Libertarianism as Ten Questions Rather Than Ten Answers

Gary Johnson, Libertarian Party candidate for President, is polling extremely well for someone who isn't a Republican or Democrat. That will likely revive the questions "what is the Libertarian Party," anyway?" and "what is a libertarian, anyway?" It is traditional for those questions to be answered snidely, contemptuously, or with a disturbing degree of uncombed mania.

I'm not very interested in the first question. I'm a sort-of small-l libertarian, not a large-L Libertarian. And I'm deeply uncomfortable about labeling myself as even a small-l libertarian. I've explained why before: I think that embracing political labels leads to bad behavior. I ought to support something because I have thought it through and think it's right, not because members of my tribe support it and insecurity and cognitive dissonance will set in if I disagree with them.

That makes it awfully difficult to explain what libertarianism is when people ask because they're wondering if there's some sort of alternative to the horror show the major parties have served up this year. Nobody wants to sit through my discourse on what I think on a long series of issues, and then stick around while people bicker over whether that's libertarian or not. Yet I believe there are values underlying "libertarianism" that are worth promoting, and that the label might be a useful shorthand for defending them. So what to do? Accept a label with the baggage and thought distortions and compromises that it brings, or abandon concise and effective advocacy?

Maybe there's another way.

I'd like to propose presenting libertarianism as a series of questions rather than a series of answers or policy positions. Even if I don't agree with people's answers to these questions, getting them to ask the questions and confront the issues reflected in the questions would promote the values that I care about.

These are all questions that I think ought to be asked whenever we, as a society, decide whether to task and empower the government to do a thing.

Does the United States Constitution permit the government to do this?

This is the fundamental question. The Constitution is the rulebook. If it doesn't give the government power to do something, or doesn't let it do something to you, then we shouldn't do it unless we amend the Constitution first. You might think that's obvious. It's not. Taking the question seriously is important even when we don't agree on the answer or even the methodology. The norm is to invoke the Constitution only when you don't like a proposed law, and to scorn constitutional inquiry when it's an impediment.

What would this power look like if it were expanded dramatically in scope or in time?

Power given to the government tends to grow, not shrink. Folks don't give up power or money easily. What does the power you offer to the government look like if government actors fight to widen its scope?

Tell me if this sounds familiar: terrorists attack, citizens are killed, property is destroyed, the nation's confidence is severely shaken, and leaders propose a law dramatically expanding the power of the state temporarily to address the crisis. I'm not talking about 2001 and the PATRIOT ACT. I'm talking about 68 B.C. and the lex Gabinia, proposed to give Pompey extraordinary powers to fight pirates. That power led, some assert, to the fall of the Roman Republic and the rise of Imperial Rome.

Laws passed "temporarily" are often not temporary at all. Laws passed ostensibly for one purpose are often twisted to other purposes.

What would this obligation look like if exercised indifferently by unaccountable people?

We owe a debt to our veterans and the proposition that we're responsible for their health care is an appealing one, particularly when their health problems result from their service to our country. The question is how to provide that health care. Should we make the government a direct provider? Well, what would it look like if we charged a gigantic government bureaucracy to provide it, and maintained a civil service political and legal culture that made the bureaucrats almost completely unaccountable for how they run it? It turns out we already know the answer to that one.

What would your worst enemy do with this power?

Aye, there's the rub. Think of the politician you hate and mistrust most. Do you want that politician administering enforcement of the law you propose, particularly in a time when other branches of government are aligned or weak?

Does this power make a choice about morals, ethics, or risk that individuals ought to make?

Consider C.S. Lewis:

My contention is that good men (not bad men) consistently acting upon that position [imposing “the good”] would act as cruelly and unjustly as the greatest tyrants. They might in some respects act even worse. Of all tyrannies, a tyranny sincerely exercised for the good of its victims may be the most oppressive. It would be better to live under of robber barons than under omnipotent moral busybodies. The robber barons cruelty may sometimes sleep, his cupidity may at some points be satiated; but those who torment us for their own good will torment us without end for they do so with the approval of their own conscience. They may be more likely to go to heaven yet at the same time likely to make a Hell of earth. This very kindness stings with intolerable insult. To be “cured” against one’s will and cured of states which we may not regard as disease is to be put on the level of those who have not yet reached the age of reason or those who never will; to be classed with infants, imbeciles, and domestic animals.

Does your proposed law empower the government to make the sort of moral, ethical, or risk-assessment decisions that individuals ought to be making for themselves? To combine this question with the last one: if you are empowering the government to make moral, ethical, or risk-assessment judgments for you, are you comfortable with that power being wielded by people with moral, ethical, and risk viewpoints you hate?

Here's another way to ask this question: how does this law treat you with respect to your ability to make decisions, and are you happy with the government constantly treating you that way with respect to other decisions?

Does this power represent the government putting its thumb on the scales to prefer some competitors over others, perhaps based on their relative power and influence?

Or, to use a specific example: if you make monks who hand-carve wooden caskets to support themselves take years of training to learn how to embalm bodies even though they don't have anything to do with dead bodies, are you working for the common good, or are you the puppet of mortuary owners seeking to manipulate the law to discourage competition?

Does this power set up a conflict between laws and rights?

The Constitution creates negative rights — things the government can't do to us. Laws sometimes create positive rights — our privilege to demand something from the government or each other. Does this proposed power set up a conflict between those rights? Does the law purport to give me the power to demand something from you that you have the right not to give?

Are we giving this power to the right level of government?

If we must give the government the power to do this, what part of the government should get it?

Are we acting out of fear, anger, or self-promotion?

Is this law named after a dead kid? Is it named in a way calculated to suggest somebody is awful and we're a-gonna kick their asses? Is it named to promote a politician? Is it named to promote our self-esteem? Is this law the equivalent of grocery shopping when we're hungry? Is it the equivalent of liquor shopping when we just caught our significant other in bed with our best friend? Are we too angry, tired, or scared to think clearly about this law right now? is the person proposing this law in a difficult re-election contest?

Is there any evidence the government is any good at this?

Say you've got a problem at work and you need someone to fix it. You'll probably give some thought to who is best suited for the job. If the server's down you're not going to send Ethel at reception who once tried to send an email from the fax machine. If you need someone to calm the boss down you're not going to send Wayne from sales who prides himself on "saying what people think." You give a shit about how it's going to turn out so you evaluate who has the skillset.

Often we don't do that with the government. We assume, based on habit or ideology, that if there's a problem that the government ought to solve it. Should we? Possibly. But not obviously, not definitely. So ask: what's the specific, evidence-and-experience-founded basis for thinking the government will make this better rather than worse?

Even if people don't agree with my answers to these questions, I think that the country would be a lot more libertarian — as I like to use that term — if people got interested in asking them.

