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Hmmmm...

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With Arkansas passing a RFRA bill (which the governor has now said needs "clarifications") essentially identical to the Federal and Indiana laws I'm going to challenge you to think and then act against those who are arguing that this is a matter of "anti-discrimination" -- that is, these bills intend to enable acts that should be prohibited.

I fully understand and in the general sense agree with the view that discrimination on the basis of race, color, creed, sexual orientation and similar is wrong.

However, all rights are in fact negative things -- that is, they do not include the ability to impose on other people but rather to prevent being imposed upon.

You have the right to freedom of speech, including utterly disgusting speech, but you do not have the right to force someone to listen to your speech.  If I turn my back and walk away, you cannot force me to listen.  I do not have to buy your megaphone for you, pay your printing bill, or pay for your internet service to broadcast your message.  In addition if your speech imminently and concretely causes harm (e.g. yelling "fire" in a crowded theater when there is no fire, and as a result harm occurs) you can and should be held accountable for the harm.

Rights are not things laws grant; they exist by virtue of your humanity.  Laws (and governments generally) can only respect or disrespect rights; they cannot create them as government never had that power in the first place and you cannot grant that which you do not possess.

So let's look at the RFRA laws and why they're necessary -- and proper.

The Federal RFRA was passed in response to employer, State and Federal government action taken against native american tribe members who use peyote in their religious ceremonies.  Despite the fact that they used said substance as an inherently ceremonial act both private employers and governments tried to ban them from the workplace and, in some cases, threatened to imprison them for exercising their religion.

Note carefully that a large part of the problem was private employers effectively enjoining someone from exercising their freedom of religion while not at work.  Because drug tests detect not the psychoactive ingredient itself but rather metabolic byproducts these tests acted as a means of barring participation in a religious ceremony that had no bearing on work performance or safety.

The RFRA did not "grant" any new rights; those rights already existed but were being ignored.  It merely reinforced the First Amendment and should have never had to be passed.  It was necessary, however, due to what was being imposed on these people, and it put a stop to those practices -- despite the screaming from the loony right (at the time) about their "drug abuse."

What the RFRA said was this:

  • A government policy that infringes on religious freedom must be to address a compelling interest.  That is, there must be a genuine compelling public policy matter under consideration that does real harm to real people if infringement of religious freedom is to be result

    AND

  • The remedy via the law that addresses the compelling interest must be through the least-restrictive means available.

This standard is known as "strict scrutiny" in legislative jargon and it is inherently the only proper standard where any right is involved.

Over the intervening years states have passed laws that severely infringe on religious freedom in a number of ways.  As part of and following the Civil Rights Act various laws were passed that, among other things, rendered discrimination in public accommodation unlawful.  These laws certainly survive a strict scrutiny test as (1) being able to obtain a room to sleep in or something to eat when you're on the road irrespective of your race, color, creed or similar is a rational public policy matter (and the lack thereof is likely to do real harm to real people) and (2) the only rational remedy is the prohibition of that conduct.

But let us take a look at this sort of law and apply it to, for example, a sculptor.  Let's posit for a moment that this sculptor is a deeply-convicted Christian who believes that he is not to make any sort of graven image and if he does, he will go to Hell when he dies.

Now let's further posit that you come to him as an adherent of the Church of Satan and wish to commission him to create for you a statute of Baal.

These laws those lunatics on the left champion would force him to create said work of art despite the fact that he fundamentally believes doing so would cause him to be irretrievably damned to Hell -- or go to prison now.

This sort of crap is why the RFRA was necessary and why these state laws are necessary.

The chef sets his menu and ingredients at his restaurant.  You have no right to demand that he not use, for example, bacon fat as his cooking oil.  Yet if you're Muslim or Jewish such an ingredient in your food is utterly barred from you as a matter of religious law -- period.  While the restaurant does provide a public accommodation (that is, test #1 passes) strict scrutiny does not permit you to demand that he change the oil the chef uses for his cooking.  He is required to serve anyone who is willing to pay the asking price for his dish, but you can't dictate the ingredients.

