A Stitch in Haste

Yesterday I wrote:

Put succinctly, the president cannot be the commander-in-chief of an army if Congress doesn't give him that army in the first place.

Which got me to thinking: If the president's Article II commander-in-chief power is unitary and plenary, then can the president unilaterally bring back the draft? (Recall that at least one presidential candidate has warned that a draft might be necessary.)

One would think, of course, that if the president cannot unilaterally seize steel mills for no other reason than "there's a war going on" then he certainly couldn't conscript people for no other reason than "there's a war going on," right?

However, since the famous Jackson concurrence in Youngstown Sheet & Tube v. Sawyer, 343 U.S. 579 (1952), does not appear to be cited anywhere in the recently released "torture memo," such "simplistic" or "archaic" reasoning might not apply in the Yoo-based (as opposed to the sanity-based) jurisprudential community.

Just wondering.

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The leading source for torture memo analysis is undoubtedly Balkinization's Marty Lederman. The alpha-and-omega observation:

The memo cites numerous other, as-yet-unreleased memos that appear to contain equally outrageous legal analysis. (Recall Jack Goldsmith writing about Pat Philbin presenting him with a "short stack" of egregious memos.) Those memos should be released immediately. More importantly, I think Congress should strongly consider NOT CONSIDERING ANY ADMINISTRATION LEGISLATIVE PROPOSALS UNTIL ALL OF THE MEMOS HAVE BEEN DISCLOSED AND (APPROPRIATELY) REPUDIATED BY THE DEPARTMENT OF JUSTICE. There is simply no excuse for Congress to have allowed itself to be manipulated like this, and to be kept in the dark about the extent to which the Administration has ignored legislative statutes and treaties. They must use some of the leverage at their disposal.

Sounds about right — especially the "October 2003 memo" referenced in Footnote 10 suggesting that domestic military operations are summarily exempt from Fourth Amendment limitations. That should be a fun read.

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For Discussion: Some are pushing for U.C. Berkeley's Boalt School of Law to dismiss Yoo from its faculty, based on academic incompetence (i.e., no one who is so wrong about such basic constitutional issues should be allowed anywhere near law school students). On the other hand: "tenure." Thoughts?

The Fourth Amendment has become a lost highway:

After verifying the tire was not in fact defective, the officer detained the driver, because among other things, the driver had a religious statue on his dashboard. The officer stated that in his experience and opinion, religious symbols are used to dispel suspicion of wrongdoing and are usually indicative of drug activity.

So now having a plastic dashboard Jesus qualifies as "fits the profile"?

Fortunately, the defendant had not Jesus but an "activist" judge metaphorically riding alongside him:

The Court finds that religious symbols cannot be used to generate reasonable suspicion of drug dealing or criminality. To do so, violates religious rights secured by the First Amendment and consequently, the Fourth Amendment. After removing the impermissible element of the religious symbol from the officer's reasonable suspicion calculation, the Court finds the remaining factors do not rise to the level of warranting extending the detention.

Need another gratuitous religious reference? Try "fruit of the poisonous tree" --

Because reasonable suspicion did not exist to extend the stop, once the officer realized a violation had not been committed, the purpose of the stop was fulfilled, and anything thereafter controverted Defendant's Fourth Amendment rights. Therefore, the Court grants Defendant's Motion to Suppress.

I'm reminded of this infamous list of self-contradicting "drug courier" descriptors used to justify airport detentions:

--Arrive late at night?

--Arrive early in the morning?

--One of first to deplane?

--One of last to deplane?

--Deplane in the middle?

--Use a one-way ticket?

--Use a round-trip ticket?

--Carry brand-new luggage?

--Carry a small gym bag?

--Travel alone?

--Travel with a companion?

--Act too nervous?

--Act too calm?

--Wear expensive clothing and gold jewelry?

--Wear black corduroys, white pullover shirt, loafers without socks?

--Wear dark slacks, work shirt, and hat?

--Wear brown leather aviator jacket, gold chain, hair down to shoulders?

--Wear loose-fitting sweatshirt and denim jacket?

--Walk rapidly through airport?

--Walk aimlessly through airport?

