Everyone knows that students have First Amendment rights, that the Constitution proverbially doesn’t stop at the schoolhouse door.  Yet students in the Plano Independent School District in Texas (against whose speech code Cato previously filed a brief) were prohibited from handing out pencils with messages such as “Jesus is the reason for the season” and “Jesus loves me, this I know, for the Bible tells me so,” or sending holiday cards to retirement homes that said “Merry Christmas.”

The students, through their parents, sued the district on First Amendment grounds, and were successful through a Fifth Circuit panel ruling that “qualified immunity,” a doctrine that prevents government officials from being held personally liable under certain circumstances for violating constitutional rights, did not apply in this case.  The panel’s holding is as important as it is unremarkable: School officials have fair warning that viewpoint-based discrimination against student speech during non-curricular activities violates the First Amendment.  The government certainly cannot do so simply because the speech happens to be religious.

The Fifth Circuit en banc (as a whole) vacated the panel’s decision, however, and decided to rehear the case.  Cato has filed a brief supporting the students and their parents; not only is it settled law that students have the right to free speech in public schools, but school officials should be held liable for violating those rights on the basis of the content of that speech.

Indeed, if the First Amendment means anything, it is that the government cannot suppress speech based solely on its content.  More specifically, when an area of the law is “clearly established,” officials cannot escape liability under the doctrine of qualified immunity.  Qualified immunity simply doesn’t apply to public school officials who suppress speech in a non-curricular setting merely because the school district points to some legal disagreement in a dissent, concurrence, or other non-binding judicial opinion that disagrees with settled doctrine regarding viewpoint-based discrimination against student speech.

The en banc Fifth Circuit will hear the case, Morgan v. Swanson, later this spring.  Thanks to legal associate Michael Wilt for his help with the brief and this post.

School Officials Can’t Censor Student Speech, Not Even Religious Speech is a post from Cato @ Liberty - Cato Institute Blog

Justice Kagan’s dissent yesterday in the Supreme Court ruling upholding Arizona’s education tax credits seems to me so obviously mistaken on both the facts and the law that I feel I must be missing something. I offer my initial analysis briefly below, and if anyone can tell me if/where I’m going wrong, my e-mail address is just a Google away.

First, Kagan and her fellow dissenters express dismay at the putative novelty of the majority’s distinction between tax credits and government spending. But, more than a decade ago, this very same distinction was acknowledged by the Arizona Supreme Court in Kotternman v. Killian, and that AZ Court ruling itself cites a string of precedents from around the country supporting it. Clearly, the majority’s ruling is far from novel, and Kagan and the dissenters should know that.

Next, Kagan claims that the majority’s ruling would preclude taxpayers from suing the government for operating a program that gives tax credits exclusively to one religious group. She claims that taxpayers of other faiths would lack standing. That seems quite wrong. The pivotal issue is that taxpayers would have to show a specific personal harm resulting from the government’s actions in order to have standing. In the case of Arizona’s tax credits, as the majority acknowledged, there is no harm to taxpayers. Everyone is eligible for the credit and credits can be claimed against donations to any type of scholarship organization, of any faith or no faith. By contrast, under Kagan’s straw man example of a credit for the purchase of crucifixes, non-christian  taxpayers would suffer a specific personal harm: they would be denied the right to use the credit to purchase religious symbols of their own faith (or to buy “Who is John Galt?” posters if they happened not to be religious). This harm would be the direct result of government action–specifically, of the government’s decision to favor Christians over members of other faith groups and secular taxpayers.

A program that discriminates based on religion causes harm to taxpayers by virtue of excluding them from participation. That, in turn, is a clear equal protection violation, not to mention a violation of at least two of the three prongs of the First Amendment Lemon Test, and so such taxpayers would not only have standing to sue they would win the suit.

Again, the AZ tax credit program causes no such harm, because anyone, regardless of faith, can participate, and no one is compelled to support any kind of religious education. Why could Kagan and her co-dissenters not see this?

