On GMOs and Food Labels

by Gerard Emershaw

Many die hard libertarians cringe at the very idea of mandatory food labels. The idea that government should force businesses to label food strikes these libertarians as being paternalistic at best and tyrannical at worst. These libertarians will also claim that bringing the government in here is unnecessary. If consumers want labels and insist upon them, then the free market will inevitably provide them. As it is, corporations have an incentive not to harm their customers and to provide goods and services that people want. Therefore, if customers want labels which state whether a given food product has genetically modified organisms (GMOs) among their ingredients, then the market will eventually provide it.

While there are good reasons to believe that GMOs are harmful, let us assume that GMOs are neither harmful nor beneficial. What is the harm in allowing consumers to know if there are GMOs among the ingredients in a given food product? Where is the harm in labeling it as a GMO product? If people are frightened of GMOs—whether rationally or irrationally—it is the job of the corporations that produce GMOs to educate the public as to the safety of GMOs. These mega-corporations surely have enough in their advertising budgets to provide this education.

Autonomous human beings have the right to know what is in the food that they are buying. A consumer can only make a fully informed choice about which food product to buy if he or she knows the ingredients. Selling a product without disclosing information about the ingredients disrespects the rationality of consumers and is tantamount to fraud. By not disclosing ingredients and other nutritional information, any sale of food becomes fraudulent. The consumer is not allowed to pay for food using money that may or may not be counterfeit. The consumer is in effect saying “this is legal tender” whereas without food labels, a food producer is not required to make any equivalent statement. In order to reduce the size of government and prevent the nation from becoming a total nanny state, civil suits in courts should be encouraged rather than government overregulation through agencies like the FDA. Mandating labels creates the environment where consumers can pursue redresses of grievances through tort law in civil courts. By mandating that food producing companies label their products, consumers have a legally binding promise on which they can rely. This makes it possible for only companies which cause damages to be forced to pay the cost of harm. Without labels, there is a much greater need for regulating bodies like the FDA and slews of regulations and inspectors. This passes the costs of harms to customers equally onto negligent and non-negligent companies. Therefore, a country that has mandatory food labeling laws is in a better position to ultimately have a smaller government.

Somalia: Courting Blowback in Africa

by Gerard Emershaw

On October 5,  a Navy SEAL team went ashore in Barawe, Somalia and attempted an unsuccessful raid on an the Islamic terrorist group al-Shabaab’s compound. The raid was an attempt to capture al-Shabaab commander Abdulkadir Mohamed Abdulkadir, a Kenyan national. Abdulkadir has been “linked” to deceased al-Qaeda members Fazul Abdullah Muhammed and Saleh Ali Saleh, who were involved in the 1998 bombings of US embassies in Kenya and Tanzania. While Abdulkadir was not linked to last month’s deadly terrorist attack on the Nairobi shopping mall, it is claimed that he was planning similar attacks including attacks on Kenya's parliament building, the United Nations office in Nairobi, and an Ethiopian restaurant patronized by Somali government officials.

While a commando raid is far less likely to produce collateral damage than are drone attacks, this action is still potentially problematic. The question is whether the United States has any legal interest in capturing Abdulkadir. The attacks that he was allegedly planning had nothing to do with the United States. The Kenyan government and the United Nations should have dealt with Abdulkadir. While Abdulkadir has been linked to dead al-Qaeda terrorists and while al-Shabaab is closely associated with al-Qaeda, it is unclear how any of this is enough to make the Kenyan national a viable United States target. The shopping mall massacre in Nairobi is also no legal concern of the United States. The attack itself was blowback for Kenyan military actions against al-Shabaab.

By continuing in this dubious role of policeman of the world, the United States risks courting similar blowback. Al-Shabaab had not been targeting the United States, but now there is every reason to believe that it will. The first area of potential blowback created is animosity among elements of the Somali government—such as it is. While Somali leadership claimed to have approved the raid, there were voices of dissent. Parliament member Dahir Amin said:

It was unfortunate that US special forces entered into Somali territory. This violates the diplomatic protection which every nation in the world has. No country would agree to foreign forces entering its soil without known permission. I am ashamed that our prime minister speaks about the attack 48 hours later.

The Somali government is a strange paradox. It is at once both tyrannical and nearly non-existent. In essence, Somalia is a failed state with just enough government to brutalize the people but not enough to protect the people. Actions such as the Navy SEAL raid on the al-Shabaab compound make it more likely that blowback will be produced which will further destabilize the country and make it even less possible for a functional government to evolve. The modern history of Somalia has been that of cruel secular warlords fighting against cruel Islamic fundamentalist warlords, and any military intervention on the part of the United States is likely to make a chaotic situation even worse.

Even more dangerous is courting blowback from terrorist groups in Somalia such as al-Shabaab. Al-Shabaab controlled most of southern Somalia in 2006 but was ousted from power by combined Somali and Ethiopian government forces in 2007. Later, in 2012, the Kenyan government attacked al-Shabaab in retaliation for kidnappings of tourists and aid workers in Kenya. The Kenyan troops forced al-Shabaab fighters from their stronghold in the Somali port city of Kismayo. It was this crushing defeat which eventually caused al-Shabaab to carry out the deadly terrorist attack at the shopping mall in Nairobi.