--Fly in to Washington National Airport on the LaGuardia Shuttle?

--Have a white handkerchief in your hand?

Eventually some intrepid law school student will compile a similar list of suspicious indicia used for automobile stops, complete with "had a plastic dashboard Jesus" and "had no plastic dashboard Jesus."

The case is United States v. Magana, 2008 U.S. Dist. LEXIS 24859 (W.D. Tex. March 13, 2008).

Jack Balkin links, not unreasonably, the Spitzer scandal to the War on Terror:

These events offer a window into a much larger phenomenon, the National Surveillance State, in which the state increasingly identifies and solves problems of governance through the collection, collation and analysis of information. Governments have always used information, but today's techniques are made more powerful and more prevalent by lower costs of computing and data storage.
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If computing power increases enough, there is no reason why governments might not lower the threshold for reporting of suspicious transactions, or, indeed, require that every transaction over 100 dollars be reported. All this information could later be sifted through by data mining programs, in order to spot patterns of suspicious activity. The only limit is the technology and the manpower that law enforcement is willing to devote to analysis of financial transactions.

Of course, there ought to be another "limit," namely a rational basis for collecting such data.

It's one thing to suggest that there is a reasonable inference that a transaction involving over $10,000 in currency is likely, perhaps almost certain, to involve illegal activity, and that therefore the government has a rational basis to demand disclosure of all such transactions. That's not the libertarian conclusion, but it's not a facially absurd premise.

Demanding disclosure of all currency transactions involving over $100, however, is facially absurd. Demanding disclosure of all transactions of any kind over $100 would leapfrog over "facially absurd" and straight into Orwell. A terrorist can't bring down a skyscraper with one $100 bill or with one prepaid $100 phone card. The fact that the government can now technologically and economically perform such micro-surveillance still does not mean that it can constitutionally perform it. "You don't want another 9/11, do you?" is simply not enough to justify turning over every ATM, credit card, debit card and EFT transaction, no matter how small, to the government.

Even conceding (which libertarians ought never do anyway) that some (indeed most) laws are subject to mere rational basis review does not mean that a law that fails rational basis review (i.e., an irrational law) should not be decried — and judicially invalidated — as such.

Most private telephone subscribers may have their own numbers listed in a publicly distributed directory, but I doubt there are any who would be happy to have broadcast to the world a list of the local or long distance numbers they have called. This is not because such a list might in some sense be incriminating, but because it easily could reveal the identities of the persons and the places called, and thus reveal the most intimate details of a person's life.
--Smith v. Maryland (Stewart, J., dissenting)

Privacy is not a discrete commodity, possessed absolutely or not at all. Those who disclose certain facts to a bank or phone company for a limited business purpose need not assume that this information will be released to other persons for other purposes.
--Smith v. Maryland (Marshall, J., dissenting)

The Wall Street Journal has a feature story today on the federal government's increasing use of data mining (i.e., gathering random information about vast numbers of citizens, without any individualized suspicion of wrongdoing) in the War or Terror:

According to current and former intelligence officials, the [NSA] now monitors huge volumes of records of domestic emails and Internet searches as well as bank transfers, credit-card transactions, travel and telephone records. The NSA receives this so called "transactional" data from other agencies or private companies, and its sophisticated software programs analyze the various transactions for suspicious patterns. Then they spit out leads to be explored by counterterrorism programs across the U.S. government, such as the NSA's own Terrorist Surveillance Program, formed to intercept phone calls and emails between the U.S. and overseas without a judge's approval when a link to al Qaeda is suspected.
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A number of NSA employees have expressed concerns that the agency may be overstepping its authority by veering into domestic surveillance. And the constitutional question of whether the government can examine such a large array of information without violating an individual's reasonable expectation of privacy "has never really been resolved," said Suzanne Spaulding, a national-security lawyer who has worked for both parties on Capitol Hill.

The article mentions a famous — and atrocious — Supreme Court case from 1979, Smith v. Maryland*. The key holding in that case was that, since a person must "tell the phone company what number she is dialing," she cannot have any reasonable expectation of privacy in that phone number, and that the government can therefore demand that phone number from the phone company without a warrant based upon probable cause.

