Why Don't We Just Start Branding People?

A new Texas law proposal would require people convicted of animal cruelty register with the state like sex offenders must.

"A predator is a predator, if it's against a human or it's against an animal," said Alexander, who in 2007 put muscle behind toughening Texas' animal-cruelty law.

I'm not advocating animal cruelty or sexual deviancy, but where does this sort of thing end? We've already had people placed on sex offender lists for hugging students and talking to children in public places, not to mention people placed on sex offender registries because of data processing errors. And being convicted of a sexual offense could be as simple as urinating in public. Will the same thing follow with animal cruelty offenders?

Americans are shocked at the barbarity of certain Middle Eastern regimes when it comes to crime. But once you start registering people for peeing in public, barring them from certain professions and living in certain places, how far-fetched does physical punishment sound?

When Bad Lawsuits Go Good

I'm truly excited that Democratic Underground is skewering Righthaven, the jerk suing bloggers for copyright infringement without so much as a warning to remove material.

Righthaven is attempting to make a business out of suing Internet websites for copyright infringement. It has filed 180 copyright actions so far —without ever first asking that a work be removed from the target website—in each case alleging “willful infringement” and attempting to extract settlements by threats of statutory damages (up to $150,000), attorneys’ fees and seizure of the domain name.

Apparently, Righthave decided to sue Democratic Underground and that was the wrong dog to poke. DU hired a law firm and blew so many holes in Righthaven's arguments that Righthaven wants to withdraw the suit. I hope DU manages to get legal fees and damages for this nuisance.

Yodeling? Offensive?

I was going to say something truly crass in response to the news that you can't yodel while mowing your grass anymore because it may offend your neighboring Muslim, but I decided against it. The ridiculousness of the story, coming on the heels of this post on the acceptability of offending Christians, does a better job than I ever could.

1 Out of 280

That's the number of convictions against terrorist Ahmed Ghailani, who killed 224 Americans in bombings in Nairobi, Kenya, and Dar es Salaam, Tanzania.

Liberals are pompously arguing that the system worked and that it's unconscionable to complain that terrorists shouldn't be tried in a court system designed for petty thieves. What nonsense.

My favorite excuse is that Barack Obama's DOJ has promised to keep the guy in jail regardless of the trial results. Now there's a result that should send shivers down the spine of anyone to the right of Teh One. The idea that we're depending on the POTUS to decide this guy's dangerous enough to keep in jail regardless of the result of these show trials does put us smack dab in the middle of the moonbats' favorite metaphor: a banana republic.

As Patterico noted, the witness against Ghailani who was barred from his civilian trial probably would have been allowed in a military trial (Glenn Greenwald's assumptions notwithstanding).

This embarassment should have the Holder DOJ thinking twice before trying this again. In the meantime, we're all a little less safe because of the political correctness of this regime.

The Case That's Not What It Seems

A court forcing a cheerleader cheer for her rapist? Well, that's the way Think Progress presented this case decided by the Fifth Circuit.

If you only read Think Progress, you would think the Fifth Circuit had gone batshit crazy and forced an innocent person to cheer for her rapist. But the case was not quite what liberals dressed it up to be:

A former Silsbee, Texas, high school cheerleader did not have a First Amendment right to refuse to cheer for a basketball player she claimed had sexually assaulted her, a federal appeals court panel has ruled...

In January 2009, a racially divided grand jury from Hardin County refused to indict the players, who did not have criminal records...

(The cheerleader)said that school officials ordered her to cheer for Bolton, who also played on the basketball team, at a February 2009 game. (The cheerleader)cheered for the team, but refused to cheer for Bolton individually...

In May 2009, (her) parents...sued... argu(ing) that Sheffield violated the First Amendment by retaliating against H.S. for filing sexual-assault charges by revealing details about the case to the public.

With respect to the school and the school defendants, H.S. and her parents contended that she was punished because of her “symbolic expression” not to cheer for Bolton.

Symbolic expression? Nope. Not according to the Fifth Circuit, which ruled that there was no evidence of retaliation and also that not cheering didn't constitute free speech.

One can disagree with the court's decision, but in no way does the decision show Republicans as pro-rape the way Think Progress argues. As Robert Stacy McCain says:

What seems to be at issue is whether cheerleaders enjoy First Amendment protection for disobedience to school administrators. The 5th Circuit agreed with the trial court that they do not, and also upheld a fine against the plaintiff for bringing a “nuisance” suit. The 5th Circuit wasn’t asked to decide whether Rakheem Bolton raped “H.S.,” or whether unchaperoned parties for teenagers are a good idea, or anything like that.

It was strictly a First Amendment case (although, it being Texas, I’m frankly surprised the father of “H.S.” didn’t make it a Second Amendment case). Reacting as programmed, however, feminists Melissa McEwan and Echidne of the Snakes accuse the court of being pro-rape. The case also offers an extra “Blame Bush” bonus for progressives, considering that the 5th Circuit decision was rendered by a panel of three GOP-appointed judges.

