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June 12th, 2006

On Attachment

Another quote from thirdreel.  I'm liking this guy.

poster: we all know that attachment is bad, in every sense.

thirdreel: I disagree with this. Attachment is what it is. It is not good or bad. The problem is that it brings about karma. If you're attached to sunlight, you'll be miserable on cloudy days. This is why we work to release our attachments--so we're no longer burdened with their karma.

Common Law 101: On Freedom of Speech

Well, it finally happened to my beloved buddhists community: during a debate on abortion, someone was offended and left the community.  I could defend the offended or offend the offender, instead I intend to resolve this matter, this assumed absolute right to speech, with respect to the demands placed upon freedom of speech by online communities, such as LiveJournal and WikiPedia, and through rhetorical discourse with a legal eye, like those of the pragmatic Justice Sandra Day O'Connor.  This discourse should not be interpreted as an appeal to any judicial authority, rather an insight into how Americans interpret freedom, how freedom changes to meet contemporary demands, and, necessarily, how one arbitrates disputing claims to freedom.

'You can and may say whatever the fuck you want, you just have to deal with the consequences'.  This is the usual defense of speech, it is partially correct yet handicapped by inferring a innate or absolute right to speak.  In anarchy, such a defense is reasonable, but I find few anarchists who raise their absolute sceptors and live alone in anarchy.  As I have suggested, " buy an island and move there ... but by no means would I force you."  I may say suggest such a reckless and emotional solution to anarchists because our Law describes a freedom of speech and our government secures it.   If my critics justify unlimited speech as being a natural and innate, then I ask how does one defend a natural or innate right?  Most respond with the misunderstood ideal: 'as long as its doesn't infringe on my rights...'  Rather than cite the myriad of sources that measure the population and its growth within the United States, suffice to say that we live with alot of people and more people are on the way.  People who agree and disagree; people who cause things that effect other people, for the only islands we live on are those of privacy.  Eventually, this discourse will demonstrate how privacy, the penacle of Americanism and the source of paranoia about Big Brother, is defended precisely by limitations on individual speech and press. 

I think it obvious that people, even when mute, use whatever ways and means at their disposal to communicate their thoughts, feelings, and beliefs.  This ability, I have never questioned.  Our Founding Fathers also recognized the obvious ability to speak when they held "... these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness." (Archives, Declaration of Independence, Paragraph 2)  Obviously anyone can say anything; the question here is whether one may say something.  Another point, presented by the Declaraction of Independence, is the source of these unalienable rights.  I think the critical reader readily sees, however aetheist we have progessed or regressed, that Jefferson and the other Declaraction writers believed these rights were granted by a grande authority, and therefore not absolute.
  Some argue that by assuming a government grants rights, or that citizens execercise rights only through a government, that the person is in precarious position because the person is enabling the governor to tyranny.

I approach the question of the source of these rights with pragmatism.  Even if contemporary readers of the Declaration assume the rights mentioned are innate and natural, the question remains who will defend them? 
Do I defend my freedom by speaking louder than the other speaker?  with my built, bouncer buddy ready to pounce? my club protesting with pickets?  What I foresee is,
despite the ernest, personal consideration of anyone, someone's rights will be trampled onEventually there are so many people trying to speak -- or punch speakers -- that something establishes "legal" rights of speech.  So, although I agree with the very consequences mentioned by the anarchist's defense, I believe such an ideal as the mutual non-infrindgement of rights overlooks the eventual relation everyone has to other persons and ultimately this relationship's affect on freedom of speech.  This is the old debate of me versus them, the individual battling the group, and I always pity those who believe anything involving more than themself is somehow undemining their personhood.  Perhaps this is a bold statement to admit, but I fear the group that allows, or festers, fear, not merely because the essence of the group involves more than me, but because I believe that only I am the source of fear and I sense these people's fear of government.  Poetically: 'I have nothing to fear but fear itself'.

