The censorial power is in the people over the government, and not in the government over the people. – James Madison
I’ve written before about ad hominem arguments, those which attempt to attack the speaker rather than his position; generally, they are employed by those who are unable to present a cogent counterargument, and must therefore appeal to the listeners’ emotions rather than their minds. A related logical fallacy is circumstance ad hominem, which seeks to discredit a claim merely because the proponent has some compelling interest in it: “Of course Maggie would say avails laws are bad, because she owned an escort service.” In the past few years, governments have unveiled a new weapon in the fight against civil rights which is actually a reversal of circumstance ad hominem; because individual liberties are inalienable and therefore very difficult to argue against, government lawyers are increasingly turning to arguments against “standing” rather than valid counterarguments against the claimant’s case. In other words, when a challenge to a particular rights violation is brought to court, government lawyers do not argue that it’s OK for the government to violate that right, but rather that the person bringing the case has no right to make the challenge because the law didn’t “really” affect him. Brian Doherty discussed a recent example in Reason:
…A…licensing board in North Carolina tried to suppress a blogger who talked up and advised people on the health benefits of the “paleo” diet…telling him…what he could or could not say about his belief that the high-meat, low-carb diet helped him with his diabetes. The case was dismissed by a federal court…the Institute for Justice’s press release [states]:
…a federal court dismissed diabetic blogger Steve Cooksey’s free speech lawsuit on standing grounds. The case, which has received significant national media attention, seeks to answer one of the most important unresolved questions in First Amendment law: Does the government’s power to license occupations trump free speech? “In America, citizens don’t have to wait until they are fined or thrown in jail before they are allowed to challenge government action that chills their speech,” said Institute for Justice Senior Attorney Jeff Rowes. “When the executive director of a government agency goes through your writing with a red pen and tells you on a line-by-line basis what you can and can’t say, that is censorship and the courts can hear that case.”
In December 2011, Steve Cooksey…started a Dear Abby-style advice column on his diet blog to answer readers’ questions. In January 2012, the North Carolina Board of Dietetics/Nutrition informed Steve that he could not give readers personal advice on diet, whether for free or for compensation, because doing so constituted the unlicensed, and thus criminal, practice of dietetics. The State Board also told Steve that his private emails and telephone calls with friends and readers were illegal…Steve’s case was dismissed October 5 on the grounds that Steve did not suffer an injury that gives him a basis to challenge the government’s actions. The Institute for Justice plans to appeal and will argue that the government cannot single people out, tell them that their speech is illegal, and then plead in court that it has not chilled their speech…
…This sort of insanely stringent attitude about “standing”–roughly that you have no right to challenge a law damaging your rights until you’ve actually been arrested or fined–was also at play in the history-making Second Amendment challenge Heller v. D.C…[in] which…five of six plaintiffs were kicked off a case trying to vindicate their ability to own a weapon in D.C. The only reason any of the plaintiffs survived is that one of them, Dick Heller, had had an attempt to file for a permit to own a weapon denied. The Court recognized a permit denial as an injury; having a core constitutional right denied, not so much…
Regardless of what you think of the “paleo” diet, the fact is that answering questions informally and without making a profit cannot be construed as the practice of a profession by any stretch of the imagination; one might as well prosecute a farmer who helps his neighbor build a barn for “practicing architecture without a license”. Furthermore, I must point out that Cooksey could legally publish a book saying exactly the same things as he says on his blog, and that book could then legally be sold in North Carolina and everywhere else in the U.S. Though the licensing board probably didn’t think things through before throwing its weight around (no surprise there), the state’s attorneys clearly recognized that the case was without merit and therefore, like the poor debater reduced to ad hominem, decided to attack the arguer rather than the argument.
Nor is this practice limited to the United States; the Supreme Court of Canada recently ruled against the exact same argument, which government attorneys have used to block a challenge against Canada’s prostitution laws for the past five years. As I stated in TW3 (#39),
The government’s argument against the suit relied on the sophistry that one of the parties in the suit (Sheryl Kiselbach) was no longer affected by the laws due to being retired, and that the other party (the DESWUAVS) could not be affected because it was an organization, therefore neither had the right to sue. But the judge realized that the government’s claim that streetwalkers had to bring such suits individually was absurd, and ruled in favor of the group.
Let’s hope that the court which hears Cooksey’s appeal comes to the same wise decision, and thereby establishes the precedent that the government cannot silence citizens by preventing them from even having their day in court.
