New​Ma​jor​i​ty​.com has a great series of videos showing the testimony of Mark Steyn and Ezra Levant against Section 13 of the Canadian Human Rights Act.

That section empowers the Canadian Human Rights Commission to punish telecommunications that are “likely to expose a person or persons to hatred or contempt” owing to their protected minority status. It is, in short, a hate speech law.

Penalties are harsh, and can include large fines as well as a lifetime publication ban. For a supposedly liberal country like Canada, Section 13 is an extraordinarily illiberal law.

Section 13 has also lined the pockets of one Richard Warman, a former employee of the Commission who has been responsible for the overwhelming majority of prosecutions in the last decade. Steyn and Levant show in their testimony how Section 13 has prompted computer hacking, the planting of false hate speech, and other underhanded techniques from Warman and the rest of its enforcers. Levant suggests that Warman, a privileged white male lawyer, has been the single greatest beneficiary of the law.

Business regulation boards commonly get taken over by the friends of big business. This is a huge problem in the study of law and economics, one with its very own name — regulatory capture.

Censorship agencies are a bit different. They don’t usually get taken over by the friends of publishers, who might be lenient. Instead, they attract the most aggressive would-be censors, the ones who would most enjoy the powers that a censorship board can offer. Once these arrive, few others will have the stomach to continue serving. Agencies like the Canadian Human Rights Commission suffer from regulatory capture, not by the businesses they regulate, but by the most censorious people around. That’s one reason why it’s a huge problem to have a censorship board in the first place.

In early September, Section 13 was ruled unconstitutional by the Canadian Human Rights Tribunal. (Confusingly for this Yankee, the tribunal conceded that it could not actually strike down Section 13 but could only decline to apply it in the case at hand.) An appeal is in the works, and Parliament is now considering whether to modify or even scrap the law.

Canadian newspapers across the political spectrum have lined up to support repeal or at least reform. Meanwhile, it appears that Canada’s Conservative government doesn’t want to be seen as “too conservative” — and thus it has been reluctant to act. Politically, it’s easy to pose as the defender of an outraged minority. It’s much, much harder to be the reluctant-but-principled defender of the right of neo-Nazis to spew hatred.

Much like the Megan Meier Cyberbullying Prevention Act, Section 13 is clearly well-intentioned. No one likes people who say cruel or hurtful things, whether on the Internet or anywhere else. Neo-Nazis are disgusting, and it pains even me to have to defend their rights. But a free society is different from an unfree one precisely in that free societies allow distressing speech to take place. The other option, in which the litigious have undue power over all of us, is more distressing still.

Chris Edwards is right. Tad DeHaven is right. Cash for Clunkers was a shell game and an utter waste of taxpayer money. But C4C offers another teachable lesson, which is that the 35.5 mile per gallon by 2016 fuel efficiency standard will kill General Motors.

In just the latest example of government policies working at cross-purposes, the president buys a 60 percent stake in GM at a cost to taxpayers of $50 billion (conservatively), and simultaneously supports a mandate—in the rigid CAFE standard—that will severely handicap GM, while assisting the competition.

C4C gave consumers the opportunity to express their preferences in the high mileage vehicle market, and GM failed miserably. Consumers of high mileage vehicles prefer Toyotas, Hondas, Fords, Nissans and Hyundais, whose offerings comprise the top ten best sellers list under the program. Not a single GM (or Chrysler) product made the top ten under C4C.

GM’s competitive strength is in the luxury car, muscle car, SUV, and pick-up truck categories. But to sell those cars in 2016, GM will need to sell many, many more small cars than it does now to achieve an average fleet fuel efficiency of 35.5 mpg. So, while GM’s competitors are free to target the gas-guzzling market because there is already plenty of demand for their high-mileage vehicles, GM’s capacity to compete where it is strongest will be conditioned on its ability to cultivate an obviously very skeptical market for its small cars. And that bodes very poorly for GM’s future.

For more on GM’s future and the damage done to important U.S. institutions, like private property rights, the rule of law, the free enterprise system, and the proper separation of economy and state as a result of the Bush/​Obama auto intervention, you are welcome to join us for a policy forum at Cato on October 15 at noon.

• Well, is conservatism “brain dead” after all? David Boaz: “What does conservatism stand for today, other than opposition to President Obama?”

• Why Congress should not renew the PATRIOT Act’s “lone wolf” provision.

• Sex and security in Afghanistan.

• Barack Obama: “The omnipresent omnipresident.”