The Founding Fathers recognized, just as I have, how these unalienable rights need be protected by more than the person, the bouncer, or the picket line because chaos would abound.  They admit "that to secure these rights, Governments are instituted among Men, deriving their just power from the consent of the governed" (Archive, Declaration of Independence, Paragraph 2)  The reasons for the establishment of government are especially prudent for those who believe niether a Creator or any such grande authority endows them with the right to speak. 
Eventually someone would assert that their rights were paramount to another's, even in the simple case of when one person could speak.  For why?  All things being equal, everyone is different so someone would justify their claim to the podium over another's.  The British Empire infridged upon our ancestors and these, the offended, argued in this Declaration for a right to remain unoffended.  Some argue that this right, namely to remain unoffended, is mere delusion; I ask is the absolute right to speak mere delusion?

In America, you may say you hate Bush.  You may not say that you intend to assinate the President on such-and-such date at such-and-such place.  Why?  Our laws must be viewed holistically.  If someone says, "censorship is gay," or "women are femmi-Nazi's," or "niggers are raccist", would you have no recourse? You could debate them on their social ingratitude, or get mad at them, but do these statements justify any retaliation or compensation?  An easy response to this argument is the case of murder.  Rather than superficially wafting away any and all limitations to rights, I approach the law against murder as a practical system: some people want to live,  these people are capable of killing other people, these people endorse a government, a democracy, that codifies its constitutents' desire to live by establishing a law forbidding murder.  The government enforces this law on behalf of the people by limiting citizens' ability to murder; maybe by moral education, through punishing murderers, or demonstrate the citizens' conviction in their statute.  Eitherway, one could easily dismiss this as the ideal democracy acting on behalf of its citizens, but it is similar to how our government, although republican, is functioning. 
The Declaration of Independence describes in brief the infridgements that our forefathers thought good evidence for and necessity of a new government.   And our Constitution establishes a practical instrument for a mutual, non-infrindgement of individual rights ... balanced with the general welfare. 


The Bush killers, like Bush haters, will cite the 1st Amendment as a defense of their right to say whatever they want about the President: "Congress shall make no law ... abridging the freedom of speech." they say.  But what is the 1st Amendment?  Part of our Bill of Rights.  True, but only partially correct.  The Freedom of Speech clause is an amendment to the constitution governing our land.  So what were the constitutional delegates amending?  "All legislative powers herein granted shall be vested in a Congress of the United States..." says the 1st article, 1st section of our Constitution.  This Congress is described as having the power to "... provide for the common defense and general welfare of the United States." (Article 1, Section 8)  General welfare is interesting terminology; I do not believe it merely means food stamps and I feel the anarchist see its usage as clandestine group think. 

------ From the Dialogue ------

You have a point in asking me to codify discrimination. Legally there is probably some definition, but I'm not a judge and am tired because it sounds like you want your rights to be paramount, and that perspective can work ... on a one-man island.

However, I feel your assertion that I want my rights to be paramount is unfounded. Perhaps you misunderstood me. I was citing the "dweeb" analogy to point out that legislation which grants the individual retributive powers to someone who offends them are silly in thier own right, because one does not have the right to not be offended; let alone the fact that offense is something someone "takes" as opposed to "gives". I cannot force you to be offended at the word "fag", you choose to take offense at the word. This is your prerogative. My point is that if I, for some unknown reason, choose to take offense at some arbitrary word (in this case "dweeb") does that give me the right to impose punishment on anyone who uses it in a way I do not approve?

It is pretty standard, as I understand, that racism is a form a classism but if you disagree, here is how I approach discrimination.

One might argue that a lot of blacks are in poverty, but so are a lot of whites

True, which is why I see class as a vista of society, the root of an inverted tree. All classes are branches of this root. Race is one branch. Sex is another branch, sexual orientation another, cliques, economic status, etc. The sex subclasses would appear as twigs, labelled male, female, and all other variants, the subclass sexual orientation would likewise contain: hetero-, homo-, bi-sexual and all other variants. "Cliques" contains popular, dweeb, and all other social subgroups from school ... you get the gist of this inverted tree hiearchy. Imagine that leaves off these twigs would be labelled with your name. My name appears on several different leaves because I identify with different classes. Thus, we look at the whole society and still arrive at the individual.