Credits for Crucifixes. Or: What’s the Matter with Kagan? is a post from Cato @ Liberty - Cato Institute Blog

Some leaders within the Republican Party seem to have fixed on a useful club with which to bludgeon the president and his fellow Democrats — Cordoba House, aka the “Ground Zero” Mosque. Over the weekend, Republican strategist Ed Rollins explained how the party would use the issue in the coming months:

ROLLINS: Intellectually, the president may be right, but this is an emotional issue, and people who lost kids, brothers, sisters, fathers, what have you, do not want that mosque in New York, and it’s going to be a big, big issue for Democrats across this country.

“Face the Nation” Host Bob SCHIEFFER: So you see it as an issue that’s going to continue?

ROLLINS: Absolutely. No question about it. Every candidate — every candidate who’s in the challenge districts are going to be asked, how do you feel about building the mosque on the Ground Zero sites? 

This strategy, exploiting still-raw emotion and implicitly demonizing Muslims, threatens to trade short-term political gain for medium-term political harm to the party. And it most certainly will translate into long-term harm for the country at large.

Opposing the construction of a mosque near the Ground Zero site plays into al Qaeda’s narrative that the United States is engaged in a war with Islam, that bin Laden and his tiny band of followers represent something more than a pitiful group of murderers and thugs, and that all American Muslims are an incipient Fifth Column that must be either converted to Christianity or driven out of the country, else they will undermine American society from within.

It isn’t a political slam-dunk, either. Though 64 percent of Americans think a mosque near Ground Zero is ”inappropriate“, 60 percent of all respondents in the same survey, including 57 percent of Republicans, believe that the organizers have a right to build in that location, and presumably would not favor a government prohibition on this activity. (h/t  Nate Silver at fivethirtyeight) If anyone were to show evidence that the parties building the center were in any way linked to the 9/11 terrorists, or funded by or funding these same  terrorists, then the issues at stake would change.  But they haven’t done so, and are unlikely to do so. In the meantime, those GOP leaders who oppose the mosque betray a basic inability to discern public attitudes, even as they propel this country on a ruinous course, headlong into a civilizational war which pits all Americans against all Muslims.

A number of public officials and commentators, not all of them Obama supporters, have staked out a position that walks this country back from that precipice. NYC Mayor Michael Bloomberg’s courageous and eloquent statementon this issue should be read by all, not just Republicans. But Bloomberg is unlikely to swing opinion within the GOP base. So too with Fareed Zakaria, who nonetheless deserves enormous credit for distancing himself from any organization that would adopt a public position of thinly veiled bigotry, especially one whose mission is “to put an end forever to unjust and unfair discrimination against and ridicule of any sect or body of citizens.” Dan Drezner’s take is aimed squarely at right-of-center readers, and sprinkled with a tone of sarcasm; but he is a pointy-headed intellectual, so he’ll have a hard time convincing the most skeptical of the lot.

A more convincing spokesman for sensible voices on the Right is former Bush speechwriter Michael Gerson, who wisely opposes a short-sighted and cynical political strategy to exploit anti-Muslim sentiments. Likewise, Mark Halperin recognizes the political salience of an anti-mosque stance, but advises party leaders to steer clearof that position. Josh Barro at National Review Online renders a devastating refutation of all the dubious arguments erected to block the mosque. 

Indeed, George W. Bush himself set the tone in the immediate aftermath of the 9/11 atrocities, counseling against retaliation against innocent Muslims who had nothing to do with the attacks, and noting that a number of Muslims were killed on 9/11. Other conservative organizations and institutions took notice of Bush’s leadership, and wisely sacked the few voices who preached violence against all Muslims because nineteen of their coreligionists had perpetrated the attacks.

Not quite nine years later, we’ve come full-circle. With Bush enjoying retirement in Texas, who within the GOP will affirm the party’s position that declaring a war on Islam does not advance our nation’s security?

The GOP and the “Ground Zero” Mosque is a post from Cato @ Liberty - Cato Institute Blog

Politico Arena asks for comments today on President Obama’s Ground Zero Mosque remarks:

My response:

Speaking expressly “as President” last evening [Friday], Mr. Obama has weighed in on the Ground Zero Islamic mosque controversy — and blatantly misstated it.