Stated differently, the Court held, preposterously, that there is no difference between AT&T knowing whom you're calling and the government knowing it.

(This idea that "your utility bills belong to the utility and not to you" is, incidentally, also the basis for "heat lamp warrants": the use by drug warriors of unusually high electricity bills — records obtained without a warrant, of course — as evidence to bring to a judge to obtain a search warrant for the premises.)

Beyond the facial (i.e., telephonic) absurdity of Smith v. Maryland at the time, are the ominous new implications it has for modern electronic communications. To posit that the government can obtain your phone logs is bad enough, but that still does not mean that the government can listen in on your phone calls without a warrant (ignoring for the moment unconstitutional violations of FISA).

But the information contained in, e.g., an email header often contains information that a phone number does not: the name (not just the email address) of the recipient, the subject matter, whether it is a reply or forwarded email, the size and file names of attachments, etc. For the government to simply declare, "We can access that header without a warrant — see Smith v. Maryland," is insolent obliviousness.

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Equally insolent is the notion that "driftnet" surveillance — "get everyone's data and let the computers sort it out" — is somehow not problematic. This is the asinine proposition of, among others, Richard Posner: that "a computer can't violate your rights."

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More thoughts from Threat Level, Deep Links, Concurring Opinions.

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*Smith v. Maryland, 442 U.S. 735 (1979)

The Supreme Court has agreed to hear an important Fourth Amendment case regarding the search of an automobile after its driver has been lawfully arrested.

The procedural posture of Arizona v. Gant, No. 07-542, is a bit complicated. The facts are not:

At the time of the search, Gant was handcuffed, seated in the back of a locked patrol car, and under the supervision of a police officer. The other two arrestees at the scene were also handcuffed and detained in the back of patrol cars, and the record reflects no unsecured civilians in the vicinity. At least four officers were on the scene. At that point, the police had no reason to believe that anyone at the scene could have gained access to Gant's vehicle or that the officers' safety was at risk. Indeed, one of the officers who searched Gant's car acknowledged at the evidentiary hearing that the scene was secure at the time of the search. Therefore neither a concern for officer safety nor the preservation of evidence justified the warrantless search of Gant's car. Absent either of these Chimel* rationales, the search cannot be upheld as a lawful search incident to arrest.

That was the decision of the Arizona Supreme Court [PDF - 28 pages]. The State of Arizona begs to differ.

Arizona is asking the Supreme Court to extend the key case regarding post-arrest vehicle searches, New York v. Belton**, to the Gant fact pattern. That is asking too much:

When the occupant of an automobile is subjected to a lawful custodial arrest, does the constitutionally permissible scope of a search incident to his arrest include the passenger compartment of the automobile in which he was riding? That is the question at issue in the present case.

That was the very first paragraph of Belton, and it explains, quite succinctly, why that case in wholly inapposite to the Gant case: Gant was simply not an "occupant of an automobile" in any meaningful sense of the word at the time he was arrested.

He had driven up his own driveway, parked, turned the motor off and exited the vehicle before the police even spoke to him. He was eight to twelve feet away from the vehicle when he was arrested. The arrest was subsequent to an outstanding warrant, not to an immediate crime involving the vehicle. Gant had not been fleeing in the vehicle. The arrest warrant was not related to drugs, weapons or any other contraband (i.e., that might have been in the vehicle). And, finally, "the police had no reason to believe that anyone at the scene could have gained access to Gant's vehicle or that the officers' safety was at risk."

The search of Gant's vehicle was a self-serving fishing expedition by the authorities, nothing more. This the police may not do, even to a lawfully arrested individual.

Based on all that, how can anyone possibly conclude that this excessive, unjustified, warrantless search was reasonable and consistent with the Fourth Amendment?

Then again, whoever said Supreme Court Justices are always reasonable -- especially about the Fourth Amendment?

It will be some time before the Supreme Court hears and decides the case. Stay tuned...

Links to case documents available at SCOTUSblog.

