The Heritage Insider: How did North Korea stop a movie that made fun of Kim Jong Un? overcriminalization is now even more detrimental to your liberty, union power lets police be unaccountable, and more

December 20, 2014

Latest Studies
38 new items, including an American Legislative Exchange Council summary of 2014 state tax cuts, and a Cato Institute assessment of charter school quality

Notes on the Week
How did North Korea stop a movie that made fun of Kim Jong Un? overcriminalization is now even more detrimental to your liberty, union power lets police be unaccountable, and more

Latest Studies

Budget & Taxation
• State Tax Cut Roundup: 2014 Legislative Session – American Legislative Exchange Council
• Four Conservative Tax Plans with Equivalent Economic Results – The Heritage Foundation
• Not All Income Tax-Free States Are Alike – National Center for Policy Analysis

Economic and Political Thought
• Adam Smith, Politics, and Natural Liberty – Association of Private Enterprise Education
• Textbook Confessions: Government Failure – Association of Private Enterprise Education
• Why Government Fails and Why Ideas Matter – Cato Institute

Economic Growth
• Economic Freedom and Quality of Life: Evidence from the OECD’s Your Better Life Index – Association of Private Enterprise Education
• Milwaukee’s Quiet Crisis: 10 Years Later – Wisconsin Policy Research Institute

Education
• The Evolution of Charter School Quality – Cato Institute
• Engagement in STEM Education – National Center for Policy Analysis

Elections, Transparency, & Accountability
• Political Spending by Government Unions During the 2014 Election – Commonwealth Foundation for Public Policy Alternatives

Family, Culture & Community
• Was Moynihan Right?: What Happens to the Children of Unmarried Mothers – Education Next

Foreign Policy/International Affairs
• Addressing Russia’s Continued Pernicious Actions Abroad – The Heritage Foundation
• Congress Should Continue to Oppose Arms Trade Treaty As It Enters Into Force – The Heritage Foundation
• The Option for U.S.–China Cooperation in Antarctica – The Heritage Foundation
• Top 11 Areas for Congressional Action on the U.N. Arms Trade Treaty in 2015 – The Heritage Foundation
• U.S. Refusal to Ratify Rome Statute Vindicated by ICC Afghanistan Report – The Heritage Foundation
• Chinese-Japanese Tensions and Its Strategic Logic – Hoover Institution
• Islamist vs. Islamist: The Theologico-Political Questions – Hudson Institute
• Mapping Egyptian Islamism – Hudson Institute

Health Care
• Can Economic Freedom Cure Medical Brain Drain? – Association of Private Enterprise Education

Information Technology
• Title II Would Not Just Harm Consumers, It Would Harm Workers Too – Free State Foundation
• Eight Myths About FCC Regulation of the Internet – The Heritage Foundation

Labor
• Creating Opportunity in the Workplace – The Heritage Foundation
• Right-to-Work Laws: Myth vs. Fact – The Heritage Foundation

Monetary Policy/Financial Regulation
• Banking and the State – Association of Private Enterprise Education
• On the Political Possibility of Separating Banking and the State – Association of Private Enterprise Education
• The Role of the State in Finance and Money: Implications for Economic Stability – Association of Private Enterprise Education
• The Death of Cash as a Vehicle for Saving – National Center for Policy Analysis
• Issuer Banks and Data Breach Lawsuits: A New Wave of Litigation? – Washington Legal Foundation

National Security
• Russian Military Activity in the Arctic: A Cause for Concern – The Heritage Foundation
• Overhyping ISIS – Hoover Institution

Natural Resources, Energy, Environment, & Science
• Waiving Profitability: The Oregon Wave Energy Trust’s Failure to Achieve a Return on Public Investment – Cascade Policy Institute
• Energy: The West’s Strategic Opportunity in the Eastern Mediterranean – Hudson Institute

Philanthropy
• Generosity in Canada and the United States: The 2014 Generosity Index – Fraser Institute

Regulation & Deregulation
• Regulatory Impact Analysis: The Cornerstone of Regulatory Reform – Mercatus Center

The Constitution/Civil Liberties
• Protecting Property Rights: Just Compensation or Just Take It? – Texas Public Policy Foundation

