Aggressive prosecution #1: California businessman commercially growing medical marijuana.

Adam Nagourney, in the NYT, gives very sympathetic treatment to Matthew R. Davies — "a round-faced 34-year-old father of two young girls" with "graduate-level business skills" who "paid California sales tax and filed for state and local business permits" and got the advice of many lawyers as he set up an enterprise that plainly and overtly is a felony under federal law. Davies told the NYT:

“We thought, this is an industry in its infancy, it’s a heavy cash business, it’s basically being used by people who use it to cloak illegal activity. Nobody was doing it the right way. We thought we could make a model of how this should be done.”

Cloak illegal activity? It is illegal activity. Federal law is real. Haven't you heard?!

The right way? Cloaking is the right way when you're committing crimes. With your business education, somehow you were all: Hey, what a smart idea I have — being completely out in the open about breaking the law. Why hasn't anybody else thought of this?

And I love the way the NYT suddenly has a pro-business orientation. Davies deserves special grace under the law because he's using the structure of business and because he's excited about making big profits! Compare that to all the articles anguishing over Citizens United and how terrible it is to respect free speech rights when the speech comes from a place that is structured as a business.

“Mr. Davies was not a seriously ill user of marijuana nor was he a medical caregiver — he was the major player in a very significant commercial operation that sought to make large profits from the cultivation and sale of marijuana,” [said a letter from United States attorney for the Eastern District of California, Benjamin B. Wagner, a 2009 Obama appointee.] Mr. Wagner said that prosecuting such people “remains a core priority of the department.”...

“It’s mind-boggling that there were hundreds of attorneys advising their clients that it was O.K. to do this, only to be bushwhacked by a federal system that most people in California are not even paying attention to,” said William J. Portanova, a former federal drug prosecutor and a lawyer for one of Mr. Davies’s co-defendants. “It’s tragic.”

Yes, and it is mind-boggling that those who argue for the broad interpretation of federal power and who scoff at the idea of the 10th Amendment and reserving powers to the state somehow can't grasp the meaning of their general propositions when they encounter an issue where they prefer the state policy to the federal policy. The NYT and other drivers of elite opinion ought to have to face up to the reality of what their legal propositions entail.

And quite aside from the problem of the allocation of power at the federal and the state levels, how about some consistency about equal justice under the law? Let the law — as written — apply the same way to everyone, whether they have a round face and 2 young daughters or not, whether they've gone to grad school or not, whether they have big visions of massive profits or they are living hand to mouth. If the law is wrong, change the law — for everybody. Don't cry over the people you think are nice — like David Gregory and Aaron Swartz. Nonphotogenic and low-class people deserve equal treatment, and cutting breaks for the ones who pull your heart strings is not justice.

"People keep talking about the role of government in helping people.... but a lot of the credit for helping people recover from the storm should go to businesses."

"It's all too easy to implicitly exclude businesses from our mental category of those who help people."

(Why? Because they're driven by profits? Is that worse than being driven by votes?)

It might be better, because businesses have to offer something that moves you to part with your money. With a scheme of taxing and spending, government detaches the process of handing over our money from our thoughts about whether we think the benefits are worth it.

And by the way, businesses not only help people, they are people.

Back to the first link (which goes to my son John's blog):

I can think of many ways that businesses helped me get through the past 5 days, when the power was out in my apartment and my workplace....

The Egyptian with the "Shut Up America" sign is more like us than you may realize.

"Professor, I hope that you will make your addendum a second post," said the commenter Lyssa. "These rights that are so fundamental are not so protected as we would like to think."

All right. That's what follows. And here's what it was an addendum to — a post about a man in Cairo holding a "Shut Up America" sign and saying "We never insult any prophet — not Moses, not Jesus — so why can’t we demand that Muhammad be respected?" People in the comments at my post assume that protecting blasphemous speech was obviously the American tradition, and the man's request was outrageous. But:

We're not that far from criminalizing blasphemy in the United States, though it seems obvious to educated Americans today that these laws are unconstitutional. Here's a quick summary of the history of blasphemy law in the U.S.