Next up is the rooming house.  Let's presume you have a religious requirement that your bed face East.  The hotel is built in such a fashion that the beds all face North.  You cannot demand that the hotelier allow you to move the bed.  He must allow you to rent the room but he is not required to allow you to dictate to him how it is configured.

The RFRA is necessary because both of these instances are entirely within what the loony left screamers contemplate trying to force upon proprietors!

Note, however, that while the hotelier and chef have artistry as a component of their offering it is not individually tailored to the customer.  That is, the individual delivery of the good or service is of a utilitarian character; the artistry is in the design and not the individual rendering for each buyer.

Now let's look at the cake baker, florist and photographer as points on a line where artistry becomes the essence of the transaction -- with each being further along it.

This is a radically different situation.  Each cake is different; the ingredients that go into a cake may be close to the same but the assembly and decorating of each cake is individualized for each customer.

Each floral arrangement is different.  Each customer's order is quite different from the lastwhile all are flowers the specific types and how they're arranged is going to differ from one customer to the next.

For the photographer the very essence of their work is artistry; each individual shot is different!  From selection of the camera and lens to the ISO, F/stop, shutter speed, composition and lighting each is individually selected for each press of the shutter button.  And then, in the modern world, there's even more artistry after the fact as the post-processing (by computer) is often as involved (if not more so!) than the capture of the image itself.

These sellers of services and goods approach, more-or-less in order, that of the sculptor.  Further, there is no public accommodation argument available for any of them: You can buy a cake and as many flowers as you'd like at WalMart and they don't give a good damn why you want either.  Anyone can wield a camera and press a shutter button and at most weddings dozens do exactly that (even if they're cellphone cameras.)

The value of the ingredients in said cake is a few dollars; the price is hundreds or thousands, and virtually all of it reflects artistic value, not utility.  The same is true, but even more so, of the florist and photographer.

RFRA laws reinforce the right of those people to exercise their religious freedom by refusing to participate in acts that violate their religious convictions.  When you demand that such an artist work for you even though it offends their religious beliefs you are in effect commanding a sculptor who is a deeply-convicted Christian to make you that statute of Baal so you can practice your religion, in this case Satanism!

What RFRA underlines and reinforces is that in order for you to make such a demand and enforce it you must show that the there is a compelling state interest in forcing the production of that statute (or those pictures) by that individual (in other words you are substantially prevented from obtaining that good or service as a whole) and further, that forcing that singular provider to do so is the least intrusive means of you getting a statute or those images, flowers or cake.

The problem is that neither test succeeds -- you not only have no compelling state interest (you have a selection of many places to get flowers, cakes and pictures and none of those are in any way necessary) but in addition since you can buy a camera for a small amount of money and anyone can take pictures there is no argument to be made that demanding said photographer take them is the least-intrusive remedy for what you are complaining about.

The Federal RFRA law was signed by Bill Clinton and passed by overwhelming margins in both the House and Senate.  The State versions have become necessary because of the lunatic lefty screamfest that has in fact caused small business people to be attacked for refusing to practice their art in a way that directly violates their religious beliefs.

To those on the lunatic left who want to threaten economic boycotts, please be aware that this sword has two edges and I think it's time for the rest of us to figure out who you are, identify you, and boycott you in return.  

And indeed I'm going to start, by myself, as a boycott of one aimed directly at all of you who infest places such as Seattle and Californicated.  I urge the rest of you to join me.

I bet there are more of us than there are of you.

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Hmmm....

Back in February 2012, the Wall Street Journal revealed how Google was able to quietly bypass privacy settings in Safari and track the sites people were browsing. The company eventually paid a $22.5 million penalty to the FTC, and now a group of Brits is seeking similar compensation. Google has been trying to appeal a High Court decision that means their case can be heard in the UK, but today the bid was effectively thrown out.

As the BBC reports, a three-judge panel dismissed Google's arguments and said the privacy claims "raise serious issues that merit a trial." The method unearthed by the Journal relied upon a piece of code that tricked Safari into thinking users were submitting "an invisible form" to Google.