Transportation/Infrastructure
• Unleashing Innovation: The Deregulation of Air Cargo Transportation – Mercatus Center

Notes on the Week

How did North Korea shut down a movie that made fun of Kim Jong Un? In an interview with Deadline.com, George Clooney had some strong words about the week’s terrible news concerning freedom of expression. The problem, he said, wasn’t just that Sony decided to give in to vague threats and intimidation from North Korean hacktivists. North Korea, he said, took advantage of the film industry’s unwillingness to stand with Sony, our society’s litigiousness, and the media’s scandal-focused reporting. Here is some of what Clooney said:

A good portion of the press abdicated its real duty. They played the fiddle while Rome burned. There was a real story going on. With just a little bit of work, you could have found out that it wasn’t just probably North Korea; it was North Korea. […] Sony didn’t pull the movie because they were scared; they pulled the movie because all the theaters said they were not going to run it. And they said they were not going to run it because they talked to their lawyers and those lawyers said if somebody dies in one of these, then you’re going to be responsible. […]

We have a responsibility to stand up against this. That’s not just Sony, but all of us, including my good friends in the press who have the responsibility to be asking themselves: What was important? What was the important story to be covering here? The hacking is terrible because of the damage they did to all those people. Their medical records, that is a horrible thing, their Social Security numbers. Then, to turn around and threaten to blow people up and kill people, and just by that threat alone we change what we do for a living, that’s the actual definition of terrorism. […]

Here’s the brilliant thing they did. You embarrass them first, so that no one gets on your side. After the Obama joke, no one was going to get on the side of Amy, and so suddenly, everyone ran for the hills. Look, I can’t make an excuse for that joke, it is what it is, a terrible mistake. Having said that, it was used as a weapon of fear, not only for everyone to disassociate themselves from Amy but also to feel the fear themselves. They know what they themselves have written in their emails, and they’re afraid. […]

In general, when you’re doing films like that, the ones that are critical, those aren’t going to be studio films anyway. Most of the movies that got us in trouble, we started out by raising the money independently. But to distribute, you’ve got to go to a studio, because they’re the ones that distribute movies. The truth is, you’re going to have a much harder time finding distribution now. And that’s a chilling effect. [Deadline.com, December 18]

Clooney went on to note that nobody in the film industry was willing to sign a petition simply saying that they would stand together against threats to freedom of expression.

Overcriminalization—now even more detrimental to your liberty: There are so many criminal laws on the books that virtually anyone can break a law without even intending to do so. Ignorance of the law, they say, is no excuse.

Unless you are a police officer.

The overcriminalization of American society makes victims of citizens by sending them to jail for honest mistakes and acts that nobody could have known were crimes. Now it tramples on the rights of citizens in a new way: The laws are so voluminous that even the police cannot be expected to know all of them, a situation which the Supreme Court now recognizes as grounds for deeming a search reasonable even though it wasn’t lawful.

The case is Heine v. North Carolina and it concerns a North Carolina police officer who stopped a driver because he had only one working brake light and subsequently found cocaine in the car. The problem with the stop was that it is not against the law to have only one working brake light, though the officer thought it was.

The Court decided that since the officer’s mistake was reasonable, so was the search. And that means the evidence (the cocaine) isn’t excluded from a trial. Can citizens avail themselves of the same mistake of law defense? Unfortunately, not yet, as Paul Larkin explains:

The Heien opinion will be read as an endorsement of the common law rule that ignorance of the law is no excuse to a crime. The opinion, however, does not examine what that rule means and how it arose.

The common law did not recognize a mistake of law defense because (1) the defense made no sense in past eras when there were only nine felonies, (2) each felony outlawed obviously immoral and harmful conduct, such as murder, rape and robbery, and (3) each crime required the government to prove that the defendant acted with a “guilty mind” or “evil intent.”

The no-ignorance rule made sense 600 years ago but makes no sense today because (1) there are thousands of crimes, (2) in many cases no reasonable person would have thought that the conduct at issue was a crime, and (3) the prosecution does not have to prove that a person acted with a “guilty mind” or “evil intent” in every case.

