On today’s edition of Coffee and Markets, Brad Jackson and Ben Domenech are joined by Francis Cianfrocca to discuss Twitter’s decision to sensor tweets, North Dakota’s oil boom and the challenges their rapidly growing economy faces.

We’re brought to you as always by BigGovernment and Stephen Clouse and Associates. If you’d like to email us, you can do so at coffee[at]newledger.com. We hope you enjoy the show.

Related Links:

Twitter faces accusations of censorship; users plan Saturday boycott
Reporters Without Borders urges Twitter to reverse its decision to censor tweets
North Dakota Oil Boom Brings Blight With Growth as Costs Soar

Follow Brad on Twitter
Follow Ben on Twitter
Follow Francis on Twitter

Subscribe to The Transom

The hosts and guests of Coffee and Markets speak only for ourselves, not any clients or employers.

As Institute for Justice campaign finance expert Paul Sherman explains in the video above:

The irony of those protests is that you had groups of people getting together to speak out against a Supreme Court decision that protected the right of people to get together and speak out.

Indeed, people should not lose their right to free speech simply by exercising their right to freely associate.   And when people group together—be it on the steps of a courthouse, in the form of a trade union or as a corporation—they don’t lose their freedom to speak out.

Occupy the Courts protesters also mistakenly believed that the Citizens United ruling held that “money is speech.”  In fact, the Court never said that.  Rather, it ruled correctly that money facilitates speech.  And if the government has the power to control how much money you can spend speaking, then it effectively can control your speech.

Importantly, the law in question in the Citizens United case empowered the government to fine and even imprison ordinary people for engaging in certain types of speech.   The government argued in court that it had the power to ban videos and books.  I don’t believe that many Americans, including the Occupy the Courts protesters, think the government should be in the business of banning books.

Opponents of Citizens United seem particularly upset about the rise of Super PACs—a term used frequently this campaign season, often accompanied with a warning about their dangers.   But the Citizens United ruling only indirectly affected the creation of Super PACs.

Further, Super PACs actually help to level the playing field.

Before Super PACs, wealthy people could spend as much as they wanted voicing their opinions in campaigns.  For instance, Bill Gates could spend $1 billion on political ads, but if two people of more modest means decided to pool their money together to speak out, they would be limited to spending just $10,000 total.

In a case called SpeechNow.org v FEC, litigated by the Institute for Justice and the Center for Competitive Politics, the government ruled that the $10,000 limit was unconstitutional, giving rise to Super PACs.   That is, Super PACs simply allow ordinary Americans to do what wealthy people have been allowed to do for decades.

And while Super PACs may help people to speak more effectively this election season, ultimately it will be voters who decide which candidates to support. As Paul Sherman makes clear:

The real question raised by Super PACs is, are voters going to be allowed to decide for themselves which messages they want to consider before they cast their ballot, or is the government going to decide that for them?

Citizens United correctly recognized that the First Amendment protects the right of voters to think for themselves.  Moreover, by taking censorship of political speech off the table, Citizens United allows us to focus on the real problem with the political process:

It’s not that there’s too much money in politics, but that politicians control too much money.  As long as government is in the business of spending trillions of dollars and influencing countless aspects of the economy and our lives, special interests will inevitably be drawn towards them.

The only solution, then, is to shrink government.

The AIDS Healthcare Foundation (AHF) has advocated for the enforcement of condom mandates in the adult film industry for many years. Their most recent tactic is to put their mandate to a vote. By the end of November, AHF had enough signatures (15% of the voters in the previous mayoral election) to get the Initiative on the ballot. This means that come June 2012, LA residents might be able to vote on whether or not to tie porn production permits to the mandatory usage of “barrier protection,” like condoms in the film’s production.

However, there’s a big problem with the Initiative: prohibiting films that refuse to use condoms is a violation of the constitutionally guaranteed right to freedom of speech. While the U.S. is a democracy, we’re a constitutional democracy, which means individuals have a number of rights that are protected, regardless of the number of people who vote to abridge them. For example, 99% of a town may vote to make it lawful to imprison the 1% of the population without a trial. The measure might pass, but it would not be lawful as it would violate the constitutional right to a trial. In this case, the condom mandate would abridge free speech by prohibiting adult films that refuse to utilize some form of barrier-protection.