David French For President

I stand with David French.

I don't stand with him on social issues, at least not most of the time. I don't stand with him on many geopolitical issues — though I note that he's willing to back up his views by volunteering for military service rather than merely sending other people to risk their lives to advance them.

I stand with him as someone I respect, admire, and trust.

I met David in 1991 at Harvard Law School. He stood out. In a class awash in people from Princeton and Stanford and Yale, he came from a small private college in Nashville, but was manifestly intellectually qualified to be there. He was open about his faith in a positive and friendly way. He was unapologetic, firm, but polite about his political views, which were very substantially to the right of Harvard's rather unreflectively lefty ethos. These were the days of the Clarence Thomas hearings and the run-up to the 1992 elections, and political discourse mostly consisted of expressing disdain and disbelief at the existence of different viewpoints. David got hissed in class — that's what people did before there was Twitter — by the usual suspects.

Yet David, unlike some people with strong political beliefs, was generally well-liked because his strong beliefs were accompanied by an air of decency, humility, and friendliness. Friends — people with a wide array of political beliefs and social, ethnic, and religious backgrounds — used to joke that David was the reasonable man of legal lore. When we studied the tort of intentional infliction of emotional distress — which traditionally imposes liability when someone's conduct is so terrible that it would cause a reasonable member of the community to exclaim "outrageous!" — we relied heavily on David. We'd explain the facts to him, and if he exclaimed "OUTRAGEOUS!" we felt comfortable in concluding that's how a decent, normal American would react.

Since then, David has led FIRE, one of my favorite organizations, to fight for the free speech, assembly, and worship rights of students. Faced with a war he believed in, and faced with the sacrifices of others, he joined and served honorably in a war zone rather than supporting conflict without personal sacrifice. Like me, he adopted a child into his family, and like me recognized that the opportunity to adopt a child is an incredible blessing upon the family that should inspire parents to feel profound thankfulness.

I disagree with David quite often. For instance, I think he's too uncritical of our international military agenda. I think his criticisms of the cultural left too often characterize the whole based on the bad behavior of the few and too often indulge in the sort of gratuitous rhetoric that doesn't live up to the rest of his persona. But I respect him because I know he got where he is based on principle and that, if I argued with him over it, he'd listen to me and discuss it with me like a grown-up (and perhaps give me more attention than my antics deserved). I trust him more than I trust the vast majority of politicians, even when I agree with those politicians' apparent stated positions of the moment.

This week's attacks on him annoy me. They annoy me because so many are careless, puerile and uninformed. They annoy me almost (almost) to the point of reflection — is that how I sound when I reject candidates out of hand?

I don't know if David will decide to tilt at this windmill. I do know that it would be a pleasure to vote for someone whose integrity and decency I trust, and for whom I have abiding respect, even if I don't share all of his views.

Lawsplainer: Is There Anything Unusual About Judge Curiel's Orders In The Trump University Case?

Where have you been?

Busy. Lawyering. Parenting. Playing Stellaris. Thus and such.

You have obligations!

You have genital warts.

Hey! Be nice. So, what's up with this crazy judge?

You'll have to be far more specific.

You know, the judge who has it in for Donald Trump.

Oh. United States District Judge Gonzalo Curiel, the federal judge that has Trump's jimmies all berustled? This guy?

The trial, they wanted it to start while I am running for President. The trial is going to take place sometime in November. There should be no trial. This should have been dismissed on summary judgment easily. Everybody says it, but I have a judge who is a hater of Donald Trump. He’s a hater. His name is Gonzalo Curial. And he is not doing the right thing. I figure what the hell? Why not talk about it for two minutes. Should I talk about it? Yes? [cheers and applause] so we should have won. . . .

I am getting railroaded by a legal system, and frankly they should be ashamed. I will be here in November. Hey, if I win as president, it is a civil case. I could have settled this case numerous times. But I don’t want to settle cases when we are right. I don’t believe in it. When you start settling cases, do you know what happens? Everybody sues you because you get known as a settler. One thing about me, I am not known as the settler.

And people understand with this whole thing, with this whole deal with the lawyers, class action lawyers are the worst. It is a scam. Here is what happens. We are in front of a very hostile judge. The judge was appointed by by Barack Obama – federal judge. [Boos]. Frankly he should recuse himself. He has given us ruling after ruling, negative, negative, negative. I have a top lawyer who said he has never seen anything like this before. So what happens is we get sued. We have a Magistrate named William Gallo who truly hates us.

Yeah, that guy. Is he biased against Trump? Are his rulings outrageous or unusual?

No. I mean, I'm biased against Trump. But Judge Curiel's rulings in the case do not seem extraordinary.

What's the case about, anyway?

There are actually two relevant cases before Judge Curiel.

The first is a purported class action filed in 2010, asserting that Trump and Trump University violated California's ridiculously overbroad and malleable unfair business practices law, California's consumer protection laws, California's false advertising laws, that they breached Trump U's contracts, and that they defrauded students, among other things.

The second case is a 2013 purported class action by the same lawyers with the same purported classes of student plaintiffs asserting that Trump and Trump University violated RICO laws.

Wait a second. Don't you always say that civil RICO is bullshit?

Yes. In general, if the defendants don't have "the" in their names, civil RICO is overwrought bullshit. A purported RICO claim split into a separate complaint smells like particularly obvious bullshit. More on that later.

So why didn't Judge Curiel get rid of this at summary judgment, like Trump says?

First you've got to understand what summary judgment is. It's not "my evidence is stronger."

Here's how it works. One side files a motion attacking the complaint, or certain causes of action in the complaint, or maybe a defense, and points out to the court (usually by attaching evidence from discovery) that there is no evidence supporting the other side's position. Then the burden shifts to the other side to come forward with admissible evidence supporting their claim or defense.

So, for instance, say you sue me for copyright infringement for posting your art on Popehat. I could make a motion for summary judgment supplying my declaration that I never posted your art on Popehat. The burden would then shift to you to come forward with admissible evidence — say, a declaration from you, with screenshots — to show that there is a dispute of material fact. That means you have to offer evidence that there's a factual dispute about a fact that's meaningful to the claim at issue.

And then the judge decides who is right?

To be more precise, the judge then evaluates whether there is any evidence to support the attacked claim or defense.

The judge doesn't weigh evidence or determine credibility. If I have 20 declarations saying that your art never appeared on Popehat, and you have one declaration saying that it did, then you win the motion because there is some evidence supporting your claim. But if you can't supply admissible evidence — say, if you can only offer hearsay that someone told you they saw your art on Popehat — then I win.

So what happened here?

In the 2010 case, Donald Trump filed one motion for summary judgment and Trump University filed another.

