon the religious freedom of any religious organization, official, or any other person.”

The victors have dropped their conciliatory stance. Bubonic plague-level hysteria surged through the media, academia and mega-corporate America in March after Indiana passed a law—modeled on the federal Religious Freedom Restoration Act of 1993—that would enable religious believers to opt out of universally applicable laws under some circumstances.

Amid threats of business boycotts, the Indiana legislature amended the law to ensure antidiscrimination protections for gays and lesbians—but not before a pizzeria in Walkerton shut down for a week amid death and arson threats after its Catholic owners told a reporter that, while they would gladly serve gays in their restaurant, they wouldn't cater a gay wedding.

Should the Supreme Court rule in Obergefell v. Hodges that same-sex marriage is a constitutional right, expect more of the same. During oral arguments on Tuesday, Justice Samuel Alito asked Obama administration Solicitor General Donald Verrilli whether a religiously affiliated college that opposed same-sex marriage could lose its tax-exempt status after such a ruling. “It is going to be an issue,” Mr. Verrilli replied.

That is putting it mildly; the phrase “persecution of Christians” might be more apt. It would be nice if states passed religious-freedom laws that both protected gays and lesbians from discrimination in day-to-day transactions and accommodated people whose beliefs recognize traditional man-woman marriage—as Utah did last month. But in today's mood of vengeful triumphalism among the progressive elites who rule public opinion, don't count on many compromises.

Ms. Allen is the author of “The Human Christ: The Search for the Historical Jesus” (Free Press, 1998).

from, 2015-Apr-1, by Scott Ott:

Story About First Business to `Publicly Vow to Reject Gay Weddings' Was Fabricated Out of Nothing
Woman becomes the new face of Christian bigotry while literally minding her own business, after ambush interview, media feeding frenzy.

The Huffington Post headline screams:

Indiana's Memories Pizza Reportedly Becomes First Business To Reject Catering Gay Weddings

Memories Pizza is a nine-year-old shop in downtown Walkerton, Indiana, just a few blocks from John Glenn High School. It's owned by an openly-Christian couple, the O'Connors, who decorate their shop with mementos of their faith in Christ. So how does a small business in a small town wind up making headlines around the world as the new avatar of Christian bigotry?

Perhaps, you say, they brought this upon themselves, seeking out publicity for their strict biblical views.


Some cursory internet forensics shows how it happened…or rather, how it was made to happen.

ABC-57 reporter Alyssa Marino's editor sends her on a half-hour drive southwest of their South Bend studio, to the small town of Walkerton (Pop. ~2,300). According to Alyssa's own account on Twitter, she “just walked into their shop [Memories Pizza] and asked how they feel” about Indiana's new Religious Freedom Restoration Act.

Owner Crystal O'Connor says she's in favor of it, noting that while anyone can eat in her family restaurant, if the business were asked to cater a gay wedding, they would not do it. It conflicts with their biblical beliefs. Alyssa's tweet mentions that the O'Connors have “never been asked to cater a same-sex wedding.”

What we have here is — as we called in journalism school jargon — “no story.” Nothing happened. Nothing was about to happen.

If I were forced to mark out a story line, it would be this: A nice lady in a small town tries to be helpful and polite to a lovely young reporter from “the big city.”

In other words, Memories Pizza didn't blast out a news release. They didn't contact the media, nor make a stink on Twitter or Facebook. They didn't even post a sign in the window rejecting gay-wedding catering jobs. They merely answered questions from a novice reporter who strolled into their restaurant one day – who was sent on a mission by an irresponsible news organization.

Next: ABC-57 anchor Brian Dorman leads the evening newscast dramatically with this:

Only on ABC-57 News tonight. We went into small towns looking for reaction to the Religious Freedom Act. We found one business, just 20 miles away from a welcoming South Bend…with a very different view.

Notice that his city of South Bend is “welcoming,” but that small-town business is not. It's very different. That's why ABC-57 “went into small towns,” as if embarking on a safari to aboriginal lands.

Not only did ABC-57 News create that story ex nihilo (out of nothing), but the next day, the station's Rosie Woods reported on the social-media backlash against the Christian pizza shop owners.

“Our Facebook page has been blowing up with comments after we aired that story last night,” said Woods.

At this point, even my old Leftist journalism professors would be grinding their teeth and rending their garments.

You see, not only did ABC-57 manufacture the story with an ambush interview, it then doubled-down by making the reaction to the story into another story to give the sense of momentum, as if it were growing at its own impetus. Yet, everything about it is a fabrication.

Memories Pizza didn't “publicly vow to reject gay weddings” as HuffPo says it. The O'Connors were just, quite literally, minding their own business.

Back in the ABC-57 studio, Rosie Woods read three negative social media comments attacking the pizza shop owners, and then said, “And that's just one side of this debate that's heating up as more people and business owners speak up about the law.”

She then quotes one (1) person, the owner of another business, who agreed with the O'Connors. Seems that “just one side of this debate” deserves more attention than the other.

The unnamed ABC-57 editor then sends another reporter door-to-door on Walkerton's rather depressed-looking main drag, trying to get reactions from other business people about the pizza shop owners. And the story inexorably snowballs onward, with only man's yearning for truth to propel it.

All of the blog traffic and social media activity led to about 36,000 Facebook shares at on the original Alyssa Marino story less than 24 hours after it aired.

BuzzFeed posted its own inaccurate headline, with the kicker: ”The Internet has unleashed its wrath.”

All of those eyeballs benefit the TV station, which sells advertising on its website. It also helps several young, minor-market reporters who hustled and stumbled their way into the national spotlight. But don't blame them. Blame the editor.

Meanwhile, over at, more than a thousand “reviews” of Memories Pizza rapidly accumulated, quickly overwhelming the positive comments from actual customers who like the pizza, the hospitality and the small-town charm. Folks who never heard of Walkerton attacked Crystal O'Connor's business, her morality and her Lord. Many of the remarks included racially charged descriptions of genitalia and sex acts. “Reviewers” also posted pictures of naked men, of Adolf Hitler shouting “Ich habe ein pizza” (I have a pizza), and of Jesus gesturing with his middle finger. Over on Facebook, the restaurant's 5-star average rating rapidly plunged to one star, as non-customers slammed away at Crystal's little business.

In Saul Alinsky's Rules for Radicals, a manifesto of political power, Rule No. 12 says, in part:

Go after people and not institutions; people hurt faster than institutions. (This is cruel, but very effective. Direct, personalized criticism and ridicule works.)

The Left doesn't care who gets hurt, so long as they get what they want. They're willing — no, they're eager — to sacrifice a small-town business, and it's owners.

Lest you think I'm being too dramatic. Late Wednesday, word comes that Jess Dooley, a female coach at Concord High School 45 minutes away in Elkhart, has been suspended after tweeting:

Who's going to Walkerton, IN to burn down #memoriespizza w me?

from the Wall Street Journal, 2015-Mar-8, by L. Gordon Crovitz:

Netflix Recants on Obamanet
Proponents of net neutrality appear to be experiencing lobbyists' remorse.

Corporate executives choose their words carefully at investor conferences hosted by the large investment banks, and analysts listen closely to decide whether to drive share prices up or down. Presentations are preceded by required securities-law disclosures, heightening the pressure to speak only carefully considered thoughts.

With that in mind, consider what David Wells, chief financial officer of Netflix , said last week at the annual Morgan Stanley Technology, Media and Telecom Conference. He disclosed that Netflix, one of the few companies that advocated the most extreme form of Internet regulation, had lobbyist's remorse only a week after the Federal Communications Commission voted to replace the open Internet with Obamanet.

“Were we pleased it pushed to Title II?” Mr. Wells said to investors. “Probably not. We were hoping there might be a nonregulated solution.”

Title II is the part of the Communications Act of 1934 that bureaucrats used to exert near-total control over the AT&T telephone monopoly. The FCC recently did President Obama's bidding by voting to impose that micromanagement on the Internet. The FCC will decide what prices and other terms online are “just and reasonable.” The agency added a new “general conduct” catchall provision giving itself oversight of Internet content and business models.

Netflix PR handlers claimed that Mr. Wells was just “trying to convey how our position had evolved.” But the company's actions support Mr. Wells's words. Last week, Netflix violated a core tenet of net neutrality when it launched its service in Australia as part of a “zero rating” offering by broadband providers, which excludes its video from data caps. Net neutrality advocates want to outlaw such deals. Netflix shrugged off this objection: “We won't put our service or our members at a disadvantage.”

Last year National Journal reported that Netflix was “relishing” its role as the lead lobbyist for net neutrality, “not only advocating a position that would protect its profits,” but “also earning goodwill from web activists and liberals.”

Today Netflix is a poster child for crony capitalism. When CEO Reed Hastings lobbied for Internet regulations, all he apparently really wanted was for regulators to tilt the scales in his direction with service providers. Or as Geoffrey Manne of the International Center for Law and Economics put it in Wired: “Did we really just enact 300 pages of legally questionable, enormously costly, transformative rules just to help Netflix in a trivial commercial spat?”

Ironically, Netflix could end up the biggest loser with a regulated Internet. The FCC did not stop at claiming power to regulate broadband providers. It will also review the interconnection agreements and network tools that allow the smooth functioning of the Internet—including delivery of Netflix videos, which take up one-third of broadband nationwide at peak times.

Net-neutrality advocates oppose “fast lanes” on the Internet, arguing they put startups at a disadvantage. Netflix could not operate without fast lanes and even built its own content-delivery network to reduce costs and improve quality. This approach will now be subject to the “just and reasonable” test. The FCC could force Netflix to open its proprietary delivery network to competitors and pay broadband providers a “fair” price for its share of usage.

There's no need for the FCC to override the free-market agreements that make the Internet work so well. Fast lanes like Netflix's saved the Internet from being overwhelmed, and there is nothing wrong with the “zero cap” approach Netflix is using in Australia. Consumers benefit from lower-priced services.

The FCC still hasn't made public its 300-plus pages of new regulations, but there is increasing opposition against changing the Internet as we know it. Last week John Perry Barlow, the Grateful Dead lyricist-turned-Internet-evangelist, participated in a conference call of Internet pioneers opposed to the FCC treating the Internet as a utility. He called the regulatory step “singular arrogance.”

In 1996 Mr. Barlow's “Declaration of the Independence of Cyberspace” helped inspire a bipartisan consensus for the open Internet: “Governments of the Industrial World, you weary giants of flesh and steel, I come from Cyberspace, the new home of Mind. On behalf of the future, I ask you of the past to leave us alone. You are not welcome among us. You have no sovereignty where we gather.”

The permissionless Internet succeeded beyond anyone's expectations, becoming an unmatched outlet for creativity and innovation. Mr. Obama has defied the bipartisan consensus that made this possible. Unless Congress or the courts intervene, the future of the Internet will look like the past, when bureaucrats and lawyers, not visionaries and entrepreneurs, were in charge.

from CNN, 2015-Feb-13, by Jeremy Diamond:

U.S. slips again in press freedom ranking with blame on Obama administration

Washington -- The United States has dropped 29 spots in the annual Reporters Without Borders press freedom ranking since 2009, when President Barack Obama took office.

The U.S. ranked 49th this year out of 180 countries included in the organization's World Press Freedom Index, joining the ranks of countries like Niger, Malta and Romania.

The decline from its position at No. 20 in 2009 has been spurred by the Obama administration's aggressive prosecution of whistleblowers, said Delphine Halgand, the organization's U.S. director.

"We consider that the Obama administration has launched a war against whistleblowers," Halgand said. "This year is a continuation of the concern we already expressed that national security protection has been more and more threatening freedom of information in the U.S."

The U.S. has prosecuted eight alleged whistleblowers under the Espionage Act, more than all previous presidential administrations combined, Halgand said.

Despite Obama's campaign pledge to make his administration one of the most transparent in history, reporters and press freedom watchdogs have continually slammed the administration as one of the least transparent and criticized its dogged efforts to plug leaks.

Reporters without Borders, an organization that works to protect journalists around the world, tied the U.S.'s drop in this year's rankings to the "judicial harassment" of James Risen, a New York Times reporter who last year stared down federal prosecutors pushing him to reveal the identity of an anonymous source.

The purported source, ex-CIA officer Jeffrey Sterling, was convicted early this year on nine felony counts for leaking classified information. Risen refused to reveal his source, and federal prosecutors decided not to indict him on any charges.

Reporters without Borders also pointed to the Ferguson protests, where it says at least 15 journalists were arrested.

The organization similarly downgraded the U.S.'s press freedom ranking following the Occupy Wall Street protests in 2011.

Fellow Western democracies scored better than the U.S. in the ranking.

Finland snagged the top spot, Canada was ranked 8th, and other U.S. allies, the United Kingdom and France, came in 34th and 38th, respectively.

France and the U.K. have also slipped in the rankings in recent years over concerns that national security concerns are encroaching on press access, Halgand said.

Other countries that got higher marks than the U.S. for press freedom? El Salvador, Botswana, Belize and Suriname, to list just a few.

The U.S. could again climb the rankings if it pulls back on its aggressive tack on leaks and if Congress passes a strong federal shield law, which would protect reporters' rights to not reveal their sources without fearing prosecution.

Most states have some type of shield law, but there is still no shield law to protect journalists in federal cases.

from the Wall Street Journal, 2015-Mar-4, by Richard S. Lindzen:

The Political Assault on Climate Skeptics
Members of Congress send inquisitorial letters to universities, energy companies, even think tanks.

Research in recent years has encouraged those of us who question the popular alarm over allegedly man-made global warming. Actually, the move from “global warming” to “climate change” indicated the silliness of this issue. The climate has been changing since the Earth was formed. This normal course is now taken to be evidence of doom.

Individuals and organizations highly vested in disaster scenarios have relentlessly attacked scientists and others who do not share their beliefs. The attacks have taken a threatening turn.

As to the science itself, it's worth noting that all predictions of warming since the onset of the last warming episode of 1978-98—which is the only period that the United Nations Intergovernmental Panel on Climate Change (IPCC) attempts to attribute to carbon-dioxide emissions—have greatly exceeded what has been observed. These observations support a much reduced and essentially harmless climate response to increased atmospheric carbon dioxide.

In addition, there is experimental support for the increased importance of variations in solar radiation on climate and a renewed awareness of the importance of natural unforced climate variability that is largely absent in current climate models. There also is observational evidence from several independent studies that the so-called “water vapor feedback,” essential to amplifying the relatively weak impact of carbon dioxide alone on Earth temperatures, is canceled by cloud processes.

There are also claims that extreme weather—hurricanes, tornadoes, droughts, floods, you name it—may be due to global warming. The data show no increase in the number or intensity of such events. The IPCC itself acknowledges the lack of any evident relation between extreme weather and climate, though allowing that with sufficient effort some relation might be uncovered.

World leaders proclaim that climate change is our greatest problem, demonizing carbon dioxide. Yet atmospheric levels of carbon dioxide have been vastly higher through most of Earth's history. Climates both warmer and colder than the present have coexisted with these higher levels.

Currently elevated levels of carbon dioxide have contributed to increases in agricultural productivity. Indeed, climatologists before the recent global warming hysteria referred to warm periods as “climate optima.” Yet world leaders are embarking on costly policies that have no capacity to replace fossil fuels but enrich crony capitalists at public expense, increasing costs for all, and restricting access to energy to the world's poorest populations that still lack access to electricity's immense benefits.

Billions of dollars have been poured into studies supporting climate alarm, and trillions of dollars have been involved in overthrowing the energy economy. So it is unsurprising that great efforts have been made to ramp up hysteria, even as the case for climate alarm is disintegrating.

The latest example began with an article published in the New York Times on Feb. 22 about Willie Soon, a scientist at the Harvard Smithsonian Center for Astrophysics. Mr. Soon has, for over 25 years, argued for a primary role of solar variability on climate. But as Greenpeace noted in 2011, Mr. Soon was, in small measure, supported by fossil-fuel companies over a period of 10 years.

The Times reintroduced this old material as news, arguing that Mr. Soon had failed to list this support in a recent paper in Science Bulletin of which he was one of four authors. Two days later Arizona Rep. Raul Grijalva, the ranking Democrat on the Natural Resources Committee, used the Times article as the basis for a hunting expedition into anything said, written and communicated by seven individuals— David Legates, John Christy, Judith Curry, Robert Balling, Roger Pielke Jr. , Steven Hayward and me—about testimony we gave to Congress or other governmental bodies. We were selected solely on the basis of our objections to alarmist claims about the climate.

In letters he sent to the presidents of the universities employing us (although I have been retired from MIT since 2013), Mr. Grijalva wanted all details of all of our outside funding, and communications about this funding, including “consulting fees, promotional considerations, speaking fees, honoraria, travel expenses, salary, compensation and any other monies.” Mr. Grijalva acknowledged the absence of any evidence but purportedly wanted to know if accusations made against Mr. Soon about alleged conflicts of interest or failure to disclose his funding sources in science journals might not also apply to us.

Perhaps the most bizarre letter concerned the University of Colorado's Mr. Pielke. His specialty is science policy, not science per se, and he supports reductions in carbon emissions but finds no basis for associating extreme weather with climate. Mr. Grijalva's complaint is that Mr. Pielke, in agreeing with the IPCC on extreme weather and climate, contradicts the assertions of John Holdren, President Obama 's science czar.

Mr. Grijalva's letters convey an unstated but perfectly clear threat: Research disputing alarm over the climate should cease lest universities that employ such individuals incur massive inconvenience and expense—and scientists holding such views should not offer testimony to Congress. After the Times article, Sens. Edward Markey (D., Mass.), Sheldon Whitehouse (D., R.I.) and Barbara Boxer (D., Calif.) also sent letters to numerous energy companies, industrial organizations and, strangely, many right-of-center think tanks (including the Cato Institute, with which I have an association) to unearth their alleged influence peddling.

The American Meteorological Society responded with appropriate indignation at the singling out of scientists for their scientific positions, as did many individual scientists. On Monday, apparently reacting to criticism, Mr. Grijalva conceded to the National Journal that his requests for communications between the seven of us and our outside funders was “overreach.”

Where all this will lead is still hard to tell. At least Mr. Grijalva's letters should help clarify for many the essentially political nature of the alarms over the climate, and the damage it is doing to science, the environment and the well-being of the world's poorest.

Mr. Lindzen is professor emeritus of atmospheric sciences at MIT and a distinguished senior fellow of the Cato Institute.

from the Wall Street Journal, 2015-Mar-5, by Suryatapa Bhattacharya and Aditi Malhotra:

Google Complies With India Order to Block Links to Film
Indian police want access limited to documentary on 2012 gang rape

NEW DELHI— Google Inc. said Thursday that Indian law-enforcement agencies asked the company to block links on its YouTube video-sharing site that led to copies of a documentary about a 2012 gang rape and murder in Delhi.

Indian police sought and received a court order earlier this week banning broadcast of the film “India's Daughter,” which tells the story of the brutal attack that galvanized public opinion in India and tarnished the nation's image abroad.

The court said comments by one of the convicted rapists, Mukesh Singh, who was interviewed in the documentary could cause “huge public outcry.” The court order also banned publication of Mr. Singh's comments.

The British Broadcasting Corp. showed the film Wednesday evening in the U.K. Internet users then uploaded the documentary on YouTube, where Indian viewers were able to see it early Thursday.

Gaurav Bhaskar, a Google spokesman in India, said that by later Thursday the company had “complied with the court order and blocked access to those web links” specified by law-enforcement authorities.

Clicking on some YouTube links resulted in a message reading: “This content is not available on this country domain due to a court order. Sorry about that.” Other links to the documentary still appeared to work, however.

Speaking to reporters Thursday, Home Minister Rajnath Singh said “all options are open” to prevent broadcast of the film.

The BBC said the film was made with the “full support and cooperation” of the rape victim's family. A spokesman said it “handles the issue responsibly and we are confident the program fully complies with our editorial guidelines.”

Government efforts to keep the documentary, made by a British filmmaker, from being seen have sparked vigorous debate in India.

On Wednesday, Mr. Singh told Parliament the government wouldn't “allow any attempt by any individual, group or organization to leverage such an unfortunate incident for commercial benefits.”

Anu Aga, a member of Parliament, said in the upper house Wednesday the documentary reflected the view that women are often held responsible for provoking men with their choice of clothing.

“If there is a rape, blame is put on the woman,” she said. “We have to confront the issue that men in India do not respect women in India.”

The father of the victim told The Wall Street Journal on Thursday that he felt the documentary had succeeded in holding up a mirror to society's attitude toward women. “It reflects upon our society what men think of our daughters, their views on women and rape,” he said.

Still, he said, he supported the government's restrictions on the film. “The government must have put some thought to it,” he said.

from, 2015-Feb-23, by Mary Katharine Ham:

Revealed: Blogger finally finishes book
Alternate headline: Blogger reveals why she's been slacking on for a year.

I'm excited to announce that my longtime friend and colleague, Guy Benson and I have written a book! It's called…drumroll please and take a deep breath, so you can say the whole subtitle:

“End of Discussion: How the Left's Outrage Industry Shuts Down Debate, Manipulates Voters, and Makes America Less Free (And Fun!)”

Coming in June 2015, but available for pre-order now!

There's a coalition of blowhards and busybodies creating an ever-changing list of words you cannot say and things you cannot do. The increasingly weaponized public shame machine kicks into gear for anyone who crosses these ever-changing boundaries, making private citizens into social pariahs, taking away their livelihoods, and otherwise extracting economic costs for parting ways with the modern Left. The object is to win social and policy debates, not by having them, but by preventing them from happening.

Buzzfeed's Katherine Miller today featured a news item from our interview with Gov. Scott Walker in the book. This is a taste of how he built a media strategy during his 2011 budget fight that allowed him to speak to the people of Wisconsin without being shouted down by some of the most intense outrage brigades the country has seen in years:

“At the height of the [anti-budget] union protests, when we were approaching 100,000 protesters at and around the Capitol, I finally got wise,” Walker tells Ham and Benson in an interview for the book. “I started holding press conferences at 5:00 because I knew that if I kept it concise, local television and some national outlets would cover it live. So I had an unfiltered way to talk to the state for about 10 minutes.”

The protests in 2011 were over Walker's budget proposal, which, to meet a budget deficit, instituted significant increases to public-sector employees' benefits and pension contributions, and limited their ability to collectively bargain.

That media control of Walker's didn't last forever, and he admits that the protesters figured out what he was doing and adapted.

“They started to get really loud right around 5 p.m.,” he says in the interview. “I'd be speaking to the press, and they'd make lots of noise. On one particular day, they were louder than they'd ever been, and a reporter asked me if those people had a right to be heard. And I said that they had every right to be heard, but that I wasn't going to let tens of thousands of people — and some were bused and flown in from other states — drown out the voices of millions of people around Wisconsin who elected me to do exactly what I was doing.”

As the past week illustrates, every GOP candidate is going to have to be ready for the outrage circus, from activists and journalists alike, spinning up controversies under the most aggravating of double standards.

This is not a good way of doing business. What once was a country dedicated to using free speech to push boundaries has become a daily exercise in creating new and ever tighter boundaries on public discourse. And, if you cross them, you'll get stunned like a puppy with an electric collar.

This book is two parts examination, two parts venting of frustration. The double standards, the demagoguery, the utter dumbness of making every tiny story incident into something about which we must all be outrageously outraged (and, yes, our side does it, too, which we address). It can make life truly miserable, politics even stupider than it already was, and debate nearly impossible.

Welcome to the End of Discussion.

Available for pre-order now at! Please come see us at CPAC, where we'll be taking orders and pictures. It's a fun read on a serious topic, and we tried to write it in such a way that you could hand it to your moderate or liberal friends or family and hope to open their eyes to the increasingly stifling and intolerant society we're creating—not just for conservatives, but for art, comedians, liberals in good standing, and everyone else.

It's our first book, produced with the help of our friends at Crown Forum, who have more on the it, here.

We hope you'll enjoy, and help us prevent the End of Discussion!

from BBC News, 2015-Mar-5:

Facebook rant lands US man in UAE jail

An expat American has been arrested in the United Arab Emirates for comments he posted on Facebook while in the US.

Helicopter mechanic Ryan Pate wrote the Facebook post while in Florida after arguing with employer Global Aerospace Logistics (Gal) over sick leave.

On returning to Abu Dhabi from Florida, he was arrested for breaking the country's strict cyber-slander laws.

His trial is due to start on 17 March and he could face up to five years in jail and a large fine if found guilty.

Legal fee

Mr Pate's dispute with his employer began in December last year when he sought to extend his holiday to see a doctor about a long-standing back injury. After being told he could not extend his leave, Mr Pate posted a rant about the Abu Dhabi-based firm on his Facebook page.

In the post, Mr Pate called Gal "backstabbers" and warned other contractors about working for the firm. He also complained about life in the UAE and used a racial slur against the region's people.

He returned to Abu Dhabi in order to resign but soon after arriving he was called by police who told him to report to a nearby police station. On attending he was shown screenshots of the Facebook message and told his employer had filed charges accusing him of breaking wide-ranging Emirates laws that ban slander.

The laws were introduced in late 2012 and make it an offence to use the net to mock or deride organisations and individuals.

Analysis: Jonathan Frewin, BBC Middle East business correspondent 2012 - 2014

This is the latest in a series of difficult cases for UAE authorities following the introduction of the country's 2012 Cyber-crimes law.

One involved the detention of a man who had filmed and uploaded a video of an Emirati government official attacking an Indian van driver. The attacker faced a fine of up to 10,000 dirhams (£1,800) and a year in jail. The uploader, charged with defamation for sharing a video of the attack, faced a possible penalty of two years in jail, and a 20,000 dirhams (£3,600) fine.

And whilst in this case many in the west may be surprised to see that someone could face imprisonment for what might be regarded as innocuous comments on Facebook about an employer, in Gulf culture, protection of reputation is seen as paramount, and enshrined by tough laws.

Now it has garnered international attention though, this new case poses yet another potentially embarrassing headache for the UAE government. However, the resolution of the road rage incident may offer a model. All charges were dropped, whilst the attacker lost his job.

Although Mr Pate will no doubt hope that he avoids the fate of another American who was caught up in the UAE's cyber-crimes law. Shezanne Cassim was convicted of defamation and spent a year in jail, for uploading a satirical video to YouTube.

"I never even entertained the fact that I would wind up in prison out here for something I put on Facebook in the United States," said Mr Pate.

Gal has yet to respond to requests for comment about the incident.

However, news about Mr Pate's arrest has begun to spread online and some people have posted comments on Gal's Facebook page criticising the way it has treated him.

In addition, Mr Pate's cause has been taken up by his congressman David Jolly who has contacted the US State Department and the UAE attorney general seeking to get the case quashed.

"It is deeply troubling that Mr Pate now faces judicial proceedings over an action that was done legally in his home country," said Mr Jolly.

Mr Jolly is also pushing for a meeting with the US ambassador to the UAE to get help with the case. Mr Pate's fiancee has begun an online effort to raise funds to pay his legal fees.

The US State Department said the American embassy in the country has helped Mr Pate get medical attention and legal advice. Mr Pate was arrested on 16 February and spent about 10 days in jail. He has now been released on bail prior to the trial later this month.

"I just want to apologise to everybody I dragged into this," Mr Pate said in an interview with a US newspaper. "It is embarrassing, and I never meant for this to happen. I let my emotions get the better of me."

from USA Today, 2015-Jan-20, by John Shinal:

Banning encryption is digital equivalent of banning books

SAN FRANCISCO — The widespread dissemination of ideas can disrupt society and subvert the power of those at its top.

Gutenberg's printing press, for example, helped spur the Protestant Reformation that over time helped overturn the religious and political order of Europe.

In an often-bloody process that took about 400 years, the authoritarian empires that ruled the continent gave way to modern, democratic nation-states.

Books have been banned (and burned) precisely because new ideas are a threat to the people in charge.

As powerful elites from across the globe prepare to gather for the World Economic Forum this week, smartphones and electronic tablets linked to the Internet have become the modern equivalents of mass-produced bibles.

These mobile devices are helping to disseminate not only political ideas but technological literacy and innovation-driven productivity to workers around the globe.

That's a positive development for the world economy and for nascent, democratic political movements.

Yet even as it empowers individuals, the proliferation of connected-consumer technology is making nations and large corporations less secure.

In such uncertain times, as terrorist attacks on civilians and hacker attacks on corporate computer systems increase, the urge to censor ideas is once again on the rise.

Last week, U.K. Prime Minister David Cameron proposed a new form of censorship, one that could become the digital equivalent of book-banning.

What Cameron would like to ban is not printed books but rather encrypted texts and e-mails, like those often used by terrorists.

Cameron wrapped his proposal in a speech that stated that the most important thing a government can do for its people is to keep them safe.

I would argue to Cameron that the most important thing a democracy can do for its people is to keep them free.

That means being free to express political opinions and communicate with whomever they want in whatever manner they want.

At times, such freedom comes at a terrible cost — one paid for in blood — as Americans were reminded on Sept. 11, 2001, and as the people of France suffered this month.

But terrorists aren't the only people who favor secret communication. So do government whistle-blowers and political dissidents.

That's why Internet censorship is practiced with great vigor in countries with traditions of violently suppressing political dissent, including China, Russia, North Korea and much of the Middle East.

Cameron's proposal — like China's great Internet firewall and the USA Patriot Act — could trade freedom for a promise of safety. It's also a tacit admission that law-enforcement agencies have fallen behind the technology curve. Rather than modernize them, Cameron would slow down the use of a new technology that can be used by some to promote dangerous ideas.

There's no doubt that the spread of radical Islam is dangerous, given that its adherents persist in murdering civilians. Yet as the printing press and the Reformation showed, such attempts at information control are usually futile over the long run.

What's needed instead is a long-term plan to engage and empower those at risk of being radicalized and using murder to express their political and social grievances.

Let's hope those gathered in Davos, Switzerland, this week can come up with an idea or two for doing so.

Internet consumers who care about online privacy and long-term security should fight any proposal to ban encrypted communication. So should executives or board members who want to discuss their company's strategy or finances behind closed doors.

In the wake of computer attacks that have included the theft of sensitive e-mails, look for more companies to encrypt such internal communications. A proposal like Cameron's would give law enforcement agencies blanket access to those as well.

Americans should be leery of anyone who promises to keep them safe via online censorship and other restrictions on private communication.

History shows that individual freedom and empowerment — not safety at all costs — is the best long-term strategy for nurturing and protecting democracies.

Shinal has covered tech and financial markets for more than 15 years at Bloomberg, BusinessWeek,The San Francisco Chronicle, Dow Jones MarketWatch, Wall Street Journal Digital Network and others. Follow him on Twitter: @johnshinal.

from BoingBoint, 2015-Jan-13, by Cory Doctorow:

What David Cameron just proposed would endanger every Briton and destroy the IT industry
David Cameron says there should be no "means of communication" which "we cannot read" -- and no doubt many in his party will agree with him, politically. But if they understood the technology, they would be shocked to their boots.

What David Cameron thinks he's saying is, "We will command all the software creators we can reach to introduce back-doors into their tools for us." There are enormous problems with this: there's no back door that only lets good guys go through it. If your Whatsapp or Google Hangouts has a deliberately introduced flaw in it, then foreign spies, criminals, crooked police (like those who fed sensitive information to the tabloids who were implicated in the hacking scandal -- and like the high-level police who secretly worked for organised crime for years), and criminals will eventually discover this vulnerability. They -- and not just the security services -- will be able to use it to intercept all of our communications. That includes things like the pictures of your kids in your bath that you send to your parents to the trade secrets you send to your co-workers.

But this is just for starters. David Cameron doesn't understand technology very well, so he doesn't actually know what he's asking for.

For David Cameron's proposal to work, he will need to stop Britons from installing software that comes from software creators who are out of his jurisdiction. The very best in secure communications are already free/open source projects, maintained by thousands of independent programmers around the world. They are widely available, and thanks to things like cryptographic signing, it is possible to download these packages from any server in the world (not just big ones like Github) and verify, with a very high degree of confidence, that the software you've downloaded hasn't been tampered with.

Cameron is not alone here. The regime he proposes is already in place in countries like Syria, Russia, and Iran (for the record, none of these countries have had much luck with it). There are two means by which authoritarian governments have attempted to restrict the use of secure technology: by network filtering and by technology mandates.

David Cameron has already shown that he believes he can order the nation's ISPs to block access to certain websites (again, for the record, this hasn't worked very well). The next step is to order Chinese-style filtering using deep packet inspection, to try and distinguish traffic and block forbidden programs. This is a formidable technical challenge. Intrinsic to core Internet protocols like IPv4/6, TCP and UDP is the potential to "tunnel" one protocol inside another. This makes the project of figuring out whether a given packet is on the white-list or the black-list transcendentally hard, especially if you want to minimise the number of "good" sessions you accidentally blackhole.

More ambitious is a mandate over which code operating systems in the UK are allowed to execute. This is very hard indeed. We do have, in Apple's Ios platform and various games consoles, a regime where a single company uses countermeasures to ensure that only software it has blessed can run on the devices it sells to us. These companies could, indeed, be compelled (by an act of Parliament) to block secure software. Even there, you'd have to contend with the fact that other EU states and countries like the USA are unlikely to follow suit, and that means that anyone who bought her Iphone in Paris or New York could come to the UK with all their secure software intact and send messages "we cannot read."

But there is the problem of more open platforms, like GNU/Linux variants, BSD and other unixes, Mac OS X, and all the non-mobile versions of Windows. All of these operating systems are already designed to allow users to execute any code they want to run. The commercial operators -- Apple and Microsoft -- might conceivably be compelled by Parliament to change their operating systems to block secure software in the future, but that doesn't do anything to stop people from using all the PCs now in existence to run code that the PM wants to ban.

More difficult is the world of free/open operating systems like GNU/Linux and BSD. These operating systems are the gold standard for servers, and widely used on desktop computers (especially by the engineers and administrators who run the nation's IT). There is no legal or technical mechanism by which code that is designed to be modified by its users can co-exist with a rule that says that code must treat its users as adversaries and seek to prevent them from running prohibited code.

This, then, is what David Cameron is proposing:

* All Britons' communications must be easy for criminals, voyeurs and foreign spies to intercept

* Any firms within reach of the UK government must be banned from producing secure software

* All major code repositories, such as Github and Sourceforge, must be blocked

* Search engines must not answer queries about web-pages that carry secure software

* Virtually all academic security work in the UK must cease -- security research must only take place in proprietary research environments where there is no onus to publish one's findings, such as industry R&D and the security services

* All packets in and out of the country, and within the country, must be subject to Chinese-style deep-packet inspection and any packets that appear to originate from secure software must be dropped

* Existing walled gardens (like Ios and games consoles) must be ordered to ban their users from installing secure software

* Anyone visiting the country from abroad must have their smartphones held at the border until they leave

* Proprietary operating system vendors (Microsoft and Apple) must be ordered to redesign their operating systems as walled gardens that only allow users to run software from an app store, which will not sell or give secure software to Britons

* Free/open source operating systems -- that power the energy, banking, ecommerce, and infrastructure sectors -- must be banned outright

David Cameron will say that he doesn't want to do any of this. He'll say that he can implement weaker versions of it -- say, only blocking some "notorious" sites that carry secure software. But anything less than the programme above will have no material effect on the ability of criminals to carry on perfectly secret conversations that "we cannot read". If any commodity PC or jailbroken phone can run any of the world's most popular communications applications, then "bad guys" will just use them. Jailbreaking an OS isn't hard. Downloading an app isn't hard. Stopping people from running code they want to run is -- and what's more, it puts the whole nation -- individuals and industry -- in terrible jeopardy.

from the Wall Street Journal, 2014-Dec-29, by Barry A. Fisher:

Free Speech's Shrinking Circle of Friends
Liberals and even some conservatives embrace the `heckler's veto' threat to the First Amendment.

