So, based on the opinion in the “Bong Hits 4 Jesus” case I have a simple question, which I’ll only use a short amount of space for.

If the decision says that speech of a political nature is allowed, then technically wouldn’t a banner or t-shirt proclaiming Bong Hits 4 Jesus, not be a comment on the outcome of the case?

In 2006, Human Rights Watch named Google, Yahoo! and Microsoft as three of the worst offenders of freedom of speech for their role in helping to censor Chinese internet content. Google.cn (Google in China) censors the “Tank Man” image from the 1989 Tiananmen Square protest from its search engine so that Chinese citizens searching for “Tiananmen Square” bring up fairly innocuous images and descriptions of Tiananmen Square and Microsoft has offered a blog tool that “generates an error rejecting ‘profanity’ when a user includes the word ‘democracy’ in the title of a blog,” according to Jonathan Zittrain and John Palfrey of the Berkman Center for Internet and Society at Harvard Law School. Most deplorable has been Yahoo!’s compliance with the Chinese government in implicating several Chinese journalists for their participation in either voicing online dissent or using the internet as a means of communicating to people outside the country about the conditions they find wanting.

The study of international politics often leaves little reason to have faith in international norms and principles—international norms and principles like the Declaration of Human Rights and the Kyoto Protocol which have a relatively weak ability to coerce signatory countries to uphold their agreements and to create real costs for nonsignatory countries to remain “outside” the bandwagon of signatory states. Privacy principles, established under the Organization for Economic Development and Cooperation (OECD) in 1980, fail to be upheld in the modern-day, by the governments of member countries because the OECD guidelines, while well-meaning, are constructed too broadly and vaguely for there to be a clear demarcation between violating those principles and carrying out those principles while bearing other national interests in mind. And even if someone, like Human Rights Watch, could decry that a country conducting internet surveillance on its citizens was violating the OECD Privacy Guidelines, what would come of it? There exists no organ to enforce compliance with international standards like the OECD Privacy Principles.

Added to the problem of enforcement is the amorphous and quickly changing scope of cyber law, where privacy acts and precedents in communications and electronics regulations can be either ignored, discarded, or blurred because the “internet” is the new frontier of communications and technology, where new challenges and opportunities to interpret—or misinterpret—the law and prior norms abounds.

In light of all of international governance’s prior failures, I do acknowledge that in the absence of real enforcement mechanisms, the simple act of signing onto an international agreement may create reputational costs in an iterated game theory scenario that would induce a country to comply with norms and standards:

For example, if Country A were to default from an international standard that a group of other countries adhered to, Country A could be blackballed out of important trading deals that are important to its economy. Thus, there would be a strong economic incentive to stick with the agreement. This is generally how the World Trade Organization (WTO) is supposed to work. And in general, this method of using economic incentives to induce “good behavior”—or democratization—has been painted in the West as a success of neoliberalism.

But despite the iota of faith in international law that I have, I think that the strength and potential in neoliberalism lies not within the construct of international laws developed by state governments banding together in economic arrangements like the OECD or the WTO. The new frontier for international governance and the creation of new norms for “good behavior,” in my opinion, lies within multinational corporations. Multinational corporations span more publics than can traditional state governments and can infiltrate many more close-off societies than well-meaning non-profit humanitarian agencies that are barred access by authoritarian governments fearful of the private agendas that humanitarian agencies bring with them through the pervasive arm of market forces.

One project that I think holds particular promise is the “principles project” being developed under the advice of the Berkman Center of Internet and Society at Harvard Law School. By the end of 2007, several large corporations with stakes in cyber law and internet governance, including Google, Microsoft, Vodafone, and Yahoo! met with groups like Amnesty International, Human Rights in China, and Reporters Without Borders to discuss how to draft a framework intended to adjudicate the two interests that have been traditionally opposed—generating profit and adhering to human rights.

The project is intended to follow the footsteps of Leon Sullivan, one of the fathers of the concept of “corporate social responsibility” who published the “Sullivan Principles” in 1977 to ensure nondiscrimination and the protection of human rights by companies.

Following the publication of the “Sullivan Principles,” the world saw a rise of corporations rising to the challenge of adopting the “Sullivan Principles” in the attempt to more clearly define their responsibilities to their stakeholders and their workers, and as companies bandwagoned to adopt these principles, it became a reputational cost for those companies that did not adopt the principles to be seen as legitimate by their shareholders.

