Archive for November 14th, 2012

The censorial power is in the people over the government, and not in the government over the people.  –  James Madison

I’ve written before about ad hominem arguments, those which attempt to attack the speaker rather than his position; generally, they are employed by those who are unable to present a cogent counterargument, and must therefore appeal to the listeners’ emotions rather than their minds.  A related logical fallacy is circumstance ad hominem, which seeks to discredit a claim merely because the proponent has some compelling interest in it: “Of course Maggie would say avails laws are bad, because she owned an escort service.”  In the past few years, governments have unveiled a new weapon in the fight against civil rights which is actually a reversal of circumstance ad hominem; because individual liberties are inalienable and therefore very difficult to argue against, government lawyers are increasingly turning to arguments against “standing” rather than valid counterarguments against the claimant’s case.  In other words, when a challenge to a particular rights violation is brought to court, government lawyers do not argue that it’s OK for the government to violate that right, but rather that the person bringing the case has no right to make the challenge because the law didn’t “really” affect him.  Brian Doherty discussed a recent example in Reason:

…A…licensing board in North Carolina tried to suppress a blogger who talked up and advised people on the health benefits of the “paleo” diet…telling him…what he could or could not say about his belief that the high-meat, low-carb diet helped him with his diabetes.  The case was dismissed by a federal court…the Institute for Justice’s press release [states]:

…a federal court dismissed diabetic blogger Steve Cooksey’s free speech lawsuit on standing grounds.  The case, which has received significant national media attention, seeks to answer one of the most important unresolved questions in First Amendment law:  Does the government’s power to license occupations trump free speech?  “In America, citizens don’t have to wait until they are fined or thrown in jail before they are allowed to challenge government action that chills their speech,” said  Institute for Justice Senior Attorney Jeff Rowes.  “When the executive director of a government agency goes through your writing with a red pen and tells you on a line-by-line basis what you can and can’t say, that is censorship and the courts can hear that case.”

In December 2011, Steve Cooksey…started a Dear Abby-style advice column on his diet blog to answer readers’ questions.  In January 2012, the North Carolina Board of Dietetics/Nutrition informed Steve that he could not give readers personal advice on diet, whether for free or for compensation, because doing so constituted the unlicensed, and thus criminal, practice of dietetics.  The State Board also told Steve that his private emails and telephone calls with friends and readers were illegal…Steve’s case was dismissed October 5 on the grounds that Steve did not suffer an injury that gives him a basis to challenge the government’s actions.  The Institute for Justice plans to appeal and will argue that the government cannot single people out, tell them that their speech is illegal, and then plead in court that it has not chilled their speech…

…This sort of insanely stringent attitude about “standing”–roughly that you have no right to challenge a law damaging your rights until you’ve actually been arrested or fined–was also at play in the history-making Second Amendment challenge Heller v. D.C…[in] which…five of six plaintiffs were kicked off a case trying to vindicate their ability to own a weapon in D.C.  The only reason any of the plaintiffs survived is that one of them, Dick Heller, had had an attempt to file for a permit to own a weapon denied.  The Court recognized a permit denial as an injury; having a core constitutional right denied, not so much…

Regardless of what you think of the “paleo” diet, the fact is that answering questions informally and without making a profit cannot be construed as the practice of a profession by any stretch of the imagination; one might as well prosecute a farmer who helps his neighbor build a barn for “practicing architecture without a license”.  Furthermore, I must point out that Cooksey could legally publish a book saying exactly the same things as he says on his blog, and that book could then legally be sold in North Carolina and everywhere else in the U.S.  Though the licensing board probably didn’t  think things through before throwing its weight around (no surprise there), the state’s attorneys clearly recognized that the case was without merit and therefore, like the poor debater reduced to ad hominem, decided to attack the arguer rather than the argument.

Nor is this practice limited to the United States; the Supreme Court of Canada recently ruled against the exact same argument, which government attorneys have used to block a challenge against Canada’s prostitution laws for the past five years.  As I stated in TW3 (#39),

The government’s argument against the suit relied on the sophistry that one of the parties in the suit (Sheryl Kiselbach) was no longer affected by the laws due to being retired, and that the other party (the DESWUAVS) could not be affected because it was an organization, therefore neither had the right to sue.  But the judge realized that the government’s claim that streetwalkers had to bring such suits individually was absurd, and ruled in favor of the group.

Let’s hope that the court which hears Cooksey’s appeal comes to the same wise decision, and thereby establishes the precedent that the government cannot silence citizens by preventing them from even having their day in court.

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