This controversy has nothing to do with Muslims having “the same right to practice their religion as anyone else in this country” or with their ”right to build a place of worship and a community center on private property in lower Manhattan,” as Obama put it. Nor does it have anything to do with the First Amendment. Rather, the issue is simply one of common decency and sensitivity to the feelings of others.

The president is right about one thing: Ground Zero is “hallowed ground.” It is the ground where some 3,000 people of all faiths lost their lives in a brutal attack by radical Muslims acting in the name of their religion, however distorted their beliefs may have been. Those who lost loved ones that day, to say nothing of the rest of us, cannot be indifferent to that fact — as those who support the mosque’s location near Ground Zero seem to be.

Obama on the Ground Zero Mosque is a post from Cato @ Liberty - Cato Institute Blog

Earlier today, I attended a lecture at CSIS by John Brennan, a leading counterterrorism and homeland security adviser to President Obama. His speech highlighted some of the key elements of the administration’s counterterrorism strategy, in advance of tomorrow’s release of the National Security Strategy (NSS).

I hope that many people will take the opportunity to read (.pdf) or listen to/watch Brennan’s speech, as opposed to merely reading what other people said that he said. Echoing key themes that Brennan put forward last year, also at CSIS, today’s talk reflected a level of sophistication that is required when addressing the difficult but eminently manageable problem of terrorism.

Brennan was most eloquent in talking about the nature of the struggle. He declared, with emphasis, that the United States is indeed at war with al Qaeda and its affiliates, but not at war with the tactic of terrorism, nor with Islam, a misconception that is widely held both here in the United States and within the Muslim world. He stressed the positive role that Muslim clerics and other leaders within the Muslim community have played in criticizing the misuse of religion to advance a hateful ideology, and he lamented that such condemnations of bin Laden and others have not received enough exposure in the Western media. This inadequate coverage of the debate raging within the Muslim community contributes to the mistaken impression that this is chiefly a religious conflict. It isn’t; or, more accurately, it need not be, unless we make it so.

I also welcomed Brennan’s unabashed defense of a counterterrorism strategy that placed American values at the forefront. These values include a respect for the rule of law, transparency, individual liberty, tolerance, and diversity. And he candidly stated what any responsible policymaker must: no nation can possibly prevent every single attack. In those tragic instances where a determined person slips through the cracks, the goal must be to recover quickly, and to demonstrate a level of resilience that undermines the appeal of terrorism as a tactic in the future.

I had an opportunity to ask Brennan a question about the role of communication in the administration’s counterterrorism strategy. He assured me that there was such a communications strategy, that elements of the strategy would come through in the NSS, and that such elements have informed how the administration has addressed the problem of terrorism from the outset.

This was comforting to hear, and it is consistent with what I’ve observed over the past 16 months. Members of the Obama administration, from the president on down, seem to understand that how you talk about terrorism is as important as how you disrupt terrorist plots, kill or capture terrorist leaders, and otherwise enhance the nation’s physical security. On numerous occasions, the president has stressed that the United States cannot be brought down by a band of murderous thugs. Brennan reiterated that point today. This should be obvious, and yet such comments stand in stark contrast to the apolocalytpic warnings from a few years ago of an evil Islamic caliphate sweeping across the globe.

Talking about terrorism might seem an esoteric point. It isn’t. Indeed, it is a key theme in our just released book, Terrorizing Ourselves: Why U.S. Counterterrorism Policy Is Failing and How to Fix It. Because the object of terrorism is to terrorize, to elicit from a targeted state or people a response, and to (in the terrorists’s wildest dreams) cause the state to waste blood and treasure, or come loose from its ideological moorings, a comprehensive counterterrorism strategy should aim at building a psychologically resilient society. Such a society should possess an accurate understanding of the nature of the threat, a clear sense of what policies or measures are useful in mitigating that threat, and an awareness of how overreaction does the terrorists’s work for them. The true measure of a resilient society, one that isn’t in thrall to the specter of terrorism, is the degree to which it can conduct an adult conversation about the topic.

