Can one be both socially conservative and libertarian? Answer: yes

Roger Simon discusses something I had been meaning to write about. His post touches on the tension between social conservatism and the libertarian impulse.

I myself identify as both a social conservative and a small-l libertarian. The contradiction, in fact, is only an apparent one. Allow me to explain.

First of all, there is a fundamental difference between libertarianism and libertinism. Libertinism seeks not liberty but license — the license to ‘do as thou wilst’ while being fully insulated from the consequences of irresponsible behavior. Libertarianism, on the other hand, seeks to get the state out of one’s wallet and bedroom to the extent practically possible, but by definition rejects the concept of the state insulating one from consequences of one’s own irresponsible behavior.

Yes, I believe deeply in a number of values that are generally considered socially conservative, and believe society would benefit greatly if more people would strive to live by these time-proven values. But I believe in furthering them by persuasion and personal example, not by state coercion with its reverse Midas touch.

The answer of every GOP candidate when asked about social issues (other than work ethic and self-reliance, which were still considered social issues when I was young) should be this: “My beliefs are well known, but I do not believe it is the government’s task to enforce them. Now, about the federal deficit and the economy…”

Of course, here’s the flipside: if you don’t want public resources to be used to enforce your beliefs, neither should they be used to enforce those of the other side (no subsidized abortions or s3x changes, no creating a ‘protected/privileged class’ out of a s3xual preference,…). And if you want to engage in risk behaviors (be they nutritional, sexual, smoking,…) do not seek to simultaneously deny us the right to criticize these behaviors yet tax us to foot the bill for them.

And the flip side of rejecting state coercion in “family values” matters is, what ‘cousin Dave’ calls, “get[ting] government out of the business of rearranging society with its offerings of perverse incentives. ”

“Bring the state back to basics.” Even if you do believe that the state should do some stuff beyond what I call “night-watchman duties” (national defense, public law and order, border protection, international relations), as long as it cannot handle the essentials properly it should not concern itself with peripherals. One does not argue about interior decoration while the house is on fire.

Focusing on marginal hate speech as a form of ‘displacement’

Laura Rosen Cohen reflects on a recent incident in Canada:

A Quebec broadcaster let someone on his show and “Maria” proceeded to call Israelis dogs, and talk about how the Holocaust was the best thing to have ever happened, and say all kinds of other things about Jews.

The host warned her that one must be careful about saying things about Jews because the conversation can easily get shut down, that’s it’s a sensitive topic.

Well first of all, the person trying to insult me by calling me a dog needs to work a little harder, since I can think of quite a few categories of humans that make dogs look excellent in comparison — such as  antisemites, apologists for islamofascism, fascist sympathizers (whether their favorite color of fascism be black, brown, red, or green), and of course Chicago Machine hacks. My answer to the kook and her host would probably be something along these lines (NSFW, especially in Italy).

Laura bemoans the excessive amount of attention devoted by Canada’s establishment (and left-leaning) Jewish organizations to combating a few marginal antisemitic kooks, to the detriment of fighting much greater, clearer, and more present dangers elsewhere. While I quibble with some of the language and specifics of her post, her general points — including that the answer to ‘hate speech’ is not ‘hate speech laws’ but better counterspeech — are well taken.

But I believe something else is at work, namely the psychological defense mechanism known as displacement:

an unconscious defense mechanism whereby the mind redirects affects from an object felt to be dangerous or unacceptable to an object felt to be safe or acceptable.[1] The term originated with Sigmund Freud.[2]

A special case of displacement I have discussed on these pages: incompetent managers, when faced with problems that are clearly too big for them,  single out some small, insignificant aspect of the problem, redefine that as “the” problem, attack that, and declare success.

In this case, the establishment Jewish community organizations are afraid to tackle the really serious problems — because that would, inter alia, make them no longer salonfähig among the cocktail party set, or cause a confrontation with a type of imported fascist that may actually try to kill you. Or, for those deeply invested in left-wing world views,  it may entail a reassessment of values and realignment of loyalties more comprehensive than they can handle. Much simpler to ‘displace’ onto a few marginal remnants of the “ancient enemy” (which command no public sympathy) than to try and face the “new enemy” which all too many consider the wave of the future…

Zombie on JournoList and “The week in racism”

Whew. This must be the mother of all Zombie posts. Get thee to the nunnery Zombie’s blog.