Neither Somalia nor Kenya are strategically important to the United States. Somalia is a failed state, and the most recent American attempt at humanitarian nation building led to the infamous Battle of Mogadishu in 1993 where 18 American soldiers were killed and another 73 were wounded in heavy fighting against Somali militiamen loyal to warlord Mohamed Farrah Aidid after two Blackhawk helicopters were shot down.

Minneapolis has a large Somali community. While this community—like any ethnic community within the United States—is peaceful and law abiding, al-Shabaab has recruited fighters from within that community. In a Twitter message, al-Shabaab claimed that three of the nine gunmen involved in the Nairobi attack were Americans. Al-Shabaab would be able to use the Somali Diaspora in Minnesota to camouflage any potential attack in the United States.

The United States simply has no reason to engage al-Shabaab in Somalia. While al-Shabaab is affiliated with al-Qaeda, so are the Libyan rebels that the United States aided with air support in 2011 and so are the Syrian rebels that the United States is presently arming. The United States has already created enough dangerous enemies in the Middle East and North Africa without going out of its way to create yet another in Somalia.

Obama and Redistribution

by Gerard Emershaw

It has become a meme, and a rather annoying meme at that. President Obama is a socialist. President Obama is a Marxist. President Obama favors redistribution of wealth. The first two of these claims are incorrect. The third is correct, but the redistribution of wealth is not what the Rush Limbaughs, Ann Coulters, and Glenn Becks of the world believe.

If President Obama is a socialist and has been redistributing wealth from the rich to the poor in some sort of Marxist fashion, one would expect empirical data to verify this. However, the data tells just the opposite story. For example, the number of Americans living in poverty has grown to over 50 million under Obama. The number of homeless public school students has risen to over 1 million. Median household income in the United States has fallen for four years in a row. Over 15% of Americans are considered “food insecure.” Such a drop in income obviously affects poorest Americans disproportionately. If President Obama is a Marxist and has been redistributing wealth from the rich to the poor, then why are the poor getting poorer in the United States?

And why are the rich getting richer? The wealthiest 400 Americans have the same combined wealth as the bottom half of the American population. The top 1% owns 40% of the wealth and earns 19% of the income. Of nations in the industrialized world, the United States ranks near the bottom on income equality. Nations which compare with the United States in terms of income equality include Cameroon, Madagascar, Rwanda, Uganda, Ecuador.

President Obama is simply not a socialist. He is more appropriately viewed as a corporatist. The centerpiece of his presidency—“Obamacare”—is not a socialist style government single payer model. It is more like a corporate welfare program that benefits big insurance companies and pharmaceutical companies. President Obama’s many wars and “kinetic military actions” are nothing if not welfare programs for the Military-Industrial Complex. The Obama administration has been filled with members with connections to Goldman Sachs yet hardly any left wing radicals. Van Jones is long gone, and the much scapegoated Bill Ayers never worked for the administration. While the middle class and working poor in the United States have been struggling with President Obama in the White House, the big banks have been making huge profits—nearly $35 billion in 2012. In fact, the allegedly Marxist and anti-business Obama has been a godsend for corporate profits. Corporate profits have grown an average of 77% yearly under President Obama.

President Obama is many things. He is an imperial president. He is an anti-constitutionalist. He is a warmonger. He is a fearmonger. He is often a hypocrite. He is a corporatist. But he is not a Marxist or a socialist of any type despite his beginnings as a community organizer, despite his radical friends, and despite his leftist rhetoric prior to becoming commander-in-chief. If President Obama’s opponents are unable to correctly characterize him, they are unlikely to ever be able to defeat him or his likely successor Hillary Clinton.

Reading, Writhing, Arithmetic, and Death Panels

by Gerard Emershaw

High school freshmen and sophomores at St. Joseph-Ogden High School in St. Joseph, Illinois were presented with the following school assignment:

The following ten people have a problem. They are all in desperate need of Kidney Dialysis (the process that removes wastes from the bloodstream). Unless they receive this procedure, they will die. The local hospital has enough machines to support only six people. That means four people are not going to live. You must decide from the information below which six will survive. Next to each person’s short biography there is a line where you place a score. Put the people in order using 1-10, 1 being the person you want to save first and 10 being the person you would save last. You are only to use the information provided.

The ten patients were identified as follows:

1. A 35-year-old white married female housewife with a 12-year-old son and a 7-year-old daughter.
2. A 65-year-old Latino married male doctor with no children.
3. A 60-year-old black married male lawyer with a 25-year-old son.
4. A 9-year-old white female disabled person.
5. A 20-year-old white male college student.
6. A 40-year-old black married male ex-convict with a 13-year-old son and a 10-year-old son.
7. A 23-year-old white unmarried female prostitute with a 3-year-old daughter.
8. A 35-year-old black married male teacher with no children.
9. A 55-year-old white married female Lutheran minister with a 27-year-old son and a 30-year-old daughter.
10. A 47-year-old black unmarried male police officer with no children.