Trump's own motion argued that he didn't make any of the alleged misrepresentations about Trump University that plaintiffs claim and therefore couldn't be held liable for them, and that the law didn't allow them the damages they demanded. Trump University argued that the law doesn't allow the plaintiffs the damages and injunctions they are asking for. The plaintiffs opposed both motions, arguing they had offered admissible evidence creating factual disputes about Trump's personal liability and Trump University's liability.

So Judge Curiel shot Trump down?

Partially, but not completely. Judge Curiel issued a very detailed 44-page order analyzing the arguments. The order has a good review of the evidence that the plaintiffs offered to support their case.

Ultimately he granted the motions in part and denied them in part. He threw out all of the demands for injunctive relief against Trump University, but kept the demands for restitution and other forms of monetary relief. He based that order on an earlier ruling limiting the class action claims. As to Donald Trump himself, Judge Curiel found that plaintiffs had offered admissible evidence creating a genuine dispute about whether Trump "hand-picked" Trump University instructors as he claimed, that they had offered enough evidence to create a dispute about whether Trump was responsible for Trump University advertisements because he reviewed them personally, and that they had offered enough evidence to create a factual dispute about whether plaintiffs relied to their detriment on false representations for which Trump could be held responsible. The court granted Trump's motion to throw out claims for injunctive relief against him.

The end result was that the demands for damages stayed alive, but demands for injunctions — which really didn't drive the case — got thrown out.

What about summary judgment in the 2013 case?

It hasn't been decided yet. Trump didn't file his Motion for Summary Judgment until April 2016 and it's not even set for hearing until July 2016.

So does the summary judgment order suggest Judge Curiel is a partisan biased against Trump?


Look, in the modern political climate I could burn ten thousand words on this and people who support Trump wouldn't buy it and people who oppose Trump would buy it even if the only word was "dildo." But in my judgment, Judge Curiel's partial denial of the summary judgment is pretty straightforward and well within the range of normal federal judicial decisions on summary judgment.

First, keep in mind Judge Curiel hasn't given plaintiffs everything they wanted — not by a long shot. The point of a class action is to get your individual plaintiffs to represent a huge class of people, so you can prove their individual cases but get damages to cover hundreds or thousands or tens of thousands of people. It's a huge force multiplier and carries the potential for ruinously gigantic damages. Judge Curiel didn't certify the class on all the claims that plaintiffs wanted. That is, as to some of their claims, he said they could only seek their own personal damages, not damages on behalf of everyone who went to Trump University. For instance, he allowed the plaintiffs to represent classes under state consumer laws, but not under state common law claims like breach of contract and fraud.

Later, on Trump's motion, Judge Curiel decertified the class in part. That means that he granted Trump's motion to take away part of their class representative status and modified how they must prove their cases. Specifically, Judge Curiel ordered that (1) the case would have a separate trial on liability and then a separate trial on damages only if plaintiff prevailed (which defendants generally like because it keeps plaintiffs' damages sob stories out of trial and keeps the jury from being prejudiced by big damages numbers or by evidence of how much money the defendants have); (2) rather than assuming if plaintiffs won that all class members would get a full refund, Trump and Trump University would be able to litigate how much value they got and how much or little of a refund they should get.

On summary judgment, he gave the plaintiffs much of what they wanted — he knocked out the demands for injunctions, but those are insignificant compared to damages. But his analysis of the evidence was pretty straightforward. Judges aren't supposed to grant summary judgment if evidence is weak. They're only supposed to grant if if there's no dispute of fact. Here, the plaintiffs offered evidence which, if believed, would show that Trump was responsible for false statements and the students relied on those statements. I don't think it's a particularly notable decision.

Does that mean you think the plaintiffs should win?

I don't have an opinion on that.

It sure sounds like Trump University made false statements and promises. But from what I've seen, the best defense (though not necessarily the one that Trump will follow) is that anyone minimally rational would have recognized that all of the Trump University sales patter was puffery, trumpery, and bullshit, the equivalent of saying your coffee shop offers the most amazing coffee in the universe. But that's a jury question on these facts. Trump's gigantic successes in the Republican primaries demonstrates that many Americans may not share my view that most of what he says is obviously not to be taken seriously. Also, the RICO claim is rather clearly overcharged nonsense, like the vast majority of civil RICO claims. Congress needs to do something about RICO so it's not used as an exclamation point any time anyone sues for fraud. Judge Curiel may yet grant summary judgment on that second case — though Trump's motion in that case is curiously narrow.

So does the record support that Judge Curiel is in the tank for the plaintiffs and outrageously biased against Trump?

No. I don't think it does. However, to reach that conclusion, you need to actually read stuff and have a vague idea of what you're talking about, so I don't expect it to take hold, frankly.

Popehat's Old Friend Bill Johnson Turns Up, This Time As A Donald Trump Delegate, of Course

Long-time Popehat readers probably remember good ol' Bill Johnson.

I first wrote about Mr. Johnson in 2008, when he ran for a seat on the Los Angeles County Superior Court. Mr. Johnson used to go by the name James O. Pace, under which name he advocated repealing the 14th and 15th Amendments and replacing them with the "Pace Amendment":

No person shall be a citizen of the United States unless he is a non-Hispanic white of the European race, in whom there is no ascertainable trace of Negro blood, nor more than one-eighth Mongolian, Asian, Asia Minor, Middle Eastern, Semitic, Near Eastern, American Indian, Malay or other non-European or non-white blood, provided that Hispanic whites, defined as anyone with an Hispanic ancestor, may be citizens if, in addition to meeting the aforesaid ascertainable trace and percentage tests, they are in appearance indistinguishable from Americans whose ancestral home is in the British Isles or Northwestern Europe. Only citizens shall have the right and privilege to reside permanently in the United States.

He lost, despite some woefully clueless press coverage. But you can't keep a white nationalist down. Mr. Johnson has returned again and again. He managed to get on Ron Paul's endorsement list until he was thrown off, perhaps on the theory that such racial ideas belong in newsletters written in Paul's name but not in judicial candidates. He became "chairman" of the "America Third Position," which is more or less what you'd guess it is. He got the Los Angeles County Bar Association to put him on their lawyer referral list.

And now, proving that there are not only second acts but near-infinite acts in American life, Mr. Johnson has been accepted as a Donald Trump delegate in California. Mother Jones reports:

Johnson applied to the Trump campaign to be a delegate. He was accepted on Monday.

I actually doubt that the Trump campaign knowingly chose Johnson because he's a known white nationalist. But I doubt they particularly care. Bill Johnson has come home.

Edited to add: Josh Harkinson, author of the Mother Jones piece, pokes a bit of fun at Bill Johnson for his taste in food:

As we sat next to a table of immaculately coiffed Korean Air flight attendants, I mentioned that some might find it surprising that a guy who wrote a book advocating the creation of an all-white ethno-state was eating a plate of bulgogi beef with kimchee. "Koreans don't have to make Korean food," he said matter-of-factly. "One of the best Chinese restaurants I went to in the Bay Area is owned by a Mormon and cooked by a Mormon. Really great Chinese food."