Many people have been charged and convicted for coming up with code that is "click-baited" to you; that is, it tricks your machine into loading something it otherwise would not, and then steals some piece of data from you.  The economic value of this "something" has to be material, but not to you individually -- only in the collective sense.

For US Federal jurisdiction the amount of "harm" has to be relatively large; typically $50,000 or more gets the feds' interest.

Here's the real problem, in a nutshell -- if you or I came up with something like this and then used that intrusion for economic gain we'd be facing an indictment right now for criminal hacking.

So why is it that Google isn't facing same?

This was clearly an intentional act; Google designed this bit of code for the explicit purpose of circumventing security that a user had erected.  They did it for commercial gain as well, which satisfies the intent requirement.  And they made money off it.

How can the government reasonably expect anyone to comply with the law when it refuses to bring trivially-provable cases that bear on the same alleged criminal conduct that the ordinary person would be exposed under?

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APRIL FOOLS!

smiley

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I've been writing this column for eight years; the first columns in the archives are from 4-1-2007.

For eight years I have chronicled the abuses in our nation's economic and political systems, tying most of them to economic concerns of one sort or another.  It began on Blogger and drove a fairly major software development effort on my part to put together the software currently in use here today -- a package that is capable of much more than it does at present.

I began this journey as a sort of private debt repayment, if you will, to people who I knew that got seriously harmed in the 2000 tech wreck.  I escaped as I saw it coming, but whether that was really all skill or there was a huge element of either luck or divine intervention I'll never know; there were certainly personal issues in my life that were partly responsible for my decision to divest MCSNet in 1998.

I've heard many people over those years tell me that I'm not only inflexible but I also never admit I'm wrong.  Those of you in that camp couldn't be more mistaken. Who remembers my rather long 2007 missives in which I expected very heavy inflation and dollar devaluation, accompanied with an energy cost spike that would literally destroy the economy?  I, like many others, wasn't looking at the whole picture; I had bought hook, line and sinker into some of the econometric models put forward by so-called professors and their claims, believing without demanding evidence and proof rooted in fundamental algebra that they were providing an honest and accurate assessment.

I was wrong, and those who have followed me know that when the evidence changed -- that is, when the predictions that those models made failed to yield the results that should have occurred I went back and look at what I had been sold and found the errors -- and corrected them.

This is what we all ought to be doing, but damn few actually do.  Essentially nobody in the media does so, and nobody in the general population calls them on it.

What came from this?  Leverage, for one.  One Dollar of Capital, for another.  And a whole series of both conversations and political activism, including real attempts to sway real policy during the 2011 Budget Showdown.

None of it went anywhere.  The Libertarian Party is a bad joke riddled with example after example of rank hypocrisy and outright bullcrap.  They won't even debate their own internal inconsistencies.

Not that this is exceptional behavior for a political party.  Republicans anyone?

When it comes down to it the ills of government can be boiled down to one thing: They insist on spending money they know you won't pay in taxes; this in turn requires them to run a literal theft racket from you and in doing so they license two entire industries -- the medical and banking business -- to do so as well.

So what's the point, really?  After eight years, I don't think there is one.

You won't stand up.

You insist on supporting "D"s or "R"s, and if challenged on that you tell people "well, the other guy is worse."

Is that true?  Is being screwed in butt by 5 inches or 6 any different?  Isn't the essential character of the act the same, and aren't you really arguing over whether you'd like to be killed by firing squad or being hung?

Here's the question, when all is said and done, that I've asked myself since I began writing this column:  Is there a point?

I'm forced to examine this question every day.  Literally.

I'm also forced to ask this question: Does math really matter? It appears not; despite what's clear and evident you keep buying, you keep producing, you keep paying taxes and running on the hamster wheel.  And I believe you'll keep doing it too, even when you literally die from the effort and lack of renumeration.

In the end today I've come to the conclusion that the answer to "is it worth it" is No.

So today, The Market Ticker goes dark.

Godspeed, America -- this nation was a great idea, but it's gone.

 

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