When asked by reporter Lennie Jarratt, Brian Brooks, the school’s principal stated the alleged reason for the lesson:

The assignment you are referring to is not a “Death Panel” assignment.  The assignment is one in the sociology unit of our Introduction To Social Studies class.  The purpose of the assignment is to educate students about social values and how people in our society unfortunately create biases based off of professions, race, gender, etc.  The teacher’s goal is to educate students in the fact that these social value biases exist, and that hopefully students will see things from a different perspective after the activity is completed.  The teacher’s purpose in the element of the assignment you are referring to is to get students emotionally involved to participate in the classroom discussion, and to open their minds to the fact that they themselves have their own social biases.  The assignment has nothing to do with a “Death Panel.”

We encourage parents to contact their son/daughter’s teachers if they have any concerns about an assignment in the classroom.  That line of communication typically clears up any potential misunderstanding.

Many will be unwilling to take Mr. Brooks at his words and will claim that this lesson plan is a covert method of getting students prepared for and willing to accept death panels in the future. Given the failure of public schools in actually educating students properly and the eagerness of public schools to indoctrinate students, it is possible that Mr. Brooks is being less than honest.

The more interesting question concerns how one should deal with this thought experiment. There are two correct answers. One of these involves the immediate answer. The other is a broader and longer term answer.

One may be more than tempted to use the strategy employed by James Tiberius Kirk when facing the Kobayashi Maru and cheat. However, the rules of this game dictate that six of the ten patients will live, and four will die. Progressives, fascists, communists, and other collectivists who apply utilitarian thinking will rank the patients according to their own warped prejudices. However, judging the value of human beings is not something that a hospital or any business should do. Yes, that is right. A hospital is a business. In order to avoid having to make the kind of moral judgments that ought not be made at all, and especially ought not be made by bureaucratic bean counters, the hospital should simply offer its dialysis services first come, first serve on a contractual basis. While the bleeding heart will object and claim that this is unjust because it means only those who can afford the service will get it, this is actually the most just. Those who can afford the service will pay for it. Perhaps some out of pocket and others through insurance. However, by earning a profit, the hospital will be able to put some of that money back into the business and buy additional dialysis machines. Making the pie bigger through free market profits enables more to benefit.

The longer term answer involves fixing the health care system and the economy in general. If the health care system is overhauled according to free market principles, the cost of dialysis and other crucial medical procedures will drop. However, the economy needs to be based more on free market principles as a whole. If corporatist monstrosities like the Federal Reserve’s “inflation tax,” big government corporate and medical regulations, high taxes, and wasteful government spending were to disappear, then people would be wealthier as a whole and more able to afford necessary medical procedures such as dialysis. In reality, death panels can only exist where there is big government and collectivism.

Obamacare is Still Unconstitutional

by Gerard Emershaw

Back in the 1970s, one of the first absurdist catchphrases from NBC’s “Saturday Night Live” to enter into the zeitgeist was Chevy Chase’s “Francisco Franco is still dead.” Well, Franco is still dead. And more than a year after “Roberts’ Folly,” Obamacare is still unconstitutional. 

1. Even if Obamacare’s individual mandate is a tax and not a penalty, it is an unconstitutional direct tax.
2. If it is a tax, it was a tax imposed by the Supreme Court since Congress intended it to be a penalty. Therefore, the individual mandate and Obamacare as a whole is unconstitutional.
3. Even if Congress had always intended for the individual mandate to be a tax and not a penalty, the Obamacare bill originated in the Senate. According to the Constitution, tax bills must originate in the House of Representatives.
4. Even if the individual mandate “tax” had originated in the House, it is still constitutionally dubious in that it is a tax for doing nothing rather than a tax for doing something.

“Roberts’ Folly” is likely to haunt the nation in ways similar to the first version of “Roberts’ Folly”—the votes of Justice Owen Roberts in favor of the constitutionality of unemployment insurance and Social Security in Steward Machine Company v. Davis and Helvering v. Davis respectively in 1937. Like unemployment insurance and Social Security, Obamacare is unconstitutional. Alas, all three are forever ingrained in the bloated federal government.

 

On Abu Anas al-Libi

by Gerard Emershaw

On October 5, American commandos in Tripoli captured Abu Anas-al Libi. Al-Libi had been on the FBI most wanted list and was indicted for his alleged involvement in the bombings of the United States Embassies in Dar es Salaam, Tanzania, and Nairobi, Kenya, on August 7, 1998.

Commando raids are a far preferable way of dealing with terrorists than “shock and awe” military campaigns, invasions, or drone attacks which induce dread in civilian populations and often produce collateral damage. Capturing terrorists is also far preferable to killing for both reasons of justice and intelligence.

Unfortunately, the Obama administration has taken one step forward and two steps back with al-Libi. The operation and the decisions which followed it have been illegal and likely to cause blowback.

1. Violation of Libyan Sovereignty

The Tripoli commando raid was conducted without the permission or knowledge of the Libyan government. Immediately after the raid occurred, the Libyan government issued a statement indicating that the raid was conducted without its permission and seeking “clarifications” about the operation. The Libyan government declared the capture to be the kidnapping of a Libyan citizen. Given that the United States is not at war with Libya, it was illegal under international law for the United States to capture al-Libi without the consent of local and national authorities in Libya. In essence, the action was an illegal kidnapping and not an arrest. Given that it was NATO air support led by the United States which enabled the current Libyan government to overthrow Qaddafi, it is likely that had the United States dealt openly and honestly with the Zeidan government, al-Libi could have been arrested legally and extradited. If the Libyan government is unwilling to cooperate with the United States on such matters, then it raises the question of why President Obama got involved militarily in the Libyan Civil War in the first place.

