A society of sheep must in time beget a government of wolves. - Bertrand de Jouvenel
Today’s column features three egregious examples of government overextending its reach, and one extra item for diehard Maggie fans.
Left or Right?
Adherents of the “liberal vs. conservative” fallacy claim that giving government the power to punish those who hurt others’ feelings (as in “sexual harassment” and “hate speech” laws) is a “liberal” idea, unless of course those “hurt feelings” happen to be religious or to involve sex, in which case it magically becomes “conservative”, unless the rhetoric one uses to support such a law includes language about “demeaning women”, in which case it obediently shifts back to being “liberal” again. And as everyone knows, “liberal” laws can never be enacted by those “rednecks” in “red states” (itself a term which flies in the face of long-established tradition that red=leftist) like Tennessee. So one has to wonder how dualists explain the recent law discussed in this June 6th column on The Volokh Conspiracy which criminalizes hurting people’s feelings?
Friday, a new Tennessee law was changed to provide (new material italicized):
(a) A person commits an offense who intentionally:
(4) Communicates with another person or transmits or displays an image in a manner in which there is a reasonable expectation that the image will be viewed by the victim [by telephone, in writing or by electronic communication] without legitimate purpose:
(A) (i) With the malicious intent to frighten, intimidate or cause emotional distress; or
(ii) In a manner the defendant knows, or reasonably should know, would frighten, intimidate or cause emotional distress to a similarly situated person of reasonable sensibilities; and
(B) As the result of the communication, the person is frightened, intimidated or emotionally distressed.
So the law now applies not just to one-to-one communication, but to people’s posting images on their own Facebook pages, on their Web sites, and in other places if (1) they are acting “without legitimate purpose,” (2) they cause emotional distress, and (3) they intend to cause emotional distress or know or reasonably should know that their action will cause emotional distress to a similarly situated person of reasonable sensibilities. So,
1) If you’re posting a picture of someone in an embarrassing situation — not at all limited to, say, sexually themed pictures or illegally taken pictures — you’re likely a criminal unless the prosecutor, judge, or jury concludes that you had a “legitimate purpose.”
2) Likewise, if you post an image intended to distress some religious, political, ethnic, racial, etc. group, you too can be sent to jail if governments decisionmaker thinks your purpose wasn’t “legitimate.” Nothing in the law requires that the picture be of the “victim,” only that it be distressing to the “victim.”
3) The same is true even if you didn’t intend to distress those people, but reasonably should have known that the material — say, pictures of Mohammed, or blasphemous jokes about Jesus Christ, or harsh cartoon insults of some political group — would “cause emotional distress to a similarly situated person of reasonable sensibilities.”
4) And of course the same would apply if a newspaper or TV station posts embarrassing pictures or blasphemous images on its site.
Pretty clearly unconstitutional, it seems to me.
“Unconstitutional” is an understatement, especially considering that government officials are people and criticism of their policies might indeed “offend” them. This law is pure, unadulterated totalitarianism and I can’t imagine that it will be allowed to stand even in the current political climate. But in the meantime, I’m glad this blog doesn’t originate in Tennessee.
Kelly Michaels called my attention to government attempts to suppress bitcoins, a decentralized online monetary system which exists on peer-to-peer networks without relying on banks, and therefore leaves no paper trail. The government’s excuse is that people can use the currency to buy drugs, but it doesn’t take an economic genius to recognize that there’s a lot more at stake than that; if bitcoin can become established the underground economy could explode, destroying the present government monopoly on currency and making a truly free market possible for the first time in several generations. One thing’s for certain; even if the government manages to quash this particular version of the phenomenon, decentralized currency (i.e. standardized barter) is an idea whose time has come, and attempts to crush it will be about as successful as the “War on Drugs” and the “War on Whores” have been, and for the same social and economic reasons.
It’s Different Because It Involves Sex, Part Umpteen
Despite considerable pressure from soi-disant “conservatives”, federal officials have steadfastly refused to limit the definition of “art” to those creations and performances which are both non-sexual and inoffensive to practically everybody, but apparently the lawheads on a New York State appellate court feel no such compunction and have ruled that dancing isn’t dancing if it’s sexy. Their motivation? Music and dance performances aren’t taxable in New York, and as explained in this June 11th AP story, they couldn’t let a little thing like the law get in the state’s way of robbing a strip club:
…Four Appellate Division justices agreed with a state tax appeals commission’s earlier finding that dances onstage or in private rooms at the club Nite Moves in suburban Albany don’t qualify for a state tax exemption as “dramatic or musical arts performances.” Nite Moves contested a tax bill of nearly $125,000 plus interest on lap dances and admission fees stemming from a 2005 audit. Its attorney, W. Andrew McCullough said Friday the club has a later, larger bill it is also challenging, and that he would probably appeal the Appellate Division ruling. McCullough said the impact of the ruling probably won’t be widespread since most establishments featuring exotic dancers as entertainment are bars mainly selling alcohol where other tax rules apply. “We admit the ballet is a little different and maybe a little more finely tuned,” McCullough said. Still, the club tried to bolster its artistic argument with testimony from a cultural anthropologist who has studied exotic dance and visited Nite Moves, and who said the lap dances should be considered choreographed performances.
The court said it agreed with the state Tax Appeals Tribunal’s determination that Nite Moves didn’t present sufficient proof that it deserves a tax exemption. The court noted that the club’s dancers aren’t even required to have formal dance training, “and, in lieu thereof, often rely upon videos or suggestions from other dancers to learn their craft.”
“It was purely and absolutely a value judgment,” McCullough said, citing First Amendment issues about free expression and adult entertainment.
Simply and bluntly put, the appeals court is full of shit. The only limitations on the First Amendment currently allowed are those for speech which creates a “clear and present danger” (the classic example is shouting “Fire!” in a crowded theater) or for obscenity. Lap dances are hardly dangerous (except to the recipient’s wallet), and if they were declared obscene they would be illegal and therefore prohibited (thus defunct as a cash cow). Unless they fall under these exceptions they are protected under the First Amendment, and if there’s a definition of “dance” which excludes sexy moves, adherents of the tango and lambada certainly aren’t aware of it. A government has the right to tax specific activities which occur within its borders, but if the State of New York wants to tax stripping while giving ballet a free pass, it’s going to have to do a lot better than merely saying that exotic dancing isn’t dancing just because it’s sexually stimulating.
I’ve Been a Busy Girl Lately
For the past few weeks I’ve been helping Sex Workers Without Borders (Jill Brenneman’s sex worker rights organization, of which I and several of the bloggers I link are members) to spruce up its website, and Furry Girl also asked me to write a little “Intro to Prostitution” for her new Sex Work Activists, Allies and You website, which launched yesterday. On Tuesday evening I was interviewed by Deep Geek for his Talk Geek To Me podcast, which also posted yesterday. And finally, I’ve been asked to contribute some guest columns to a relatively new libertarian blog called Nobody’s Business; I’ll let you know as those are published.