We aren’t there yet, but I’m encouraged by what I’ve seen so far, and by what I heard today.

John Brennan on Countering Terrorism is a post from Cato @ Liberty - Cato Institute Blog

Is environmentalism a religion? At NPR it is — yet again. I thought the latest story started off oddly — talking about “the uneasy relationship between religion and science” and saying that lefty novelist Margaret Atwood thinks that ”in the future we could see a religion that combines religion and science.” But it’s not the case that all religions have problems with all science, is it? So I was dubious about the premise of the story.

And then — what new kind of religion does Margaret Atwood envision? Well, you could write it yourself:

KLEFFEL: Armstrong sees the role of religion as a guiding force for ethical behavior. Margaret Atwood brings that notion to life in her newest novel, “The Year of the Flood.” It’s set in a dystopian near future where genetic engineering has ravaged much of the planet. The survivors have created a new religion.

Ms. ATWOOD: This group, which is called God’s Gardeners, has taken it possibly to an extreme that not everybody will be able to do. They live on rooftops in slums on which they have vegetable gardens. And they keep bees. And they are strictly vegetarian, unless you get really, really hungry, in which case you have to start at the bottom of the food chain and work up. And they make everything out of recycled castoffs and junk. So they’re quite strict.

KLEFFEL: Atwood points out that the beginnings of her religion of the future have already appeared in the present.

Ms. ATWOOD: Indeed, we now have the Green Bible among us, which I did not know when I was writing this book, which has tasteful linen covers, ecologically correct paper, the green parts in green. Introduction by Archbishop Tutu. And a list at the end of useful things you can do to be a more worthy green person.

KLEFFEL: Atwood created a new pantheon of saints, including Rachel Carson, Al Gore and Dian Fossey, the murdered conservationist, as well as hymns, which have been brought to life by Orville Stoeber.

(Soundbite of song, “Today We Praise Our St. Dian”)

Mr. ORVILLE STOEBER (Singer): (Singing) Today we praise our Saint Dian, whose blood for bounteous life was spilled. Although she interposed her faith, one species more was killed.

Novelist Michael Crichton said that environmentalism had all the trappings of a religion: “Eden, the fall of man, the loss of grace, the coming doomsday.” Atwood is filling it out with saints and hymns.

Is Environmentalism a Religion? is a post from Cato @ Liberty - Cato Institute Blog

Stuart Taylor has a very good article this week about the Obama administration, international law, and free speech.  This excerpt begins with a quote from Harold Koh, Obama’s top lawyer at the State Department:

“Our exceptional free-speech tradition can cause problems abroad, as, for example, may occur when hate speech is disseminated over the Internet.” The Supreme Court, suggested Koh — then a professor at Yale Law School — “can moderate these conflicts by applying more consistently the transnationalist approach to judicial interpretation” that he espouses.

Translation: Transnational law may sometimes trump the established interpretation of the First Amendment. This is the clear meaning of Koh’s writings, although he implied otherwise during his Senate confirmation hearing.

In my view, Obama should not take even a small step down the road toward bartering away our free-speech rights for the sake of international consensus. “Criticism of religion is the very measure of the guarantee of free speech,” as Jonathan Turley, a professor at George Washington University Law School, wrote in an October 19 USA Today op-ed.

Even European nations with much weaker free-speech traditions than ours were reportedly dismayed by the American cave-in to Islamic nations on “racial and religious stereotyping” and the rest.

Read the whole thing.

Obama, International Law, and Free Speech is a post from Cato @ Liberty - Cato Institute Blog

I have been trying for years to make people understand that a single system of government schools is fundamentally at odds with American values, especially individual liberty and equal treatment under the law. New York City Mayor Michael Bloomberg, in opposing a move to let city public schools close for Muslim holidays as they do for Christian and Jewish holidays, recently made my point in one, simple sentence:

One of the problems you have with a diverse city is that if you close the schools for every single holiday, there won’t be any school.