While it’s true that “obscene” speech is not guaranteed the same protection under the constitution as other types of expression, the industry as a whole could not be lumped into the obscenity category. The “Miller Test,” which is a method of determining obscenity that came out of the 1973 Supreme Court case, Miller v. California, would need to be applied to every film before the state of California would have the right to restrict. They would need to prove all of the following: that “the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest,” that “the work depicts/describes, in a patently offensive way, sexual conduct specifically defined by applicable state law,” and that “the work, taken as a whole, lacks serious literary, artistic, political or scientific value.” This requirement is perhaps the main reason that California mandates condom usage and fines but does not prohibit producers of condomless erotic films.

The ballot initiative, were it to pass, would condition the issuance of permits to produce adult films on compliance with the condom mandate. Presumably, if a producer is found to be non-compliant with the law, their license will be pulled and the filming stopped. This raises a number of questions on principles like the right to free speech and sexual freedom, as well as practical questions about consequences of truly enforcing this ban.

Condom mandates = an end to girl-on-girl

First and foremost of concern ought to be the implications of such a mandate on personal liberty and free expression. Ryan Keely, an erotic entertainer and sex educator, has been collecting statements from members of the industry in order to project the opinion of those people the ballot initiative seeks to protect. Justine Joli, an adult film actress who specializes in female-only films stated her belief that the requirements of this law would bring an end to her preferred genre:

Once again the government is trying to force me to have sex in a way that I do not enjoy. The proposed regulations would make girl on girl sex scenes un-sexy and un-marketable. As a girl on girl performer, I strongly oppose these new regulations. I feel girl on girl sex films would never be shot, and I would be forced to perform with men if I wanted to keep making a living in the industry I have worked in for years.

Another female performer, Ela Darling, noted that not only will the mandate reduce her safety on the job, but it will diminish her autonomy as a worker.

If these changes go through, performers will be considered employees of a production company rather than independent contractors… If that is the case, then the self-imposed STD testing procedures that have made me feel safe and secure in my career will be considered workplace discrimination, and I will be disallowed from verifying that my costars are free of infection.

Luckily for these performers, and anyone interested in preserving freedom of individual choice in work, sex, and art, the voices against the ballot initiative are growing in number and strength. Of those who are downright opposed to or simply skeptical of the initiative, a serious concern is the high cost the fight will impose on tax payers.  According to the AHF, the direct cost of verifying the ballot initiative will be $700,000 if more ballot initiatives are introduced. However, if it stands alone, the measure will need to piggyback onto a county ballot, costing taxpayers up to $4.4 million!

In addition to the concerns about the economic impact the ballot measure and subsequent mandate would have on Los Angeles, some lawmakers and regulators have expressed concern about the constitutionality of the measure. Earlier this month, the city of Los Angeles filed suit to invalidate the ballot measure on the grounds that it is preempted by state regulations, which already require barrier protection on adult film sets and called the Initiative a “waste of taxpayer money.”

As the Executive Director of the Free Speech Coalition noted, “History has shown us that regulating sexual behavior between consenting adults does not work. The best way to prevent the transmission of HIV and other STIs is by providing quality information and sexual health service.” And while the AIDS Health Care foundation honestly may have the interest of adult film actors in mind, their efforts to halt the transmission of STIs have backfired in a bad way. As I wrote about earlier this year, the AHF’s media war against the Adult Industry Medical Health Care Foundation (AIM) ultimately forced the organization to close. That facility had become a standard-bearer in the adult industry; if a porn actor wanted a job, it was obligatory to be in the AIM health status database, which required getting tested every 30 days. The AIM made it easier for directors to keep their actors safe, and when it closed down, the group that supposedly cared about adult film actors rejoiced.

Hopefully, if the measure does make it onto the June ballot, the voters of Los Angeles will recognize the rights of adult actors and all people to determine the best way to protect their health while expressing themselves artistically, sexually, and making a living. However, if the voters do decide that it’s their responsibility to protect consenting adults from their own decisions, they had better be prepared for the long and expensive legal battle that will surely follow.

