Update no.431

Update from the Heartland

No.431

15.3.10 – 21.3.10

Blog version: http://heartlandupdate.blogspot.com/

To all,
[Letter to the editor of the Wichita Eagle:]
We can always count on Fred Phelps and his spawn for public debate. The latest dose comes in Tuesday’s Wichita Eagle.
“Protected speech”
by Margie Phelps [190]
Wichita Eagle
http://www.kansas.com/2010/03/16/1227019/letters-to-the-editor-on-david.html
Dear ol’ Margie was upset with Cal Thomas’ recent column regarding the Supreme Court’s acceptance of Albert Snyder’s appeal [430].
“Court should rule against Phelps gang”
by Cal Thomas:
Wichita Eagle
http://www.kansas.com/2010/03/14/1224577/cal-thomas-court-should-rule-against.html
Last fall, the 4th Circuit Court of Appeals overturned the US$9.2M civil damages decision against the Phelps clan – Snyder v. Phelps [4CCA no. 08-1026 (2009)] [430]. Oddly and regrettably, I find myself standing with Margie in disagreement with Cal Thomas. Freedom of speech for each of us is freedom of speech for the Westboro Baptist Church homophobic fanatics; this is the price of freedom. Yet, I condemn the Phelps’ irrational, decidedly non-Christian paucity of civility and respect for the grief of families in mourning. None of us can predict how the Supreme Court will decide this case or the law. They can take a very narrow 1st Amendment ground, in which case they will affirm the 4th Circuit’s decision and possibly strike down the various laws like the Federal Respect for America's Fallen Heroes Act [PL 109-228] [234] and the Kansas Funeral Privacy Act of 2007 [§ 21-4015] [327]. The reality is, we cannot legislate civility, respect, morality or propriety. The Supreme Court could also take a far wider view of the constitutional question, if they choose to delve into a citizen’s fundamental right to privacy and more importantly how is privacy defined. Although not likely, if the Court takes the wider view, they may well indirectly affirm the funeral laws. While I defend freedom of speech for all citizens including the Phelps clan, we must not forget that beyond the rhetoric, the Westboro Baptist Church seeks to deny freedom of choice and impose their values on all citizens. At the end of the day, they must be denied by the power of public debate and rejection of their vitriol rather than laws that constrain freedom of speech.

A few years ago, the Kansas Board of Education jumped into a huge controversy when they amended the state public school curriculum to teach creationism, AKA intelligent design, along with the science of evolution. Now, we have the Texas Board of Education trying to slant history for their purposes, presumably to enhance the influence and impact of fundamentalist Christian views of American society. They have expunged the contributions of President Thomas Jefferson and specifically his letter to the Danbury Baptists – the “wall of separation between church and state” – a key pillar of American democracy and the history of this Grand Republic. It seems the Texas BoE believes ignoring historical facts and their effects on subsequent history will somehow alter the course of society. Ain’t it just so typical! A faction seeking to impose its will by ignorance rather than the force of vigorous public debate – a classically anti-democratic endeavor. Hopefully, the citizen-residents of Texas will regain control of the public school curriculum and return historic facts to their proper place in the open exchange of ideas and concepts.

Michael Arthur Newdow is an avowed atheist, an ordained minister of the Universal Life Church, and founder of an organization called the First Amendment Church of True Science (FACTS). Newdow has apparently made it his life mission to expunge any reference to the Deity as well as any symbols of respect for the Deity in American society. His latest effort made its way to the 9th Circuit Court of Appeals – Newdow v. U.S. Congress [9CCA no. 06-16344 (2010)]. Newdow claimed the national motto “In God We Trust” violated the Religious Freedom Restoration Act of 1993 [PL 103-141; 42 U.S.C. §2000bb] and the 1st Amendment’s Establishment Clause. Circuit Judge Carlos Tiburcio Bea wrote the opinion of the three-judge panel and observed, “The burdens Newdow contends are imposed by the motto rest on a single premise: the motto represents a purely religious dogma and constitutes a government endorsement of religion.” The appeals court dismissed Newdow’s appeals claims and affirmed the district court’s judgment against Newdow. Based on Newdow’s behavior and conduct, I suspect he will appeal this opinion further to the Supreme Court, which I doubt will choose to hear any further appeal.

The companion case from the 9th Circuit is Newdow v. Rio Linda Union School District -- a decision regarding the Pledge of Allegiance. The opinion is 193-pages long – not within my capacity this week. I hope to complete my reading and assessment for next week’s Update. According to the Press, the most notable element about this opinion was the dissent, which reportedly took 163-pages to present what some have said is a “blistering” counter-argument. Stay tuned.