Exactly. So which religions, and which people, will get to be more equal than others, Mr. Mayor?

With universal school choice, we wouldn’t have to grapple with such terrible questions.

New York Mayor Opposes Closing Schools for Muslim Holidays is a post from Cato @ Liberty - Cato Institute Blog

The health care debate has catalyzed a wonderful national clash of cultures centering on freedom versus control. Here’s one example that’s both complex and delightful.

Progressive site TalkingPointsMemo ran a story yesterday about a man named “Chris” who carried a rifle outside an event in Phoenix at which President Obama appeared. “We will forcefully resist people imposing their will on us through the strength of the majority with a vote,” Chris said.

To many TPM readers, this kind of thing is self-evidently shocking and wrong: Carrying a weapon is inherently threatening, Second Amendment notwithstanding. And vowing to resist the properly expressed will of the majority—isn’t that an outrageous denial of our democratic values?

Well, . . . No. Our constitution specifically denies force to democratic outcomes that impinge on freedom of speech and religion, on bearing arms, and on the security of our persons, houses, papers, and effects, to name a few. Our constitution also tightly circumscribed the powers of the federal government. Those restrictions were breached without abiding the supermajority requirements of Article V, alas.

There are many nuances in this clash of cultures, and it’s fascinating to watch the battle for credibility. One ugly issue is preempted rather handily by the fact that Chris is African-American.

Next question, taken up by CNN: Was the interview staged? Hell, yeah! says Chris’ interviewer. And they know each other—big deal.

Finally, they were laughing and having a good time. Isn’t this serious? Yes, it is serious, says Chris’ interviewer, but “If you’re not having fun advocating for freedom, you’re doing it wrong!”

It’s a great line—friendly, in-your-face advocacy that might just succeed in familiarizing more Americans with the idea of living as truly free people.

Today Talking Points Memo is charging that the man who interviewed Chris was a prominent defender of a militia group in the 90s, some members of which were convicted of crimes. I know nothing of the truth or falsity of this charge, and I had never heard of the militia group, the interviewer, or his organization before today.

This struggle over credibility is all part of the battle between freedom and control that is playing itself out right now. It’s an exciting time, and a chance for many more Americans to learn about liberty and the people who live it.

“If You’re Not Having Fun Advocating for Freedom, You’re Doing it Wrong!” is a post from Cato @ Liberty - Cato Institute Blog

Europe has come into a lot of criticism lately.  Much of it is justified.  For instance, cutting military forces while expecting the U.S. to maintain security guarantees is more than little irritating for Americans facing trillions of dollars in deficits and tens of trillions of dollars in unfunded liabilities for various bail-outs and social programs.

However, predictions of a radical Islamic takeover of Europe look  less realistic these days.   Forecasting the future is always risky.  Nevertheless, the feared growing population of Islamic extremists hasn’t appeared.  Reports the Guardian:

A district of derelict warehouses, red-brick terraces, and vibrant street life on the canals near the centre of Brussels, Molenbeek was once known as Belgium’s “Little Manchester”. These days it is better known as “Little Morocco” since the population is overwhelmingly Muslim and of North African origin.

By day, the scene is one of children kicking balls on busy streets, of very fast, very small cars with very large sound systems. By night, the cafes and tea houses are no strangers to drug-dealers and mafia from the Maghreb.

For the politically active extreme right, and the anti-Islamic bloggers, Molenbeek is the nightmare shape of things to come: an incubator of tension and terrorism in Europe’s capital, part of a wave of “Islamisation” supposedly sweeping Europe, from the great North Sea cities of Amsterdam and Rotterdam to Marseille and the Mediterranean.

The dire predictions of religious and identity-based mayhem reached their peak between 2004 and 2006, when bombs exploded in Madrid and London, a controversial film director was shot and stabbed to death in Amsterdam, and angry demonstrators marched against publication of satirical cartoons about the Prophet Muhammad.