An essential freedom-of-speech paradigm was established in 1949 by the Supreme Court in Terminiello v. Chicago. In that case a vitriolic, racist speaker spoke to an auditorium packed with supporters. Outside the auditorium was what was described as “ `a surging, howling mob hurling epithets' at those who would enter and `tried to tear their clothes off.' ” The police blamed the mob's action on the speaker, Arthur Terminiello, a Catholic priest under suspension by his bishop. He was convicted of disturbing the peace and fined.

The Supreme Court, in a 5-4 decision, reversed the conviction and ruled that Terminiello's speech was protected by the First Amendment. The court said that the police, instead of taking action against the speaker, should have protected him and controlled the crowd, including making arrests if necessary. University of Chicago law professor Harry Kalven Jr. would later coin the term “heckler's veto” to describe what would have happened had the court decided otherwise. First Amendment rights could be “vetoed” by others who create a public disturbance that forces the silencing of the speaker.

Sony 's recent crisis over the film “The Interview”—along with the domestic political correctness and anti-hate speech movements, various international agreements and globalization itself—is leading the country precisely toward a heckler's veto.

Protesters have silenced speakers on several occasions this year, sometimes with the law's support. In February a panel of the Ninth Circuit Court of Appeals upheld a California high school's decision to prohibit students from wearing American-flag T-shirts on Cinco de Mayo “to avert violence.” In August a panel of the Sixth Circuit Court of Appeals upheld the ejection of an anti-Islam Christian group from an Arab festival in Dearborn, Mich., on the theory that the group's speech would incite festivalgoers to violence. (In October the full court agreed to reconsider the decision.)

In December protesters against the non-indictment of a police officer in Ferguson, Mo., stormed into an auditorium at the University of California, Berkeley, and shut down a speech by Internet entrepreneur Peter Thiel . And during the past academic year, protesters caused the cancellation of commencement addresses by former U.S. Secretary of State Condoleezza Rice at Rutgers University, and International Monetary Fund Director Christine Lagarde at Smith College.

There is growing support, including among academics and racial and religious advocacy groups, that what they define as hate speech like Terminiello's is simply outside the First Amendment's protection. Law professors have concocted influential concepts like “outsider jurisprudence,” “critical race theory,” “critical feminist theory, and “storytelling” theory to define some kinds of politically incorrect speech as not speech at all, but “mechanisms of subordination.”

The International Covenant on Civil and Political Rights (which the U.S. Senate ratified, but with several “reservations” that may have rendered it toothless for now) nominally protects free expression, but requires state parties to prohibit “any advocacy of national, racial or religious hatred that constitutes incitement to discrimination.” The Organization of the Islamic Conference has repeatedly sponsored resolutions in the U.N. Human Rights Commission against the “defamation of religion.”

Meanwhile, globalization itself poses challenges.

In Terminiello, the site of the speech was a rented hall in Chicago. In the case of “The Interview,” the “speaker” is Sony Pictures, a subsidiary of the Japanese technology and media conglomerate. The “places” of speech were mostly intended to be big theater chains like AMC Theatres. AMC is a subsidiary of another foreign company, the Chinese conglomerate Dalian Wanda Group. The movie—the “speech” in this case—satirizes a third country, North Korea.

The project is informed by national interests and international relations that conflict with each other and with those of the U.S. Internal Sony emails released by hackers that the U.S. government has said were working for North Korea, show that executives in Tokyo, including the CEO of Sony Corp., were concerned about the film's potential for inflaming relations between Japan and North Korea, and made changes to tone it down. No matter; North Korea declared that to allow the production and distribution of the movie was an “act of war” and threatened attacks against targets in the U.S.

China has used its muscle to squelch free speech in the U.S. sometimes involving Falun Gong—a religious group that Beijing has condemned and whose members have been brutally persecuted in China. Several years ago Falun Gong had an agreement to rent space for exhibits at a major Los Angeles hotel. They complained that the Chinese government pressured the hotel to end its agreement. Chinese consulates in the U.S. also have pressured local Chinese New Year's Day committees to prevent Falun Gong from participating in Chinese New Year's parades in cities including Los Angeles, San Francisco and New York. With globalization, the reach of foreign government influence on free expression will multiply, and the free expression that Americans enjoy will wither.

It is rare for movies released by major studios to be shut down by opposition. Ironically, one example also involved Korea—the film “Inchon,” a Hollywood production with a stellar cast and crew. The film, at its pre-release première at Washington's Kennedy Center, was greeted by picketers who had been alerted that it had been financed largely by Rev. Sun Myung Moon, whose Unification Church was accused of being a coercive cult.

The film was released by MGM/UA in 1982, and again drew anti-Unification Church pickets in Los Angeles. With public attention focused on Unification Church involvement in the film rather than, as hoped by the producers, the actual battle of Inchon in 1950, the film was swiftly withdrawn at the request of the Unification Church. It was never shown again in theaters and was never released on videocassette or DVD.

Do police have a duty to protect the film exhibitors and viewers of “The Interview,” or of similar such films in the future? Fear of retaliation already has inhibited speech about Muhammad and other Islam-related matters—Iran's 1989 fatwa calling for the assassination of Salman Rushdie, author of “The Satanic Verses,” being the most well known. Add to that now speech about North Korea.

Mr. Fisher is a partner in the Los Angeles law firm of Fleishman & Fisher. He has litigated free-speech cases in state and federal courts including the Supreme Court, and has served as vice chairman of the American Bar Association First Amendment Committee.

from the Wall Street Journal, 2014-Oct-31, by John O'Sullivan:

No Offense: The New Threats to Free Speech
The U.S. and Britain have long considered themselves the standard-bearers for freedom of expression. Can this proud tradition survive the idea that `hurtful' speech deserves no protection?

On Feb. 14, 1989, I happened to be on a panel on press freedom for the Columbia Journalism Review when someone in the audience told us of Ayatollah Ruhollah Khomeini's religious edict for blasphemy against the British novelist Salman Rushdie. What did we think? We didn't, as I best recall, disgrace ourselves. We said most of the right things about defending freedom of thought and the imagination.

But the death sentence from Iran's supreme leader seemed unreal—the sending of a thunderbolt from medieval Qom against modern Bloomsbury—and we didn't treat it with the seriousness that it deserved. I recall, alas, making a very poor joke about literary deconstructionism. My colleagues, though more sensible, were baffled and hesitant. Was it even true—or perhaps just a mistranslation?

We knew soon enough that it was true. The literary, media and political worlds rallied in defense of Mr. Rushdie. He became a hero of free speech and a symbol—even if a slightly ambivalent postcolonial one—of Western liberal traditions. But he also went, very sensibly, behind a curtain of security that was to last many years.

And by degrees—when it seemed that not only Mr. Rushdie's life but the lives of his publishers, editors and translators might be threatened—his base of support in the literary world thinned out. Sensitive intellectuals discovered that, in a multicultural world, respect for the Other meant understanding his traditions too, and these often were, well, sterner than ours. Freedom of speech was only one value to be set against…ahem, several other values. Fear, cowardice and rationalization spread outward.

Twenty-five years later, we can look back on a long series of similar events, including: the 2002 anti-Christian riots in Nigeria, in which more than 200 people were killed because a local tabloid had facetiously suggested that Miss World contestants would make suitable brides for Muhammad; the 2004 murder of the Dutch filmmaker Theo van Gogh for his movie “Submission,” in which passages from the Quran were printed on women's bodies; the riots in Denmark and throughout the Middle East in 2005 in response to the publication of cartoons of Muhammad by a Danish magazine; the murder threats against Dutch politician Geert Wilders for his 2008 film “Fitna,” which interleaved passages from the Quran with clips of jihadist violence.

These events were threats to free speech, however, not only in themselves but also because they intimidated people and private organizations and gave governments an excuse to restrict free media. Over time, they encouraged others who had no interest in Islam whatsoever—from wealthy individuals to “dissident” minorities to democratic politicians—to try their hand at silencing opponents. Almost no newspapers published the Muhammad cartoons, for instance, though the story of them dominated the international media for weeks. Yale University Press especially distinguished itself by publishing a major study of the controversy in 2009—without the actual drawings.

Governments began to treat those threatened for their opinions almost as harshly as those attacking them. Dutch legal authorities tried repeatedly, if unsuccessfully, to prosecute Mr. Wilders for “inciting hatred” with his film. He was briefly prohibited from entering Britain. In 2006, Tony Blair's government passed the Racial and Religious Hatred Act—a kind of “blasphemy lite” law—ostensibly designed to protect all religions against threatening expression but generally understood as intended to limit hostile criticism of Islam. Both the U.S. and the European Union have entered into a dialogue in recent years with the 56 states of the Organization of the Islamic Conference, which is seeking an international law prohibiting blasphemy. In 2011, Secretary of State Hillary Clinton told the OIC that, while the First Amendment prevented the U.S. from prohibiting speech, the administration might still “use some old-fashioned techniques of peer pressure and shaming so that people don't feel they have the support to do what we abhor.”

Admittedly, it is difficult to draw a clear line between criticism of an Islamic belief and an attack on Muslims who believe it. If you denounce a belief as absurd, you are implicitly criticizing the believers as credulous fools. Christians have to endure explicit denunciations of their faith all the time from such writers as Richard Dawkins and Sam Harris. And so they should. If you can't stand the heat, don't listen to hellfire sermons from atheists.

Hearing criticisms of your own convictions and learning the beliefs of others are training for life in a multifaith society. Preventing open debate means that all believers, including atheists, remain in the prison of unconsidered opinion. The right to be offended, which is the other side of free speech, is therefore a genuine right. True belief and honest doubt are both impossible without it.

It isn't just some Muslims who want the false comfort of censoring disagreeable opinions. Far from it. Gays, Christians, feminists, patriots, foreign despots, ethnic activists—or organizations claiming to speak for them—are among the many groups seeking relief from the criticism of others through the courts, the legislatures and the public square.

England's libel laws—long a scandalous system for enabling the rich to suppress their scandals—now have imitations in Europe and the U.S. In May 2014, the European Court of Justice created “the right to be forgotten,” enabling those with ugly pasts—a fraudster, a failed politician, an anti-Muslim bigot perhaps—to delete their crimes, misdemeanors and embarrassments from Internet records so that search engines cannot find them.

Surely such things can't happen in the land of the First Amendment? Not in quite the same way, perhaps, but a libel suit brought by the climatologist Michael Mann against the opinion writer Mark Steyn, National Review magazine (with which I am affiliated) and the Competitive Enterprise Institute for their criticism of his temperature projections still poses a chilling threat to free speech and scientific debate. Even if the case is ultimately resolved in favor of Mr. Mann's critics, they will have suffered a considerable loss in time and money. “The process is the punishment,” Mr. Steyn has said of such trials. It is also a deterrent to future critics.

Nor are conservatives free from sin on this issue. In recent years, their attacks on free expression in the U.S. have generally been prompted by a philistine discomfort with provocative art, from the “Sensation” exhibition at the Brooklyn Museum in 1999 to the more recent flap over “The Death of Klinghoffer” at New York's Metropolitan Opera.

In Britain, the sitting Tory home secretary, Theresa May, long resisted efforts to reform a catchall law regulating speech that the police have enforced with extraordinary zeal and no sense of proportion. These police actions include arresting a protester for asking a policeman “Is your horse gay?”; prosecuting a drunken soccer fan who, from his sofa, attacked a player in a racist tweet; summoning a youngster to appear in court for a placard describing Scientology as a cult; and arresting a Muslim demonstrator for burning a Remembrance Poppy.

Under the new British law, an evangelical Christian also was fined for holding up a sign that read “Stop Homosexuality, Stop Lesbianism.” But he was lucky. A human rights tribunal in Canada imposed a lifetime ban on sermonizing about homosexuality on a clergyman who had similarly offended. In both countries, the restraints on speech have since been softened, but the concessions have been modest, and Canada's Supreme Court has clearly indicated a wish to retain the new speech regime in full.

This slow erosion of freedom of expression has come about in ways both social and legal. Before the 1960s, arguments for censorship tended to focus on sexual morality, pornography and obscenity. The censors themselves were usually depicted as benighted moral conservatives—priggish maiden aunts. Freedom of political speech, however, was regarded as sacrosanct by all. As legal restraints on obscenity fell away, however, freedom of political speech began to come under attack from a different kind of censor—college administrators, ethnic-grievance groups, gay and feminist advocates.

The new censors advanced such arguments as that “free speech can never be an excuse for racism.” These arguments are essentially exercises both in begging the question and in confusing it. While the principle of free speech cannot justify racism any more than it can disprove racism, it is the only principle that can allow us to judge whether or not particular speech is racist. Thus the censor's argument should be reversed: “Accusations of racism can never be an excuse for prohibiting free speech.”

Meanwhile, the narrowly legal grounds for restricting speech changed, too. Since the 18th century, the basic legal justifications for restricting political speech and publication were direct incitement to harm, national security, maintaining public order, libel, etc. Content wasn't supposed to be considered (though it was sometimes smuggled in under other headings).

Today, content is increasingly the explicit justification for restricting speech. The argument used, especially in colleges, is that “words hurt.” Thus, universities, parliaments, courts and various international bodies intervene promiscuously to restrict hurtful or offensive speech—with the results described above. In the new climate, hurtful speech is much more likely to be political speech than obscene speech.

The definition of political speech has changed too. The U.S. Supreme Court has expanded it to include nonspeech actions, such as nude dancing. Conservative judges such as the late Robert Bork had some fun pointing out that, under the Court's rulings, students couldn't lawfully pray before a football game, but they might dance naked—unless the dance included scarves, since this might constitute a prohibited “biblical” allusion to Salome's veils.

There is plainly scope for disagreement over what actions amount to protected speech, but in a landmark ruling in 1989, the Supreme Court decided that burning the American flag was among them. If one accepts the notion of nonspeech opinion, it is difficult to disagree. Burning the flag of the U.S., however odious, is plainly a statement meant to reject American power and legitimacy.

The Court's judgment in this case was the apogee of post-Vietnam free speech liberalism. But to bring the issue up-to-date: Burning the Quran also expresses a political opinion. Would today's justices reach the same conclusion as their predecessors did on the question of flag-burning? Would a U.S. administration that is discussing an international blasphemy law with the world's Islamic states tell the Court that burning a Quran is also protected speech? It is, at the very least, doubtful.

We know that today's British government wouldn't do so. Burning a Remembrance Day poppy is the British equivalent of flag-burning, and Ms. May, the home secretary, implicitly disagreed with the American precedent in her defense of Britain's restrictive laws. She explained that “a careful balance [had] to be struck between protecting our proud tradition of free speech and taking action against those who cause widespread offense.” Realistically parsed, this amounts to an acknowledgment that Britain's proud tradition of free speech will not in fact be protected. Speech that offends significant groups of people—as distinguished from speech that directly invites or threatens violence—will be censored or punished.

Some years ago, the liberal writer Michael Kinsley described the different attitudes to free speech in the U.K. and the U.S. as follows: “In a country like Great Britain, the legal protections for speech are weaker than ours, but the social protections are stronger. They lack a First Amendment, but they have thicker skin and a greater acceptance of eccentricity of all sorts.”

Today, both sorts of protection for speech—legal and social—are weaker than before in both countries. This year, official regulation of the press was passed into U.K. law for the first time since 18th-century juries nullified press prosecutions. These new restraints enjoyed the backing not just of all the parties but apparently of the public as well.

In the U.S., the case of Mann v. Steyn, let alone a hypothetical case involving Quran-burning, has yet to be decided. But Democrats in the Senate are seeking to restrict political speech by restricting the money spent to promote it. And in the private sector, American corporations have blacklisted employees for expressing or financing certain unfashionable opinions. In short, a public culture that used to be liberal is now “progressive”—which is something like liberalism minus its commitment to freedom.

The U.S. and Britain have long thought of themselves as, above all, free countries. If that identity continues to atrophy, free speech will be the first victim. But it will not be the last.

Mr. O'Sullivan is director of the Danube Institute in Budapest and a senior fellow of the National Review Institute in New York.

from the Wall Street Journal, 2015-Jan-15, by Deborah Ball:

Pope Francis Sees Limits to Freedom of Speech
On the Way to the Philippines, Pope Also Calls Killing in Name of Religion an `Aberration'

MANILA— Pope Francis waded into the debate over freedom of expression following the attacks in Paris, saying that killing in the name of religion is an “aberration,” but adding that those who deride other faiths can expect to provoke a strong—even violent—response.

Speaking in reference to last week's assault on French publication Charlie Hebdo that left 12 dead, the pope said that “no one can kill in the name of God. This is an aberration.”

He added, however, that “there is a limit to freedom of expression.” The pope offered a colorful example, referring to a hypothetical case in which someone insults his mother.

“One cannot react violently, but if [someone] says something bad about my mother, he can expect a punch. It's to be expected,” the pontiff said. “There are a lot of people who speak badly about other religions. They make fun of them. What happens is what happens with my friend [who insults my mother]. There is a limit.”

The pope made the comments during an in-flight news conference from Sri Lanka to Manila, where he took up the second leg of a weeklong tour of Asia. He was greeted at the airport by President Benigno Aquino III and a performance by hundreds of jeans-clad young people. People cheered the pope's motorcade to the residence of the apostolic nuncio.

In recent days, the 78-year-old pontiff strongly denounced the attack by two militant Muslim gunmen on Charlie Hebdo, the French satirical publication that has long derided Islam and other religions and their institutions, including the Vatican.

Before leaving Rome on Monday, the pope said “deviant forms of religion” lead to atrocities such as those in France, and he prayed for the victims.

—Deborah Ball

He has frequently denounced killings and persecution, particularly of Christians, perpetrated by Islamic fighters in the name of religion. The pontiff has been a strong advocate of interreligious dialogue, even in the face of Islam-inspired violence.

But his in-flight remarks are likely to fuel the debate about freedom of expression that has erupted since the killings, amid complaints from Muslim leaders that the French publication stepped over the line in its mordant depictions of the Prophet Muhammad.

“Each person not only has the freedom but also the obligation to say what he thinks in the name of the common good,” the pope said. But “each religion has its dignity. I cannot make fun of it.”

Separately, the pope said a much-anticipated encyclical on the environment likely will come out in June or July. It will be the first papal encyclical on the issue, and any strong stand by the pope on the question of whether climate change is provoked by human activity is likely to be divisive.

The Argentine-born pontiff has frequently warned against the despoiling of the planet and has expressed concern over the impact of rising tides and natural catastrophes on poor countries. As a result, some expect him to endorse the idea that human activity is a cause of global warming. If so, the Catholic Church could give a major boost to those who see human activity as causing climate change.

In the news conference, the pope sidestepped the question, saying only that he believes that man “has overexploited nature” and making reference to concerns raised by Catholic leaders regarding the deforestation of the Amazon.

The pope is hoping to release the encyclical before the U.N. Climate Change Conference in Paris in November, saying that past efforts to find international agreement on ways to combat climate change “lacked courage.”

“Let's hope that in Paris, they are braver,” he said.

Environmental issues are likely to emerge during the pope's tour of the Philippines, parts of which were devastated by a typhoon in November 2013. A major highlight of the Philippines visit will be a Mass scheduled Saturday in Tacloban, an area that suffered the largest number of casualties.

The pope also dropped a strong hint that he could travel to Mexico or to the U.S.-Mexican border during a planned trip to the U.S. in September. The Holy See has confirmed only that he will attend a world family day in Philadelphia in September, but Pope Francis has said publicly that he is considering stops in Washington, D.C., New York and Mexico.

During the news conference, the pope said that during his September trip, he will canonize Junipero Serra, a cleric credited with having spread Catholicism in the Western U.S. in the 18th century. He gave no further details. The Vatican typically confirms the exact agenda of papal travels a couple of months ahead of a visit.

The pontiff also addressed concerns that he could be the target of an attack by Islam-inspired militants. Since the Paris attack, the Italian government has acknowledged that the Vatican could be a target, although it said it has no information on specific threats.

Almost every Wednesday, the pope holds a public audience in St. Peter's Square, typically touring the piazza in his open-top popemobile and stopping to greet some of the tens of thousands of faithful who come to the area.

Security is a major concern for the Philippines trip. Some fear an attempt on the pope's life by al Qaeda-linked Islamic militants active in the south of the country. Authorities are also concerned that the huge crowds—a Mass on Sunday could draw as many as six million people—could rush the hugely popular pontiff. He was surrounded by bodyguards at his arrival at the airport, and security forces jammed cellular networks.

Pope Francis, who hates being constrained by security and has spurned bulletproof cars, admitted Thursday that he was concerned about security, particularly the risk that an attack could injure or kill bystanders.

“I worry, but I have a healthy dose of disregard,” Pope Francis said. “I know they are taking security precautions….All I can do is pray that I don't feel pain [in the case of an attempt on his life]. I'm not very courageous when it comes to pain.”

from the Wall Street Journal Best of the Web, 2015-Jan-29, by James Taranto:

Is Jonathan Chait Liberal?
He doesn't live by the creed he now defends.

The obvious thing to say about Jonathan Chait's battle against the left is that we're rooting for casualties. Which we suppose calls for an explanation of why we're not simply on Chait's side.

After all, we agree with the broad thesis of his lengthy New York magazine article, “Not a Very P.C. Thing to Say,” which is (our paraphrase) that political correctness is both noxious and imbecilic. There's also some good reporting in there, most notably a riotous series of quotes from a secret Facebook group that calls itself “Binders Full of Women Writers” and functions as a distaff Journolist.

Yet whereas Journolist—of which Chait himself was a member—served its function of encouraging ideological conformity, BFOWW is filled with “bitter identity-politics recriminations, endlessly litigating the fraught requirements of p.c. discourse.” One writer endured a “vicious backlash” for her witty self-description as a “gluten free WWC,” an acronym for “woman without color.” (Our preferred term would be “woman of pallor,” but we can see where the acronym would be awkward.)

Chait argues, without much evidence, that “after political correctness burst onto the academic scene in the late '80s and early '90s, it went into a long remission.” More persuasively, he asserts that it's worse now than then, because it's more widespread:

It would be a mistake to categorize today's p.c. culture as only an academic phenomenon. Political correctness is a style of politics in which the more radical members of the left attempt to regulate political discourse by defining opposing views as bigoted and illegitimate. Two decades ago, the only communities where the left could exert such hegemonic control lay within academia, which gave it an influence on intellectual life far out of proportion to its numeric size. Today's political correctness flourishes most consequentially on social media, where it enjoys a frisson of cool and vast new cultural reach. And since social media is also now the milieu that hosts most political debate, the new p.c. has attained an influence over mainstream journalism and commentary beyond that of the old.

Chait's essay has prompted sharp disagreement on both left and right, and both sides make some decent points. Gawker's Alex Pareene opens by describing Chait as a “sad white man,” a common PC argumentum ad hominem. But he is on to something with this observation:

Chait, like many liberal commentators with his background, is used to writing off left-wing critics and reserving his real writerly firepower for (frequently deserving) right-wingers. That was, for years, how things worked at the center-left opinion journalism shops, because it was simply assumed that no one important—no one who really matters—took the opinions of people to the left of the center-left opinion shop seriously. That was a safe and largely correct assumption. But the destruction of the magazine industry and the growth of the open-forum internet have amplified formerly marginal voices. Now, in other words, writers of color can be just as condescending and dismissive of Chait as he always was toward the left. And he hates it. . . .
Now, not only is it harder to avoid reading negative feedback from people with different perspectives than you, especially if you engage online at all, but there are actually important people—people with status, who've won awards and hold positions of authority—who listen to those people with different perspectives. Ta-Nehisi Coates [with whom Chait has clashed] is at The Atlantic, for godssake, not In These Times.

Blogress Ann Althouse, a law professor whose politics are heterodox and centrist, elaborates pointedly: “The left is getting its speech out there. Lefties are employing the good old-fashioned `more speech' remedy. . . . How perfectly amusing! Liberals [like Chait] are force-fed their own `more speech' remedy, and they don't like it. Another twist in the glorious history of American free speech.”

By contrast,—whose editor in chief, Ezra Klein, founded Journolist—manages to get it completely wrong as usual. Amanda Taub's rebuttal of Chait is nervously titled “The Truth About `Political Correctness' Is That It Doesn't Actually Exist”—using 11 words and a pair of scare quotes to convey a four-word idea (“Political Correctness Doesn't Exist”).

Here's Taub's thesis and an example:

First things first: there's no such thing as “political correctness.” The term's in wide use, certainly, but has no actual fixed or specific meaning. What defines it is not what it describes but how it's used: as a way to dismiss a concern or demand as a frivolous grievance rather than a real issue. . . .
An example from outside of Chait's article makes it easy to see how that technique works in practice. I, personally, think that the name of the Washington Redskins is racist and hurtful to Native Americans, and should be changed. So if someone asks me what I think of the debate about the team, that's what I say. By contrast, Virginia legislator Del Jackson Miller likes the name and wants the team to keep it. But rather than making an argument on the merits of the name, he referred to the entire debate as “political correctness on overdrive.” In other words, he's saying, this is a false debate—just another example of “political correctness”—so I don't have to even acknowledge concerns about racism.

With apologies in advance to the Differently Sighted, Taub's view of the “Redskins debate” is rather myopic. What she, personally, thinks of the name—which, let's face it, she almost certainly “thinks” because it's what she thinks she's supposed to think—is of little importance. How Jackson Miller—Del isn't his first name but a mistranscription of the abbreviation for his title, Delegate—makes her, personally, feel with his comment is of even less importance.

At any rate, the Redskins dispute is an especially inapposite counterexample, for it is not a case in which the left is simply answering speech with more speech. Those who seek to censor the name have employed both government coercion (the cancellation of the team's trademark, currently stayed pending a court appeal) and institutional suppression (many news organizations have banned the name from reports about the team). It is a quintessential case of politically correct censorship.

The right's critique of Chait amounts to a charge of hypocrisy: “If he wants to argue for an end of ad hominem as a substitute for analysis, then I'm altogether with Chait,” writes National Review's Kevin Williamson. “But he's only arguing that people like him should be immune to the very sort of dishonest stupidity that he practices.”

As an example of that dishonest stupidity, Williamson cites this passage from a 2010 Chait post at the New Republic, referring to the libertarian philanthropist David Koch: “Here's a man who inherited a massive business empire. He has been able to spend a gigantic fortune to help bend the political system so as to become more congenial to his own economic interests.”

Not only is this ad hominem, Williamson notes, its factual premises are faulty: “Koch Industries and the political organizations to which it contributes have long argued against (among many, many other things) subsidies that would directly benefit Koch Industries, for example handouts and mandates related to alternative fuels.”

Sean Davis of the Federalist has two more-recent examples, from Chait's work at New York: a post titled “Sorry, ObamaCare Denialists, You're Insane,” and one titled “Why Climate-Science Denialism Should Disqualify Anyone From Holding Office.” The former appeared last August, the latter last week. Davis's criticism echoes Williamson's: “Jonathan Chait isn't mad that speech codes are being employed by the online left. He's mad because he and his friends have been caught in the web.”

To these examples, we'd add one more: Chait's classic, and at the time much-discussed, 2003 New Republic piece that begins “I hate George W. Bush” and goes on in that vein for more than 3,600 words.

One might respond that the charge of hypocrisy is itself an argumentum ad hominem. The validity of Chait's argument is not diminished by his own past bad behavior, even if some of it was in the very recent past. Williamson, Davis and your humble columnist all concede that point, by endorsing, as we put it above, his broad thesis.

If the message is true, why pick on the messenger? Because in this case the argumentum ad hominem turns out to be a relevant one. In his new essay, Chait makes the following distinction:

The right wing in the United States is unusually strong compared with other industrialized democracies, and it has spent two generations turning liberal into a feared buzzword with radical connotations. This long propaganda campaign has implanted the misperception—not only among conservatives but even many liberals—that liberals and “the left” stand for the same things.
It is true that liberals and leftists both want to make society more economically and socially egalitarian. But liberals still hold to the classic Enlightenment political tradition that cherishes individuals [sic] rights, freedom of expression, and the protection of a kind of free political marketplace. (So, for that matter, do most conservatives.)

We agree with Chait's parenthetical about “most conservatives.” The rest of this passage, however, is quite wrong—and Chait himself is Exhibit A.

In his 1964 book, “Suicide of the West: An Essay on the Meaning and Destiny of Liberalism” James Burnham listed 39 sentences, about which he observed: “A full-blown liberal will mark every one, or very nearly every one, of these thirty-nine sentences, Agree. A convinced conservative will mark many or most of them, a reactionary all or nearly all of them, Disagree.” (The New Criterion's James Panero reproduced the 39 sentences in a 2005 blog post.)

Late last year we read “Suicide of the West” in preparation for a panel discussion at Yale. The 39 sentences hold up pretty well; with some qualifications, we'd say most liberals half a century later would answer “yes” to 34 of them (though 2014 conservatives would probably assent to more of them than their 1964 counterparts would have).

Here are the five exceptions:

2. Everyone is entitled to his own opinion.
12. Any interference with free speech and free assembly, except for cases of immediate public danger or juvenile corruption, is wrong.
27. In determining who is to be admitted to schools and universities, quota systems based on color, religion, family or similar factors are wrong.
33. Everyone has the right to freedom of thought, conscience and expression.
34. Everyone has the right to freedom of opinion and expression.

Sentence 27 is a special case: Almost every liberal today supports racial quotas in university admissions for purposes of “diversity”—apparently including Chait, who in a 1997 New Republic column faulted his alma mater, the University of Michigan, for denying that it treated applicants disparately based on race, but asserted that there is “an optimal level of racial preference,” namely that at which it “helps its intended beneficiaries.” Chait's main point in 1997 was that the university should be upfront so as to encourage “a free, democratic debate”—so that column, too, was primarily an argument against political correctness.

Sentences 2, 12, 33 and 34 are all variations on the theme of free expression—or, as Chait put it this week, “the protection of a kind of free political marketplace.” It struck us as we read “Suicide” that today's liberals have more or less fully rejected that ideal. We can think of some exceptions: the First Amendment lawyer Floyd Abrams, the writer Nat Hentoff, the former ACLU president Nadine Strossen. Their ages, respectively, are 78, 89 and 64. All came of age when the prevailing “liberal” worldview was the one described by Burnham.

Chait, who is in his 40s, insists that the distinction between “liberalism” and “the left” is still salient, and he puts himself forward as an exponent of the former. The examples offered by Williamson, Davis and this columnist demonstrate that Chait is nowhere near as liberal as he thinks—or, alternatively, that there is today little distinction between liberalism and the left.

Vox's Amanda Taub closes by quoting this passage from Chait's New York essay:

Of course liberals are correct not only to oppose racism and sexism but to grasp (in a way conservatives generally do not) that these biases cast a nefarious and continuing shadow over nearly every facet of American life. Since race and gender biases are embedded in our social and familial habits, our economic patterns, and even our subconscious minds, they need to be fought with some level of consciousness. The mere absence of overt discrimination will not do.

She means to suggest that when you get down to it, Chait's views are not that different from her own. Even she gets that right.

from the Wall Street Journal, 2015-Jan-1, by Lee E. Goodman:

Online Political Opinions Don't Need Regulating
YouTube videos expressing conservative views are an exercise of free speech, not a reason to rein in the Internet.

A decade ago, the Federal Election Commission, where I am a commisioner and former chairman, debated whether it should regulate political communications posted on the Internet. The commission received more than 800 public comments and, after thorough study and two days of hearings, unanimously approved a rule in 2006 that freed the vast majority of political commentary on the Internet from regulation.

That Internet freedom rule exempted all political commentary that citizens and groups distribute online free, whether in email or on websites, blogs or various social media platforms. The commission retained jurisdiction over two limited areas: political campaigns, parties and political-action committees that post communications on the Internet; and anyone else who posts express electoral advocacy online for an advertising fee—like a paid advertisement placed on television or in a newspaper.

The rule opened a robust national forum for political discussion about public policy, government and elections. Millions of citizens are now empowered to speak widely as commenters, bloggers, podcasters, YouTube posters and Facebook supporters, while new technologies have facilitated a record number of new political communities at a fraction of historical costs. Political speech and civic engagement have flourished on the Internet.

But this freedom can no longer be taken for granted. In a recent enforcement matter, a conservative group allegedly violated the law by posting two political videos on YouTube without reporting them to the FEC. The FEC's Office of General Counsel recommended that the commission dismiss the case because the videos were disseminated free and solely on the Internet. I, along with two Republican colleagues, voted to dismiss the complaint, effectively blocking any further action. But three commissioners—two Democrats and one independent—voted to investigate the group.

Vice Chairwoman Ann Ravel explained in an Oct. 24 statement that she voted to investigate the group because the 2006 rule turned a “blind eye” toward Internet communications and “failed to acknowledge the importance of providing transparency to the public no matter what the medium of political communication.” She also criticized the Republican commissioners for following the rule: “Some of my colleagues seem to believe that the same political message that would require disclosure if run on television should be categorically exempt from the same requirements when placed on the Internet alone [free]. As a matter of policy, this simply does not make sense.”

Commissioner Ravel has since backtracked. In a Nov. 5 letter to the editor of this newspaper, she wrote that she meant only that the “FEC is woefully out of step with technological innovations,” and that she simply wanted “to encourage the FEC to begin opening a new dialogue, listening to outside experts and gathering a broad range of views about new and emerging technologies.”

This case did spark a dialogue. Nearly 2,000 citizens have submitted comments urging the commission to keep its hands off the Internet. While Commissioner Ravel's rebooted rationale is an improvement, it is of little solace to thousands of online speakers who now post under the chilling shadow of the FEC's split vote—and Commissioner Ravel's expressed intent to disregard established law and seek to regulate YouTube videos—until she hears more about technological innovations from outside experts.

The FEC should not only adhere to the 2006 rule but also expand Internet freedom, for several reasons. First, for the low cost of a personal computer and a monthly Internet-connection charge, citizens can reach millions of people. The Internet has so democratized modern journalism that there are thousands of regular online publications, bloggers, podcasters and commentators of all stripes. Government registration, reporting and disclaimer regulations would burden and interfere with online publishers small and large.

Second, the FEC has no authority to regulate political speech for the sake of limiting speech, but only with regard to large monetary contributions and expenditures with corruptive potential. Unlike the expensive television-ad buys targeted by campaign-finance reforms of the 1970s, free and low-cost Internet postings are not corrupting because no large expenditures of money are necessary. On the Internet, well-expressed ideas can find an audience without cost barriers.