I think that developing “web principles” is a step in the right direction for the amorphous state of internet governance. If enough major internet corporations go on board to adhere to principles that prohibit corporate complicity with internet censorship, deciding not to do business with closed information societies in China and other countries, it becomes clear that in the end, state governments will be the ones to buckle. Governments will not be able to afford the economic costs of having inferior technology and communications networks, and they will have to make significant concessions to the corporate ideologies of the companies providing technology and communications services.

This is the new frontier of internet governance—governance by major corporations. But this is not a hegemonic rule of the Googles and the Microsofts, but governance scheme largely tempered by the democratic-minded markets which they serve. Most of the impetus for creating a “principles” framework came from the public backlash from stakeholders to Yahoo!’s and Google’s efforts to censor the internet in China. As human rights remains a significant concern for many stakeholders, it is clear that the market forces of neoliberalism will continue to give economic incentives for companies to adopt more “socially responsible” means of conducting business.

Although Hillary Clinton is “a frontrunner in early polling,” but that “won’t be enough to capture an early endorsement from either of the two umbrella organizations representing most labor unions.” Labor officials “say it may benefit them to delay an endorsement to maximize their ability to influence issues the candidates talk about.” Obama and Edwards officials have “indicated they’ll be happy if most labor unions withhold institutional endorsements because that would prevent Clinton from developing a runaway lead.”

Orin S. Kerr in a post published at the Volokh Conspiracy Law Blog has pointed to a previous Supreme Court Case, which sheds light on the mendacity of Cheney’s assertion that he is not a part of the Bush Administration. The case is the 2004 Supreme Court Case, Cheney v. United States District Court For The District Of Columbia, and it is in the Brief for the Petitioners (Cheney), where the incongruity lies.

In the Brief for the Petitioners can be found some strong claims that the Vice President is indeed a member of the Executive Branch:

• This case presents fundamental separation-of-powers questions arising from the district court’s orders compelling the Vice President and other close presidential advisors to comply with broad discovery requests by private parties seeking information about the process by which the President received advice on important national policy matters from his closest official advisors.
• The President established the NEPDG to obtain from his most senior advisors, including numerous heads of departments, their advice regarding legislation that he should propose to Congress and administrative actions that the Executive Branch should take.
• Any attempt by Congress to regulate the President’s ability to obtain advice from officials in the Executive Branch would unconstitutionally interfere with powers expressly reserved to the President by the Constitution.
• During the Constitutional Convention of 1787, the Framers considered several times whether to provide the President with some form of advisory council that included representatives of the Legislature or Judiciary. See James Madison, Notes of Debates in the Federal Convention of 1787, at 487-488, 509-510, 569, 598-602 (W.W. Norton & Co. 1966) (debates of Aug. 20, 22, and 31 and Sept. 7, 1787). Each such proposal was rejected. The Framers chose instead to enshrine in Article II the President’s power to seek advice from those under his direct control. As Alexander Hamilton subsequently explained, the unity of the Executive would be destroyed if the President were “subject[ed] in whole or in part to the controul and co-operation of others, in the capacity of counsellors to him.” The Federalist, No. 70, at 472-473 (Alexander Hamilton) (Jacob E. Cooke ed., Wesleyan Univ. Press 1961) . The Opinion Clause thus explicitly confirms the President’s authority to gather information and opinions from his subordinates. The history of that provision, the structure of Article II, and the obvious constraints of the separation of powers make it clear that the President’s authority to receive opinions from Executive officers is not subject to interference from or control by the other Branches. The President may, of course, enlist the Vice President in the process of obtaining those opinions, as Congress has explicitly recognized. See 3 U.S.C. 106.

