You can not spend any decent amount of time in New York City’s Times Square without seeing or “running into” the Naked Cowboy.  It’s a guy named Robert Burck who, wearing nothing but a pair tightly fitting perv shorts,  plays his guitar for the tourists, gawkers and registered sex offenders looking for a quick visual fix.

I have seen Burck in his guitar playing “nakedness”.  There is always a crowd around him.  Some get their photos taken, get serenaded, gawk at his physique, even get married.  I have always drifted to the other side of the street. Even letting my eyes fix for a millisecond would be the equivalent of a trip to a male strip club and possibly necessitate years of counseling about my sexual inadequacies.  That being said, I rarely see any guys getting their photo taken with him.

Until this day however, I had no idea that there was also a Naked Cowgirl who, for the last 30 years, has been pandering her wares and “talent” in NYC in much the same manner as the Cowboy.  Apparently in too much the same manner as she has allegedly been accused of trademark infringement by Burck.

According to a cease-and-desist order Kane received from Burck, the Cowgirl’s name and act infringes upon the Naked Cowboy trademark.  Burck is asking Kane to pay him $5,000 per year or $500 per month to use the trademark as part of a franchise agreement.

I don’t know how the legal battle will resolve but I support the right of anyone to get naked in Times Square with or without guitar.  That’s the naked truth!

The battle to confirm Elena Kagan as a member of the Supreme Court begins.  There has been a lot written on her free speech views but very little content of hers to glean from. I will throw in my 1/2 cent.

At a 1993 conference at the University of Chicago Law School she spoke on the benefits of regulating certain “classes” of speech, specifically referring to pornography and hate speech.   The video of the speech was reviewed by Politico. She stated:

“those of us who favor some form of pornography and hate speech regulation” and told participants that “a great deal can be done very usefully” to crack down on such evils.

She further stated:

“Statutes may be crafted in ways that prohibit the worst of hate speech and pornography, language that goes to sexual violence”

While Kagan appears to be focusing more on conduct based regulation when it comes to hate speech, one has to be concerned when we start talking about  a categorical balancing of the costs and “value” inherent in certain speech.  This takes us into a legal form of “social engineering” that has no place on the court.

If speech leads to imminent lawless action or fits a few other very narrow categories  we already can regulate it and we do. Even these types of laws, however, have been subject to moral flexibility. The use of child pornography laws to prosecute sexting is an example.  What about hate speech? Who sets the bar?   Are we going to criminalize Holocaust Denial?  That’s low value speech to me.  Why not?  If she gets hers, I want mine.  It’s ad hoc right?   What about inflammatory political speech?   We tried that once. It was called Sedition. Didn’t work out well.  Certainly not for those who went to prison for criticizing the government.

I am not contending that Kagan is going to go off the “free speech deep end” but to even consider any type of “value balancing” approach to hate speech even with the best intentions could take us down a free speech rabbit hole that will be hard to climb out of, setting the 1st Amendment back decades.

Is there low value speech?  I agree with Kagan that there is.  That does not mean the court should start adding ad hoc categories designed to tell me what it is. I can decide for myself and make my personal decision if I want to view it, engage in it or debate it.  There is already enough subjectivity to go around without opening up a Pandora’s Box of  moral interpretation.

While I can not take the time to name all of the men in the State Department who have been named as members of the Communist Party and members of a spy ring, I have here in my hand a list of 205 that were known to the Secretary of State as being members of the Communist Party”-Senator Joseph McCarthy

Where have you been on the Internet lately?  What petitions have you signed on the Internet?  What Facebook Groups or Twitter lists name you?  The days of the Red Scare and McCarthyism are here again in the form of the endless and timeless bounds of the Internet and the mainstream media’s ability to Google your name.   In the 50’s, the organizations you belonged to and the people with whom you associated could get you labeled “a Red.” In the 21^st Century, you can get tagged for associating with the wrong people or from the web sites you visit, or the Facebook groups you join.  The new McCarthyism is upon us.

When I think about every petition I have signed via the internet,  or every blog I have commented upon, I sometimes worry that somewhere in the dark corner of the Internet, an opinion lurks in internet infamy  that will someday come back to haunt me.  I only have to Google my own name to get hundreds of pages of references to Brian Cuban. Will signing a PETA petition label me a left wing radical? Fortunately, I have no plans to run for elected office, so only so much damage can be done.  If I did have such plans, the mainstream media would have a gold mine of all the mentions of my name, or of my family name, on the Web.  I’m sure that there is something out there to label me a socialist, a Hamas sympathizer, or someone who is soft on terrorism because I have written on Islamophobia. I don’t even consider myself to be on the left whatever that means.  I even voted for John McCain in the 2008 presidential election.