Third, citizens voluntarily seek the viewpoints they want to hear on the Internet. Government should not impose regulatory burdens that restrict the political information citizens choose to view.

Finally, how would the FEC ever monitor the Internet to cull posts meriting investigation? The specter of government agents reviewing the thousands of daily online political posts is as impractical as it is ominous. Just as infeasible would be a regulatory scheme that attempts to assign monetary values to unique online posts or regulates citizens based on what portion of their online use is devoted to political activities.

The FEC considered these ideas when it adopted the 2006 rule, and the commission chose freedom for citizens and organizations. Nothing justifies revisiting that studied determination. Heavy-handed regulations and disclosure burdens would impede online participation and threaten the continued viability of the most democratic public forum of all time. Given the boundless promise of the Internet and new technologies as tools for civic engagement, if anything the Federal Election Commission must instead look for new ways to encourage—rather than discourage—political speech and democratic engagement online.

Mr. Goodman is a commissioner and former chairman of the Federal Election Commission.

Corrections & Amplifications

An earlier version misstated the current status of the enforcement matter concerning the political videos on YouTube.

from the Wall Street Journal, 2015-Jan-2:

Campaign-Finance Bondage
How rules limiting political donations trap the little guy.

Campaign-finance reformers claim to oppose “big money” in politics, but more often small citizen groups get caught in the webs that regulate political speech. That's what has happened in Arizona, where a federal court recently formalized a decision striking down the state's byzantine definition of a “political committee.” The court's decision invalidates many of the Arizona campaign laws that depend on that definition.

In 2011 Dina Galassini, a resident of Fountain Hills, Ariz., emailed 23 acquaintances about staging an old-fashioned protest against a bond measure scheduled for a town vote. Her plan: Make homemade signs and wave them on the street to convince people to oppose the bond issue. Ms. Galassini estimates she spent about $25 on her advocacy. Sounds like grass-roots democracy in action—except to the campaign police.

Her email made its way to the town's election officers, who promptly warned her in a letter not to engage in any further political speech until she registered as a political committee. Under the law in Fountain Hills, as soon as two or more people associate and either accept any contributions or spend money for a political purpose, they had to be considered a political-action committee.

In Arizona that designation comes with bureaucratic entanglements especially burdensome on an operation as small as Ms. Galassini's. Political committees are required to file regular reports on all contributions and expenditures, have separate bank accounts, keep records for three years and disclose donors who contribute more than $50.

With the help of the Institute for Justice, Ms. Galassini sued, arguing that such broad and vague suppression of political speech violates the First Amendment. In September 2013, federal Judge James Teilborg agreed, writing that it is “not clear that even a campaign finance attorney would be able to ascertain how to interpret the definition of `political committee' in Arizona. As such, people of common intelligence must guess at the law's meaning and will differ as to its application.”

The state's definition is also so vast that it “sweeps in a substantial amount of constitutionally protected speech without any sufficiently important governmental interest in regulating such speech,” Judge Teilborg continued. He formalized the decision in December.

This decision for “common intelligence” is good news for Ms. Galassini and other grass-roots groups whose speech might be suppressed by burdensome campaign-finance rules. It also means that Arizona laws—and there are many—that refer to political-action committees are unenforceable until the definition is resolved. That leaves the state the choice of appealing the decision or rewriting the definition.

It should do the latter in a way that restores respect to the First Amendment. Campaign-finance laws have become a trap for citizens least likely to know the rules, leaving political speech to groups that can afford fleets of lawyers to defend their rights. Kudos to Judge Teilborg for ending Arizona's campaign-finance bondage, and other judges should take up the call.

from the Wall Street Journal, 2014-Dec-19, by Tim Phillips and David Spady:

A California Assault on Free Speech That Would Shock the Founders
The state's attorney general is attempting to silence a foundation that educates Americans on free markets.

`Whoever would overthrow the liberty of a nation must begin by subduing the freeness of speech.”

Benjamin Franklin's warning is perhaps more apt today than at any point in American history. In the past four years, the Democratic Party and the progressive movement have been dealt devastating losses at the ballot box, in large part because voters rejected their policies as violations of fundamental liberties.

Yet rather than debate the merits of their policies, many on the left responded with a coordinated campaign to suppress free speech—primarily by intimidating, demonizing and silencing the people who opposed and defeated them. Examples include the Internal Revenue Services' targeting of conservative nonprofit groups, Senate Democrats' recent attempt to write a new constitutional amendment that would gut the First Amendment, and a host of other anti-free-speech efforts at both the state and federal level.

Our organizations, Americans for Prosperity, a nonprofit advocacy group that mobilizes grass-roots activists to support or oppose specific legislation and hold lawmakers accountable, and Americans for Prosperity Foundation, which educates citizens about the benefits of free-market policies, have been among the left's primary targets.

President Obama has personally leveled attacks on our nonprofits on numerous occasions, as has Majority Leader Harry Reid in speeches from the Senate floor. Their allies, whether in Congress, in the federal bureaucracy or affiliated groups, have gone to great lengths to discredit and destroy us.

On Dec. 9 the AFP Foundation filed suit in federal court to stop the latest such attack—California Attorney General Kamala Harris 's demand that we disclose our donors, including their names, addresses and contribution levels. Ms. Harris has indicated that the penalty for noncompliance will be financial penalties for our individual officers and directors as well as a denial of nonprofit status, essentially ending our work in the state of California.

Ms. Harris claims she will not disclose this information to the public. But this is a hollow promise. There is no provision of California law that ensures confidentiality. Indeed, California law appears to be to the contrary, requiring her to disclose information in her possession upon request from the public. The likely outcome is that her allies on the left will use the information to target and ultimately suppress our organization and those who support it.

Ms. Harris's demand derives no support from existing statutes or regulations. Neither state nor federal law requires nonprofits like the AFP Foundation to disclose the information she has requested. The organization has operated in California for more than 13 years, a period in which our donor and member information was never required or otherwise requested by state officials. We have fully complied with the laws and regulations that govern nonprofits. Nothing has changed, except perhaps the politicization of the office which Ms. Harris now holds.

Without any law to back up her demand, our conclusion is that the attorney general is attempting to silence our organization and its supporters.

The left has mounted a campaign against right-of-center organizations like ours for years. This trend began in the 2010 midterm election cycle when the left—facing a looming defeat at the ballot box—began characterizing nonprofits like ours as “dark” and “shadowy,” simply because our donors are anonymous. The IRS also began surreptitiously targeting many right-leaning groups that wished to use their First Amendment freedoms to speak about political issues.

Nevertheless, federal law expressly allows and protects anonymous membership for organizations of any political view, and organizations leaning both right and left operate in the same fashion. The Supreme Court has defended the First Amendment right of groups to maintain the privacy of their donors and members as well as their right to engage in anonymous political speech.

These attacks escalated in the 2012 election cycle. Among other things, the IRS began auditing people who donated to groups opposing President Obama's re-election. Such actions certainly benefited the president and his party, which emerged victorious on Election Day.

Perhaps the most alarming attack on free speech was unveiled earlier this year by the U.S. Senate. Fifty-four senators—all Democrats or independents who caucus with the Democrats—supported an unprecedented constitutional amendment to the Bill of Rights that would give Congress unlimited power to regulate, limit and suppress speech that affects politics. This potentially includes all speech. This measure—which ultimately failed to clear a necessary procedural vote in the Senate—is so sweeping that even the American Civil Liberties Union denounced it as essentially repealing the First Amendment.

Absent such an absurd new power, the left must instead rely on partisan politicians like California's Ms. Harris to harass organizations like ours. We are hopeful that the federal courts, starting with our suit in California, will rebuke such actions and recognize them as the unconstitutional assaults on free speech that they are. American democracy depends on a vigorous debate about the issues facing our country and the best policies to address them. Attempts to silence dissent and stifle disagreement demean our democratic process and weaken us as a nation.

Mr. Phillips is the president and Mr. Spady is the California state director of Americans for Prosperity.

from the Los Angeles Times, 2015-Feb-4, by Sean Silbert:

China tightens Web controls; commenters must register real names

China's Internet regulators on Wednesday announced wide-reaching rules requiring anybody posting comments online to register using their real name, the latest step in a continued tightening of control over freedom of expression online.

The regulations, which are set to take effect March 1, require people to register accounts with their real name when using blogs, online forums and other platforms that allow online expression -- including instant messaging services or news comment sections, the Cyberspace Administration of China said.

Users will be allowed to pick their own user names and avatar images, provided they aren't impersonating organizations or well-known users such as “Obama” or “Putin.” Though that means aliases can still be used to make comments online, the new rules aim to ensure that authorities know authors' real identities.

Wednesday's announcement is the latest step in what many believe is a far-reaching campaign to further control online dialogue in China -- already one of the world's most tightly restricted online environments.

The announcement underscored that authorities will not tolerate “illegal content” -- defined as anything that violates the constitution or other laws, “subverts state power” or “undermines national security.” Promoting pornography, terrorism, gambling, superstition or rumor-mongering is also forbidden.

By the end of last year, 649 million of China's more than 1.3 billion people were online, an increase of more than 31 million over the year before, according to data from the government-run China Internet Network Information Center.

Xu Feng, the head of the mobile Internet bureau of the Cyberspace Administration of China, told reporters Wednesday that the tightening of rules is intended to remove anything online that “seriously damages socialism's core values” or “violates the public interest.”

Responsibility for enforcing the new rules will be left to Internet service providers. Xu did not mention specific punishments for violators.

In addition to Wednesday's announcement, Chinese regulators recently released new rules that require writers who publish online to use their real names; similar identification rules were earlier promulgated for app developers and online video uploaders.

Government authorities recently closed 133 social media accounts they said were being used to distort Chinese history and spread lies about the ruling Communist Party. The government also has launched an attack on Virtual Private Networks, or VPNs, that enable Chinese Internet users to access blocked sites including Google and Twitter.

This is not the first time Beijing has tried to mandate more accountability in online commentary. China announced real-name registration requirements for social media services such as Sina Weibo in 2012, but the difficulty of verifying information for millions of users and the high cost of implementing the plan for Internet providers proved to be stumbling blocks.

from the Wall Street Journal, 2015-Jan-30, by Eva Dou:

China's Great Firewall Gets Taller
Internet Filter Makes It Harder to Circumvent Blocks to Services Like Google and Facebook

China's government has unveiled a smarter and stricter Internet filter, riling web users and widening the divide between China's Internet and the World Wide Web.

A recent upgrade to China's web filters, commonly referred to as the Great Firewall, has made it more difficult to use services called virtual private networks to circumvent the country's blocks to U.S. services like Google and Facebook .

Chinese officials confirmed a crackdown on VPNs this week, saying that new measures were needed as the Internet evolved. In the past week, major VPN providers such as Astrill have reported disruptions to their services.

The move is further indication of China's desire to create a parallel Internet environment that it can more easily control. The web filters serve a dual purpose of screening out content critical of the Chinese government and providing protection for China's own growing web firms against stronger overseas rivals.

The upgraded firewall also comes as Beijing is calling for U.S. technology companies to submit to intrusive security inspections, according to U.S. business groups. Advertisement

This time, China appears to have made the blocking of VPN connections more automated and dynamic, said Liviu, who runs a VPN service based in Romania and requested his surname to be withheld to avoid reprisal. Whereas China's firewall previously blocked connections known to be VPNs, since late last year it also appears to automatically find and block connections that it thinks are likely to be VPNs, he said.

“Now it seems they are doing it automatically,” he said. “You can apply some clever rules for the firewalls that will not trigger blocks.”

The crackdown has complicated life for business people in China who rely on global services such as Gmail and Twitter to communicate with clients and collaborators.

Christopher Dobbing, director of Vogmask China, which sells pollution masks, said the disruptions to VPNs have made it difficult to connect to Gmail, Facebook and other services that he uses to correspond with clients.

“I couldn't run my business without it (VPN),” he said. “I understand the government needs to protect itself against risks, but I'm just trying to do my work.”

Liheng Bai, an independent college counselor based in Shanghai, said the VPN crackdown has also presented challenges to educators and students. Ms. Bai says she searches for information about U.S. colleges online and helps students log into admissions portals when they apply for U.S. colleges—a slow process without a VPN.

“In the long run, it really affects Chinese students' access to the latest information in education, science and literature. It's very narrowing and limits their world view,” she said, adding that search results from Google and Chinese search engine Baidu are very different.

Kestrel Lee, a Shanghai-based marketing consultant who is active on social media, says that he used to use Gmail as his primary email, but has switched to Hotmail due to blocks and disruptions.

“All of us who use Gmail have created new accounts by now,” he said. “It's no use trying to fight this.”

The VPN disruptions, added to already slower connection speeds for loading foreign websites in China, mean decreased productivity for Chinese researchers, engineers and others whose work involves keeping tabs on global developments.

But state media has been arguing that the benefits for China's tech sector are larger. A Global Times column on Wednesday said the success of China's Internet giants could be credited to the firewall.

“The firewall blocks certain overseas websites in a targeted fashion, rather than isolating China's Internet from the overseas one,” the column said.

Others disagree. Peking University professor Wu Bihu took to the microblog platform Weibo to complain about recent crackdowns on the Internet and other media.

“What do you want to do?” he wrote. “The Ministry of Industry and Information Technology closes and cuts off the global Internet, the State Administration of Press, Publication, Radio, Film and Television rudely censors TV dramas, the State Administration for Industry and Commerce wanted to screw Alibaba without checking the source of the fakes or good intention…China has reformed and opened up for decades but now it's back to the impasse of seclusion. Isn't it sad!”

While the blocks are unlikely to be reversed by China's government, it could spur VPN providers to come up with new and better ways to get around the firewall, analysts say. VPN providers pointed to a similar crackdown in 2012 that resulted in stealthier wall-hopping techniques.

—Alyssa Abkowitz in Beijing and Fanfan Wang and Colum Murphy in Shanghai contributed to this article.

Corrections & Amplifications

Liviu, who runs a VPN service based in Romania and requested his surname to be withheld to avoid reprisal, said “Now it seems they are doing it automatically,” and added that “you can apply some clever rules for the firewalls that will not trigger blocks.” An earlier version of this article omitted the word “not” in the second part of the quote.

from the Wall Street Journal, 2015-Jan-2, by Sohrab Ahmari:

How to Fight the Campus Speech Police: Get a Good Lawyer
That's what student Daniel Mael had to do after Brandeis charged him with `harassment' in a dispute over Israel.

Rolling Stone magazine in November published a 9,000-word account of a horrific gang rape alleged to have occurred in 2012 at a University of Virginia fraternity. The story triggered a national outcry. UVA administrators pre-emptively suspended all fraternal activities on campus, effectively tarring an entire class of students for maintaining a culture of rape and impunity.

Then the original story collapsed. The confusion and anger that followed was a teachable moment about campus frenzies and baseless moral panic. But the episode also threw into high relief another facet of modern higher education: university administrators who, in their eagerness to mollify critics, trample students' rights and in the process lives and reputations.

Often students from unpopular groups and those who hold unpopular views find themselves alone, facing zealous administrators at closed-door disciplinary hearings. In these places the basic rights of Americans—including the right to counsel, due process, the presumption of innocence and even free speech—don't apply.

That was the predicament faced by Daniel Mael, a senior majoring in business at Brandeis University near Boston. The 22-year-old native of Newton, Mass., is on the honor roll and has immersed himself in student life, intramural sports and Brandeis's Orthodox Jewish community. As a student journalist, he has published articles in national outlets.

The problem: Mr. Mael is a pro-Israel man of the right on a campus increasingly hostile to conservatism and the Jewish state. The other problem: The Brandeis administration, as at so many colleges, is more committed to shielding students' political sensitivities from “harassment” than challenging their minds. Brandeis administrators define harassment so broadly that almost any student could be guilty at any time.

Speaking by phone while on winter vacation in Israel this week, Mr. Mael says: “They try to intimidate students into being silent, in the interest of people's feelings not being hurt, rather than encourage debate.”

In fall 2013, a public dispute about Israel broke out between Mr. Mael and Eli Philip, another Brandeis student and a leader of the campus affiliate of J Street, an advocacy outfit that describes itself as “pro-Israel, pro-peace.” In the course of the debate Mr. Philip's feelings were hurt—“then all hell broke loose,” Mr. Mael says. The result was a yearlong disciplinary saga that would threaten his future.

Yet unlike many students in this situation, Mr. Mael fought back, eventually retaining top-shelf legal counsel. The legal record generated by the case, now exclusively obtained by the Journal, shines a rare light on the hidden realm of campus discipline.

Like most harassment claims, the one Mr. Philip brought against Mr. Mael arose from actions and counteractions over which the two parties disagree. On Oct. 14, 2013, two campus pro-Israel organizations, the Brandeis Israel Public Affairs Committee and Stand With Us, hosted Barak Raz, a former spokesman for the Israel Defense Forces, or IDF.

As he wrote in a contentious Facebook exchange with Messrs. Mael and Raz and other students the next day, Mr. Philip, then a junior, said he “did walk in late, and did not hear the beginning and framing” of Mr. Raz's lecture. Then Mr. Philip posed a question about the checkpoints the IDF operates in the Palestinian territories. “Motivated by deep frustration, the question was not asked calmly,” Mr. Philip would write in an op-ed about the incident published more than a month later in the Jewish Exponent, a Philadelphia periodical. (Mr. Philip didn't respond to an email request for comment.)

Mr. Mael, also a junior at the time, says Mr. Philip was “particularly obnoxious” and “disrespectful” toward the speaker, behavior that Mr. Mael says continued online the next day, when, during the same Facebook exchange, Mr. Philip accused Mr. Raz of having “lie[d] to a roomful of students.” Mr. Mael says he decided to hold his political opponent accountable by challenging him in the university's marketplace of ideas, including by publishing articles and circulating petitions.

Mr. Philip interpreted this as harassment, and in a Dec. 9, 2013, complaint to Brandeis administrators, he presented charges under the university code of conduct. Mr. Philip said in his written complaint that at a lunch meeting two days after the IDF event, Mr. Mael “accused me of behavior unfitting a Jewish soul” and of harboring “deep-seated `evil inclinations.' ” Mr. Mael, Mr. Philip went on, “informed me that I damaged the Jewish community, that I should resign from my position as student leader, and that he must take action to restore the Jewish community.”

Mr. Mael says his words were misquoted and taken out of context, but that's beside the point. Religious-oriented conversations, however passionate, don't amount to harassment, a principle that the U.S. Equal Opportunity Commission has set forth regarding workplaces and one even more relevant on college campuses, where philosophical disputation is supposed to be part of the air students breathe. Nor did the encounter amount to conduct with “the purpose or effect of unreasonably interfering” with Mr. Philip's “education or work performance,” as the Brandeis student code defines harassment. The students, after all, were having lunch.

Mr. Philip's filing also complained that Mr. Mael attended J Street meetings. “His presence, sitting in the back of the room and typing notes after each comment, was uncomfortable and intimidating.” Blaming Mr. Mael's influence, Mr. Philip noted that “the Orthodox community stopped speaking to me and routinely ignored me.” Also: “Getting lunch and dinner at the kosher section in Sherman dining hall became an uncomfortable experience.”

A responsible university administrator might have counseled Mr. Philip to take a deep breath and develop thicker skin for the slings and arrows of adult life. But on Dec. 5, 2013, Dean of Students Jamele Adams summoned Mr. Mael to his office, without informing him about the purpose of the meeting, the student says: “I was handed a copy of the Rights and Responsibilities handbook and told to familiarize myself with it because Eli was considering certain actions.”

Mr. Mael says he was also advised to avoid using social media—an odd discouraging of his free-speech rights and a hint of what lay ahead as the administration picked sides in the dispute.

For months, though, nothing happened. Mr. Philip went to Morocco for a semester abroad, and during that period Mr. Mael recalls he had “nothing to do with the dean.” He pressed on with his campus activism, helping to draw national attention to the Brandeis decision in April to withdraw its offer of an honorary doctorate to human-rights activist Ayaan Hirsi Ali.

Then, three months ago, almost a year since the original incident, Mr. Adams re-entered Mr. Mael's life. Again he was summoned to the dean's office without knowing the Oct. 8 meeting's purpose. “I'm told that there are charges against me under bullying, harassment and religious discrimination,” Mr. Mael recalls. “And I'm told that I have to give a response—guilty or not guilty—ideally within 48 hours.” A guilty determination could have led to his suspension or expulsion from school. Since this was around the Jewish holiday of Sukkot, Mr. Mael was given about a week to reply.

Crucially, Mr. Mael wasn't allowed to keep a copy of the complaint. Dean Adams told him that this was routine “procedure,” Mr. Mael says. “How am I supposed to tell my parents that I'm being brought to court and by the way I don't know what the charges are?” Mr. Mael recalls thinking. “This is antithetical to the values of our Constitution.”

In a panic after the meeting with Dean Adams, Mr. Mael consulted his friend Noah Pollak, of the Washington-based Emergency Committee for Israel, which retained the Covington & Burling law firm to act on his behalf. Yet when Mr. Mael's lawyer initially corresponded with university counsel, he was informed that “parties involved in the conduct process are not permitted to engage legal counsel to act or speak on their behalf.”

Covington & Burling paid no heed. With the deadline approaching and still without a copy of the complaint, Mr. Mael opted to plead not guilty and request a full hearing before a jury of his fellow students.

A ndrew Flagel, Brandeis's senior vice president for students and enrollment, wouldn't discuss the Mael case, citing federal privacy regulations, but said there is no university policy to advise students to curtail their speech online while a disciplinary case is pending. Mr. Flagel added that it is university practice not to provide the accused with a copy of a complaint but added that this is “one of the things we've been evolving.” Regarding the right to counsel, Mr. Flagel said: “This is not a legal proceeding, so your assumption that there is a right is not in evidence.”

By the end of October, Mr. Mael was finally provided a copy of the charges he would face. And Covington & Burling submitted to Brandies two lengthy legal memoranda blasting violations of Mr. Mael's rights. One letter concluded: “We reserve all rights on behalf of Mr. Mael, including the right to assert claims for the reputational and other harms caused by the baseless allegations at the heart of this proceeding.” In other words: See you in court.

On Oct. 27 Dean Adams informed Mr. Mael via email that the “allegations against you will not be adjudicated through our Student Conduct Board. The accuser has withdrawn from the option to do so and therefore this case should be considered closed and without determination of fault or sanction. . . . Thank you for your cooperation.”

Thus closed a window on life at American universities, where administrators are only too happy to indulge the objections of students whose feelings are bruised in the combat of ideas. Mr. Mael considers himself fortunate not to be facing expulsion. “It's imperative to understand that if I didn't have extremely qualified counsel,” he says, “I would be under duress.”

As it happens, Brandeis University is named for the U.S. Supreme Court Justice Louis Brandeis, a free-speech champion and ardent Zionist.

Mr. Ahmari is a Journal editorial-page writer based in London.

from Reuters, 2014-Dec-18, by Eric Kelsey, Lisa Richwine and Piya Sinha-Roy, with additional reporting by Jim Finkle in Boston, Mark Hosenball in Washington, Thomas Wilson and Reiji Murai in Tokyo, and editing by Chizu Nomiyama, Richard Chang and Raju Gopalakrishnan:

U.S. determines North Korea behind Sony attack as studio pulls movie

U.S. investigators have determined North Korea was behind a cyber-attack on Sony Pictures, a U.S. government source said, an unprecedented act that has forced the studio to cancel releasing a comedy about the fictional assassination of North Korea's leader.

Hackers who said they were incensed by the film attacked Sony Corp (6758.T) last month, leaking documents that drew global headlines and distributing unreleased films on the Internet.

Washington may soon officially announce that the North Korean government was behind the attack, the U.S. government source said.

The $44 million raunchy comedy, "The Interview", had been set to debut on Dec. 25, Christmas Day, on thousands of screens.

"Sony has no further release plans for the film," a Sony spokeswoman said on Wednesday when asked whether the movie would be released later in theaters or as video on demand.

Earlier in the day, Sony canceled next week's theatrical release, citing decisions by several theater chains to hold off showing the film. The hacker group that broke into Sony's computer systems had threatened attacks on theaters that planned to show it.

North Korea has denied it was behind the hacking, but security experts in Washington said it was an open secret Pyongyang was responsible.

"The North Koreans are probably tickled pink," said Jim Lewis, a senior fellow with the Center for Strategic and International Studies. "Nobody has ever done anything this blatant in terms of political manipulation. This is a new high."

Sony came under immediate criticism for the decision to pull the movie.

"With the Sony collapse, America has lost its first cyberwar. This is a very, very dangerous precedent," said former Republican House of Representatives speaker Newt Gingrich in a Twitter post.

However, Sony's shares traded as much as five percent higher in Tokyo on Thursday as investors said there was hope the movie's cancellation would help bring an end to the crisis.

"By not releasing the movie, they won't be hacked again. Investors think that from here on, further damage probably won't be done," said Makoto Kikuchi, CEO of Myojo Asset Management. "Whether that justifies a 5 percent jump in Sony's stock, I'm not so sure."

Macquarie analyst Damian Thong estimated last week, before the cancellation of "The Interview", that losses from the hacking including online leaks of other movies such as “Fury” and “Annie”, would likely be around 10 billion yen ($84.41 million). The worst case scenario, he said, would be an impairment of 25 billion yen.


The film industry showed support for the film in various ways. Hollywood filmmakers and actors, many of them friends of "The Interview" stars Seth Rogen and James Franco, also criticized the decision made by theaters and Sony.

Texas cinema chain Alamo Drafthouse said its Dallas-Fort Worth theater would show the puppet-comedy "Team America: World Police" in which a U.S. paramilitary force try to foil a terrorist plot by late North Korean leader Kim Jong Il.

The White House National Security Council said the United States was investigating the Sony breach and would provide an update about who did it at the appropriate time.

"The U.S. government is working tirelessly to bring the perpetrators of this attack to justice, and we are considering a range of options in weighing a potential response," NSC spokeswoman Bernadette Meehan said, adding that the government was not involved with Sony's decision to pull the film.

The U.S. Federal Bureau of Investigation warned theaters and other businesses associated with "The Interview" on Tuesday that they could be targeted in cyber-attacks, according a copy of the document reviewed by Reuters.

Still, several U.S. national security officials told Reuters the government had no credible evidence of a physical threat to moviegoers.

Sony said it was "deeply saddened at this brazen effort to suppress the distribution of a movie, and in the process do damage to our company."

The studio said it stood by the film makers of "The Interview".

from the Washington Post, 2014-Dec-23, by Hayley Tsukayama and Cecilia Kang, with Greg Jaffe contributing:

Sony confirms The Interview' will have Christmas Day screenings after all

"The Interview" is getting time on the big screen this Christmas after all.

In a statement Tuesday, Sony confirmed that it will be releasing the film in "limited release" in the United States on Christmas Day.

"We have never given up on releasing The Interview and we're excited our movie will be in a number of theaters on Christmas Day," said Michael Lynton, Chairman and CEO of Sony Entertainment. "At the same time, we are continuing our efforts to secure more platforms and more theaters so that this movie reaches the largest possible audience." Based on a screenplay by Dan Sterling, "The Interview" tells the story of two celebrity journalists (James Franco and Seth Rogen) who land an interview with North Korean leader Kim Jong Un on their popular television show, only to have the CIA ask them to assassinate him. (Sony Pictures)

Sony initially put the movie's release on ice after threats of terrorist attacks from hackers who stole and released countless documents -- many embarrassing -- from the studio last month. The attack, which the U.S. government has attributed to hackers backed by North Korea, was allegedly prompted by the comedy, which revolves around two Americans' plot to assassinate North Korean leader Kim Jong Un.

The studio did not say how many theaters will be a part of the release. A Twitter message from the chief executive of Alamo Drafthouse, a chain of movie theaters founded in Austin, Tex. with several national locations, confirmed that that chain will be a part of the film's release.

Another cinema, the Plaza Theater in Atlanta, also said on Twitter that it will be screening the film on Christmas. On Tuesday, both theater companies began listing Dec. 25 showtimes for the movie.

Star and co-director of "The Interview" Seth Rogen celebrated on Twitter.

The studio has been the target of harsh criticism following its decision to pull the film. Last week, President Obama called the decision "a mistake."

After the public blowback for its decision to cancel the Christmas day release of "The Interview," Sony scrambled in the last day to negotiate the limited release of the film to about 200 screens out of the originally planned release for 3,800 screens, according to a person familiar with the negotiations.

Sony Pictures Entertainment told theater owners it would do a simultaneous release of the film online for Christmas day but didn't disclose details on which vendor would provide streaming or downloads of the film, according to the source who spoke on the condition of anonymity because the talks were private.

It did not appear that the major theater chains, such as Regal and AMC, were part of the Christmas Day release plans.

A spokesman for Sony Pictures Entertainment said the studio is "still exploring other distribution options," and did not respond to questions about simultaneous online release plans. Netflix and Apple, which both have wide distribution platforms for streaming movies, declined to comment.

Movie theater owners have long balked at the idea of movies being released online at the same time they appear in theaters. Movie theaters have traditionally enjoyed first rights to show movies, part of a way to keep audiences coming to theaters when consumers have increasing options to watch movies at home.

Lynton did not address the question of whether the studio will release the film online over on-demand streaming services. But he did indicate this is not the last we'll hear of the film.

"While we hope this is only the first step of the film's release, we are proud to make it available to the public and to have stood up to those who attempted to suppress free speech," Lynton said.

The White House praised Sony's move on Tuesday.

"The President applauds Sony's decision to authorize screenings of the film,” said Eric Schultz, a White House spokesman. “As the President made clear, we are a country that believes in free speech, and the right of artistic expression. The decision made by Sony and participating theaters allows people to make their own choices about the film, and we welcome that outcome.”

North Korea's government did not immediately respond to Sony's decision. The isolationist nation's government has strongly rebuked "The Interview," but it has denied any involvement in the cyberattack against Sony.

But pressure has mounted against the North Korean government in the last few days. On Monday, North Korea's limited access to the Internet was shut down for more than nine hours. The UN General Assembly also held discussions on the nation's human rights abuses this week. In the past, North Korea has launched cyber and other military offenses around the holidays.

"There's a lot of stuff coming together now," said Victor Cha, a senior fellow at the Center for International and Strategic and International Studies. It's "hard for me to think North Korea will remain quiet, especially because they like to do things around U.S. holiday."

from the Wall Street Journal, 2014-Nov-26, by Sam Schechner and Frances Robinson:

EU Says Google Should Extend `Right to Be Forgotten' to `.com' Websites
Guidelines Could Escalate Disagreement Between Regulators and Search Engine Giant

Europe's privacy regulators want the right to be forgotten to go global.

In a new set of guidelines agreed Wednesday in Brussels, the body representing the EU's 28 national privacy regulators said that search engines should apply the bloc's new right to be forgotten to all of their websites—in particular .com websites like Google . com, which Google Inc. had excluded from the new rule.

Representatives of the body also said that Google and other search engines should limit how they notify websites that their Web pages have been the subject of such removals, saying that there is “no legal basis” to make such notifications on a “routine” basis.

The guidelines escalate a disagreement between regulators and the search giant over how to implement a May decision by Europe's top court, which determined that individuals in Europe have an online “right to be forgotten” that applies to Internet search engines. That battle is only the latest Google is facing with European authorities: they had a hefty French bill for back taxes and a call from the EU parliament to “unbundle” its search business from other commercial businesses.

At issue in Wednesday's opinion is how broadly Google must apply the court ruling, under which people can demand that Google and other engines remove links to pages that come up when one searches for their names. Privacy advocates allege that Google has been undermining the new right by limiting its application, while free speech advocates say the rule is a gateway to Internet censorship that will whitewash the Web.

While Google moved quickly to apply the ruling over the summer, it has only applied removals to European domains, like or, but not, even when accessed in Europe. That can make it easier to find results that have been removed by comparing the websites.

Google also moved to send notifications to websites when they had been the subject of removals—a move that irked privacy regulators because it wasn't specified in the ruling, and made it possible to use a process of elimination to figure out who may have requested the removal of a given link.

“The court says the delisting decision has to be effective,” said Isabelle Falque-Pierrotin, chairwoman of the pan-European advisory body that issued Wednesday's opinion, and head of France's data-protection regulator. “These decisions should not be easily circumvented by anybody.”

A Google spokesman said: “We haven't yet seen the Article 29 Working Party's guidelines, but we will study them carefully when they're published.”

It remains unclear whether Google will move to implement the regulators' opinion, the full text of which wasn't immediately available. The body that issued the Article 29 Working Party doesn't have any enforcement power. But its opinions reflect the consensus position of national regulators, which themselves can pursue enforcement action and lawsuits against companies under their own national laws.

Regulators in Germany, France and the U.K. have, for instance, already received 440 complaints from individuals regarding Google's implementation of the ruling, the regulators say. That could give them grounds to pursue the search giant, and eventually issue fines.

Google has already struck a defiant stance on the issues of where to apply the right to be forgotten, and whether to issue notifications. In early October, a federation representing Germany's multiple data protection authorities also asserted that the new right to be forgotten must be applied globally, and said that search engines aren't authorized to “routinely” notify content providers.

“The protection of the individual from the unauthorized circulation of personal data must apply everywhere,” the German regulators wrote.

In response, Google made no changes to its process. Speaking at a privacy conference in Brussels last week, Google's global privacy counsel, Peter Fleischer, said the company consciously chose to limit its application of the new rule. “Other courts in other parts of the world would never have reached the result that the European Court of Justice reached,” Mr. Fleischer said.

Google may consider a way to apply the ruling on without applying it globally, people close to the company said. The company could do so by returning different results depending on whether the person is searching from an Internet Protocol address located within the EU. But it is unclear if such a move would satisfy regulators, as it would only make it harder to sidestep the ruling inside the EU, not globally.

“These are fundamental rights. My rights don't go away at the border,” one data-protection official said of the idea of using IP addresses to apply the rule.

Google has also defended its notifications, arguing that the process laid out by the court, which gives a requester the right to appeal Google's decisions to local data-protection regulators, should be balanced by giving the people whose content is being removed the ability to appeal a removal.

“We are dealing with competing fundamental human rights,” Mr. Fleischer said last week. Without notifications, “this is not a court with two sides,” he said.

The ruling has already had an impact across Europe. Google says that more than 174,000 people have requested removal of more than 600,000 search results from searches from their own names. The company says it has removed about 42% of the links it has had a chance to evaluate from the requester's search results—though the rate varies from more than half of links removed from requesters' results in Germany and France, to barely a quarter in Italy and Portugal.

The rate is far lower in countries where more people request the removal of links to newspaper articles, rather than to information on sites like Facebook , according to a person familiar with the process.

from Reason, 2014-Nov-8, by Brendan O'Neill:

Britain Poised to Muzzle 'Extremist' Speech
The country that gave us free expression may be backpedaling.

In Britain, if you have extreme views on anything from Western democracy to women's role in public life, you might soon require a licence from the government before you can speak in public. Seriously.

Nearly 350 years after us Brits abolished the licensing of the press, whereby every publisher had to get the blessing of the government before he could press and promote his ideas, a new system of licensing is being proposed. And it's one which, incredibly, is even more tyrannical than yesteryear's press licensing since it would extend to individuals, too, potentially forbidding ordinary citizens from opening their gobs in public without officialdom's say-so.

