Thursday, April 26, 2007

Supreme Court hears oral arguments on FEC law

On April 25, 2007 the Supreme Court, on the last day for oral arguments in its term, heard Federal Election Commission v. Wisconsin Right to Life. At issue is whether a provision of the BiPartisan Campaign Finance Reforem Act, or BCRA, really prohibits “issue ads” mentioning the names of public officials who are candidates for federal public office, when these ads are purchased.

Earlier administrative law rulings from the FEC had maintained that this law, despite a 2002 ruling from a federal court, does not apply to ordinary unpaid bloggers stating their views about officials and the conduct of officials with respect to issues. Back in 2004, there had been concern that the law could even shot down most amateur political blogging, leading to a major editorial skirmish between the Washington Post and Washington Times in October 2005. I had a blog entry on this in January 2007, here, and an earlier entry in November 2006, here. Still, many people feel that BCRA, even as more modestly interpreted, is an unacceptable intrusion on the First Amendment's protection for political speech.

The Washington Post story is by Robert Barnes, “Justices Reconsider Campaign Finance: Some Are Skeptical or Earlier Ruling,” p A10, The Washington Post, April 26, 2007, at this link.

The Cato Institute also held a forum on this issue. Richard Sincere has a detailed discussion of the forum and of the Supreme Court oral arguments here.

Friday, April 20, 2007

CNN has a 2nd Amendment faceoff today

Tom Plate, of CNN, has a column on CNN today with an amazing title, “Let’s lay down our right to bear arms, ” here. To CNN’s credit, Ted Nugent has an opposing column: “Gun-free Zones Are a Recipe for Disaster", here. Both columns invite comments from readers. E. J. Dionne Jr had an op-ed in today
s Washington Post "Gun Law Pragmatism," here. Dionne calls the U.S. the "laughingstock of the rest of the planet."

I have an earlier column on this blog on March 9 (here) about the DC Appeals Court’s striking down the residential handgun ban in the District of Columbia. This is still under probable review by the full en banc court. That column discussed the way the Second Amendment is interpreted, whether as a reasonably regulated individual right, or as a collective right (which, if so, could imply that military service is a right, a concept specifically rebutted in the 1993 don’t ask don’t tell law regarding gays in the military, a topic discussed widely elsewhere on these blogs).

I recall a Libertarian Party of Virginia convention in Richmond back in 1995. The hottest topic then was the Second Amendment, more emotional than even the income tax. GLIL listserver emails constant refer to the fact that the Virginia Tech tragedy occurred in a zone where persons could not defend themselves.

Now, I am rather shocked at any columnist willing to relinquish individual rights to protect oneself, one’s property, and when one has one, one’s family. In many urban situations, police are simply not prepared to respond quickly enough to every endangerment of ordinary civilians. I support the right of ordinary citizens to bear arms, with some appropriate amount of background checking. I do so even though I do not have any particular intention right now to purchase a firearm myself. The last time that I fired a weapon was in the Army, at Fort Eustis VA, in 1969, when we did our annual requalification and refamiliarization. I learned “marksmanship” with the old M-14, before M-16s were widespread. I do remember the rifle range in basic training, “squeeze those rounds off.” Despite my physical incompetence in basic, I earned Sharpshooter without much difficulty, and hitting 300 meter targets was not difficult. But I recall listening to the beginnings of Hanoi peace talks over the radio while doing ammo detail. Those were the days.

What happened at VPI is a tragedy, and it probably could have been prevented by appropriate interventions at many stages (detailed by many columnists now); and more careful background checks for psychiatric history may well be in order. But let us not give up a critical individual right for some nebulous idea of common welfare. You will simply have a world where the bad guys have all the weapons.


Houston incident: According to news reports, one person was killed, another wounded as the gunman then turned on himself, at the standoff at NASA south of Houston, TX near I-45 (the highway to Galveston). Stay tuned to media.


VA governor Timothy Kaine has signed an order blocking gun sales to persons ordered into outpatient mental health care. Tim Craig has a story "Ban on Sale of Guns to Mentally Ill Is Expanded: Kaine Targets Some Ordered to Obtain Outpatient Support," May 1, 2007, p B01, The Washington Post, here.

