Monthly Archives: April 2018

A Mistaken Argument

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The Supreme Court heard oral argument earlier this week on the legality of President Donald Trump’s Executive Order producing a moratorium on entry into the US from certain selected nations.  Neal Katyal, representing those arguing to keep Trump’s EO blocked,

says Congress previously has rejected exactly the kind of nationality-based ban that Mr Trump has implemented.

Whether or not that’s true, though, is irrelevant.  All that the Court can consider (aside from what is in the Constitution, which is always before the Court, and what’s in the Executive Order before the Court today), is what Congress has done this time.  Past actions are irrelevant, particularly since what Congress does today that differs or outright contradicts what Congress did yesterday overrides yesterday’s action.

The “Muslim Travel” Moratorium Case

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The Supreme Court is hearing this case as it pertains to the current Executive Order that imposes a moratorium on entry into the US by persons coming from certain specified nations.  (In aside, I emphasize that calling the EO a “Muslim ban” is dishonest. It presents an impermanent moratorium on entry from nations representing a bare 10% of the world’s Muslims, and it presents the same impermanent moratorium on non-Muslim countries, like northern Korea.)

Lower courts have invoked campaign rhetoric, the clumsiness of the rollout of the first EO on the matter, a made-up permanence of the moratorium, and on and on, to create a court-manufactured policy determination that the EO was somehow prejudiced in some way.  With that fantasy, those lower courts have struck the EOs, one after another.

The lower courts have been imposing their own prejudices.

What’s in the text of the Executive Order? Is the EO itself legal? These are the only questions legitimately before the Justices. Campaign rhetoric is not in the EO, and so cannot be considered. The clumsiness of the rollout of the first EO had nothing to do with the EO—or with the one presently before the Justices—and so cannot be considered by the Justices.  The duration of the moratorium is a political decision, and so cannot be considered.

In Connecticut National Bank v Germain, the Supremes held

…time and again that courts must presume that a legislature says in a statute what it means and means in a statute what it says there.

The concept plainly holds for EOs as well.  If it’s not in the EO, the EO doesn’t say it.

Whether the EO’s moratorium on entry into the US from a selected set of nations is good or bad policy is certainly worthy of debate, but it’s strictly and solely a political debate to be had by We the People, and through us, our elected representatives. Politics and associated policy decisions are beyond the ken of courts.

False Choice

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Consider the kerfuffle involving corm farmer subsidies in the form of ethanol mandates and the required use of ethanol by oil refiners as they produce vehicle fuels.  The argument is being presented as a choice forced on President Donald Trump in that he “must choose” between the corn farmers and the oil companies as the kerfuffle is solved.

Oil refineries want out of a costly requirement to blend ethanol into the gasoline they produce. Corn growers say the requirement diversifies the US fuel supply, and insist Mr Trump fulfill promises to at least hold the ethanol mandate.

This is wrong, because the choice is irrelevant.  What’s good for our economy is to get government to stop distorting the market and let producers and consumers decide for themselves what they want.  The situation as it stands elevates the cost of gasoline for wholly social engineering causes having nothing to do with free choices, it elevates the cost of automobile maintenance, and it elevates the cost of food—all for reasons having nothing to do with free choices and wholly for the sake of the social engineering demands of one group.

Trump needs to get rid of the ethanol mandate.  If there’s a market for ethanol in fuel, folks will buy it.  If the non-economic argument for ethanol additives truly is valid, let the social engineers make the case for it in the public square and show why folks should pay higher prices for the additives.

Battle Against Hate Speech?

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Bob Pearson, co-author of Countering Hate and CIO of W2O Group says that AI is able to identify hate speech today.

All human beings follow patterns online.  You can see what language, content, channel, and people matter to them. You can see which words trigger information seeking, which language is most associated with hate topics or sites, which people are the most important influencers and you can see a range of behavioral characteristics.

Except that humans can’t define “hate speech;” we can’t even define “hate.”  All that can be done is for each of us, individually, to identify what it seems like that to us—not what it is to anyone else.  A Justice’s remark about pornography—that he couldn’t define it, but he knew it when he saw it—is worse than wholly inadequate when Government tries to regulate speech, or when private enterprises try to regulate speech in the public spaces they create as their business models or offshoots of them.  Such regulation is a threat to individual liberty.