One hears this a lot: how can a racist like Korean food? How can that guy be a bigot when he once dated a black girl? (That one was a defense in a civil rights case I prosecuted in the '90s). How can she be racist if she has Latina friends?

All of those arguments depend upon a hidden premise: that racism is rational, and therefore can be expected to operate rationally. It isn't and it doesn't.

Bathrooms and Fear

Our cultural wedge issue of the moment is bathrooms, and which ones transgender people ought to use. North Carolina's recent law and spin-off corporate policies and boycotts thereof have kept this in the headlines.

My biases are fairly straightforward. I don't think there is any sudden surge of transgender people trying to use the bathroom they identify with. I'm skeptical of the notion that transgender people pose an elevated threat of sexual assault and haven't seen any evidence supporting it. I don't believe that transgender people have suddenly grown to a statistically significant percentage of the population. Rather, I believe that North Carolina's laws and those like it are electioneering and wedging: in an era where anti-gay strategies are increasingly unpopular, it's a pander to a remaining sore spot of a culturally conservative base.

However, I'm a little uncomfortable ridiculing the discomfort and fear expressed by advocates of birth-gender-only bathrooms.

I don't find transgender people scary, and I'm not concerned they are out to molest my kids. I do think there's a genuine risk that predators could use a choose-your-bathroom approach as a method of getting access to victims, but I'm not sure whether that makes sexual predators more dangerous than they already are (and both adults and children will remain at vastly higher risk from people they know and associate with voluntarily). But here's the thing: in viewing the situation that way, I'm fighting against what our culture is screaming at me to think.

Our kids are much safer than they've been in generations, but our culture relentlessly demands that we be terrified for their safety — specifically including their safety from "stranger danger." The very media outlets that will spend today suggesting that you're bigoted and ignorant if you worry about "a man in my daughter's bathroom" will tomorrow go back to making money by scaring the living shit out of you about how your daughter is in constant peril from kidnappers and rapists and child molesters and crime, crime, crime. The culture that tells you today that your fear is irrational will tomorrow return to telling you to embrace fear you can't rationalize. This message isn't all law-and-order, either. The leftward-leaning side of the culture telling you today that you're a bigot for fearing rape in a Target bathroom will return tomorrow to telling you you're living in a rape culture and that you ought to be accepting of the stories, insights, and fears of the people who face that culture. In short, having long refused to hold you accountable for your fears, and having stoked them and encouraged you to indulge them, the culture is now abruptly demanding that you justify them logically. That strikes me as unfair.

Uncritical fear is a habit of the mind. You can't cultivate it for generations then turn it off like a light switch. It has consequences. You might not like all of them. Sometimes the habit of uncritical fear is going to exacerbate prejudice and ignorance. Don't like it? Fight it on a global basis, not a case-by-case basis. Question fear.

The worst responses to this situation have demonstrated utter inhumanity and lack of compassion for transgender people. That's unforgivable. But in some cases, people are being denigrated for acting the way they're taught to act. I think we could find better ways to persuade them.

Germany's Libel Laws: A Threat To Democracy [Guest Post By Colin Cortbus]

Colin Cortbus is a student and freelance journalist – his freelance investigative work has appeared in the UK Daily Mirror, the UK Daily Star, and Channel 7 (Israel).

German Chancellor Angela Merkel has come under intense international scrutiny over authoritizing state attorneys to prosecute a TV comedian over a vulgar, satirical poem he performed lampooming Turkey’s brutal dictator Tayyip Recep Erdogan. But the issue goes far beyond Merkel’s cozying up to the tyrant in Ankara; Germany’s libel and anti-insult laws have long been a weapon of choice for those seeking to suppress the marketplace of ideas. Hitler himself, prior to assuming power, was also a vicious libel plaintiff. In Germany, you can even get into free speech trouble for “libeling” the dead!

The Boehmerman case and the wrong debate about free speech law

Whenever he is not busy having Kurds killed, imprisoning journalists, or denying the Armenian Genocide, Turkish strongman Erdogan is a sensitive, fragile snowflake, easily offended by the many people who laugh at his ridiculous and scary regime. Having Turkish citizens who purportedly compare him to Gollum from Lord of the Rings prosecuted apparently doesn’t satisfy his urges; Recently, Erdogan’s regime has attempted to muzzle the laughter in Germany to. It started off with calling in Germany’s Embassador to Turkey in late March after satire show Extra 3 on Germany’s state-owned TV channel NDR had run a song mocking Erdogan’s human rights record, saying “a journalist who writes anything that Erdogan doesn’t like, he’ll be in jail by tomorrow”. They had also suggested Erdogan’s vision of equal rights for women consisted of cops beating up female anti-government protesters as well as the men.

It was in the context of this row that another state TV comedian, Jan Boehmermann, dedicated his show to discussing the extent of the free speech rights guaranteed on paper by Article 5 of the German Basic Law. He highlighted that laws draw the limit of the permissible at a legal concept known as Smäh-Kritik, vilifying criticism. He said he would perform a poem named after the concept to exemplify that, and introduced it saying “what comes next would be forbidden in Germany”. Then he went on to read out a vulgar text hyperbolically accusing Erdogan, among many other things, of fellating with a “hundred sheep”, having a small penis, smelling worse than the fart of a pig and watching child porn as well as beating women. He concluded his poem saying, “this is what you can’t say in Germany”.

The rest is history. Erdogan complained about the poem under two separate German anti-insult laws, firstly the arcane Article 103 of the criminal code, banning “the insulting of foreign heads or institutions of state” (which requires authorization by the government for prosecution to occur) and then secondly filed a legal request for prosecution under the regular law banning insults against persons, Article 185 of the criminal code (which any person can use, without any special authorization). Merkel’s embattled government then issued the authorization for prosecution under Article 103, much to the surprise of press commentators. They had argued the second complaint was a “bridge” over politically hot waters that Erdogan had built for Merkel, allowing her to refuse to issue the controversial authorization under the arcane and unpopular Article 103, which even she herself has said she intends to repeal soon, but still ensuring criminal charges against comedian Boehmerman could proceed under a different law

