October, 2010

Let’s Play Marijuana Jeopardy!

The “Marijuana Jeopardy Game” is in full play as Proposition 19 otherwise known as the Regulate, Control and Tax Cannabis Act of 2010 draws fire and support from every direction.

I will take Proposition 19, the Supremacy and Commerce Clause for 100 Bill…

Every media marijuana pundit wants to talk about the Supremacy and Commerce Clauses in this debate.  They love to throw out the seminal Commerce Clause case of Gonzalez v. Raich as if the holding in that case would somehow invalidate Prop 19 if its passes.(not true). They then point out that the when there is a conflict between Federal law and state law, federal law wins the day and pat themselves on the back for being Constitutionally brilliant.

Lets try The Supremacy Clause for 10..

They are right to an extent.  Federal law does win the day  but only when there is a conflict between state and federal law. While it may sound like a conflict because California says you can toke and the Feds say you can’t, there is no constitutional conflict if Prop 19 passes. Why?  The State of California is simply removing criminal penalties. This is within the powers reserved to the States under the 10th Amendment.  California is not mandating that anyone do anything that violates Federal law and Congress has not evidenced any intent to completely occupy the field relating to the state police powers over drug control.  A conflicting Federal law under these circumstances does not invalidate Prop 19.

People love to compare this debate to the Federal government battle with Arizona over immigration. Former DEA heads and people who should know better use it as fodder for a demand that the Feds sue California if Prop 19 passes.  Jeapordy game over. They all go home broke. There is no comparison.  In the Arizona case, Congress has in fact evidenced its intent to occupy the field of Immigration regulation.  It is right there in the Constitution, Article 1, Section 8(SCOTUS says that naturalization includes immigration)

A perfect example of the constitutional confusion is an opinion piece written for CNN by Jeff Miron entitled “Don’t Buy The Hype” He states:

Prop 19’s passage could mean a Supreme Court showdown, which California would lose. In the 2005 Gonzalez v. Raich case, the court held that the Constitution’s commerce clause allows the federal government to bar individuals from cultivating marijuana on their own property for their own medicinal use.

That’s Marijuana Jeapordy for 5 points.  Why so low?  In a vacuum, without more context, it is a content empty and meaningless statement. No one, including California is disputing that the Federal government has the authority to enforce The Controlled Substance Act relating to marijuana if Prop 19 passes.  Gonzalez v. Raich has settled this issue. Under certain conditions, the Federal government can enforce Federal law even when that law touches activities that the state may deem purely local in nature.  My response to Mr. Miron, is “so what”.  We know this.  The Supreme Court has spoken.  The feds won. I promise that the powers that be in California received a copy of the opinion.   That in itself is not the “showdown”.

My turn to play Marijuana Jeapordy.   I choose” practical application of The Commerce Clause and Supremacy Clause over Prop 19 for 500.

Lets start with basics.  The seminal Commerce Clause case, Gonzales v. Raich means the Federal government can continue to enforce the Controlled Substance in California regardless of state law.  That was the law before Prop 19 and will be the law if Prop 19 passes.  It does NOT invalidate Prop 19.  It means the DEA can still raid growers, Medical marijuana dispensaries, etc.”  That is a big deal in that I expect the DEA to go on a raid binge in panic because they will no longer be able distinguish between the legal and illegal marijuana industry. They are going to want to make their point in the strongest terms. A panic spike in raids and arrests.  This  could lead to a Supreme Court showdown.  It will ,however not just be about The Commerce Clause. We know that’s a loser for California. How do we know?  They already lost!  It will probably be related to a 10th Amendment constitutional concept called “Commandeering“.