• Federal spending has doubled in less than a decade. Here’s what we can do about it.

• Podcast: “Unemployment and Stimulus Part II”

Defense Secretary Robert Gates offered some interesting thoughts on the war in Afghanistan last night in a talk at DC’s George Washington University. As Adam Rawnsley notes, Gates says we need to stay in Afghanistan because al Qaeda will get a propaganda win if we leave:

The Afghanistan-Pakistan border area, Gates said, represents the “modern epicenter of jihad.” A place “where the Mujahedeen defeated the other superpower,” and in his estimation of the Taliban’s thinking, “they now have the opportunity to defeat a second superpower.”

Defining al-Qaeda as both an ideology and an organization, Gates said their ability to successfully “challenge not only the United States, but NATO — 42 nations and so on” on such a symbolically important battlefield would represent “a hugely empowering message” for an organization whose narrative has suffered much in the eight years since 9/11.

This is tantamount to saying we have to stay in Afghanistan because we’re in Afghanistan. The recent evidence on this sort of thing is not encouraging. Recall, for example, that Israel spent almost 40 years in possession of the Gaza Strip. Ariel Sharon decided to pull Israelis out of the Gaza Strip in 2005, unilaterally. When that happened, Khaled Meshaal, the leader of Hamas, was all smiles.

Despite the time that had passed, despite the wreckage in Gaza, Meshaal sneered that the pullout constituted “the beginning of the end for the Zionist program in the region.” He went on to say “it is unthinkable that our people will renounce the resistance, which made the enemy retreat. This is our only guarantee to force the enemy to withdraw from the other territories.”

Now that’s a “hugely empowering message,” to use Gates’ term. But what it shows is that it is virtually impossible to do enough damage to a group like al Qaeda — or Hamas — that prevents it from claiming a propaganda victory once you leave somewhere. Issuing press releases and crowing isn’t very hard.

Propaganda aside, though, the underlying material reality is unchanged. The withdrawal from Gaza did not, of course, signal anything like “the beginning of the end for the Zionist program in the region.” Hamas may try to use terrorism to “force the enemy to withdraw from the other territories,” but it’s far from clear that’s actually going to work.

That is to say, Gates is being a bit too postmodern for my tastes here. We have interests. We should make clear that we will defend them. Then, we should defend them. But to say that we’re so concerned about lending al Qaeda a propaganda victory that we can’t leave Afghanistan is a bridge too far. There will always be somebody to declare victory for al Qaeda, whether we leave Afghanistan next year or 20 years from now. Staying until you feel comfortable no one can claim a moral victory as we depart is a recipe for staying forever.

Following up on David’s post about the Stevens “depictions of animal cruelty” case, my takeaway from this morning’s argument is that there’s not a single vote to uphold the law. The closest the government came to sympathy for its position came when Chief Justice Roberts wondered whether, if a narrower statute proscribing the “crush videos” that were the ostensible target of this legislation, the Court might uphold this broad statute on its face but also welcome many as-applied challenges in instances of prosecutorial overreach. (For a pithy discussion of facial versus as-applied challenges, noting that the Court generally favors facial attacks in First Amendment cases, see Roger Pilon’s foreword to this year’s Cato Supreme Court Review.)

A less technical line of questioning involved the constitutionality of a statute banning a hypothetical “human sacrifice channel” or the broadcast of fight-to-the-death gladiatorial battles — from a foreign country where that sort of thing is legal. (Justice Scalia quipped that the rule cannot be that you satisfy the broad legislation’s “historical value” exception if you dress up as an ancient Roman.)

Much of the analysis about these types of extreme scenarios turns on whether the broadcast/​depiction creates a market for such activities — which is the rationale for banning child pornography (i.e., fewer children are subject to sexual abuse if there is not a legal market for pictures and videos of children being sexually abused). Thus, a narrow statute banning the aforementioned crush videos would be kosher, as it were, but not the broad legislation at issue — which could potentially sweep in, to take one example, promotional videos put out by the Spanish board of tourism that include bullfighting clips.

For a more detailed report, see Lyle Denniston on SCOTUSblog (whom you can also see all week on C‑SPAN’s excellent Supreme Court documentary mini-series). And again, to read Cato’s view, see our amicus curiae brief.