The attack on Boehmerman’s speech rights is not the first time Article 103 has been used to suppress democratic speech at the behest of the powerful. In
the 1960s it has used so frequently to persecute pro-democracy movement refugees from Iran that itbecame known as the “Shah-article”. In the 1980s it was used tolegitimize police action against protests who held up a banner describing Pinochet’s murderous regime in Chile as a “gang of murderers”, a historically accurate statement. The court’s chilling justification: if police had not intervened to confiscate the banner, “the correct bilateral relations between Germany and Chile would have suffered to a not insignificant degree”. In 2003, the president of police in Potsdam, a suburb of Berlin, wanted to use to law to prosecute an Iraq Waropponent who installed a “Bush Fuck You” placard at his home in an upscale neighborhood close to the German capital. Bush hadn’t complained (so no prosecution went ahead), but well-to-do neighbors had not taken to the sign favorably. The threat of prosecution no doubt sent a chill down the war opponent’s spine, and put a smile on their face

Despite this, Boehmerman’s case also shows how Germany’s conversation about free speech is broken. Much of the critical public reaction has not been to defend Boehmerman’s right, per se, to engage in such satire, but rather has become an exercise in not-so productive group outrage against Article 103. Politicians have described the law as a “pre-democratic” remnant of an age where insulting kings was still seen as a major crime, highlighting that the law establishes much higher maximum penalties (5 years in jail) than the regular law against insults (one year in jail). The popular Focus Magazine prominently featured a bow-tie wearing constitutional law expert arguing that this violates the principle of equality before the law, making it incompatible with Germany’s Basic Law. The problem with this line of reasoning is that every moment spent discussing this redundant law is one not spent discussing the wider host of censorious, unnecessary libel laws that stifle free thought in Germany, including the very same Article 185 that could yet be used to prosecute Boehmermann. The Boehmerman case has already had a knock on effect, with a Berlin administrative court banning the reprinting of his poem for a planned demonstrationagainst “insulting goats” that free speech activists had intended to hold outside of the Turkish embassy, although the judges did not rule on the legality of his poem more widely.

Germany Anti-Insult and Libel Laws – Anti-Democratic and Stupid

Germany has a plethora of highly restrictive libel and anti-insult laws of the sort one would more expect to find in Putin’s Russia than Merkel’s supposedly tolerant Germany. Aside from the laws already mentioned, the rarely usedArticle 189 bans the “disparagement of the memory of the dead”, Article 188 establishes particularly high penalties for “smearing and defaming” a “person involved in political life” if the speech in question is connected to the person’s political activities and “makes their public work significantly harder”. Article 192 explicitly says that the truth of a statement does not preclude it from constituting an illegal, punishable form of expression if it is insulting in the context of the way the statement was made. Underlying these laws is the idea that people have “personality rights” (Persönlichkeitsrechte) that a democratic state is obliged to protect from being compromised by demeaning speech.

Much of this can be traced down to the haste and post-war compromise with which the Basic Law, (then Western-) Germany’s quasi-constitution was developed in the late 1940s after the fall of Hitler’s Nazi dictatorship. Article 5, its’ provision on free speech, reflects this perfectly. It states that everyone shall have a right to freedom of expression, information and art, without the existence of censorship, but then goes on to qualify this, making clear: “These rights shall find their limits in the provisions of general laws, in provisions for the protection of young persons, and in the right to personal honour”. Theodor Heuss, a deputy to the 1948 parliamentary council that drafted the Basic Law, later said Article 5’s limiting provisions were consciously vague and implied that the “right to personal honour” arose out of an egalitarian desire to ensure that the same protections against smears would not just be available to officials of the state (as had de facto been the case in Nazi Germany, where the dignity of dissidents and democrats had not been respected by the state), but to all people.

This ties in with the Basic Law’s wider rhetoric of the “inviolability of the dignity of man”, a vague and unspecific platitude that would no doubt have been acceptable to both socialists and conservatives in post-Hitler West Germany. The Basic Law was originally, as it itself stated, intended to be only a compromise placeholder until such a time as a reunified Germany could pass a new constitution. But, given that the Basic Law gradually became a powerful emotive symbol of a new, post-totalitarian sense of Germanness, there little chance of this happening, and Germans will remain stuck with its inadequate free speech protections.

But the historical lack of emphasis on true free speech still does not explain the reluctance of Germany’s current political, social and literary elites to
demand a long-overdue expansion of speech rights. An understanding of this must be found elsewhere. An opinion piece penned by the editor-in-chief of Berlin’s well-regarded, intellectual Berliner Zeitung exemplifies what many in Germany’s cultural elites think about the Boehmerman case. Peter Huth wrote “Merkel did everything right… Even if there is a guilty verdict, Boehmermann will easily be able to live with the fine”. It is unquestionably true that with a good (expensive) lawyer, waves of public support and a well-regarded professional background, no German TV presenter or big-league newspaper editor is likely to face jail or financially crippling fines for any insults he/she may throw at anyone. The almost certain knowledge that they themselves will never face such a predicament is exactly why many in Germany’s powerful cultural and political elites find it so difficult grasp the chilling, censoring effect Germany’s anti-insult laws can have on those less privileged financially, socially or professionally; Local bloggers, small town newspapers, court case defendants, dissident refugees and historical researchers who already live on the economic margins of society but are the lifeblood of public debate. To many of these people, even the threat of a time-consuming police investigation or state prosecution can be the determining factor in not pursuing a news story, not expressing their opinion or even not exercising their fundamental due process rights.

Far from the egalitarian impulse that supposedly led to the constitutional “right to personal honour”, in practice, Germany’s anti-insult laws give immense power to officials to threaten small-time critics and trouble-makers who hold inconvenient opinions with legal repercussions. In 2014, a local court in the Rhineland region of Germany imposed a 6 month jail sentence for “insults” on an elderly man who had spent years writing letters to officials complaining, allegedly in crude and sometimes sexist terms, of inefficiency, ineptitude and of alleged corruption. Meanwhile, In the Schwarzwald region, an unemployed man who was dependent on social assistance received a 3 month jail sentence for using an insulting word in a telephone conversation with a local government official by whom he was told that more paperwork was needed before a permit he had requested could be issued. Last year, Germany’s Constitutional Court overturned a guilty verdictissued by a local court under the anti-insults laws against a woman who encountered police while wearing a “fuck cps” sticker. The local court had characterized this as an expression impacting the “social worth of the affected persons in their official capacity and reducing it”. In the 1990s, the Constitutional Court famously overturned a similar conviction against someone who had displayed a banner saying in (bad) English “ a soldier is a murder [sic]”, although the decision appears to be partially based on the reasoning that ‘a soldier’ did not specify troops from any specific national army or regiment in particular. Nonetheless, a regional higher court found that shouting “ACAB” while pointing at an individual police officer is an illegal and specific insult.

