June 22, 2004
Contempt Of Truth And The Canard Of Communism
Weird Dispatches From The Bill Sizemore Front
In the comments to a previous item, a reader accused us of "badmouthing" weblogs because we said we didn't normally post items that did nothing more than point to other weblog items. Of course, the item he commented upon was an item in which we were making a point to link readers to a pair of items on other weblogs, so this reader did little but demonstrate a willingness to distort in order to attack.
At the very least in the name of irony, we feel we must address a weblog item by that self-same reader, since it contains a number of further attacks upon us, as well as further hyperbolic distortions of the Bill Sizemore matter -- specifically, the matter of Sizemore's mailing list, which he was ordered to surrender after a judge found him in contempt of court.
If this B!x guy's take on the subject is OK then he might one day find himself on the receiving end of an unhappy politician and then wonder why he has to discourage himself of his list of financial supporters and have to forever turn over future donations. It is called a shut up order. Shut Up! As in do not speak. As in a free speech violation.
This of course offers version of events which does not quite reflect the truth of what the court instructed Sizemore to do after finding him in contempt of court. Sizemore is not being told to refrain from using his mailing list because he found himself on the "receiving end of an unhappy politician," which is what the author implies with the above b!X-related hypothetical parallel.
Rather, the court instructed Sizemore to turn over all the assets which Sizemore improperly transferred from one organization to another after the court ordered him to use those assets to pay damages to the two unions which sued him. Instead of paying those damages, Sizemore simply moved those assets to his new organization and proceeded to make us of them, all while claiming he didn't have any assets he could use to pay the required damages.
That situation is in fact not at all parallel to the hypothetical presented in the above quote from the weblog under consideration here. Sizemore isn't under some sort of bizarre political persecution, as he contends. He broke the law and ever since he was caught doing so, he's tried everything he can do to maneuver himself out of having to be responsible for doing so.
So we've dispensed with the hypothetical parallel, but let's look at the underlying premise it pitches, which is that the order to stop utilizing the mailing list is a violation of Sizemore's free speech rights.
Like it or not, mailing lists are items of value -- why else would there be so much "sturm und drang" over commercial and political privacy policies and whether or not they permit the collecting individual or organization to sell accumulated personal and contact data to third parties? As a thing of value, it counts as an asset. As an asset, it was impermissible under the court's ruling for Sizemore to transfer that mailing list from one orgnaization to another. Period.
And since he used that asset to generate further assets -- around $100,000 in contributions to his new organization -- he was instructed to turn over those newly-acquired assets as well. Call it a kind of new version of the "fruit of the poison tree" concept used in a new context. If it was illegal for Sizemore to transfer the list (an asset) from an old organization to a new organization, then it was illegal for him to actively use it for that new organization. This isn't about free speech, it's about dodging a court's lawful instructions regarding property.
But now let's return to the name-calling mischaracterizations of yours truly:
To be an Anti-Communist is a hate crime to B!x. Speak your mind. Cheer the pea brains. Tax the public to pay for pet projects, or even to pay for the sexual delights of folks who consider the notion that sex is for making babies is too old fashioned.
First of all, although this is somewhat of a tangent, we don't believe in hate crimes. To punish someone with penalties in addition to those imposed for a crime based upon the thoughts which prompted the crime is anathema to us.
Second of all, notice how this amounts to little more than political character assassination, by dismissing the idea that government is to be utilized to "promote the general welfare" as actually being Communist.
It's possible here that the author might toss about some dictionary definition of "communist" and deny that the above is some sort of codeword-laden smear. But we trust that readers here are smart enough to know that an inherent dynamic of such smears is a kind of "plausable deniability" that intelligent observers always know is just a smokescreen.
Third of all, while we make no secret of the fact that he intensely dislike the efforts of Sizemore and others of his political ilk to disassemble many of the structures of a civil society in which people attempt to use government to be responsible for one another, and we do consider many of their positions to be hateful, we certainly don't view them as crimes of any sort.