"nigger" is racist, but not necessarily classist in definition

I'm reflecting on similarities instead of differences.

A. What is classism? I would say, not merely categorizing a person as a member of the class, rather placing the person in a harmful state (that I describe above) based on their class.

B. What is racism? I would say, not merely recognizing the ethnicity of a person, but making it difficult for the person to work or pursue other happinesses because they identify as that race. 
As an example: not merely recognizing a person is black, but making it difficult for the person to work because they identify as African American.

Obviously there is a definitive difference between classism and racism, but it sounds like you overlook the similarities so that other groups of people may not attain the same privleges and protections as races. (i.e. paranoia that other classes could attain something like Affirmative Action). I noticed this when you said,

legislation which grants the individual retributive powers to someone who offends them are silly in thier own right

Well, I assume we both agree that Affirmative Action should be repealed, however, we probably have different reasons. I believe it should be repealed because it legalizes discrimination -- it compels employers to hire a class of people. To overturn Affirmative Action on the grounds that it compels employers to hire certain individuals is a liberty question (as I mentioned above) and difficult to resolve because the courts would have to try every individual hired under AA. So our legal system has practical reasons for maintaining classes, although ironically it uses classes to protect the citizens who identify with these classes.

Here, it sounds like you would like to know how this identification occurs. Teeny-boppers could make up religions and say the state is not teaching its hip-religion. Although self-determined, society accepts our identifications. So the court would hear a case with the hip-religion when the teeny-boppers pose substantial arguments that convince most peers that their religion is established. Identifying as a "dweeb" or "gay" is not independent of one's peers and society. A teeny-bopper with his own religion is a question of liberty, not discrimination.

I will use your "dweeb" example. Let us assume you identify first and foremost as your self; next as a "dweeb". You are contracted by a cosmetology company to sell their make-up. Your sales quotas are not merely met, they're exceeded! yet your manager persistently recommends you "hip"-up your style, watch some TLC "Makeover"; a "dweeb" co-worker tells you that she heard your manager laughing about contractors being expendable since 'they're just "dweebs"'. You're fired on the grounds of disreputable conduct that harmed the company's image.

This could be discrimination, not because you wore a pocket protector and taped glasses; because the manager possibly fired you based on your identification as a "dweeb". As a judge, I would find this case compelling if your "dweeb" friend was also fired for similar reasons. Discrimination must be determined by a court because your ex-manager could present sound, non-classist reasons for the termination.

You are caricaturing my my statements. I would not say I have any sense of fear about the issue, I have merely expressed that I feel there is no justification for one "class" to demand respect and "equal" treatment at the tip of a gun. I believe that all individuals (as each individual can in some way be the sole member of their own class) have the the same rights to self-ownership and self-defense, and to own and defend that which they have rightfully gained. This does not include the right to something someone else has just because "they have more than I do"; which is the basis of the liberal movement, namely that the rich have "more than enough" and are morally obligated to "share" it with the less fortunate and further that the less fortunate have a moral right to take this wealth by force from those who have rightfully earned it, or whose parents have rightfully earned it, etc.

I will agree that some of those who have amassed copious amounts of wealth have done so via the welfare of the state through corporate subsidies (of all forms) or tax breaks, or the fact that the tax code is so complex and convoluted that only those who can afford the best tax attornies can get off without paying an arm and a leg. This however does not justify increasing the level of government involvement in the economic affairs of others to "compensate". Instead The frustration and anger of the less fortunate should reassess thier misguided furry towards the very institution which has facilitated this: the state.