And here's the 1952 case Joseph Burstyn, Inc. v. Wilson where the Supreme Court struck down a New York law that banned showing "sacrilegious" movies. New York's highest court had interpreted the statute to mean "that no religion, as that word is understood by the ordinary, reasonable person, shall be treated with contempt, mockery, scorn and ridicule." The U.S. Supreme Court said:

[T]he state has no legitimate interest in protecting any or all religions from views distasteful to them which is sufficient to justify prior restraints upon the expression of those views. It is not the business of government in our nation to suppress real or imagined attacks upon a particular religious doctrine, whether they appear in publications, speeches, or motion pictures.

My point is: it took a Supreme Court case as recently as 1952, to establish that principle in our country, with its rich free-speech tradition. Lawyers even saw fit at that time to argue that movies shouldn't get free-speech protection at all because "their production, distribution, and exhibition is a large-scale business conducted for private profit."

Oh, wait, the President of the United States today argues that corporations don't have free-speech rights, and many Americans, including highly educated lawyers, are saying the Constitution should be amended to delete those rights.

Let's not be so quick to assume the man with the "Shut Up America" sign is thoroughly alien. The threats to free speech lie within. They always have.

"We never insult any prophet — not Moses, not Jesus — so why can’t we demand that Muhammad be respected?"

Asked a man holding a "Shut Up America" sign outside the American embassy in Cairo.

"Obama is the president, so he should have to apologize!"...

“We don’t think that depictions of the prophets are freedom of expression. We think it is an offense against our rights,” [said Ismail Mohamed, a religious scholar.] “The West has to understand the ideology of the people.”

Even during the protests, some stone throwers stressed that the clash was not Muslim against Christian. Instead, they suggested that the traditionalism of people of both faiths in the region conflicted with Western individualism and secularism....

Some commentators said they regretted that the violence here and around the region had overshadowed the underlying argument against the offensive video.

ADDED: We're not that far from criminalizing blasphemy in the United States, though it seems obvious to educated Americans today that these laws are unconstitutional. Here's a quick summary of the history of blasphemy law in the U.S. And here's the 1952 case Joseph Burstyn, Inc. v. Wilson where the Supreme Court struck down a New York law that banned showing "sacrilegious" movies. New York's highest court had interpreted the statute to mean "that no religion, as that word is understood by the ordinary, reasonable person, shall be treated with contempt, mockery, scorn and ridicule." The U.S. Supreme Court said:

[T]he state has no legitimate interest in protecting any or all religions from views distasteful to them which is sufficient to justify prior restraints upon the expression of those views. It is not the business of government in our nation to suppress real or imagined attacks upon a particular religious doctrine, whether they appear in publications, speeches, or motion pictures.

My point is: it took a Supreme Court case as recently as 1952, to establish that principle in our country, with its rich free-speech tradition. Lawyers even saw fit at that time to argue that movies shouldn't get free-speech protection at all because "their production, distribution, and exhibition is a large-scale business conducted for private profit."

Oh, wait, the President of the United States today argues that corporations don't have free-speech rights, and many Americans, including highly educated lawyers, are saying the Constitution should be amended to delete those rights.

Let's not be so quick to assume the man with the "Shut Up America" sign is thoroughly alien. The threats to free speech lie within. They always have.

New Obama ad criticizes Romney for saying that Obama said "If you’ve got a business — you didn’t build that. Somebody else made that happen"

This is a ballsy move:



Obviously, Obama said those words, and Romney supporters have seized upon those words. Rush Limbaugh has been playing and replaying that line. Charles Krauthammer said: "I think Obama has made the gaffe of the year when he said if you created a business, you didn't build it. That phrase, 'you didn't build it' should be hung around Obama until the end of his presidency."

And now, here comes the Obama campaign not only running Obama's self-damaging words but showing Romney repeating them with a critical edge. This takes nerve... nerve or genuine, outright fear that Obama's garbled statement will be used to destroy him. They must confront it and take some of the edge off it. And maybe they've decided they shouldn't worry about breathing more life into it. It's alive and on the loose and they need to give chase.

The idea of the ad is to get us to see that despite the awkward line that's so useful to his opponent, Obama was mostly saying something we agree about: That people don't succeed entirely on their own, but benefit along the way with the help of others. The ad has text on screen that says: "Mitt Romney is launching a false attack," after Romney quoting the quote "That's not what [Obama] said," and after showing Obama saying the quote, "Mitt Romney will say anything."