It's not uncommon to run into fringies chomping at the bit to unleash some rage at their favorite targets, but this case in no way shows Republicans in general or GOP-appointed Fifth Circuit judges in particular as pro-rape.

What Is the Legal Argument at Ground Zero?

I'm going to steal this from Hugh Hewitt. It's an excellent explanation of the opposition to the Ground Zero mosque and the legal side of the argument.

The trouble is that opposition to one mosque in one place does not a bigot make, though certainly there are anti-Muslim bigots in America. The various straw men put forward and beaten down by Bloomberg et al serve only to deepen the anger of those opposed to one mosque in one place because of their concern over the politicization of Ground Zero, and the other line --taken by Pelosi in the comments above-- that the mosque at Ground Zero is a "local land use decision"-- is instantly understood as not only quite obviously absurd but also political cowardice, especially after the president entered the debate.

As a lawyer who has long represented churches and religious schools in land use disputes, the basic law is this: The government may not constitutionally treat one proposed religious land use differently from similarly situated other religious land uses, and the government may not single out religious land uses for discriminatory treatment in ways that uniquely burden those uses.

By contrast, the government can and does zone land to serve the general good,and in the course of doing that, it may treat religious land uses as one category of land use that will be treated in specific ways, provided those ways are not intended to burden or discriminate against that class of land uses or a particular denomination.

Thus New York City or the state or even the federal government could chose to protect the entire area around and including Ground Zero from all uses that are intended to exploit proximity of the hallowed ground to send messages of any sort. None of these governments could single out the Muslim faith for special burdens or prefer a different faith seeking a shrine nearby.

Neutral principles fairly applied are the heart of Free Exercise Clause's protection of religious land uses.

This approach is, for the benefit of the president's speech writers, a fairly recent development. "The writ of the Founders" did not, for example, stop the attempted extermination of the LDS church in the 19th century.

With Nancy Pelosi calling for investigations of anyone opposed to the mosque, we need to stop pretending that Democrats are simply misguided or have different views from Republicans and conservatives. If the demonization of the Tea Party and talk radio wasn't enough evidence, surely wanting to use the power of the federal government against people speaking their minds should. Nazi and communist references are worn, but, honestly, is there any other way to characterize calling for investigating people for speaking their minds about a national issue? This is, frankly, revolting, and Pelosi should be condemned for it.

Why Marriage?

Interesting discussion about Prop 8 on Hugh Hewitt's show, highlighting the unintended consequences and unprecedented attack on religion inherent in the decision. Judge Walker's decision hinged on the idea that religion and religious views are inherently irrational and no basis for law. This is offensive at least and a blatant attack on Constitutional rights at worst.

Disagreeing with Conservative Majority Opinions

It's been one of those weeks for me, where I've spent a lot of time disagreeing with folks I normally agree with and agreeing with folks I usually don't. Here's the list:

1. I don't like building a mosque at Ground Zero for all the dhimmitude reasons around, but I don't oppose it, since I happen to think freedom of religion (even when I disagree with it) is pretty important.

2. I'm pretty unhappy with the way anti-Prop 8 advocates (like liberals in general since the 1960s) are hellbent on cramming gay marriage down the collective gullet of an unwilling public through the court systems rather than going the Constitutional route. But having said that, the thread at this post on Volokh Conspiracy provided (for me) the best arguments I've heard for gay marriage, and it's got me thinking it may be time. Granted, a lot of it is still anecdotal, and we won't know for decades how this affects other family relationships, but still.

3. Calls to alter birthright citizenship is nuts. And a sure loser at the polls. Do Republicans just want permanent minority status?

Ok, flog me.

Drop the Constitutional Amendment Process

After all, with judges making findings of facts like these, there won't ever be a need to actually pursuade the electorate of anything.

He’s emphasizing the factual findings in the case here, not the ostensibly more important legal conclusions about due process and equal protection. That’s smart as a legal strategy insofar as the facts, not the law, are binding on the appellate courts that’ll hear this case, and it’s smart as a political strategy insofar as the average joe will likely be interested in the sociological testimony from the trial but not so much the tedium of due process analysis. If you’re going to use your limited time on camera to push gay marriage to the public, this is precisely the sort of thing you’d want to emphasize.

The problem, of course, is the legal part of the decision:

The optics are uniquely bad — a federal judge imperiously tossing out a public referendum enacted by citizens of one of the bluest states in America on the shoulders of a multi-racial coalition. If the goal of gay-rights activists is to make same-sex marriage palatable to the public, then embittering opponents by torpedoing a hard-fought democratic victory seems like … an odd way to go about it. The response to that will be that equality can’t wait, just as it couldn’t wait vis-a-vis school desegregation in the 1950s. Except that (a) no one, including gay-marriage supporters, seriously believes that the harm here is as egregious as the harm to blacks under Jim Crow, and (b) there was no assurance of a legislative solution to racial injustice in the 1950s the way there currently is for gay marriage.

