March 12, 2005

Bi-Partisan vs Bi-Partisan

The Bipartisan Campaign Finance Reform Act, and recent moves to apply its speech restrictions to the internet, have now met with formal bipartisan resistance.
An impressive list of bloggers from both ends of the political spectrum and all points in between are original signatories to a letter addresses to Federal Election Commission Chairman Scott Thomas.

As bipartisan members of the online journalism, blogging, and advertising community, we ask that you grant blogs and online publications the same consideration and protection as broadcast media, newspapers, or periodicals by clearly including them under the Federal Election Commission’s “media exemption” rule.

In order to ensure that there are sufficient measures taken, we also request that the FEC promulgate a rule exempting unpaid political activity on the Internet from regulation, thereby guaranteeing every American’s right to speak freely and participate in our democratic process.

The letter is open for further signatures. Mine is number 1,210. There are currently 1,726

Posted by: Stephen Macklin at 03:44 AM | No Comments | Add Comment

March 11, 2005

The State of The Legal System

If you want to know how far out of control the lawsuit business has become, you need look no further than this story from Overlawyered

Attorney accidentally sues himself

Representing a client who'd bought and then refinanced a house, Wyss advised her that she might be entitled to file a lawsuit against the company that wrote the original mortgage over the $60 fee it charged for faxing two payoff statements, and soon signed her up for a class-action suit...

However, it developed that a company called Centerre Title, owned by Wyss himself, had been the party that collected the allegedly improper fees at closing...

A clear cut case of sue first ask questions later. Wyss has withdrawn from the plaintiff's side of the suit and I am really going to be rooting for the plaintiffs on this one. And just a suggestion for the judge and jury - Large. Punitive. Damages.

Posted by: Stephen Macklin at 04:09 AM | Comments (3) | Add Comment

March 10, 2005

Say It Ain't So

I'm not a big sports fan. I am less of a fan of whiners who are paid millions of dollars to play a game and still complain. I am even less a fan of overreaching wieners in congress sticking their self important egos where they don't belong.

Why the hell are we having congressional hearings on steroid use in baseball?

If using the stuff is against the law, arrest the athletes involved and try them in court.

If its against the rules of baseball, then let baseball deal with it. They can choose to deal with it effectively and make baseball something to enjoy and respect again, or they can choose to be ineffective and suffer the economic consequences.

Congress has no role in this beyond grabbing headlines.

Posted by: Stephen Macklin at 03:38 AM | Comments (6) | Add Comment

March 08, 2005

One Of Those Moments

Let me start by saying I fully understand the difference between weather and climate. I understand the foolishness of looking at one moment of weather and drawing conclusions about climatic conditions. Besides if the most sophisticated computer models can't take into account every variable and thus cannot accurately predict climatic changes, then my doing so based on one instant of weather smacks of the worst kid of hubris.

That disclaimer aside let me set the stage for what happened today.

The parking lot where I work is if not one of the windiest places on the planet certainly one of the windiest in Connecticut. The parking lot is at the top of a hill, and you progress down there is a patchwork of factory, office and warehouse. There are places in the parking lot where I can touch the roof of one of the factory buildings. From the inside, this building is two stories tall. At the very base of the hill is a river. Most of this factory and parking lot complex is even with or above the tree line on the other side of the river. This means that there is nothing hampering the flow of air coming across the lot.

On any given day it is as least twice as windy in that parking lot than any where else.

Leaving work tonight it was snowing. It was not snowing hard, but the wind was blowing hard. The National Weather Service had issued gale warnings for southern Connecticut. There I was scraping the snow and ice off my car, cursing the day I chose to remove the removable hood from my coat because I didn't like the look of a hood. I had done the windward side (the drivers side in this case) and was working on the passenger side when I heard the roar.

Thankfully I was on the leeward side of the car. (For you non-sailors that means the car was between me and the wind.) I would put the gust at about 50-60 mph. I ducked down and pressed up against the side of the car as the wind howled around me. It lasted probably 45 seconds.

I stood up and shouted at the top of my lungs “GLOBAL WARMING MY ASS.” I didn't know there was someone standing by the car next to mine. At least he had a good laugh.