But what we have in this case is an actual crime. And, yes, when someone who we believe is a destructive force to the general welfare commits a crime, we allow ourselves a bout of triumphant glee. Not because we want them to be persecuted (as Sizemore claims to be), but because we adore it when our political opponents manage to hang themselves.
Fourth of all, we won't even bother to address the odd little jab against homosexuals in the tail end of the above quote. We suppose that the "relevant" mistruths and name-calling weren't enough for the author of the weblog in question, so he felt the need to throw in a couple of extras for the Hell of it.
Finally, as this item plainly demonstrates, remember that we never said that we never post items expressly pointing to other weblogs (nor did we "badmouth" them), but rather that we "don't usually" do so, unless it's called for. We thank this particular weblog author for providing us with ample reason to do so.
Comments (14)
Bob R. on 22 Jun 2004
B!x - you went off on a tangent but touched on a good topic - any chance of expounding more upon it in another post?
You wrote:
"First of all, although this is somewhat of a tangent, we don't believe in hate crimes. To punish someone with penalties in addition to those imposed for a crime based upon the thoughts which prompted the crime is anathema to us."
I offer a counter-argument:
To impose additional penalties based on the thoughts which prompted the crime is sometimes called "motive".
We distinguish between 1st and 2nd degree murder often by motive. In some cases, motive represents the difference between manslaughter and murder.
Hate crimes statutes similarly differentiate such things as vandalism vs. racially-based intimidation, assault vs. anti-semetic intimidation, etc.
It's all about the context of the action, rather than just the action itself.
Hate crimes, in general, are crimes designed to inflict emotional damage or intimidation on a specific group, beyond the damage which is done to a specific individual or property owner.
Another hypothetical example: If someone spray paints my home, that is vandalism/graffiti. If they spray paint "Die Fags" (hasn't happened), it could be viewed as an act of intimidation against gays/lesbians in the community.
- Bob Richardson
js on 22 Jun 2004
Right on. Money quote, deserving of a second read:
"...when someone who we believe is a destructive force to the general welfare commits a crime, we allow ourselves a bout of triumphant glee. Not because we want them to be persecuted (as Sizemore claims to be), but because we adore it when our political opponents manage to hang themselves."
no one in particular on 22 Jun 2004
I was on a mailing list once arguing (like b!X) that "hate crime" seems a little thought-policey to me. (Not to mention that hurting someone because you hate them seems a lot less scary to me than hurting someone because you enjoy hurting people.)
Anyway, someone posted this reply, which I thought was funny enough to save and pass along.
--
Wait, I've got it. Instead of trying to stop the hatred that causes people to commit acts of terror, why not start with the end users and work backwards? The entire problem of terrorism could be solved if we had stiffer penalties for terror itself. Probation for mild unease, six months for nervousness, three to six years for actual fear, a mandatory ten year sentence for for being terrified and life without parole for blind panic. Fuck going after the producers of terror. We need to make the consumption of terror less palatable. If there's no market, the terrorists have to find a new product, like embarrassment or something. We could tear the terrorists a new asshole with this legislation. No more cross burnings, no more stock market freak outs, no more flying monkeys, we might even be able to eliminate uncomfortable silences at the family dinner
table-- it would be terrific.
The One True b!X on 22 Jun 2004
Another hypothetical example: If someone spray paints my home, that is vandalism/graffiti. If they spray paint "Die Fags" (hasn't happened), it could be viewed as an act of intimidation against gays/lesbians in the community.
We have laws against threats. We don't need additional laws which create specific classes of threats based upon the motive of hatred.
ron on 22 Jun 2004
Bob --
Criminal intent must be linked to a criminal act to obtain a conviction. Even Former Pres. Reagan understood this in relation to guy who shot him. The criminal intent does not perfectly overlap with motive. Motive, perhaps best illustrated in life insurance or fire insurance payoffs, is more factual and less subjective in the context of proving a crime. The motive, in and of itself, proves nothing absent the criminal act. At the cusp are utterances of fighting words, as in the N-word, and depend upon the subjective context. Hate crimes focus on the victim, which does not make sense, and allows society to ponder differentiating, e.g., rape in the context of marriage, or non-virgin versus virgin, prostitute versus non-prostitute.