It's the brainchild of Theresa May, the Home Secretary in David Cameron's government. May wants to introduce "extremism disruption orders", which, yes, are as terrifyingly authoritarian as they sound.

Last month, May unveiled her ambition to "eliminate extremism in all its forms." Whether you're a neo-Nazi or an Islamist, or just someone who says things which betray, in May's words, a lack of "respect for the rule of law" and "respect for minorities", then you could be served with an extremism disruption order (EDO).

Strikingly, EDOs will target even individuals who do not espouse or promote violence, which is already a crime in the U.K. As May says, "The problem that we have had is this distinction of saying we will only go after you if you are an extremist that directly supports violence. [This] has left the field open for extremists who know how not to step over the line." How telling that a leading British politician should be snotty about "this distinction" between speech and violence, between words and actions, which isn't actually some glitch in the legal system, as she seems to think, but rather is the foundation stone on which every free, democratic society ought to be built.

Once served with an EDO, you will be banned from publishing on the Internet, speaking in a public forum, or appearing on TV. To say something online, including just tweeting or posting on Facebook, you will need the permission of the police. There will be a "requirement to submit to the police in advance any proposed publication on the web, social media or print." That is, you will effectively need a licence from the state to speak, to publish, even to tweet, just as writers and poets did in the 1600s before the licensing of the press was swept away and modern, enlightened Britain was born (or so we thought).

What sort of people might find themselves branded "extremists" and thus forbidden from speaking in public? Anyone, really. The definition of extremist being bandied about by May and her colleagues is so sweeping that pretty much all individuals with outré or edgy views could potentially find themselves served with an EDO and no longer allowed to make any public utterance without government approval.

So you won't have to incite violence to be labelled an extremist —in May's words, these extremism-disrupting orders will go "beyond terrorism." May says far-right activists and Islamist hotheads who have not committed any crime or incited violence could be served with an order to shut the hell up. She has also talked about people who think "a woman's intellect [is] deficient," or who have "denounced people on the basis of their religious beliefs," or who have "rejected democracy"—these folk, too, could potentially be branded extremists and silenced. In short, it could become a crime punishable by gagging to be a sexist or a religion-hater or someone who despises democracy.

Never mind violence, you won't even have to incite hatred in order to be judged an extremist. As one newspaper report sums it up, the aim is "to catch not just those who spread or incite hatred," but anyone who indulges in "harmful activities" that could cause "public disorder" or "alarm or distress" or a "threat to the functioning of democracy." (By "harmful activities", the government really means "harmful words"—there's that Orwellian slip again.) This is such a cynically flabby definition of extremism that it could cover any form of impassioned, angry political or moral speech, much of which regularly causes "alarm or distress" to some of the people who hear it.

As some Christian campaigners recently pointed out, they are frequently accused by their opponents of being "extremists" and of "spreading hatred" simply for opposing gay marriage and taking other traditional stances. Will they potentially be silenced for saying extreme things and causing distress? It's not beyond the realms of possibility, given that May has said that anyone who wants to avoid being thought of as an extremist should "respect British values and institutions" and express "respect for minorities." Slamming gay marriage could very well be read as disrespect for a British institution (gay marriage was legalised here this year) and disrespect for a minority.

What the government is proposing is the punishment of thoughtcrimes, plain and simple. Its insistence that officialdom must now move beyond policing violence and incitements to violence and start clamping down on hotheaded, "harmful" speech that simply distresses people is about colonising the world of thought, of speech, of mere intellectual interaction between individuals—spheres officialdom has no business in policing.

But self-styled progressives, members of the left and those who consider themselves liberal, don't have much of a leg to stand on when it comes to challenging May's tyrannical proposals. For it is was their own arguments, their claims over the past decade that "hate speech" is dangerous and must be controlled and curbed, that gave legitimacy to May's vast silencing project, that inflamed the government's belief that it has the right to police heated minds and not just heated behaviour.

For the best part of two decades, so-called progressives have been spreading fear about the impact of dodgy words and dangerous ideas on the fabric of society. On campuses, in academia, in public life, they've continually pushed the notion that words hurt, that they cause terrible psychic damage, especially to vulnerable groups, wrecking people's self-esteem and making individuals feel worthless. From Britain's student-union officials who have banned Robin Thicke's 'Blurred Lines' in the name of protecting "students' wellbeing" to feminists who have demanded (and won) the arrest and imprisonment of misogynistic trolls, a climate of intolerance towards testy and vulgar speech has already been created in Britain, and the government is merely milking it.

May's proposal to set up a system of licensing for speech, essentially to provide a license to those who respect British values and deny it to those who don't, is the ugly, authoritarian endpoint to the mad obsession with hate speech that has enveloped much of the Western world in recent years.

We should defend extremists. Extremism can be good. I'm an extremist, especially on freedom of speech, which I don't think should ever be limited. Extremists enliven public debate; they sex it up, stir it up, forcing us all to rethink our outlooks and attitudes and sometimes to change our minds. A world without extremists would be conformist and dull and spiritually and intellectually dead.

Let's remember the words of the 17th-century poet John Milton in his impassioned argument against those authorities that last tried to license public expression: "Give me the liberty to know, to utter, and to argue freely according to conscience, above all liberties." Guess what was said about Milton after he said those words? Yep, he was called an extremist.

Brendan O'Neill is editor of spiked in London.

from the Wall Street Journal, 2014-Oct-20:

The Latest Speech Assault
Liberals want to regulate `coordination,' but a judge blows the whistle in Wisconsin.

Some of our readers have asked why we've devoted so much space to the Wisconsin prosecutorial probe of conservatives for supposed campaign-finance violations. One reason is to oppose a particular injustice, but Wisconsin is also on the front lines of the latest national offensive to regulate free political speech and assembly.

That came into stark view last week with a new and welcome judicial ruling in Wisconsin, only days after the Brennan Center issued a trumpet call for government to find more ways to criminalize campaign spending. The new liberal target is “coordination” between politicians and independent groups. This is dangerous stuff.


First, the good news from Wisconsin, where federal Judge Rudolph Randa issued an order last week preventing prosecutors and the state's Government Accountability Board from prosecuting groups for coordinating on issue advocacy. The judge issued the order because he noted that the plaintiff against the state was “likely to succeed on the merits.”

That plaintiff is Citizens for Responsible Government Advocates, an advocacy group that wants to collaborate with politicians on a project called “Take Charge Wisconsin” to educate the public about fiscal responsibility and property rights. But the group was unsure it could proceed under Wisconsin law as interpreted by prosecutors, so it sought relief in federal court.

The problem is that Wisconsin and other states have set up elaborate bureaucracies like the Government Accountability Board (GAB) to police free speech and harass individuals and groups that want to run political advertising. Wisconsin's GAB and Milwaukee District Attorney John Chisholm “have taken the position that coordinated issue advocacy is illegal under Wisconsin's campaign finance law,” wrote Judge Randa.

That legal interpretation has already been rejected by state judge Gregory Peterson, but the state and Mr. Chisholm are appealing. Thanks to Judge Randa's ruling, at least the conservatives will be able to engage in issue advocacy without fear of prosecution in the few remaining days before the election.

Judge Randa notes in his order that the only permissible speech regulations are those that target corruption or its appearance. The Seventh Circuit Court of Appeals agreed with that logic earlier this year in Wis. Right to Life v. Barland. “As applied to political speakers other than candidates, their committees, and political parties,” the Seventh Circuit wrote, the definition of political purposes and political committee “are limited to express advocacy and its functional equivalent as those terms were explained in Buckley.”

Express advocacy is the legal term for advocating for or against candidates, and Buckley is the 1976 Supreme Court case that established the corruption standard for regulating speech. Issue advocacy, by contrast, gets the highest possible protection under the First Amendment.

It's important to understand that this political attack on “coordination” is part of a larger liberal campaign. The Brennan Center—the George Soros-funded brains of the movement to restrict political speech—issued a report this month that urges regulators to police coordination between individuals and candidates as if it were a crime.

The report raises alarms that independent expenditures have exploded since the Supreme Court's 2010 Citizens United decision, as if trying to influence elections isn't normal in a democracy. The political left wants to treat independent expenditures as a “contribution” to candidates limited under campaign-finance law to $2,600 per election. That would essentially ban independent issue advocacy, since you can't buy much air time for $2,600.

Such regulation is also an assault on freedom of association. If like-minded people can't pool resources to influence elections, they are essentially shut out of modern political debate.

All the more so if citizens who do join together can be harassed by regulators or prosecutors. That's clearly the intention of the Brennan speech enforcers, who survey state efforts to regulate speech and urge others to pick up the truncheon.

The authors recommend that regulators require “`cooling off' periods” before advisers to a political candidate can raise money for an independent group. So David Axelrod would have been barred for some period after he left the Obama campaign from raising money for a pro-Obama operation. We don't recall seeing “cooling off period” in the First Amendment. How long is reasonable for giving up your free-speech rights? Two years?

Another regulatory gem would create “firewalls” between candidates and outside groups—that is, “written protocols” that would bar the two from sharing advisers or campaign services. Imagine the opportunities for political harassment as regulators searched high and low for evidence that their protocols were violated. The cost of answering subpoenas alone would deter most sane people from taking the risk of doing issue advocacy.

What's going on here is a concerted political effort to use government to inhibit speech that politicians don't like. Kudos to Judge Randa for blowing the whistle in Wisconsin, but look for more mischief soon in a state near you.

from the Wall Street Journal, 2015-Aug-27:

We `the Sheeple'
New evidence that partisanship drove Wisconsin's John Doe.

Wisconsin's Supreme Court shut down the John Doe investigation of conservative groups in July, but it turns out the probe was even worse than the judges knew. Documents filed at the state Supreme Court opposing Special Prosecutor Francis Schmitz's motion to reconsider show that partisan motives ran through those who conducted their operations in secret while using gag orders to silence targets.

Wisconsin's Government Accountability Board (GAB) regulates elections. Emails we've seen show that GAB staff, including Director Kevin Kennedy, worked with Mr. Schmitz and the Milwaukee Democratic District Attorney's office to subpoena and intimidate the major conservative players in Wisconsin politics. The investigation coalesced around the controversy over Governor Scott Walker's union reforms and pushed the liberal agenda to limit political speech.

In an email to Mr. Schmitz on Nov. 27, 2013, GAB staff counsel Shane Falk encouraged the special prosecutor to keep up the good work and “stay strong” in his pursuit of conservative nonprofit groups and allies of Mr. Walker. “Remember, in brief, this was a bastardization of politics and our state is being run by corporations and billionaires,” Mr. Falk wrote. “That isn't democracy to say the least, but due to how they do this dark money, the populace never gets to know.”

“The cynic in me says the sheeple would still follow the propaganda even if they knew,” Mr. Falk continued, “but at least it would all be out there so that the influences on our politicians is clearly known.” By “the sheeple” Mr. Falk means Wisconsin voters.

In June 2014, Mr. Schmitz's attorney, Randall Crocker, issued a statement saying that Governor Walker was not a target of the investigation into campaign finance coordination. “You just lied to the press,” Mr. Falk wrote in an email to Mr. Schmitz, copying Mr. Kennedy, others at the GAB and Milwaukee DA John Chisholm. “See the attached `target' sheets from our search warrant and subpoena meeting. I see `SW' right up there near the top on Page 1. Is there someone else that has those initials?”

The Doe team was also apparently concerned that exonerating Mr. Walker as a target might have an effect on the election or damage the chances of 2014 Democratic nominee for Governor Mary Burke. “If you didn't want this to have an effect on the election, better check Burke's new ad,” Mr. Falk continued, “Now you will be calling her a liar. This is a no win.”

Was Mr. Falk reprimanded for his obviously partisan motives? Apparently not. When Mr. Falk left the GAB last year, Mr. Kennedy sang his praises in a departure memo posted on the GAB's website, saying he “exemplifies all that is great about the people who work at the Government Accountability Board” and that his contributions “have been critical to steering us through some extraordinarily challenging times.” Messrs. Falk and Kennedy did not respond to requests for comment.

We also know that GAB staff counsel Nathan Judnic marched against Mr. Walker's Act 10 reforms and wrote on Twitter that the state should “Stand in solidarity. Kill the bill. Support public employees and their right to bargain.”

Democrats trying to salvage the GAB's reputation have pointed to a recent audit by the state's Legislative Audit Bureau that raised no major concerns about GAB's handling of ethics or campaign-finance complaints. One problem: The John Doe process was outside the scope of the audit. Mr. Kennedy put out a statement saying that the audit “puts to rest any questions as to whether the six Board Members exercise independent judgment when they make decisions about complaints, investigations and penalties.”

The six board members? What about the staff? Mr. Kennedy says the GAB is a nonpartisan agency, but the GAB was an active partner in the Doe, and there was nothing nonpartisan about that.

from National Review, 2014-Oct-15, by David French:

City of Houston Attacks Pastors, then Doubles Down

The story sounds like something you'd read on a crazed e-mail forward — the city of Houston demands to see the contents of pastors' sermons on the topic of homosexuality, gender identity, and . . . restroom access. In fact, when I first heard the story from a parent at my kids' school, I didn't believe it.

But, yes, it's true. In fact, the reality is even worse than the reports. Houston — as part of its litigation strategy opposing a voter lawsuit filed after the city rejected voter petitions to repeal a law that allows members of the opposite sex into bathrooms — has issued subpoenas that don't just demand pastors' sermons on the topics of “equal rights, civil rights, homosexuality, or gender identity,” (and, of course, “restroom access”), they also demand all documents including ”emails, instant messages, and text messages” on those same topics.

So, if a pastor is engaged in a theological discussion with a fellow pastor on the covered topics, that will have to be produced. If a pastor texts a friend his position on “restroom access,” that has to be produced.

Oh, and did I mention that the pastors aren't even parties to the lawsuit?

The sexual revolution, apparently, brooks no dissent. Not even from the pulpit, or in Skype chat boxes.

As I looked closer at the issue, the best-case scenario was this was “merely” (as Ed Whelan points out) big-firm scorched-earth litigation tactics, the kind of harassment that veteran litigators engage in almost without thinking, and certainly without thinking through the First Amendment implications.

But then I saw this tweet from the Houston mayor:

If the 5 pastors used pulpits for politics, their sermons are fair game. Were instructions given on filling out anti-HERO petition?-A

— Annise Parker (@AnniseParker) October 15, 2014

Umm, no. Pastors are not “fair game” simply for doing their job. First — and contrary to popular leftist belief — pastors can absolutely educate their flock, engage in issue advocacy, and even endorse ballot referenda from the pulpit. That does not make them “fair game.” Under IRS rules, they have an unlimited right to engage in issue advocacy, and they can endorse ballot referenda so long as the endorsement-related activities do not constitute a “substantial part” of the church's activities in a given year. But those are IRS rules and utterly irrelevant to a state-court lawsuit regarding the validity of voter signatures.

Second, there is a degree of constitutionally protected privacy in your First Amendment–protected speech. For example, in DeGregory v. New Hampshire, the Supreme Court quashed a state inquiry into a citizen's past ”subversive” activities with the Communist party. In the words of the Court:

The Attorney General further sought to have him disclose information relating to his political associations of an earlier day, the meetings he attended, and the views expressed and ideas advocated at any such gatherings.

The Court noted that compelled disclosure was “objectionable and damaging in the extreme to one whose associations and political views do not command majority approval” and held that in the absence of an “overriding and compelling state interest,” Mr. DeGregory could, in fact, keep his views to himself. Speaking more broadly, the Court declared that “The First Amendment prevents use of the power to investigate enforced by the contempt power to probe at will and without relation to existing need.”

And what, pray tell, is the “existing need” here? To hear the mayor of Houston tell it, the “existing need” is to find out if pastors used their First Amendment–protected speech (including sending personal e-mails and text messages) for “political” purposes, something they had the right to do. If there is a specific allegation of wrongdoing against a specific pastor, then make that allegation. Otherwise, the fishing expedition is unconstitutional, and chillingly so.

I agree with Eugene Volokh when he says, that “at the very least, the subpoena seems vastly overbroad.” But his post on the topic spends most of its time exploring a question that's not really at issue — whether a pastor's sermons are always off limits in civil discovery. The issue here is entirely different — whether the mere existence of civil litigation regarding a contentious ballot issue can be a pretext for publicly exposing the public and private communications of pastors who are not even parties to the litigation. What's next, subpoenaing all political donor emails when there's an election challenge?

The message Houston is sending is clear: You'll agree with our dictates or you'll be humiliated.

My good friends at Alliance Defending Freedom have filed a motion to quash the city's subpoenas. May God bless their efforts. We'll soon see whether, as Mark Steyn predicts, our First Amendment isn't robust enough to survive a transgendered bathroom ordinance.

from Religion News Service via the Washington Post, 2014-Oct-17, by Scott R. Murray:

Why I stand with the Houston Five

HOUSTON — Recently, Houston city attorneys, acting on behalf of Mayor Annise Parker and the City Council, issued subpoenas to five area pastors requiring they hand over copies of all communication with members of their congregations about a gay rights ordinance. The subpoena asks for communications from the pastors related to the mayor, the ordinance, and “gender equality” issues.

What are pastors to do when coerced by a government entity like the city of Houston? It seems to me that there are a two possible responses: one from a Christian pastor, who serves in Christ's kingdom, and another from a citizen of the kingdom of this world.

How did we get here? These five pastors were at the forefront of an effort to get a referendum on the November ballot to overturn a city ordinance, which among other things would give people access to the restrooms of their choice in public accommodations as a matter of “gender equality.”

Opponents of the ordinance gathered about 50,000 signatures in a petition drive to get the issue on the November ballot. The city secretary reportedly has certified that there were sufficient signatures — it takes 17,269 certifiable signatures to add the referendum. The mayor and the City Council declined to follow the city charter, refusing to place the referendum before the people of Houston.

A group that supports the ballot initiative is suing the city to force it to follow the city charter. As a way of fighting the suit, the city subpoenaed the communications of the pastors, who are not even parties to the lawsuit.

So what is a Christian pastor to do?

The mayor or members of the City Council are always welcome in my congregation. Sermons aren't exactly private or privileged communications; they are proclaimed to audiences in public and placed on our website for people to listen to any time. Christian preachers condemn human sin and call people to repentance. They proclaim the forgiveness of sins for the sake of Christ, who died for us, to those who mourn their sin. Sexual immorality is sin. Christian preachers will call it what it is. If that offends the politicians, then so be it.

Christian pastors have been offending powerful authorities since Jesus angered the establishment of his day. If my sermons are subpoenaed, I would be tempted to print all of them and hand deliver them all, tied up in a ribbon, with the hope that the mayor might read them. We Christians are called by God to make our testimony before kings, and we should not be ashamed of the gospel of Jesus Christ. A pastor should be delighted when he is given an opportunity to deliver publicly the gospel of Jesus Christ. This is what those who belong to the kingdom of Christ hope and pray for.

It may be a slight variation on President Obama's line of a few months ago, but it applies here: “Go ahead, subpoena me!” Put my sermons before a court of law, please! The rage and spite of those who hate the Christian worldview might well benefit the church and her Lord.

But that's not the whole story.

Pastors are also citizens of the kingdom of Caesar. In the bare-knuckled realm of American politics, the mayor and City Council are not really interested in reading a bunch of Christian sermons to find out what they say. They are attempting to stop Christian pastors from commenting on moral issues that are important to politicians. They are using the coercive power of the city's legal department and turning it on the speech of the church. Not only is this an effort to shame the pastors for their principled stand on sexual mores, but it is a naked attempt to silence them.

Lawyers from the Alliance Defending Freedom, who are defending the pastors, have called the city's action a “witch-hunt” and an “inquisition” — both terms dripping with irony.

The effort by the mayor and the City Council attacks two of the freedoms protected in the First Amendment: the free exercise of religion and the right to political speech. And while it has been argued that the city is not silencing speech, the abuse of state power will have a chilling effect on both the free exercise of religion and freedom of speech.

When will ordinary citizens exercise their right to organize a petition drive in the city of Houston again? The fear of being attacked by the unlimited resources of a bully state keeps people from speaking their minds against the wishes of their political masters. These rights remain the peoples' rights. And as citizens, the five pastors have every right and every reason to resist these bullying tactics.

Against this bullying, I am glad to stand with them — both as a Christian pastor and as a citizen. You should too.

(The Rev. Scott R. Murray is senior pastor of Memorial Lutheran Church in Houston, and is the fourth vice president of the Lutheran Church-Missouri Synod.)

from the Houston Chronicle, 2014-Oct-29, by Katherine Driessen and Mike Morris:

Pastors speak up on city's decision to drop subpoenas

The city of Houston will withdraw its controversial subpoenas of five pastors tied to a lawsuit over the city's equal rights ordinance, Mayor Annise Parker announced at a news conference Wednesday.

The decision comes amid a national firestorm over the subpoenas, which have prompted outrage among Christian conservatives. Parker last week had left the subpoenas in place with narrower wording, removing any mention of "sermons." However, Parker said two Tuesday meetings, one with local pastors and another with national clergy, persuaded her to pull the subpoenas altogether.

The move is in the best interest of Houston, she said, and is not an admission that the requests were in any way illegal or intended to intrude on religious liberties. The subpoenas were part of a discovery phase in a suit filed by opponents of the equal rights ordinance, who largely take issue with the rights the law extends to gay and transgender residents.

"I didn't do this to satisfy them," Parker said of critics. "I did it because it was not serving Houston."

Regardless, the mayor's critics were not quieted. Grace Community Church pastor Steve Riggle, who was among the subpoenaed pastors, said, "If the mayor thought the subpoenas were wrong she would have pulled them immediately, not waited until she was forced to by national outrage."

Parker said she was persuaded in part by the demeanor of the clergymen she met with Tuesday, saying they were concerned not about the ordinance or politics but about the subpoenas' impact on the ongoing national discussion of religious freedoms.

"That was the most persuasive argument, because to me it was, 'What is the goal of the subpoenas?' The goal of the subpoenas is to defend against a lawsuit, and not to provoke a public debate," Parker said. "I don't want to have a national debate about freedom of religion when my whole purpose is to defend a strong and wonderful and appropriate city ordinance against local attack, and by taking this step today we remove that discussion about freedom of religion."

When news of the subpoenas first surfaced, Parker and City Attorney David Feldman said they did not know about the request for sermons and said the wording of the documents was "overly broad." That led to Friday's announcement that the wording had been narrowed, which did little to dampen the outcry.

Among the seven pastors who flew to Houston to meet with Parker on Tuesday was the Rev. Myke Crowder, of Christian Life Church in Layton, Utah. He described the meeting as "honest, respectful and serious," and said it focused not on politics but on the theological implication of the subpoenas. While the group left the meeting unsure about whether Parker would pull the subpoenas, Crowder said they were confident that she was taking it under serious consideration.

"What we did was to simply respectfully articulate our concerns," Crowder said. "And I believe what we did was help her to understand a broader picture than what she might have seen before. She honestly listened, she asked hard questions, fair questions, and we gave her fair and honest answers."

Parker admitted she is concerned dropping the subpoenas may impede the city's legal defense, but said the city would pursue an aggressive defense.

The plaintiffs' attorney in the lawsuit, Andy Taylor, called Parker's announcement a "head fake," and challenged her not only to pull down the subpoenas but to drop the city's defense of the lawsuit and put the ordinance to a vote. The city last summer ruled opponents' petition to submit the equal rights ordinance to a repeal referendum fell short of the legal requirements spelled out in the city charter, prompting the lawsuit.

"The truth is she's using this litigation to try to squelch the voting rights of over a million well-intentioned voters here in the city of Houston," Taylor said. "It's very simple why we filed a lawsuit: Because they won't do what the city constitutional charter requires them to do."

Plaintiff and conservative activist Jared Woodfill said he was glad the mayor had "finally seen the light on subpoenas," but he and other opponents said a Sunday rally at Riggle's church protesting the subpoenas - and urging an immediate City Council vote to place the item before voters - will still go forward.

from the Daily Signal, 2014-Oct-18, by Ryan T. Anderson:

Government to Ordained Ministers: Celebrate Same-Sex Wedding or Go to Jail

For years, those in favor of same-sex marriage have argued that all Americans should be free to live as they choose. And yet in countless cases, the government has coerced those who simply wish to be free to live in accordance with their belief that marriage is the union of a man and a woman.

Just this weekend, a case has arisen in Idaho, where city officials have told ordained ministers they have to celebrate same-sex weddings or face fines and jail time.

The Idaho case involves Donald and Evelyn Knapp, both ordained ministers, who run Hitching Post Wedding Chapel. Officials from Coeur d'Alene, Idaho, told the couple that because the city has a non-discrimination statute that includes sexual orientation and gender identity, and because the 9th U.S. Circuit Court of Appeals struck down Idaho's constitutional amendment defining marriage as the union of a man and a woman, the couple would have to officiate at same-sex weddings in their own chapel.

The non-discrimination statute applies to all “public accommodations,” and the city views the chapel as a public accommodation.

On Friday, a same-sex couple asked to be married by the Knapps, and the Knapps politely declined. The Knapps now face a 180-day jail term and $1,000 fine for each day they decline to celebrate the same-sex wedding.

A week of honoring their faith and declining to perform the ceremony could cost the couple three and a half years in jail and $7,000 in fines.

Government Coercion

The Knapps have been married to each other for 47 years and are both ordained ministers of the International Church of the Foursquare Gospel. They are “evangelical Christians who hold to historic Christian beliefs” that “God created two distinct genders in His image” and “that God ordained marriage to be between one man and one woman.”

But as a result of the courts redefining marriage and a city ordinance that creates special privileges based on sexual orientation and gender identity, the Knapps are facing government coercion.

Governmental recognition of same-sex relationships as marriages need not and should not require any third party to recognize a same-sex relationship as a marriage. Government should respect the rights of all citizens. Indeed, a form of government respectful of free association, free contracts, free speech and free exercise of religion should protect citizens' rights to live according to their beliefs about marriage.

The Knapps have been celebrating weddings in their chapel since 1989. Government should not now force them to shut down or violate their beliefs.

After all, protecting religious liberty and the rights of conscience does not infringe on anyone's sexual freedoms. No one has a right to have the government force a particular minister to marry them. Some citizens may conclude that they cannot in good conscience participate in same-sex ceremonies, from priests and pastors to bakers and florists. They should not be forced to choose between strongly held religious beliefs and their livelihood.

What Can Be Done

At the federal level, Congress has an opportunity to protect religious liberty and the rights of conscience.

Policy should prohibit the government from discriminating against any individual or group, whether nonprofit or for-profit, based on their beliefs that marriage is the union of a man and woman or that sexual relations are reserved for marriage. The government should be prohibited from discriminating against such groups or individuals in tax policy, employment, licensing, accreditation or contracting.

The Marriage and Religious Freedom Act—sponsored by Rep. Raul Labrador, R-Idaho, in the House (H.R. 3133) with more than 100 co-sponsors of both parties, and sponsored by Sen. Mike Lee, R-Utah, in the Senate (S. 1808) with 17 co-sponsors—would prevent the federal government from taking such adverse actions.

States need similar policy protections, including broad protections provided by state-level Religious Freedom Restoration Acts (RFRAs) and specific protections for beliefs and actions about marriage.

Indeed, Idaho has a RFRA, called the Free Exercise of Religion Protected Act (FERPA). State RFRAs prevent the imposition of substantial burdens on sincere religious beliefs unless the government proves that such a burden advances a compelling government interest that has been pursued through the least restrictive means possible.

Protecting Religious Liberty

It is unclear how the city could claim that forcing the Knapps to perform a same-sex wedding is a compelling government interest being pursued in the least restrictive way. There are numerous other venues where a same-sex couple could get married. Indeed, there is a county clerks office directly across the street from the chapel.

States must protect the rights of Americans and the associations they form—both nonprofit and for-profit—to speak and act in the public square in accordance with their beliefs. It is particularly egregious that the city would coerce ordained ministers to celebrate a religious ceremony in their chapel. The Alliance Defending Freedom has filed a motion arguing that this action “violates [the Knapps's] First and 14th Amendment rights to freedom of speech, the free exercise of religion, substantive due process, and equal protection.”

Citizens must work to prevent or repeal laws that create special privileges based on sexual orientation and gender identity. We must also insist on laws that protect religious freedom and the rights of conscience.

Protecting religious liberty and the rights of conscience is the embodiment of a principled pluralism that fosters a more diverse civil sphere. Indeed, tolerance is essential to promoting peaceful coexistence even amid disagreement.

Ryan T. Anderson researches and writes about marriage and religious liberty as the William E. Simon Fellow at The Heritage Foundation. He also focuses on justice and moral principles in economic thought, health care and education, and has expertise in bioethics and natural law theory. Read his research.

from Fox News, 2014-Oct-25, by Judson Berger:

YouTube, Beware: Election-spending regulator sets sights on political Internet videos

Politically themed YouTube videos could be the next target of federal regulators.

The top Democrat on the Federal Election Commission strongly suggested Friday that regulators look at extending their authority to election-themed Internet videos – an area that for years has been largely hands-off for the government.

The statement from Vice Chairwoman Ann Ravel, who is in line to take over the commission next year, prompted Republicans to warn that such a move could threaten the growth and freedom of the Internet itself.

“I have been warning that my Democratic colleagues were moving to regulate media generally and the Internet specifically for almost a year now,” Chairman Lee Goodman told “And today's statement from Vice Chair Ravel confirms my warnings.”

At issue was a case considered by the FEC – the chief campaign-finance regulator – in September involving a group that ran pro-coal videos critical of Democrats in 2012. The group initially was accused of failing to report the cost of the videos and of failing to include the routine “disclaimers.”

But the group maintained that since they were only run on YouTube, they were exempt.

The case ended in a split, 3-3 decision at the FEC and was dismissed. But the vote itself aired a striking divide: despite a decision clearing the organization by the general counsel, Democrats voted to pursue an investigation anyway while Republicans voted to drop it.

Ravel was blunt in her written statement Friday explaining her side's vote. She scolded Republicans for arguing rules that would apply to TV ads should not apply to web videos.

“As a matter of policy, this simply does not make sense,” she said.

She said, rather, a “re-examination” of the FEC approach to the Internet is “long overdue” and complained the commission has “turned a blind eye” to the Internet's influence in politics.

“Since its inception, this effort to protect individual bloggers and online commentators has been stretched to cover slickly-produced ads aired solely on the Internet but paid for by the same organizations and the same large contributors as the actual ads aired on TV,” she said. Ravel vowed to “bring together” people from “across the spectrum” next year to look at the issue.

This set off alarm bells.

GOP members of the commission cite an “Internet exemption” dating back to 2006 that spares free web videos from FEC regulations. In other words, anyone who posts a politically themed video for free only to YouTube can – for now -- do so without including a disclaimer or reporting the costs.

“The FEC's approach to free speech on the Internet should be hands-off,” Goodman said, urging the public to go to the FEC website to comment on the issue.

A statement from Goodman and his GOP colleagues on the commission likewise warned about the implications of the 3-3 decision, and a “desire to retreat” from “important protections for online political speech.”

This, they wrote, would be a “shift in course that could threaten the continued development of the Internet's virtual free marketplace of political ideas and democratic debate.”

This is hardly the first warning from Goodman and his colleagues about the direction of the current FEC. He previously has warned that officials at the agency want to start regulating the media, and might even try to regulate book publishers. Democrats on the commission have called those allegations “overheated” and overblown.

from BBC News, 2014-Oct-17, by Dave Lee:

BBC to publish 'right to be forgotten' removals list

The BBC is to publish a continually updated list of its articles removed from Google under the controversial "right to be forgotten" rule.

The ruling allows people to ask Google to remove some types of information about them from its search index.

But editorial policy head David Jordan told a public meeting, hosted by Google, that the BBC felt some of its articles had been wrongly hidden.

He said greater care should be given to the public's "right to remember".

Following the ruling, Google set up a form on its site allowing people to request which links should be taken down.

The European Court of Justice (ECJ) said links that were "inadequate, irrelevant or no longer relevant" should not appear when a specific search - usually a person's name - was made.

Google decided to notify affected websites each time a link had been removed.

The BBC will begin - in the "next few weeks" - publishing the list of removed URLs it has been notified about by Google.

Mr Jordan said the BBC had so far been notified of 46 links to articles that had been removed.

They included a link to a blog post by Economics Editor Robert Peston. The request was believed to have been made by a person who had left a comment underneath the article.

An EU spokesman later said the removal was "not a good judgement" by Google.

Real IRA

The list will not republish the story, or any identifying information. It will instead be a "resource for those interested in the debate", Mr Jordan said.

He criticised the "lack of a formal appeal process" after links have been taken down, noting one case where news of the trial involving members of the Real IRA was removed from search results.

"Two of whom were subsequently convicted," Mr Jordan explained.

"This report could not be traced when looking for any of the defendants' names. It seems to us to be difficult to justify this in the public's interest."

He suggested that Google implement some changes to the process of making a "right to be forgotten" request - such as requiring the identity of the person to be shared with the publication, on condition of confidentiality.

The meeting, hosted by Google chairman Eric Schmidt, is the latest of several that have taken place around Europe in the past two months. The next, on 4 November, will be held in Brussels.

However supporters of the ruling said the meetings were a "PR exercise" for Google - which would rather not deal with requests - rather than an open debate.

"They want to be seen as being open and virtuous, but they handpicked the members of the council, will control who is in the audience, and what comes out of the meetings," said Isabelle Falque-Pierrotin, head of CNIL - France's data protection body.

from the Asahi Shimbun, 2014-Oct-10, by Ken Sakakibara:

Tokyo court orders Google to delete search results that implied criminality

The Tokyo District Court on Oct. 9 ordered Google Inc. to delete more than 100 search results that invaded a man's privacy by giving the impression he was involved in criminal activity.

The man sought an injunction with the court in June 2014 to delete 237 Google search results on his name, saying they implied he was a criminal and were damaging his personal life.

Presiding Judge Nobuyuki Seki ordered Google to delete 122 of the results, including the “title” and the accompanying summary of the contents.

The court said some of the search results did infringe on the man's personal rights.

“It is only natural that an obligation to delete (the search results) arises for Google, which manages the site,” the ruling said.

The court rejected Google's argument that in principle it does not have an obligation to delete results as the provider of a search engine.

“This verdict is very good news for the many people who have suffered both physically and psychologically through an invasion of privacy over the Internet,” said Tomohiro Kanda, the lawyer for the plaintiff.

Google could appeal the decision.

“We have not yet confirmed at the present time that (the injunction) has actually been issued,” a spokesperson for Google's Japanese subsidiary said.

Masatomo Suzuki, an information law professor at Niigata University, said, “I have never heard of a court verdict in Japan that called on a search engine site to delete search results.”

In May 2014, the Court of Justice of the European Union ordered Google to delete search results that contained inappropriate personal information. That ruling received international attention because it recognized a person's right to be “forgotten.”

The Tokyo District Court ruling follows in the same vein as that EU court decision.

from the Wall Street Journal, 2014-Aug-12:

Google on the Run
A Hong Kong court continues the trend toward censorship.