Posted by: Stephen Macklin at 03:21 PM | Comments (1) | Add Comment

5,000 Words On the Truth



If a picture is worth a thousand words then the 5 photos above that I got at Captain's Quarters speak volumes about the truth. The car in the photos is the one that was carrying Italian “journalist” Giuliana Sgrena when it came under fire approaching a checkpoint on the road to Bagdad Airport. This is the car that Sgerna described as coming under a hail of gunfire from U.S. Marines. This is the car at which Sgrena alleges the Marines fired 300-400 rounds.

So what do these pictures say?

One thing they could say is that if U.S. soldiers fired 400 rounds at this car then the terrorists we are fighting in Iraq can rest easy. The can mount their attacks with confidence that the army they face is made up of the worst marksman ever to fire a weapon.

Or they could say that the terrorists fighting in Iraq should be very very afraid. If U.S. soldiers unleashed a fusillade of 300 - 400 rounds at a moving target and managed hit one of a handful of spots with every round, then the terrorists truly have no hope.

Or they could be saying that an anti-American “journalist” writing for a communist newspaper lied through to her teeth to spread propaganda that was all too eagerly passed along by European and American “news” outlets.

Posted by: Stephen Macklin at 01:53 PM | No Comments | Add Comment

March 07, 2005

The Rule of Men

John Hinderaker, aka Powerline's Hindrocket, has a column on The Daily Standard that takes a hard look at the Supreme Court Decision in Roper v Simmons . This was the case in which the court ruled that the execution of minors for capital crimes was unconstitutional under the 8th Amendment, and various sources of foreign law and opinion.

Hinederaker's conclusion closely mirrors what I wrote following the Court's ruling that the McCain/Feingold limits on political speech does not constitute a violation of the First Amendment. We both concluded that the Supreme Court is supplanting the rule of law with the rule of men.


It is often said that our government is one of laws, not of men. The Roper decision shows how far we have abandoned that vital principle. Indeed, in a sense we have turned it on its head. The Founders envisioned the judicial branch as the guarantor that we would have a government of laws; they saw the judiciary as a bulwark against the usurpation of authority by “men” in the other branches. See, for example, Hamilton's Federalist No. 78, where he wrote: “hough individual oppression may now and then proceed from the courts of justice, the general liberty of the people can never be endangered from that quarter.” The Founders failed to foresee, unfortunately, an era in which unelected, unaccountable judges ignore the written words of the Constitution and the laws, and impose their own policy preferences by fiat.From Hold the Mayo December 2003:
From the legislative branch that passed the act, to the executive branch where the measure was welcomed and signed into law, to the judicial branch where it was upheld by the ruling of 5 individuals, government has placed itself above the law. Its assumption of the authority to abridge our rights as individuals has voided the concept of rights and left us with a few tenuous freedoms that we will enjoy as long as they do not conflict with a compelling interest of the state. The Constitution has become functionally irrelevant and the rule of law has been deposed by the rule of man.
It is expected that during his second administration President Bush will be appointing multiple justices to the Supreme Court, including filling a vacancy in the role of Chief Justice of the United States. The battles that will be fought over these nominees may well be among the most important political battles ever fought in this country's history. Let us hope that the nominees are worthy, and that the administration has same will to fight these battles as it has shown in fighting the War on Terror.

Posted by: Stephen Macklin at 05:05 AM | Comments (2) | Add Comment

March 05, 2005

Questions For the FEC

Red has a transcript of an interview with FEC Commissioner Bradley Smith. Smith in commenting on the ruling of Judge Colleen Kollar-Kotelly seems to indicate that those who are saying there is no threat of regulation of the internet in general and weblogs in particular are whistling past the graveyard.