Firstly, I think we should fix our vocabulary again. Discrimination is
1 a : to mark or perceive the distinguishing or peculiar features of b : DISTINGUISH, DIFFERENTIATE
2 : to distinguish by discerning or exposing differences; especially : to distinguish from another like object
intransitive senses
1 a : to make a distinction b : to use good judgment


It wasn't until recently that the last definition came into being:
2 : to make a difference in treatment or favor on a basis other than individual merit


Now, when you say "legalizes discrimination" I assume you mean the last definition, but lets analyze this. This last case is really only a specific class of discrimination, it is really (as you are implying) discrimination based on irrelevant features. I.e. that firing someone simply because they are black (or blond, or has braces) is firing them on grounds that are not related to ones ability to perform thier duties on the job. Thus when you imply that it ought to be illegal to fire someone based on features which are orthogonal to thier ability to perform thier duties, you are now granting the state the power to determine the staffing configuration of a business against the will of the owner. This last part is key, because it rests on the implied assumption that the owner of something is in reality a part owner, the rest of which is owned by the state.

Perhaps another way of stating it is: the state owns the business, but grants the operator certain "priveledges" concerning the power to make decisions about how this business should be run. This is the difference between being a soverign individual capable of making decisions and being a serf of the kingdom which has been kind enough to grant you the permission to make some decisions. When does it reach critical mass? I.e. when is enough enough? When does that state stop "regulating" and start "allowing"? Eventually you reach a point where it can no longer be called "regulation" — because regulation implies that the thing is mostly free, but slightly restricted — and now has to be refered to as "tolerance" — which implies that the thing is mostly fixed, but is given some room for variation. The latter case, when applied to societies and governments more closely resembles totalitarianism than freedom.

The only solution there is anarchy.

...

Impose punishment? I suppose one could argue that an order to rehire a "dweeb "would be punishment, or monetary damages during the "dweebs" unemployment could be punishment. Anti-discriminatory cases are intended to defend the rights of the offended. This kinda gets into the spirit of the law.

It sounds like you would like discrimination to be removed from the letter of the law. The letter of the law that establishes your rights is interpreted to be the same law that defends other's rights. So it would be difficult to nullify anti-discriminatory interpretations without absolving some of your rights. This interdependency is a result of living within a society.

Is your concern that there are too many punitive, discrimination cases? Seeing how much media coverage discrimination cases get compared to car accidents, I'm not worried about losing any rights.

In conclusion, your right to speak is -- at least legally -- not unlimited.  In the context of government, the freedom of speech and press are not absolute rights (Cushman, 166).  For why?  "Restrictions upon public speeches and publications are necessary for the protection of the public safety and welfare," a welfare maintained by a society facing difficult questions "involving the balancing of the public and private interests."  (Cushman, 167)   Freedom is misunderstood as a one-way street. It flows like this:

I can say whatever.
You can't stop me.
You get mowed over.

For now, this article elaborates on congressional powers and this section is noteworthy because it infers the first restriction of rights in the unamended constitution: "The Congress shall have power ... to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries." (Article 1, Section 8, Paragraph 8)  By granting this exclusive right -- namely a copyright --, however temporary, the constitutional delegates limited the rights of other writers to publish whatever they wanted, thereby establishing a statute against plagarism.  I mentioned plagarism as a common limitation of press (speech); now, I find it interesting that the constitutional delegates assumed speech -- or printing -- an unalienable right because they codified this limitation before writing the First Amendment. 
Whether rights are absolute and innate, or endowed yet unalienable, I think it meaningless to argue about "rights", especially their infridgement, outside the context of governments.

