Ah, one has to love those misleading headlines. This one involves Supreme Court Justice Sonia Sotomayor and former Justice Antonin Scalia who passed away early in 2016.

The headline intimates that Sotomayor was so angry at Scalia that she wanted to hit him with a baseball bat. Those are the words she uses but the full quote gives a very different impression.

Here it is: I’ve told people there are things he said on the bench when if I had a baseball bat, I might have used it, but when you work so intimately with people, you get to know the really personal good side of them.

Essentially she is saying despite differences they grew to respect and like each other. Or at least she him although I suspect the feeling was mutual. Certainly the friendship between Scalia and Justice Ruth Bader Ginsburg was well documented. They might disagree, vehemently, on a position but they didn’t let that get in the way of their personal relationships.

Reading the comments there are two themes. One that someone should take a baseball bat to Sotomayor. The other that Sotmayor should have actually taken the bat to Scalia. Both are commentaries about We the People. How we handle disagreement. It’s a shame so few of us can behave like Sotomayor, Scalia, Bader Ginsburg and their colleagues.

This willingness to take political and ideological differences into a deeply personal and hate fueled realm does not bode well for the future of the Grand Experiment.

We are, the all of us, in this together. So few seem to recognize it anymore.

Tom Liberman
Sword and Sorcery fantasy with a Libertarian Ideology
Current Release: The Gray Horn
Next Release: For the Gray

I’ve written about police seizures in the past but the story I just read brings my hate of them into even starker contrast.

The DEA pays clerks at travel agencies to find travelers who make short duration trips, one-way trips, trips paid for in cash, trips made by people with past criminal records, and various other “flags”. They then pull said traveler aside and ask if they can search their luggage. If refused they bring in dogs to sniff for drugs.

If what happens next doesn’t disturb you then you should probably stop reading my blog. If you have money, they take it and say see you later. No charges. No questioning. Just snatch and grab.

By the way drug sniffing dogs are awful at their job. They fail more than they succeed and in a statistic that tells it all, they fail more often with minority suspects. That clearly means the dogs are taking cues from their handlers to “report” a positive. That’s not my point but I hope you’re disturbed by it in any case.

The key here is that they are not interested in stopping crime, in making your neighborhood safe, in protecting and serving. They are interested in taking money, no matter its source. There are numerous cases where they took the money and after a long legal proceeding gave some of it back. Some of it!

The drug trade does a good job of making drug manufacturers and dealers wealthy but the drug interdiction trade does a better job of paying the salaries of tens of thousands of government workers who would otherwise be unemployed, or horror of horrors, actually protecting and serving rather than terrorizing and stealing!

There’s no excuse for this, none. I don’t believe in the War on Drugs at all. I think all drugs should be legal. Don’t get me started. All drugs are legal, just certain brands not controlled by the pharmaceutical industry are illegal. But even if you do believe drugs are harmful and we should be preventing their distribution I find it hard to believe you would be on board with taking money from drug dealers and letting them go without even trying to convict them. All that does is make them go back and get more drugs! The loss of cash is an operating expense.

The drug interdiction agents are actually incentivized to not charge drug dealers. They are much better off taking the money and letting the dealers go back and make more money which agents can then steal, I mean seize, at a later date!

Drug money has corrupted our government and our law enforcement agencies at the highest level. They are more interested in making, I mean seizing, money than in stopping crime!

Do you still believe in the War on Drugs?

Tom Liberman
Sword and Sorcery fantasy with a Libertarian Ideology
Current Release: The Gray Horn
Next Release: For the Gray

An absolutely fascinating case was decided by the Supreme Court this week. This case demonstrates why I find law such an intriguing subject.

A fellow named Jeffrey Hefferan was demoted from his job as a detective in the Paterson, NJ police department after he was spotted picking up a political sign for an opponent of the sitting mayor. Said mayor was friendly with the police chief.

It’s clear this action is unconstitutional. You cannot punish an employee for expressing a political preference for one candidate over another. However, believe it or not, that’s not actually what happened. Hefferan was picking up the sign for his mother. He was not expressing a political opinion as is his First Amendment right. He was demoted not for political speech but by mistake. Therefore being demoted wasn’t unconstitutional, or at least that’s the argument the city of Paterson made before the Supreme Court.