B!x --
In Meyer v. Grant, 486 US 414 (1988), the court found a core free speech violation in a state’s prohibition on paying signature gatherer’s. The state of Oregon, today, is trying to enforce an administrative rule pertaining to payment for signatures. They are doing so without the existence, or assertion, of fraud. (As distinguished from the Sizemore case.) The civil penalty, and perhaps subsequent contempt order for refusal to pay, must be linked to the act of fraud otherwise it is just an excess exertion of state power to restrict people’s choices for seeking redress. Your weblog, or another’s initiative petition, are not different in kind from the free press rights accorded to The Oregonian. Each is about influencing public policy. Yet The Oregonian gets a blanket exception in the campaign finance laws so long as they do not directly obtain signatures, or directly link advertising money to their commentary, -- they remain uniquely free to speak pro or con about anything under the sun. The parallelism, if one exists, is that weblogs, print media, and initiative petitions and their chiefs, have more in common than they have differences. You focused on their differences rather than on the unifying principal of free speech, particularly protection of disagreeable speech.
Lists --
The limit to government efforts to obtain lists was sorely tested in the 1950’s and 1960’s. The ultimate conclusion is that the free association rights include anonymous associations. The NAACP, e.g., need not divulge the list of financial supporters when pursuing legal action. Bill Sizemore’s lists, if he had refused all tax deductible donations, would be wholly untouchable, by any device of the government or the OEA. It is touchable solely because of the tax deduction thing, which he and all other initiative sponsors should reject so as to more effectively tell the Secretary of State (enforcing an OEA supported initiative) to go jump in a lake. It is true, in the commercial context, that a customer list can have commercial value, but I see no commercial value of Sizemore’s list to the OEA other than to destroy it, to identify whom to attack next, or to simply prohibit Sizemore from using a copy of the list as if it were of commercial value to the OEA as piece of property. The right to exclude others from the beneficial use of property here has no purpose other than to restrict Bill Sizemore’s free association rights.
The solicitation of funds was found to be a species of protected communications in NAACP v. Button, 371 US 415 (1963). Bill Sizemore’s list, specifically for solicitation of funds, even prospectively, in direct conflict with the OEA’s claimed ownership of those lists and in defiance of the judge’s order, is nonetheless totally lawful. The judge’s demands to turn over or stop using the lists are about as ridiculous as if the judge had demanded that Bill stand naked and do 100 jumping jacks under the threat of a contempt for failure to comply. Who would look more foolish?
The Multiplier Effect --
Why should the OEA’s costs for speech be relevant to the damages for Bill Sizemore’s speech anyway? The classic remedy for disagreeable speech is more speech. So what if to speak to a wider audience costs money. Should a richer and bigger speaker thus be able to wield a disproportionately larger penalty against their smaller adversary. This is like the hate crime issue above in that the victim’s subjective harm is considered relevant rather than just the act itself. The multiplier effect here is via the RICO civil liability that is dependant upon acts that are considered criminal as a prerequisite to obtaining a civil judgment. The state is not applying a uniform punishment or sanction but is allowing that sanction to scale upwards in intensity based upon the party claiming harm. On the cusp it looks like the Wild Wild West where one had to pay the sheriff before he would take any action. Money talks, and Bill Sizemore is the underdog here against the OEA. In the political context it is clear that the OEA should have been confined to speaking as loudly as they wished. Their speaking costs should not have played any role whatsoever in the determination of the damages (notwithstanding statutory provisions giving PAC’s unique rights of action against other PAC’s, while leaving The Oregonian untouchable).