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*Chimel v. California, 395 U.S. 752 (1969)
**New York v. Belton, 453 U.S. 454 (1981)

As the Bush administration turns up the volume on its despicable lies about the purported implications of the expiration of the insolently named "Protect America Act," it has become necessary to review what is and is not still the law regarding War on Terror eavesdropping.

First and foremost: FISA did not expire, the PAA expired. FISA* has no sunset clause; it is in full force until repealed or amended. Administration apologists have been relentless in propagating this lie.

And what does FISA provide?

1. Foreign-to-foreign communications are not protected from surveillance. That has always the case, and is still the case now.

2. When foreign-to-domestic communications are at issue, the government does not have to wait for a warrant from the Foreign Intelligence Surveillance Court. The government can initiate the wiretap and then seek a retroactive warrant from the FISA Court up to 72 hours later. That was the case before PAA was enacted and is still the case after PAA expired.

So again, when National Intelligence Director Mike McConnell and Attorney General Michael Mukasey insist that

"the delay resulting from this discussion impaired our ability to cover foreign intelligence targets, which resulted in missed intelligence information"

what they are really saying is that they themselves refused to comply with FISA's modest requirement that the government return to seeking retroactive warrants from the FISA Court (which, recall, are approved, literally, over 99.95% of the time).

So explain to me again who is putting Americans at risk here?

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A few reminders, given how brazenly the Bush administration is flat-out lying about the warrantless wiretapping question:

--FISA is not a "Carter-era" law; it is a Bush-era law.

--When Administration officials use the term "terrorist," remember that they are conveniently omitting the words "alleged" or "suspected." This is a subterfuge they also use in another context.

--The original violation of FISA, the "Terrorist Surveillance Program," involved eavesdropping on American citizens on American soil. It defies and defiles every dictionary in the world to label such activities as "foreign intelligence" or "international communications." It was domestic spying, pure and simple.

--The Protect America Act**, meanwhile, is about one thing and one thing only: turning an undemanding, de minimis retroactive FISA warrant requirement into no requirement at all.

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Meanwhile, the program has resumed, which I suppose means that government has also resumed paying its phone bill.

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My old fifty-post chain on the warrantless wiretapping scandal here.

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*Foreign Intelligence Surveillance Act, 50 U.S.C. 1801 et seq.
**Public Law No. 110-55 (PDF - 7 pages).

To review: New York City's random bag search program at subway entrances is unconstitutional because any search regime that is objectively worthless cannot possibly be deemed "reasonable" under the Fourth Amendment by any rational judge (irrational judges are another question altogether).

Armed with that:

Amtrak passengers will have to submit to random screening of carry-on bags in a major new security push that will include officers with automatic weapons and bomb-sniffing dogs patrolling platforms and trains, the railroad planned to announce today.
...
The new procedures draw heavily on measures being used in the New York City subways, Rooney said. That model has been upheld in court challenges[.]
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People who are selected for screening and refuse will not be allowed to board, and their tickets will be refunded.

In addition to the screening, counterterrorism officers with bomb-sniffing dogs will patrol platforms and walk through trains, and sometimes they will ride the trains, officials said.

Some hasty stitches:

--Is the difference between blowing up a train and blowing up a train station equivalent to the difference between blowing up plane and blowing up an airport terminal? It's hard to think like a terrorist, but wouldn't blowing yourself up at Penn Station during the morning commute be more effective than blowing yourself up in the bar car on the Metroliner? This security theater does nothing to prevent attacks on crowded commuter terminals themselves, which are the true targets (at least in New York City).

--The very characteristic that makes the New York City subway search so mind-bogglingly stupid is the fact that would-be riders, who are anonymous, can decline to be searched, walk a block to the next entrance (or a few blocks to the next station), board there — and, if a terrorist, do their dastardly deeds anyway. Objectively demonstrable zero deterrence effect. For Amtrak, meanwhile, this wouldn't apply (since people must buy personal tickets as with air travel). So why in this instance also let them "just walk away" as we do on the subways? Why not record their data from the refunded ticket and possibly investigate them further? (I'm arguing here as a devil's advocate, not a libertarian. If you're going to have a dubious warrantless search regime, then at least try to use it intelligently.)