This is one of those situations which will simply further enrage the electorate. If you don't get your way after following the process, when do the People get to do what they want? According to liberals, only when they decide it's best for you.

Facebook Can Be Used Against You

There are plenty of reasons to watch what you say on social networking sites, but litigation is probably not the one you considered before flaming your boss on your Wall.

The first thing I do after I receive a copy of an employee-filed complaint -- before I read the complaint -- is check the plaintiff-employee out on Facebook and other social networking sites.

I print any information that employee has made publicly available. I save any pictures the employee has published online and I send a list of the employee's friends to my employer-client to cross-check against a list of current and former employees. I do this because, generally, a Facebook user will allow friends greater access to online content.

Why do I want this information? Because many social media users do not filter what they publish online -- they find social media cathartic. So, for every couple of banal "I'm going to the movies with John tonight" online posts, you'll find an "I just had the worst day in the office because …" post.

It may be considered unfair to have your words used against you in the court of law, but remember that one of the lessons from the JournoList flap is that what you say on the internet is never private and cxan always come back to bite you. That's why you should think about it before hitting the send button (I've even had people say intemperate things in a comment and delete it, not knowing I still saw what they'd sent).

SCOTUS: Free Association Less Important than Homosexuality

That's the gist of the high court's decision in the Christian Legal Society's case against the University of California. The case pitted the idea of freedom of religion versus a school's right to allow such organizations on campus.

The court bizarrely came down on the side of the school, saying that your First Amendment right of free association is less important than someone who doesn't adhere to your beliefs joining your organization.

But the high court ruled, 5-4, that the policy is a "reasonable and viewpoint-neutral" condition placed on becoming a recognized group, which entitles organizations to certain funding and access to campus facilities. Justice Ruth Bader Ginsburg noted that the religious group is free to exclude nonadherents if it forgoes recognized status. "Hastings ... is dangling the carrot of subsidy, not wielding the stick of prohibition," Ginsburg wrote. She dismissed concerns voiced by the society that the policy would encourage "hostile takeovers" of groups like theirs by nonadherents whose aim is sabotage. "This supposition strikes us as more hypothetical than real," she wrote. "Students tend to self-sort."

If this interpretation is correct, we can expect the University of California to allow skinheads to take over college black and Hispanic student groups with impunity.

SCOTUS Extends 2d Amendment Right to States

Silly, isn't it, that it takes yet another court case for individuals to have the Second Amendment right the founders intended.

The Volokh Conspiracy delves into the thorny question the dissent raises: Do gun bans prevent deaths? The short answer is no.

UPDATE: And here is the stupid, kneejerk liberal response completely void of intelligent argumentation. It almost makes your brain hurt to read stuff like this.

High Court Rejects Effort to Keep Names of Petition Signers Secret

This seems about right to me. In general, transparency is necessary to keep elections free and open. The justices held open the idea that plaintiffs might be able to win on a narrower argument, namely, that, in their case, disclosing the names and addresses would leave them subject to harassment and threats.

Judge Tries to Help Prop 8 Plaintiffs

If this doesn't qualify as judicial misconduct during a trial, I'm not sure what does.

Charles Cooper, the attorney defending a federal challenge to Proposition 8, came to San Francisco to deliver his closing argument on same-sex marriage Wednesday. But Chief Judge Vaughn Walker made it feel much more like a cross-examination.

Walker closely questioned Cooper about his trial presentation, including why his side called only one witness to testify about the institution of marriage. Where Cooper's counterpart, Theodore Olson of Gibson Dunn & Crutcher, was able to deploy lofty rhetoric with less interruption, Cooper was stuck parrying Walker for about two hours.

At one point, Walker asked Cooper to recount the trial evidence showing that marriage is designed to encourage procreation. That's the central reason Prop 8 supporters cite as why voters have a rational basis to ban gay marriage. But as Cooper named different expert authorities, Walker interrupted.

"I don't mean to be flip," Walker said, but the people Cooper named didn't actually come to testify.

"Your honor, you don't have to have evidence of this from the authorities," Cooper said, adding that case law is enough.

"You don't have to have evidence?" Walker asked quietly.

The exchange pointed up a key fault line running through the case, in which four gay plaintiffs are seeking to have California's Prop 8 invalidated. From the beginning, Cooper and other conservative legal thinkers argued against the need for a trial, saying case law alone dooms the complaint to fail. Even Olson was skeptical of Walker's plan at first.