You could say if you listen sympathetically to Obama saying the quote, you could understand the quote in a way that's not ridiculous and disturbingly left-wing.  And if you get that far, then Romney's use of it could be understood as "a false attack." [But false is still the wrong word.] But why would Romney not use that quote for all it's worth? Since when does decency/integrity/honesty require that a politician interpret his opponent's words in a sympathetic light and give him the benefit of the doubt? The quote is a gift to Romney and he's accepted it.

It's like Romney saying "Corporations are people." That's a gift to Obama's people and they are using it. They don't feel any ethical compulsion to stop and say we understand what he really meant. I mean, I love the way the new Obama ad — trying to get us to understand — includes this additional part of the context: "We succeed because of our individual initiative, but also because we do things together."

When I heard that the first time, I said: Yeah, corporations are people. We do things together. Sometimes when people succeed doing things together, they form a corporation as a way of working together. But you'll never hear Obama say that. He will use the 'Corporations are people' line for full mockery effect, never admitting that he knows why it makes sense and why it really isn't anything we disagree about.

If Obama offered to stop using stop using "corporations are people" if Romney would stop using "you didn't build that"....
	Romney would say no, it's payback time, and we're winning.
	Romney would say yes, because "corporations are people" has really hurt.
	Romney would say yes, because he'd prefer more pleasantness.
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"Why is so much ire aimed directly and uniquely at Citizens United, out of the entire body of campaign finance law?"

Asks Howard Wasserman at PrawfsBlawg (via Instapundit):

Some of it is that the Court had to overturn precedent, but... this was not a particularly venerable precedent and it was only one in a broader body of case law. Some of it is the process — relisting, ordering new briefing, etc.... Some--and I suspect a lot — of it is recency bias — the most recent case is the most important case and the one to praise or criticize....

Another theory: Criticism of that case merged nicely with the pervasive liberal rhetoric scaring us about the power and influence of corporations.

"Occupy the Courts" protests hit the U.S. Supreme Court building and other federal courthouses today.

Why pick on the courts? The protesters wanted to express the opinion that Citizens United was decided the wrong way. As if it's admirable for courts to decide cases the way protesting throngs want them decided!

The protesters say they'd like a constitutional amendment. Cut back on the First Amendment? I remember a few years ago when there was a clamor to cut back the First Amendment to protect the flag which the Supreme Court said people had a free-speech right to desecrate. It turned out to be an embarrassment for everyone who didn't revere the Bill of Rights.

Asked if a constitutional amendment is a realistic goal, Joan Stallard, a demonstrator from D.C., said, “The constitution has been amended 27 times, and we can do it again.” She said more and more of the public is beginning to understand “the power of corporations in our political system” and will be receptive to a constitutional chance.

Yeah, but we never cut back the First Amendment.

Those people who think Citizens United was wrong because it saw corporations as people with free speech rights...

... what do they think about Google's stand against SOPA? Google is a big old corporation with way too much money and power....

"RJ Reynolds v. FDA and the Hidden Danger of Denying Free Speech Protection to Corporations."

Aaron Worthing has an excellent post about the litigation over the FDA rules requiring new warning labels on cigarettes.

IN THE COMMENTS: caplight said:

This is great, so now the government can require abortionists to post pictures of the developmental stages of a human being in utero and pictures of chopped up baby parts. Oh, and the link between abortion and breast cancer too.

Exactly!

Justice Stevens writes of his "extreme distaste for debates about campaign financing."

That's from his new book "Five Chiefs: A Supreme Court Memoir," and it refers to his experience immediately upon his ascent to the Supreme Court in 1976, when the Justices were deciding Buckley v. Valeo. He goes on:

That distaste never abated, and I have felt ever since that the Court would be best served by inserting itself into campaign finance debates with less frequency. 

The Court would be best served, eh? The questions have to do with what the Constitution says about  freedom of speech, so one must wonder why he'd think in terms of what serves the Court best as opposed to what the Constitution means or at least what serves the people best.

