Saturday, April 26, 2008

Expression and Commerce, Ct'd

A few weeks ago, I talked about a case in New Mexico where a so-called Human Rights Commission levied a punishment against a bigoted commercial artist (aka a "photographer") for refusing to make a gay couple the subject of her work. I discussed how this case was a profound example of the problem with the Supreme Court's precedent allowing restrictions on supposedly "commercial" speech.

Today, thanks to Kip, I learned of another case that shows the problem of drawing the arbitrary line between "free expression" and "commercial speech" (and thus helping to prove the long-standing libertarian point that economic regulation must inevitably result in restriction of more widely-understood personal freedoms). It seems that a microbrewer based in the town of Weed, California has been placing bottle caps on his legalized psychoactive substance products (aka "beer") that contain the statement "Try Legal Weed."

It seems that in doing so, the microbrewer has run afoul of some taxpayer funded entity known as the Alcohol and Tobacco Tax and Trade Bureau. This obscure federal agency apparently banned "[d]rug references on alcoholic beverages ... in 1994." As a result, the agency has ordered this small business to stop selling its beers with the "Try Legal Weed" caps.

The brewer, who just ordered another 400,000 of these bottle caps (at a cost of $10,000), is not surprisingly appealing the ruling. The grounds for his appeal are that the caps are not a drug reference, and thus are not intended to mislead customers into thinking the beer is marijuana. He points out that his situation is no different from the only slightly better known beer slogan "This Bud's for you."

While I appreciate and fully support the grounds for the brewer's appeal, in some ways it makes the situation even worse. His appeal amounts to an acknowledgement that the agency would be on firmer footing if the bottle caps actually were a drug reference. This, to me, gets the situation exactly wrong, and inadvertently amounts to providing sanction for the concept that the government has the ability to regulate political statements about illegal drugs so long as those statements occur in a "commercial" context.

Imagine if, instead of simply being a humorous reference to the town where the beer is produced, the bottle caps were instead directly advocating that customers skirt the law and actually "try legal weed." The brewer's appeal, by arguing that his bottle caps are legal because they are not actually a drug reference, implicitly suggests that this obscure agency would be on firmer ground if the bottle caps actually were a drug reference, and thus were actually making a statement about the legal status of marijuana. In so doing, the appeal implicitly (if unintentionally) accepts the notion that such clearly political speech is subject to regulation as long as someone is trying to make a profit off of it. How far is it, really, from regulating political statements on beer caps to regulating political statements on mass-manufactured t-shirts?

This is not to say that I think Congress is on the verge of passing legislation prohibiting the manufacture and distribution for profit of pro-marijuana t-shirts. But it is to say that there is legally no reason to distinguish between beer caps produced for profit and t-shirts produced for profit.

To paraphrase a legendary quote: First they came for the "shock jocks," but I was not a shock jock....then they came for the bigoted artists, but I was not a bigoted artist....then they came for the bad-pun-making brewers....

Bonus absurdity: if, as the agency claims, "drug references on alcoholic beverages" are banned, doesn't this mean that labels on alcoholic beverages can and should be prohibited from discussing their alcoholic content? Before you dismiss this as absurd, consider that this same agency has also gone after advertising that says one beer is stronger than another.

Friday, April 25, 2008

Vienna Ayn ("Ann") Thompson

In case you were wondering why I disappeared for a few days, I think I have a good excuse. For what it's worth, my not-entirely-libertarian wife pushed harder for the middle name than I did.

Mother and child are doing wonderfully. Father, however, is officially smitten.

Monday, April 21, 2008

Caine and Hackman in the same movie. This is my thesis man!

Yesterday, I linked to Jim Henley's introduction to The Art of the Possible blog. Today, I had the opportunity to play around a little bit at that site, and immediately started screaming the above line from Pigman in PCU. Indeed, the fact that it took me over a month to find this site, which was founded in part by Mona from Henley's Unqualified Offerings (one of my favorite sites, libertarian or otherwise), is a bit disturbing.

In any event, The Art of the Possible describes its mission thusly:

The Bush administration has been extreme enough in its authoritarianism, flagrant law breaking, and flouting of basic human rights norms to cause fractures in the old GOP coalition. There is now the possibility of new political alliances forming. Speaking broadly, it may be that many of the factions in the Democratic Party, and some of the factions that call themselves “libertarian,” collectively represent a kind of loose anti-authoritarian coalition, or rather, the possibility of one. This site aims to facilitate
conversation among those factions.

So here we have a site that attempts to "facilitate conversation" between liberals and libertarians. My regular readers will be aware that although I do not consider myself a "left-libertarian," I tend to have a stronger relationship with the left side of the blogosphere than the right side. So that's one big point for the Art of the Possible.

Then of course there is the fact that whenever possible I try to weave in themes about coalition building and Madisonian shifting coalitions. So score another big point for the Art of the Possible.

Next comes the fact that the Art of the Possible is geared towards the idea of creating something resembling a political realignment. Of course, I've written repeatedly about the possibility/likelihood of such a realignment occuring in the coming years (although it now seems that a split in the Dem Party caused by the Obama/Hillary fiasco is more likely than a split in the GOP now that the GOP has nominated the one candidate I thought could hold the coalition together). So that's three big points.

Finally, the Art of the Possible features two of my favorite bloggers around: Mona and, now, Jim Henley, both of Unqualified Offerings reknown. In other words: as far as I'm concerned, The Art of the Possible may be the World's Greatest Blog.

(Added bonus: In his follow-up, Mr. Henley throws in a totally gratuitous recommendation of this humble blog....many thanks are in order for that! He also raises a number of other points that are worthy of their own post on my part; alas, 'tis a bit late for that right now)

Sunday, April 20, 2008

Torture and "24"

John Cole has a post up in which he points to a story in The Guardian that claims "24" influenced interrogation tactics at Guantanamo Bay.

According to the article:

Beaver told me she arrived in Guantánamo in June 2002. In September that year there was a series of brainstorming meetings, some of which were led by Beaver, to gather possible new interrogation techniques. Ideas came from all over the place, she said. Discussion was wide-ranging. Beaver mentioned one source that I didn’t immediately follow up with her: “24 – Jack Bauer.”

There has been a lot of discussion over the last few months about whether "24" has had the effect of normalizing torture, much of it well warranted. However, I think there may have been some serious fact-checking problems with this particular story that suggests "24" was a resource for torture methods in September 2002. As I wrote in a comment to Cole's post:

Hey, did anyone care to look at the date where the phrase "24" was uttered as a source of ideas for torture? September 2002, which was not long after the first season of "24" ended and several months before the start of season 2.It's been a lot of years, and I have since stopped watching the show, but IIRC, torture was not a prominently used tactic in the first season, at least not by the "good guys." At most there was one torture scene perpetrated by the good guys, and I don't think it worked.That's not to justify the constant torture of suspects that occured in later seasons (which ultimately was why I stopped watching). But this story just doesn't seem to add up.

I'll admit, my memory could be wrong since the first season of "24" was now six years ago. So if someone can refresh my memory, I'd be quite satisfied. But this does seem to be a statement that ought to have been fact-checked a bit more thoroughly.

***UPDATE*** Thoreau noticed this problem as well, except he has a better memory than I do.