An 18-year-old high school senior was scolded by her principal after she criticised her state governor in a tweet.

Emma Sullivan, of Fairway, Kansas, was reprimanded by the head of The Shawnee Mission East High School.

She was summoned to the principal’s office and was ordered to apologise to Kansas Gov. Sam Brownback.

Emma posted the tweet during a field trip to the state Capitol.

After meeting Mr Brownback, Emma tweeted: ‘Just made mean comments at gov brownback and told him he sucked, in person #heblowsalot.’

Mr Brownback’s office contacted the school and complained about the tweet.

The following day Emma wound up in the principal’s office, NBC Action News reports.

She said: ‘He laid into me about how this was unacceptable and an embarrassment.

‘He said I had created this huge controversy and everyone was up in arms about it … and now he had to do damage control.’

She said she was told to write a formal apology to the governor, which so far she hasn’t done.

Emma said: ‘I don’t agree with a majority of the things that he is trying to pass.

‘I believe that it is my right to state my opinion.’

The school’s principal said: ‘This is not about political views since none were given in the tweet – it’s about being respectful with a public official whether we agree or disagree with their viewpoints.’

Read more here. This is exactly wrong. We all have the absolute right to be totally disrespectful to any elected official. That a Governor, like Brownback, should miss this point is completely disheartening.

Our courts recognize few exceptions for the placing of limits on this exercise of free speech and in fact have themselves studied the issue in cases unrelated to OWS.  Courts recently have been debating whether limits on speech enacted by legislative bodies are constitutional.  As an example, a law prohibiting candidates for public office from lying about their opponents’ voting records during campaigns is drawing judicial scrutiny as an unconstitutional prohibition on protected free speech.  This matter is a serious one and whether we agree or not with OWS protestors (or tea party assemblies) we need to treat the subject based on constitutional principles rather than our own political predilections.  So why have the authorities suddenly stirred themselves to action to clean out OWS sites?

For one thing authorities have suddenly recognized some very important public principles:

First, public facilities are being taken over for the benefit of a few people as part of their attempt to advance solely their cause.  Parkland in central cities is very scarce and has been misused by groups who pitch tents from end to end in these parks and prevent (and in some instances intimidate) ordinary citizens from using public land.  Often these tent cities are abandoned during the day while the occupiers leave and go about their regular lives (going to work, going home, attending entertainment venues, etc.)

Recently, there has been a major spike in violence including shootings.  In Oakland protestors succeeded in shutting down the ports, which are a major, job producer in that city.  According to the San Francisco Chronicle “OWS protestors gathered up for their general assembly meeting and withdrew a resolution calling for future demonstrations to remain peaceful.  A faction of the protest group has advocated violence as a ‘diversity in tactics’ approach to demonstrating.”  Deaths have occurred in other cities as well, including Burlington, Vermont.   Secondly, there is an important public health issue that has arisen.  Protestors have been overwhelming the sanitary facilities at nearby businesses, cleaning and relieving themselves at bathrooms not built for such volume.  Finally, city authorities who have appeared to be looking the other way see that they have to take action.

The Weekly Standard on November 5 noted, “[a real] occupation of Wall Street isn’t going to happen.  Instead, it is something under which the left marches.  For the left, all politics is about occupation.  One country, one class or one group takes from another.  Politics is seen as national warfare or class struggle, or one group grasping for advantages over some other.”

Moreover, Congressman Denny Rehberg summed it all up with an idea to respond to OWS with a call to liberate Wall Street.

We’re over-taxed in small business, over-regulated, and over-litigated, and you can pick and choose which ones you want to address, but the government should be trying to lessen the tax burden, lessen the regulatory burden, and get the litigation out of the way,” Rehberg said.  More broadly, Liberate Main Street provides a rubric for a conservative agenda that contrasts with Occupy Wall Street.  It would be an agenda that works to foster opportunity, not envy; that seeks change through democratic processes, not mob pressure; that encourages enterprise, not resentment; that enlarges the sphere of personal and civic freedom, not big government; that liberates Americans’ energies, rather than pandering to their weaknesses; that acts to fix Wall Street’s problems, not to demonize American business.