Justice Kennedy wrote the opinion which was joined wholly by Rehnquist, Stevens, O’Connor, and Breyer. Parts I, II, III, and IV were also joined by Scalia and Thomas. Stevens wrote a concurring opinion. Only Ginsburg dissented. In the opinion, Kennedy wrote:

Were the Vice President not a party in the case, the argument that the Court of Appeals should have entertained an action in mandamus, notwithstanding the District Court’s denial of the motion for certification, might present different considerations. Here, however, the Vice President and his comembers on the NEPDG are the subjects of the discovery orders. The mandamus petition alleges that the orders threaten “substantial intrusions on the process by which those in closest operational proximity to the President advise the President.” App. 343. These facts and allegations remove this case from the category of ordinary discovery orders where interlocutory appellate review is unavailable, through mandamus or otherwise. It is well established that “a President’s communications and activities encompass a vastly wider range of sensitive material than would be true of any ‘ordinary individual.’” United States v. Nixon, 418 U. S., at 715. Chief Justice Marshall, sitting as a trial judge, recognized the unique position of the Executive Branch when he stated that “[i]n no case . . . would a court be required to proceed against the president as against an ordinary individual.” United States v. Burr, 25 F. Cas. 187, 192 (No. 14,694) (CC Va. 1807). See also Clinton v. Jones, 520 U. S. 681, 698.699 (1997) (”We have, in short, long recognized the ‘unique position in the constitutional scheme’ that [the Office of the President] occupies” (quoting Nixon v. Fitzgerald, 457 U. S. 731, 749 (1982))); 520 U. S., at 710.724 (BREYER, J., concurring in judgment). As United States v. Nixon explained, these principles do not mean that the “President is above the law.” 418 U. S., at 715. Rather, they simply acknowledge that the public interest requires that a coequal branch of Government “afford Presidential confidentiality the greatest protection consistent with the fair administration of justice,” ibid., and give recognition to the paramount necessity of protecting the Executive Branch from vexatious litigation that might distract it from the energetic performance of its constitutional duties.

There was never any doubt that Cheney has wanted it both ways, depending on the circumstances. It’s funny that the brief doesn’t establish that the VP is an executive official but rather just assumes it. That was enough back then. Those were the days.

<a href=”http://www.washingtonpost.com/wp-dyn/content/article/2007/06/25/AR2007062501565.html target=”_blank”>Dana Milbank has read the same brief that Prof. Kerr has, and also relays this little gem:

The explanatory task fell to White House spokeswoman Dana Perino, whose skin reddened around her neck and collar as she pleaded ignorance during the daily briefing: “I’m not a legal scholar. . . . I’m not opining on his argument that his office is making. . . . I don’t know why he made the arguments that he did.” “It’s a little surreal,” remarked Keith Koffler of Congress Daily. You’re telling me,” Perino agreed. “You can’t give an opinion about whether the vice president is part of the executive branch or not?” Koffler pressed. “It’s a little bit like somebody saying, ‘I don’t know if this is my wife or not.’”

Gary mentions Rahm Emanuel has introducing a bill to delete spending for Cheney’s ofice due to Cheney’s claims, when convenient. I understand the desire for action — any action — from the Democrats on this issue. But I keep thinking this is a mistake. Maybe you can help me see otherwise…

If the bill doesn’t pass (which is most likely), then it is merely a publicity stunt that attempts to embarrass the VP, administration and any Republicans who are forced to argue against it. In such a case, all sides seem a bit silly. Although I understand that the point is to force members of Congress to take a public position on his authoritarianism

If, by some stroke, the bill actually passes, it would be disastrous. You can’t pass legislation that targets a single individual, so this would be a lasting statement about the office of the VP. It would be taken to support Cheney’s perverse argument that he is not part of the executive.

The braver (and more appropriate) action here would seem to be to introduce articles of impeachment. The list of abuses is already long, and the refusal to obey an executive order in the handling of classified documents in the smoking gun. For those who say it would never succeed, Rahm’s attempt to defund the VP’s office is proof that this isn’t the prime consideration.

Today brought a decision in the “Bong Hits 4 Jesus” case, Morse. The ruling was 5-4, and the Alito concurrence that was joined by Kennedy will be controlling in the case, not the opinion of the Chief Justice. SCOTUSblog has preliminary thoughts on the holding:

Morse is a very limited holding — essentially limited to the drug context. The Alito concurrence, joined by Kennedy, is controlling. He writes: I join the opinion of the Court on the understanding that (a) it goes no further than hold that a public school may restrict speech that a reasonable observer would interpret as advocating illegal drug use and (b) it provides no support for any restriction of speech that can plausibly be interpreted as commenting on any political or social issue, including speech on issues such as ‘the wisdom of the war on drugs or of legalizing marijuana for medicinal use.’”The opinion of the Court does not endorse the broad argument advanced by petitioners and the United States that the First Amendment permits public school officials to censor any student speech that interferes with a school’s “educational mission.” See Brief for Petitioners 21; Brief for United States as Amicus Curiae 6. This argument can easily be manipulated in dangerous ways, and I would reject it before such abuse occurs. Speech advocating illegal drug use poses a threat to student safety that is just as serious, if not always as immediately obvious. As we have recognized in the past and as the opinion of the Court today details, illegal drug use presents a grave and in many ways unique threat to the physical safety of students. I therefore conclude that the public schools may ban speech advocating illegal drug use. But I regard such regulation as standing at the far reaches of what the First Amendment permits. I join the opinion of the Court with the understanding that the opinion does not endorse any further extension.[emphasis author's]

Thankfully the Court rejected the Government’s contention that anything that interferes with the ‘educational mission’ of the school could be censored. Clearly such a holding would mean that any protest would probably be against the educational mission of a school, and even worse could effectively render student debate/protest of educational issues at their own school as unprotected speech.

Even the Chief Justice said that had the banner conveyed any sort of political or religious message it would be acceptable. That speech about the political debate around criminalization of drug use or possession is protected, but viewed the current case as a celebration of illegal activity.

The controlling opinion here does worry me, it’s clear that they went to great lengths to say that this was a very limited holding. That this only dealt with the encouragement of drug use, and that such regulation should be at the “far reaches” of what the First allows. However, too many outstanding issues remain.

The opinion makes mention of debating medical marijuana usage, or other politics surrounding drugs as long as it doesn’t advocate their illegal use. This part really bothers me because the holding seems vague enough to invite reckless censorship by school officials, and as this case was just decided it will be interpreted by District and Circuit courts.

I want to know when an argument for the legalization, decriminalization, or use of marijuana as a medical substance shifts from a political discussion and into an argument for drug use. It seems too vague to me, in saying that medical marijuana has clear benefits, is that not encouraging its use, perhaps by individuals who have heard this argument and may suffer from symptoms that medical marijuana may help? Is the distinction that it is assumed that medical marijuana would be a legal enterprise and so would be equivalent to student speech advocating the continued use of anti-depressants?   However, with abuse of pharmaceuticals on the rise, could even that be considered promoting drug use? Or what if a student simply says, “I think marijuana should be legalized,” quick reading of the opinion suggests that would be protected, but interpretation by lower courts can once again force the issue.

In regard to student speech, I believe that full First Amendment rights should be extended to students attending public schools. The object of any education is to create a well-rounded member of society. When it comes to their role in civics, instruction should not be limited to a classroom discussion and memorization of the Preamble to the Constitution. Being able to practice those rights is crucial to the development of a citizenry that truly values freedom.

Students need to debate complex and often gray area issues about politics and social situations in their education. But outside of teacher led discussion, students must also be able to practice such freedom within the school itself and in their discussions with one another or in criticism of teachers and curricula.

I hope that the inconsistencies I have seen aren’t abused and that further cases aren’t necessary. But as it stands, I think that it is inevitable that a challenge will occur, though it will be against the interpretation of the holding. This is another decision where Kennedy should have sided with the minority, and simply said in his opinion that schools need to work within the community and alongside parents to handle issues like these, but instead, with the slam of a gavel, the ability to broach the controversial at school is now curtailed, even if only in reference to taking bong hits for Jesus.

In early 2001 when the Bush Presidency was just starting, and I was forming my political opinions, I thought that it wouldn’t be so bad to have a governor of NJ become head of the EPA. After all despite other areas, Whitman did have an awfully good record on environmental issues so people told me; but alas this was back when some of us felt that Bush at the very least had to be sane, what a difference six years have made.

Coming from the New York Metropolitan area the issues surrounding 9/11 are always on the table. Today, Whitman will testify to Congress on the issue of the EPA response, specifically air quality. What she is expected to say though may develop into quite the haymaker at Rudy’s chin.

According to the Newark Star Ledger Whitman is expected to testify that the EPA did in fact recommend to the City of New York that all personnel at Ground Zero be required to wear respirators. That it was the decision of the City, and specifically the inaction of Mayor Rudy that led to them being forgone.