Google fled mainland China for Hong Kong in 2010 to escape the Beijing government's censorship and cybersnooping. Now a court ruling threatens to censor the search giant in Hong Kong—and in the process please opponents of free speech from Beijing to Brussels.

Hong Kong's High Court ruled last week that local tycoon Albert Yeung, whose businesses include pop music, casinos and luxury retailing, can sue Google for defamation over its "autocomplete" feature. Mr. Yeung objects that when Internet users type his name into Google, the site offers terms such as "triad," "Sun Yee On" and "14K"—references to Hong Kong organized crime. Mr. Yeung was convicted of illegal bookmaking and obstruction of justice in the 1980s, but he denies any connections to organized crime and charges that Google effectively defames him every time anyone searches his name.

Google retorts that its autocomplete suggestions simply reflect common searches by Web users, with Google serving as a "passive facilitator" of that information—not a publisher controlling its content. Nor would such control be possible, the company says. "The entire basis of the Internet will be compromised if search engines are required to audit what can be assessed by users using their search tools," Google's lawyer told the court. Given the billions of searches conducted, that would be an "infinite duty" that "should not be foisted on Google."

Judge Marlene Ng apparently disagrees. She ruled that "Google Search does not simply convey information" but rather publishes suggestions "distilled pursuant to artificial intelligence set up by Google." So Mr. Yeung has "a good arguable case" against the company, and a jury can decide what damages may be appropriate. Google meanwhile will likely scramble to start auditing its search tools and heading off litigation from other Hong Kongers happy to shake down a tech colossus.

Hong Kong thus joins the growing global campaign to cleanse the Internet of information that some person or another wants to make disappear, even at the expense of the public interest. In May the European Union's highest court blessed a "right to be forgotten," giving individuals the power to demand that search engines and social-media platforms withhold links to certain Web pages. The ruling included a nominal public-interest exception, but no one knows what courts will decide to protect and what to order erased. Is your years-old bankruptcy outdated personal information, or still valuable for potential business partners or creditors?

Tech firms would rather alter search results than face capricious courts, so the censorship has begun. Google, which in June reported receiving 10,000 privacy requests per day, has informed several European news outlets—including the BBC, the Guardian, El Mundo and The Wall Street Journal—that it now withholds search results for certain articles on their sites.

In ruling against Google last week Justice Ng mentioned the European right to be forgotten only in passing, but Hong Kong privacy commissioner Allan Chiang is already pushing for the territory to follow the EU's lead. "As a responsible enterprise, Google should also entertain removal requests from other parts of the world to meet their privacy expectations," he said before a meeting of 15 regional privacy czars in June.

Such high-minded rhetoric about privacy obscures the inherent authoritarian risks in heightened information controls, whether concerning Albert Yeung's autocomplete results or official European records. As law professor Eugene Volokh wrote presciently in 2000: "The difficulty is that the right to information privacy—the right to control other people's communication of personally identifiable information about you—is a right to have the government stop people from speaking about you." Inviting such government power is no path to greater individual privacy or security.

from the Washington Times, 2014-Jul-16, by Andrew Napolitano:

Feds chilling free speech
The marketplace of ideas is in the federal cross hairs

“Chilling” is the word lawyers use to describe governmental behavior that does not directly interfere with constitutionally protected freedoms, but rather tends to deter folks from exercising them.

Classic examples of “chilling” occurred in the 1970s, when FBI agents and U.S. Army soldiers, in business suits with badges displayed or in full uniform, showed up at anti-war rallies and proceeded to photograph and tape-record protesters. When an umbrella group of protesters sued the government, the Supreme Court dismissed the case, ruling that the protesters lacked standing — meaning, because they could not show that they were actually harmed, they could not invoke the federal courts for redress.

Yet they were harmed, and the government knew it. Years after he died, longtime FBI boss J. Edgar Hoover was quoted boasting of the success of this program. The harm existed in the pause or second thoughts that protesters gave to their contemplated behavior because they knew the feds would be in their faces — figuratively and literally. The government's goal, and its limited success, was to deter dissent without actually interfering with it. Even the government recognized that physical interference with and legal prosecutions of pure speech are prohibited by the First Amendment. Eventually, when this was exposed as part of a huge government plot to stifle dissent, known as COINTELPRO, the government stopped doing it.

Until now.

Now the government fears the verbal slings and arrows of dissenters, even as the means for promulgating one's criticisms of the government in general and of President Obama in particular have been refined and enhanced far beyond those available to the critics of the government in the 1970s.

What has the Obama administration done to stifle, or chill, the words of its detractors? For starters, it has subpoenaed the emails and home telephone records of journalists who have either challenged it or exposed its dark secrets. Among those journalists are James Risen of The New York Times and my colleague and friend James Rosen of Fox News. This is more personal than the National Security Agency spying on everyone, because a subpoena is an announcement that a specific person's words or effects have been targeted by the government, and that person continues to remain in the government's cross hairs until it decides to let go.

This necessitates hiring legal counsel and paying legal fees. Yet, the targeting of Mr. Risen and Mr. Rosen was not because the feds alleged that they broke the law. There were no such allegations. Rather, the feds wanted to see their sources and their means of acquiring information. What journalist could perform his work with the feds watching? The reason we have a First Amendment is to ensure that no journalist would need to endure that.

Two weeks ago, a notorious pot-stirrer in Norfolk, Neb., built a mock outhouse, put it on a truck and drove the truck with permission in a local Fourth of July parade. In front of the outhouse, he placed a mannequin that he claimed looked like himself, and on the outhouse, he posted a sign that stated: “Obama Presidential Library.”

Some thought this was crude, and some thought it was funny; yet it is fully protected speech. It is protected because satire and opinion about public figures are absolutely protected, as well as is all criticism of the government. Still, the Department of Justice has sent a team to investigate this event because a local official called it racist. Such an allegation by a public official and such a federal investigation are chilling. The reason we have a First Amendment is to ensure that the government stays out of investigating speech.

Just last week, Attorney General Eric H. Holder Jr., while in London, opined that much of the criticism of Mr. Obama is based on race — meaning that if Mr. Obama were fully white, his critics would be silent. This is highly inflammatory, grossly misleading, patently without evidential support and, yet again, chilling. Tagging someone as a racist is the political equivalent of applying paint that won't come off. Were the Democrats who criticized Attorney General Alberto Gonzales or Secretary of State Condoleezza Rice racists? Is it appropriate for government officials to frighten people into silence by giving them pause before they speak, during which they basically ask themselves whether the criticism they are about to hurl is worth the pain the government will soon inflict in retaliation?

The whole purpose of the First Amendment is to permit, encourage and even foment open, wide, robust debate about the policies and personnel of the government. That amendment presumes that individuals — not the government — will decide what language to read and hear. Because of that amendment, the marketplace of ideas — not the government — will determine which criticisms will sink in and sting, and which will fall by the wayside and be forgotten.

Surely, government officials can use words to defend themselves; in fact, one would hope they would. Yet when the people fear exercising their expressive liberties because of how the governmental targets they criticize might use the power of the government to stifle them, we are no longer free.

Expressing ideas, no matter how bold or brazen, is the personal exercise of a natural right that the government in a free society is powerless to touch, directly or indirectly. However, when the government succeeds in diminishing public discourse so that it only contains words and ideas of which the government approves, it will have succeeded in establishing tyranny. This tyranny — if it comes — will not come about overnight. It will begin in baby steps and triumph before we know it.

Yet we do know that it already has begun.

Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, is an analyst for the Fox News Channel. He has written seven books on the U.S. Constitution.

from the Wall Street Journal, 2014-Apr-3, by James Taranto:

Welcome to the Collective
Justice Breyer turns the First Amendment on its head.

In his plurality opinion in yesterday's free-speech case, McCutcheon v. Federal Election Commission, Chief Justice John Roberts notes an anomaly in contemporary "liberal" First Amendment jurisprudence: "If the First Amendment protects flag burning, funeral protests, and Nazi parades--despite the profound offense such spectacles cause--it surely protects political campaign speech despite popular opposition."

We'd take the point a step further. The examples Roberts cites all involve fringe political expression. But the First Amendment also protects outré speech outside the political realm--most notably pornography, the subject of a great deal of Supreme Court jurisprudence over the past few decades, in which judicial liberals took the lead in expanding free-speech rights.

In recent years something of a consensus has emerged. When the court extended First Amendment protection to "depictions of animal cruelty" (U.S. v. Stevens, 2010) and violent video games (Brown v. Entertainment Merchants Association, 2011), the decisions were written by Roberts and Justice Antonin Scalia, respectively, for 8-1 and 7-2 majorities.

So why have the court's "liberals" adopted a hostile attitude toward political speech, which has long been understood as being at the core of First Amendment protection? In his McCutcheon dissent, Justice Stephen Breyer elaborates the theory behind this odd development.

We should note that Breyer has proved more willing than his liberal colleagues to uphold restrictions on nonpolitical speech. He was one of the two dissenters (with Justice Clarence Thomas) in Brown v. EMA, which involved a statute restricting sales of games to minors. He also dissented in U.S. v. Playboy Entertainment Group (2000), which invalidated limits on sexually explicit cable TV programming.

But in both those cases Breyer was alone among the court's liberals. In McCutcheon, his dissent gained the support of Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan. It's a familiar pattern: A series of high court rulings pitting campaign finance restrictions against free speech, beginning in 2007, have been decided 5-4, with the same majority as in McCutcheon and the identity of the dissenters varying only by virtue of changes in the court's personnel.

Yesterday's decision was fairly narrow. It invalidated a statutory provision limiting the total contributions an individual could make to congressional candidates, party committees and political action committees during an election cycle. But it let stand the limits on contributions to each candidate or committee. That means, among other things, that a contributor may now give to as many candidates as he wants, but only $5,200 apiece ($2,600 each for the primary and general election). Thomas argued for striking down the individual limits too, which is why Roberts's opinion did not command a majority.

In making the case for the constitutionality of restrictions on campaign contributions, Breyer advances an instrumental view of the First Amendment. He quotes Justice Louis Brandeis, who in 1927 "wrote that the First Amendment's protection of speech was 'essential to effective democracy,' " and Brandeis's contemporary Chief Justice Charles Evans Hughes, who in 1931 argued that " 'a fundamental principle of our constitutional system' is the 'maintenance of the opportunity for free political discussion to the end that government may be responsive to the will of the people" (emphasis Breyer's).

After citing Jean-Jacques Rousseau's (!) views on the shortcomings of representative democracy, Breyer quotes James Wilson, one of the Founding Fathers, who argued in a 1792 commentary that the First Amendment's purpose was to establish a "chain of communication between the people, and those, to whom they have committed the exercise of the powers of government." Again quoting Wilson, Breyer elaborates: "This 'chain' would establish the necessary 'communion of interests and sympathy of sentiments' between the people and their representatives, so that public opinion could be channeled into effective governmental action."

And here's how Breyer sums it all up: "Accordingly, the First Amendment advances not only the individual's right to engage in political speech, but also the public's interest in preserving a democratic order in which collective speech matters."

The emphasis on "matters" is again Breyer's. We'd have italicized "collective" as the key concept. As with the Second Amendment, he and the other dissenters assert a "collective" right, the establishment of which is purportedly the Constitution's ultimate purpose, as a justification for curtailing an individual right.

In this case they at least acknowledge the individual right exists. But then the First Amendment, unlike the Second, has no prefatory clause explaining its purpose; it simply says "Congress shall make no law . . ." Breyer has to venture outside the text to find a reason to read that prohibition equivocally.

It's important to note that when Breyer refers to "collective" rights, what he does not have in mind is individuals exercising their rights by voluntarily collecting themselves into organizations. In fact, the prevailing left-liberal view, most notably with respect to Citizens United v. FEC (2010), is that collections of individuals, at least when they take corporate form, have (or should have) no rights.

The only "collective" that matters to Breyer is the one from which you cannot opt out except by the extreme measure of renouncing your citizenship: "the people" or "the public" as a whole. In Breyer's view, the purpose of the First Amendment is to see that (in Chief Justice Hughes's words) "the will of the people" is done. Individual rights are but a means to that end. To the extent they frustrate it, they ought to be curtailed. You will be assimilated.

That resolves the conundrum we noted atop this column. Fringe political speech like flag burning, funeral protests and Nazi parades is so broadly unappealing as to have no effect on "the will of the people." The same is true of nonpolitical forms of expression such as pornography, violent video games and depictions of animal cruelty. (Breyer's willingness to countenance restrictions of the first two has to do with the protection of children, not of the body politic.)

Only mainstream political expression has the potential to thwart the "collective" will, and thus, in the view of Breyer and his fellow dissenters, it alone is deserving of restriction on such a rationale. That stands the First Amendment on its head. Its purpose may be to "make government responsive," as Wilson argued, but the means by which it does so is the limitation of government power and protection of individual freedom.

The Puffington Host has a revealing quote from a politician who objects to yesterday's ruling, Rhode Island's Sen. Sheldon Whitehouse:

"This is a court that knows essentially nothing about elections. It's the first court in a long time on which no one has ever run for office," said Whitehouse, comparing the five justices who ruled for businessman Shaun McCutcheon to "the ultimate amateur . . . who says, 'I know how to eat, so I can open a restaurant.' "

Whitehouse is arguing that the political process should be controlled by professional politicians. As Roberts notes in responding to Breyer's dissent: "The degree to which speech is protected cannot turn on a legislative or judicial determination that particular speech is useful to the democratic process." To do so would impose the will of politicians or judges on the people, not the other way around.

from the Wall Street Journal, 2014-May-6:

Rewriting the First Amendment
Chuck Schumer thinks he can improve on James Madison.

A standard liberal talking point about the Tea Party is that its constitutional designs are "extremist." But you will search in vain for any Tea Party proposal that is anywhere close to as radical as the current drive by mainstream Democrats to rewrite the Bill of Rights.

The Supreme Court's Citizens United decision allowing unions and corporations to donate to independent political groups has driven liberals to such fits that they now want to amend the First Amendment. At a Senate Rules Committee meeting last week, New York Democrat Chuck Schumer announced a proposal to amend the Constitution to empower government to regulate political speech.

"The Supreme Court is trying to take this country back to the days of the robber barons, allowing dark money to flood our elections," Mr. Schumer said. The Senate will vote this year on the amendment to "once and for all allow Congress to make laws to regulate our system, without the risk of them being eviscerated by a conservative Supreme Court." He even rolled out retired Supreme Court Justice John Paul Stevens to pronounce his unhappiness with freedom's bedrock document.

According to the text of the proposed revision to James Madison's 1791 handiwork, sponsored by New Mexico Senator Tom Udall, the states and federal government would have the power to regulate the "raising and spending of money" through a wide range of means "to advance the fundamental principle of political equality for all."

The real guarantee would be political advantage for all incumbents, since it's the sitting lawmakers who really benefit from any law limiting contributions to candidates or on their behalf. While Beltway boys like Messrs. Schumer and Udall have the name recognition to raise money in small increments, challengers often need the financial boost from a few individuals to get their message heard.

Mr. Schumer is conjuring the age of robber barons, but there were no general limits on what an individual could donate to a federal candidate in this country until as recently as 1974. Contrary to the outrage that greeted the Supreme Court's recent decision ending aggregate limits to candidates and political party committees in McCutcheon v. FEC, at the time that ruling was issued 32 states already had no aggregate or similar limits on contributions to candidates. That fact was so uncontroversial that Mr. Udall may not even know that New Mexico was among the 32.

Mr. Udall's amendment is careful to specify that nothing "should be construed to grant Congress the power to abridge the freedom of the press." In case you don't follow campaign finance, that is supposed to protect newspapers and TV networks, most of which embrace Democratic causes and candidates.

The real target will be the corporations Democrats have railed against since Citizens United. But why should Warren Buffett's company enjoy free speech rights because he owns a handful of newspapers along with insurance companies, while Jeffrey Immelt's is muzzled because GE makes jet turbines? For that matter, what's to stop political groups from incorporating themselves as newspapers?

Once you've opened the First Amendment for revision by politicians, and reinterpretation by judges, anything can happen. We know liberal editors tend to lose their bearings when they write about money in politics, but is the problem so great that it's worth letting, say, Senator Ted Cruz determine whether the New York Times Co. qualifies for protection under the First Amendment?

This prospect doesn't seem to bother even the great totems of the legal left, who also see an amendment as the only way to end-run the Supreme Court. Amending the First Amendment is a "particularly worthy enterprise," Harvard's Laurence Tribe wrote on in 2012 "given that the composition of the court prefigures little chance of a swift change in direction." Who would have thought that the legal left considered rights of speech and association to be so easily tradeable for partisan gain?

Professor Tribe added that thanks to the rise of Super PACs, campaign donors are "invisible to the electorate, though they are all too visible to the candidates who benefit." Think of the Koch brothers—or, as Mr. Tribe suggests, the "invisible" tycoon Sheldon Adelson, whose contributions to Newt Gingrich's political action committee during the 2012 GOP primary "singlehandedly sustained a floundering presidential campaign." These donors are so "invisible" that Mr. Tribe can put their names in an op-ed and his readers all know who they are.

A Constitutional amendment requires a two-thirds vote of the House and Senate and ratification by 38 states, so it has scant chance of passing any time soon. Those ample checks against self-interested legislatures are another reason to thank the Founders. But who knows what might happen the next time Democrats get supermajorities in Congress, or find a Republican like John McCain willing to give their effort bipartisan cover?

The larger story here is how far the American left is willing to go to cripple their political opponents. They're even willing to write a giant loophole into America's founding charter so Congress can limit political speech. The Tea Party's concerns about eroding liberty turn out to be more accurate than even its most devoted partisans imagined.

from the Wall Street Journal, 2014-Jun-1, by Ted Cruz:

The Democratic Assault on the First Amendment
Congress has too much power already; it should not have the power to silence citizens.

For two centuries there has been bipartisan agreement that American democracy depends on free speech. Alas, more and more, the modern Democratic Party has abandoned that commitment and has instead been trying to regulate the speech of the citizenry.

We have seen President Obama publicly rebuke the Supreme Court for protecting free speech in Citizens United v. FEC; the Obama IRS inquire of citizens what books they are reading and what is the content of their prayers; the Federal Communications Commission proposing to put government monitors in newsrooms; and Sen. Harry Reid regularly slandering private citizens on the Senate floor for their political speech.

But just when you thought it couldn't get any worse, it does. Senate Democrats have promised a vote this year on a constitutional amendment to expressly repeal the free-speech protections of the First Amendment.

You read that correctly. Forty-one Democrats have signed on to co-sponsor New Mexico Sen. Tom Udall's proposed amendment to give Congress plenary power to regulate political speech. The text of the amendment says that Congress could regulate "the raising and spending of money and in-kind equivalents with respect to federal elections." The amendment places no limitations whatsoever on Congress's new power.

Two canards are put forth to justify this broad authority. First, "money is not speech." And second, "corporations have no free speech rights."

Neither contention bears even minimal scrutiny. Speech is more than just standing on a soap box yelling on a street corner. For centuries the Supreme Court has rightly concluded that free speech includes writing and distributing pamphlets, putting up billboards, displaying yard signs, launching a website, and running radio and television ads. Every one of those activities requires money. Distributing the Federalist Papers or Thomas Paine's "Common Sense" required money. If you can prohibit spending money, you can prohibit virtually any form of effective speech.

As for the idea that the Supreme Court got it wrong in Citizens United because corporations have no First Amendment rights, that too is demonstrably false. The New York Times is a corporation. The television network NBC is a corporation. Book publisher Simon & Schuster is a corporation. Paramount Pictures is a corporation. Nobody would reasonably argue that Congress could restrict what they say—or what money they spend distributing their views, books or movies—merely because they are not individual persons.

Proponents of the amendment also say it would just "repeal Citizens United" or "regulate big money in politics." That is nonsense. Nothing in the amendment is limited to corporations, or to nefarious billionaires. It gives Congress power to regulate—and ban—speech by everybody.

Indeed, the text of the amendment obliquely acknowledges that Americans' free-speech rights would be eliminated: It says "[n]othing in this article shall be construed to grant Congress the power to abridge the freedom of the press." Thus, the New York Times is protected from congressional power; individual citizens, exercising political speech, are not.

If this amendment were adopted, the following would likely be deemed constitutional:

Congress could prohibit the National Rifle Association from distributing voter guides letting citizens know politicians' records on the Second Amendment.

Congress could prohibit the Sierra Club from running political ads criticizing politicians for their environmental policies.

Congress could penalize pro-life (or pro-choice) groups for spending money to urge their views of abortion.

Congress could prohibit labor unions from organizing workers (an in-kind expenditure) to go door to door urging voters to turn out.

Congress could criminalize pastors making efforts to get their parishioners to vote.

Congress could punish bloggers expending any resources to criticize the president.

Congress could ban books, movies (watch out Michael Moore ) and radio programs—anything not deemed "the press"—that might influence upcoming elections.

One might argue, "surely bloggers would be protected." But Senate Democrats expressly excluded bloggers from protection under their proposed media-shield law, because bloggers are not "covered journalists."

One might argue, "surely movies would be exempt." But the Citizens United case—expressly maligned by President Obama during his 2010 State of the Union address—concerned the federal government trying to fine a filmmaker for distributing a movie criticizing Hillary Clinton.

One might argue, "surely books would be exempt." But the Obama administration, in the Citizens United oral argument, explicitly argued that the federal government could ban books that contained political speech.

The contemplated amendment is simply wrong. No politician should be immune from criticism. Congress has too much power already—it should never have the power to silence citizens.

Thankfully, any constitutional amendment must first win two-thirds of the vote in both houses of Congress. Then three-fourths of the state legislatures must approve the proposed amendment. There's no chance that Sen. Udall's amendment will clear either hurdle. Still, it's a reflection of today's Democratic disrespect for free speech that an attempt would even be made. There was a time, not too long ago, when free speech was a bipartisan commitment.

John Stuart Mill had it right: If you disagree with political speech, the best cure is more speech, not less. The First Amendment has served America well for 223 years. When Democrats tried something similar in 1997, Sen. Ted Kennedy was right to say: "In the entire history of the Constitution, we have never amended the Bill of Rights, and now is no time to start."

Mr. Cruz, a Republican senator from Texas, serves as the ranking member on the Senate Judiciary Committee's Subcommittee on the Constitution, Civil Rights, and Human Rights.

from the New York Times, 2014-Nov-2, printed 2014-Nov-3, p.A31, by David Schanzer and Jay Sullivan:

Cancel the Midterms

DURHAM, N.C. — By Tuesday night about 90 million Americans will have cast ballots in an election that's almost certain to create greater partisan divisions [not create, reflect -- absent fraud, elections by design can only reflect --AMPP Ed.], increase gridlock [or checking and balancing, as the country's founders would have it -AMPP Ed.] and render governance of our complex nation even more difficult [as the founders intended -AMPP Ed.]. Ninety million sounds like a lot, but that means that less than 40 percent of the electorate will bother to vote, even though candidates, advocacy groups and shadowy “super PACs” will have spent more than $1 billion to air more than two million ads to influence the election.

There was a time when midterm elections made sense — at our nation's founding, the Constitution represented a new form of republican government, and it was important for at least one body of Congress to be closely accountable to the people. But especially at a time when Americans' confidence in the ability of their government to address pressing concerns is at a record low, two-year House terms no longer make any sense. [Close accountability no longer makes sense? This should be a hoot. -AMPP Ed.] We should get rid of federal midterm elections entirely.

There are few offices, at any level of government, with two-year terms. Here in Durham, we elect members of the school board and the county sheriff to terms that are double that length. Moreover, Twitter, ubiquitous video cameras, 24-hour cable news and a host of other technologies provide a level of hyper-accountability the framers could not possibly have imagined. [The accountability inheres in the elections -- no elections, no accountability. -AMPP Ed.] In the modern age, we do not need an election every two years to communicate voters' desires to their elected officials. [This is the Soviet model. "Soviet" is Russian for "advice" -- the authors support the right of people and subordinate officials to communicate their desires upward, and support the prerogative of the superiors to ignore those desires. -AMPP Ed.]

But the two-year cycle isn't just unnecessary; it's harmful to American politics. [But the authors have it above that politics is the problem, so they should support harming it. They must mean that the two-year cycle results in more politics, of which they disapprove. -AMPP Ed.]

The main impact of the midterm election in the modern era has been to weaken the president [Indeed this has been its effect in every era since the country's founding, as intended by the authors of the Constitution. -AMPP Ed.], the only government official (other than the powerless vice president) elected by the entire nation. Since the end of World War II, the president's party has on average lost 25 seats in the House and about 4 in the Senate as a result of the midterms. This is a bipartisan phenomenon — Democratic presidents have lost an average of 31 House seats and between 4 to 5 Senate seats in midterms; Republican presidents have lost 20 and 3 seats, respectively. [This is what accountability looks like. -AMPP Ed.]

The realities of the modern election cycle are that we spend almost two years selecting a president with a well-developed agenda [and a public forced to choose one of only two viable candidates, due to America's political duopoly -AMPP Ed.], but then, less than two years after the inauguration, the midterm election cripples that same president's ability to advance that agenda.

These effects are compounded by our grotesque campaign finance system. House members in competitive races have raised, on average, $2.6 million for the 2014 midterm. That amounts to $3,600 raised a day — seven days a week, 52 weeks a year. Surveys show that members spend up to 70 percent of their time fund-raising during an election year. Two years later, they'll have to do it all again. [Gosh that horrible democracy, it's so messy, can't we neaten things up a bit? -AMPP Ed.]

Much of this money is sought from either highly partisan wealthy individuals or entities with vested interests before Congress [which, due to overreach by legislators and Presidents affialated with the Democratic Party, now includes all interests -AMPP Ed.]. Eliminating midterms would double the amount of time House members could focus on governing [as opposed to fretting over being held accountable by one's constituents -AMPP Ed.] and make them less dependent on their donor base.

Another quirk is that, during midterm elections, the electorate has been whiter, wealthier, older and more educated than during presidential elections. Biennial elections require our representatives to take this into account, appealing to one set of voters for two years, then a very different electorate two years later. [Yes, they appeal to the people who care enough about their country and its government to show up to vote. That's democracy. -AMPP Ed.]

There's an obvious, simple fix, though. The government should, through a constitutional amendment, extend the term of House members to four years and adjust the term of senators to either four or eight years, so that all elected federal officials would be chosen during presidential election years. [This is where the farce reaches its highpoint -- the structural dynamics of Constitutional amendment are similar to those of the House of Representatives and the midterm elections, but far more onerous, requiring multiple supermajorities in Congress (2/3 in each house) and among the state legislators (3/4). Any cause that can prevail by Constitutional amendment would sail through a midterm election and resulting Congress virtually unopposed. -AMPP Ed.] Doing so would relieve some (though, of course, not all) of the systemic gridlock ["check and balances", as the founders would have it -AMPP Ed.] afflicting the federal government and provide members of Congress with the ability to focus more time and energy on governance instead of electioneering [i.e. more imposition, less fretting over being held accountable by the constituents they betrayed -AMPP Ed.].

This adjustment would also give Congress the breathing space to consider longer-term challenges facing the nation — such as entitlement spending [presumably less for the "whiter, wealthier, older and more educated" to whom they above seek explicitly to exempt elected officials from appealing, and relatively more for the not-white, not-wealthier, not-older, and less-educated -AMPP Ed.], immigration [again, by the same rationale, presumably less of "whiter, wealthier, older and more educated" and more for the not-white, not-wealthier, not-older, and less-educated -AMPP Ed.] and climate change [it is inconceivable, given the other views they express here, that the authors mean anything other than the forceful imposition by government on the population of increasingly ruinous schemes of taxation and quotas on the 82% of US energy production that is fossil-fuel-based, without considering alternative strategies of mitigation and adaptation that are more economically realistic and more congenial to the voting public -AMPP Ed.] — that are either too complex or politically toxic to tackle within a two-year election cycle.

To offset the impact of longer congressional terms, this reform might be coupled with term limits that would cap an individual's total congressional service at, say, 24 years [guaranteeing a substantial contingent, at any given time, of lame duck legislators with no accountability at all, all of whose erstwhile constituents would have no substantive representation for the duration of the final term -AMPP Ed.], about the average for a member of Congress today. This would provide members enough time to build experience in the job, but also limit the effects of incumbency and ensure the circulation of new blood in the system.

The framers included an amendment process in the Constitution so our nation could adjust the system to meet the demands of a changing world. Surely they would not be pleased with the dysfunction, partisan acrimony and public dissatisfaction that plague modern politics. [On the contrary, the framers anticipated and intended precisely the "gridlock" currently afflicting the US national government, knowing it to be immeasurably preferable to a bare majority running roughshod over the irreducible and vital economic and social interests of a bare minority, a bare minority that might thereby be motivated to catastrophic rebellion inducing national ruin. -AMPP Ed.] Eliminating the midterm elections would be one small step to fixing our broken system.

David Schanzer is a professor of public policy and Jay Sullivan is a junior at Duke.

from the Daily Caller, 2014-Aug-19, by Leslie Ford and Ryan T. Anderson, both affiliated with the Heritage Foundation:

Government to Farmers: Host Same-Sex Wedding or Pay a $13,000 Fine

Should the government be able to coerce a family farm into hosting a same-sex wedding?

In a free society, the answer is no. Family farms should be free to operate in accordance with the beliefs and values of their owners. Government shouldn't be able to fine citizens for acting in the market according to their own—rather than the government's—values, unless there is a compelling government interest being pursued in the least restrictive way possible.

But the New York State Division of Human Rights doesn't see things this way. On August 8, it fined Cynthia and Robert Gifford $13,000 for acting on their belief that marriage is the union of a man and woman and thus declining to rent out their family farm for a same-sex wedding celebration. The Human Rights Commission ruled that “the nature and circumstances of the [Giffords's] violation of the Human Rights Law also warrants a penalty.”

This is coercive big government run amok.

Here's the back story. In 2012, Melissa Erwin and Jennie McCarthy contacted the Giffords to rent the family's barn for their same-sex wedding ceremony and reception. Cynthia Gifford responded that she and her husband would have to decline their request as they felt they could not in good conscience host a same-sex wedding ceremony at their home. The Giffords live on the second and third floor of the barn and, when they host weddings on the first floor, they open part of the second floor as a bridal suite.

The Giffords have owned and operated Liberty Ridge Farm in Schaghticoke, New York for over 25 years. Like many small farm families, they often open the farm to the public for events like berry picking, fall festivals, and pig racing.

Should the government be in the business of “re-educating” its citizens to change their moral beliefs?

They also open their home for weddings and receptions. When the Giffords host weddings, they are involved in every aspect of the wedding planning and celebration: they greet and drive guests in their farm trolley, decorate the barn, set up floral arrangements, arrange fireworks displays, and provide catering. As the Human Rights Commission ruling even points out, “the only wedding-related service Liberty Ridge Farm does not offer is providing the official for the wedding ceremony.”

As many brides know, planning a wedding requires hours of careful work to organize in order to pull off the celebration—hours during which family businesses operating venues like the Giffords' actively participate in the weddings they host. The Giffords believe that as free citizens running a business, they should have the right to decline to participate in an event that does not reflect their values.

Unfortunately, New York's Human Right's law (Executive Law, art. 15) creates special privileges based on sexual orientation that trump the rights of business owners. Because the Giffords' family farm is open to the public for business, New York classifies it as a “public accommodation” and then mandates that it not “discriminate” on the basis of sexual orientation.

Of course the Giffords were not engaging in any insidious discrimination—they were acting on their belief about the nature of marriage. They do not object to gay or lesbian customers attending the fall festivals, or going berry picking, or doing any of the other activities that the farm facilitates. The Giffords' only objection is to being forced to abide by the government's views on sexuality and host a same-sex wedding. The Human Rights Commission has now declared this historic belief about marriage to be “discrimination.”

The Giffords must pay a $1,500 mental anguish fine to each of the women and pay $10,000 in civil damages penalty to New York State. If they can't pay in 60 days, a nine percent interest rate will be added to that total. Like Jack Phillips of Masterpiece Cakeshop, the Giffords must also institute anti-discrimination re-education classes and procedures for their staff.

The question before all citizens is whether this law and this fine are just. Should the government be able to force family businesses to betray their consciences and participate in ceremonies that violate their beliefs? Should the government be in the business of “rehabilitating” consciences or “re-educating” its citizens to change their moral beliefs about the definition of marriage?

Government should not create special legal privileges based on sexual orientation and gender identity. Instead, government should protect the rights of Americans and the associations they form to act in the public square in accordance with their beliefs. The Giffords' case illustrates the growing conflict between religious liberty rights and laws that grant special privileges based on sexual orientation and gender identity. In a nation founded on limited government and religious freedom, government should not attempt to coerce any citizen, association, or business into celebrating same-sex relationships.

from the Wall Street Journal, 2014-Jul-30:

Texas Speech Shootout
Home schoolers sue the regulators who want to shut them up.

One of the few remaining subjects of bipartisan comity in U.S. politics is the abuse of campaign-finance laws to protect incumbents from criticism. Well, now Texas Republicans will have to defend in federal court one such bid to shut down political speech and intimidate donors—and explain why the First Amendment supposedly stops at the steps of state legislatures.

On Friday the Texas Home School Coalition Association sued the state over an attempt to ensnare virtually all civics organizations under government control and regulate their activities. The gambit emerged from a panic in Austin over the rise of outside scrutiny and was meant to prevent the barbarians from participating in politics.

A seat in the Texas legislature was once a lifetime sinecure, but after the Supreme Court's 2010 free-speech decision in Citizens United, what liberals and some Republicans call "dark money" started to pour into the fray. Lawmakers started to lose primaries as their positions and records were exposed to voters, so in 2013 they struck back with legislation that imposed onerous reporting and disclosure requirements on groups engaged in issue advocacy as if they were a regular political committee stumping for a candidate.

Governor Rick Perry rightly vetoed the bill, citing its "chilling effect" on speech that would undermine "our democratic political process." So the Ethics Commission, the state's campaign-finance regulator, decided to restrict speech on its own with no legal basis.

At the request of legislators, the Ethics Commission is reinterpreting the existing state election code to target issue-oriented groups that also take part in elections in any way, even if such campaign advocacy is a sideline to their primary mission. Under the proposed new rules, these groups must register with the state, hire campaign accountants and attorneys, and file and disclose detailed reports on contributors, spending and their beneficiaries. Violations are a criminal offense.

The Texas Home School Coalition Association argues that this attempt to burden speech is unconstitutional. The nonprofit mainly supports non-state education through parental seminars, legal aid and the like. But the association devotes about 9% of its budget in election years to producing a voter guide, promoting endorsements of candidates who support its values, and advertising its policy positions on matters of public concern at the ballot box.

Even the Supreme Court's original campaign-finance sins, 1976's Buckley v. Valeo and a follow-on 1986 case, explicitly protected the First Amendment rights of "organizations whose major purpose is not campaign advocacy, but who occasionally make independent expenditures on behalf of candidates." These precedents say the government can only restrict core political speech to avoid corruption, but how can advocating for home schooling create a corrupt quid pro quo?