In regards to professional licensing, I much prefer the British system. Professional licensing does not exist under the law of England and Wales (it may under the law of Scotland or Northern Ireland, neither of which I am knowledgeable about).
What exists instead, is protected titles. So, for example, “dietician” is a protected title, and any person lacking the professional qualification is not allowed to call themselves one (“fraudulent misrepresentation”)
For some protected titles (e.g. “(medical) doctor”) there are particular things that only a person with the protected title is allowed to do (e.g. write a prescription).
But there isn’t a general law on “unauthorised practice of a profession”; rather there is “fraudulent misrepresentation” and there are specific rules requiring professional qualifications to do particular things.
Some other examples are that only a certified structural engineer can sign off on plans for a building above a certain size/complexity, only a barrister (or a solicitor-advocate) can represent you in the Crown Court, County Court, High Court or any higher court (magistrates’ courts allow ordinary solicitors, lesser tribunals and small-claims allow all sorts of people, depending on the tribunal’s rules), only a pharmacist is allowed to prepare prescription drugs, or to sell non-prescription pharmacy-only drugs.
Bother, I was intending to add a bit to that…
Standing is used to protect the courts from people arguing over things that don’t affect anyone and is a very sensible rule to have. Using standing to prevent cases ever coming to court is bonkers and I would hope that the Supreme Courts would come down on it like a ton of bricks.
Yes, and sometimes ad hominem-like arguments are valid, such as pointing out that the guy defending Stalin is his grandson. It’s when the tactic is used to block substantive arguments that there’s a problem.
Yes. This tactic needs to have this happen to it.
So giving “advice” to someone is now somehow illegal if there’s a group of actual professionals associated with the subject of interest?
WTF!
Would I be attempting to practice as a Doctor if I told someone they should wear a condom to protect from venereal disease?
Shit Maggie – I think you have trampled all the fuck over this law in the few years you’ve been here blogging!
On another note – anyone paying attention to how the FBI got into David Petraeus’, Paula Broadwell’s, Jill Kelly’s, and that General in Afghanistan’s email accounts? Holy shit people – nothing is sacred anymore.
http://theweek.com/article/index/236326/what-the-heck-fbi
As so often happens, Glenn Greenwald is the man to read on this.
I don’t agree with Glen on everything – but he’s damn sure spot on with that column! Thanks for that Maggie.
On a humorous note … God – this is funny!
http://www.rawstory.com/rs/2012/11/13/abc-station-botches-petraeus-book-cover-all-up-in-my-snatch/
krulac, that was VERY funny. You can just imagine the photo-shopper high fiving his buddies over drinks.
Nothing is sacred anymore!!! General Petraeus, former U.S. Army, and General Allen, U.S. Marine, could be prosecuted under the U.S. Uniform Code of Military Justice, UCMJ, for adultry which is still a crime. The U.S. Military can even drag someone in for any crime under the UCMJ for what they did in the past while still in the military if it falls under the statute of limitations. The U.S. military can even couurt martial and convict someone who is retired from the military for what they did off installation, off duty and out of uniform just because he or she accepts a military government retirement paycheck.
This is yet another shining example of something Maggie McNeill tells us. Having an affair with an amatuer or cheating on your spouse is usually more dangerous than having sex with a prostitute. This is often the case where prostitution is illegal, but the danger of engaging in prostitution is mostly dangerous because it has been declared illegal and prostitution is not inherintly dangerous. Where prostitution has been decriminalized and maybe legalized and where one engages in it with a professional, it is certainly less dangerous than engaging in an adultry with an amatuer.
Well, yes you are correct that DP could be prosecuted under the UCMJ for “adultery”.
However, I personally know at least 12 Commanding Officers (O5 or above) who were “busted” for affairs. In every case – every single case – NONE of the officers was prosecuted even though they were on active duty at the time. EVEN THOUGH – some of those affairs involved civilian women who actually worked under their command.
They were not prosecuted – they were relieved of command and told to retire – which they did.
It also happened to several guys I knew in the Senior Enlisted ranks. One extremely high ranking Master Chief in the Navy who worked in Wash. DC was often seen at my command in Tennessee. WTF? I looked into it and he was having an affair with a female Sailor that worked for me. I reported the FRATERNIZATION – the affair didin’t bother me. Anyway – he was simply force-retired. I had no problem with that.
If DP gets prosecuted – it’s a helluva note – especially since he no longer wears the uniform and all of they who got off that I know – were wearing it when the affairs happened.