For Bruce Bawer, author of While Europe Slept, the continent’s future was to “tamely resign itself to a gradual transition to absolute sharia law”. By the end of the century, warned Bernard Lewis, the famous American historian of Islam, “Europe will be Islamic”. The Daily Telegraph asked: “Is France on the way to becoming an Islamic state?” The Daily Mail described the riots that shook the nation in the autumn of 2005 as a “Muslim intifada”.

Yet a few years on, though a steady drumbeat of apocalyptic forecasts continues, such fears are beginning to look misplaced. The warnings focus on three elements: the terrorist threat posed by radical Muslim European populations; a cultural “invasion” due to a failure of integration; and demographic “swamping” by Muslim communities with high fertility rates.

A new poll by Gallup, one of the most comprehensive to date, shows that the feared mass radicalisation of the EU’s 20-odd million Muslims has not taken place. Asked if violent attacks on civilians could be justified, 82% of French Muslims and 91% of German Muslims said no. The number who said violence could be used in a “noble cause” was broadly in line with the general population. Crucially, responses were not determined by religious practice – with no difference between devout worshippers and those for whom “religion [was] not important”.

“The numbers have been pretty steady over a number of years,” said Gallup’s Magali Rheault. “It is important to separate the mainstream views from the actions of the fringe groups, who often receive disproportionate attention. Mainstream Muslims do not appear to exhibit extremist behaviour.”

Obviously, the future is uncertain.  Terrorism will remain a threat to both America and Europe.  However, we must reduce the number of those hostile to the the U.S. and allied countries as well as stop those already determined to do us ill.  So far, thankfully, the news from Europe in this regard appears to be good.

Maybe Europe Isn’t Lost to Islamic Terrorism is a post from Cato @ Liberty - Cato Institute Blog

Unsure about prospects on passing the Local Law Enforcement Hate Crimes Prevention Act as a stand-alone bill, proponents intend to attach it as an amendment to the Department of Defense Authorization bill. As I have said previously, this bill is an affront to federalism and counterproductive hater-aid.

Federal Criminal Law Power Grab

This legislation awards grants to jurisdictions for the purpose of combating hate crimes. It also creates a substantive federal crime of violent acts motivated by the “actual or perceived religion, national origin, gender, sexual orientation, gender identity, or disability of any person.”

This is a federalization of a huge number of intrastate crimes. It is hard to imagine a rape case where the sex of the victim is not an issue. The same goes for robbery – why grab a wallet from someone who can fight back on equal terms when you can pick a victim who is smaller and weaker than you are?

This would be different if this were a tweak to sentencing factors.

If this were a sentence enhancement on crimes motivated by racial animus – a practice sanctioned by the Supreme Court in Wisconsin v. Mitchell – then it would be less objectionable if there were independent federal jurisdiction.

Thing is, the federal government has already done this, with the exception of gender identity, with the Federal Sentencing Guidelines (scroll to page 334 at the link):

If the finder of fact at trial or, in the case of a plea of guilty or nolo contendere, the court at sentencing determines beyond a reasonable doubt that the defendant intentionally selected any victim or any property as the object of the offense of conviction because of the actual or perceived race, color, religion, national origin, ethnicity, gender, disability, or sexual orientation of any person, increase by 3 levels.

The contrast between a sentence enhancement and a substantive crime gives us an honest assessment of what Congress is doing – federalizing intrastate acts of violence.

If Congress were to pass a law prohibiting the use of a firearm or any object that has passed in interstate commerce to commit a violent crime, it would clearly be an unconstitutional abuse of the Commerce Clause.

Minus the hate crime window dressing, that is exactly what this law purports to do.

What this really amounts to is a power grab – giving the federal government power to try or re-try violent crimes that are purely intrastate. Just as the Supreme Court invalidated the Gun Free School Zones Act in United States v. Lopez because it asserted a general federal police power, this law should be resisted as a wholesale usurpation of the states’ police powers.

The act also essentially overrules United States v. Morrison, where the Court overruled a federal civil remedy for intrastate gender-motivated violence. Forget a civil remedy; while we’re re-writing the constitution through the Commerce Clause let’s get a criminal penalty on the books.