--Deploying sniff dogs on a train itself (rather than on platforms or in baggage areas) comes perilously close to constituting suspicionless dog sniffs of a person's body, an uniquely intrusive form of search that has never been endorsed by any court, and certainly not by the Supreme Court.

--From the article: "Amtrak has received a number of federal grants aimed at boosting security, but officials said there was no specific mandate to implement the changes." That would be on top of Amtrak's $1 billion annual subsidy from taxpayers (i.e., people who don't use Amtrak).

Remember always: The government's approach is that it is better to feel safe than to be safe — or free.

All aboard?

More thoughts at Concurring Opinions.

Two hasty stitches regarding the recent stories about electronic devices such as laptops, cell phones and Blackberries being seized and searched at border crossings:

1. The lawsuit that was recently filed by the Electronic Frontier Foundation does not challenge the propriety of the intrusive searches. The litigation is over pending Freedom of Information Act inquiries to Homeland Security regarding the policy (e.g., how often such searches occur, is there any racial profiling, etc.)

2. No matter how intrusive, the searches are, absent a major rethinking of constitutional jurisprudence, entirely legal:

That searches made at the border, pursuant to the longstanding right of the sovereign to protect itself by stopping and examining persons and property crossing into this country, are reasonable simply by virtue of the fact that they occur at the border, should, by now, require no extended demonstration. The Congress which proposed the Bill of Rights, including the Fourth Amendment, to the state legislatures on September 25, 1789 had, some two months prior to that proposal, enacted the first customs statute. Section 24 of this statute granted customs officials "full power and authority" to enter and search "any ship or vessel, in which they shall have reason to suspect any goods, wares or merchandise subject to duty shall be concealed[.]" This acknowledgment of plenary customs power was differentiated from the more limited power to enter and search "any particular dwelling-house, store, building, or other place" where a warrant upon "cause to suspect" was required. The historical importance of the enactment of this customs statute by the same Congress which proposed the Fourth Amendment is, we think, manifest. This Court so concluded almost a century ago.

--U.S. v. Ramsey, 431 U.S. 606 (1977) (internal citations omitted)

Of course, times change, and what was once straightforward constitutional thinking can later be deemed flawed or even abhorrent. An argument can be made -- libertarians are making it now -- that "the longstanding right of the sovereign" to exercise plenary control of its borders may have made perfect sense when only people and packages came across those borders, but in a digital age when "packages" are likely to include an individual's (or a business') most private information -- information that poses no proximate threat the way a weapon or an invasive species does -- such plenary authority should yield to a more probing analysis: What, exactly, is to be gained by copying a border-crossing citizen's hard drive or Internet bookmarks? How, exactly, is the government going to decide who is subject to what kind of data search? What is the price we pay, in terms of lost privacy and personal indignation, from being ordered to enter our passwords into our laptops or to have our cell phone contacts recorded?

If we must accept, for now, the argument that "it has always been so," then the government must also accept the possibility that "it should no longer be so." DHS is on solid footing -- today.

But tomorrow is another day.

More on the law of border searches here. A PDF of the EFF complaint (18 pages) here. Inspired by this post at Liberty Papers.

Department of Moaning and Sighing:

People filing for public office would also have to submit to drug testing under a proposal pitched by a [South Carolina] state senator.

Senate Republican Leader Harvey Peeler filed his bill a day after news broke that former state Treasurer Thomas Ravenel had been indicted on a federal cocaine conspiracy charge.

No.

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Of course, Chandler v. Miller, 520 U.S. 305 (1997), only expressly forbids a requirement, such as this moron's chest-thumping nonsense, that candidates pass a drug test. It does not directly address requiring candidates only to take a drug test — and publishing the results for voters to do with as they see fit. Mark my words: someone, somewhere, someday will propose exactly that. (I think it clear, however, that the Court's reasoning would extend to any drug testing, even non-disqualifying regimes.)

It almost sounds like a sketch from Mad TV:

Police confiscated two display photos of scantily clad men and a woman from an Abercrombie & Fitch store and cited the manager on a misdemeanor obscenity charge, authorities said.