Through my work on agriculture, I get occasional media calls on obesity and the agri-industrial complex supposedly behind it. On Sunday, for example, I gave an interview on NPR about the USDA’s push for — and subsidisation of — farmers markets and “eating locally” as the solution to poor nutrition. (This a recurrent theme of the Obama administration: Michelle Obama has made people’s food habits her business, growing a White House Garden and driving in a convoy of 36 vehicles to the H Street farmers’ market in a photo-op to promote it. The USDA even has a “People’s Garden”.)

So an article in today’s New York Times caught my eye. According to a recent study, the push for calorie postings in restaurants has had no affect on people’s eating habits in certain low-income areas of New York City. People’s choices are, apparently, pretty impermeable to the information that nutrition and public health advocates assured us was the key to better choices.

You would be forgiven for thinking that was the end of the matter and we could go on eating what we like unharassed. Think again:

“I think it does show us that labels are not enough,” Brian Elbel, an assistant professor at the New York University School of Medicine and the lead author of the study, said in an interview.

I hope I’m not coming across as hyperbolic, but I find it difficult to believe that healthy eating advocates will be content to accept that people are making choices, unpalatable though they may be to the “slow food” movement, based on the benefits and costs of the alternatives available to them. If people won’t voluntarily submit to the food police — even when information is available — then I suspect calls for regulation will soon follow.

(HT: Radley Balko)

As I noted last week, it looks like top Democrats in the Senate are folding on even fairly mild PATRIOT Act reform for fear of disrupting ongoing investigations—and in particular a “sensitive collection program” involving Section 215 “tangible things” orders. The impulse to defer to executive branch claims of necessity is powerful, and even understandable, but it ought to be resisted. We normally impose neutral magistrates between law officers and search warrants precisely because we understand that the investigators, precisely because of the admirable vigor and single-mindedness we want and expect from them, are not necessarily the best judges of how much power they require. The classic “not enough power” story used to justify the so-called “lone wolf” provision turned out not to hold up under scrutiny, but as I was mulling the current debate, I suddenly remembered a curious story from my days as a tech journalist.

In July of 2005, the Bureau was investigating Magdy Mahmoud Mostafa el-Nashar, a one-time associate of the men who had recently bombed London’s public transit system. (It was soon determined that el-Nashar had not been involved in the plot.) According to a 2007 summary of the investigation, an agent was sent with a grand jury subpoena to recover records from North Carolina State University at Raleigh on July 13.

But then, it appears, something odd happened.“After receiving the subpoena,” the documents recount, the agent “served the subpoena and had some records in hand when he received a call” from his supervisor, who “had been notified by FBIHQ… that we were not to utilize a Grand Jury subpoena and that we must obtain a National Security Letter (NSL).” The agent apparently returned the records (though there appears to be some confusion about whether the agent had actually finished serving the subpoena), and the Bureau’s Charlotte office got to work drafting an NSL.

That was an exceedingly odd thing to do, because the law is totally unambiguous about the kinds of records and institutions that are subject to National Security Letters. And while they’re extraordinarily broad tools, anyone even passingly familiar with them should know they don’t apply to educational records. The school’s lawyers, doubtless perplexed about why they were getting an invalid request for records they’d already happily turned over, nevertheless properly refused to honor the illicit NSL. Agents are supposed to voluntarily report any improper NSL requests, even accidental ones, to an oversight board within 14 days. This one, for some reason, took over a year to make its way up the chain. And yet within a week of the event, FBI Director Robert Mueller was conspicuously well informed about the little mishap with el-Nashar’s school records:

A July 21 e‑mail to the North Carolina office explained: “The director would like to use this as an example tomorrow as to why we need administrative subpoenas’s [sic] to fight the war on terror. In particular, he would like to know how much extra time was spent having to get the Grand Jury subpoena.”

So to review, a legally proper request is issued, the records sought are in hand, when suddenly the call comes down to give them back and use an obviously inappropriate NSL request, costing several days. The head of the bureau is instantly aware of this—though apparently not of the flagrant impropriety—and eager to cite it as evidence that, of course, investigators need more power or their vital efforts to protect us from terrorists will be stymied.

Now, I’m happy to suppose that the initial mix-up was just an honest mistake. But it also very clearly wasn’t evidence to cite in favor of the proposition that the Bureau needed broader powers. Yet nobody, at the time—neither Mueller nor the legislators before whom he testified—seemed to have the time or inclination to get particular about the facts. It was, for the purposes of all concerned, one of those stories that’s “too good to check.” Now that it has been checked, it’s a story to bear in mind when the boys at Justice cry “necessity.”