Trials as Inquisitions

The hate crime bill will also turn trials into inquisitions. The focus of prosecution could be on whether you ever had a disagreement with someone of another “actual or perceived religion, national origin, gender, sexual orientation, gender identity, or disability.” Worse yet, it can turn to whether you have any close friends in one of these categories, as demonstrated in the Ohio case State v. Wyant. The defendant denied that he was a racist, which led to the following exchange in cross-examination on the nature of the defendant’s relationship with his black neighbor:

Q. And you lived next door . . . for nine years and you don’t even know her first name?

A. No.

Q. Never had dinner with her?

A. No.

Q. Never gone out and had a beer with her?

A. No. . . .

Q. You don’t associate with her, do you?

A. I talk with her when I can, whenever I see her out.

Q. All these black people that you have described that are your friends, I want you to give me one person, just one who was really a good friend of yours.

David Neiwert says that this won’t happen because of a constitutional backstop in the legislation. Unfortunately, the House version of the bill explicitly endorses impeaching a defendant in exactly this manner:

In a prosecution for an offense under this section, evidence of expression or associations of the defendant may not be introduced as substantive evidence at trial, unless the evidence specifically relates to that offense. However, nothing in this section affects the rules of evidence governing impeachment of a witness.

Worse yet, the Senate version of the hate crime bill, the one which will likely become law after conference committee, does not contain this provision. Instead, it explicitly says:

Courts may consider relevant evidence of speech, beliefs, or expressive conduct to the extent that such evidence is offered to prove an element of a charged offense or is otherwise admissible under the Federal Rules of Evidence. Nothing in this Act is intended to affect the existing rules of evidence.

Anyone want to bet that an aggressive prosecutor could find that not having a close enough relationship with your neighbor counts as “expressive conduct” for the purposes of prosecution?

Future Push for More Federal Authority Over Intrastate Crimes

The hate crime bill also pushes a snowball down the mountain toward wholesale federalization of intrastate crime. In a few years this snowball will be an avalanche. By making any gender-motivated crime a hate crime, which will necessarily include nearly all rapes, we will define ordinary street crimes as hate crimes.

With a consistent average of 90,000 rapes a year, this expansion of hate crime definition will come back in a few years where those ignorant of the change in terms will wonder why hate crime is now rampant. “Rampant” only because we have made the relevant definition over-inclusive to the point of being meaningless.

And in a few years, we can revisit this issue with a fierce moral urgency to pass more feel-good legislation that upends state police powers in an effort to do something – anything – to confront this perceived crisis. A perception that Congress is creating in this legislation.

Hate Crimes Bill Becomes an Amendment is a post from Cato @ Liberty - Cato Institute Blog

This month’s Cato Unbound features Robert Wright, who offers us an excerpt from his new book, The Evolution of God. He looks at the possibility of religious tolerance from a game theoretic and evolutionary psychology perspective: Is there a fundamental “clash of civilizations” between Islam and the West? Or just a communication failure? Wright argues that we can work toward understanding by realizing the limits and biases of human moral reasoning:

You might not guess it to read the headlines, but by and large the relationship between “the West” and “the Muslim World” is non-zero-sum. To be sure, the relationship between some Muslims and the West is zero-sum. Terrorist leaders have aims that are at odds with the welfare of Westerners. The West’s goal is to hurt their cause, to deprive them of new recruits and of political support. But if we take a broader view—look not at terrorists and their supporters but at Muslims in general, look not at radical Islam but at Islam—the “Muslim world” and the “West” are playing a non-zero-sum game; their fortunes are positively correlated. And the reason is that what’s good for Muslims broadly is bad for radical Muslims. If Muslims get less happy with their place in the world, more resentful of their treatment by the West, support for radical Islam will grow, so things will get worse for the West. If, on the other hand, more and more Muslims feel respected by the West and feel they benefit from involvement with it, that will cut support for radical Islam, and Westerners will be more secure from terrorism.