That violence has been on the agenda of elements within the OWS movement from the get-go is really no longer debatable.  Ironically, the right peaceably to assemble is being compromised by those who want to turn thoughtful assembly into aimless mockery and occasional violence not just because of Wall Street, but also in support of every demand on every radical wish list from abolishment of all debt to the end of capitalism, corporations and government itself. Throw in a cheering section here and there for Chavez, Castro, and a sprinkling of crude anti-Semitism, and you have a movement that isn’t a movement at all, but rather a grand gripe conclave where those with real concerns and legitimate grievances are elbowed aside by those with agendas that serve no constructive purpose.

The time has come for law-abiding people of the left and the right to prevent peaceful assembly from being hijacked.  Police, as happened in New York, cannot standby and look the other way.  Finally, on November 15^th, the Bloomberg administration stirred itself and closed Zuccotti Park (itself not a public park) because of the threat of violence and serious concern over public health.

We frequently write about American Exceptionalism by which we mean the unique opportunity our citizens have to legitimately pursue their dreams free from interference by government.  This kind of opportunity cannot exist without the rule of law, which in the case of America is grounded in our Constitution, the centerpiece of which is the Bill of Rights.  If we Americans want to maintain and protect our Bill of Rights  (from which our right to peacefully assemble derives), all citizens must respect and vigorously support law enforcement that protects both the rights of the assembled as well as the rights of the communities in which these assemblages take place.

By Hal Gershowitz and Stephen Porter

Photo by Michael Stravato of the New York Times

To recap, my previous article entitled God Bless Our Military … Just Not At The Houston National Cemetery, shared how the Houston National Cemetery Director, Ms. Arlene Ocasio, was requiring grieving families and volunteer groups to not use the words “God” or “Jesus” at any funeral ceremony without her prior approval.

• The VA will not interfere with prayers during burial services.
• The VA will not edit or control the speeches of speakers at ceremonies or events at the cemetery containing religious messages or viewpoints and cannot ban religious words in verbal communications between the volunteers and veteran’s families.
• The VA will not ban religious speech or words like “God” or “Jesus” in condolence cards or gifts.
• Payment by the VA of the veterans groups’ $215,000 in legal fees.
• The VA will have a Bible, Cross and Star of David placed on an open shelf within the Chapel, that will be easily accessible and available for use by families if they so choose.
• The local members of VFW District 4 and Houston National Memorial Ladies would resign their positions as official VA volunteers. They will be free to provide their own texts of recitations to funeral homes so that veterans’ families can decide if they would like these groups to provide any services at the cemetery.

As you may remember, Ms. Ocasio has repeatedly stated that she was only trying to make prayers more inclusive of other religions, but instead:

1. … instructed Veterans of Foreign Wars District 4 to remove prayers from its burial rituals and to no longer utter remarks when handing the discharged shell cases from the rifle salute to the family of deceased veterans.
2. … instructed American Legion Post 586 to remove prayers from its burial rituals.
3. … told the National Memorial Ladies that they could no longer include “God Bless” in their condolence cards or speak religious messages to veterans’ families.
4. … shut down the Cemetery chapel and use it now for only a storage and meeting facility.

Despite the Department of Veteran Affairs defending Ms. Ocasio’s actions, even Texas Congressman John Culberson found the accusations to be TRUE when he went undercover at the cemetery.

Read more about the lawsuit against the Department of Veterans Affairs and Ms. Arleen Ocasio here.

The United States Constitution, Amendment 1 states “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

I hope you will consider attending this hearing with me and my fellow Americans to stand for freedom of speech and freedom of religion this Monday, 8/22, at 0900 hours, at the Houston Federal Court Building, 515 Rusk, 11th Floor, Courtroom 11C.

I pray for a full house.  I pray for peaceful protest against Ms. Ocasio’s actions. And I pray for justice for our fallen heroes and their families.

Join us!