As Heritage has stated on several occasions (see here, here, and here), a strong argument can be made that the Supreme Court should abandon the common law no-ignorance rule because in many cases it has become a senseless anachronism that creates manifest injustices utterly unimaginable when English jurist William Blackstone described the criminal law.

The Supreme Court did not discuss the arguments on the merits of that issue because it did not arise in Heien. The Court discussed the issue merely to respond to an argument advanced by some non-parties who filed amicus curiae (“friend of the court”) briefs. Unfortunately, however, many lower courts will cite the Heien opinion as having endorsed the common law rule.

But all may not be lost. It is important to remember, especially at this time of year, that there still could be a happy ending. After all, even Ebenezer Scrooge changed his mind when he finally confronted his past. There is hope that the Supreme Court will do so, too, when a defendant presents a mistake-of-law defense in a proper case. [Daily Signal, December 16]

Video of the week: Should corporations be able to exercise religious liberty? Ilya Shapiro, David H. Gans, and Randy E. Barnett discuss at the Cato Institute:

Toolkit: How to look good in interviews from your computer: Do you do live interviews over your computer? Ron Nehring has eight tips for how to make them look good; here are the first three:

Ditch the headphones, this isn’t the subway. Those white Apple headphones with built in microphone might make you look cool, but on television they look ridiculous. Buy yourself a black Radio Shack clip on microphone for $32.99 and keep it in your laptop bag. Before your interview, connect it to your laptop’s microphone jack and run the wire so it can’t be seen, such as under your shirt or jacket. Clip it to a dark article of clothing (such as your jacket) so it’s less visible to viewers. No, don’t put this off. Here’s a link to the microphone. Shipping is free.

No one wants you looking down to them, so set your camera at eye level. Setting your laptop on your desk and tilting the screen up so it’s looking up your nose is about as helpful as wearing a sign that reads “amateur.” Set the laptop on a few books to raise it to your eye level. The screen (assuming the camera is mounted to it) should be at exactly 90 degrees to the desk.

Look behind you. Do you want that on TV? Take the time to orient your webcam so your background looks professional, or is at least free of distractions. I flip my laptop around and have my bookcases in the background when I do Skype interviews (after making sure they’re neat and organized). Take the time to get this right. [Ron Nehring Labs, December 29, 2013]

Pro-gay marriage bakers support the right to decline some customers. A number of California bakeries have refused to bake a cake that says “Gay Marriage Is Wrong,” reports Scott Shackford:

Theodore Shoebat is the answer to the question, “Why should anybody care so much about freedom of association, anyway?” […] Shoebat recently […] performed an experiment some fans of freedom of association simply ponder. He called a bunch of gay or gay-friendly bakeries to see if they would make a cake for him that says “Gay marriage is wrong.” He has posted videos of his conversations on YouTube and you can watch them here.

If bakers are a “public accommodation” as is argued, there’s no reason for them to refuse to make these cakes or cookies or what have you. The bakeries would not be saying “Gay marriage is wrong.” They’re just selling a cake to somebody who believes that. Just as making a gay wedding cake is not an endorsement of gay marriage. It’s just fulfilling a customer’s orders.

But it’s wrong on both counts. Nobody should, by order of the government, have to make Shoebat’s stupid cakes. And nobody should be forced to make gay wedding cakes either. Ethical and moral consistency requires demanding both or neither, not one or the other. Somehow some people see that it’s obviously wrong for anybody to be forced to make Shoebat’s cakes, but not gay wedding cakes. [Reason, December 15]

Santa’s list—mend it or end it? One liberal think tank is a little concerned about how the legend of St. Nick has been embellished by The Elf on the Shelf story. The Canadian Centre for Policy Alternatives has published an article titled “Who’s the Boss?” wherein Laura Pinto and Selena Nemorin write:

The illustrated book enclosed with each Elf on the Shelf doll explains that elves are assigned to homes (or sometimes classrooms) with the explicit charge of observing children’s actions all day on behalf of Santa Claus, who is referred to as “the boss”. These industrious elves perched high on shelves are managers of Santa’s “naughty” and “nice” lists with a central aim of ensuring that the children who have adopted them remain on the “nice” list. As the story goes, at night the elves step away from their shelves to return to the North Pole so they can report their observations to Santa Claus. […]

What is troubling is what The Elf on the Shelf represents and normalizes: anecdotal evidence reveals that children perform an identity that is not only for caretakers, but for an external authority (The Elf on the Shelf), similar to the dynamic between citizen and authority in the context of the surveillance state. […] Broadly speaking, The Elf on the Shelf serves functions that are aligned to the official functions of the panopticon. In doing so, it contributes to the shaping of children as governable subjects.