Smith: “She orders us to regulate the Internet, again what I point out is -- it is in no way limited to paid advertising. In fact, it would be contrary to the tone of the opinions limited only to paid advertising. In another part of the opinion, she struck down one of our regulations where we exempted unpaid advertising. So, I, you know, this was, it’s – it’s in no ways limited to unpaid advertising.”
He goes on to say
Well, let me tell you some of the potential ramifications. I mean, some of the folks now, uh McCain and some of his allies, are out saying, “Well, this would only apply to paid ads.” That’s ju—the FEC already treats paid ads as subject to the act. But nothing in the judge’s decision limits it to paid advertising, and it, she says anything that’s coordinated, for sure we have to regulate. Now, what is coordinated under FEC regulations? Any republication of campaign material counts as a coordinated complication. That means, for a blogger, if you put up anything, or ah, from a campaign onto the blogsite, that’s going to be republication of campaign material. If you get an email from a campaign because you’re on their list, and you then forward it to 50 or 100 friends, that would be potentially subject to the act.
Leaving aside for a moment the obliteration of the First Amendment (which every branch of the government seems all too willing to do) let's take a look at some the issues facing this regulation of speech based on its content. Let's take a look at a couple of specific regulations and ponder how they might be applied to weblogs.

Campaign contributions from foreign nationals are illegal. What happens if a foreign national expressly advocates for a candidate, links to the candidate's website, republishes campaign materials, and sends out mass emails in support of a candidate. Assume also that the individual did this on their own. They were not paid or otherwise contacted by the campaign. Does this constitute a contribution by a foreign national? Do they try to go after the individual or do they go after the campaign?

Or consider this blog, or any other blog that covers politics. The server is maintained by Pixy Misa of Ambient Irony. Pixy also bears all of the financial cost of hosting Pixy is not a U.S. citizen. If my blogging were to run afoul of FEC regulations, and based on Bradley Smith's assessment that is more than likely, what are the ramifications of his financial contribution to my blogging?

What about blogs run by minors? Contributions by minors are prohibited as well.

What are the implications for bloggers given credentials to cover the national party conventions?

I know that some people will look at these questions and answer that most of this will probably be so far under the radar that it will never be noticed. That the FEC is not going to come after a blog like this one with less than 100 hits a day. But that answer brings us back the issue of abridging First Amendment protected free speech.

Consider by comparison the blog Captain's Quarters. Its author, Ed Morrissey, blogs for basically the same reason that I do. He enjoys it and he hopes in some way to make a difference. He writes about a variety of topics, as do I, and like this blog he writes about politics. Captain's Quarters gets about 24,000 hits a day. That's about 300 times the hits I get. My guess is that would put him on the FEC's radar. Ed could spend the next election season doing nothing but cat blogging and the FEC wouldn't take a second look at Captain's Quarters. (many of his readers probably wouldn't be happy though!!) But as soon he gets into politics he could be subject to their regulation.

Cat Blogging = no problem = absolutely protected free speech.

Political Blogging = potentially large problem and fines from the FEC = abridged right to free speech.

No matter how you look it, they are regulating speech based on content. This is what the First Amendment is supposed to prevent the government from doing.

One final question. Why Ed Morrissey and not Stephen Macklin? How is it conceivably right the larger audience of Captain's Quarters means that Ed Morrissey has less of a right to free speech than I do?

Posted by: Stephen Macklin at 06:19 AM | Comments (2) | Add Comment

March 04, 2005

Blogs Will Not Go Quietly

Ed Morrissey, the Captain of Captain's Quarters, has written his own letter to McCain and Feingold and copied every Senator as well. His letter is detailed, thorough and restrained. Which puts it in fairly stark contrast from the shoot-from-the-hip impassioned note I sent to McCain, Feingold and Connecticut's Dodd and Lieberman.

So far the only reponse I have gotten is a canned auto-reponse from Senator Lieberman (emphasis added)

Dear Friend:

Thank you for visiting my Contact Center and sharing with me your comments
on the important issues I am addressing in Congress. Your message has
been received; you will be receiving a response to your concerns as soon
as our review and research have been completed.

I value having the benefit of your thoughtful views and hope you will
keep me apprised of any other matters of interest or concern to you in the
future. Please continue to visit my web site at for current information about what is
happening in Congress and updated news about my work on behalf of
Connecticut. I am pleased to let you know that I have launched an email
news update service through my web site. You can sign up for that service
by visiting my web site and clicking on the “Subscribe Email News Updates”
button at the bottom of the home page. I hope these are informative and


Joseph I. Lieberman
Untied States Senator

I would like to suggest as a starting point for your research that you start by reading the Constitution. Then going back and reading the First Amendment 40 or 50 times.