I may be a day late and a dollar short, but here it goes. You’re right that the higher ranked officers and higher ranked senior non-commisioned officer ranks are quite often not bothered or punished by the UCMJ even for adultry or fraternization. This happens more often to the lower ranking military people. I detest FRATERNIZATION more than adultry too. I even detest fraternization more than military people getting DUI’s in which no one was hurt. If something got damaged or someone got hurt in a DUI then I would hate it more. The reason why I feel this way is fraternization breaks the discipline and good order of the military.
For those of you who have never been in the military like Krulac and I have, you must understand that people in the military may have to issue orders to those under them which will get them seriously hurt to the point of maiming, mutilation and death. It’s difficult enough to do with a platonic friend. It’s at least as difficult with a friends with benefits situation. When you add romantic love to it then it’s even more difficult.
It’s telling that the incoherence of government’s reach for yet more power isn’t even answered by a coherent argument, merely a firm, “shut up!”.
Or, as a friend of mine is fond of saying – satirically – “SHUT UP! He explained.”
Hi Maggie,
Off topic, but have you SEEN this?
http://www.guardian.co.uk/world/2012/nov/14/ireland-abortion-scrutiny-death
Recounting her final days in UHG, her husband, Praveen Halappanavar, said: “Savita was really in agony. She was very upset, but she accepted she was losing the baby. When the consultant came on the ward rounds on Monday morning, Savita asked if they could not save the baby could they induce to end the pregnancy. The consultant said: ‘As long as there is a foetal heartbeat we can’t do anything.’
“Again on Tuesday morning, the ward rounds and the same discussion. The consultant said it was the law, that this is a Catholic country. Savita [an Indian Hindu] said: ‘I am neither Irish nor Catholic’, but they said there was nothing they could do.
Oh yes, I saw it, and it actually has me rather upset; I know what it’s like to have a baby die inside of me and the doctors delayed me for a few days, too, though I wasn’t in any danger as this woman was. I only hope this tragedy wakes a whole lot of people up. 😦
Something’s not right here. The Wiki says that abortion is legal in Ireland only when the life of the mother is endangered. This story says the doc’s couldn’t do anything because there was a fetal heartbeat.
If there is NO fetal heartbeat – then it’s not abortion – it’s dead tissue removal.
WTF? How can abortion be legal to save the life of the mother as long as the fetal hearbeat is gone? Doesn’t compute (not to me).
Korhomme … where are you??!!
I had a friend of mine who’s wife went through this about 30 years ago. His name was Swallow – and he was a Seaman in the Navy. Making Petty Officer was a great day for him – because he was no longer “Seaman Swallow”.
Anyway – his wife’s baby died in her womb – and she got this “septicimia” or whatever it’s called. She barely survived and could never have kids again.
But – I still don’t understand this case on another count – blood poisoning is usually caused AFTER the fetus is dead right? How could a living fetus with a heartbeat cause blood poisoning?
Korhomme … where are you??!!
I hear you, krulac, I hear you. I spent most of Wednesday trying to get my head round what happened — and it’s not wholly clear to me. And there’s been a lot of misrepresentation about the term “abortion”.
I’m trying to get my thoughts in order about 1) Savita and 2) abortion, and will get back.
Meanwhile, this post by Dr Jen Gunter is very good:
http://drjengunter.wordpress.com/2012/11/14/did-irish-catholic-law-or-malpractice-kill-savita-halappanavar/
My thoughts about Savita:
http://theempiricalreader.blogspot.co.uk/
Maggie,
As another example of the kind of mindset displayed by the state against the paleo blogger;
http://planningpool.com/2011/02/news/citizen-activist-accused-practicing-engineering-license/
and, same incident, different source
http://www.newsobserver.com/2011/02/03/964781/citizen-activist-grates-on-state.html
RALEIGH — David N. Cox says he was merely exercising his right to petition the government, but a state Department of Transportation official has raised allegations that Cox committed a misdemeanor: practicing engineering without a license.
Next thing you know, you’ll have to have a state license to do interior decorating. Ooops, y’already do have to. Or to paint your house. Coral Cables, I’m looking at you…
I feel so FREE in this Land of the Free! *eye roll*
I wonder if the licensing board will go after women’s and men’s lifestyle magazines? Like when they interview celebrities about their diet and exercise plans? Of course not. Always attack the little guy (or girl).
I just hope they don’t go after all the unlicensed “massage therapists” on backpage. 😦
Oh they’ll just get rounded up with the rest of us sex workers.
Round and round and round we go…
Thank you for that post ma’am. You’ve opened my eyes to something i hadn’t thought about.