Every once in a while, a court case comes along that strikes resonance so profound that it affects all our senses. This is one of those moments. Before we begin, I shall burden you with a short recitation that continues to strike a chord with me. From the television series The West Wing, a decade ago: “It’s not about abortion. It’s about the next 20 years. In the 20’s and 30’s, it was the role of government, 50’s and 60’s, it was civil rights, the next two decades are going to be privacy. I'm talkin’ about the Internet, talkin’ about cell phones, talkin’ about medical records, and who's gay and who's not. Moreover, in a country born on the will to be free, what could be more fundamental than this [privacy]?" -- Sam Seaborn (Rob Lowe), The West Wing, Season 1, Episode 9, “The Short List;” original airdate: 24.11.1999. I believe Sam Seaborn was spot on correct, and I do not think I am overstating the importance of resolving the question – what is a citizen’s fundamental right to privacy? Our legal system assumes prima facie that citizens are fundamentally good, peaceful, law-abiding, rational, tolerant and otherwise reasonable individuals. Criminal laws are enacted and enforced to deal with the occasional aberrant character who makes a mistake or (heaven forbid) decides to take the nefarious path of wrong-doing. Our system of laws has not adjusted to rapidly evolving technology and a broad, organized assault as we are facing in the War on Islamic Fascism. Drug black-marketers, Islamo-fascist terrorists, and such have shown themselves quite adept at using our general assumption of benevolence against us . . . very effectively, I might add. We have historically had to deal with the crooked sheriff, or malevolent prosecutor, or crazy judge. We also had to suffer the consequences of a self-proclaimed, well-intentioned, Federal law enforcement official like the late John Edgar Hoover, or a paranoid, imperial president like Richard Milhous Nixon. The instigating case came from the 11th Circuit Court of Appeals – Rehberg v. Paulk [11CCA no. 09-11897 (2010); appeal of DC MDGA Docket No. 07-00022-CV-WLS-1]. Citizen Charles Rehberg sent a series of critical facsimile messages to the management of Phoebe Putney Memorial Hospital in Dougherty County, Georgia, for reasons not specified in the court document. An unspecified member of the hospital management asked County District Attorney Kenneth Hodges for a “favor” to stop Rehberg’s annoying messages. No charges were filed. No complaint of criminal mischief was lodged. Hodges undertook a personal “investigation” to fulfill the requested favor, presumably to “scare” Rehberg into stopping his criticism of the hospital. Hodges did not engage the police, but did involve two other individuals (presumably, trusted friends, colleagues or acquaintances). Hodges prepared and issued subpoenas for Rehberg’s telephone records and eMail traffic. Hodges and his surrogate, specially appointed prosecutor Kelly Burke, three times sought grand-jury indictments against Rehberg on a variety of charges. Without taking more of your time, let it suffice to say, the case hung upon Rehberg’s claimed violation of his 4th Amendment rights against the absolute & qualified immunity of the prosecutors in the wrongful retaliatory prosecution claim. The court affirmed the immunity of the prosecutors and remanded the case back to the district court for further adjudication. Yet, my unease and concern stems not from the wrongful prosecution questions, but rather the court’s view of electronic data and a citizen’s expectation of privacy. One single sentence in the 40-page opinion brings my fear to a sharp point. Circuit Judge Frank Mays Hull (a female, I might add) observed, “Rehberg’s voluntary delivery of emails to third parties [Internet Service Providers (ISPs)] constituted a voluntary relinquishment of the right to privacy in that information;” i.e., eMail is open to any prosecutor or law enforcement official who chooses to acquire and analyze them. A myriad of conflicting reactions boiled up as I read this opinion, not least of which is the need for checks & balances. The normal process was circumvented in this instance. The available evidence strongly suggests Hodges used the instruments of States for personal, retaliatory reasons against another citizen exercising his freedom of speech. The issue of open eMail is quite concerning. Using Hull’s logic, the government could simply open any citizen’s postal mail as they choose for any reason they choose. Judge Hull confuses an ISP with any ordinary citizen rather than the U.S. Postal Service – sanctioned by the Federal government to carry the mail. Electronic mail has become more useful, utilitarian, and expansive than the conventional, traditional, postal mail. Judge Hull’s opinion reflects the stark reality that the law has such a long way to go on the journey to catch up to society. Until that day comes, We, the People, are seriously exposed and our most fundamental right to privacy threatened even further; there but for the grace of some prosecutor on a personal vendetta against another citizen, We, the People, have only happenstance to protect us. What scares me most about this opinion is what was not said.

A Blog of law professors offered their view of the 11th Circuit’s Rehberg v. Paulk opinion.
“Eleventh Circuit Decision Largely Eliminates Fourth Amendment Protection in E-Mail”
by Orin Kerr
The Volokh Conspiracy
Published: March 15, 2010; 3:11 pm
http://volokh.com/2010/03/15/eleventh-circuit-decision-largely-eliminates-fourth-amendment-protection-in-e-mail/
Oddly, they saw the ruling in the same light I did . . . far beyond the retaliatory prosecution and prosecutorial immunity conclusion that was the main focus of the court’s decision. Judge for yourself!