Read more at Powerline and Nealz Nuze

Michele Malkin has excerpts and links to some who are saying that reaction to this is making a mountain out of molehill, and there is no threat of regulating blogs. She also has links to Right Wing Nuthouse and Red who question that notion.

For me if the molehill is a threat to my Constitutionally protected rights the bar for over-reacting is set very high. It is far better to fight such things while they are still only molehills. By the time they become mountains it may be too late.

UPDATE:La Shawn Barber has more and more links as well.

Posted by: Stephen Macklin at 12:54 PM | No Comments | Add Comment

March 03, 2005

I Knew This Was Going to Happen

I would scream “I told you so” at the top of my lungs but since at the time I wrote it I was only getting about 10 hits a day, I really didn't tell that many people. In December of 2003 I wrote a post with the somewhat alarmist sounding headline Death of the Republic. The topic was the ruling of the Supreme Court that McCain/Feingold Campaign Finance Reform was Constitutional.

One of the fundamental principles upon which this republic was formed was the idea of the rule of law as opposed to the rule of men. This is most often expressed with the notion that no man is above the law. But a more important principle - perhaps the most fundamental idea of the Constitution is that the government itself is not above the law. That idea has been officially pronounced dead by a 5 justice majority on the Supreme Court.
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. (emphasis added)

From Webster's Revised Unabridged Dictionary via
3. To deprive; to cut off; -- followed by of, and formerly by from; as, to abridge one of his rights.

1. The state of being free; exemption from the power and control of another; liberty; independence.

I guess if its o.k. for a sitting president to debate the meaning of the word “is” as he perjures himself before a grand jury, then the Supreme Court should be allowed to interpret the expression “shall make no law” to mean “can make some law.”
I was incensed at the Court's decision allowing the prohibition of political speech during a campaign. I was worried at how far the regulations would be taken as there seemed to be no check or balance to limit how far the erosion of our rights would go.
In the Michigan Law School affirmative action case the SCOTUS ruled that the compelling interest of the state trumped the 14th Amendment guarantee of equal protection under the law. Today they have ruled that politicians lack of integrity trumps the 1st Amendment guarantee of freedom of speech. All of the money in politics, they say, leads inevitably to corruption. They are admitting that the only thing that could keep them from accepting bribes in the the thinly veiled disguise of campaign contributions is to abridge the rights of every other American. Their immorality takes precedence over our rights.

But all of that noise about limiting the corrupting effect of money in politics is just a smoke screen to hide the real purpose of the McCain/Feingold Campaign Finance Reform Act. What it is in truth is election rigging by stacking the rules so overwhelmingly in favor of incumbents most challenges to a sitting politician will be futile.

At the time I wrote it I thought the concluding paragraph to be a bit hyperbolic. Now it seems the anger and the fear and the hyperbole may have been justified.
From the legislative branch that passed the act, to the executive branch where the measure was welcomed and signed into law, to the judicial branch where it was upheld by the ruling of 5 individuals, government has placed itself above the law. Its assumption of the authority to abridge our rights as individuals has voided the concept of rights and left us with a few tenuous freedoms that we will enjoy as long as they do not conflict with a compelling interest of the state. The Constitution has become functionally irrelevant and the rule of law has been deposed by the rule of man.
The FCC has set its next target for the abridgment of the right to free speech, the internet.
Bradley Smith says that the freewheeling days of political blogging and online punditry are over.

In just a few months, he warns, bloggers and news organizations could risk the wrath of the federal government if they improperly link to a campaign's Web site. Even forwarding a political candidate's press release to a mailing list, depending on the details, could be punished by fines.

Smith should know. He's one of the six commissioners at the Federal Election Commission, which is beginning the perilous process of extending a controversial 2002 campaign finance law to the Internet.

In 2002, the FEC exempted the Internet by a 4-2 vote, but U.S. District Judge Colleen Kollar-Kotelly last fall overturned that decision. “The commission's exclusion of Internet communications from the coordinated communications regulation severely undermines” the campaign finance law's purposes, Kollar-Kotelly wrote.