While the elf may be part of a pre-Christmas game and might help manage children’s behaviors in the weeks leading up to the holiday, it also sets children up for dangerous, uncritical acceptance of power structures. [Canadian Centre for Policy Alternatives, December 1]

It would be really easy to say Pinto and Nemorin are just being wet blankets on a fun story for kids. But let’s run with this idea a little bit. Obviously Santa Claus keeps track of who’s naughty and nice because he thinks the best behaved children should get the best gifts. So judgy! But take away Santa’s list making and he’s just a guy you don’t know who has no interest in your success who simply shows up on schedule to give you stuff you didn’t earn. In other words, he’s like the welfare state—before the welfare state ran out of money and tried to require work of those receiving benefits. Funny that Pinto and Nemorin didn’t extend their metaphor just a little bit to analyze the nexus between welfare dependency and uncritical acceptance of power structures.

We’re reminded of P.J. O’Rourke’s description of American politics from Parliament of Whores:

I have only one firm belief about the American political system, and that is this: God is a Republican and Santa Claus is a Democrat.

God is an elderly or, at any rate, middle aged male, a stern fellow, patriarchal rather than paternal and a great believer in rules and regulations. He holds men accountable for their actions. He has little apparent concern for the material well being of the disadvantaged. He is politically connected, socially powerful and holds the mortgage on literally everything in the world. God is difficult. God is unsentimental. It is very hard to get into God’s heavenly country club.

Santa Claus is another matter. He’s cute. He’s nonthreatening. He’s always cheerful. And he loves animals. He may know who’s been naughty and who’s been nice, but he never does anything about it. He gives everyone everything they want without the thought of quid pro quo. He works hard for charities, and he’s famously generous to the poor. Santa Claus is preferable to God in every way but one: There is no such thing as Santa Claus.

Pinto and Nemorin want to preserve the cute non-judgy version of Santa Claus. The Elf on the Shelf, by reinforcing the “naughty and nice” part of the Santa legend, offers kids an opportunity to feel like they deserve their gifts. Who you think the killjoy is might say something about your politics.

To reform policing, reform collective bargaining. Union power is one of the reasons police are not held accountable for misfeasance as much as they ought to be, explains Lucy Morrow Caldwell:

It’s easy to assume that collective bargaining, the process by which government unions negotiate public workers’ contracts, deals only with compensation packages, benefits and “fringe benefits,” and “work rules” – a term of art designed to sound like innocuous talk over shift schedules or how many boxes you can ask an employee to lift that day.

In negotiations that occur almost exclusively in secret and almost always with a professional government-union negotiator (not a lawmaker), unions fight over a range of issues beyond compensation that impact the day-to-day practices of government workers, and in turn, citizens’ experiences interacting with them. In the case of police unions, these negotiations govern how we hold accountable officers we trust with deadly force.

Take, for instance, the national debate over whether or not police should be required to wear body cameras. More than half of Americans reported in 2013 that they supported police wearing body cameras, with less than a third of Americans opposing the concept. And for good reason: Evidence suggests body cameras tend to reduce complaints against law enforcement overall, which sounds like a good thing.

Yet police unions around the country have impeded the deployment of cameras and even held out in contract negotiations over the issue.

In Wichita, Kan., earlier this year, the police union took the city to court over the introduction of Taser Cams, because per contract language, the city was required to obtain the union’s approval before introducing a body camera policy. A similar conflict over body cameras is brewing in Boston this month. [National Review, December 16]

Have a merry Christmas and a safe and happy holiday season!

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