The Collaborator

Last week, the Wall Street Journal had a piece up on a prisoner being held by Hamas inside the Gaza Strip. Not Gilad Shalit, but rather, a man by the name of Mohamed Abu Muailek. Mohamed was a former member of a Fatah rocket unit in Gaza. But, after striking up a friendship online with an Tel Aviv computer enthusiast, he had a change of heart, and refused to fight.

Mohamed went further than merely expressing dissent: In the eyes of the omnipresent security services, he did something that would make him a potential or actual traitor. He had developed an online friendship with a young computer enthusiast from Tel Aviv. Mohamed the Palestinian had never met an Israeli, face-to-face. Dan the Israeli had never met a Palestinian. This contact with the "enemy" was deeply suspicious to paranoid Islamists committed to Israel's destruction.

Mohamed had felt increasingly uncomfortable about firing rockets into Israeli civilian areas while also having Internet chats with his Israeli friend. "It was such a contradiction. I had to choose, and I chose friendship, not violence," Mohamed told me as he hunched over his computer.

These twin facts -- that he refused to fire rockets into Israel, and that he had an admitted friendship with an Israeli -- led to his arrest by Hamas security services on accusations of being a collaborator. He is being held incommunicado, claims he has been tortured, and faces potential execution. The journalist who reported on this story himself was arrested and imprisoned for several weeks after traveling to Gaza in an attempt to testify on Mohamed's behalf.

Obviously, part of posting this is simply to highlight the oppressive depravity of the Hamas government. But there is another thing that should be said here. Hamas, after all, is hardly the only group out there who demands that the only just maneuver in the Israeli/Palestinian conflict is severing contact with all Israelis. They aren't the only ones who believe that building bonds of friendship between Israelis and Palestinians represents the act of a "collaborator". These are the primary tenets of the BDS proponents too. Friendship with Israelis is national treason.

In the case of Mohamed Abu Muailek, Hamas and the BDS campaigners are in accord.

H/T: Greens Engage.

Don't Drink and Be Driven Home

Orin Kerr points out a perplexing case out of Indiana, where the state Supreme Court ruled that a passenger in a vehicle stopped by the police on the highway is "in public" for purpose of a public intoxication statute (the case is Moore v. State).

Professor Kerr observes that the case is easily distinguished from the precedent the Indiana Supreme Court relies upon (Miles v. State), where the police found the drunken defendant parked by the side of the car with his windows rolled down. Here, by contrast, the defendant was only "by the side of the road" pursuant to the police's seizure of the car pursuant to a traffic stop. He notes the famous case of Martin v. State, an Alabama state case taught in law schools nationwide for the proposition that the police cannot take an intoxicated person into "the public", then arrest him for public intoxication (so much of the 1L curriculum is about shattering student's prior conceptions of fairness as irrelevant to the law; Martin is memorable if for no other reason than as a pleasant break from that routine).

But aside from the seemingly specious legal reasoning of the decision, it also seems rather disastrous from a policy perspective. The state has a substantial interest in keeping intoxicated drivers off the road. One of the main ways it seeks to accomplish this is by encouraging drunk individuals to become intoxicated passengers instead. The whole point of a designated driver program is for non-intoxicated persons to drive their intoxicated friends home, rather than letting them drive drunk themselves. This decision seems to fly in the face of that public policy and, to the extent that it discourages the practice of designated driving, makes the state of Indiana considerably less sake safe [Though my friend Mike is right that it was much better in the original. --DS].

Cory Maye To Be Released

Former Mississippi death row inmate Cory Maye will be released shortly, after he and prosecutors agreed to a plea-deal that reduces his conviction to manslaughter, with a sentence of ten years (which he has already served).

Great congratulations to Radley Balko for getting this case on the radar screen, and also to my colleagues at Covington & Burling, which took up Maye's post-conviction defense.

Under the Bus!

Mistermix calls his mother a liar. But the point of the post -- that Hispanics are rapidly developing a grudge against the Republican Party that may endure for generations -- is potentially solid. And a GOP that can't appeal to Hispanic voters is a GOP whose electoral future is bleak indeed.

Minimum Registration Now Required

Unfortunately, some of the banned folks have been trying to get around their ban by posting comments anonymously. One would think they'd have better things to do in life. Anyway, as a result I've regrettably decided to require a minimal comments registration (OpenID). Hopefully, this will make it easier to regulate who posts here and make sure that the commenting rules are enforced consistently. Sorry for the inconvenience.

6th Circuit Upholds Affordable Care Act

Until now, the story of judicial review of the Affordable Care Act has been a simple one. Republican judges struck it down, Democratic judges upheld it.

Today, that streak has been broken in emphatic fashion, as the United States Court of Appeals for the 6th Circuit has voted 2-1 to uphold the law. And the critical vote was cast by George W. Bush-appointed Jeffrey Sutton (the other member of the majority was Carter appointee Boyce Martin, the dissenter was Reagan appointee James Graham, a judge on the Southern District of Ohio sitting by designation). You can read the opinions here.

There are a couple of reasons why Judge Sutton's vote is significant. There are judges appointed by liberals who are not all that liberal, and there are judges appointed by conservatives who are not all that conservative. Sutton, though, is the real deal. He's a rising star in conservative legal circles, a former Scalia clerk who has been praised even by ideological adversaries as a force to be reckoned with. He is a powerhouse, who has quite a bit of influence with the right. While I don't think it will have any effect on conservative's political demonization of the ACA, it might cause some movement amongst conservative legal elites.

