Wednesday, December 6, 2017

The Gambling Case

This case was argued this week before the U.S. Supreme Court. The issue is whether states have the right to allow legal gambling on sporting events.

Usually the doctrine of preemption would apply, meaning that the states have to yield to the federal government, in an area in which the federal government has enacted legislation. The problem here is that the federal government has not undertaken to regulate gambling. All the feds did was dictate, in a 1992 law, that the states were prohibited from enacting any legislation allowing gambling on sporting events (except for Nevada, which was grandfathered in).

What this means is that the concept of federalism is front and center in this case. It will be interesting to see whether the conservative justices, who usually make a big deal out of claiming to be in favor of federalism, and states' rights, will be true to their conservative roots and rule for the states. Stay tuned.

Tuesday, December 5, 2017

George Will on the Colorado Cake Case

The famous Colorado bakery case, stemming from the refusal of a baker to bake a cake for a gay wedding, is being argued today in the U.S. Supreme Court. I have previously expressed my sympathy with the baker in this case.

George Will came out with an interesting position, breaking with most of his conservative colleagues. Will says that the cake is primarily food, and "the creator's involvement with it ends when he sends it away to those who consume it." Consequently, the baker ought to lose the case.

However, Will goes on to say that the gay couple who brought this case "have behaved abominably." Will says that the baker's actions "neither expressed animus toward them nor injured them nor seriously inconvenienced them." They simply could have gone down the street to another baker, rather than put the poor baker through the legal wringer.

As a result of the legal wrangling, the baker has stopped making wedding cakes, thereby sacrificing 40% of his business. His number of employees is down from ten to four.

Your attitude about this case is probably determined by whether you see it as a gay rights case, or a First Amendment case. I tend to see it as a First Amendment case.  The gay couple have every right to get married, based on a Supreme Court decision which I wholeheartedly agree with, and they have every right to have whatever kind of wedding ceremony they want. The issue is whether they have a right to have a cake baked by a particular baker, or their photography done by a particular photographer. For the government to enforce such rights seems an overreach.

In an editorial in today's USA Today the baker, Jack Phillips, says he is happy to sell a cake off the shelf to anyone, but he draws the line when asked to violate his personal principles and beliefs. I think this is drawing the line at the right place, from a legal standpoint.

A the oral argument today, the liberals were clearly on the gay couple's side, and the conservatives on the baker's side. Kennedy seemed torn between the two sides, so look for a 5-4 decision with Kennedy, as so often happens, casting the deciding vote.

Surely this case represents another example of our national tendency to whine and complain, to seek legal redress when resort to the courts is totally unnecessary. Although Justice Kennedy asked tough questions of both sides, he seemed more outraged by the gay couple's side, observing that the way the case was handled by the Colorado Civil Rights Commission evidenced a "hostility to religion".

Friday, December 1, 2017

Two Recent Football Issues: A Commentary on our Entitlement Mentality

The fist issue involves Greg Schiano, an Ohio State assistant coach who was hired to coach Tennessee on Sunday, and then unhired the next day after a firestorm of protest arose from Tennessee fans, former players, and state legislators. The protest was centered around Schiano's involvement in the Penn State program, at a time when Jerry Sandusky was molesting young boys.

What is striking to me is the reaction of the national sports talk media, which almost unanimously rose up in protest over Schiano's being tarred by less than convincing evidence of any involvement in the Sandusky scandal. Only one brave commentator spoke out on the other side; this was Bill Reiter, host of a CBS sports radio show on 6-10 P.M. weekday evenings. Reiter rightly pointed out that Tennessee can hire whoever it wants, and that the pity should be reserved for the boys Sandusky molested, not for an assistant coach who may or may not have known of Sandusky's nefarious actions. Reiter pointed out that the evidence pointing to Schiano's involvement in the scandal was based on sworn testimony, offered under oath under penalties of perjury, and this evidence should not be dismissed so cavalierly as the national media were doing.

And then we had the case in the last few days where the NFL Giants announced that Eli Manning would not be starting Sunday.  Here again, a firestorm of protest arose from the lamestream media. "You can't do this to Manning", came the insipid cries, "he has a 210 consecutive game streak" starting at quarterback, second all-time only to Bret Favre.

Here again, only one commentator was thoughtful and mature enough to voice the other side, this being Colin Cowherd. Cowherd pointed out that the Giants can start whoever they want at quarterback, and he pointed out many good and valid reasons why the Giants might want to make a change at this point.

What this dramatizes is how an entitlement mentality has infected our national psyche. People feel entitled to something, whether they have earned it or not.  Related to that is that we have also become a nation of whiners, whining whenever something doesn't go like we had hoped, instead of vowing to work harder to do better in the future. In this case it isn't the two principals doing the whining, but rather their misguided supporters.

Thursday, November 9, 2017

On Invasion of Privacy: The Sipple Case

Back in the 1980s a friend of mine was complaining about the many telemarketing calls he was getting, saying he thought it "was an invasion of privacy". My response was "Of course it's an invasion of privacy. Any phone call is an invasion of privacy."

The point to keep in mind here is that if you are going to live in a society, you  necessarily will have to give up some of your privacy. The only way to have perfect privacy wold be to live by yourself on a desert island, or some other isolated place, and have no contact with the outside world.