“We were certainly frustrated at not being able to get people to wear respirators because we thought that was critically important to workers on The Pile,” Whitman said in an interview with WNBC-TV. “Every day, there would be telephone calls, telephone meetings and meetings in person … with the city when we repeated the message of the necessity of wearing respirators.”

So, one could turn this into an attack on Rudy, especially combined with his absence from the Iraq Study Group and claims from members that his excuses amounted to nothing. However, he has plenty of problems on his own.

Let’s not ignore the lede though, Whitmans’ actions need to be examined. And what appears clear is that Whitman and the response to 9/11 represents just another failure of a Bush appointee to handle a major crisis.

It’s simply absurd to believe that the EPA could not have forced workers to wear safety equipment. The federal government while deferring to the NYC government, declared the site a national disaster, and so had the authority to do pretty much anything. That they attempt to claim that people were just being stubborn isn’t good enough of an answer.

In 2003, the EPA inspector general issued a report that said Whitman’s statements about the safety of the air in Lower Manhattan were not based on proper data and needlessly threatened the health of thousands of people. And last year, U.S. District Judge Deborah Batts refused to grant Whitman immunity in a class action lawsuit, saying Whitman pronounced the air safe even though she knew the collapse of the Twin Towers had released tons of hazardous materials into the air. Batts called Whitman’s statements “conscience-shocking.” While Batts refused Whitman’s request for immunity from suit, a federal appeals court in April reversed the lower court and said agency officials cannot be sued.

The Bush Administration, where even the EPA can be complicit in the misery of thousands.

Rahm Emanuel, responding to Cheney’s assertion that he is not part of the executive branch, will introduce an amendment to the funding bill for the executive branch, the Raw Story has learned. The amendment will remove all funding for the Vice President’s office.

“However, if he demands executive branch funding he cannot ignore executive branch rules. At the very least, the Vice President should be consistent. This amendment will ensure that the Vice President’s funding is consistent with his legal arguments.” At a press briefing yesterday, White House Deputy Press Secretary Dana Perino said that Cheney’s assertion that he operates outside of the executive branch of government was “an interesting constitutional question that people can debate” and a “non-issue.” On Thursday, Emanuel suggested that if Cheney feels his office is not part of the executive branch “he should return the salary the American taxpayers have been paying him since January 2001, and move out of the home for which they are footing the bill.”

What’s even funnier about the whole debacle is that the White House considers a constitutional question a non-issue — what a surprise. Oh, and from the Raw Story article, Rahm on the floor of the House shared the new interpretation of the branches of government.

The Huffington Post has a post that echoes Gary’s view of the New York Times, specifically comparing this to Republicans. Culminating in “if the New York Times hates John Edwards, why, that’s a good enough reason for any thinking person to support him.” I for one do agree with the HP that Edwards clearly does care about the poor. Edwards’ establishment of the non-profit was clearly within the law, and neither the Times nor anyone else provides proof that Edwards has violated any laws with respect to the running of the organization. The point though is about a higher standard-it is morally suspect that a man running an NGO on poverty, no matter the purpose, get to travel to Germany and hold Foreign Policy seminars on the company bill.

This smacks of an even greater hypocrisy because of Edwards’ Two Americas rhetoric.

I agree with Gary that it is significant that the New York Times broke this story. Given their proximity to Hillary Clinton, one cannot help but wonder about the provenance for this article (and its left column A1 placement). I’m suspicious of this idea because where does loss of support for Edwards go? Somehow, I don’t see that the voters who fell for Edwards’ message of the Two Americas and his apologies for his vote for the Iraq war are going to gravitate towards Hillary. Obama’s own campaign has been flagging, but if Edwards decomposes some more, maybe Obama will be the one to benefit.

Regardless, it’s a good piece of reporting by Leslie Wayne. It is a newspaper’s responsibility to raise these questions, and I think the she did a good job. <a href=”http://www.captainsquartersblog.com/mt/archives/010317.php” target=_blank”>Captain’s Quarters spoke well to what my immediate reaction was:

Edwards used the poor as a Trojan horse to rake in an untold amount of money away from the prying eyes of the FEC. Instead of spending it on those he champions from the stump, he spent it on foreign-policy retreats. That has the obvious intention of bolstering his gravitas for another presidential run — and doing so in a sneaky, underhanded manner.