If the Feds go on a raid and arrest spree, California may go into court and claim that the Federal Government through ultra-aggressive enforcement of The Controlled Substance act, has deliberately undermined state marijuana laws or  “defacto re-criminalized” marijuana under state law.  In the County of Santa Cruz. v. Holder, “Commandeering” was explained this way related to a DEA seizure of Marijuana pursuant to The Controlled Substance Act:

The DEA seizure of Medical Marijuana violates The Tenth Amendment by preventing the state of California from implementing a duly enacted statute, The Compassionate Use Act Of 1996.  Such seizures commandeer the police power of the State Of California…”

In my opinion, THAT is the real Jeapordy game.  Anti-Commandeering for One Thousand!  If the DEA goes hell bent on indiscriminate raids, including medical marijuana growers, how will the anti-commandeering doctrine come into play?  In my opinion, if there is a “showdown” this is where it will be.  The Santa Cruz case was voluntarily dismissed by agreement when the Obama administration issued its Medical Marijuana hands off memo.  It however was dismissed with the stipulation that the case could be reinstated if the DEA resumed its raids.

What’s the practical effect of this.  Mr. Miron is right for the wrong reasons. California probably loses a Anti-Commandeering showdown.  My response is again, so what.  Everything will calm down.  The DEA will adjust. California will adjust.  Prop 19(assuming it passes) will still be around.  Tokers will toke.  Growers will grow. The Ghost of  Bob Marley will be watching over all of us…

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Free Speech And Hate Speech In Social Networks

I came across an interesting piece about cyber-bullying of  gay, lesbian, bisexual and transgender teens on Facebook and the steps the social network was taking to combat it.  This is nothing new.  As long as their are people, there will be hate speech.  It’s the human condition. As a representative correctly point out, Facebook is just as vulnerable to this condition as other cross-sections of society.

What I found interesting was the hate speech/free speech discussion. When does free speech become hate speech in social networks like Facebook?”  I was at first confused.  Is not  hate speech for the most part free speech?   That is unless it incites others to imminent violence, threatens the President Of The United States and some other narrow exceptions.  Why make the confusing distinction?  The reason the distinction was valid in this article was that it was specifically referring to Facebook and not the brick and mortar world.  Facebook is a community that attempts to emulate 1st Amendment ideals of free speech but that’s where it ends. It ends there because Facebook is a private company.  As such, the 1st Amendment and traditional free speech values have no practical bearing.  Free speech and hate speech are just terms of art within the network to be adjusted by the network to best suit the interests of the network.  Translation? Free speech and hate speech are whatever Facebook and other social networks say they are at any given moment.

So what are they?  Two years ago, I debated this very issue with Facebook representatives relating to Holocaust Denial.  I felt that Facebook Groups promoting Holocaust Denial were in themselves “hateful content” as outlined in Facebook’s Terms Of Service and should have been removed from the site.  Facebook felt differently.  I even presented my thoughts  to a group of employees at Facebook corporate offices.  While not agreeing with their position,  I came to understand their point of view about having internal standards to which employees can look at content and not have to make value judgments about a particular type of speech. Without such standards Facebook employees assigned to deal with these issues would be overwhelmed with disputes over content that one person may find “hateful” and another felt was legitimate expression. They could not hire enough employees to deal with these types of disagreements.  As one employee put it, Facebook was  looking for “binary certainty” in making these decision on “hateful content”.

There is the rub.  What is the binary standard?  To this day, to my knowledge, Facebook has never released or publicly stated how they evaluate “hateful content”.  Where and how do they draw the line?  I have an idea how they do it because I was privy to internal exchange with their employees.  Why not tell everyone.  Why not some transparency.  The same transparency many employees acknowledged was lacking  when I spoke there.  Two years later, nothing much has changed with regards to “free speech” and “hate speech”  The general user perception is that it is whatever Facebook says it is.   At least in the brick and mortar world I can pull up The Constitution and Supreme Court opinions that guide me.  That standard does not represent the beliefs of all Facebook users across the world but for better or worse that is the standard Facebook uses. It’s transparent.  Emulate that aspect as well.

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Harvey Levin’s Theory Of 1st Amendment Hypocrisy

I came across the Twitter stream of TMZ honcho Harvey Levin.  He was commenting on the now infamous  Bill O’Reilly visit to The View.

O’Reilly got into a heated debate with several of The View hosts culminating in his statement that “Muslims killed us on 9-11″.   View hosts Whoopi Goldberg and Joy Behar took offense to the statement and walked off the set, only returning after Mr. O’Reilly apologized. There are those that have stated that what Mr. Reilly had to say amounted to hate speech. There are those who agree with him.  There are those who think the whole thing was staged.