The real goal of the Ethics Commission and its legislator accessories is to reduce the influence of critics and expose donors to political intimidation. Here's an opportunity to vindicate citizen participation and accountability in government, which is what politicians fear the most.

from the Wall Street Journal, 2014-May-7, by Daniel Henninger:

Obama Unleashes the Left
How the government created a federal hunting license for the far left.

In the U.S., the politics of the left versus the right rolls on with the predictability of traffic jams at the George Washington Bridge. It's a lot of honking. Until now. All of a sudden, the left has hit ramming speed across a broad swath of American life—in the universities, in politics and in government. People fingered as out of line with the far left's increasingly bizarre claims are being hit and hit hard.

Commencement-speaker bans are obligatory. Former Secretary of State Condoleezza Rice withdrew as Rutgers's speaker after two months of protests over Iraq, the left's long-sought replacement for the Vietnam War. Brandeis terminated its invitation to Somali writer Hirsi Ali, whose criticisms of radical Islam violated the school's "core values."

Azusa Pacific University "postponed" an April speech by political scientist Charles Murray to avoid "hurting our faculty and students of color." Come again? It will "hurt" them? Oh yes. In a recent New Republic essay, Jennie Jarvie described the rise of "trigger warnings" that professors are expected to post with their courses to avoid "traumatizing" students.

Oberlin College earlier this year proposed that its teachers "be aware of racism, classism, sexism, heterosexism, cissexism, ableism, and other issues of privilege and oppression." The co-chair of Oberlin's Sexual Offense Policy Task Force said last month that this part of the guide is now under revision.

I think it's fair to say something has snapped.

Mozilla co-founder Brendan Eich was driven out as CEO for donating money to support California's Prop. 8. An online protest tried to kill Condi Rice's appointment to the Dropbox board of directors over Internet surveillance. Incredibly, Dropbox CEO Drew Houston didn't cave.

Earlier this year, faculty and students held a meeting at Vassar College to discuss a particularly bitter internal battle over the school's boycott-Israel movement. Before the meeting, an English professor announced the dialogue "would not be guided by cardboard notions of civility."

In the Harvard Crimson, recently, an undergraduate columnist wrote: "Let's give up on academic freedom in favor of justice." How would that work? "When an academic community observes research promoting or justifying oppression, it should ensure that this research does not continue." She explicitly cited for suppression the work of conservative Harvard government professor Harvey Mansfield.

It's obvious that the far left has decided there are no longer constraints on what it can do to anyone who disagrees with it. How did this happen? Who let the dogs out?

The answer is not university presidents. The answer is that the Obama administration let the dogs out.

The trigger event was an agreement signed last May between the federal government and the University of Montana to resolve a Title IX dispute over a sexual-assault case.

Every college administrator in the U.S. knows about this agreement. Indeed, there are three separate, detailed "Montana" documents that were signed jointly—and this is unusual—by the civil-rights divisions of the Justice and Education Departments. Remarked DoJ's Joceyln Samuels, "The government is stronger when we speak with one voice."

That's real muscle. But read the agreement. It is Orwellian.

The agreement orders the school to retain an "Equity Consultant" (yes, there is such a thing) to advise it indefinitely on compliance. The school must, with the equity consultant, conduct "annual climate surveys." It will submit the results "to the United States."

The agreement describes compliance in mind-numbing detail, but in fact the actual definitional world it creates is vague. It says: "The term 'sexual harassment' means unwelcome conduct of a sexual nature." But there are also definitions for sexual assault and gender-based harassment. All of this detailed writ is called "guidance." As in missile.

No constitutional lawyer could read this agreement and not see in it the mind of the Queen of Hearts: "Sentence first, verdict afterwards!" Indeed, the U.S. Education Department felt obliged to assert that the agreement is "entirely consistent with the First Amendment."

First Amendment? It's more like a fatwa. The Obama administration has issued a federal hunting license to deputize fanatics at any university in America. They will define who gets accused, and on what basis.

The White House enabled these forces again last week, releasing an Education Department list of 55 colleges that are "under investigation" for possible Title IX violations. Not formally cited but "under investigation." The list includes such notorious Animal Houses as Catholic University, Swarthmore, Knox College, Carnegie Mellon and Harvard Law School. In truth, every school in America is effectively on the list.

Make no mistake, universities under constant pressure from the Obama administration and the most driven members of their "communities" will comply and define due process downward. If the liability choice falls between the lawyer brigades at the Holder Justice Department or some 19-year-old student or an assistant professor who didn't post the course's "trigger warning," guess who will get tossed to the Marcusian mobs at Harvard and Vassar?

If it's possible for the left to have its John Birch moment, we're in it. Wave goodbye to cardboard civility.

from, 2014-May-14, by Katie Pavlich:

Judicial Watch Obtains New Documents Showing IRS Targeting Came Directly From Washington D.C.

New documents obtained and released through a Judicial Watch lawsuit show the targeting of tea party and conservative groups came directly out of Washington D.C., not a rogue IRS office in Cincinnati.

On July 6, 2012, former Director of the IRS Rulings and Agreements Division and current Manager of Exempt Organizations Guidance Holly Paz sent an email to IRS Attorney Steven Grodnitzky asking for an explanation of how tea party group applications were being handled. Grodnitzky responded by confirming the cases were being handled in Washington.

"EOT is working the Tea party applications in coordination with Cincy. We are developing a few applications here in DC and providing copies of our development letters with the agent to use as examples in the development of their cases. Chip Hull [another lawyer in IRS headquarters] is working these cases in EOT and working with the agent in Cincy, so any communication should include him as well. Because the Tea party applications are the subject of an SCR [Sensitive Case Report], we cannot resolve any of the cases without coordinating with Rob," Grodnitzky wrote.

When the IRS targeting scandal broke last year, officials in Washington immediately pinned the blame on the Cincinnati office. This documentation proves not only that direction was coming out of Washington, but that Washington instructed Cincinnati about how to handle tea party applications.

A new email from Lois Lerner also details how BOLO lists (be on the look out) were specifically created for tea party groups or groups with issues related to government spending, debt, taxes and "how the country is being run."

"Because the BOLO only contained a brief reference to "Organizations involved with the Tea Party movement applying for exemption under 501(c)(3) and 501(c)(4)" in June 2011, the EO Determinations manager asked the manager of the screening group, John Shafer [IRS Cincinnati field office manager], what criteria were being used to label cases as "tea party " cases. ("Do the applications specify/state ' tea party'? If not, how do we know applicant is involved with the tea party movement?") The screening group manager asked his employees how they were applying the BOLO's short –hand reference to "tea party." His employees responded that they were including organizations meeting any of the following criteria as falling within the BOLO's reference to "tea party" organizations: "1. 'Tea Party', 'Patriots' or '9/12 Project' is referenced in the case file. 2. Issues include government spending, government debt and taxes. 3. Educate the public through advocacy/legislative activities to make America a better place to live. 4. Statements in the case file that are critical of the how the country is being run. . . " Lerner wrote on April 2, 2013. "So, we believe we have provided information that shows that no one in EO "developed" the criteria. Rather, staff used their own interpretations of the brief reference to "organizations involved with the Tea Party movement," which was what was on the BOLO list."

Judicial Watch also found the IRS put red and orange alert symbols on tea party issues for heightened awareness. Here are two slides from a "Heightened Awareness Presentation" used at the IRS.

[see pages 1 and 7 of PDF document]

Further, documents show the IRS responded to "intense" requests from Democrat Senator Carl Levin to come down on conservative tax exempt groups in an effort to get rid of them, specifically the groups working against his reelection campaign.

Emails released by Judicial Watch last month show former head of taxpayer groups Lois Lerner was in contact with the Department of Justice about the potential criminal prosecution of conservative groups. In her emails about DOJ, Lerner noted that putting one person from a conservative organization in jail would create and example and "shut the whole thing down."

from the Washington Post, 2014-Apr-10, by Charles Krauthammer:

Thought police on patrol

Two months ago, a petition bearing more than 110,000 signatures was delivered to The Post, demanding a ban on any article questioning global warming. The petition arrived the day before publication of my column, which consisted of precisely that heresy.

The column ran as usual. But I was gratified by the show of intolerance because it perfectly illustrated my argument that the left is entering a new phase of ideological agitation — no longer trying to win the debate but stopping debate altogether, banishing from public discourse any and all opposition.

The proper word for that attitude is totalitarian. It declares certain controversies over and visits serious consequences — from social ostracism to vocational defenestration — upon those who refuse to be silenced.

Sometimes the word comes from on high, as when the president of the United States declares the science of global warming to be “settled.” Anyone who disagrees is then branded “anti-science.” And better still, a “denier” — a brilliantly chosen calumny meant to impute to the climate skeptic the opprobrium normally reserved for the hatemongers and crackpots who deny the Holocaust.

Then last week, another outbreak. The newest closing of the leftist mind is on gay marriage. Just as the science of global warming is settled, so, it seems, are the moral and philosophical merits of gay marriage.

To oppose it is nothing but bigotry, akin to racism. Opponents are to be similarly marginalized and shunned, destroyed personally and professionally.

Like the CEO of Mozilla who resigned under pressure just 10 days into his job when it was disclosed that six years earlier he had donated to California’s Proposition 8, which defined marriage as between a man and a woman.

But why stop with Brendan Eich, the victim of this high-tech lynching? Prop 8 passed by half a million votes. Six million Californians joined Eich in the crime of “privileging” traditional marriage. So did Barack Obama. In that same year, he declared that his Christian beliefs made him oppose gay marriage.

Yet under the new dispensation, this is outright bigotry. By that logic, the man whom the left so ecstatically carried to the White House in 2008 was equally a bigot.

The whole thing is so stupid as to be unworthy of exegesis. There is no logic. What’s at play is sheer ideological prejudice — and the enforcement of the new totalitarian norm that declares, unilaterally, certain issues to be closed.

Closed to debate. Open only to intimidated acquiescence.

To this magic circle of forced conformity, the left would like to add certain other policies, resistance to which is deemed a “war on women.” It’s a colorful synonym for sexism. Leveling the charge is a crude way to cut off debate.

Thus, to oppose late-term abortion is to make war on women’s “reproductive health.” Similarly, to question Obamacare’s mandate of free contraception for all.

Some oppose the regulation because of its impingement on the free exercise of religion. Others on the simpler (nontheological) grounds of a skewed hierarchy of values. Under the new law, everything is covered, but a few choice things are given away free. To what does contraception owe its exalted status? Why should it rank above, say, antibiotics for a sick child, for which that same mother must co-pay?

Say that, however, and you are accused of denying women “access to contraception.”

Or try objecting to the new so-called Paycheck Fairness Act for women, which is little more than a full-employment act for trial lawyers. Sex discrimination is already illegal. What these new laws do is relieve the plaintiffs of proving intentional discrimination. To bring suit, they need only to show that women make less in that workplace.

Like the White House, where women make 88 cents to the men’s dollar?

That’s called “disparate impact.” Does anyone really think Obama consciously discriminates against female employees, rather than the disparity being a reflection of experience, work history, etc.? But just to raise such questions is to betray heretical tendencies.

The good news is that the “war on women” charge is mostly cynicism, fodder for campaign-year demagoguery. But the trend is growing. Oppose the current consensus and you’re a denier, a bigot, a homophobe, a sexist, an enemy of the people.

Long a staple of academia, the totalitarian impulse is spreading. What to do? Defend the dissenters, even if — perhaps, especially if — you disagree with their policy. It is — it was? — the American way.

from the Wall Street Journal, 2014-Jul-4:

Climate of Conformity
One of our writers gets sacked for dissenting on global warming.

As loyal left-wingers go, Caleb Rossiter is a trouper. He's supported every left of center cause going back to the Cold War, but lately he's become a partial dissenter against the new religion of climate change. And now he's been put out in the cold.

The Institute for Policy Studies terminated Mr. Rossiter's fellowship two days after he wrote a May 5 op-ed for these pages. Mr. Rossiter, who is also an American University adjunct professor of math and statistics, argued that the computer modeling used to support claims that the earth is headed for a climate catastrophe is far from definitive. But more important from a moral point of view, he wrote that limiting fossil fuels would make it harder for Africa to escape poverty.

In a May 7 email, IPS Director John Cavanagh and Foreign Policy in Focus co-director Emira Woods informed Mr. Rossiter that, "Unfortunately, we now feel that your views on key issues, including climate science, climate justice, and many aspects of U.S. policy to Africa, diverge so significantly from ours that a productive working relationship is untenable."

So after a 23-year association, Mr. Rossiter got the boot. Some readers may recall IPS as a stalwart opponent of U.S. policy during the long twilight struggle with the Soviet Union. Mr. Rossiter says he agrees with the institute on almost everything and calls it "the only anti-imperialist think tank in D.C."

Mr. Cavanagh says the termination was "a respect issue": Mr. Rossiter "didn't reach out to the people who work on those issues and he implied in the piece that if you didn't agree with him you wanted Africans to be without electricity in the dark. That's not our position."

Mr. Rossiter says his support for fossil fuels for Africa was well known at IPS even before his fellowship began. There is a "right to development," he told us, and when the developed world is "denying, even to South Africa which is a democratic government, that right, it strikes me as cultural imperialism." He says his "biggest problem" with climate-change theory "is with the certainty that people express. For years I have tried to get people at IPS to come to my classes where I teach statistics. I think they don't come because they think it lends credence to the other side if you debate the topic."

When Mr. Rossiter pushed for a climate debate this spring, Mr. Cavanagh replied in an email: "My opposition to a future based on fossil fuels goes way beyond the math. It is rooted in one of Emira's arguments, that as long as we're dependent on fossil fuels, we'll keep building bases in other countries to grab their oil. And, I'm watching what fossil fuel extraction has meant to indigenous peoples, to the people of Alberta."

He's referring to the oppressed self-governing people of Alberta, Canada.

Think tanks can support whoever they want, though we thought they were supposed to let people "think." Mr. Rossiter's fate is further evidence of the left's climate of intellectual conformity. If you disagree with the orthodoxy on climate change, you aren't merely wrong, you must be banished from public debate.

from the Wall Street Journal Best of the Web, 2014-May-15, by James Taranto:

Scientific Authoritarians
The case for skepticism about climate scientists.

Florida's Sen. Marco Rubio came under attack this week for refusing to submit to scientific authority. "I do not believe that human activity is causing these dramatic changes to our climate the way these scientists are portraying it," he said in an interview with Jonathan Karl.

Nonscientist Ruth Marcus, writing for the Washington Post, declared that Rubio's words "undermine his other assertion," namely "that he is prepared to be president." Juliet Lapidos, also lacking in scientific expertise, went so far as to assert, in a New York Times blog post, that Rubio had "disqualified himself" from the presidency.

Of all the silly things written on the subject of global warming, Marcus's and Lapidos's offerings are surely among the most recent. Apart from that they're entirely typical of the genre of global-warmist opinion journalism, in which ignorant journalists taunt politicians for their ignorance but have no argument beyond an appeal to authority. Lapidos: "Does Mr. Rubio think scientists are lying? Or that they don't know what they're talking about? Either way, what leads him to believe that the 'portrait' of climate change offered by scientists is inaccurate?"

Appeals to authority aren't necessarily fallacious, except in the realm of formal deductive logic, where they entail adopting the unfounded premise that the authority is infallible. In informal logic--such as political debate at its best--an appeal to authority can be a sound argument if the authority is both relevant and trusted. And when dealing with complicated matters in which one lacks specialized expertise. As Michael Gerson puts it in the Washington Post: "Our intuitions are useless here. The only possible answers come from science. And for non-scientists, this requires a modicum of trust in the scientific enterprise."

Do you see the subtle problem with Gerson's formulation? The injunction have trust after tossing aside your intuition is at best a contradiction in terms, at worst a con.

This columnist is probably as unqualified as Marcus or Lapidos to evaluate the scientific merits of global warmism. But because we distrust climate scientists, we're with Rubio in being inclined to think it's a bill of goods. The trouble for global-warmist journalists like Marcus and Lapidos is that an appeal to the authority of a distrusted source undermines rather than strengthens one's argument.

Here, from National Review's Patrick Brennan, is the latest reason to distrust the authority of "consensus" climate scientists:

On May 8, Lennart Bengtsson, a Swedish climate scientist and meteorologist, joined the advisory council of the Global Warming Policy Foundation, a group that questions the reliability of climate change and the costs of policies taken to address it. While Bengtsson maintains he'd always been a skeptic as any scientist ought to be, the foundation and climate-change skeptics proudly announced it as a defection from the scientific consensus.
Less than a week later, he says he's been forced to resign from the group. The abuse he's received from the climate-science community has made it impossible to carry on his academic work and made him fear for his own safety. A once-peaceful community, he says in his resignation letter, now reminds him of McCarthyism.
"I had not expect[ed] such an enormous world-wide pressure put at me from a community that I have been close to all my active life," he wrote in his resignation. "Colleagues are withdrawing their support, other colleagues are withdrawing from joint authorship."

London's Daily Mail reports that Bengtsson "was also abused on science blogs, with one describing the people who condemned him as 'respectable' and that his actions amounted to 'silliness.' Another described him as a 'crybaby.' "

Bengtsson tells the Mail: "Some people like my views, other people don't, that is the way when it comes to science." That's precisely the point. Science is a methodical process of open inquiry. Those who enforce orthodoxies and engage in name-calling aren't doing science, even if they're scientists.

Gerson is correct in observing that a layman's intuition is of little use in evaluating a scientific proposition. That requires intellect and expertise, and most laymen do not have the latter. But intuition is enough to distinguish an authoritarian from a real authority.

from BBC News, 2014-Jul-31:

Russia enacts 'draconian' law for bloggers and online media
Russia's parliament has voted through a series of internet laws Russia's parliament has voted through a series of internet laws

A new law imposing restrictions on users of social media has come into effect in Russia.

It means bloggers with more than 3,000 daily readers must register with the mass media regulator, Roskomnadzor, and conform to the regulations that govern the country's larger media outlets.

Internet companies will also be required to allow Russian authorities access to users' information.

One human rights group called the move "draconian".

The law was approved by Russia's upper house of parliament in April.

It includes measures to ensure that bloggers cannot remain anonymous, and states that social networks must maintain six months of data on its users.

The information must be stored on servers based in Russian territory, so that government authorities can gain access. Russia has previously blocked sites belonging to opponents of Vladimir Putin, such as Garry Kasparov Russia has blocked the sites of opponents such as Garry Kasparov

Critics see it as the latest in a series of recent moves to curb internet freedom.

'Free expression'

Hugh Williamson, of New York-based Human Rights Watch, has called the law "another milestone in Russia's relentless crackdown on free expression".

"The internet is the last island of free expression in Russia and these draconian regulations are clearly aimed at putting it under government control," he added.

Opposition figures have used the internet to air their views, with some gaining millions of followers.

Commentators opposing Vladimir Putin often face restrictions in broadcast outlets and newspapers.

Russian bloggers are bracing themselves for the moment when Russia's new "information security law" comes into force on 1 August. Some already share advice on how to use proxy servers in order to access social media sites that, in their view, are under threat of being closed.

It is hard to see how the law will be enforced. The servers for most of the popular social media platforms that many Russians use are based outside Russia.

Many popular bloggers are already looking for, and apparently finding, ways to "cheat" the feature that counts page visits and keep their daily unique visitor numbers just under 3000, or to make sure that the statistics are hidden altogether.

Anton Nossik, who is considered Russia's "internet guru", wrote in his LiveJournal blog that the new law didn't threaten individual bloggers directly, but provided legal grounds to block popular social networks like Facebook, Twitter, LiveJournal and Google.

"The issue of banning all these platforms in Russia is a political one and it will be decided by only one person", Mr Nossik wrote, with a thinly veiled reference to President Vladimir Putin.

Critics blocked

Earlier in the year, Russia enacted a law that gave the government powers to block websites without explanation.

In March, Moscow blocked the blog of Mr Navalny, along with two news sites and a organisation run by Garry Kasparov - a vocal critic of the Russian government.

In a statement, Russia's prosecutor general's office said the blocks were imposed because of the sites' role in helping stage illegal protests.

Earlier this week, Twitter blocked access to an anti-Kremlin account that often publishes leaked government documents, following a request by Russia's federal communications agency Roskomnadzor.

'CIA project'

For many years, Russia had relatively lax internet laws.

However Moscow has recently changed its tune, with Mr Putin branding the internet an ongoing "CIA project".

He also claimed that the popular Russian search engine Yandex was controlled by foreign intelligence.

Two years ago, Russia enacted a law enabling authorities to blacklist and force certain websites offline without a trial.

The government said the legislation was designed to protect children from harmful internet content, such as pro-suicide or pornography websites.

On Thursday, lawyers for US intelligence officer Edward Snowden said the whistleblower had filed for refugee status in Russia.

Mr Snowden received temporary shelter in Russia last year.

He had evaded US authorities after he leaked classified government documents revealing mass surveillance programmes undertaken by the NSA in the US and GCHQ in the UK.

from the Telegraph of London, 2014-Jul-4, by Sarah Knapton:

BBC staff told to stop inviting cranks on to science programmes
BBC Trust says 200 senior managers trained not to insert 'false balance' into stories when issues were non-contentious

BBC journalists are being sent on courses to stop them inviting so many cranks onto programmes to air `marginal views'

The BBC Trust on Thursday published a progress report into the corporation's science coverage which was criticised in 2012 for giving too much air-time to critics who oppose non-contentious issues.

The report found that there was still an `over-rigid application of editorial guidelines on impartiality' which sought to give the `other side' of the argument, even if that viewpoint was widely dismissed.

Some 200 staff have already attended seminars and workshops and more will be invited on courses in the coming months to stop them giving `undue attention to marginal opinion.'

“The Trust wishes to emphasise the importance of attempting to establish where the weight of scientific agreement may be found and make that clear to audiences,” wrote the report authors.

“Science coverage does not simply lie in reflecting a wide range of views but depends on the varying degree of prominence such views should be given.”

The Trust said that man-made climate change was one area where too much weight had been given to unqualified critics.

In April the BBC was accused of misleading viewers about climate change and creating `false balance' by allowing unqualified sceptics to have too much air-time.

In a damning parliamentary report, the corporation was criticised for distorting the debate, with Radio 4's Today and World at One programmes coming in for particular criticism.

The BBC's determination to give a balanced view has seen it pit scientists arguing for climate change against far less qualified opponents such as Lord Lawson who heads a campaign group lobbying against the government's climate change policies.

Andrew Montford, who runs the Bishop Hill climate sceptic blog, former children's television presenter Johnny Ball and Bob Carter, a retired Australian geologist, are among the other climate sceptics that have appeared on the BBC.

The report highlighted World at One edition in September of a landmark UN Intergovernmental Panel on Climate Change (IPCC) research project which found concluded with 95 per cent certainty that the climate is changing and that human activity is the main cause.

The programme's producers tried more than a dozen qualified UK scientists to give an opposing view but could not find one willing to do so – so they went to Mr Carter in Australia.

Pitted against Energy Secretary Ed Davey, Mr Carter described the findings of the most authoritative report ever undertaken into the science of climate change – put together by hundreds of scientists around the world – as “hocus-pocus science”.

from BBC News, 2014-Jul-4, by Dave Lee:

Google reinstates 'forgotten' links after pressure

After widespread criticism, Google has begun reinstating some links it had earlier removed under the controversial "right to be forgotten" ruling.

Articles posted online by the Guardian newspaper were removed earlier this week, but have now returned fully to the search engine.

Google has defended its actions, saying that it was a "difficult" process.

"We are learning as we go," Peter Barron, head of communications for Google in Europe, told the BBC.

Speaking to Radio 4's Today programme, he dismissed claims made on Thursday that the company was simply letting all requests through in an attempt to show its disapproval at the ruling.

"Absolutely not," he said. "We are aiming to deal with it as responsibly as possible.

"The European Court of Justice [ECJ] ruling was not something that we welcomed, that we wanted - but it is now the law in Europe and we are obliged to comply with that law."

He said Google had to balance the need for transparency with the need to protect people's identity.

'Memory hole'

Mr Barron argued that the search giant was doing its best to comply with the ECJ's ruling, which stated that links to web pages can be removed from search engine if they are deemed to be "outdated, irrelevant or no longer relevant".

The ruling has come under particular scrutiny after BBC economics editor Robert Peston was notified that a blog post he had written in 2007 would be removed from appearing when a specific search was carried out on Google.

The identity of the person who made the request is not yet known, although Google has confirmed it is not the subject of the article, former Merrill Lynch boss Stan O'Neal.

Instead, the request relates to the reader comments that appear underneath the story.

In addition to Peston's blog, seven other BBC articles were singled out for removal, most of which included comment threads.

Elsewhere, the Guardian's special projects editor James Ball wrote that six of the newspaper's articles had "fallen down the memory hole".

Back in the headlines

A source has confirmed to the BBC that the Guardian articles have now been re-indexed for all relevant search terms.

Mr Ball joined those saying that Google's actions may have been "tactical".

"There are very few news organisations in the world who are happy to hear their output is being stifled," he said.

"A few automated messages later, the story is back in the headlines - and Google is likely to be happy about that."

His thoughts echoed those of Ryan Heath, spokesman for the European Commission's vice-president, who described the decision to remove a link to Peston's blog as "not a good judgement".

"Google clearly has a strong interest in making sure that they're able to work with whatever the legal requirements are, so they position themselves in a particular way over that," he said.

"It doesn't come cheap to deal with all of these requests, so they need to find some way to come up with dealing with them."

He added that the ruling should not allow people to "Photoshop their lives".

from the Wall Street Journal, 2014-May-13, by Frances Robinson, Sam Schechner and Amir Mizroch, with Lisa Fleisher in London, Rolfe Winkler in San Francisco, Christopher Bjork and David Román in Madrid contributing:

EU Orders Google to Let Users Erase Past
Surprise Decision Could Prove Highly Disruptive to Search-Engine Operators

The EU's Court of Justice has ruled that Google must listen, and sometimes comply, when individuals ask for links to articles or websites to be removed. What does this mean for the search giant and its more than one billion users? WSJ's Jason Bellini has #TheShortAnswer.

Europe's top court ruled that Google Inc. can be forced to erase links to content about individuals on the Web, a surprise decision that could disrupt search-engine operators and shift the balance between online privacy and free speech across Europe.

Under Tuesday's ruling—which doesn't trigger any specific new enforcement, but sets a strong legal precedent across the European Union—individuals can request that search engines remove links to news articles, court judgments and other documents in search results for their name. National authorities can force the search engines to comply if they judge there isn't a sufficient public interest in the information, the court ruled.

A dispute between a Madrid plastic surgeon and Google set the stage for the "right to be forgotten" battle. Read about the case. (3/7/2011)

The European Court of Justice's decision represents the strongest legal backing of what is often called the "right to be forgotten," a concept born out of 19th-century French and German legal protections that once permitted honor-based dueling—but remains unfamiliar to most Americans.

Proponents of the "right to be forgotten" argue that individuals should be able to force the removal from the Internet of information that is old or irrelevant, and could be deemed to infringe on their right to privacy. Detractors say that the ruling could lead to a massive wave of takedown requests that would swamp companies and privacy regulators with legal costs, while whitewashing the public record.

The decision "makes grim reading for Google and will delight privacy advocates in the EU," said Richard Cumbley, information-management and data-protection partner at U.K. law firm Linklaters.

The ruling was a surprise. The decision contradicted a previous opinion by one of the court's own advocates general, or senior legal advisers. That opinion, issued last year, argued that search engines like Google shouldn't be responsible for personal data that they turn up when crawling the Web for information. That move was seen at the time as a victory for Google.

Google called Tuesday's ruling disappointing, and said it needed time to analyze the implications. A person familiar with the matter said Google isn't likely to remove information globally from its search results.

Some lawyers argue that the ruling will probably only be applied for searches done and displayed in Europe, and only for European data subjects, for instance, EU citizens or European residents. The court specifically said, however, that companies can't get out of compliance simply by saying their servers are outside of Europe.

Microsoft Corp., whose search engine Bing would fall under the ruling, declined to comment. Yahoo Inc. said in a statement that it is assessing the impact for its business, adding that it supports "an open and free Internet; not one shaded by censorship."

Tuesday's ruling comes as EU parliamentarians and national governments are currently wrestling with how to craft a new privacy and data-protection law for the continent. That law has become the object of vociferous debate and lobbying between privacy-rights advocates and much of the technology industry.

The fight underscores just how significantly that new law may shape the Internet's evolving rules of the road, in Europe and in other jurisdictions. In that debate, both sides have used two competing legal principles—but two that have been embraced in different ways on opposite shores of the Atlantic.

The technology industry has rallied around freedom of speech, long a tenet of Western democracy but enshrined specifically in the U.S. Constitution as its First Amendment. Privacy-rights activists and many European officials have supported a competing notion: the "right to be forgotten." That stems from a culture in France and Germany that once allowed individuals to protect their honor and reputation—either through duels or through the courts, according to James Whitman, a professor at Yale Law School.

Companies are bracing for a tsunami of requests to take down search results following the ruling, lawyers and analysts said Tuesday.

The court decision by itself doesn't force Google to respond to requests from individuals. But if it doesn't act, individuals can go to national regulators or privacy watchdogs to ask for material to be removed.

The details under what circumstances they might be able to act still have to be worked out by national courts and legislatures, a process that could take years.

Such requests could be more difficult to handle in part because the Luxembourg-based court left ambiguity and interpretation in defining an allowable removal request, saying there must be a balance of the public interest against personal privacy.

In addition, the court ruled that search engines are "controllers" of the personal data they turn up online, potentially subjecting them to other obligations, such as notifying people that their data has been collected, lawyers say.

Tech companies and free speech advocates say the decision could lead to a chilling effect on free expression, as search engines are forced to scrub their results in Europe.

The Computer & Communications Industry Association, which includes Facebook Inc., Yahoo, Google, and Microsoft, said in a statement that the ruling "opens the door to large scale private censorship in Europe," adding that "our concern is it could also be misused by politicians or others with something to hide who could demand to have information taken down."

The ruling follows a series of legal setbacks for Google on the privacy front in recent months. The company lost related cases in both France and Germany brought by former Formula One chief Max Mosley, who had sued to force Google to automatically remove from its results images of a sadomasochistic orgy in which he participated in 2008. Google said it is appealing the cases. Mr. Mosley said Tuesday that he hoped Google would bend.

Tuesday's judgment comes in response to a 2011 request for guidance on EU privacy laws from a Spanish court. The Spanish court was dealing with a case pitting Google against Spain's data-protection regulator, which had to assess 180 cases—now 220—brought by individuals unhappy with search results relating to their name.

The case considered concerned Mario Costeja González, who complained after Google results displayed links to a 1998 announcement in the Spanish newspaper La Vanguardia. At the time La Vanguardia had published an announcement for a real-estate auction, which contained details on Mr. Costeja González's social security debts—a situation that is now fully resolved.

"There's a saying in Spanish: If to resist is to win, I have won by resisting," Mr. Costeja González said. He said he was fighting to remove information that violates the "dignity, honor and respect of a person, and which doesn't have any public relevance."

Hugo Guidotti, a Madrid surgeon, also asked Google to remove a link to a 1991 report in Spanish newspaper El País about a malpractice lawsuit against him after an allegedly botched breast surgery. The link turns up in Google searches of his name.

"I'm happy, of course," Mr. Guidotti said of the decision. "I've been fighting over this for years."

from the Wall Street Journal, 2014-Apr-2, by Charles G. Koch:

I'm Fighting to Restore a Free Society
Instead of welcoming free debate, collectivists engage in character assassination.

I have devoted most of my life to understanding the principles that enable people to improve their lives. It is those principles—the principles of a free society—that have shaped my life, my family, our company and America itself.

Unfortunately, the fundamental concepts of dignity, respect, equality before the law and personal freedom are under attack by the nation's own government. That's why, if we want to restore a free society and create greater well-being and opportunity for all Americans, we have no choice but to fight for those principles. I have been doing so for more than 50 years, primarily through educational efforts. It was only in the past decade that I realized the need to also engage in the political process.

A truly free society is based on a vision of respect for people and what they value. In a truly free society, any business that disrespects its customers will fail, and deserves to do so. The same should be true of any government that disrespects its citizens. The central belief and fatal conceit of the current administration is that you are incapable of running your own life, but those in power are capable of running it for you. This is the essence of big government and collectivism.

More than 200 years ago, Thomas Jefferson warned that this could happen. "The natural progress of things," Jefferson wrote, "is for liberty to yield and government to gain ground." He knew that no government could possibly run citizens' lives for the better. The more government tries to control, the greater the disaster, as shown by the current health-care debacle. Collectivists (those who stand for government control of the means of production and how people live their lives) promise heaven but deliver hell. For them, the promised end justifies the means.

Instead of encouraging free and open debate, collectivists strive to discredit and intimidate opponents. They engage in character assassination. (I should know, as the almost daily target of their attacks.) This is the approach that Arthur Schopenhauer described in the 19th century, that Saul Alinsky famously advocated in the 20th, and that so many despots have infamously practiced. Such tactics are the antithesis of what is required for a free society—and a telltale sign that the collectivists do not have good answers.

Rather than try to understand my vision for a free society or accurately report the facts about Koch Industries, our critics would have you believe we're "un-American" and trying to "rig the system," that we're against "environmental protection" or eager to "end workplace safety standards." These falsehoods remind me of the late Sen. Daniel Patrick Moynihan's observation, "Everyone is entitled to his own opinion, but not to his own facts." Here are some facts about my philosophy and our company:

Koch companies employ 60,000 Americans, who make many thousands of products that Americans want and need. According to government figures, our employees and the 143,000 additional American jobs they support generate nearly $11.7 billion in compensation and benefits. About one-third of our U.S.-based employees are union members.

Koch employees have earned well over 700 awards for environmental, health and safety excellence since 2009, many of them from the Environmental Protection Agency and Occupational Safety and Health Administration. EPA officials have commended us for our "commitment to a cleaner environment" and called us "a model for other companies."

Our refineries have consistently ranked among the best in the nation for low per-barrel emissions. In 2012, our Total Case Incident Rate (an important safety measure) was 67% better than a Bureau of Labor Statistics average for peer industries. Even so, we have never rested on our laurels. We believe there is always room for innovation and improvement.

Far from trying to rig the system, I have spent decades opposing cronyism and all political favors, including mandates, subsidies and protective tariffs—even when we benefit from them. I believe that cronyism is nothing more than welfare for the rich and powerful, and should be abolished.

Koch Industries was the only major producer in the ethanol industry to argue for the demise of the ethanol tax credit in 2011. That government handout (which cost taxpayers billions) needlessly drove up food and fuel prices as well as other costs for consumers—many of whom were poor or otherwise disadvantaged. Now the mandate needs to go, so that consumers and the marketplace are the ones who decide the future of ethanol.

Instead of fostering a system that enables people to help themselves, America is now saddled with a system that destroys value, raises costs, hinders innovation and relegates millions of citizens to a life of poverty, dependency and hopelessness. This is what happens when elected officials believe that people's lives are better run by politicians and regulators than by the people themselves. Those in power fail to see that more government means less liberty, and liberty is the essence of what it means to be American. Love of liberty is the American ideal.