A final commentary note:
When we see an FBI director authorizing warrantless wiretaps of American citizens, or a president who placed himself above the law, or a county district attorney who carries out a personal, vindictive violation of a citizen’s most fundamental rights, why is any wonder at all why so many citizens are so bloody distrustful of government, and why so many citizens do not want to give government access to their medical records, or bank accounts, or telephone conversations, or electronic mail. Yet, as much as I rail against big government, I sure as hell do not want corporations outside the box either. Nonetheless, the one threat we have over corporations is taking our business elsewhere (as long as we retain intra-industry competition). The government has no competition and virtually unlimited power; so, let us keep things in perspective.

News from the economic front:
-- The Commerce Department reported the seasonally adjusted annual rate of new home and apartment construction decreased to 575,000 units (-5.9%) in February, slightly higher than the forecast 570,000 units. Homebuilders struggled against winter blizzards in the Northeast and Midwest as they tried to emerge from the worst housing slump in decades.
-- The Federal Reserve’s Open Market Committee left the Federal Funds target interest rate at the 0.00 to 0.25% range, where it has been since December 2008, as job growth and other economic indicators remained weak as the United States slowly pulls itself out of recession.
-- On Thursday, the President signed into law the Hiring Incentives to Restore Employment Act of 2010 [PL 111-147; H.R.2847; Senate: 68-29-0-3(0); House: 217-201-0-14(4)] – the so-called jobs bill. History will judge whether this US$18B worth of legislation will be successful.
-- The Labor Department reported the seasonally-adjusted Consumer Price Index (CPI) remained unchanged last month, after increasing an unrevised 0.2% in January. With energy and food items removed, the monthly CPI rose 0.1% in February, and fell by 0.1% in January.
-- The Labor Department also reported that initial unemployment claims fell by 5,000 to 457,000 for the week ending 13.March.

Comments and contributions from Update no.430:
A comment to the Blog:
“It's odd, in a way. Congressional earmarks seem to be the one issue in which neither party shows any interest in the capitalist ‘free market’ theories. They don't want anyone competing for their billions of dollars. In re the Democrats' ban on earmarks to for-profit corporations: it's nothing. A decent corporate lawyer can set up a "non-profit" in a couple of hours. It might take a few days to figure out how to abuse it, but not longer. Besides, as Republicans rightly point out, even legitimate non-profits can find ways to abuse earmarks. I'm probably as far from being a Republican as anyone who reads this, but I'll go with their ‘all or nothing’ position on earmarks.”
My response:
Re: earmarks – spot on! Earmarks have allowed Congress to spend vast amounts of money with virtually no accountability or checks & balances. Except for the rare case when the Press takes an interest, earmarks are essentially invisible to We, the People – you know, the folks who pay for it all. Watching the Republicans gorge themselves at the public trough during the first six years of “Dubs” administration, with NOT ONE veto from the Prez, expunged any remaining vestiges of respect I had for either party; they are all out-of-control, corrupt spenders. Even those who do not partake of earmarks are just as culpable; they know what is going on and they choose to condone it, say nothing, which makes them an accessory.
Yeah, I am so cynical these days regarding earmarks; I hold little hope of any substantive reform. The current Democratic move is largely symbolic, and again with my cynicism showing, intended to be pabulum for the masses . . . to dampen our clamor for blood. I’m with you . . . all earmarks must go or they get no credit. There was a day when I believed earmarks were a rapid method of funding critical programs. Today, I DO NOT CARE; the earmark process has been so irreparably abused, I advocate for slamming the door shut, locking it, barricading it, and then demolishing it forever. I would rather have a gridlocked Congress, paralyzed and unable to act, than allow another earmark for any reason. The bastards have proven they have no ethics or moral values, and certainly do not respect We, the People. For those who have benefited from and become wealthy by earmarks, shame on all of you.
I’d better stop here, or the FBI might pay me a visit.
. . . a follow-up comment:
“I suspect that the only access to reform of earmarks would be through the corporations that don't receive the money. There's nothing like being denied a chance to compete for nice profits to upset a legitimate capitalist.
“The hypocrisy of awarding unbid contracts for billions of dollars and then giving speeches about the beauty of free markets astounds me. I'm pretty cynical, but that's repellent in anyone's values that I know. I'm with you; just get rid of the whole mess. If we then must find a new way to award monies rapidly, let a group of capitalists who compete with one another work on a fair way to do that, but remain deeply skeptical and cynical about accepting anything that comes of that effort. If nothing comes of the attempt, so be it.”
. . . and my follow-up response:
Good idea on the path for earmark reform. Unfortunately, I suspect their response would be, “where’s mine,” rather than “we should be doing this.”
Hypocrisy indeed!!! I’m pretty cynical right along with you. Competition and sunlight are the tools to control costs. Unfortunately, we are a long way from that state.

My very best wishes to all. Take care of yourselves and each other.
Cheers,
Cap :-)