(note: if the name Colleen Kollar-Kotelly rings a bell, she was the judge who heard the Microsoft anti-trust suit.)

Quite clearly having people express their opinions about political candidates and issues during an election undermines the law's purpose.

Now the FCC will be debating the value of a link. The question they face is, If I write something expressly supporting or opposing a candidate and that post gets a link from Instapundit (if only!) what is the value of that link to a campaign? If the value is high enough Glen Reynolds has just exceeded the maximum allowable contribution. If 10 sites link to that post is that coordinated activity? If all this happens within 30 days of an election, what then?

There is, as you can imagine a good deal being written about this on political blogs from both sides of the political spectrum, and we may be on the verge of witnessing the first ever bi-partisan blog swarm.

For more background start with Professor Bainbridge who offers this bit of cautionary advice:

Polipundit called Smith a “powerful, unelected government official” and, at least by implication, suggests Smith is a party to “this crushing of free speech and the destruction of American liberty.”

In fact, Brad Smith is a First Amendment hero. As a law professor before he joined the FEC, Smith wrote many law review articles condemning campaign finance regulation. As a result, when Smith was nominated to the FEC, McCain and Feingold orchestrated a massive smear campaign against him. Since then, even while faithfully enforcing the statutes his Commission oversees, Smith has consistently been on the side of free speech.

So don't blame the messenger!

There is also further commentary at Captains Quarters, Michelle Malkin, Little Green Footballs, Wizbang, and of course more links at Instapundit.

Several sites have provided links to where you can contact John McCain and Russ Feingold should you decide to exercise what free speech rights you have remaining. I am putting my letter the esteemed abridgers of rights in the extended entry. Feel free to use any and all of it.

Should you choose to exercise your right to free speech in a more literal way you can reach Senator McCain's offices at (202) 224-2235 and Senator Feingold's office at (202) 224-5323. If you want to reach any other senator you can find their office number here. more...

Posted by: Stephen Macklin at 03:33 PM | Comments (1) | Add Comment

March 02, 2005

Some People Are Just Idiots

The following letter came home from school with my daughter. It proves beyond the shadow of a doubt that some people are idiots. They have too much time on their hands which they spend developing an extremely over-inflated opinion of their own importance.

News flash you pretentious twits. Your pathetic lives are of importance to no one but yourselves. All your whining and complaining has accomplished is to make the principal waste his time writing a letter home. I hope when you read it you realized what annoying crybabies you are. But I doubt it.

Dear Parents, Guardians and Friends,

The excitement of a fresh snowstorm brings difficult decisions related to safety for our children. As you should know, the decision to delay the opening of the school day or to decide to close for the day or to dismiss early are decisions mare at the Superintendent's level. I want to share with you that these decisions are not made without considerable study and the use of the best weather information provided the decision makers.

In my previous position in Vermont the responsibility was mine and I did not cherish it. There were days that it left no question about how correct it was. Other times Mother Nature fooled us and the decision looked like a bad one. In all instances the decision was made in conjunction with public safety officials.

Thus, the decisions made during the last few days were not easy. Monday's early dismissal decision had to be made by 10:30 a.m. so that the drivers of the buses would be available. At 10:30 on Monday the best information said that heavy snow would start by 1 p.m. It was therefore in the interest of safety that early dismissal was called.

The decision to delay opening on Tuesday was obvious at the time the decision had to be made for drivers and families. The later decision to cancel for the entire day was based on road conditions and further advice from public safety officers in town. I can confirm that my drive to school was precarious and not desirable for our children's safety.

It is March and not without the possibility of other nasty storms. Let's hope we are spared. On the other hand, I hope you will understand that safety will be the determining factor for decisions related to delays, dismissals or cancelations.

I have no doubt that in the back of the minds of those making these decisions is the volume of complaints they endured last year when the number of cancellations forced the use of 4 out 5 spring vacation days to make up lost time. I also have very little doubt that the people who complained then, are probably the ones that complained today. I also have no doubt that it is a good thing I am not the principal. I think they fire principals for saying the kinds of things I would say when they called to bitch and moan.

Posted by: Stephen Macklin at 04:15 PM | No Comments | Add Comment

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