Obama’s “post-racial America” has not materialized. Instead, the nation has gone in the opposite direction and become race-obsessed America.

No, that’s not quite right either. We’re not obsessed with race — we’ve become obsessed with accusations of racism. Some of the accusations are true; some, not so much. But what used to be a last-ditch smear tactic used only by the most desperate political operatives, or something which as a society we’d try to ignore in the hopes that it would go away, has instead become a daily occurrence, a standard category in the 24-hour news cycle:
PoliticsSportsBusinessAccusations of RacismWeather

Just a few years ago, shortly before Obama appeared on the political landscape, I wrote this satirical dictionary definition of the word “racist”:

racist – A statement of surrender during an argument. When two people or disputants are engaged in an acrimonious debate, the side that first says “Racist!” has conceded defeat. Synonymous with saying “Resign” during a chess game, or “Uncle” during a schoolyard fight. Originally, the term was meant to indicate that one side was accusing the other of being racist, but once it was noticed that people only resorted to this tactic when all other arguments had been exhausted, it acquired its new meaning of “indicating one’s own concession of defeat.”

Oh, how times have changed, and how quickly. Not only do people now reach for the race card first in almost any political, social, or personal dispute, but sometimes the accusations are even true (or partly true), as public exhibition of racism has become more commonplace. No matter how you slice it — an increase of racism and of false accusations of racism — I see this as a huge step backward for our nation.

The Week in Racism

So many accusations of racism battle for space in your morning headlines, it’s easy to get them all confused. So I’ve created the following scorecard to help you sort it all out.

Here are the Top Ten Accusations of Racism for the last week, along with a handy “Level of Actual Racism” accuracy rating (on a 1-to-10 scale, with 10 being the most racist) to help determine to what extent each accusation is true, or if the accuser is just crying “Uncle” in a losing argument.

Hurry and read the rest. It’s chock-full of good stuff.

“We con the world” and the parody defense

Last week the “We con the world” video by the Latma.com team (lama she-tit`atzben levad/why should you get aggravated by yourself?) became a viral success. Following complaints by Warner Music for copyright infringement, YouTube took down the video, only to be rewarded for its effort by dozens of copies elsewhere (including on PJTV.com and on YouTube itself [example]).
Clearly, YouTube has never heard of the parody defense — this type of parody for nonprofit (in this case, political) purposes has long been recognized as “fair use” in US jurisprudence.
Turns out, there is even a Supreme Court ruling that explicitly recognizes even for-profit parodies as fair use:

http://en.wikipedia.org/wiki/Campbell_v._Acuff-Rose_Music,_Inc.

The story in brief: the rap group 2 Live Crew requested permission to record a parody of Roy Orbison’s classic “Pretty woman”. Permission being denied, they went ahead and recorded one anyhow, adding their trademark raunchy lyrics. Only after the recording became a hit were they sued. Eventually, the case made its way to SCOTUS.

The court found unanimously for 2 Live Crew. Under US copyright law, four criteria determine whether “fair use” applies:

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.

The Supreme Court then found the aforementioned factors must be applied to each situation on a case by case basis. ‘”The fact that parody can claim legitimacy for some appropriation does not, of course, tell either parodist or judge much about where to draw the line. Like a book review quoting the copyrighted material criticized, parody may or may not be fair use, and petitioner’s suggestion that any parodic use is presumptively fair has no more justification in law or fact than the equally hopeful claim that any use for news reporting should be presumed fair.”

When looking at the purpose and character of 2 Live Crew’s use, the Court found that the more transformative the new work, the less will be the significance of the other three factors. The court found that, in any event, a work’s commercial nature is only one element of the first factor enquiry into its purpose and character, quoting Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417. The Supreme Court found the Court of Appeals analysis as running counter to this proposition.

Justice Souter then moved onto the second § 107 factor, “the nature of the copyrighted work”, finding it has little merit in resolving this and other parody cases, since the artistic value of parodies is often found in their ability to invariably copy popular works of the past.