The court ruled 6 – 2 in favor of Hefferan.

I agree with the court and let me explain why. The two justices who dissented, Justice Thomas and Justice Alito, agree with the city of Paterson because Hefferan wasn’t demoted for his protected First Amendment rights, he was demoted by people mistakenly believing he was expressing said rights. This is an insistence upon a Strict Constructionism interpretation of the Constitution. If we are to take the Constitution for its literal meaning instead of its intent then Thomas and Alito are correct in this case.

I argue that the point of a law is its intent. The question Strict Constructionists then demand is: Who determines intent?

Judges, that’s who. That’s the whole point. The written word is always going to fall short of the intent of the law. I certainly don’t like judges who interpret in a manner that expands the Constitution beyond what I consider reasonable but I cannot indulge in the intellectual deceit that there is no such thing as interpretation. Every case is based on interpretation of ambiguous words. Alito and Thomas rely on volumes of interpretation of the First Amendment. Is a political sign actually Freedom of Speech? Speech literally is the spoken word, not the written word. It has long been interpreted to mean the written word but that’s not the literal meaning of the Free Speech section of the First Amendment.

The First Amendment reads thus: 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,…

Congress is not passing a law of any kind in this case. A local law enforcement agent demoted a subordinate. A Strict Constructionist must agree that any government official can fire anyone for their political beliefs at any time. By this logic a state could pass a law making being a Democrat, Republican, or Libertarian illegal. They could imprison those who dissent. After all it is not Congress passing said laws.

We must always consider intent, even if that interpretation is wrong at times.

It we insist on Strict Constructionism the Constitution becomes a worthless piece of paper.

Of course Hefferan was demoted for his political opinions. His political opinions were mistakenly identified, that’s true, but the underlying reason he was demoted remains clear and unmistakable.

The Constitution guarantees that we can speak our political minds and not be punished by the government for so doing, even if the wording does not explicitly express such. Hefferan works for the government. He cannot be demoted for either expressing his political opinion or by someone who mistakenly thinks he is expressing his political opinion. They are one in the same.

Tom Liberman
Sword and Sorcery fantasy with a Libertarian Ideology
Current Release: The Girl in Glass I: Apparition
Next Release: The Gray Horn

I just read about an interesting legal case involving the crime of intimidation.

The situation in question involves a young girl who sent a message filled with emoji or emoticons of guns and knives to a school rival. It is not the first of its kind to reach the court system. Emoji of guns next to emoji of police officers and other such missives have been making their way through the court system of late.

Before you think the situation is completely ridiculous consider this question: If you send a message to someone saying “I will kill you” is it much different than sending a message with an emoji that looks similar to the person with a gun pointing at them? That’s what the courts are being asked to decide.

Intimidation is a tricky law to pinpoint and I’ve linked the Wikipedia article on the subject in the opening sentence of this post. Basically you can say something like, “I am going to kill you” but if the other person doesn’t have a reasonable fear that the action will be undertaken there is no intimidation. If they have that reasonable fear then it is potentially a crime.

I think it’s silly to dismiss this idea. We all know that something as simple as a wink or smiley face can completely change the meaning of the written word. These emoji can be used in an intimidating fashion.

My opinion on these sorts of legal tangles is fairly straight-forward. It comes down to a case by case examination. If the threat appeared reasonable and credible to the person intimidated they have some recourse, particularly if the intimidation changed their behavior. Let’s say a kid is afraid to go to school because of credible threats against their life, whether delivered by emoji or words.

Imagine if someone threatened you with death at work. That would be a serious situation and reasonably requiring investigation. The onus is on the person writing the words. Maybe putting a gun next to the head of an emoji of a balding, aging, white fellow that sort of looks like me might seem funny but perhaps I would not take it that way. Particularly if we had a history of troubles. If the goal was to change my behavior in some way we have a legal situation. That’s the whole point of intimidation laws.

I realize people, kids in particular, can say and do stupid things without meaning to threaten at all, I would generally err on the side of having to show a credible theat. I’d say avoid the courts and settle it with a handshake. But there are more serious situations and just because an emoji was used rather than words is no reason to ignore it.

What do you think?

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Tom Liberman
Sword and Sorcery fantasy with a Libertarian Ideology
Current Release: The Girl in Glass I: Apparition
Next Release: The Gray Horn