Update Note: The DC Circuit refused to hear the case en banc on May 8. DC may appeal to the Supreme Court

Wednesday, April 18, 2007

Supreme Court upholds partial birth abortion law

Today, the Supreme Court, in Gonzalez v. Carhart, ruled that the federal government (that is, Congress) can ban partial-birth abortions in some circumstances, even when the health of the mother could be a factor. This is the first abortion case before the Supreme Court in six years and the first major test of a federal law . Here is the slip opinion. The vote was 5-4 and there is discussion that the presence of Justice Alito (instead of O'Connor) was decisive. There is also concern that the opinion could challenge states to try to pass new complete bans on abortion and overturn Roe v. Wade (1973), whose plaintiff no longer supports abortion. Here is the CNN story. Back in the 1990s, Oliver North used to describe partial birth abortion as "infanticide" on his radio talk show. Pete Williams, justice correspondent for NBC, reports that Anthony Kennedy went into a discussion of the moral aspects of partial birth abortion.

Monday, April 16, 2007

DC Vote rally today, Emancipation Day

On a day filled with cold drizzle, blown by 40 mph winds from a cold front dragged along by a massive Nor'easter, the crowd for "DC Vote" seemed relatively small and quiet as it congregated in front of the Reflecting Pool on the west side of the Capitol in Washington.

This is Emancipation Day, April 16, a legal holiday for the District of Columbia, and as a result tax returns are not due until April 17, Tuesday. But this is certainly a fitting day for District residents to establish their right for a voting member in the House of Representatives, and possibly later for a Senate seat, or at least to share seats some how in Maryland and Virginia.

The picture shows me holding the sign, although I am a Virginia resident.

I had an earlier entry on March 17, on the constitutional questions regarding District of Columbia voting. That is here.

District of Columbia license plates carry the phrase "taxation without representation." In the 1960s, there was a lot of discussion of this issue, with no one willing to make the obvious point that the District is about 2/3 African American, although with the gentrification and expensive condos downtown and soon to be built near the new Stadium, the percent may go down. The District has fewer than 600000 residents, although in 1950 it had about 660,000. If it had its own Senate seat (which would certainly be Democrat) there would be questions about proportion.

You can visit the DC Vote website here.

In English speaking countries in the British West Indies, Emancipation Day is celebrated on the first Monday of August, or August 1 (the film "Amazing Grace") Slaves in the British Empire were emancipated Aug. 1, 1834. In the District of Columbia, it is celebrated April 16 because President Lincoln signed the Compensated Emancipation Act for certain DC slaves on 4/16/1862, nine months before his Emancipation Proclamation. Here is the wiki reference.

Saturday, April 14, 2007

Imus-gate: Explicit and implicit content

It’s actually happened to me a couple of times before. A comment that I made exploded in my face and haunted me for days or weeks later. (Maybe that’s almost all right: middle school and younger high school kids say blunt things that come out wrong or brutal because they don’t yet know how to say things in an acceptable way; “out of the mouths of babes.”) It happened once in middle school decades ago, and in a different context, it happened in the workplace a couple of years ago with respect to the “hidden meaning” (what the law calls “implicit content”) of a screenplay script that I wrote and posted on my own website.

That is in large part what strikes me about the Imus Incident. I used to hear Don Imus in the mornings when I lived in New Jersey early in my working career. Had I heard those three words, I might not have noticed right away. The “nappy” word might get justified by the fact that white people also can have “nappy” hair and entrepreneur Sean Fanning named his company (Napster) after that. Whatever the legal or copyright problems of the original Napster, no one found the company name itself offensive. (In fact, the name figured into the plot of the Paramount film “The Italian Job”, in which Fanning makes a cameo appearance). ABC commentator John Stossel has mentioned the term in connection with African American hairdressers who were unfairly required to get cosmetology licenses (in his “Give Me a Break” segment). The last word of the slur is a two-letter slang term which I have not heard much, but it used to be common in the South and has been associated with slavery and prostitution. That word is definitely a problem.