2. Blowback Against Weak Libyan Government

Furthermore, such an action makes the struggling Libyan government look even weaker than it really is. Thanks to President Obama’s kinetic military action, the victorious rebels have many radical elements with connections to al Qaeda. If the current regime falls, then it is likely that Libya will become a terrorist Islamic fundamentalist state. If there was any question of how weak the current Libyan government is, this was answered when Libyan Prime Minister Ali Zeidan was kidnapped briefly in what he later called an attempted coup.

A government that cannot protect its own leader is incredibly weak, but things may soon become even worse for the Zeidan government. In the wake of the al-Libi kidnapping, several Jihadist groups in Libya vowed to seek revenge by carrying out attacks against the Libyan government, which these groups see as being a willing collaborator in the al-Libi raid. It is unclear whether the Zeidan government can withstand such attacks, and it is likely that should the current regime fall, it will be replaced by a fundamentalist Islamic government. This is the kind of blowback that Zeidan does not need right now.

3. Blowback Against the United States

President Obama could have arranged to help the Zeidan government quietly arrest al-Libi and extradite him to the United States. This would have made the capture a legal arrest while still providing the Zeidan regime with enough plausible deniability to protect itself from Jihadist blowback. Instead, President Obama is courting not only blowback against the Libyan government, but against the United States. Violating the sovereignty of an Islamic nation is just the sort of thing that infuriates Muslims and causes them to commit acts of terrorism. A more cautious approach would have allowed for far less righteous indignation on the part of Islamic extremists. In fact, a cooperative effort between the United States and Libya followed by a fair and public trial would have been more likely to reduce the possibility of blowback than increase it. Instead, the United States is beginning to rile up Islamic extremists once again.

4. Torture

Abu Anas al-Libi was placed on board a Navy warship where he was subjected to interrogation by “an FBI-led team with intelligence experts from the CIA and other agencies.” Al-Libi is not a prisoner of war, and if he were, it would be illegal under the Geneva Conventions to house him on the high seas. Is there any doubt that the government will be using “enhanced interrogation” in order to loosen al-Libi’s lips? Even if the FBI and CIA interrogators do not waterboard al-Libi—or worse—it is certain that al-Libi’s constitutional rights will not be honored. Al-Libi is likely to be brought to trial in a federal court in New York, so he deserves the very same rights that any other criminal defendant would have in federal court. This includes the right to be brought before a federal judge within 48 hours of his arrest. In addition to the Eighth Amendment right against torture, al-Libi has the Fifth Amendment right to due process.

Respecting the natural rights of even the worst terrorist suspects is necessary in order to allow the United States to keep the moral high ground. The federal government has had little trouble in getting terrorism convictions in criminal courts. It is simply unnecessary to use torture or any other illegal means. The more fairly the federal government treats Islamic terrorism suspects, the less likely it is to create blowback. When a Muslim is tortured and mistreated, many Muslims will be angered. When a Muslim is treated fairly and humanely and revealed to be a criminal, only the most radical Jihadists will be angered. This makes a big difference.

Why the American People Have No Faith in Their Government

by Gerard Emershaw

According to a poll by Public Policy Polling, there is some good news and some bad news for Congress. The good news is that Congress is more popular with the American people than Vladimir Putin, Miley Cyrus, heroin, Syria, twerking, and Anthony Weiner. The bad news is that Congress is less popular with the American people than Wall Street, witches, hemorrhoids, jury duty, dog poop, nail fungus, cockroaches, and zombies. Overall, the poll found that Congress has an 8% approval rating.

The news is not that much better for President Obama. According to Gallup, President Obama’s approval rating has fallen to 43% with 50% disapproval.

The American people are fed up with the entire federal government. An October 10 Gallup survey found that approval of the government has fallen to a record low of 18%.  

Why is the American public so disgusted with its leadership? The pointless and cynical gamesmanship which led to the federal government shutdown did not sit well with the people. According to an Associated Press-GfK survey, 68% believe that the government shutdown is a major problem for the country. However, this was just the latest symptom of the disease which the federal government has become.

Congress has surrendered most of its constitutional duties. For the most part, it no longer writes legislation. Most laws are written as regulations by executive branch agencies. When Congress actually does legislate, it is likely that the bills were written by special interest lobbyists. Congress no longer carries out its crucial foreign policy function by deciding whether or not to declare war on foreign nations. Instead, the members of Congress allow the President to unconstitutionally do whatever he will with the military. While Congress continues to bicker like petty children over things like the debt ceiling and the budget—which it never actually seems to get around to passing, the American economy continues to fester. While the voters would love to kick the bums out, members of Congress are much like the cockroaches which have a higher approval rating than the Congress. Incumbents tend to survive. Incumbents in the Congress were re-elected at a rate of 90% in 2012. Not only do members of Congress not do their jobs, but they also live like parasitic royalty at the taxpayers’ expense.

Meanwhile, President Obama, who promised “hope and change,” has brought nothing but despair and more of the same. His economic policies have been a disaster. According to John Williams’ Shadow Government Statistics alternate unemployment chart—which includes both long-term and short-term discouraged workers and full-time workers who were forced to part-time—the unemployment rate has risen sharply under President Obama.