What caught my eye was a particular tweet of Mr. Levin. He was engaging in some 1st amendment commentary with regards to the exchange.  He was making the point that Joy Behar and Whoopi Goldberg were “free speech hypocrites”

I understand the point Levin was trying to make.  If you champion freedom of expression you should not shy away from it either. I hear that argument all the time on my Facebook page when I censor people for profanity or things that simply piss me off.  They call me a hypocrite. They tell me that I am infringing on their 1st Amendment rights.   I point out that there are no 1st Amendment rights on my Facebook page just as Mr. O’Reilly had no 1st Amendment rights on The View.  I do not view it as hypocritical to have personal standards that are not in line with speech protected by the 1st Amendment.  What’s more, O’Reilly was not censored in any way.  He stated exactly what was on his mind. No one “bleeped him”.   If we are going to talk free speech, it sounds to me like he was allowed to exercise his.  If we are going to make 1st Amendment analogies,  there is nothing I am aware of in the Constitution that mandates that we not get offended at distasteful speech whether it is protected or not.

The 1st Amendment protects 99 percent of hate speech that the majority of us would rather not hear.  The fact that we would rather not hear it and remove ourselves from earshot is not hypocrisy.  That is civilized society.  I will champion someone’s right to stand on a public sidewalk and call me a kike. If he does it in my living room I am going to ask him to leave. If he does it at my favorite Starbucks I am going to ask management to ask him to leave.

When I confronted the Westboro Baptist Church during one of their visits to Dallas, I argued with the police for their right to be on a public sidewalk in front of a hotel when the hotel was trying to move them to the other side of the street.  That does not mean I approve of their message.  For Mr. Levin to imply that there is hypocrisy there again, is simply ignorant of 1st Amendment principals.  For Whoopi Goldberg and  Joy Behar to walk out in a huff may have been childish, and even planned entertainment in the vein of what their show is about  but it was not hypocritical.

So what really bothered me about Levin’s tweet?  It bothered me that it was a generalization that gave the impression there were 1st Amendment principals at stake in allowing Bill O’Reilly to state his point of view unfettered(which he in fact did).  That is simply not true on any level. It bothers me that these misrepresentations of “free speech” are all to common in our society and Levin is not the 1st media figure to “flub the 1st”.  Remember when Dr. Laura stated that she had left her popular talk who to “reclaim her 1st Amendment rights?  The bad news for Dr. Laura is that she had no 1st Amendment rights on her talk show.

Since Mr. Levin was unable to get it right I will clear it up for him. The 1st Amendment only applies to government attempts to restrict speech. It does not apply to talk shows unless it’s his position that The View is secretly funded by the FCC.  There is also no obligation that our own personal thermometers of acceptable rhetoric comply with the 1st Amendment. Mine does not. I would be shocked if  Mr. Levin’s did.

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I Pledge Allegiance To The Court

So a lawyer walks into a bar…  Strike that.  A lawyer walks into a courtroom and refuses to recite the Pledge Of Allegiance.  A lawyer in Tupelo, Miss., was thrown in jail Wednesday for refusing to say the Pledge of Allegiance in court.

I was frankly unaware that there were jurisdictions that required court attendees to cite the pledge.  Silly me.  High School classrooms, sporting events and KKK rallies but a courtroom?  Needless to say, finding an attorney in contempt for refusing to regress to high school and recite was a judicially boneheaded and “un-American” move by the presiding judge.  He must have been doing some early work on his future campaign for elected office when Constitutional Law was being taught at his law school.

Lawyers often give up a lot of things when they walk through those hallowed doors to appear before the bench. Dignity, truth, ethics and emotional control are often surrendered. One thing we do not surrender is our First Amendment Rights which includes the right to choose not to say the Pledge Of Allegiance.  I wonder if he issues bench warrants at ball games for people who do not participate in the National Anthem or God Bless America.  I will avoid sitting next to him when I have hot-dog in mouth.

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