From ars technica, a report about a proposal from a couple of Congresscritters who opposed SOPA for a “Digital Bill of Rights,” to help maintain a free and open Internet. The proposal calls for these “rights”:
- The right to a free and uncensored Internet.
- The right to an open, unobstructed Internet.
- The right to equality on the Internet.
- The right to gather and participate in online activities.
- The right to create and collaborate on the Internet.
- The right to freely share their ideas.
- The right to access the Internet equally, regardless of who they are or where they are.
- The right to freely associate on the Internet.
- The right to privacy on the Internet.
- The right to benefit from what they create.
This has some promise, but it’s both under- and over-inclusive. Under-inclusive in that it doesn’t call for the abolition of copyright, or for a radical reduction in term and penalties. In fact it suggests copyright is some kind of “right” in its call for “The right to benefit from what they create.” But so long as copyright exists, it is impossible to avoid its free-speech and free-press suppressing effects. There will continue to be a “balance” struck between copyright and First Amendment type rights; i.e., free speech will continue to be chilled and suppressed (see my post “Copyright is Unconstitutional”). It is impossible to have “a free and uncensored Internet,” which the new Digital Bill of Rights calls for, so long as there is copyright. You cannot have both free speech, and copyright.
And it is over-inclusive in that it calls for things like “the right to equality on the Internet” and “the right to access the Internet equally, regardless of who they are or where they are.” These and some other proposals are troubling in that they are not clearly limits on government behavior, but potential authorizations to the government to limit private actors. For example these provisions could be used by the state to regulate private companies in the name of “net neutrality” or to provide some kind internet access as a positive welfare right or privilege. (See my posts Net Neutrality Developments and Internet Access as a Human Right.)
Congress should not be declaring “rights,” since it can then serve as a source of power to the feds to regulate private activity, much as the federalizing of the Bill of Rights by way of the Fourteenth Amendment has served not to limit federal power but to extend it to regulating state laws. Congress should do nothing but limit its own power, since it is the federal government that is itself the biggest threat to Internet and digital freedoms.
A better, simpler, more effective, and less dangerous proposal would read something as follows:
- Copyright law is hereby abolished [or its term reduce to 5 years and statutory damages eliminated].
- Congress shall have no power to regulate or tax activity on the Internet, including gambling or commerce.
Here’s the ars technica piece:
Ilya Somin over at The Volokh Conspiracy, it seems, is no more a fan of Ron Paul now than he was four years ago. His criticisms remain about the same. This time around, though, he’s got a candidate to contrast Paul with in Gary Johnson. His conclusion? Johnson is a better libertarian than Paul. My first response to this was laughter. This is my second response:
To start, Somin nearly lost me in his first sentence when he suggested that Indiana Governor Mitch Daniels was even on the radar for libertarians considering voting. If anyone thinks a hypocritical drug warrior, who might be most charitably described as untested on foreign policy issues (and much less charitably described as a propagandist for the Empire), should even be in the running, then they should probably be disqualified from commenting on the question of who the most libertarian candidate is. All that said, we’ll give him the benefit of his doubts about Daniels for now and move onto his criticisms.
Ron Paul’s Unlibertarian Positions?
Somin claims that Ron Paul “has very nonlibertarian positions on free trade, school choice, and especially immigration.” He goes on to criticize Paul’s views on the Fourteenth Amendment. He doesn’t spell these criticisms out in this piece, but rather directs us to an older article from 2007. We’ll take each one by one.
[Keep reading…]
Having reviewed what the McDonald gun decision says, the next question is: Is it good for liberty?
The short-term answer is certainly yes. Chicago has one of the worst gun bans in the country, so if it’s loosened at all, then Chicagoans will enjoy more liberty. Presumably very restrictive bans in others cities will also fall, which is also good.
What about that disgusting language in the decision reassuring governments that the right to bear arms “does not imperil every law regulating firearms”?
Some libertarian friends have suggested that this might embolden certain state or local governments to pass more gun laws, but this argument isn’t persuasive.
Places that don’t have more stringent gun control now haven’t been holding back because they heretofore thought that the Second and Fourteenth Amendments protected an unqualified right to keep and bear arms. Until now, governments everywhere had every reason to think they could pretty much get away with anything because cities like Chicago had already done it. The reason some places, such as my home state of Ohio, have a lot of gun freedom (relatively) is because the people there want it, and that’s not going to change.
One might also argue that the decision is bad because it is centralist — it is the federal government telling the states what to do, which the Founders never intended, and which, arguably, the Fourteenth Amendment’s framers intended only to a limited extent. I’m sympathetic to this point of view, but that question was not at issue in this case. The reality is that the Supreme Court long ago assumed the power to strike down state and local laws that violate certain rights, and it’s not going to lose that power anytime soon no matter what. The only question now is whether it will use that power in a way that benefits liberty, and here it did so.
Of course, future Supreme Court decisions may make clear that the exceptions to the rule are so expansive as to render Heller and McDonald meaningless. And none of this is to say that we should be grateful to the Supreme Court for letting us do what we had a right to do in the first place, or that we should count on the Court to protect our rights in the future. Where you see the Supreme Court’s true character is in its decisions on the extent of the federal government’s power — which it has held to be virtually unlimited, with the exception of a few carved-out “rights” such as this one. If the Constitution is going to get us out of that problem, it won’t be through more Supreme Court cases, but through nullification.