President Obama’s reign has not exactly been a boon for the unemployed. Median household income has fallen for five years in a row. While the American people are suffering economically, President Obama has kicked them while they are down by unleashing a growing NSA spy program against the people. In addition, as the fortunes of the republic fall, his powers increase. While presiding over a failing nation, President Obama has unconstitutionally waged war against Libya and came perilously close to doing the same in Syria while continuing his bloody drone campaign in the Middle East and North Africa.

Americans are unhappy with their government, but even in elections in the near future, it will be difficult to throw the bums out. And if the bums are thrown out, they will likely just be replaced with different bums.

The Right to Bear Arms and Self Defense: Micro and Macro

by Gerard Emershaw

Human beings possess a natural right to life. Therefore, human beings have the right to defend their lives. If human beings do not possess a right to self defense, then their lives are not truly their own. Without the right to defend one’s life, one is essentially a slave. Human beings also possess the natural right to bear arms. This right is grounded in the right to defend oneself against government tyranny. However, this right also provides that human beings may defend their lives or the lives of others against those who would take them. A human being undeniably possesses the right to defend him or herself or to defend others against imminent physical harm.

Only individual human beings are the proper bearers of rights. However, collective entities such as corporations or nation-states can be the indirect bearers of rights through the rights directly held by individual human beings. A nation-state—or an society—is made up of a group of individual human beings. Such collectives are dependent upon the individuals. The individual human beings exist independently of society or the state, but society and the state cannot exist independently of the human beings who constitute them. Despite being metaphysically dependent upon the existence of the individuals who constitute them, nation-states possess quasi-rights to bear arms and to self defense because the individual citizens possess these rights.

The fact that nation-states are akin to human beings on a macrocosmic level means that several things are apparent. Just as human beings possess the right to bear arms in the form of guns, nation-states possess the quasi-right to bear arms in the form of nuclear missiles and other “weapons of mass destruction.” To say that a nation such as Iran does not have a right to possess nuclear weapons is like saying a specific human being does not possess the right to possess a handgun. One who is not an absolutist concerning the Second Amendment may argue that there are cases where one does not have the right to bear arms—e.g. if one is a convicted criminal, mentally ill, etc. Nations which are typically called “rogue” nations or labeled state sponsors of terrorism are typically far less “criminal” than many nations that are not so labeled. The atrocities committed by Nazi Germany, Imperial Japan, Fascist Italy, Soviet Russia, and Communist China are well documented, yet Russia and China are nuclear nations, and Germany and Italy are NATO nuclear weapon sharing states. Iran is a despotic nation, however, the modern Islamic Republic of Iran has never instigated a war. Iran has never used a weapon of mass destruction—though it has been a victim of Iraqi chemical weapons that the United States aided Iraq in acquiring. While one may claim that Iranian fundamentalist Islam makes the nation akin to being mentally ill, this would also have to apply to nuclear nations like Pakistan. It is also unclear why only Muslim fundamentalists are labeled “mentally ill.” Why not Christian fundamentalists, Hindu fundamentalists or Jewish fundamentalists? There are many religious fundamentalists in the United States, India, and Israel, and these are all nuclear nations. Thus, while nuclear proliferation is not a good thing, all nations possess the quasi-right to self defense, and in the modern era of neoconservative wars of aggression and regime change, self defense on a macrocosmic nation-state level requires the possession of nuclear weapons.

The macrocosmic quasi-right to self defense that nation-states possess is akin to the genuine natural right to self defense that human beings possess. The boundaries and limits of self defense at the macrocosmic level—i.e. war—can be determined through analogy by considering the boundaries and limits of self defense among human beings.

The basic right of self defense is that one may use violent force against another in order to defend oneself or others from imminent harm. The amount of force legally permitted is typically the reasonable amount necessary to protect oneself and/or others from this imminent harm. Deadly force may be used where necessary. Of course, there are differences in the legal concept of self defense in different jurisdictions. Recent cases involving state laws such as “stand your ground” in Florida and the legal use of deadly force to protect property in Texas have produced much controversy and debate. However, no particular formulation of the doctrine of self defense allows someone to use any force at all against someone who does not pose imminent harm. One may not physically attack a neighbor because that neighbor might pose harm in the future. One may not physically attack a neighbor because that neighbor recently bought a gun. One may not physically attack a neighbor because that neighbor poses some sort of threat to one’s economic interests—e.g. one may not attack his or her neighbor because that neighbor is an ex-con who served time in prison for burglary or robbery. If preemptive self defense in cases like these is unacceptable, then so is preemptive war. The Iraq War was illegitimate. So was American military intervention in Libya. Unless Syria or Iran attack the United States or appear on the verge of doing so, military action against these nations would also be illegitimate.

American entry into World War II was legitimate because of the Japanese attack on Pearl Harbor. The United States had the quasi-right to defend itself—i.e. defend its citizens and residents—against imminent harm from foreign aggressors. While American entry into World War I was wrongheaded, the United States Congress had the right to defend its allies—the United Kingdom, France, etc.—from imminent harm just as a human being possesses the right to use force to defend his or her friends, family, or neighbors from imminent harm. A similar argument can be made to justify the Korean, Vietnam, and Gulf Wars. Of course, it goes without saying that such foreign entanglements are dangerous and a quick path to eventual economic collapse as was the case with the Roman and British Empires. It also goes without saying that even a just war in defense of allies is illegitimate if it is unconstitutionally waged without a proper Congressional declaration of war.