If more businesses (and elected officials) were to embrace a vision of creating real value for people in a principled way, our nation would be far better off—not just today, but for generations to come. I'm dedicated to fighting for that vision. I'm convinced most Americans believe it's worth fighting for, too.

Mr. Koch is chairman and CEO of Koch Industries.

from BBC News, 2014-Jun-2, by Samanthi Dissanayake:

The Indian miracle-buster stuck in Finland


An Indian man who made his name exposing the "miraculous" feats of holy men as tricks has fled the country after being accused of blasphemy. Now in self-imposed exile in Finland, he fears jail - or even assassination - if he returns.

When a Hindu fakir declared on live television that he could kill anybody with tantric chanting, Sanal Edamaruku simply had to take him up on the challenge.

As both were guests in the studio, the fakir was put to the test immediately.

The channel cancelled all subsequent programming and he began chanting on the spot. But as the hours passed a note of desperation crept into his raspy mantras. For his part, Edamaruku, president of the Indian Rationalist Association, showed no sign of discomfort, let alone death. He merely chortled his way through this unconventional (and unsuccessful) attempt on his life.

He has spent his life as a prominent member of India's small band of miracle-busters, men who dedicate their life to traversing the country demystifying certain beliefs.

It's a nation often associated with profound spirituality, but rationalists see their country as a breeding ground for superstition.

In the 1990s Edamaruku visited hundreds of villages replicating the apparently fabulous feats some self-proclaimed holy men became renowned for - the materialisations of watches or "holy" ash - exposing them as mere sleight of hand.

As a campaigner determined to drill home his point, sometimes with an air of goading bemusement, he has attracted critics.

He readily admits he took advantage of the explosion in Indian television channels which discovered an audience fascinated with tales of the extraordinary.

"I was campaigning in villages for so long before the television came," he says. "But some people do not like me to be going on television and reaching out to millions of people."

But in 2012, four years after his televised encounter with the fakir, a steady drip of water from the toe of a statue of Christ genuinely did, he believes, put his life in danger.

Immediately hailed as a miracle, hundreds of Catholic devotees and other curious residents flocked to the shrine in a nondescript Mumbai suburb to watch the hypnotic drip. Some even drank the droplets.

Edamaruku was challenged to investigate and so he went to the site with an engineer friend and traced the source of the drip backwards. Moisture on the wall the statue was mounted on seemed to come from an overflowing drain, which was in turn fed by a pipe that issued from a nearby toilet.

The "miracle" was simply bad plumbing, he said.

It was then that the situation turned ugly.

He presented his case in a febrile live television debate with representatives of Catholic lobby groups, while outside the studio a threatening crowd bearing sticks had gathered. He claims they were hired thugs.

For some Catholics the veracity of the miracle is no longer the point. Edamaruku, they say, insulted the Catholic church, by alleging the church manufactured the miracle to make money, by claiming the church was anti-science and even casting doubt over the miracle that ensured Mother Theresa's sainthood.

In the following weeks, three police stations in Mumbai took up blasphemy cases filed against him by Catholic groups under the notorious Section 295a of India's colonial-era penal code.

Section 295a was enacted in 1927 to curb hate speech in a restless colony bristling with religious and communal tensions. It makes "deliberate and malicious" speech insulting to religion punishable with up to three years in prison and a fine. However, some say it is frequently abused to suppress free speech.

"Under this law a policeman can simply arrest me even though there has been no investigation... they can just arrest me without a warrant and keep me in prison for a long time… That risk I do not want to take," says Edamaruku.

India's 'blasphemy' law

India's colonial era Penal Code prohibits hate speech - section 295a says:

"Whoever, with deliberate and malicious intention of outraging the religious feelings of any class of [citizens of India]... shall be punished with imprisonment of either description for a term which may extend to [three years], or with fine, or with both."

Key cases include:

  • 1957: Ramji Lal Modi published a cartoon and article deemed offensive to Muslims - he was fined and imprisoned for 12 months
  • 1996: Artist MF Husain faced a prolonged legal campaign over his images of Hindu figures - higher courts dismissed most cases but as more were registered he took Qatari citizenship
  • 2008: IT worker Lakshmana Kailash spent 50 days in jail after being arrested on suspicion of posting offensive images online - police had mistakenly identified him and he was released
  • 2013: Writer Yogesh Master was arrested over his book about the Hindu god Ganesh and got bail a day later

He applied for anticipatory bail, which would prevent police taking him into custody before any investigation - but this was rejected. At the same time, he says, he was getting threatening phone calls from policemen proclaiming their intention to arrest him and telling him that unless he apologised the complaint would never be withdrawn.

Threatening comments were posted on an online forum, he says, and contacts in Mumbai told him they had heard talk of somebody being hired to beat him in jail. Catholic groups say they aren't behind any threats Mr Edamaruku may have received.

He decided to leave early for a European lecture tour. Finland was the first country to give him a visa and he had friends on the Finnish humanist scene willing to help.

He arrived in Helsinki on a summer afternoon two years ago, the endless hours of sunlight saturating both day and night. He thought he would only stay for a couple of weeks until the furore he left behind in India had died down.

But the furore has not died down - the Catholic Secular Forum (CSF), one of the groups that made the initial complaint, still insists it will press for prosecution should he ever return.

Two years on, he is angry, bitter and defiant. Living in a small flat on the eastern edge of Helsinki, he has forced himself to adjust to an alien landscape. After the crowded hustle of Delhi, more than 3,000 miles away, he can now walk mile upon lonely mile without seeing a single person.

His closest friend here - the founder of the Finnish humanist society Pekka Elo - died late last year.

"I miss a lot of people… That I cannot meet them is something that saddens me," he says.

Since he left India, his daughter has had a child, and his mother has died.

He conducts board meetings of the Indian Rationalist Association by Skype and every morning colleagues update him on the latest tales of the supernatural and fraudulent holy men. He plots their downfall. This routine is crucial to him.

Cardinal Oswald Gracias of Mumbai tried to broker a solution by calling upon Edamaruku to apologise and on Catholic groups to drop their case in return.

But Edamaruku staunchly refuses to compromise on what he sees as his freedom of expression.

"I don't regret anything I said," he says. "I feel that I have full right to express my views... I am open for discussion and correction but I am not willing to accept anybody's bullying, change my views or submit to their pressure to apologise."

Some legal analysts think he could risk returning. The courts recognise that Section 295a is regularly misused, they point out. Writers, activists and others have been arrested and imprisoned even before charge - but most were released on bail.

But Edamaruku fears for his safety, pointing to the fate of his friend, anti-black-magic campaigner Narendra Dabholkar.

"Narendra Dabholkar… suggested that if I come to Mumbai he and his friends would be able to protect me. I was considering his proposal," Edamaruku recalls, referring to a conversation last summer.

But four days later he was murdered, a crime which many believe was linked to his campaign against magic.

So Edamaruku spends his time trudging the arresting, bleak forests of Helsinki, sometimes remembering his unconventional childhood in Kerala.

His father, born a Christian, grew up to become a rebel who was excommunicated. His mother gave birth to him in the pouring rain having fled her in-laws' Christian home because they pressured her to convert. But the family always managed to reconcile its differences. The bishops and Hindu priests among his relatives could be found sitting around one dinner table laughing at their own beliefs.

He insists he has no regrets.

"I would do it again. Because any miracle which has enormous clout at one moment, is simply gone once explained. It's like a bubble. You prick it and it is finished."

The statue still stands in that sleepy suburb of Mumbai, but it no longer drips.

from NewsMax, 2014-May-11:

Human Rights Lawyer Killed Over Pakistan's 'Blasphemy' Law

A prominent human rights lawyer in Pakistan was shot dead because he was defending a man accused of "blasphemy" against the Prophet Mohammed.

Rashid Rehman Khan, a coordinator for the Human Rights Commission of Pakistan (HRCP), was killed on Wednesday when two gunmen burst into his office in the city of Multan.

Pakistan's blasphemy laws call for the death penalty for anyone convicted of defiling "the sacred name of the Holy Prophet Mohammed."

Human rights activists say the laws have contributed to violence against Christians in Pakistan. Around half of those charged under the laws since 1988 have been non-Muslims, who comprise just 2 percent of the population.

Junaid Hafeez, a lecturer in English at Multan's Bahauddin Zakariya University, was charged with blasphemy in March after radical Islamists accused him of posting "blasphemous" comments on his Facebook page.

Hafeez struggled for months to find an attorney willing to represent him before Khan stepped in, CNS News reported.

In April, the HRCP issued a statement expressing concerns about Khan's safety after he was threatened by a group of men in a Multan courtroom who told him, "You will not come to court next time because you will not exist anymore."

The U.S. Commission on International Religious Freedom (USCIRF), an independent watchdog, said it is aware of 17 Pakistanis currently on death row for blasphemy, and 19 serving life terms in prison.

One notable case that has attracted international attention involves an illiterate Christian farm laborer known as Asia Bibi, the first woman to be sentenced to death for blasphemy.

In June 2009, Muslim women she was working with in the field made derogatory statements about her religion, according to the New York Post, and Bibi responded: "I believe in Jesus Christ, who died on the cross for the sins of mankind. What did your Prophet Muhammad ever do to save mankind?"

A mob later came to her house, where she lived with her husband and five children, and beat her. She was arrested and spent a year in jail before being charged.

In November 2010, a judge sentenced her to death by hanging.

A month after her conviction, a Muslim cleric announced a reward equivalent to $10,000 to anyone who killed her, the Express Tribune in Pakistan reported.

After the governor of Punjab state, Salman Taseer, took up Bibi's case, he was shot dead by a member of his bodyguard. Hundreds of lawyers offered the killer free representation and 500 Muslim scholars gave him an honorary title as "Lover of the Prophet."

Pakistan's federal minorities minister, a Christian who also supported Bibi, was also shot dead.

Khan's murder came a week after the USCIRF repeated a recommendation that the U.S. State Department designate Pakistan, which is a major recipient of American aid, as a "country of particular concern" under U.S. law, CNS disclosed.

But the Obama State Department has chosen not to do so.

from the Wall Street Journal, 2014-Apr-18, by Michael A. Carvin and Yaakov M. Roth:

Courts Should Stay Out of Political Fact-Checking
At least 15 states prohibit 'false' political statements in campaigns. That's the kind of judgment best left to voters.

The U.S. Supreme Court will hear oral arguments on April 22 in Susan B. Anthony List v. Driehaus, a case raising important constitutional questions about laws that purport to prohibit "false" political statements. At least 15 states, including Ohio—where this case originated—have such laws on the books, often carrying criminal penalties.

Some reporters have called this a lawsuit about the "right to lie." That is a tendentious and inaccurate depiction of what the case involves. The issue is not whether campaigns should lie. Of course they should not. Rather, the question is who should decide whether a political campaign advertisement is true—courts, wielding the power to impose fines or imprisonment, or the American people, wielding the power to elect or turf the competing candidate. The stakes for free speech and the democratic process are very high.

People often disagree about what is the "truth," particularly in the political context. While websites such as PolitiFact purport to fact-check claims by politicians, even it characterizes many statements as "half-true"—one-sided, perhaps, or simply open to reasonable interpretation. The problem with a law prohibiting "false" statements about candidates is that it threatens to chill free political discourse, by silencing speakers who believe they are speaking truth but are fearful of being subjected to burdensome, costly legal proceedings by their political adversaries.

Supreme Court Justices across the political spectrum are alert to the danger. In 2012 in United States v. Alvarez, the court threw out the conviction of a man who violated the federal Stolen Valor Act by falsely claiming to have been awarded the Medal of Honor. The court ruled that the First Amendment may protect even false statements in order to protect true statements.

As Justice Stephen Breyer wrote in a concurring opinion, "criminal prosecution [of falsity] is particularly dangerous" in the "political arena," because it can "inhibit the speaker from making true statements, thereby 'chilling' a kind of speech that lies at the First Amendment's heart."

Justice Samuel Alito agreed in his dissenting opinion, warning that "any attempt by the state to penalize purportedly false speech" in political contexts "would present a grave and unacceptable danger of suppressing truthful speech."

Susan B. Anthony List v. Driehaus presents a vivid example of this "chilling" phenomenon. The Susan B. Anthony List and the Coalition Opposed to Additional Spending and Taxes—the two advocacy organizations that are petitioners in this case—wanted to criticize Rep. Steve Driehaus (D., Ohio), for his 2010 vote in favor of the Affordable Care Act. The groups believe that the law includes taxpayer-funded abortion because (among other things) it subsidizes insurance plans that may include abortion coverage.

That is a perfectly reasonable characterization of the Affordable Care Act. But Mr. Driehaus argued that the law would not use federal dollars to subsidize abortion because insurers were required to "segregate" federal subsidy dollars from funds used to pay most abortion providers. Since money is fungible, that segregation rule was an accounting gimmick. Nonetheless, the Ohio Elections Commission, a panel of political appointees, voted along partisan lines that this criticism was probably "false" and thus could subject the groups to fines or even imprisonment under Ohio's false-statement law.

While the Susan B. Anthony List organization continued to press its message through radio ads, the two advocacy groups were unable to fully disseminate their message during the 2010 midterm campaign or subsequent elections. A billboard company, for example, refused to post their message after threats of legal action.

The relevant question is thus not whether there is a constitutional "right to lie," but rather whether the state may force citizens to defend the "truth" of their political critiques before bureaucrats who may well have been appointed by the politicians being criticized. Such a regime imposes substantial burdens on core political speech and therefore chills robust political debate.

The premise of the First Amendment is that the people should decide what is "true" and what is "false" in the political arena, and punish or reward political candidates at the ballot box. Political fact-checking is not a task for courts of law. Criminal penalties should not hang over the heads of speakers who disagree with their version of political "truth."

The Supreme Court will not decide this year whether Ohio's false-statement law violates the Constitution. Rather, the issue before the court now is whether groups like the Susan B. Anthony List and the Coalition Opposed to Additional Spending and Taxes are even entitled to bring a First Amendment challenge to the regulatory scheme that is chilling their speech, before they are actually charged or convicted.

A favorable decision by the Supreme Court will set the stage for a full consideration of the constitutional implications of state-sponsored "truth" commissions like Ohio's. Other states with laws like Ohio's include Colorado, Florida, Michigan and Wisconsin. That vital question should be considered directly, and decided in favor of free speech.

Messrs. Carvin and Roth are attorneys at Jones Day, and represent the petitioners in Susan B. Anthony List v. Driehaus.

from the Wall Street Journal, 2014-Apr-27, by L. Gordon Crovitz:

Governments Grab for the Web
Authoritarians accept Obama's invitation to take Internet control.

The Obama administration still doesn't seem to understand the whirlwind it reaped with its decision to give up stewardship of the open Internet. The first Internet governance conference since that surprise March announcement was held last week. The State Department issued a statement before the conference urging everyone to avoid the issue: "We would discourage meeting participants from debating the reach or limitations of state sovereignty in Internet policy."

But deciding who gets to govern the Internet was precisely why many attendees from 80 countries came to last week's NetMundial conference in Brazil.

The host country's leftist president, Dilma Rousseff, opened the conference by declaring: "The participation of governments should occur with equality so that no country has more weight than others." The Russian representative objected to "the control of one government," calling for the United Nations to decide "international norms and other standards on Internet governance." Last week Vladimir Putin called the Internet a "CIA project" and said "we must purposefully fight for our interests."

Authoritarian regimes want to control the Internet to preserve their power. "National sovereignty should rule Internet policy and governance," the Chinese representative said. "Each government should build its own infrastructure, undertake its own governance and enforce its own laws." The Saudi Arabian delegate said: "International public policy in regard to the Internet is the right of governments and that public policy should be developed by all governments on an equal footing."

Even nominal supporters of the existing multi-stakeholder model embraced the end of Internet self-governance. The delegate from India declared a greater role for the world's governments "an imperative that can't be ignored." Neelie Kroes of the European Commission said: "The Internet is now a global resource demanding global governance."

Philip Corwin, a U.S. lawyer who represents Internet companies, noted that 27 of the first 30 speakers at NetMundial were from governments or U.N. agencies—at a "meeting supposedly conceived to strengthen the private-sector-led multi-stakeholder, consensus-based policy-making model."

The conference produced a "consensus" document that asserts: "The respective roles and responsibilities of stakeholders should be interpreted in a flexible manner with reference to the issue under discussion." Carl Bildt, Sweden's foreign minister, offered this translation: "Governments are more equal than other stakeholders when it comes to policy."

The Internet ran smoothly for 25 years because the U.S. ensured that the Internet Corporation for Assigned Names and Numbers, known as Icann, operated without government interference. Authoritarian regimes can censor the Internet in their own countries and jail their bloggers, but until now had no way to get control over the root zone filenames and addresses of the global Internet. Handing over control could allow them to undermine the open Internet globally, including Americans' access to U.S. websites.

Some open-Internet advocacy groups realize it is light-handed U.S. control that has allowed what political theorists would call the "ordered liberty" of Internet self-governance. "Part of the strength of the Internet over the last couple of decades has been that the technical aspects have not had direct political or government interference," Thomas Hughes of the human-rights group Article 19 told the BBC.

Michael Daniel, special assistant to President Obama, declared without apparent irony that "from the U.S. perspective, NetMundial was a huge success." But it's no accomplishment when countries that have long sought power over the Internet embrace the U.S. invitation for them to seize it.

The NetMundial conference was politicized from the start. It was held in Brazil as a favor to President Rousseff after she objected when news broke that the National Security Agency had listened in on her communications. But Sweden's Mr. Bildt pointed out at the conference that "the issue of surveillance in no way relates to the issues of the governance of the net." He added: "I'm stressing this point because sometimes the debate on surveillance is used as an argument to change the governance of the net."

Under bipartisan pressure in Washington, the Obama administration was forced to backtrack during congressional hearings earlier this month. Officials testified they won't necessarily stick to their original September 2015 date for giving up protection of the Internet. Officials said the issue could be pushed to 2019 and thus decided by the next president. Many in Congress want an up-or-down vote on ending U.S. control of the Internet, knowing lawmakers would reject the idea.

President Obama should revoke the plan to abandon the open Internet. The ugly spectacle of countries jockeying to control the Internet is a timely reminder of why the U.S. should never give them the chance.

from the Wall Street Journal, 2014-Mar-18, by L. Gordon Crovitz:

America's Internet Surrender
By unilaterally retreating from online oversight, the White House pleased regimes that want to control the Web.

The Internet is often described as a miracle of self-regulation, which is almost true. The exception is that the United States government has had ultimate control from the beginning. Washington has used this oversight only to ensure that the Internet runs efficiently and openly, without political pressure from any country.

This was the happy state of affairs until last Friday, when the Obama administration made the surprise announcement it will relinquish its oversight of the Internet Corporation for Assigned Names and Numbers, or Icann, which assigns and maintains domain names and Web addresses for the Internet. Russia, China and other authoritarian governments have already been working to redesign the Internet more to their liking, and now they will no doubt leap to fill the power vacuum caused by America's unilateral retreat.

Why would the U.S. put the open Internet at risk by ceding control over Icann? Administration officials deny that the move is a sop to critics of the National Security Agency's global surveillance. But many foreign leaders have invoked the Edward Snowden leaks as reason to remove U.S. control—even though surveillance is an entirely separate topic from Internet governance.

According to the administration's announcement, the Commerce Department will not renew its agreement with Icann, which dates to 1998. This means, effective next year, the U.S. will no longer oversee the "root zone file," which contains all names and addresses for websites world-wide. If authoritarian regimes in Russia, China and elsewhere get their way, domains could be banned and new ones not approved for meddlesome groups such as Ukrainian-independence organizations or Tibetan human-rights activists.

Until late last week, other countries knew that Washington would use its control over Icann to block any such censorship. The U.S. has protected engineers and other nongovernment stakeholders so that they can operate an open Internet. Authoritarian regimes from Moscow to Damascus have cut off their own citizens' Internet access, but the regimes have been unable to undermine general access to the Internet, where no one needs any government's permission to launch a website. The Obama administration has now endangered that hallmark of Internet freedom.

The U.S. role in protecting the open Internet is similar to its role enforcing freedom of the seas. The U.S. has used its power over the Internet exclusively to protect the interconnected networks from being closed off, just as the U.S. Navy protects sea lanes. Imagine the alarm if America suddenly announced that it would no longer patrol the world's oceans.

The Obama administration's move could become a political issue in the U.S. as people realize the risks to the Internet. And Congress may have the ability to force the White House to drop its plan: The general counsel of the Commerce Department opined in 2000 that because there were no imminent plans to transfer the Icann contract, "we have not devoted the possibly substantial staff resources that would be necessary to develop a legal opinion as to whether legislation would be necessary to do so."

Until recently, Icann's biggest controversy was its business practice of creating many new domains beyond the familiar .com and .org to boost its revenues. Internet guru Esther Dyson, the founding chairwoman of Icann (1998-2000), has objected to the imposition of these unnecessary costs on businesses and individuals. That concern pales beside the new worries raised by the prospect of Icann leaving Washington's capable hands. "In the end," Ms. Dyson told me in an interview this week, "I'd rather pay a spurious tax to people who want my money than see [Icann] controlled by entities who want my silence."

Icann has politicized itself in the past yearby lobbying to end U.S. oversight, using the Snowden leaks as a lever. The Icann chief executive, Fadi Chehadé, last fall called for a global Internet conference in April to be hosted by Brazilian President Dilma Rousseff. Around that time, Ms. Rousseff, who garnered headlines by canceling a White House state dinner with President Obama, reportedly to protest NSA surveillance of her and her countrymen, also denounced U.S. spying in a speech at the United Nations. Mr. Chehadé said of the speech: "She spoke for all of us that day."

The Obama administration has played into the hands of authoritarian regimes. In 2011, Vladimir Putin —who, as Russia took over Crimea in recent days, shut down many online critics and independent media—set a goal of "international control over the Internet."

In the past few years, Russia and China have used a U.N. agency called the International Telecommunication Union to challenge the open Internet. They have lobbied for the ITU to replace Washington as the Icann overseer. They want the ITU to outlaw anonymity on the Web (to make identifying dissidents easier) and to add a fee charged to providers when people gain access to the Web "internationally"—in effect, a tax on U.S.-based sites such as Google and Facebook. The unspoken aim is to discourage global Internet companies from giving everyone equal access.

The Obama administration was caught flat-footed at an ITU conference in 2012 stage-managed by authoritarian governments. Google organized an online campaign against the ITU, getting three million people to sign a petition saying that "a free and open world depends on a free and open web." Former Obama aide Andrew McLaughlin proposed abolishing the ITU, calling it "the chosen vehicle for regimes for whom the free and open Internet is seen as an existential threat." Congress unanimously opposed any U.N. control over the Internet.

But it was too late: By a vote of 89-55, countries in the ITU approved a new treaty granting authority to governments to close off their citizens' access to the global Internet. This treaty, which goes into effect next year, legitimizes censorship of the Web and the blocking of social media. In effect, a digital Iron Curtain will be imposed, dividing the 425,000 global routes of the Internet into less technically resilient pieces.

The ITU is now a lead candidate to replace the U.S. in overseeing Icann. The Commerce Department says it doesn't want to transfer responsibility to the ITU or other governments, but has suggested no alternative. Icann's CEO, Mr. Chehadé, told reporters after the Obama administration's announcement that U.S. officials are "not saying that they'd exclude governments—governments are welcome, all governments are welcome."

Ms. Dyson calls U.N. oversight a "fate worse than death" for the Internet.

The alternative to control over the Internet by the U.S. is not the elimination of any government involvement. It is, rather, the involvement of many other governments, some authoritarian, at the expense of the U.S. Unless the White House plan is reversed, Washington will hand the future of the Web to the majority of countries in the world already on record hoping to close the open Internet.

Mr. Crovitz, a former publisher of The Wall Street Journal, writes the weekly Information Age column.

from the Wall Street Journal, 2014-Mar-23, by L. Gordon Crovitz:

How to Save the Internet
Congress can override the president's decision to hand over control of Web addresses and domains to an international body.

It's been a good month for Vladimir Putin : He got Crimea and the Internet.

Gallows humor is not the only possible response to the Obama administration plan to give up U.S. control of the Internet to a still-to-be-determined collection of governments and international groups. Congress should instruct President Obama that if the Internet ain't broke, don't fix it.

Authoritarian governments led by Russia and China long ago found ways to block access to the Internet for their citizens. Under the new Obama plan, these regimes could also block access to the Internet for Americans.

There is recent precedent: Authoritarian governments tried to block new Internet top-level domains beyond the familiar .com and .org and .net. Saudi Arabia sought to veto the addition of .gay as being "offensive." It also tried to block .bible, .islam and .wine. Under U.S. control, the Saudis were denied their wishes. With some new post-U.S. system of governance, will .gay websites be removed from the Internet?

The plan announced on March 14 would have the U.S. give up control of the "root zone file" of the Internet and the Internet Corporation for Assigned Names and Numbers, or Icann. This root of the Internet stores all the names and addresses for websites world-wide, while Icann controls Web addresses and domains. The U.S. has used this control to ensure that websites operate without political interference from any country and that anyone can start a website, organize on Facebook or post on Twitter without asking permission.

It's easy to imagine a new Internet oversight body operating like the United Nations, with repressive governments taking turns silencing critics. China could get its wish to remove from the Internet as an affront to its sovereignty. Russia could force Twitter to remove posts by Ukrainian-Americans criticizing Vladimir Putin.

The plan announced by the Commerce Department set off enough alarm bells that officials felt obliged last week to issue a follow-up news release denying the U.S. is "abandoning the Internet" and pledging "nothing could be further from the truth." But it still has no plan to safeguard the Web against authoritarian governments. Nor is there any reassurance in a letter to the editor in Monday's Wall Street Journal from the head of Icann, Fadi Chehade. He says the Internet's "billions of diverse stakeholders all deserve a voice in its governance," and he remains on record saying that "all governments are welcome" in whatever the new governance process turns out to be.

Hearings on U.S. protection for the Internet were quickly called for the House starting in early April. One topic should be whether the executive branch of government has the unilateral authority to transfer control over Internet addresses and root zone management of domains.

Congress doubted that the president could do this on his own when the issue was considered in 2000. The General Accounting Office, now called the Government Accountability Office, concluded it was "uncertain" whether Congress has to pass a law. The Property Clause of the Constitution says Congress must pass legislation to effect a transfer of government property. Arguably the president could no more transfer the valuable control over the naming and domains of the Internet than he could give Alaska back to Russia.

Contacted by this columnist last week, a spokesman for the Commerce Department's National Telecommunications and Information Administration said the agency reviewed this legal issue and concluded the administration can act without Congress but refused to share a copy of the legal analysis. Congress should ask for a copy and do its own analysis.

Congress also could tell the Commerce Department not to carry out its plan. In 2012, both the Senate and House passed a unanimous resolution to keep the Internet "free from government control." That happened as the Obama administration was being outfoxed by Russia and China, which hijacked the U.N.'s International Telecommunication Union to legitimize control over the Internet in their countries. Protecting the Internet may be the most bipartisan issue in Congress.

Meanwhile, at a meeting over the weekend in Singapore to plan a post-U.S. system, sources say Icann's Mr. Chehade upset the "multistakeholders" in attendance by presenting a PowerPoint slide dictating a new structure that minimizes accountability for Icann. After pushback, Mr. Chehade withdrew his slide, but his intentions are clear.

The alternative to continued U.S. authority is control by an international body dominated by authoritarian regimes. In a law review article about Icann in 2000, "Wrong Turn in Cyberspace," Michael Froomkin wrote that "It is hard to see how an undemocratic solution based on the international system in which a tyranny's vote is as valid as a democracy's vote would be a material improvement on Icann itself."

Congress should quickly come to the same conclusion and act to save the Internet.

from the Wall Street Journal, 2014-Apr-1, by Karl Borden:

Get Ready for the Internet Robber Barons
If the United Nations ends up in charge, it would have a chokehold on the global economy.

Do you remember the original robber barons? No, they were not the great American industrialists/philanthropists of the late 19th century—men who were unfairly tagged with the moniker. I mean the originals: the German barons of the 13th century who controlled the Rhine River, which was the primary channel of commerce and communications for central Europe. Their castles overlooked the river, and they exacted tribute from every passing ship.

The barons ignored customary "just" tolls, charged whatever the commerce would bear, exacted payment "in kind" from cargoes, and exercised power by controlling strategic territory. These Raubritter provided no real service other than the extortion implicit in allowing safe passage past their own weapons.

The world may see history repeat itself with the Internet, and the unintended consequences are likely to be profound. The United Nations has long craved the power to tax, and the Obama administration's decision to give up U.S. oversight of the domain-name system and the Internet Corporation for Assigned Names and Numbers, or Icann, may end up giving the U.N. that power.

As far back as 2001, a U.N. report, "Financing the Global Sharing Economy," proposed that the U.N. be given the authority to levy a tax on "speculative currency transactions" with a projected revenue stream north of $150 billion. Should the U.N. get control of the Internet and the global commerce it carries, that figure will be chump change.

There are political and strategic issues—involving security, privacy and censorship—associated with international control of the Internet. Should the U.N. end up in charge, it would have a chokehold on the global economy and a vast stream of revenue that would make it even more unaccountable than it already is.

All this would start modestly, of course, and it would never be called a tax. Instead, it might begin with a small fee associated with access to an obscure technical mechanism, or a small transaction charge for certain types of traffic.

But if history is any guide, the run-up to big dollars will be stunningly rapid. One need only reference the increases in U.S. federal revenues and expenditures after passage in 1913 of the 16th Amendment establishing the federal income tax. The top 1913 rate of 7% more than doubled by 1916 to 15%, then rocketed to 67% in 1917 and 77% in 1918. It always starts small.

Power follows the money, and bureaucratic appetites are voracious. Who will there be to stop the process, after all? Where is the elected legislative body that will answer to the world's population that finally pays these "fees"?

Among the many disingenuous justifications being touted for this colossal strategic mistake is that no "government control" will be imposed on the Internet. But democratic "government control" is exactly what will be needed, and it will be absent. Constitutional governments are the means by which citizens delegate the job of protecting their individual rights, and allow them to retain at least some ability to avoid tyranny. With constitutional government it becomes at least possible for citizens to say "No—No more!" No such checks are in place for a global bureaucracy that will have the power to reach into every pocket on earth.

Can anyone doubt that within just the next few decades the Internet will be the essential infrastructure for participation in even the smallest segment of the global economy? The revenue potential associated with controlling the "rivers" of the 21st-century-and-beyond will be enormous and will finance an ever-expanding international bureaucracy, likely under the aegis of the United Nations.

The robber barons of the 13th century were finally stopped only when the Rhine League, consisting of merchants and aristocrats, banded together to tear down their castles and hang them. The robber barons of the 21st century may be much more difficult to deal with.

Mr. Borden is a professor of financial economics at the University of Nebraska/Kearney.

from the Wall Street Journal, 2014-May-2, by Joe Parkinson, Sam Schechner and Emre Peker:

Turkey's Erdogan: One of the World's Most Determined Internet Censors
Some Worry Prime Minister's Tactics Could Become a Template for Other Countries

ISTANBUL—Turkish Prime Minister Recep Tayyip Erdogan rode around Google Inc. headquarters last spring in the company's self-driving car, tried on Google Glass eyewear and vowed to keep digitizing the economy in the country he has ruled since 2003.

Since then, the 60-year-old Mr. Erdogan has turned his democratically elected government into one of the world's most determined Internet censors.

His political party passed laws letting him shut down websites without a court order and collect Web browsing data on individuals. He put a veteran spy in charge of Turkey's telecommunications regulator.

He also has blocked dozens of websites. Twitter Inc. was banned for two weeks in late March and early April, and Google's YouTube video-sharing service has been dark since March 27. An opposition newspaper columnist and academic was sentenced Tuesday to 10 months in jail for a tweet that insulted the prime minister, while 29 defendants are on trial on allegations that include using tweets to organize protests and foment unrest last year.

"Let people say whatever they want, we will take care of this ourselves," Mr. Erdogan said after blocking Twitter.

Tensions were high Thursday as protesters clashed with police trying to enforce a ban on the traditional march to Istanbul's Taksim Square, long symbolic as a place of dissent on May Day. Some critics of Mr. Erdogan say privately that they feel more nervous about making antigovernment statements. In cafes and bars here, people compare technical workarounds aimed at dodging the government's website blockages and surveillance efforts.

Mr. Erdogan's shake-up, a rapid-fire response to a power struggle with political enemies, has left Internet companies and government officials from Washington to Brussels worried that Turkey could become a template for other countries where leaders want to rein in the Internet without cracking down with as much force as China or Iran.

Iran is building what it calls a "halal" intranet to replace the Internet, and Chinese officials have imposed a censoring and filtering system known as the Great Firewall. In Turkey, Mr. Erdogan wants unfettered Internet access that can be blocked swiftly if Turkey's intelligence agency spots something it believes is a threat.

"This is a test case for a new authoritarian model of Internet censorship," says Zeynep Tufekci, a Turkish national who is an Internet specialist at the University of North Carolina at Chapel Hill.

Turkey's moves appear to differ from a nonbinding statement of "important values" agreed to last week by dozens of governments and groups, including Turkey, at a meeting on Internet governance. "Everyone should have the right to access, share, create and distribute information on the Internet," they concluded.

Mr. Erdogan backed down from the Twitter ban after it was overturned by Turkey's top court. But officials now are demanding that Twitter move faster to implement orders to block the accounts of specific users.

Twitter has said it is in an "ongoing dialogue" with Turkish authorities, while Google has filed appeals in three courts to end the YouTube ban. A Google spokesman said in an emailed statement: "It is obviously very disappointing to people and businesses in Turkey that YouTube is still blocked." In January, YouTube and Twitter were the third- and sixth-most-popular websites in Turkey, according to trade group IAB Turkiye.

Some of the world's most visible Internet companies are grappling with how far they are willing to go to accommodate Mr. Erdogan's government in return for continued access to the country. The dilemma is aggravated because Turkey is emblematic of the emerging markets where tech companies are looking for a big growth spurt.

Last year, online-advertising spending in Turkey reached $615 million, about 1.4% of the U.S. total, but grew more than a third faster in local-currency terms, according to data from IAB Turkiye and Interactive Advertising Bureau.

Since the crackdown, the number of formal requests to Google and Twitter to remove content objected to by government officials has surged, pressuring the companies to comply or risk recurring blackouts.

In addition, the same law that gave Mr. Erdogan the power to shut down websites allows Internet service providers in Turkey to block individual Web addresses even if tech companies refuse.

Turkey's parliament, controlled by the prime minister's Justice and Development Party, passed April 17 a separate law letting the Turkish spy agency demand without a court order any data deemed threatening to national security. That could include individual Web browsing activity, email and text messages, and company sales records. It isn't clear if officials are using those powers.

Internet service providers such as Turk Telekomunikasyon AS, in which the government owns a 30% stake, have begun using deep-packet inspection technology, which examines a computer network's traffic and can filter posts or help identify their authors, people familiar with the matter say. The technology, supplied at least partly by Palo Alto Networks Inc. of Santa Clara, Calif., mirrors aspects of what China has used to build its Great Firewall.