That view may have had an impact on the unusually long dissent that I wrote during my last term on the Court against the Court’s overreaching in the Citizens United case...

In addition to my overriding hostile reaction to the subjects discussed in Buckley, I also recall puzzlement about why the Court failed to endorse the position expressed by Justice White in his dissent. He effectively explained why the distinction between limitations on contributions (which the Court upheld) and the limitations on expenditures (which the Court invalidated) did not make much sense, and why the Court should have respected the congressional judgment that effective campaigns could be conducted within the limits established by the statute. Time has vindicated his prediction that without “limits on total expenditures, campaign costs will inevitably and endlessly escalate.” He thought it quite proper for Congress to limit the amount of money that a candidate or his family could spend on a campaign in order “to discourage any notion that the outcome of elections is primarily a function of money.”

That is, he favors limiting speech so that people don't get the wrong idea (the wrong idea being that money affects elections). Under the system we have, as the majority of the Supreme Court has interpreted the Constitution, candidates can spend all the money they want trying to get elected and people are free to get the "notion" that money affects the outcome of elections.

Justice Stevens continues:

The majority’s response to Justice White relied on the rhetorical flourish that “the concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment.” The assumption underlying that colorful argument...

Colorful?

... is that limitations on the quantity of speech in public debates are just as obnoxious as limitations on the content of what a speaker has to say. 

That is to say, it's not really so bad for the government to tell a candidate: We think you've said enough.

But there is nothing even arguably unfair about evenhanded rules that limit the amount of speech that can be voiced in certain times or places or by certain means, such as sound trucks. If we view an election as a species of debate between two adversaries, equalizing the amount of time (or money) that each can spend in an attempt to persuade the decision-makers is fully consistent with the First Amendment. Otherwise, appellate court rules limiting the time that the adversaries spend in oral arguments would be invalid because they limit the speech of one adversary in order to enhance the relative voice of his or her opponent.

He's equating the formal conditions within the confines of the appellate courtroom to the speech that takes place in the entirety of all of the forums in which a candidate might speak: all of the city squares and auditoriums, all of the TV and radio channels, all of the print media, and the entirety of the internet!

There's very little mention of Citizens United in Stevens's book, perhaps because the opinion wasn't written by the Chief Justice, and the subject of the book is Chief Justices. But he does mention it, musing that, based on Roberts opinion in Snyder v. Phelps, "perhaps I should give him a passing grade in First Amendment law."

But for reasons that it took me ninety pages to explain in my dissent in the Citizens United campaign finance case, his decision to join the majority in that case prevents me from doing so.

That's it. He doesn't even attempt to explain Citizens United to the general reader, who's expected to accept that the Court got it wrong but it would take 90 pages to explain why. Citizens United — which we covered in my conlaw class yesterday — is indeed damned pesky to absorb, and there's something disturbing about a case that purports to tell us something fundamental about political speech in our democracy, but that cannot be talked about in straightforward terms. If he's so right and the other side is so wrong, he should be able to say why in a clear, readable few pages. Instead, what we get is either way overcomplicated, so you'll have to go read 90 pages, or it's insultingly oversimplified: John Roberts flunks!

Here's the 90-page dissenting opinion, in case you're up for reading it. As we say on the limitless internet: Read the whole thing. I'll bet very few people have read the whole thing. Justice Stevens delves into the history of Americans' attitudes about corporations. (In Citizens United, the majority emphasized free speech, not the source of the speech, while the dissenters made a distinction between individuals and corporations and would have accepted limits on speech when it comes from corporations.) Stevens wrote about the fear of corporations in early American history. He quotes Lawrence Friedman's "A History of American Law": “The word ‘soulless’ constantly recurs in debates over corporations… . Corporations, it was feared, could concentrate the worst urges of whole groups of men”). Later in his opinion, Stevens augments that anxiety about corporations with his own words: "corporations have no consciences, no beliefs, no feelings, no thoughts, no desires."

Here's the whole "soulless" paragraph from Professor Friedman's book:

The word “soulless” constantly recurs in debates over corporations. Everyone knew that corporations were really run by human beings. Yet, the word was not completely inappropriate. Corporations did not die, and there was no real limit to their size, or their greed. Corporations might aggregate the worst urges of whole groups of men. No considerations of family, friendship, or morality, would temper their powers. People hated and distrusted corporations, the way some people came to fear the soulless computer—machines that can join together the wit, skill, power, and malevolence of infinite numbers of minds.