Case law--and the voters--support traditional marriage. Gay marriage supporters have emotion but not facts on their side, which is why they continue to argue that gay marriage is like interracial marriage. The truth is that interracial marriage discriminated against race which is strictly barred by the 14th Amendment. There's no such prescription against homosexuals, who have the same marriage rights regardless of color. The fact that they dislike the choices doesn't make it discrimination.

Have your relationship if you want it but don't force me to call it marriage. If you want people to call it marriage, then convince them of it at the ballot box, a task you haven't been able to do yet.

Do You Own Your Software or Just "License" It?

It's one of those insults to our intelligence: you go to a computer store, plunk down 30 or 40 or 200 bucks for a software package, take it home and use it for two years, and then take it to a used book store, trying to recoup a little of your expense when you're done with it, only to find out that said used book store won't resell the software. Why? Because, unbeknownst to you, you never owned the software. You just bought a license to use it. So rather than continuing a useful life as a secondary sale, your (now unwanted) software can either (a) go in the trash or (b) make new coasters for soft drinks.

This is the heart of a case before the Ninth Circuit: when do you own software and when do you merely license its use?

Most of us figure that buying software is no different from buying a book, but the software industry (successfully) argues there are big differences. For one thing, once you download software to your computer, it continues to be useable, even after the disks are long gone, unlike your copy of a book which does not. OTOH, most consumers use software much like they would use a book--until they are done with it.

There are several cases along this same line making their way through the courts, and I can't wait to hear how the Supreme Court will answer these questions, particularly as software and books merge in items like Kindles, or music and iPods.

Obama on Sestak: It Depends on What the Definition of "Job" Is

The White House has released a paper trying to explain away the job offer offer of service on a "Presidential or other Senior Executive Branch Advisory Board, which would avoid a divisive Senate primary, allow him to retain his seat in the House, and provide him with an opportunity for additional service to the public in a high-level advisory capacity," but this still smells.

Bauer asserts, without providing any examples, that there “have been numerous, reported instances in the past when prior Administrations…discussed alternative paths to service for qualified individuals also considering campaigns for public office.” He then concludes that “[s]uch discussions are fully consistent with the relevant law and ethical requirements.”

Why would the White House take months to offer this explanation if there was no illegality to it? Wasn't this supposed to be the most ethical, competent White House in history?

What we're left with is either (a) lying by Joe Sestak about what was offered, (b) lying by the White House about what was offered, (c) incompetence by Joe Sestake about what was offered, or (d) incompetence on the part of the White House about what was offered. It's clear that this paper is an attempt to parse the language of the applicable law so that the White House's actions were not illegal and subject to--dare I say it?--impeachment.

Bauer admits that Rahm Emanuel asked Bill Clinton to offer Sestak an appointment to a “Presidential or other Senior Executive Branch Advisory Board,” and that the appointment would be attractive, i.e., a benefit. The statute does not absolve you of liability if you are offering someone an uncompensated appointment. It also specifies that you are guilty of a violation if you make such an offer “directly or indirectly.” Moreover, since the executive branch may not spend money that is not appropriated by Congress, any such board would be authorized by or at least paid for by an “Act of Congress.”

This situation definitely needs a special prosecutor appointed, but I'm not holding my breath waiting for the Obama minions to do the right thing. It's interesting that the same people screaming for a special prosecutor regarding the firing of U.S. attorneys are yawning and trying to change the subject on this.

"Pants" Judge Loses Wrongful Termination Suit

Surprising only that this story is still going on.

Roy Pearson Jr. is the guy who sued his local dry cleaners for millions because they lost a pair of pants. He later was denied reappointment to his administrative law judge job because he was deemed "unfit" due to abusive behavior. Apparently, his appeals have fallen on deaf ears. Maybe it's time for Mr. Pearson to move on.

Remember When...

Supreme Court nominees' records mattered? Or when associations mattered?

Now, we're told that associations don't matter, and the idea that Kagan might be gay is a "smear," even as conservatives say it doesn't matter. Is this another example of democrisy?

More Free Speech: The First Anti-Obama Movie

Oh, there may have been something done before, but this is the first I've seen of one.

A New Jersey judge-cum-filmmaker has chosen to step down from the bench rather than abide by a dictum from state judicial authorities that he not publicize his satirical movie painting President Obama as a modern-day Faust...

The film is about a cocaine-snorting college student who makes a deal to deliver millions of souls to Satan. The main character, played by Del Vecchio, goes on to attend Harvard Law School, work as a community organizer and win the White House. The title's initials stand for "Occidental Births a Monster," a reference to the college Obama attended for a short time.

Not quite as stirring as an assassination fantasy, but a good start to exposing Democrats to the ridicule they thought appropriate for Republicans.

For Those Who Didn't Vote for John McCain

As Michael Medved noted on his radio show today, I'd like to point out that had John McCain been elected president, the two Supreme Court picks Obama has made would have solidified the conservative Supreme Court.

Elections have consequences.