The Court did find the third factor integral to the analysis, finding that the Court of Appeals erred in holding that, as a matter of law, 2 Live Crew copied excessively from the Orbison original. Souter reasoned that the “amount and substantiality” of the portion used by 2 Live Crew was reasonable in relation to the band’s purpose in creating a parody of “Oh, Pretty Woman“. The majority reasoned “even if 2 Live Crew’s copying of the original’s first line of lyrics and characteristic opening bass riff may be said to go to the original’s ‘heart,’ that heart is what most readily conjures up the song for parody, and it is the heart at which parody takes aim.” The Supreme Court then looked to the new work as a whole, finding that 2 Live Crew thereafter departed markedly from the Orbison lyrics, producing otherwise distinctive music.

Looking at the final factor, the Supreme Court found that the Court of Appeals erred in finding a presumption or inference of market harm (such as there had been in Sony). Parodies in general, the Court said, will rarely substitute for the original work, since the two works serve different market functions.

A case could be made that the 2 Live Crew version is a crime against music: however, it is not the function of the courts to regulate taste. The point of all this: if a parody defense was successful in this case, a fortiori the “We con the world” video should not have been a problem.

Quite amusingly, the majority opinion has the lyrics of both the original and the parody attached. Thus the “2 Live Crew”s sophomoric doggerel can be found in any major law library 🙂

Zombie: the new free speech movement

My intrepid blog-ancestor has an essay up on the satirical mock-holiday “Everybody Draw Mohammed Day”.  The crux of his/her argument is in this paragraph:

This is not an argument over the right to be “provocative” or “offensive”; rather, is it something much more significant — an argument over who gets to determine what counts as provocative or offensive in the first place. The Western world dragged itself out of the church-dominated Dark Ages and into the Enlightenment in part over this precise issue: The freedom to engage in speech and actions which formerly had been classified as the crime known as “blasphemy.” It seems such a trivial and quaint issue in retrospect, and hardly worthy of note from our hyper-secularized 21st-century perspective, but tell that to the millions of people who for centuries lived under the yoke of governments which used accusations of blasphemy and other religious misbehaviors as a primary tool of tyranny and oppression. The modern world dawned with the American and French Revolutions and the emergence of the explicitly secular state — the Americans rejecting the Church of England as Britain’s legally enforced national religion, and the French shrugging off centuries of acquiescence to domination by the Catholic Church in civil affairs. In both cases, new governmental paradigms were established in which there was an inviolable separation of church and state, which in practice meant no civil laws enforcing religious doctrines and (most importantly for our discussion) no laws against blasphemy.

In 19th-Century France and Belgium, paleoconservative Catholic clericalists known as “ultramontans” (from “ultra montes”/”beyond the mountains”, i.e., Rome) and the emerging [classical-]liberal bourgeoisie were locked in an existential struggle for the soul of their societies. A similar struggle (mixed in there with nationalist elements pitted against the Papal State) existed in Italy during the risorgimento. Contemporary anti-clerical propaganda was as offensive as anything one can see on Everybody Draw Muhammad Day. Of course there were protests, and of course the clericalists retaliated in kind (with propaganda depicting anticlericals as devil-worshippers etc.) — but few anticlericals seriously feared for their lives. Of course, nothing would have been further from the truth a few hundred years before. But who (outside perhaps Spain itself) still expected the Spanish Inquisition?

Everybody Expects the Islamic Inquistion

Well, the Spanish Inquisition may be a distant memory now relegated to Monty Python skits, but the self-appointed Islamic Inquisition is threatening to take its place. Remember that the Spanish Inquisition (and the much larger papal inquisition which preceded it) existed for the purpose of enforcing religious dictates on the general populace, including and especially religious crimes such as heresy, blasphemy, and apostasy. Punishment for these deeds could be severe and often as not included torture or execution. This is exactly what the Islamic fundamentalists want to impose on us in the 21st century: Obedience to religious dictates, enforced where necessary by violence.

[…]

Islamic extremists still seem to think that banning Facebook or threatening to kill the Everybody Draw Mohammed Day organizers will somehow make the problem of blasphemy go away. They don’t yet understand that we in the West have spent the last 600 years not merely earning the right to be blasphemous, but more importantly creating a society and a worldview in which there is no such thing as blasphemy, because all forms of speech are permitted and religious bullies no longer get to determine what is forbidden.

Read the whole thing.