But what was more noticeable was the segment about the Rutgers basketball team as a whole. The media, despite the offense, plays it repeatedly. It seems aggressive and Imus’s tone sounds contemptuous of the players as people when the segment is taken as a whole. The video was put up by MediaMatters of America onto Youtube (link), and the Internet certainly made the publicity and offense from this incident spread quickly after Imus's comments on the morning of April 4, 2007. (I have more details on my video review page, here.)

After considerable pressure from advertisers and sometimes employees, major media outlets like MSNBC and CNS "fired" Imus late this past week.

There was some commentary on NBC's "Meet the Press" April 15 to the effect that Don Imus 's apologies are not for the remarks, they are for "getting caught." There is also a suggestion that Don is saying, "I am not a racist; I am just acting in the role of a racist on shock radio." (That was an element of the situation with my own screenplay on the web, although with respect to an issue other than race.) Shock radio does have effects sometimes, as well demonstrated by the 1991 Terry Gilliam film "The Fisher King" (or the Oliver Stone earlier film "Talk Radio" in 1988) (or even Don Scime's play "The David Dance").

It is noteworthy that NBC says it consulted with its employees before taking action. I worked for NBC as a computer programmer in New York City from 1974-1977, and look at this with a certain irony. Since the late 1960s, employers have had to show an increasing sensitivity to equal treatment of employees, and have adopted zero-tolerance policies not only against sexual harassment but also racist and other negative language in the workplace. I recall, back in 1997, reading an account of someone who was fired from a job for passing what was taken as a racist comment to another employee on a piece of paper (not even on corporate computers), suddenly informed a month later that he was being “investigated” by HR and terminated within 24 hours.

But the real problem here is the fact that the episode was aired in a public space. There are many elements. Was Imus particularly targeted because of the political agendas of Sharpton and Jesse Jackson? He was, after all, a “repeat, serial offender.” Imus, remember, justified his behavior in his own mind (psychologists call it “rationalization” – remember that in health and PE classes?) by the fact that similar language occurs all the time in gangsta rap and hip-hop, often from African American artists themselves. The argument is often made that a journalist or columnist of commentator has to maintain a higher standard of taste than does a music artist. I’m not sure that I buy that. What about bloggers? There is a raging debate on the Web today about “who can be a journalist”.

One other element of this stands out. Imus’s comment, at least this one, seems to have targeted people in a particular group. It is often said that such comments maintain a social atmosphere that hold people back. Yet he often hear individualistic arguments imploring people to stop whining and become more self-empowered and accountable for themselves. Just ignore these comments.

If Imus had been watching the Gay Olympics, I do wonder what kinds of phrases he would have come up with. My own personal inclination would have been to ignore anything, and focus on my own personal situation and being more responsible for it. Then such comments would have become like a red herring.

We thought we had a handle on the whole question of civility in speech in the public space. A lot of it does deal with epithets, offensive slang, and explicit content. But implicit content, motive, intent, integrity, and a longstanding pattern of speech and public behavior matter, too. That part is much harder to assess, and in a world of Web 2 and 3m dynamic searches and profiles it is starting to unravel.

Update: Monday April 16

The first bit of "conservative backlash" from all of this may be the StopRosie site, referring to Rosie O'Donnell on ABC's daytime show The View (11 AM EDT). I don't really have a problem with anything she says -- however indignant she sounds sometimes -- but her fued with The Donald Trump was silly.

Thursday, April 12, 2007

Nifong-gate and its lessons: would make a great movie

There was no real surprise when North Carolina’s attorney general Roy A. Cooper dismissed all charges against the three Duke lacrosse players.

There are plenty of lurid details on other sites, and that brings up the first point. The young men (Reade W. Seligmann, David F. Evans, and Colin Finnerty) presumably had enormous legal expenses to clear themselves, and (apart from a questionable effort to litigate) the obvious way to make the money is books and movies. I don’t think it’s hard to imagine that mainstream large trade book publishers and television and motion picture companies will be interested in buying the rights to publish and present this story. That’s appropriate, and the three men will need the income from such deals. The media can help them now, but it could be that early media bottom-feeding after the arrests helped encourage Nifong to rush his prosecution and ignore potential exculpatory evidence.