Artificial Intelligence certainly is not up to this task of discriminating unacceptable speech from acceptable.  The definitions of those terms will be programed by a select group of humans—who can’t define the terms except as they personally apply the terms to themselves.  This frangibility is demonstrated by those cases that go to jury trials and the differing outcomes differing juries reach on substantially similar cases.  All AIs can do is reflect the prejudices of their programmers.

How, indeed, is “hate speech” to be discriminated from the merely rude or offensive or uncivil speech?  To narrow the thing a bit, think about civility—simple courtesy.  Why should a New Yorker’s version of civility be forced to take a back seat to a Midwesterner’s or a Californian’s version of civility?  Why should one of the other two be forced to take a back seat to a New Yorker’s version?  On what basis would any definer pick one or identify a middle ground that doesn’t wind up being a more insidious censorship?

Consider Marshall McLuhan’s the medium is the message.  Sometimes the overt rudeness—even “hate”—is a demonstration of a point.  Is burning our national flag an act of hatred or political speech?  Is posting a picture of Mohammed…?  Prove it: it’s a hard line to draw between that and rudeness on the one hand or actual hate on the other.

Not even civility is “simple.”  How is something as complex as hate speech to be handled?

Yet the whole argument over identifying, and then censoring, hate speech is irrelevant other than the threat to freedom that is that effort to identify and censor.

The problem he [Pearson] says, is that Facebook and other companies have not taken up the charge to make the battle against hate speech a major priority.

No, Pearson is utterly wrong on this.  Facebook, et al., must not take up the battle, any more than can Government be allowed to.  Any effort along these lines can only be the despicable bigotry and the equally shameful cowardice of censorship.  Bigotry because all such efforts amount to is one man, or a small group of them, imposing his prejudice of acceptability on the speech of all others.

Hackneyed as it’s become, Justice Louis Brandeis still is right: the answer to bad speech—however defined—is more, and better, speech—however defined.

Engage in the discourse, don’t cower away from it.

Foolishness of Zero Tolerance

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…or of intolerance; the two are interchangeable terms in this context.  This context is the overreaction of school management and local police departments to remarks concerning “threats” to schools.

Gina Gobert’s 12-year-old daughter was detained overnight at a police station in Oakdale, LA, after allegedly talking to schoolmates about a social-media post she said she received that threatened violence against the school.

School management, it seems, decided the girl had received no such threat and turned her over to the police, who decided to charge the child with “terrorizing.”

And this:

“You can’t joke about this stuff. It’s just unacceptable behavior in today’s world,” said Sheriff Craig DuMond in Delaware County in New York, where an 8-year-old was arrested in March on a felony charge of terroristic threat for allegedly threatening to burn down his school in Davenport, NY.

With adults, maybe.  But with children?  This is ridiculous, not least because, as minors, they are by definition incapable of making their own calls on such matters.  As a practical matter, though, they’re just too inexperienced—they literally haven’t lived long enough—to be able to form such judgments or to reason through the associated implications.  And: it’s the nature of children to push boundaries as they seek out their places in the world—and to change those places.

And this:

“If you threaten a school, you are going to be charged,” said Eric Smith, a prosecutor in Macomb County in Michigan, where 54 students have been charged in school-threat cases in the two months since Parkland, up from 17 in all of last year. “We get a lot of kids saying they were just joking, wanted attention, were acting out against bullies. Law enforcement doesn’t know if it’s real or not.”

Don’t know, therefor it’s OK to arrest them, lock them up, then do the investigation.  Guilt by accusation, guilt by dislike of what’s being said.  Jokes are no joke.

Even with adults, though, the matter is contextual; blanket bans are just the inflexibility of intolerance, and it suffocates even legitimate interactions.

My usual question, this time for school management and the police: what’s your limiting principle? Where will this naturally stop, and joking around—including dark humor joking—be successfully discriminated from actual threat?

And: is the “zero” tolerance foolish, or is it dangerous to our liberty?