The Afghanistan War was also illegitimate. While the United States had a right to defend itself against Osama bin Laden’s Al Qaeda cell and to seek justice for the crimes committed in the 9/11 attacks, it did not have the right to use deadly force against the Taliban government of Afghanistan. As unsavory as the Taliban was, it was not responsible for the 9/11 attacks. Even if one argues that the United States had the right to use the force necessary to capture or kill bin Laden and his accomplices, this did not entail using the kind of “shock and awe” level military aggression that brought about regime change in Afghanistan. This is akin to using deadly force against a person whose crime is harboring a fugitive. While justice dictates that this crime must be punished, deadly force is unjustified in such cases unless the person harboring the fugitive is posing imminent harm to others.

A related issue is how much military force is justified in exercising a nation-state’s quasi-right to self defense. A human being may not use deadly force if less force is adequate to protect him or her or to protect others from harm. If one is slapped by another person, he or she does not have a right to pull out a pistol and shoot the slappy assailant in the skull. Therefore, the use of “shock and awe” level military aggression is also illegitimate. Forcing unconditional surrender and bringing about regime change is unjustified. For example, there was no reason to use the atomic bombs against Japan at the end of World War II given that Japan was already beaten and sought to sue for peace. The result of the Gulf War—where the war ended after Iraq withdrew from Kuwait is far more consistent with the use of defense of others.

In conclusion, nation-states possess the quasi-right to self defense. This means that nation-states may acquire and possess nuclear weapons in order to defend themselves. This means that nation-states may go to war in order to defend themselves or allies from imminent harm. However, nation-states possess no right to engage in preemptive war. Nation-states also possess no right to use any more force than is necessary to remove the imminent harm to itself or to its allies posed by an aggressor nation-state.      

“Revenge Porn” and the First Amendment

by Gerard Emershaw

In California it is now a misdemeanor to put “revenge porn” on the internet. If a person is convicted of posting identifiable naked pictures of another person online without permission, he or she can receive up to six months in jail and a $1,000 fine. According to the law’s sponsor California Senator Anthony Cannella (R): “Until now, there was no tool for law enforcement to protect victims. Too many have had their lives upended because of an action of another that they trusted.”

The law states:

[A]ny person who photographs or records by any means the image of another person without his or her consent who is in a state of full or partial undress in an area in which the person has a reasonable expectation of  privacy, and subsequently distributes the image taken which could cause a reasonable person to suffer serious emotional distress, is guilty of a misdemeanor.

Is this new California criminal law needed, or is it just another example of making everything illegal and making big government even bigger? More importantly, is “revenge porn” protected under the First Amendment?

The First Amendment states that “Congress shall make no law … abridging the freedom of speech, or of the press.” However, it is almost universally acknowledged that “the right of free speech is not absolute at all times and under all circumstances.” The Supreme Court has recognized several categories of speech that do not enjoy First Amendment protection. These categories include fighting words, obscenity, child pornography, imminent incitement of illegal activity, threats, solicitations or offers to engage in illegal activity, and libel.

“Revenge porn” clearly does not fall under the category of fighting words, the imminent incitement of illegal activity, threats, or solicitations or offers to engage in illegal activity. One can assume that in any case where a person posts naked pictures of children online that child pornography laws are already in place to deal with that. It is also clear that the new California law is not prohibiting such speech because it is obscene. The vast majority of naked photos posted on the internet are photos of consenting adult models—whether amateur or professional.

The only category of constitutionally unprotected speech that might apply is libel. To libel someone is to publish an untruth about a person which will do harm to that person by tending to make him or her the target of ridicule, hatred, scorn or contempt. If a naked photo that is posted online as a form of “revenge porn” is digitally altered in some manner, then that would constitute an untruth. For example, if a person were to use Photoshop or another similar art program to alter the subject’s anatomy or to create a context in which that subject did not appear, then that would be an untruth. However, an unaltered photograph of a person cannot be said to be an untruth. Therefore, libel would not apply.

This means that there is no prima facie case for forbidding the speech constituted by “revenge porn” under the First Amendment. There are reasons why publishing a photograph may lead to civil actions against the publisher. If the publisher of “revenge porn” publishes the naked photo not only as a means of revenge but also as a means to earn profit—e.g. by publishing the photo on a commercial pornography site—then the publisher has committed the tort of appropriation of a name or likeness. If the “revenge porn” does not technically represent an untruth but does represent something that is misleading, the publisher has committed the tort of false light. The tort of false light exists where a person publishes something about another person with actual malice (if the publisher knew that the published material would portray that person in a false light or with reckless indifference to the truth) which portrays that person in a misleading manner and which is embarrassing to reasonable persons. Again, unless the naked photo somehow portrays the subject in a very misleading manner, there is no cause of action for false light.