This isn’t an especially arcane piece of logic. The basic idea is that terrorist leaders are the enemy and they thrive on the discontent of Muslims—and if what makes your enemy happy is the discontent of Muslims broadly, then you should favor their contentment. Obviously. Indeed this view has become conventional wisdom: if the West can win the “hearts and minds” of Muslims, it will have “drained the swamp” in which terrorists thrive. In that sense, there is widespread recognition in the West of the non-zero-sum dynamic.

But this recognition hasn’t always led to sympathetic overtures from Westerners toward Muslims. The influential evangelist Franklin Graham declared that Muslims don’t worship the same god as Christians and Jews and that Islam is a “very evil and wicked religion.” That’s no way to treat people you’re in a non-zero-sum relationship with! And Graham is not alone. Lots of evangelical Christians and other Westerners view Muslims with suspicion, and view relations between the West and the Muslim world as a “clash of civilizations.” And many Muslims view the West in similarly win-lose terms.

So what’s going on here? Where’s the part of human nature that was on display in ancient times—the part that senses whether you’re in the same boat as another group of people and, if you are, fosters sympathy for or at least tolerance of them?

It’s in there somewhere, but it’s misfiring. And one big reason is that our mental equipment for dealing with game-theoretical dynamics was designed for a hunter-gatherer environment, not for the modern world. That’s why dealing with current events wisely requires strenuous mental effort—effort that ultimately, as it happens, could bring moral progress.

Robert Wright at Cato Unbound is a post from Cato @ Liberty - Cato Institute Blog

I listened live to the president’s Cairo speech this morning on my ride into work. I know that it will be parsed and dissected. Passages will be taken out of context, and sentences twisted beyond recognition. At times, it sounded like a state of the union address, with a litany of promises intended to appeal to particular interest groups.

That said, I thought the president hit the essential points without overpromising. He did not ignore that which divides the United States from the world at large, and many Muslims in particular, nor was he afraid to address squarely the lies and distortions — including the implication that 9/11 never happened, or was not the product of al Qaeda — that have made the situation worse than it should be. He stressed the common interests that should draw people to support U.S. policies rather than oppose them: these include our opposition to the use of violence against innocents; our support for democracy and self-government; and our hostility toward racial, ethnic or religious intolerance. All good.

Two particular comments jumped out at me (the speech text can be found here):

1. The president clearly stated his goals for the U.S. military presence in Iraq. He pledged to “honor our agreement with Iraq’s democratically-elected government to remove combat troops from Iraqi cities by July,” “the removal of our combat brigades by next August,” and “to remove all our troops from Iraq by 2012.”

This might not seem like much. As noted, it is the established policy of the U.S. government and the Iraqi government under the status of forces agreement. Some recent comments by Army Chief of Staff Gen. George Casey, however, implied that U.S. troops might remain in Iraq for a decade. I’m glad that the president cleared up the confusion.

2. President Obama wisely connected U.S. policy in the 21st century to its founding principles from the earliest days to remind his audience — or perhaps to teach them for the very first time — that the United States was not now, nor ever has been, at war with Islam, or with any other religion. George Washington affirmed the importance of religious equality in his letter to the Hebrew Congregation in Newport, Rhode Island. President Obama quoted John Adams, who saw no reason why the United States could not enjoy good relations with Morocco, the first country to recognize the United States. When signing the Treaty of Tripoli, Adams wrote, “The United States has in itself no character of enmity against the laws, religion or tranquility of Muslims.”

But the president also drew on the Founders to convey a broader message. They believed that the new nation should advance human rights and the cause of liberty by its example, not by military force. Some of our recent leaders seem to have forgotten that, and a few pundits have actually scorned the suggestion. The president wisely cast his lot with the earlier generation, quoting Thomas Jefferson who said “I hope that our wisdom will grow with our power, and teach us that the less we use our power the greater it will be.”

It is a good quote. I use it in my book, too.

Some Early Thoughts on Obama’s Speech is a post from Cato @ Liberty - Cato Institute Blog