The police issued the summons Saturday after Abercrombie management did not heed warnings to remove the images from the Lynnhaven Mall store after some customers complained, police spokesman Adam Bernstein said.
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City code makes it a crime to display "obscene materials in a business that is open to juveniles," Bernstein said.

Here is the artwork:


Some hasty stitches:

--The basic obscenity charge is unsustainable (i.e., the city code is blatantly unconstitutional). An inch of adult butt-crack is simply not "obscenity" under the Constitution. All but child pornography and the most prurient XXX-rated smut is protected under the First Amendment (see Miller v. California, 413 U.S. 15 (1973)).

--The notion of banning "nude" artwork where minors are welcome to traffic might entail a different analysis, but the code refers to "obscenity" — which, again, these pictures simply aren't.

--Even if they were, there is no mention of a warrant to seize the artwork. Since this was clearly a novel question regarding a constitutionally suspect law (not to mention a low-level misdemeanor), would it have so burdensome to the smut patrol police officers to refer the matter to a judge beforehand, rather than "confiscate first, litigate later"?

--Note again how flippantly property rights are utterly disregarded here (cf., this recent post). This was not art displayed on public property or forced upon a captive audience (not even a captive audience of juveniles). Anyone prudish enough to take offense at these photographs, or who does not want their precious little snowflakes corrupted by viewing some butt-crack, can shop at GapKids (or, better still, over the Internet).

--I never pass up an opportunity to highlight that Ron Paul is not a libertarian but only an anti-federalist. In his utopia, the anti-liberty, anti-property activist legislators who enacted this silly ordinance would be perfectly within their rights — their "states rights" — to do so.

More thoughts from Tom Rants, Howling Point, Rolling Doughnut, Dolphin's Dock.


UPDATE: Charges to be dropped. Virginia has some law school graduates after all.

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For those not familiar with Mad TV and A&F:

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And in case you missed this video gem from a few months ago.

There is an intellectually sloppy meme circulating in the Paulosphere, in the wake of the newsletter scandal, that goes something like this:

It is irrelevant whether Ron Paul, his purported ghostwriters and his other confreres were or are "racist," since Ron Paul opposes the War on Drugs, which disproportionately harms racial minorities.

There's one problem with this argument: Ron Paul does not oppose the War on Drugs.

If you do the research, Paul in his prepared commentaries (not his off-the-cuff debate or interview responses) only opposes the federal war on drugs. This should surprise no one, since Paul is not a libertarian but a radical neoconfederalist who is only concerned with constraining the power of and abuses by the federal government. To Paul and his ilk, states are free to trample liberty in whatever way and to whatever extent their majoritarian legislatures see fit (including insulation from — Paul's term — "rogue judges").

Yet the war on drugs — the DEA, Coast Guard, RICO laws, block grants, etc., all notwithstanding — is of course not primarily waged by the federal government, but rather by state and local governments. Whom are you more likely to see on a typical episode of COPS: a DEA agent or some jackboot deputy sheriff?

Remember, this is the same Ron Paul who believes that states have an unlimited majoritarian-based authority (i.e., a "state right") to ban raw milk. Who would dare suggest that Paul doesn't think that a state could turn around and ban marijuana too? (Not to mention abortion, flag burning, same-sex intercourse and a host of other hot-button issues.)

If you want to declare openly and loudly that you are a radical majoritarian anti-federalist, and that you support Ron Paul because he shares your worldview, then good for you. If you want to shrug and conclude that a radical majoritarian anti-federalist is better than the other candidates, that could be rational as well. But don't dare proclaim that Paul is a libertarian or that his views reflect a commitment to individual liberty, regarding the war on drugs or anything else.

Related thoughts at The Fly Bottle.

I report, you decide --

ITEM: The State of Texas is set to impose a $5 tax on patrons of strip clubs. Since erotic dancing is constitutionally protected expressive conduct (sorry, Robert Bork), the tax -- apparently the first of its kind -- is being challenged as a violation of the First Amendment:

In their lawsuit, the clubs said nude dancing is protected by the First Amendment, and the state cannot selectively tax it, even if it is conduct some may find offensive.
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Jonathan Turley, a constitutional law expert at George Washington University, said the Texas tax goes too far. "It seems clear legislators are targeting strip clubs because they're unpopular," Turley said. "Laws like this would expose any unpopular industry to punitive taxes. It could be abortion clinics."