Mr. Erdogan's office and Turkey's telecom ministry and regulator didn't respond to phone calls or emailed questions seeking comment about the changes. Turk Telekom says in a statement that it has complied with Turkish laws. A Palo Alto spokeswoman couldn't be reached.

Turkish government officials have said repeatedly that the changes are designed to protect individual privacy and family values. Mr. Erdogan has shown no signs of backing down, especially after his party trounced the main opposition Republican People's Party in local elections in March.

Some technology investors and startup firms say Mr. Erdogan's restrictions could cripple a nascent boom. "I used to discuss Turkey's Internet market and local firms with four to six foreign investors a week," says Arda Kutsal, a former technology investment adviser who runs a tech blog called Webrazzi.

Those phone calls have stopped, he says.

Social-media companies like Twitter and YouTube "have nothing to do with freedom," said Mr. Erdogan, who is weighing a run for president and has said he would try to make the largely ceremonial post more powerful. August's election will be the first in which Turkish voters directly choose their president.

Turkey is the latest example of the standoff between tech superpowers and governments in rising economies from Russia to Indonesia where leaders are trying to assert control over the Internet.

On Monday, Russia's parliament passed new restrictions that would force many bloggers to reveal their identities and not disseminate extremist information. President Vladimir Putin is expected to sign the new laws soon.

Technology firms have asserted wide leeway to remove content from their sites but usually do so only if it violates their legal "terms of service." Those terms include copyright violations and valid legal orders.

"When we suspend or withhold accounts, we do [so] in response to user complaints or court orders, not in response to government requests," said Colin Crowell, Twitter's vice president of global public policy.

If websites or tweets violate a local law or legal order, Twitter and Google often block the content—but sometimes allow users to bypass the ban with minor tweaks to their website settings. The cat-and-mouse strategy is "part of the DNA of Silicon Valley," says a person familiar with the matter.

Officials have said Turkey's sovereignty and national interest trump the companies' rules, justifying the new laws and website blockages.

Several cabinet ministers have accused Twitter of tax evasion because it has no office in the country. Officials have demanded that the San Francisco firm open an office in Turkey. Doing so would make Twitter vulnerable to the new law that lets the spy agency demand information without a court order.

In an effort to ease tensions, Mr. Crowell and other senior Twitter staff members met in mid-April with Turkish officials. Twitter refused to open a local office but agreed to implement court orders quickly.

"Our decisions to open offices around the world are based upon whether the underlying economic climate justifies it," Mr. Crowell said. Since the meeting, Twitter has implemented at least a dozen Turkish court orders to withhold accounts or block tweets.

In contrast, Mr. Erdogan's visit last year to Silicon Valley was buoyed by a budding spirit of compromise and mutual opportunity. He visited Apple Inc., Google and Microsoft Corp.

In 2011, the Turkish leader courted Microsoft, Hewlett-Packard Co. and other tech companies to join a classroom digitization project named Fatih—or "conqueror," after an Ottoman sultan. Government officials tried to censor what could be viewed on the tablets, but students found a way to breach the device's firewalls to play games.

In late 2012, Google launched a local version of YouTube, a move that allowed the company to block access to some videos within Turkey while making them available elsewhere. Turkey dropped its demand that YouTube block globally all videos critical of the Turkish republic's founder, Mustafa Kemal Atatürk.

Mr. Erdogan's position began to shift dramatically less than a month after coming home from Silicon Valley. Tweets and other social media helped fuel antigovernment protests across Turkey that left seven people dead. The prime minister called Twitter a "menace to society," and his political party set out to fight critics online with a 6,000-person team of loyalists.

Last December, leaks of wiretapped recordings posted anonymously on Twitter and YouTube implicated dozens of Mr. Erdogan's closest allies and family members in allegedly corrupt practices.

He denied the claims, said the tapes were doctored and accused Fethullah Gulen, a U.S.-based Turkish imam with millions of followers, of masterminding the mess. The imam says he isn't responsible for the recordings

Despite criticism from Western allies and fistfights in Turkey's parliament, lawmakers approved Mr. Erdogan's move to empower the government to shut down websites without court orders. "The law was drafted hastily and with no consultation," says Gokhan Candogan, an executive at the Ankara Bar Association. The group has filed an appeal with Turkey's constitutional court.

The shake-up spread to Turkey's telecom regulator, where five top managers were replaced. "Authorities walked into their offices and said: 'Leave now. Don't even bother taking your jackets,' " says one person familiar with the incident. The agency's new boss: Ahmet Cemaleddin Celik, a longtime spy at Turkey's intelligence service.

Under Mr. Celik, the number of requests to Internet companies to remove content has soared, including more than 15 to Twitter so far this year, up from two in the last half of 2013.

On March 20, Mr. Erdogan vowed to "eradicate" Twitter. Hours later, the telecom regulator began bouncing queries for the company's website to an error message. Top Internet service providers in Turkey got phone calls from the agency with firm instructions: "Just block it now."

At Twitter headquarters, employees saw the hashtag #Twitterisblockedinturkey, an alert from Turkish users, rocket to the top of the website's hottest topics. Top officials gathered in a "virtual war room" to discuss Twitter's options.

The company decided to tweet instructions to Turkish users on how to circumvent the ban using text messages. It had done the same thing in Venezuela earlier this year.

Internet users in Turkey worked hard to evade Mr. Erdogan's crackdown. Graffiti painted on walls in Istanbul and other Turkish cities steered people to "open DNS" addresses run by Google. Some users hid messages by routing them through encrypted networks outside Turkey or software that connected through other users' computers.

Turkish President Abdullah Gul, a longtime ally of Mr. Erdogan, tweeted an objection to the prime minister's moves: "The wholesale shuttering of social media platforms cannot be approved."

Twitter tried to both resist and acquiesce to Turkey's demands. The company filed a court appeal to bring the site back to life, yet blocked an antigovernment account that used the handle @oyyokhirsiza—or "no vote for the thief." Twitter officials also left a loophole that allowed Turkish users to see the tweets by changing their location settings to a different country.

Turkish authorities blocked YouTube after demanding that the company remove videos that claimed to include a recording of Turkey's foreign minister and spy chief discussing the viability of faking an attack by Syrian terrorists to justify armed intervention inside Syria.

"We blocked YouTube to protect our national security," Mr. Erdogan said bluntly. He said the leak was "villainous and cowardly" but hasn't disputed the authenticity of the recording.

The shutdown came before lawyers at Google, based in Mountain View, Calif., had fully reviewed the demand. Within 24 hours, Google agreed to halt the videos in Turkey.

Moves by computer users to work around the bans led the Turkish government to tighten its grip even more. As the local elections loomed, Turk Telekom began impersonating servers owned by Google and other U.S. companies, according to Renesys Corp., a Manchester, N.H., company that monitors Internet performance. That let the telecom company redirect or block access to sites and monitor browsing activity, lawyers and Internet activists say.

Google criticized Turkey on the company's security blog. Turkish officials haven't publicly admitted or denied the practice, widely referred to as hijacking.

At the same time, Turkish officials prodded Google to make faster decisions about government requests to block objectionable content, people familiar with the matter say. While Google had agreed to block some of the hundreds of videos the government wanted to remove, the company resisted a push to shift more decision-making authority to employees in Turkey.

Four days after the local-election victory by Mr. Erdogan's party, the highest court in Turkey overturned the Twitter ban as "illegal and arbitrary." He complied but has said he doesn't respect the ruling.

In Istanbul, graffiti with instructions on how to sidestep Internet censorship has been covered in gray paint. When the graffiti reappears, so do government authorities, armed with more gray paint.

from the Wall Street Journal, 2014-Feb-12, by James Taranto:

The first rule: You do not talk about perverse incentives.

You've no doubt heard about the latest ObamaCare "delay"--the announcement that the Internal Revenue Service will waive fines on certain employers that do not provide workers with medical insurance. That "employer mandate," which by law took effect this year, had already been put off until 2015. Now it won't be enforced until 2016 for companies with between 50 and 99 employees, and those with 100 or more will escape fines if they offer insurance to 70% of their employees rather than the 95% stipulated in the law.

Because most big employers already cover workers, "the employer mandate is not an especially important policy lever in the Affordable Care Act," shrugs the Washington Post's Sarah Kliff. The "lever" metaphor--something that moves--seems precisely chosen. The employer mandate's main intent would seem to be to prevent companies from dropping coverage, not to induce them to start. It's meant as a constraint, not a lever. Anyway, Kliff concludes that while the new delay "can matter politically," in terms of its effect on the insurance market, it "will likely amount to a relatively small, if non-existent, change." We think she means "if existent."

One problem with the employer mandate is that it creates perverse incentives. Businesses with fewer than 50 employees aren't subject to the mandate, which means that for a company on the cusp, the marginal cost of hiring the next employee could run into the tens of thousands of dollars--or, for one just above the threshold, the marginal savings from firing a worker can be considerable. Employers can also reduce their liability by replacing full-time workers with part-time ones. The exact workings of the mandate are complicated; the National Federation of Independent Business, appellant in the 2012 Supreme Court case that upheld most of ObamaCare, charts some scenarios.

By adding a new threshold--100 workers as well as 50--the new delay creates an additional perverse incentive. At least until 2016, a company that doesn't offer insurance is better off not hiring the 100th worker--or firing him. But as Fox News Channel's Chris Stirewalt points out, the regulations for the new delay attempt to forestall the latter possibility:

Obama officials made clear in a press briefing that firms would not be allowed to lay off workers to get into the preferred class of those businesses with 50 to 99 employees. How will the feds know what employers were thinking when hiring and firing? Simple. Firms will be required to certify to the IRS--under penalty of perjury--that ObamaCare was not a motivating factor in their staffing decisions. To avoid ObamaCare costs you must swear that you are not trying to avoid ObamaCare costs. You can duck the law, but only if you promise not to say so.

The specific regulation is on page 124 of this PDF from the Federal Register. It stipulates that the full exemption for the mandate applies if "the employer does not reduce the size of its workforce or the overall hours of service of its employees in order to satisfy the workforce size condition"--that is, if it doesn't fire workers to get below 100:

A reduction in workforce size or overall hours of service for bona fide business reasons will not be considered to have been made in order to satisfy the workforce size condition. For example, reductions of workforce size or overall hours of service because of business activity such as the sale of a division, changes in the economic marketplace in which the employer operates, terminations of employment for poor performance, or other similar changes unrelated to eligibility for the transition relief provided in this section XV.D.6 are for bona fide business reasons and will not affect eligibility for that transition relief.

Legal or regulatory changes that affect the cost of labor would fall into the category of "changes in the economic marketplace in which the employer operates." So it would be more precise to say that employers may cut back employment for any bona fide business reason except to take advantage of the ObamaCare mandate delay.

The administration thus acknowledges that its policy creates a perverse incentive and orders employers not to act upon it. But that can't be enforced. A business will take into account all relevant factors, including the additional costs imposed by ObamaCare, in making decisions about hiring and firing, including whether to terminate employees for poor performance, sell a division, etc. In practice, the new rule is a ban--under threat of criminal liability--on acknowledging the perverse incentive. Call it OmertèCare, a government-imposed conspiracy of silence.

from the Wall Street Journal, 2014-Mar-11, by James Taranto:

Speak of the Devil
The silly, sinister campaign against the Koch brothers.

"New Democratic Strategy Goes After Koch Brothers," announced a New York Times headline last week. Here's how the story began:

Charles G. and David H. Koch, the billionaire brothers who are perhaps the best-known patrons of conservative Republican politics, are bespectacled and in their 70s. They look genial enough.
But Democrats are embarking on a broad effort that aims to unmask the press-shy siblings and portray them, instead, as a pair of villains bent on wrecking progressive politics.
On Thursday, the Democratic Senatorial Campaign Committee is starting a digital campaign that will use Internet ads and videos, as well as social media, to tie Republican Senate candidates to the policies and actions of the Koch brothers. Its slogan: "The G.O.P. is addicted to Koch" (pronounced coke).

There are some clues here that this campaign isn't aimed at a mass audience. The Kochs are so obscure, even to Times readers, that the reporter felt obliged to identify them right off the bat, necessitating a yawner of a lead paragraph. They're also sufficiently unknown that the pun on their name needs a pronunciation guide, which deprives the joke of all its sting.

This is a play to the base--and are they ever base. Back in February 2011 we noted an anti-Koch rally in California where various "progressives" were captured on video calling for the assassination of Supreme Court justices who voted to uphold the right to free speech. Establishment Democrats like Senate Majority Leader Harry Reid haven't gone that far, but they are joining in the demonization of private citizens, following Saul Alinsky's 13th rule: "Pick the target, freeze it, personalize it, and polarize it. "

The Weekly Standard's Daniel Halper scooped the Times by more than a week when he noted this Reid floor speech Feb. 26;

"Despite all that good news, there's plenty of horror stories being told. All of them are untrue, but they're being told all over America," said Reid.
"The leukemia patient whose insurance policy was canceled [and] could die without her medication, Mr. President, that's an ad being paid for by two billionaire brothers. It's absolutely false. Or the woman whose insurance policy went up $700 a month--ads paid for around America by the multibillionaire Koch brothers, and the ad is false.
"We heard about the evils of Obamacare, about the lives it's ruining in Republicans' stump speeches and in ads paid for by oil magnates, the Koch brothers. But in those tales, turned out to be just that: tales, stories made up from whole cloth, lies distorted by the Republicans to grab headlines or make political advertisements.
"Mr. President, these two brothers are trying to buy America. They not only funnel money through their Americans for Prosperity, they funnel money into all kinds of organizations to do the same thing that they're doing. They're trying to buy America. I don't believe America is for sale. We'll see, Mr. President."

We're torn between finding this effort sinister and ridiculous, and the truth is it's both. Alinskyite tactics were meant to be applied against the powerful by the powerless. When applied by powerful men, like Reid, who are supposed to be public servants, they take on the character of tyranny rather than rebellion.

No doubt the Kochs can take it, but note that his attack aimed not only at them but also at ordinary Americans who have been victimized by ObamaCare and spoken out about it. The aim is clearly to intimidate others and thereby suppress information about ObamaCare's failures.

On the ridiculous side, the Washington Free Beacon reports on an anti-Koch protest over the weekend staged by a pair of unions, the New York State Nurses Association and the Service Employees International Union Local 1199, along with the state chapter of the NAACP. They were protesting a new hospital wing.

Yes, you read that right. They objected to "the soon-to-be-built David H. Koch Center at New York-Presbyterian Hospital," for which the eponymous donor gave $100 million:

The donation was the largest in the hospital's history, and will presumably create a fair number of new nursing jobs. So why are the usual suspects up in arms? Well, the agitators were apparently agitated because this particular hospital didn't need all the money. Oh yeah, and because it was International Women's Day, and the Kochs are the primary funders of the "war on women's reproductive rights . . . and many other issues of concern to American women." They're also behind "the effort to defeat and repeal healthcare to all Americans," whatever that means.

It means that they oppose ObamaCare, of course. And you can't fault Obama partisans for defending ObamaCare, except on the merits. But the people who staged this protest merely called attention to David Koch's nonpolitical philanthropic efforts, with which no reasonable person can find fault, and in turn to their own unreasoning hatred.

Also ridiculous, if duller, is an editorial in today's New York Times titled "The Democrats Stand Up to the Kochs":

Democrats are starting to fight back, deciding they should at least try to counter the tycoons with some low-cost speech of their own. Democrats may never have the same resources at their disposal--no party should--but they can use their political pulpits to stand up for a few basic principles, including the importance of widespread health-insurance coverage, environmental protection and safety-net programs.
The leader of this effort has been Senator Harry Reid, the majority leader, who has delivered a series of blistering attacks against the Kochs and their ads on the Senate floor over the last few weeks. In addition, the Democratic Senatorial Campaign Committee has set up a website,, to remind voters of just what the Kochs stand for, and why they raised $407 million in the 2012 election. And individual candidates are making sure voters know who is paying for the ad blitz.

The Democrats are not quite as outmatched as all that. Along with the "political pulpits" afforded by the White House and the Senate majority, they also have a $2.5 billion corporation that is happy to disseminate their propaganda free of charge.

That same company won a landmark court case half a century ago that expanded corporate free-speech rights. As the Times recounted in a Sunday editorial:

How is society to preserve open criticism of the government, while also protecting individuals from libel, or the publication of damaging false statements?
Fifty years ago this Sunday, the Supreme Court answered that question with a landmark decision in New York Times [Co.] v. Sullivan. The ruling instantly changed libel law in the United States, and it still represents the clearest and most forceful defense of press freedom in American history.
The case involved an ad that had appeared in The Times in 1960.

The Times generally opposes free speech in political ads, a position this column deplores. But Times v. Sullivan was a great victory, and we salute the company for having done the right thing. If we didn't, we'd be as silly as the people protesting the David H. Koch Center at New York-Presbyterian Hospital.

from the Huffington Post, 2014-Feb-12, by Jack Mirkinson:

US Plummets In Press Freedom Rankings

The United States plunged 14 places in the annual Press Freedom Index released by Reporters Without Borders on Wednesday. The group said it was "one of the most significant declines" in press freedom it had tracked during 2013.

The US in now ranked 46th on the RWB list, in between Romania and Haiti. It was ranked 32nd in the 2013 index. (Finland tops the entire list.)

The press freedom group was blunt in its explanation. It cited increased efforts to track down whistleblowers and the sources of leaks, mentioning Chelsea Manning and Edward Snowden in particular. It also condemned the Justice Department's surveillance of reporters, and the continued leak battle facing New York Times journalist James Risen.

RWB also criticized the United Kingdom for what it said were its "disgraceful" threats against the Guardian newspaper, and for its detention of Glenn Greenwald's partner, David Miranda.

"Both the US and UK authorities seem obsessed with hunting down whistleblowers instead of adopting legislation to rein in abusive surveillance practices that negate privacy, a democratic value cherished in both countries," the group wrote.

The decision by RWB to rank the UK 13 places higher than the US, at 33, drew a great deal of skepticism from many in the media:

Ryan Gallagher ✔ @rj_gallagher

UK being 13 above US in press freedom index isn't reality. US has far greater protections b/c of 1st amendment. …
3:11 AM - 12 Feb 2014
17 Retweets 6 favorites

The US also came under fire from the Committee to Protect Journalists, which, in its annual Attacks on the Press report, said that press freedom had "dramatically deteriorated" in 2013.

The US was 20th on the list just a few years ago. It fell 27 places in the 2012 index thanks to the harassment and arrest of journalists covering Occupy Wall Street, before climbing 15 places in 2013.

Read the full RWB report here.

from the Wall Street Journal, 2014-Jan-16, by Kimberley A. Strassel:

IRS Targeting and 2014
Democrats are working hard to make sure conservative groups are silenced in the 2014 midterms.

President Obama and Democrats have been at great pains to insist they knew nothing about IRS targeting of conservative 501(c)(4) nonprofits before the 2012 election. They've been at even greater pains this week to ensure that the same conservative groups are silenced in the 2014 midterms.

That's the big, dirty secret of the omnibus negotiations. As one of the only bills destined to pass this year, the omnibus was—behind the scenes—a flurry of horse trading. One of the biggest fights was over GOP efforts to include language to stop the IRS from instituting a new round of 501(c)(4) targeting. The White House is so counting on the tax agency to muzzle its political opponents that it willingly sacrificed any manner of its own priorities to keep the muzzle in place.

And now back to our previously scheduled outrage over the Chris Christie administration's abuse of traffic cones on the George Washington Bridge.

The fight was sparked by a new rule that the Treasury Department and the IRS introduced during the hush of Thanksgiving recess, ostensibly to "improve" the law governing nonprofits. What the rule in fact does is recategorize as "political" all manner of educational activities that 501(c)(4) social-welfare organizations currently engage in.

It's IRS targeting all over again, only this time by administration design and with the raw political goal—as House Ways and Means Chairman Dave Camp (R., Mich.) notes—of putting "tea party groups out of business."

Congressional sources tell me that House Appropriations Chairman Hal Rogers (R., Ky.) had two priorities in the omnibus negotiations. One was getting in protection for groups that morally oppose ObamaCare's contraception-coverage requirement. The other was language that would put a hold on the IRS rule.

The White House and Senate Democrats had their own wish list, including an increase in funding for the International Monetary Fund, the president's prekindergarten program and more ObamaCare dollars.

Yet my sources say that throughout the negotiations Democrats went all in on keeping the IRS rule, even though it meant losing their own priorities. In the final hours before the omnibus was introduced Monday night, the administration made a last push for IMF money. Asked to negotiate that demand in the context of new IRS language, it refused.

That's a lot to sacrifice for a rule that the administration has barely noted in public, and that then-acting IRS Commissioner Danny Werfel claimed last fall when it was introduced is simply about providing "clarity" to nonprofits. It only makes sense in a purely political context. The president's approval ratings are in the toilet, the economy is in idle, the ObamaCare debate rages on, and the White House has a Senate majority to preserve. With one little IRS rule it can shut up hundreds of groups that pose a direct threat by restricting their ability to speak freely in an election season about spending or ObamaCare or jobs. And it gets away with it by positioning this new targeting as a fix for the first round.

This week's Democratic rally-round further highlights the intensely political nature of their IRS rule. It was quietly dropped in the runup to the holiday season, to minimize the likelihood of an organized protest during its comment period. That 90-day comment period meantime ends on Feb. 27, positioning the administration to shut down conservative groups early in this election cycle.

Mr. Camp's committee has meanwhile noted that Treasury appears to have reverse-engineered the carefully tailored rule—combing through the list of previously targeted tea party groups, compiling a list of their main activities and then restricting those functions.

And an IRS rule that purports to—as Mr. Werfel explained—"improve our work in the tax-exempt area" completely ignores the biggest of political players in the tax-exempt area: unions. The guidance is directed only at 501(c)(4) social-welfare groups—the tax category that has of late been flooded by conservative groups. Mr. Obama's union foot soldiers—which file under 501(c)(5)—can continue playing in politics.

Treasury is also going to great lengths to keep secret the process behind its rule. Cleta Mitchell, an attorney who represents targeted tea party groups, in early December filed a Freedom of Information Act request with Treasury and the IRS, demanding documents or correspondence with the White House or outside groups in the formulation of this rule. By law, the government has 30 days to respond. Treasury sent a letter to Ms. Mitchell this week saying it wouldn't have her documents until April—after the rule's comment period closes. It added that if she didn't like it, she can "file suit." The IRS has yet to respond.

Mr. Camp has now authored stand-alone legislation to rein in the IRS, though the chance of Majority Leader Harry Reid (D., Nev.) allowing a Senate vote is approximately equal to that of the press corps paying attention to this IRS rule.

So that puts a spotlight on newly sworn-in IRS Commissioner John Koskinen, who vowed during his confirmation hearing to restore public trust in the agency, and now must decide whether to aid in a new and blatantly political abuse of IRS powers. The White House is using the agency to win an election this fall. They gave the proof this week.

from the Wall Street Journal, 2014-Feb-4:

Taking the IRS Fifth
If everything was kosher, why won't Lois Lerner talk to Congress?

Liberals are celebrating President Obama's claim that "not even a smidgen of corruption" occurred when the IRS targeted conservative groups for additional scrutiny in an election season. Less enthused must be Lois Lerner, the former director of tax-exempt organizations who invoked her Fifth Amendment right not to testify before a House committee last May.

Asked by Fox News's Bill O'Reilly whether there was any corruption in the IRS handling of groups applying for tax-exempt status, Mr. Obama said "absolutely not," adding that the policy that delayed hundreds of applications by conservative groups was a case of "some bone-headed decisions out of a local office." By local he means Cincinnati.

The President's clairvoyance is extraordinary, since neither the Justice Department nor Congress has finished investigations. The congressional probes have conducted interviews with dozens of employees from the IRS and Treasury Department and reviewed hundreds of thousands of pages of documents. They have already revealed that the tea-party cases, including intrusive questionnaires, were systematically reviewed by lawyers in the IRS Washington office.

But hey, if the President says it's all kosher and the FBI doesn't intend to pursue criminal charges in its probe of the selective IRS screening procedures, why should Ms. Lerner take the Fifth? Perhaps we'll get to hear what Ms. Lerner meant when she wrote in February 2011 emails that the tea party matter was "very dangerous" and that "Cincy should probably NOT have these cases."

Meantime, the IRS has decided to reinstate bonuses for employees. Judging by the President's vote of confidence, maybe Ms. Lerner could get a retroactive performance bonus for following the IRS rule of omerta.

from the Wall Street Journal, 2014-Jan-28, by James Taranto:

Enemies of Friends of Abe
How the IRS chills freedom of association.

These days "IRS Targets Conservative Group" is a dog-bites-man story. But this one was man-bites-dog by virtue of its placement: on the front page of the New York Times, a newspaper that is usually supportive of this administration's efforts to suppress domestic dissent. Put it down to a sudden outbreak of news judgment.

The news value to the Times may lie more in the nature of the organization than its trouble with the IRS. "In a famously left-leaning Hollywood, where Democratic fund-raisers fill the social calendar, Friends of Abe stands out as a conservative group that bucks the prevailing political winds," reads the lead paragraph.

But Friends of Abe--as in Lincoln--has sought nonprofit status under Section 501(c)(3) of the U.S. Tax Code, which would allow it to collect tax-deductible contributions. The IRS has been reviewing the application for some two years, seeking information about meetings where politicians spoke. A 501(c)(3) is prohibited from engaging in campaign activity, such as hosting a fundraiser, but as the Times notes, "tax-exempt groups are permitted to invite candidates to speak at events."

The most troubling revelation in the Times account is that at one point the IRS "included a demand--which was not met--for enhanced access to the group's security-protected website, which would have revealed member names." The Times points out that FOA "keeps a low profile and fiercely protects its membership list, to avoid what it presumes would result in a sort of 21st-century blacklist" and that "tax experts said that an organization's membership list is information that would not typically be required."

With the possible exception of academia, show business is about as totalitarian a subculture as you will find in America. Conservatives are a tiny minority, and they fear for their livelihoods if exposed. A few high-profile celebrities are exceptions--the Times mentions Gary Sinise, Jon Voight, Kelsey Grammer and Lionel Chetwynd--but for lesser-known actors and people who work in off-camera jobs, confidentiality is crucial.

This column obtained a letter that Jeremey Boreing, FOA's executive director, sent members last week in response to the Times story. Its tone demonstrates how seriously the group takes its members' privacy:

At one point, as we were pushing to get the situation resolved, the IRS asked for access to those portions of our website that contain the names of our members. We refused to give them this access, and we will continue to refuse it.

At present, that is no longer one of the demands that they are making. . . .

We will not name names in Hollywood--not for the New York Times and not for the IRS. If the day should come that the IRS makes seeing the list an essential demand for our determination, we will simply remove our request for exemption and structure the organization in a different manner. This office will never reveal the names of our members, and we ask that none of our members reveal their fellows either.

We should note that, true to his word, Boreing names no names in the letter.

FOA members have good reason to fear being identified to the IRS. Last year the agency was revealed to have leaked confidential donor information about the National Organization for Marriage to the Human Rights Campaign, an antagonist in the debate over same-sex marriage. HRC promptly posted the purloined information online. reported in October that congressional investigators had identified the leaker, "but in an ironic twist, the Internal Revenue Service is forbidden from disclosing whether the employee has been prosecuted, fired, or even reprimanded."

The IRS's intrusive tactics thus have a chilling effect on people who wish to exercise their First Amendment right of free association without attracting public attention--or, more precisely, the attention of vicious ideological antagonists. Even calling attention to those tactics can compound the problem, as illustrated by FOA's need to reassure its members in the wake of the Times story. The gradual accretion of power by a vast administrative state, combined with an administration intolerant of dissent, has produced a clear and present danger to basic American freedoms.

from the New York Times, 2014-Jan-22, printed 2014-Jan-23, p.A1, by Michael Cieply and Nicholas Confessore:

Leaning Right in Hollywood, Under a Lens

LOS ANGELES — In a famously left-leaning Hollywood, where Democratic fund-raisers fill the social calendar, Friends of Abe stands out as a conservative group that bucks the prevailing political winds.

A collection of perhaps 1,500 right-leaning players in the entertainment industry, Friends of Abe keeps a low profile and fiercely protects its membership list, to avoid what it presumes would result in a sort of 21st-century blacklist, albeit on the other side of the partisan spectrum.

Now the Internal Revenue Service is reviewing the group's activities in connection with its application for tax-exempt status. Last week, federal tax authorities presented the group with a 10-point request for detailed information about its meetings with politicians like Paul D. Ryan, Thaddeus McCotter and Herman Cain, among other matters, according to people briefed on the inquiry.

The people spoke on the condition of anonymity because of the organization's confidentiality strictures, and to avoid complicating discussions with the I.R.S.

Those people said that the application had been under review for roughly two years, and had at one point included a demand — which was not met — for enhanced access to the group's security-protected website, which would have revealed member names. Tax experts said that an organization's membership list is information that would not typically be required. The I.R.S. already had access to the site's basic levels, a request it considers routine for applications for 501(c)(3) nonprofit status.

Friends of Abe — the name refers to Abraham Lincoln — has strongly discouraged the naming of its members. That policy even prohibits the use of cameras at group events, to avoid the unwilling identification of all but a few associates — the actors Gary Sinise, Jon Voight and Kelsey Grammer, or the writer-producer Lionel Chetwynd, for instance — who have spoken openly about their conservative political views.

The I.R.S. request comes in the face of a continuing congressional investigation into the agency's reviews of political nonprofits, most of them conservative-leaning, which provoked outrage on the right and forced the departure last year of several high-ranking I.R.S. officials. But unlike most of those groups, which had sought I.R.S. approval for a mix of election campaigning and nonpartisan issue advocacy, Friends of Abe is seeking a far more restrictive tax status, known as 501(c)(3), that would let donors claim a tax deduction, but strictly prohibits any form of partisan activity.

The group is not currently designated tax-exempt, but it behaves as a nonprofit and has almost no formal structure, people briefed on the matter said. The I.R.S. review will determine whether Friends of Abe receives tax-exempt status that would provide legal footing similar to that of the People for the American Way Foundation, a progressive group fostered by the television producer Norman Lear and others. If not, Friends of Abe could resort to the courts, or it might simply operate as a nonprofit, but it would be unable to receive tax-deductible contributions.

Jeremy Boreing, executive director of Friends of Abe, declined on Wednesday to discuss details of the tax review, but said the group would continue regardless of outcome.

“Certainly, it's been a long process,” he said.

“Friends of Abe has absolutely no political agenda,” he added. “It exists to create fellowship among like-minded individuals.”

People for the American Way, Mr. Lear's group, stands as something of a liberal counterpart to Friends of Abe, though the organization is far larger, with an affiliate that spends millions of dollars a year on issue advocacy in Washington and beyond. But the entertainment industry has been crisscrossed by progressive groups like the Natural Resources Defense Council, which maintains a tax-exempt educational adjunct under the 501(c)(3) provision, and includes the producer Laurie David and the actor Leonardo DiCaprio among its trustees. Another, the American Foundation for Equal Rights, is a nonprofit that supports marriage rights for gay people and counts the producer Bruce Cohen and the writer Dustin Lance Black among its founders.

In the request last week, tax officials combined broad questions about membership criteria and social events, according to the people briefed on the matter, with pointed queries about meetings with a Los Angeles mayoral candidate, Kevin James, and Republican politicians like Mr. Ryan, Mr. Cain and Rick Santorum.

Officials particularly wanted to know why a speech introducing Mr. Cain at a Friends of Abe event in November 2011 — when he was a presidential candidate — should not be regarded as potentially prohibited political campaign support.

While tax-exempt groups are permitted to invite candidates to speak at events, it is not uncommon for the I.R.S. to scrutinize such activities to determine whether they cross the line into partisan election activity. One issue is whether the organization invites all the qualified candidates.

“The I.R.S. would say that if you are inviting only conservative candidates, that's a problem,” said Marcus S. Owens, a former director of the I.R.S.'s exempt organizations division. “But it's never really been litigated.”

Ofer Lion, a lawyer representing Friends of Abe in its application for tax-exempt status, declined to comment.

Friends of Abe began about nine years ago as little more than an email chain linking conservative stars, filmmakers and other Hollywood figures who were generally reluctant to openly discuss their views. The name is a take on Friends of Bill, the circle of loyalists who have adhered to Bill Clinton over the years.

Mr. Sinise was a leading voice among those who in early 2005 gathered at Morton's Steakhouse here for an informal dinner that members have since identified as the group's closest approach to an actual founding moment.

As Friends of Abe grew, however, Mr. Sinise withdrew from active leadership, and Mr. Boreing, a film producer and director, took charge.

Membership has been defined mostly by access to a private website (there are no dues, but enhanced online access requires a small fee), and attendance at a growing number of events that have included meetings with political operatives like Karl Rove and Frank Luntz; politicians like Michele Bachmann and John Boehner; and media figures like Ann Coulter, Dennis Miller and Mark Levin.

The recent I.R.S. query did not mention the earlier request for access to the names of members, people briefed on the query said.

But a remaining question is whether at least some of the group's politically oriented encounters will be interpreted as campaign activity, and weigh against its bid for tax exemption as a 501(c)(3) organization, devoted to educational or charitable work.

A spokesman for the I.R.S. on Wednesday said it was prohibited from commenting on specific taxpayer activity.

Tax officials and congressional overseers have been embroiled in a debate over the enforcement of rules that restrict campaign activity by tax-exempt groups since last year, when an I.R.S. official acknowledged that officers had improperly targeted Tea Party groups for extra scrutiny. But most of those groups were seeking recognition as so-called 501(c)(4) groups, whose ability to conduct a limited amount of campaign activity is governed by a vague patchwork of rules and standards. In November, in an effort to make the process both more transparent and more rigorous, the I.R.S. announced that it would begin formulating new rules.

Michael Cieply reported from Los Angeles and Nicholas Confessore from New York.

from BBC News, 2014-Feb-12, by Soutik Biswas:

Why did Penguin recall a book on Hindus?

"Now here's this book. And there will be more. After half a century of studying and engaging with Hinduism, I'm not about to be silenced by a few (bad) eggs," academic Wendy Doniger wrote in her latest book On Hinduism, published last year.

Doniger, who teaches at the University of Chicago and has written nearly half a dozen books on Hinduism, including a translation of the Kama Sutra, was writing about how her 2009 book The Hindus: An Alternative History quickly became a lightning rod for Hindu anger.

Doniger wrote that bloggers had accused her of attacking Hinduism and sexualising Hindus, flooded Amazon with their "lurid opinions of the book" and sent her obscene and threatening emails. There was even a protest outside the US embassy in Delhi calling for the book, which was climbing the best-seller non-fiction list, to be banned. The book had also prompted a legal challenge from Hindu groups and attracted at least two separate criminal complaints.

But Tuesday's news of her publisher Penguin India deciding to recall and destroy all remaining copies of The Hindus is being seen as the unkindest cut of all.

The publisher appears to have come to an out-of-court agreement with a little-known Hindu campaign group called Shiksha Bachao Andolan (Save Education Movement), which had filed cases against the book.

The man behind the campaign is Shiksha Bachao Andolan leader Dinanath Batra, a former teacher and school principal. After retirement,