Another privacy tort exists under California law. Posting “revenge porn” may very well constitute tortious public disclosure of private facts. A person violates the right of privacy of another under the tort of public disclosure of private facts when:

1. Defendant publicized private information concerning plaintiff;
2. That a reasonable person in plaintiff’s position would consider the publicity highly offensive;
3. That defendant knew, or acted with reckless disregard of the fact, that a reasonable person in plaintiff’s position would consider the publicity highly offensive;
4. That the private information was not of legitimate public concern [or did not have a substantial connection to a matter of public concern];
5. That plaintiff was harmed; and
6. That defendant’s conduct was a substantial factor in causing plaintiff’s harm.

Given that naked photos of most individuals in California or elsewhere do not express information that is of legitimate public concern, most victims of “revenge porn” have an avenue to redress their grievances in civil court. However, there is a grave danger created by criminalizing even tortious speech. The California “revenge porn” criminal statute was passed because pursuing the matter in civil court was allegedly an “expensive and time consuming option.”

Under the California “revenge porn” law, the naked photo that is published online must have been taken without the subject’s consent. There is already a tort which covers that category as well. Under the tort of intrusion upon seclusion:

One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person.

This includes both cases where the one intrudes by merely using his or her senses and cases where the intruder uses electronic devices. This tort does not require publication. Therefore, one who publishes “revenge porn” has technically committed a tort against the subject under the terms of the law prior to his or her publication of the naked photo.

According to Fox News legal analyst Judge Andrew Napolitano: “Criminalizing the distribution of that which was freely given and freely received would be invalidated under the First Amendment. The First Amendment is not the guardian of taste.” Law professor Eugene Volokh, a critic of the both the tort of public disclosure of private facts and of criminalizing offensive speech, disagrees with Judge Napolitano, claiming that the category of naked pictures is narrow enough to survive First Amendment challenges because “courts can rightly conclude that as a categorical matter such nude pictures indeed lack First Amendment value.”

According to the California “revenge porn” law, only the publishing of naked photos which were taken without the consent of the subject are criminalized. This leaves open the question of whether naked images which were freely given to a person by the subject or which the subject allowed to be photographed for private use only will be criminalized in the future in California. “Sexting” has become widespread among young romantically linked couples, so these kind of cases are likely to become common.

Under an earlier version of the law, all that was required was that the parties had agreed that the published photo would remain private:

This bill would provide that any person who photographs or records by any means the image of the intimate body part or parts of another identifiable person, under circumstances where the parties agree or understand that the image shall remain private, and the person subsequently distributes the image taken, with the intent to cause serious emotional distress, and the depicted person suffers serious emotional distress, is guilty of disorderly conduct and subject to that same punishment.

This version was clearly unconstitutional. For example, it would have criminalized instances where the copyright holder of a naked photo published it.

The deeper question remains whether public disclosure of private facts should even be a tort. For defamation—both libel and slander—truth is a total defense. However, this is not the case with public disclosure of private facts. The only defense to public disclosure of private facts is that the information revealed is “general knowledge.” In the typical case of public disclosure of private facts, the natural right to free speech appears to conflict with the natural right to privacy. If both are genuine rights, then such a conflict should be impossible.

Cases in which one intrudes upon the seclusion of another, there is no doubt that a tort has been committed and also typically a crime—e.g. criminal trespass. However, let us consider merely cases where a person publishes private information about another—whether a naked picture or some fact—but where the publisher has not committed an independent crime or tort in acquiring the information. How can speech which involves uttering the truth be illegal? How can such speech be prohibited in light of the First Amendment?

There are cases where one party has a legal duty not to disclose private information about another party. For example, where there is a contract forbidding the revelation of such private information. The violation of a contract is not constitutionally protected. However, there is no such duty in the case of two individuals with no contractual connection.

The two key criteria with the tort of public disclosure of private facts are “highly offensive” and “legitimate public concern.” Notice that much of what is “highly offensive” to a person is also of “legitimate public concern.” For example, it may be “highly offensive” for a person to publish the fact that another person was convicted of indecent exposure, but this is clearly of “legitimate public concern.” If something is true, it may very well be “highly offensive” to a person to have others know it. Nevertheless, it is true. Perhaps if such a fact regards something embarrassing due to a weak moral character, then that person ought to behave more morally. Perhaps if such a fact regards something that society wrongly stigmatizes—e.g. being the victim of a heinous crime such as rape—then the victim ought to stand up proudly against such unjust stigmatization. Perhaps we all have such a duty. Perhaps if such a fact regards something innocuous—e.g. a naked picture—then we as a society should “grow up.” Everyone has a “birthday suit,” after all. Why are we so embarrassed of the flesh in a sickly Puritanical way?

Even in the modern era of the “transparent self” where more Americans flaunt their private lives online, announcing each and every secret on social media, many would wish to keep all of their private details private. However, this is not always possible. While defamation law protects individuals from being damaged by untruths, the Fourth Amendment protects individuals from being unjustly surveilled by the government, and common law torts such as intrusion on seclusion protect individuals from being unjustly surveilled by private actors, nobody should require defense from the truth. The truth is the truth. The truth is neutral and objective. Whether one is offended by something or not is subjective. Whether some fact is of “legitimate public concern” or not is also subjective. Whenever the government—whether in the form of legislators, executive branch officials, judges, or juries—is allowed to decide what the public has a right to know and what it does not, we set forth on a slippery slope. With the exception of a very narrow class of cases involving national security, truth should always be a defense to any criminal action. With the exception of contractual situations, truth should be a defense to any tort concerning speech. Therefore, if a person publishes naked photos of another online but has not committed an independent crime or tort in acquiring the photo, then the natural right to freedom of speech protects such speech.  