MY TAKE: If the government generally cannot impose viewpoint-dependent restrictions on speech (and it can't), then I'm not sure how it can impose viewpoint-dependent taxes without violating the First Amendment. By way of analogy: a state could tax all books, but probably could not tax only erotic fiction. Then again, restrictive zoning of strip clubs and adult bookstores seems to be permissible under current jurisprudence, and Alabama's disgraceful "sex toy merchant ban" survived (non-First-Amendment) court challenges. Still, it seems clear to me that a "selective speech tax" is too close to a "selective speech ban" to survive strict scrutiny under the First Amendment. Also unaddressed is whether the tax applies to male strip clubs patronized by women; that could be a whole other constitutional can of worms. Finally, I found it very depressing to see many economically illiterate comments in the article implying that the demand for strip clubs is perfectly inelastic -- which is a preposterous assertion and a wholly illegitimate rationalization for the tax.

ITEM: In a somewhat related story, an activist legislator in Wisconsin wants to impose a tax on video games and gaming equipment. The revenues would be targeted to funding the state's juvenile detention system:

[T]he idea is that the tax is "a kind of kids-kids thing," with gamers helping out fellow youth stuck behind bars in an adult prison system[.]

MY TAKE: The pesky facts that: (1) not all gamers are kids, and (2) video games generate no demonstrable externalities and therefore warrant no targeted taxation, are of course unaddressed. The Politics of the Warm Fuzzy Feeling has long aimed its laser rifles, dark matter guns and hyperblasters at the video game industry; this insolent proposal is in that sense nothing new. (Via Tax Policy Blog.)

ITEM: When you go to the mall to buy your taxed video games, watch out for protestors --

The California Supreme Court has ruled that shopping malls can't stop protesters from urging the boycott of stores while on mall property.

In a 4-3 decision Monday, the justices ruled that the Fashion Valley mall in San Diego violated California's free speech laws when it kicked out demonstrators in 1998.
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The high court ruled that California's free speech laws protect such demonstrations.

MY TAKE: There is no such thing as "private censorship," "freedom of speech" is not synonymous with "freedom to trespass," and the First Amendment does not quash property rights -- at least not in a jurisdiction with sane judges. To give you an idea of how utterly disconnected from common sense this decision is, consider the dissent:

[J]urisdictions throughout the nation have overwhelmingly rejected [this reasoning]. We should no longer ignore this tide of history. The time has come for us to forthrightly ... rejoin the rest of the nation in this important area of the law. Private property should be treated as private property, not as a public free speech zone.

Sounds about right. The case is Fashion Valley Mall v. NLRB, No. S144753 (Supr. Ct. Cal., December 24, 2007) (PDF - 46 pages).

ITEM: The Supreme Court of Minnesota recently decided an intriguing search and seizure case -- "intriguing" because the court held that the Fourth Amendment's reasonableness requirement depends on the time of day:

We also note that the protection against nighttime searches is aimed at a period of time -- nighttime -- and at certain private activities that occur in the home during that time. Accordingly, we believe it is appropriate to define the interest protected as freedom from intrusion during a period of nighttime repose.

MY TAKE: The court found that the nighttime search in this case was unreasonable and unconstitutional. I suppose any Fourth Amendment victory is a welcome development, but it just doesn't sit well with me to suggest that the Fourth Amendment can mean one thing at noon and another at midnight. Property rights are property rights and privacy rights are privacy rights -- the clock be damned. Moreover, as someone who once worked nights and whose father once worked nights, I also find it utterly unrealistic and unfair to presume a time-of-day homogeneity of the population that simply does not exist in modern society. In short, these are the kinds of problems that arise when a constitutional guarantee is measured in terms of "reasonableness" rather than as absolutes or near-absolutes. The case is Minnesota v. Jackson, No. A05-247 (Minn. Supr. Ct., December 6, 2007). More thoughts at FindLaw's Writ.