I see one of the largest exploitations of power in our Constitution as an ambiguous paragraph that concludes this establishment of copyright.  It says Congress may "make all laws which shall be necessary and proper for carrying into execution the foregoing powers ..." (Article 1, Section 8, Paragraph 18)  What would prevent Congress from exploiting its power and spoiling the ideal?  Obviously, as promulgated in civics class, those checks and balances from the other two branches of our government.  Here I think the judicial branch, despite critics of its Supreme Court, remains triumphant.  The Courts' obligation to arbitrate is clear: "The judicial power shall extend to all cases, in law and equity, arising fom this Constitution, and the laws of the United States." (Artice 3, Section 2, Paragraph 1)  So when plaintiffs cite the Freedom of Speech clause in their defense, the Courts hear the case in context, namely, with respect to the Constitution, its first amendment -- and the other twenty-three --, and relevant laws codified by Congress.  A judge never intervenes and mandates a law.  If everyone, for example, agreed with pro-life, then no citizen would have petitioned the Supreme Court to arbitrate the dispute.  The judiciary is the most passive branch of our government, because it reacts to citizen's disputes rather than preventing them.  Citizens are catalysts for the judicial scales moving, even if through their elected enforces, namely, the district attorney's and other executive officials.  But what is "judicial power"? and what prevents justices from abusing their office?  Congress.  There is where rational, linear thinking (dare I say, Western logic) conflicts with the circular system of our government, because the limitation of any branch's power is limited by the branches that the original branch was limiting.  I feel most Americans think this circular, balancing government to be a fancy and circuitous system bent on infringing some concept of absolute rights.  If anything, Americans could be more pragmatic: the system works for Frenchmen.

I may sound premature in admitting that I hear the intepretative ancestors of equal representation and anti-discrimination but it is fair that I mention my predisposition to these legal concepts rather than their freedom and liberty counterparts.  (See Declaration of Indepednece)  Section 9 limits Congress's power by stating "no preference shall be given by an regulation of commerce or revenue to the ports of one State over those of another..." (Article 1, Section 9, Paragraph 6)  These egalitarian concepts, even if prematurely found here as mere fair-trade laws, are socially codified by the 13th (slavery), 15th (race), 19th (sex) and 24th (class) amendments.  This wording reflects the spirit of our law, a ideal land that the constitutional delegates said would "... establish justice, insure domestic tranquility, ... and secure the blessings of liberty to ourselves and our posterity." (Preamble)  But ideals are flawed.

Many times we defend classes of people, to ensure their rights are not offended. I realize you're speaking of 'it doesn't matter if it hurts your EMO feelings' but I believe this is only one type of harm, and more ... serious ones are prevented.  The most common examples of statutory limitations of speech and press are: plagarism and libel; underrepresented examples are hate speech and child pornography.  I recieve alot of criticism for mentioning these limitations because, as best I understand, my critics feel government is evil and this evil is suppressing some innate endowment to speak.  A less irrational approach to the matter should reveal the necessity of limiting rights and the establishment of government that enforces these limitations. 

...

How far does this go? The further you expand the word "harm" the less meaning it has as it approaches becoming an umbrella term encompasing the whole spectrum of human interaction. Following your trend (and, unfortunately the trend of the courts in some cases) I could claim that you have harmed me because I am offended at your stupidity (or "gayness"); should I be able to seek compensation for my "damages"? Who decides what is reasonable to call harm? Perhaps you sold some stock a few years back, leading to a slight decrease in the value of that stock, who would prevent me from sueing you for damages?

Granted, there is no consensus on the term but the courts have limited the meaning of harm based on context. I'm a dweeb who listens Oyez; intense and ... substantial debates.

From the slither of cases I've heard or read, "harm" or "burden" boils down to some debilitating state that affects a citizen. Even though this state or action does not prevent the citizen from exercising their rights, it can unduly burden or harm their freedom, usually to life, liberty, and the pursuit of happiness (I prefer Jefferson over Locke). Thus the US maintains many anti-discriminatory statutes ... although I'm sure that's debatable for some people on the grounds of infringing their rights.

... now your terminology is getting more harmful, replacing "gay" with "fag". That's kinda like replacing "black" with "nigger", or "girl" with "cunt". There's alot of cases limiting hateful speech so I -- personally -- would not treat to far on that ice ...

Worming one's way out of classist terms never threatens speech, it fortifies discrimination.


I believe the courts would call this harm.  With property its abit easier. If I spray her car with graffiti and she interprets this as damaging -- or harming -- her property and convinces a judge (quite easily), the government ensures I pay damages to repaint the car.  One could say the government does the same for speech, literally protecting people from harm by plagiarism, etc.  What if property or speech harms the citizen?