Scalia Is No Friend of the Right to Privacy

by Gerard Emershaw

The flood of shocking revelations about the NSA resulting from the whistleblowing of Edward Snowden will inevitably land issues concerning the surveillance state, national security, the Fourth Amendment, and the right to privacy before the Supreme Court. With the current makeup of the court, this does not bode well for civil liberties. Earlier this year, in Clapper v. Amnesty International, the Supreme Court held that the plaintiffs in the case could not challenge the NSA’s warrantless wiretapping because they lacked standing. They lacked standing because they could not show that they were harmed by the program. However, the proof that a plaintiff would need to show that he or she is affected and harmed by the NSA program is classified. Therefore, as long as the NSA keeps this information secret, it is impossible for anyone to sue. This alone is enough to signal to civil libertarians that any NSA case decided in the near future is not going to end well. But, it appears that the prospects for the right to privacy may be even worse.

Justice Antonin Scalia recently spoke before the Northern Virginia Technology Council and told them that he believed the Court would soon be hearing cases connected with the NSA. Justice Scalia appears to be less than thrilled about having to hear such cases. He believes that elected branches of government are better equipped to deal with such issues. However, the Supreme Court opted, beginning in the 1960s, to expand its power in hearing cases concerning the right to privacy. According to Justice Scalia, this was not wise:

The consequence of that is that whether the NSA can do the stuff it's been doing ... which used to be a question for the people ... will now be resolved by the branch of government that knows the least about the issues in question, the branch that knows the least about the extent of the threat against which the wiretapping is directed.

Justice Scalia told his audience that prior to cases like Katz v. United States (1967), the Court held that there were no constitutional constraints on wiretaps because the Court believed that the Fourth Amendment did not apply in such cases and gave no protection at all to conversations. Justice Scalia then lamented the fact that the Warren Court stepped in on the issue and explained that the Warren Court found that “there's a generalized right of privacy that comes from penumbras and emanations, blah blah blah, garbage.” This does not sound like a jurist who believes in the right to privacy.

The landmark case that established the constitutional right to privacy is Griswold v. Connecticut (1965). In this case, the Supreme Court ruled that a Connecticut law outlawing contraceptives was unconstitutional. In William O. Douglas’s majority opinion, he speaks of why the constitutional right to privacy was recognized:

The foregoing cases suggest that specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. Various guarantees create zones of privacy. The right of association contained in the penumbra of the First Amendment is one, as we have seen. The Third Amendment in its prohibition against the quartering of soldiers “in any house” in time of peace without the consent of the owner is another facet of that privacy. The Fourth Amendment explicitly affirms the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” The Fifth Amendment in its Self-Incrimination Clause enables the citizen to create a zone of privacy which government may not force him to surrender to his detriment. The Ninth Amendment provides: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

Justice Scalia, obviously, is unimpressed by this. However, despite his ingenuity, Justice Douglas could have stopped after a quick discussion of the Ninth Amendment. The Ninth Amendment states: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” In other words, just because a natural right is not specifically enumerated in the Constitution, it does not mean that the people do not possess that right in virtue of their humanity.

One source of evidence concerning the existence of a natural right to privacy is tort law. In 1960, legal scholar William L. Prosser documented the right to receive damages under the common law for invasions of privacy. Four distinct privacy torts have developed: 

1. Intrusion upon seclusion or solitude, or into private affairs;

2. Public disclosure of embarrassing private facts;

3. Publicity which places a person in a false light in the public eye; and

4. Appropriation of name or likeness.

This provides strong support for the existence of a right to privacy. If an individual can exert this right against his or her fellow civilians, then he or she should also be able to exert these rights against the government.

Furthermore, the aspects of the right to privacy which concern wiretaps and other advanced technological forms of electronic intrusion used by the NSA, FBI, etc., are fully encompassed by the Fourth Amendment. The Fourth Amendment states:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

While the Founders did not contemplate things such as wiretaps and other surveillance telephone lines, cellphones, the internet, etc., they did institute the requirement that a search cannot take place without a specific judicial warrant issued upon probable cause. While the Supreme Court has disputed this in recent decades, this is simply an indication that they are either not careful readers or they simply wish to create constitutional law that does not exist.

When a person is in a place of privacy and has a conversation with a companion—whether this is a face-to-face conversation or an electronic conversation via a phone or the internet—the content of that conversation is akin to his or her person. The words—whether spoken into the air, spoken into a telephone, or typed—are inseparable from the person in that searching the words is akin to searching the speaker of the words. Therefore, since persons are protected by the Fourth Amendment, so are conversations. Furthermore, modern forms of communication such as phone calls, text messages, e-mail, and instant messages are secondarily covered by the Fourth Amendment because they can only be achieved through the use of telephones, cellphones, or computers. These items are clearly “effects”—movable belongings. Given that the Fourth Amendment guarantees the protection of persons and effects, private conversations of all types are clearly protected. Unfortunately, this is not the way that Justice Scalia and a likely majority of his colleagues will see it.