The question is where do we draw the line between legal and illegal invasions of privacy. For a good discussion of this issue I refer you to the Oliver Sipple case, which I recently heard about on NPR's "Radio Lab" show.

Oliver Sipple was a decorated marine veteran who grabbed the arm of a would-be assassin of President Ford in San Francisco in 1975, instantly becoming a hero as he possibly saved the president's life. Part of the reporting which followed discussed the fact that he was gay.

Although Sipple was well-known to be gay in the San Francisco gay community, his family had not known until he was involuntarily outed by the media. His parents disowned him and broke all ties with him as a result. Sipple sued the San Francisco Chronicle for invasion of privacy.

The final decision in the case came in 1984, nine years after the original incident. The court rejected Sipple's claim, holding that summary judgment was proper in the case, and a trial was not necessary because the undisputed facts showed that Sipple had no legal claim.

The basic principle relied on by the court was that "When the subject-matter of the publicity is of legitimate public concern, there is no invasion of privacy." Here the newsworthiness was two-fold: one, to counter the popular perception (at that time) that gay men were timid, weak, and unheroic; and two, to raise the important question of whether President Ford's failure to promptly thank Sipple for saving his life was due to Sipple's homosexuality.

There was another, independent, basis for the court's conclusion, and that is that the facts complained of were not private. This is because Sipple was well-known in the gay community before this event. The court noted that "prior to the publication of the newspaper articles in question, appellant's homosexual orientation and participation in gay community activities had been known by hundreds of people in a variety of cities, including New York, Dallas, Houston, San Diego, Los Angeles, and San Francisco." Hence, his sexual orientation was already in the public domain, and the articles in question "did no more than to give further publicity to matters which appellant left open to the eye of the public."

Sipple's health declined over the years, and he drank heavily. He was found dead in his apartment in 1989, with a bottle of booze next to him and his TV still on. He had often expressed regret that he had tried to foil the assassination attempt, because of the unwanted publicity it brought him.

Tuesday, October 17, 2017

Ohio's Two Ballot Issues

Blatantly false advertising has characterized the campaigns for Ohio's Issue 1, on victim's rights, and Issue 2, on drug prices.

Opponents of Issue 2 have claimed that passage of the issue would  "threaten the benefits veterans have earned." This is a blatant falsehood. There is no reason to believe drug prices charged for veterans would be affected. The VA negotiates these prices on a national basis, and one state's passage of a law like issue 2 is not likely to affect it.

But beyond that, the prices at issue are not paid by veterans anyway, they are paid by the VA. So the idea that any veteran would pay a single dollar more is just plain wrong.

 A similar pattern of lies is seen in Issue 1 advertising. Our Attorney General is falsely claiming that the issue would give crime victims enforceable rights. Again, this is blatantly false, as issue 1 by its own terms provides no enforcement mechanism whatsoever.

I don't presume to tell anyone how to vote, but I do presume to ask you to reject advertising that is blatantly false.

Tuesday, October 10, 2017

On Kneeling for the Anthem

A letter-writer to "The (Toledo) Blade" asserts that NFL players "have not earned the right" to protest by kneeling for her national anthem. This is so wrongheaded and unAmerican as to be unworthy of a response, but the huge number of Americans who hold to this view necessitates a response.

The right to protest is what our country is all about. It is what separates us from almost every other country in the world. In many countries you protest and you get jailed, often without charges and often for years at a time.

The letter-writer's thesis is that if you haven't served in the military, then you don't have the right to protest during the playing of the anthem. The basis for this seems to be that we have freedom only because of past wars fought by the military. This is demonstrably false, as an examination of our past wars reveals that only the Revolutionary War, waged more than 200 years ago, was fought to preserve our freedoms. All other wars have been wars of choice, mostly fought in faraway places in which our freedom and way of life was in no way threatened.

Our anthem is unworthy of support purely from a musical standpoint. It is practically unsingable. Over the years I have heard many national anthems, and ours is by far the worst. Much better choices would be "America the Beautiful", "My Country Tis of Thee", or, my personal favorite, Woody Guthrie's "This "Land Is Your Land". The anthem should be protested from a musical standpoint alone, if for no other reason.

We denigrate sports stars for not "remembering where they came from", for being silent on important social issues, for not speaking out when they have the forum to do so. Now that athletes are getting this message and speaking out, they are condemned. They are damned if they do and damned if they don't.

Americans need to understand what patriotism and love of country really looks like. It means wanting what is best for our country. It means honoring the things that have made our country great, such as its immigrants, its innovations, and the concepts of liberty enshrined in our Constitution. Idolizing the flag does not contribute to our national health as a people, and has nothing to do with true patriotism.

Sunday, October 8, 2017

The Gay Rights "Cake" Case

The Supreme Court has agreed to hear a case out of Colorado in which a baker refused to bake a cake for a same sex wedding. I predict that this will be a setback for the gay rights movement, as the baker in this case is a very sympathetic figure.

The baker was perfectly willing to sell a cake already made to the couple, he just refused to bake one specially for the wedding. Common sense would dictate that he should have this right. Initially his legal basis for this was said to rest on religious grounds, as well as on first amendment grounds of self-expression. However, it seems that more recently the focus has shifted away from the religious grounds, which are weak, to the right of self-expression. After all, how in the world can a government have the right to dictate to an artist what kind of art he should be making?