In fact, the case for a docudrama or dramatic film, even a theatrical release, aimed perhaps at the independent film market, is overwhelming. It’s easy to guess which studios would find this material compelling: Lions Gate, the Weinstein Company, Dreamworks, and Participant (in connection with Warner Brothers), perhaps even Mark Cuban’s Magnolia Pictures, sound like obvious companies. I certainly look forward to going to see such a film. Maybe I could even help write it.

Any such film (call it “Durham” as a provisional working title) is going to have to deal with the convoluted moral lesson of the episode. The obvious one is that our criminal justice system is far from perfect. We hear a lot about racial and religious profiling these days, and government’s going after vulnerable defendants. This seems like racial profiling in reverse. Rogue district attorney Michael B. Nifong seems to have imagined the political gain of going after “white preppie privilege” (and against the male double standard that permits some kinds of sexual promiscuity, especially heterosexual -- even the Washington Post editorial on 4/13 was critical of the boys' hiring a female stripper for a party). Perhaps this does sound like a perverse kind of karma. Any time you get too privileged, someone could target you, and you might deserve it even if no one could really prove you actually committed a crime. Here, the case kept falling apart. At first, it was clear that there was reasonable doubt that would prevent any reasonable jury from convicting, based on all of the irregularities in the dancer’s complaint and failure of the DNA evidence. Finally, the doubt was no longer just reasonable, it was overwhelming. The attorney general seems ready to admit that the complaint was a fabrication. You are left with the dangers of “thoughtcrimes” and the possibility that, in hustle and flow, memories will be short and facts impossible to determine.

One issue, of course, is criminal procedure, and some states are much more careful than others. In some states, for example, you can’t start a secret grand jury investigation without arresting the suspect first (a much safer situation), but in others it is too easy for prosecutors to fish, especially against potential defendants who cannot, in a practical sense, afford to defend themselves properly. (Maybe we could talk about expanding "single payer" for legal criminal defense.) It’s not hard to see other areas of the law where abuses might occur. For example, consider the possibility that a home computer user might be framed by the activities of a hacker. In the litigation over COPA (Child Online Protection Act), to which I was recently party, one concern was that the overbreadth of the law could invite prosecutorial abuse. The experience with “don’t ask don’t tell” in the military (a policy which itself is not supposed to trigger UCMJ prosecutions) suggests that even here the government will sometimes go out of its way to threaten prosecutions when there are flimsy grounds. In libertarian hideouts, we often hear this about the IRS (the “Federal Mafia” problem).

The young men and their parents have also presented this episode as a test of family strength. One parent said that this false prosecution had put him into an emotional tailspin that only a parent could grasp. The incident seems to call for humility: no matter how "right" one is, one can need others, especially others to be loyal, as in a family. Bad things happen.

A good detailed account appears today in The New York Times, April 12, 2007, by Duff Wilson and David Barstow, “Duke Prosecutor Throws Out Case Against Players; Tragic Rush to Accuse; Cites overzealous District Attorney and Lack of Evidence of Attack.” .

Tuesday, April 10, 2007

My own accidental sqamous cell carcinoma -- and a redux on single payer

One day in February I was on a substitute teaching assignment with a math class, and a student inadvertently left an advanced biology text in the room. During the off period, I opened it randomly, and turned right to a page on the three main kinds of skin cancer: basal cell carcinoma, squamous cell carcinoma, and melanoma, the last of which really is a bad scene. I had noticed a pinkish nodule on my temple, on the left side, exposed to the sun for decades when driving, especially in Texas, where the sun angle is stronger, and where I was too cheap for a.c. my first year when I owned a Chevette. The nodule, ulcerating, looked exactly like one of the pictures in the biology book.

I had to hunt around for an in-network dermatologist with my retiree health plan insurance company. It was three weeks until the appointment. He froze it and it came right off, but the biopsy came back “squamous cell carcinoma.” So he had to deaden, scoop out and burn out two significant areas, down to a depth of 3 millimeters. The cauterizing iron produced the odor of burning flesh.