The concept behind McCarthyism was around long before Fox’s Glenn Beck labeled the 2010 head of the Office of Information and Regulatory Affairs in the White House, Cass Sunstein “the most dangerous man in America” but it has been taken to a new level by cable media and internet pundits to be heard above the screaming.

With regard to Senator McCarthy and his infamous Wheeling, West Virginia “I have a list” speech, we know now no such list existed. The piece of paper Senator McCarthy held in his hand had nothing to do with spies or Communists. He might as well have held up a restaurant menu. Was that piece of paper all he held in his hand?  He held so much more in intangibles that won the day to justify fear of our neighbor. He held the trust of an elected official. He played the specter of “I know something you don’t know,” which is a statement that even when simply implied but left unstated, captivates the human desire to know.  His outrageous statements had the sheen of credibility because no one in his position would say such a thing unless it was true.  In other words, coming from a demagogue like McCarthy, his statements had the credibility of the unbelievable. The desire to want to believe those we are supposed to trust overwhelms the logical senses, and we say “there must be something to it”

How many times have we listened to a claim and said “That has to be true, no one would say it if it wasn’t.”  Such a reaction is not confined to the days of the Red Scare simply because it is a natural and normal human response.  How many readers believed Glenn Beck when he said he had evidence that President Barrack Obama was “ building “concentration camps”?  Beck claimed  he had conducted “research on” the so-called concentration camps being built by the Obama White House as part of a conspiracy to establish totalitarian rule in America. He claimed that he could not “debunk them.” He stated, “If you have any fear that we might be heading toward a totalitarian state, look out.  There is something happening in our country and it ain’t good.”

How different is the above from simply stating, “I have here in my hand a list of 200 Muslims I suspect of engaging in terrorism.”  What sort of reaction would that trigger today?  Would anyone in the mainstream media be so irresponsible as Senator McCarthy to make such a statement if no such list existed or the list had not been value checked?  Make the comparison. Beck holds a trusted position as a news commentator.  When Fox News pundit Glenn Beck makes an outrageous claim, we think that outrageous claim must have some truth to it, or why else would someone trusted make it?  How does this differentiate Beck’s tactics from the tactics of Joseph McCarthy?  Like the fraud of McCarthy’s list, it turned out that Beck completely lacked evidence or common sense to support his claims.  That did not stop his allegations from being picked up by bloggers and tweeters spreading the news with an air of conspiracy credibility until Beck was forced to retract as the ridiculous nature of the statement became clear.

When Beck called Sunstein the most dangerous man in the world, he went on to further employ “McCarthyesque” tactics and also sounding eerily like hate radio priest Charles Coughlin when he implored viewers who were ‘watching the capitol” to tune into his program because he had done his homework and they had not, further alleging that Sunstein represented history that we did not want to repeat.  Another instance of a symbolic red baiting claim that Beck “had a list” and information that only Beck was privy to so he should be trusted to the exclusion of those without the information.  Beck went even further with Sunstein by incorporating Nazi Germany imagery when he compared Sunstein’s office to the Reichstag and referring to his beliefs “awfully Nazi.”

The final quote from McCarthy’s speech has become a microcosm of the battles fought in the media and fought between left and right wing loyalties in the 21^st Century:

“Today we are engaged in an all out battle between Communistic atheism and Christianity.  The modern champions of Communism have selected this as the time, and ladies and gentlemen the chips are down, they truly are”

Today, Joseph McCarthy would have simply tweeted his allegations.  Lives are easily ruined and conspiracies are born in 140 characters or less.

Paul McCartney has compared Global Warming skeptics to Holocaust Deniers. It’s nothing new here.  I have written on this before, criticizing Al Gore for his attempt to build credibility and line his pockets on the backs of 11 million murdered. When people are desperate, and the facts are in dispute,  they scream loudly with outlandish rhetoric to draw attention to the cause with motives something less than the nobility of affirming the truth and horror of the Holocaust.  One would think that Sir Paul demands enough attention on his own without having to resort to such ignorant tactics.  I would love to sit down with him  to find out what he really knows about the Holocaust or if he is simply  parroting Al Gore’s inappropriate use of the imagery.  Nothing more to be said. More of the sad old same old.