Thank God my computer is soulless! I'm using it to write this post, and I wouldn't like it to insert any morality, beliefs, feelings, thoughts, and desires, between me and you, as I invite you to aggregate your possibly evil urges here in the comments. With the power of the soulless computer we can join together the wit, skill, power, and malevolence of infinite numbers of minds.

How scary is that?

Reporting sex abuse to the police.

Instapundit asks:

SO IF IT’S A SCANDAL WHEN PENN STATE OR THE CATHOLIC CHURCH cover up sex abuse, then why isn’t it just as big a scandal when the Occupy groups urge people not to report sexual assaults on-site so that they can “deal with them internally?”

The Penn State and Catholic Church scandals involved child victims. Adults have an obligation to protect children and to stop predators from moving on to other children. When the victim is an adult, she (or he) is capable of consenting to sexual touchings, and depending on the circumstances, there can be room for interpretation and confusion. That may, under some circumstances, justify talking to someone who feels victimized about whether to perceive what happened as a crime and to try to find a resolution that does not bring the police into the situation. So there is a difference between Occupy [Your City] and the Penn State and Catholic Church scandals.

What may be the same, however, in all those cases, is the motivation to protect the organization, to preserve the organization's reputation and power and to put its interests above those of the individual.

And isn't it ironic that the Occupy [Your City] protesters are supposedly outraged over the depredations of corporations — that is, people acting in organization form, pursuing the interests of the entity? They undermine the foundation of their protest if they subordinate the individual to the group.

Cornel West — protesting Citizens United — gets himself arrested on the steps of the U.S. Supreme Court.

Reported by Susan Brooks Thisltethwaite at the Washington Post's "On Faith" blog:

The Supreme Court was a fitting venue for this demonstration both to honor Dr. King and demonstrate solidarity with the #OWS (Occupy Wall Street) movement. As Dr. West said prior to being arrested, there is “a relation between corporate greed and what goes on too often in Supreme Court decisions.”

In Democracy Matters, West makes this point in far greater detail “(The) illicit marriage of corporate and political elites — so blatant and flagrant in our time — not only undermines the trust of informed citizens in those who rule over them. It also promotes the pervasive sleepwalking of the populace, who see that the false prophets are handsomely rewarded with money, status, and access to more power.” (p. 4)

How is that "far greater detail"? With no reference to Supreme Court at all, it seems like less detail. Or by "detail," did Ms. Thisltethwaite mean verbosity? Thisltethwaite continues:

Here’s the point: If you are content to think that corporations are people and money is speech, as the Supreme Court decided in the by a vote of 5-4, in their Citizens United v Federal Election Commission decision, then indeed you are sleepwalking through your citizenship and giving over your faith to false prophets.

I believe, when future accounts of this era are written, historians will judge that the wake up call for many people in America was in early 2010 with that Supreme Court decision. The winter of 2010 is what led to the #OWS demonstrations in the fall of 2011.

Can we as citizens accept this definition of person, and of speech? This is what Dr. West, by his action on the steps of the Supreme Court, is asking us to stop and ponder. Corporation as person? A soulless legal entity as human being? No. We can’t and we must not. As I have written before, God didn’t create corporations.

And God didn't create The Washington Post, which is a corporation. Could Congress criminalize WaPo's reporting about political candidates  in the 2-month period preceding an election? It would protect us from distorted ravings like yours, Ms. Thisltethwaite. What do you say? You must say yes! I mean, if you care about coherence. And I know you don't.

... Dr. West did not call for anger, he actually called for “deep love” in his remarks before his arrest, and he spoke his solidarity even with the police, those who were about to arrest him.

This is worthy of another jail, at another time. In 1963, Dr. King wrote, in his Letter from Birmingham Jail....

"Corporations are people, my friend," says Mitt Romney to people who aren't really his friends.

They're heckling him.



He's going to get that quote thrown at him again and again, and he's ready to explain it here. He'll have to explain it in the future, and having an elegant explanation will serve him well.