I think that The Oregonian lied outright on several recent political issues yet I did not have a PAC to obtain a special right of action, nor would that have elevated my claim against them, nor would my speaking costs ever be able to approach those of the OEA or The Oregonian. Am I less worthy of seeking redress of grievances in such a situation? Should I be able to obtain a court order to tell The Oregonian to shut up by prohibiting them from selling advertising to prior customers? Would it make any difference if the State of Oregon made it a criminal offense for the free press to lie, thus paving the way for a RICO action in like manner to the initiative process as applied to Bill Sizemore?
This is a debate worthy of further discussion.
Bob R. on 22 Jun 2004
Ron Wrote:
"Criminal intent must be linked to a criminal act to obtain a conviction. Even Former Pres. Reagan understood this in relation to guy who shot him. The criminal intent does not perfectly overlap with motive. Motive, perhaps best illustrated in life insurance or fire insurance payoffs, is more factual and less subjective in the context of proving a crime. The motive, in and of itself, proves nothing absent the criminal act. At the cusp are utterances of fighting words, as in the N-word, and depend upon the subjective context. Hate crimes focus on the victim, which does not make sense, and allows society to ponder differentiating, e.g., rape in the context of marriage, or non-virgin versus virgin, prostitute versus non-prostitute."
I do not believe that hate crimes laws focus on the victim. Rather, they focus on the nature and intent of the act.
It does not matter that I am gay (in my previous example), nor does it matter if a victim is jewish. A white, straight guy can be a victim of an anti-gay hate crime, if the perpetrator perceived the victim as gay and intended to intimidate the gay community.
(And, before anyone goes down that road, hate crimes laws that refer to "sexual orientation" _DO_ include straight people among that class.)
It is not a focus on the victim, but rather a focus on what the perpetrator intends, says, and does to the victim.
And, a criminal act must be performed in order for there to be a hate crime. There are no laws solely against "hate speech".
(Although a number of schools and institutions have speech codes which, on the whole, I am opposed to.)
- Bob
myrln on 22 Jun 2004
Back to the original: the cold wind blowing through it would seem to be the ghost of old Joe McCarthy.
wendy on 23 Jun 2004
The difficulty with hate crimes is not that they impose additional penalties based on "motive", but rather is that the definition of the crime itself includes a specific motivation. It would be far less troubling if courts were to impose sentences based upon a wide range of factors and human experiences, including racial or other motivations.
But, by including motivation in the definition of the crime itself, the law denies the complexities of the human heart. People's acts are so often based on multiple and shifting motives that it is often impossible to discern a single reason for a particular act.
Elinor Langer's book, Hundred Little Hitlers is a wonderful examination of how a racially charged situation can turn into murder and poses some difficult questions about just what motivated the skinheads who murdered Mulgeta Seraw.
(Sorry about continuing the tangent)
LC on 23 Jun 2004
B!x,
Considering the chosen quote under your masthead:
"Good citizens are the riches of a city."
it is easy to why some might view your underlying philosophy as one that could support communism (if such a thing could work).
The quote suggests that people (citizens) are the property (riches) of a collective (city).
The One True b!X on 23 Jun 2004
That's a bit of a stretch.
tomhiggins on 23 Jun 2004
Hate Crime
Thought Crime
Yea folks, lets pretend we mean "well" as we call for the very thing we wear tshirts to stop.
More BS .. Less Filling
Wait...its both...
Meanwhile this thread was sparked by a nimrod who can nto read b!x well enough to gain understanding but who can spout case law? I smell TROLL and man it aint a pleasant odor.
-tomh
GC on 23 Jun 2004
LC
Your insights are crystal. Just as your given name here is LC (Least Common (denominator) so to can we see your decoding of Bix's hidden agenda. "Citizen" Bix seems bent on slapping the chains ont he lumpen masses with his class based word play. Words are the shackles of the class master.. Down with Words!!
(*)-------&
The One True b!X on 23 Jun 2004
Y'all are really funny.
ron on 26 Jun 2004
The "Joe McCarthy" point, if there is one, is that there has been a complete role reversal. Who has power and who is being vilified?
I hope everyone has not run out of steam on this thread.