According to today’s Hotline (paid subscription), New Hampshire State Representative Michael Brunelle in a phone news conference said the Senate Democrats now believe they have 66 votes, one short of what is required to override the Presidents veto on the stem cell bill. The House already has enough votes, this override would be an important rebuke to the President’s authority, and mark the first actual legislative victory of this Congress.

According to the Hotline and the Union Leader, Sununu, a major target for Democrats in 2008, is the only member of the NH delegation who is against the position. As a very vulnerable target, he seems the most likely candidate for Democrats and activists to lean on to gain 67.

What remains to be seen now is when the vote to override will take place. If I were involved in strategy discussions I would wait until after Labor Day, and turn this into a wedge issue against conservatives as people finally start tuning into the primary races.

Making good on a promise he made earlier in the week, Senator Obama has made all of his budget requests, a total of $300 million dollars public. President Bush, threatening to use just the fourth veto of his entire administration is citing the amount of pork in the current budget as his reason, apparently he really misses that line item veto he had in Texas.

I personally don’t have the same tax payer penchant to see the death of earmarks and if people would realize those evil earmarks have built plenty of the things in their states they would calm down as well. That being said, I do think the process should require MoCs to disclose their earmarks. This adds transparency to the process and requires candidates to respond to questions from voters about money they are requesting. I see no reason why this, or any act of Congress with the exception of the most sensitive national security issues should not be revealed to the public.

The NYT today has a piece that seems to be a hit job on John Edwards, who after all has some how managed to avoid being pulled into the dirty politics between Obama and Hillary as of late. So the question is then raised, is this just another opp research memo? I think so, but it brings up topics that are worth discussing and addressing.

According to the article, Edwards used his 501(c)(4) organization, The Center for Progress and Opportunity, but tax filings show that the main beneficiary of the organization was not the poor but Edwards himself. The Times continues:

The organization became a big part of a shadow political apparatus for Mr. Edwards after his defeat as the Democratic vice presidential nominee in 2004 and before the start of his presidential bid this time around. Its officers were members of his political staff, and it helped pay for his nearly constant travel, including to early primary states. While Mr. Edwards said the organization’s purpose was “making the eradication of poverty the cause of this generation,” its federal filings say it financed “retreats and seminars” with foreign policy experts on Iraq and national security issues. Unlike the scholarship charity, donations to it were not tax deductible, and, significantly, it did not have to disclose its donors — as political action committees and other political fund-raising vehicles do — and there were no limits on the size of individual donations. [...] But it was his use of a tax-exempt organization to finance his travel and employ people connected to his past and current campaigns that went beyond what most other prospective candidates have done before pursuing national office. And according to experts on nonprofit foundations, Mr. Edwards pushed at the boundaries of how far such organizations can venture into the political realm.

The article does however mention that the organization has done its intended purpose, and quotes a representative from the Edwards campaign defending the organization and its activities, including the work in New Orleans. But right after that passage the article jumps back in to say that he had meetings with: Chancellor Angela Merkel of Germany; Henry Kravis, founder of KKR; and the chief executives of General Electric, Citigroup, Coca-Cola and DaimlerChrysler.

If this quote doesn’t set off the alarms that this is a hit job I don’t know what else will for you. While the merits of the Edwards’ apparatus and operation should be up to scrutiny and debate by voters, this article appears to be designed to drag Edwards into the same muck that Clinton and Obama are in with shady donations, dirty politics, and corporate ties, three things which Edwards has thus far been able to avoid.

The Boston Globe has an interesting story today about Mayor Tom Menino and his “edict” banning voicemail in Boston city government:

Though some think of it as a mundane and necessary cornerstone of modern communication, Mayor Thomas M. Menino banned it more than 10 years ago after suffering through a lengthy recording when he called a city department. He was so irritated that he issued an edict that he still personally enforces with a special vehemence. Menino has been known to sniff out clandestine voice mail and leave indignant messages.

While his methods may be a bit odd, maybe Menino has a point: it only reinforces the image of government as an expansive, bureaucratic monolith when citizens are continually routed through a maze of robotic voicemail boxes.

For all of the talk we hear about the ways new technology may increase citizen participation in politics - making it easier to give small amounts to candidates running for office, using a MeetUp to find people within your area who are interested in the same issues you are - technology also has the ability to make your interactions with government darn frustrating.