No one has used nice to demean me ... at least not by their facial expression.  So what does "gay" mean in this context? I think "gay" has two meanings right now...  Just like 'gay' used to exclusively mean 'homosexual', now it also means 'stupid'. I think it's wrong to assume that when people use the word to mean 'stupid' that they're homophobic or out to offend you. If I say "that's retarded" (however insensitive that may be), it doesn't mean I hate retarded people.  And before that, gay meant happy :)

Verbal abuse is admitted in American courts with damages to compenstate...


... to be continued ...
Comment on:

my "Emporer Bush, Destroy Israel" speech
furthern analysis on the origin of rights
Justice O'Connor as disliked by both sides
yelling "fire" in a crowded theater
separate speech from press?
Shenck, Brandenburg interpretations
elaborate on discrimination v. liberty, see "gay sodomy" case, Lawrence v Texas
fallacy of "just get over it" in response to offenses
insert definitions: rights, freedoms
censorship - define, examples are diaries, journals: security settings, online communities and

--- forums:wikipedia.org statement of policy (italics ours):

    "
While we try to respect consensus, Wikipedia is not a democracy, and its governance can be inconsistent. Hence there is disagreement between those who believe rules should be explicitly stated and those who feel that written rules are inherently inadequate to cover every possible variation of problematic or disruptive behavior.

In either case, a user who acts against the spirit of our written policies may be reprimanded, even if no rule has technically been violated. Those who edit in good faith, show civility, seek consensus, and work towards the goal of creating a great encyclopedia should find a welcoming environment. Wikipedia greatly appreciates additions that help all people." <http://en.wikipedia.org/wiki/Wikipedia:Policies_and_guidelines>

--- livejournal.com FAQ response to free speech says (italics ours)

    "We take pride in trying to provide users with as much freedom of speech as possible, but still do not permit certain material. Most prohibited material is either banned due to United States or international treaty law, or is banned in an effort to keep the service usable for all members."  After listing a few items from the Terms of Service: Member Conduct, the FAQ continues:  " The Abuse Team will not take action on content you find objectionable, but does not violate the Terms of Service. For instance, a comment containing opinions you personally find distasteful, without being harassing, indecent, or libelous, would not violate the Terms of Service." <http://www.livejournal.com/support/faqbrowse.bml?faqid=107&view=full>

The enforces on the communities are members and, ironically, arbitrators -- communal judges of comprised from the membership.  wikipedia describes the role of both:

    "Individual users thus enforce most policies and guidelines by editing pages, and discussing matters with each other. Some policies, such as Vandalism, are enforced by Administrators by blocking users. In extreme cases the Arbitration Committee has the power to deal with highly disruptive situations, as part of the general dispute resolution procedure."  LiveJournal also comments on the power vested in its members, saying "Depending on whether you have control of the location where the content is posted, you will need to take different actions. For instance, if you receive unwanted comments in your journal, you can generally resolve the situation yourself. Likewise, if someone posts unwanted comments or entries in a community you maintain, you can take the same steps to protect your community from further harassment."

LiveJournal lists a synopsis of unpermitted material (bold ours):

"Comments, entries, journals and posts not permitted on LiveJournal include but are not limited to material:
  • that is created solely to harass another user;
  • invading the privacy of another user by posting personal information;
  • intending to interfere with another user's use of the site;
  • inciting violence against an individual, race, ethnicity, or orientation;
  • meeting the United States legal definition of "indecent";
  • containing child pornography (explicit, nude, or erotic pictures taken of anyone under the age of 18, even if the model is over 18 at the time of posting);
  • containing unsolicited advertising of any service, goods, or forum (including LiveJournal communities);
  • infringing the copyright or patent of an individual or corporation;
  • instructing how to break the law;  treason/licivious
  • violating applicable state, federal, or international law.
Cite cases for each.
    1. indecency - "Miller Test", Miller v California

Works Cited

http://www.archives.gov/national-archives-experience/charters/declaration_transcript.html

Cushman, Robert E. and Robert F. Cushman. Leading Constitutional Decisions. 13th ed. Meredith Publishing: New York. 1966