In 2008, a small-time hotel operator who had been detained on charges of unlicensed commerce, was visited by a police inspector in jail who informed him that prosecutors had just obtained and fulfilled a search warrant for his private apartment. The hotel operator protested vigorously to the police
inspector. He said that his lawyer should have been present during the search, and called the state prosecutor who had requested the search warrant a “breaker of the law whose days in the judicial system are counted”. He was later investigated, prosecuted and convicted by a county court of “disparaging criticism” and “defamation” towards the state prosecutor for saying this, as well as of other charges unrelated to those comments, but an appeals court eventually overturned the verdict in 2011. Criminal charges of “smearing” (Verleumdung) were also used by the state to prosecute a victim of child sexual abuse who has forced to work in an illegal child brothel in the 1990s. Mandy K. had claimed in an interview with prosecutors investigating the case and publically, that that a senior judge had been among those visiting the brothel as a client. Her case sparked a national debate about allegations of judicial corruption as well as police attitudes to victims of sexual assault, and there is no record of her being convicted of the charges. But even being investigated by police and taken to court is a time-consuming, costly experience that discourages critical expression in the face of officialdom.

Germany’s libel laws also have an unfortunate history of stifling the discussion of vital political topics. One of contemporary Germany’s most prominent far-left politicians, Gregor Gysi, has, since the 1990s, faced allegations of having collaborated with communist Eastern Germany’s feared Stasi ‘state security’ agency to inform on his clients, some of whom were dissidents, while he was a solicitor in Eastern Germany prior to re-unification. He vehemently denies the allegations, which have never been proven, and became known as the “red law-suit monger” in 1990s over his successful efforts to sue those making such allegations for defamation. Despite the fact that a parliamentary committee of inquiry had deemed the allegations of informal collaboration with state security to be credible and had accused Gysi of being included in an effort to bring about the
“as-effective-as-possible suppression of the democratic opposition in the GDR [Eastern Germany]”, Gysi was able to use to the judicial system to obtain an
injunction under libel law banning former Eastern German dissident Freya Klier from repeating comments suggesting that Gysi had ‘not represented his clients but had instead spied on them and sought to control them together with his comrades’. Prestigious news-magazine Der Spiegel characterized the efforts to silence (in effect, if not necessarily intent) the debate using the judicial system as ultimately unsuccessful. But it also described the consequences of Gysi’s lawsuits for free expression at the time in no uncertain terms; “regional newspapers reacted in a scared manner, in some editors offices one preferred to think twice about whether one should report about Gysi and the Stasi- and then didn’t”.

Even something as removed from day-to-day politics as historical research has come under attack under the absurd Article 188. In 2000, a Bavarian court issued an injunction banning a newspaper from making claims in a local history article that a deceased World-War-Two-era local figure had been “War-criminal who was sentenced to death”. Reviewing the historical record, the court said that the deceased man had only been an “alleged war criminal”, not a “Nazi-criminal”, and that the death-sentence-carrying war crime conviction had been “only by Czech Courts in 1945”, whichaccording to the court hadn’t settled the matter of whether he was actually one. Penalties for contravention of the injunction were set at up to one month imprisonment or a not insubstantial 100000 German Marks fine. Other historical researchers have also found their work scrutinized by Article 188 complaints submitted by angry relatives of the long-dead, although usually with less success. In 2013, a Northern German court ruled that a historical case study calling the notorious First World War German colonial military commander Lettow-Vorbeck a war criminal in regards to his activities in South-West Africa at the time did not constitute a crime, because the historical study was constitutionally protected pursuant to freedom of science. Similarly, in the 1960s, a German appeals court over-turned a five month prison sentence
that had been imposed under Article 188 on a journalist who had written a historical piece questioning whether Nazi diplomat Ernst Von Rath, famously assassinated in 1938 in Paris, had been engaged in homosexual activities and had been killed in a sexual dispute. Such pointless legal action not only wastes court time, but is also a clear deterrent to research on important historical issues. If you are on a tight budget or timeline, and receive a legal threat from an incensed relative, wouldn’t it seem much easier to avoid all the legal time-wasting by leaving out that sentence about the war-crimes committed by their deceased ancestor?

Of course, when vague laws exist, is there nothing to stop them from being used counter to the way lawmakers intended. Modern German Neo-Nazis have developed considerable expertise in attempting to use anti-insult laws and libel complaints to hassle journalists and anti-racist campaigners, href="">a strategy they themselves called “penetrant legalism”. EvenHitler, prior to taking power in 1933, himself filed a vexatious libel lawsuit in 1930 against Karl Rabe,
the editor of the pro-democratic Munich Telegram newspaper. Rabe had been responsible for an article suggesting that Hitler had attempted to bully and threaten Crown-Prince Rupert of Bavaria in case he publically expressed criticism of a ballot measure Hitler has advocating for. Yes, that’s correct, a soon-to-be dictator commanding an army of thuggish, Sturm-Abteilung death squads had his thin skin offended by an editor who documented how he had acted like school-ground bully towards an ageing aristocrat. And the very democratic, judicial institutions he was trying to destroy humoured him by allowing him to bring his vexatious and censorious suit.

Meanwhile, Germany’s cultural and political elites love pointing the finger at supposed violations of free speech and press freedom elsewhere in the world, particularly in neighboring Poland. There, their criticisms of the current Law & Justice Party government were perceived to be so out-of-touch that they attracted furious condemnation even from one of the country’s main opposition leaders, the maverick Pawel Kukiz. He urged them to look “more closely at democracy in your own country”. Perhaps they should take his wise words to heart and start by throwing out Germany’s useless, repressive anti-insult laws. All of them.

UC Davis Wondered If $175,000 Would Make The Internet Go Away. Conclusion: No.

In November 2011, two campus police officers pepper-sprayed protesters at University of California, Davis.


If you'd like to learn about the chain of incompetence that led to this, read the independent report. For instance:

Lt. Pike is also responsible for the specific pepper spray weapon he used, the MK-9, and the manner in which he used it. The MK-9 is not an authorized weapon under UCDPD guidelines. UCDPD officers were not trained in how to use it correctly. And Lt. Pike did not use it correctly. The MK-9 is a higher pressure type of pepper spray than what officers normally carry on their utility belts (MK-4). It is designed for crowd dispersal rather than field applications and “[t]he recommended minimum distance for . . . application of the MK-9 is six feet.” Lt. Pike appeared to be spraying protesters at a much closer distance than 6 feet.

As one of its responses, UC Davis spent $175,000. Was it on use-of-force training for campus police? Crisis management training for administrators? More classes on constitutional rights for students? Nope. They spent it on an "online branding campaign" to "expedite the eradication of references to the pepper spray incident in search results" about UC Davis.

Outsource your marketing, outsource your ethics and your reputation. Had the leadership of UC Davis consulted with, say, one of its students, they would have learned that this was an extraordinarily foolish plan. But marketeers, who have an incentive to make money (though rarely as much as $175,000), can't be counted on to tell you about the Streisand Effect or about the limited usefulness of SEO woo or about what happens when a plan like this gets revealed. Marketeers market. So I doubt that Nevins & Associates or "IDMLOCO" advised their client that the natural and probable consequence of spending $175,000 on this was that sooner or later it would become public and a nearly-forgotten incident would blow up and it would dominate UC Davis search results and make them look sordid and ridiculous. Maybe they have a strategy to deal with it, for another fee.