I can remember similar horror back in 1983, when a family practice doctor suddenly decided to remove a lesion and biopsy for kaposi’s sarcoma. It was negative. But in most cases, a positive biopsy for the spindle cells means HIV infection. But the common forms of “real” skin cancer are nearly always caused by excessive ultraviolet light, often exposed decades before. Squamous cell carcinoma can metastasize, though somewhat infrequently, and my biopsy was labeled “invasive.”

Now the good part is the way the insurance works. I have a high deductible and co-pay, but the in network-providers can only charge a fraction of their normal charges. So the price that I have to pay is typically discounted about 65%, or about two-thirds. This makes repeated visits, if necessary, affordable for a dangerous problem like this. This is true even though it takes longer for the patient to spend his yearly deductible.

But for someone with no insurance, the same course of treatment would cost three times as much. I have wondered why the managed care market works this way, but there are many other models in economics where similar ideas to promote high volume work. For example, why do newspapers offer so much content on the web free when they still charge for print (and some archives). Volume and market share of public exposure are often strategically very important in pricing.

That is a big problem with dental care right now. Dentists want to recommend extremely expensive courses (a bridge for every lost tooth) that effectively leads many patients to “go without.” A couple of years ago, I ran into a similar experience. I had a large swelling under my jaw and numbness, which turned out to probably result from a tiny seed getting down into a gum pocket. The cat scan was discounted about 80% by the insurance company. But the actual surgery would be dental and not covered at all, so I go without.

How does this all fit into the health care debate? We hear about states enacting mandatory insurance programs, but are enrollees in this plans able to get the deeply discounted procedures? Any plan for universal health care that requires patient payment must deal with the fact that list prices for procedures (for uninsured patients) are several times what are charged to insurance companies on group plans.

We come back to wondering about single payer, as with the Canadian system. Remember, Canada does not have socialized medicine. The doctors can be entrepreneurs, but for hospitalization and many medical situations the government is the only payer. Medicare approximates that in the United States, and yet Medicare is often able to offer life-extending procedures (like coronary bypass surgery) to the extreme elderly on short notice. Waiting lists do not sound like an insurmountable problem. For a skin cancer like my sqamous cell carcinoma, visits can be safely spaced apart, as they are now in a private market. (For melanoma it is much more urgent, and for KS the treatment would have to deal with HIV). However, when I got a successful experimental surgery at the University of Minnesota and very rapid recovery after an acetabular fracture (normally a severe injury) from a convenience store fall in 1998, I wondered if a Canadian style system could have delivered such care, instead of letting me wait in traction. I was back to work in three weeks, never missing a day afterwards, and shed my crutches at the Academy Awards benefit in March a few weeks later.

Britain, in comparison to Canada, practices real socialized medicine, and seems to run into many more problems. There are many elements, such as dental care, and of course nursing home care, that the Canadian system does not cover; in many ways the coverages are similar to Medicare.

Although a single payer system would result in higher taxes, employers would be relieved of having to provide major medical health insurance, and this might help their competitive position in the world economy, and many workers would be relieved of paying major contributions to their premiums with deductions (as well of many of the health care bills themselves). In many cases, preventive care could be encouraged. However, “healthy” people would pay a large share of the costs, and moral hazard, even related to behavior (STDs, smoking, obesity, and the like) would become socially less relevant.

Tim Johnson, the medical reporter for ABC News, has recently argued for single payer in this country. For a Lewin Group article by Steve Lawrence on the California single payer proposal, go here.

Sunday, April 08, 2007

Eldercare: remote caregiving with video technology

In early 2007, there have been several media reports about technology that would enable adult children to monitor the care of their parents or any other elderly relatives from another home site, even another site. Those evil webcams (that should never be in kids' rooms, according to Internet safey experts) would be placed around the house in areas where the person needing care sleeps or frequents. An older typical report is by Brian Dipert, in Electronics Design, Strategy, News (EDN) “The human touch keeps the elderly and disabled technology-connected.” The link is this.

This is no small issue. Assisted living costs continue to escalate, and adult children sometimes give up jobs to watch parents, unless the parents are able to move in with them. As health care reform and Medicare issues develop and life-extension becomes an even bigger issue, the availability of some kinds of therapy could depend on the availability of supervision.