The other thing worth noting is that this decision was made by the 6th Circuit. This is a court that has a reputation for being exceptionally bitterly divided. It is neither particularly left-wing or right-wing, but rather, it is divided straight down the middle, and the two camps are not friends with one another (a lot of this predates Judge Sutton's tenure on the court). There are a ton of cases that split the court, lots of exceptionally vitriolic dissents, even rumors of judges not speaking to one another based on years-long feuds. In other words, the 6th Circuit is not a place where liberals and conservatives typically band together to work on a common project: The Law. It is a place where liberals and conservatives are typically at one another's throats, looking to draw blood. That makes the bipartisan nature of today's decision all the more notable.

Random Thoughts on the Insurance Biz

Not, alas, particularly serious ones:

* I'm a bit amused by all those insurance ads that inform you that "customers who switch save an average of X dollars!" Well, sure -- the odds are that you're not going to switch if it costs more at the new place. Obviously, some people will do so for better service or coverage or whatever, but it is still a little misleading.

* That new State Farm ad where the guy is talking to State Farm at 3 AM and his wife thinks he's having an affair is pretty funny. But it also makes me hope State Farm has one of those screw-ups where there is a typo on one of their forms and their customers really are redirected to a phone sex line.

* Speaking of ads, why is it that insurance companies really seem to be near the cream of the crop in terms of putting out really entertaining, well-produced advertisements? Geico, State Farm, and Progressive all do a really good job, and if Allstate is less memorable, that's because it seems to have made a conscious choice to stake out the terrain as the serious, sober alternative to the other three (and from that vantage point, its ads are quite good as well).

All-Nighter Roundup

I had my first unintentional Civilization V all-nighter yesterday (well, this morning). I was playing a campaign, got in the zone, finally beat it, looked up, thought "Gosh, it sure is bright in here," and then realized it was 6 in the morning. Oops.

In unrelated news, bar studying is going quite slowly.

* * *

J Street comes out against the Gaza flotilla, calls it a "deliberate provocation".

An IDF probe finds that courts are way too lenient against violent Jewish settler extremists, crippling their ability to tamp down on right-wing violence against Palestinians.

In related news, Bibi Netanyahu declares that no man is above the law after a prominent Israeli Rabbi is arrested for incitement, stemming from his endorsement of a book purporting to give Jews the right to kill Gentiles anytime they feel threatened.

It's a toss-up as to whether social conservatives don't understand what "women's empowerment" is, or understand it quite well and just are opposed to it.

I Can Barely Hear Myself Think Over the Yapping of these Peasants!

Today, in Arizona Free Enterprise Club v. Bennett, the Supreme Court did something rather amazing: It held that the state's nondiscriminatory promotion of speech violated the First Amendment. The law struck down Arizona's public financing system for elections, whereby candidates who elected into the system received a lump-sum payment, and then an additional 94 cents for every dollar their opponent spent above that sum, for up to three times the original amount proffered (at which point they are barred from any more spending). All candidates can choose to opt-in to the system, or they can choose not to. But several privately-funded candidates sued, saying this violated their First Amendment rights.

My first thought on reading this fact pattern was to think that this is more than just a clean loser -- it's a patently frivolous argument. Not only did the plaintiffs have the option -- which they declined -- of utilizing the public finance system, but after electing not to receive the subsidy, they face a grand total of zero penalties or restrictions on their own spending. Public financed candidates in Arizona are restricted to 3x the original grant, no matter how much their opponents spend. And that matters, since their opponents can spend as much as they want, wherever they want, however they want.

Justice Kagan's dissent gets to the nub of the matter, and demonstrates the absurdity of what passes for the majority's "analysis":

This suit, in fact, may merit less attention than any challenge to a speech subsidy ever seen in this Court. In the usual First Amendment subsidy case, a person complains that the government declined to finance his speech, while bankrolling someone else's; we must then decide whether the government differentiated between these speakers on a prohibited basis—because it preferred one speaker's ideas to another's. See, e.g., id., at 577–578; Regan, 461 U. S., at 543–545. But the candidates bringing this challenge do not make that claim--because they were never denied a subsidy. Arizona, remember, offers to support any person running for state office. Petitioners here refused that assistance. So they are making a novel argument: that Arizona violated their First Amendment rights by disbursing funds to other speakers even though they could have received (but chose to spurn) the same financial assistance. Some people might call that chutzpah.

Indeed, what petitioners demand is essentially a right to quash others' speech through the prohibition of a (universally available) subsidy program. Petitioners are able to convey their ideas without public financing—and they would prefer the field to themselves, so that they can speak free from response. To attain that goal, they ask this Court to prevent Arizona from funding electoral speech--even though that assistance is offered to every state candidate, on the same (entirely unobjectionable) basis. And this Court gladly obliges.

The only "burden" (or "restriction", or "limit", or whichever equally ludicrous synonym you prefer -- and the majority offers many) on the privately-financed candidate's speech is that their opponents are given the (limited) capacity to talk back. As Chief Justice Roberts observes, "All else being equal, an advertisement supporting the election of a candidate that goes without a response is often more effective than an advertisement that is directly controverted." Which, yes, I suppose that's true. But it's also a inordinately creepy way of conceptualizing a free speech "burden". As Justice Kagan observes, "the very notion that additional speech constitutes a 'burden' is odd and unsettling."

Scott Lemieux says that this case has to be in the conversation for any top ten list of "worst Roberts Court" decision, and I'm inclined to agree. I'm someone who is actually somewhat on the fence on "money as speech" campaign finance questions generally, but even I think this decision is obviously, almost laughably, incorrect.

Justice Brandeis once cast the First Amendment debate as between "more speech and enforced silence". Today's opinion might be the first in Supreme Court history to so proudly wave the banner of the latter.