Do you wonder why college costs escalate? One reason, certainly, is that there is no consequence for administrative idiocy or incompetence.

UC Davis, next time you want to waste money to make your reputation worse, I can beat $175,000.

Rape and Civility

Yesterday over at The Watch, Radley Balko reported on a story from Aiken, South Carolina, where police pulled a car over for having a temporary tag (something that's not illegal), abused the inhabitants, called the African-American adult male passenger "boy", and on the pretense of searching for drugs digitally probed his anus on the side of the road:

The anal probe happens out of direct view of the camera, but the audio leaves little doubt about what’s happening. Pontoon at one point says that one of the officers is grabbing his hemorrhoids. Medlin appears to reply, “I’ve had hemorrhoids, and they ain’t that hard.” At about 12:47:15 in the video, the audio actually suggests that two officers may have inserted fingers into Pontoon’s rectum, as one asks, “What are you talking about, right here?” The other replies, “Right straight up in there.”

Pontoon then again tells the officers that they’re pushing on a hemorrhoid. One officer responds, “If that’s a hemorrhoid, that’s a hemorrhoid, all right? But that don’t feel like no hemorrhoid to me.”

As I said when a man in New Mexico was violated at even greater length and with shameful medical assistance, inserting your fingers into somebody's anus against their will is rape. It doesn't stop being rape because the cops did it; it's just rape under color of law.

The Aiken Standard — the local newspaper of Aiken, South Carolina — was snide and defensive about Radley's work and minimized the events and their significance in an unsigned editorial. The Standard noted that the lawsuit has not yet been adjudicated, the claims have not been tested, and we're finding out what's going on. It praised the police department for "transparency" and closed with this paen to civic discourse:

Police officers face danger every day. They’re not perfect, but they lay their lives on the line every day so we can be safe.

As stated by Council member Lessie Price in a meeting with the Aiken Standard, shortly after the story broke, “This is a town where we can talk to each other, we can come in a room, have a conversation, you may not like what’s being said, but we can come together and talk to each other.”

How genteel.

The Standard does not appear to dispute that the Aiken police probed the man's anus on the side of the road looking for drugs. The dispute, rather, is what cause they had to do so, and whether they did so in a way that is notably less cordial than forcibly probing someone's anus on the side of the road would be as a matter of course.

This leads me to ask — is the civility the Standard celebrates helpful?

Civility is a good thing, even when discussing controversial subjects. It's a goal I often fall short of, but a goal nonetheless. Civility even on heated subjects is a good thing because of humility: we may be wrong about the things we are angriest about. It's a good thing because of proportionality: our sense of what is outrageous enough to provoke incivility may be idiosyncratic. It's a good thing because of perspective: the world is full of people ready to be uncivil to us about things we have every damn right to do, and if we encourage incivility we'll get what we ask for. It's a good thing because of human frailty: too often incivility is about the self-image of the uncivil, not about justice or persuasion. Put another way, while I vigorously defend the right to rant about woodchippers, I recognize that invoking them is more often the self-indulgent wankery of poseurs than not.

But civility can take pernicious forms. It's pernicious if we shy from calling out outrageous and despicable conduct. It's pernicious when we give armed government officials the benefit of the doubt because the culture tells us they're brave and nice. It's pernicious when we don't demand public explanations for conduct because the conduct is horrifying and unseemly. Most of all, it's pernicious when we decide that civility is substantive rather than procedural. Civility weighs against gratuitous shouting, insults, and threats. But civility does not require that we let the government beg the question. It does not require that we accept, as true, the premises about government power that have been served to us since birth.

Civility does not require that I presume cops had a reason to do things. Civility does not require me to be automatically skeptical of accusations against them. Civility does not require me to refrain from calling forcible anal intrusion a rape. Civility does not require me to refrain from saying that a white cop who calls a black passenger "boy" is a bigot. Most of all, civility does not require me to accept the devil's bargain proffered by the state and the press: that if the police can conjure up evidence that they had some rational grounds to believe this man did have drugs shoved inside of him, that would justify raping him on the side of the road. Civility does not require me to accept that a law that would permit the police to act this way — even if everything they say is true — is right or moral or just or minimally tolerable. Civility does not require me to accept the proposition that the amount of drugs that would fit in a man's rectum can justify the state forcibly intruding there to look for it. I decline.

I don't care if the Aiken police had twelve eyewitnesses and a video tape showing this man shoving drugs up his ass. If they bent him over on the side of their road and shoved their fingers into him looking for it, they're rapists. I don't care if the law says they can do it, it's wrong. And I don't care how many rape apologists like the Aiken Standard tut and shush and shrug. A society that says this is okay — a society that says it's acceptable for armed agents of the government to rape a man on the side of the road in search of a golf-ball sized bag of drugs — deserves scorn.

Pardon the incivility.

Lawsplainer: What Does That Controversial Mississippi Law Do, Anyway?

I have a question.

Of course you do.

Don't be rude. You've abandoned this site for weeks.  What's your issue?

I was in trial.  I apologize for not entertaining you.  What's your question?

That new law in Mississippi.  The one people call a "religious liberty" bill, either with our without scare quotes.  Does it really allow people in Mississippi to refuse to serve gay people who come into their stores?

Yes with an if, or no with a but.

That's not helpful.  So does it just let people refuse to serve customers if something about the customers offends their religious sensibilities?  

Only if their religious sensibilities arise from three narrowly defined beliefs identified in the bill.

Wait.  What?

This bill doesn't protect all religious beliefs from government intrusion.  It just protects three that the legislators like.

Which ones?

Read the bill, would you?  It's right here. Or here, if you want a pdf.

SECTION 2. The sincerely held religious beliefs or moral convictions protected by this act are the belief or conviction that:
(a) Marriage is or should be recognized as the union of one man and one woman;
(b) Sexual relations are properly reserved to such a marriage; and
(c) Male (man) or female (woman) refer to an individual's immutable biological sex as objectively determined by anatomy and genetics at time of birth.

Does the bible say something about immutable biological sex?

It may. I drifted off during Leviticus to be honest.

Wait a minute. Can the government decide to give extra protection to some religious beliefs but not others? Does that violate the Establishment Clause or the Equal Protection Clause?

As we speak, lawyers are thinking about how to argue that.

That's a copout answer.

I'm waiting for smarter people to answer it first.

So now anyone in Mississippi can refuse to serve a customer on any of those bases?

No. It's narrower than that.