MedicAlert systems have been around for some years, but the practicability of installing home video systems with webcams and monitoring software on the caregiver’s computer, and of training the elderly person to use the equipment seems to be relatively recent, within the past year or so. The article, however, is from late 2004. This could become a much more important strategy for eldercare in the future.

Thursday, April 05, 2007

Lewin: Major health care consulting firm provides technical assistance on Healthy Marriage Initiative

A consulting firm that I worked from 1988-1980, on a project having to do with Medicare hospital operating margins, now has a service supporting clients want to support The Health Marriage Initiative.

The company is The Lewin Group, with this home page. The Marriage Initiative page is here.

The original federal website reference is this. This is the Healthy Marriage Initiative of the U.S. Department of Health, Education and Welfare, Administration for Children & Families. Most state governments have similar departments.

Given the tone of the debate in the Culture Wars, this is certainly a socially and politically loaded initiative. The tone of these pages is neutral, and it assumes most men and women want to be married with children, and that one reason they cannot stay married is excessive economic difficulties or problems with the emotional maturity of the marriage partners in a competitive, individualistic society.

Gay “marriage” is not itself mentioned on these pages. But, of course, the underlying cultural concern is getting deeper. People often do not feel that they have a personal incentive to marry and have families, or believe that they are playing into someone else’s agenda if they do. There may be personality issues which are environmentally or biologically driven, that others want to characterize as moral or character issues. Marriage is presented by some conservatives in institutional terms that impact everyone, potentially coercing participation in the heterosexual family from everyone. This initiative, which sounds benign enough, quickly can become loaded.

The marriage debate needs to be viewed in conjunction not only with the usual view of social problems (welfare), but also with changing demographics. It is becoming possible to keep people alive longer, and in advanced countries they often have fewer children. However Medicare and social security evolve (with advancing eligibility ages) or the debate over universal health insurance or even single payer evolves, one issue that is likely to develop is that the practical ability to extend life with good quality will be the availability of care from or presence of children, who often may not even have children of their own now. This is a new issue, because past generations (with bad habits like smoking and fatty foods) accepted a (shorter) "natural lifespan" where the elderly really could depend on their adult children. The marriage and economic dependence issue also affects the workplace, where employers find incentive to send jobs overseas or to remove fringe benefits, and not allow any leave for family responsibility unless legally driven. Tension then grows between the childless and those with kids, and people start seeing family as posing disturbing existential questions about their own priorities. One thing should be clear, that the arrangement (since World War II) of having employers provide health insurance is quickly becoming unworkable.

Sunday, April 01, 2007

Imam John Doe lawsuit against airline passengers argues for tort reform

A story by Audrey Hudson in the March 31, 2007 Washington Times, "Imams narrow target of 'Does'; Flight lawsuit cites bias, lies", link here, reports that a lawsuit filed by imams detained by law enforcement can go after passengers who "may have made false reports against plaintiffs solely with the intent to discriminate against them on the basis of their race, religion, ethnicity and national origin." In other words, the plaintiff imams are claiming they will only sue airline passengers whom they feel acted in "bad faith."

Nevertheless, the idea that an ordinary airline passenger could be targeted for such a lawsuit for doing what law enforcement asks in reporting suspicious activities certainly goes against public policy. It is hard to believe that a reasonable judge would accept such a suit. Nevertheless, average passengers do not have the deep pocket financial ability to defend themselves against frivolous litigation. Fortunately, it sounds likely here that defense will be offered pro bono.

Even so, this whole episode suggests that in this country we need to look at the idea of "loser pays" as is often the case in Europe seriously. John Stossel has reported this in the past. It also makes a good argument for buying umbrella insurance, often offered with automobile insurance although an incident like this has nothing to do with driving (which is a flaw in tying umbrella to higher auto insurance coverage limits).

In another frivolous case, this one in Britain, it's good to report that a British appeals court turned down an appeal of the plaintiffs suing Dan Brown of "The Da Vinci Code" for stealing "ideas" which, in American law for sure, cannot be copyrighted. Now British courts agree that such lawsuits are not in the public interest, and in this case the losers have to pay the court costs.