Well, first of all, the bill cannot and does not purport to change federal law, so to the extent something is prohibited by federal law, it's not protected from federal intervention by this bill. The bill only protects people in Mississippi from intervention by the state of Mississippi or its cities.

Second, the bill's protections are limited to a fairly narrow range of people and activities.

Like what?

Well, Section 3(1) prohibits the state government from taking "discriminatory action" against religious organizations for doing certain things:

28 (a) Solemnizes or declines to solemnize any marriage,
29 or provides or declines to provide services, accommodations,
30 facilities, goods or privileges for a purpose related to the
31 solemnization, formation, celebration or recognition of any
32 marriage, based upon or in a manner consistent with a sincerely
33 held religious belief or moral conviction described in Section 2
34 of this act;
35 (b) Makes any employment-related decision including,
36 but not limited to, the decision whether or not to hire, terminate
37 or discipline an individual whose conduct or religious beliefs are
38 inconsistent with those of the religious organization, based upon
39 or in a manner consistent with a sincerely held religious belief
40 or moral conviction described in Section 2 of this act; or
41 (c) Makes any decision concerning the sale, rental,
42 occupancy of, or terms and conditions of occupying a dwelling or
43 other housing under its control, based upon or in a manner
44 consistent with a sincerely held religious belief or moral
45 conviction described in Section 2 of this act.

Wait. Was Mississippi trying to force priests to conduct gay weddings before?

No. Of course not. That would violate the First Amendment.

But people say that the Supreme Court decides all sorts of crazy things and that it COULD happen.

And monkeys might fly out of my butt. But there's no plausible indication that even an activist Supreme Court will apply anti-discrimination laws to religious sacraments. To the contrary, in 2012 the Supreme Court unanimously found that a "ministerial exception" prohibited a former church employee from bringing a discrimination suit against the church.

So why was the "Mississippi can't force you to perform a gay wedding" clause necessary?

To convey that gays are mean and scary, I imagine.

Is any of Section 3(1) really necessary?

Well, Section 3(1)(b) allows religious organizations to discriminate in hiring based on the three protected beliefs. That's probably a bit broader than First Amendment protections, which would only protect that choice for "ministerial" employees. So, basically, the First Amendment wouldn't allow Mississippi to fine a church for refusing to hire a gay pastor, but Mississippi could constitutionally fine a church for refusing to hire a gay custodian or receptionist. I mean, if Mississippi were ever inclined to do such a thing, which I doubt.

Also, churches that rent out their facilities to the general public could plausibly be penalized even under the First Amendment if they do so in a discriminatory manner — if they offer them to everyone except gays, for instance. So before this bill Mississippi could have punished that.

Was there a danger Mississippi was going to do that?

Of course not. But I guess maybe a town or two in Mississippi might. A lot of these state-level "religious liberty" statutes are a struggle between more conservative state-level power and more liberal local power — state legislators quashing local ordinances.

I thought conservatives liked local control?

I'm the snide one. Step back.

Okay. What else does the bill do?

Section 3(2) prohibits the Mississippi state government from taking action against religious organizations that facilitate foster care or adoption only according to the three specified beliefs. Section 3(3) says the state can't punish a foster or adoptive parent for teaching the specified religious beliefs. Section 3(4) says Mississippi can't punish people for not participating in the provision of treatments or counseling that contradict the specified beliefs.

So Mississippi is saying that the state can't punish you for refusing to help a gay couple conceive through IVF or surrogacy, for instance?

Right. In addition, Section 3(5) lets you refuse to provide a wide range of services in connection with a marriage if that marriage is against one of the specified religious beliefs:

73The state government shall not take any discriminatory
74 action against a person wholly or partially on the basis that the
75 person has provided or declined to provide the following services,
76 accommodations, facilities, goods, or privileges for a purpose
77 related to the solemnization, formation, celebration, or
78 recognition of any marriage, based upon or in a manner consistent
79 with a sincerely held religious belief or moral conviction
80 described in Section 2 of this act:
81 (a) Photography, poetry, videography, disc-jockey
82 services, wedding planning, printing, publishing or similar
83 marriage-related goods or services; or
84 (b) Floral arrangements, dress making, cake or pastry
85 artistry, assembly-hall or other wedding-venue rentals, limousine
86 or other car-service rentals, jewelry sales and services, or
87 similar marriage-related services, accommodations, facilities or
88 goods.

So. If I read that right, I can't refuse to let a gay person stay at my hotel in general, or refuse to sell a lesbian a cake in general, but I can refuse to let gays honeymoon at my hotel or sell a wedding cake for a lesbian wedding?

Right, that's what the statute purports to protect.

What if I don't want to provide a cake to a wedding reception because it's a divorced Catholic getting remarried, or because it's an interfaith wedding, and those things violate my religious beliefs?

This bill doesn't protect you, then. The Mississippi only singled out three preferred religious beliefs for protection.

Doesn't that violate the . . . .


FINE. Anything else in the bill?

Yes. Section 3(6) lets people establish gender-restricted restrooms. Section 3(7) lets public employees express the specified religious beliefs if it follows the employer's rules for expression in general or is outside of work.

Wait a minute. Don't public employees already have that right?

Why yes! I'm glad you asked. [talks for three hours.] In short, for speech on matters of public concern, a state employer can discipline public employees for speech if a balancing test finds that the employer's interest in an "orderly and efficient workplace" outweighs the employee's speech rights. Mississippi's bill arguably gives public employees broader free speech rights by allowing them to speak on these specified subjects without engaging in a balancing test about whether any disruptive effects outweigh the employee's speech rights.

So the state of Mississippi chose three specific religious doctrines, and announced a special right for public employees to articulate those specific doctrines that is broader than the right to articulate other religious doctrines and ideas?


What the fucking fuck?

Forget it Jake. It's Mississippi.

Anything else? Please say no.

Section 3(8) lets government employees opt out of issuing marriage licenses or solemnizing marriages if it offends their religious beliefs. Sections 5 and 6 lets aggrieved people sue for injunctive relief if they think that Mississippi or its localities are violating this bill.

How would you summarize this?

Mississippi's bill does not "allow anyone to discriminate against anyone," as it's been inaccurately described in the media. For the most part it only says that, if Mississippi or its cities ever had any laws protecting gays from discrimination, religious organizations and wedding vendors in Mississippi wouldn't have to follow them.

However, the spectacle of a state law that chooses very specific religious doctrines and elevates them above other doctrines and beliefs is very disturbing. As I read it, in Mississippi, a public employee could be fired for saying "discriminating against gay marriage is a sin against God, who wants us to love one another," if the disruptive effect of saying that outweighed the employee's speech. But the same public employee could not be fired for saying "gay marriage is a sin against God," even if the same balancing test showed that its disruptive impact outweighed the employee's speech rights. That's just freakish. It's not the rule of law.