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The Frog Farm Issue 04
Welcome to the fourth installment of the Frog Farm. This installment features:
1) Obscenity and the Law
2) The War on Drugs is Perfectly NORML
3) Interesting Excerpts from, and Notes On, _The Spirit of the Common Law_
4) A Personal Note
**
[Here's a piece from the net that I find relevant. Remember, "first they came
for the perverts"... Anyone recall the Supreme Court ruling, two years back I
believe it was, when a 5-4 decision ruled that government cannot launch
"sting" operations (also known as "fishing expeditions") without first having
reasonable suspicion that the target has committed "or is likely to commit" a
crime? Keith Jacobson, a Kansas farmer and Vietnam vet, was convicted in 1987
of receiving child pornography through the mails.. after a two and a half year
government setup to entrap him into doing so. The S.Ct. just barely recognized
the entrapment, and still left the door open for further abuses.
Note that the piece has been slightly edited from the original.]
>From: an14768@anon.penet.fi
Newsgroups: alt.sex.movies,alt.sex.bestiality
Subject: Dirty Pictures (REPOST)
Date: Tue, 6 Jul 1993 17:33:17 GMT
There's been chat on a.s.m and a.s.b. about the Feds' power to go after people
for selling, trading, mailing, and/or even possessing dirty movies and
pictures in the U.S. of A. One a.s.b. poster noted that *mailing* the stuff
is what gets most people in trouble.
Some helpful guy even re-posted a list of nasty old beast vids, which, like it
or not, are "unmailable" in the U.S. But are they legally obscene as far as
private possession is concerned, or is the Feds' interest due to a separate
offense involving the U.S. Mail?
Good questions. What's *not* good is not knowing what the Feds and the courts
are able to do, if they feel like doing it. So here's a few cases and
decisions in U.S. obscenity law.
The full text of U.S. Obscenity Law is published in the United States Statutes
at Large. Don't get a hernia looking through these volumes. Since the laws
are of general interest to the public you'll also find them in (West's) United
States Code Annotated (USCA). Title 18 of that series is called "Crimes and
Criminal Procedures". Chapter 71 deals with Obscenity. It's in the volume
that holds Sections 1361 to 1950 and the "Obscenity" part begins at Section
1460.
USCA contains notes of decisions. These notes cross-ref to the books that
contain the full texts of those decisions. So if you're curious and wonder
what the Supremes have done/are doing, or what the District and Appeals courts
on *your* patch have done/are doing, just put on a clean shirt and trot down
to your local library ...
Now here's six obscenity cases, listed in chronological order, with cites so
you can find 'em. They seem relevant to a.s.m and a.s.b discussions but
there's many others. Three were decided by the Supremes; two were decided by
the U.S. Court of Appeals for the 2d Circuit (NY); and the last was decided by
C of A for the 4th:
1. Roth v. U.S. 354 U.S. 476 (1957)
2. Stanly v. Georgia 394 U.S. 557 (1969)
3. U.S. v. Dellapia 433 F.2d 1252 (1970) (2d Cir. 11/70)
4. U.S. v. Reidel 402 U.S. 351 (1971)
5. U.S. v. Gantzer 810 F.2d 349 (1987) (2d Cir. 1/87)
6. U.S. v. Guglielmi 819 F.2d 451 (1987) (4th Cir. 5/87)
ROTH was decided in 1957. It's the Big Kahuna. The court in ROTH stated
flatly that "Obscenity is not within the area of Constitutionally protected
speech."
Roth had been charged with using the mails to distribute obscenity. Get it?
The Supremes upheld his conviction for mailing "obscene" circulars and
advertising. It held that the prohibition in USCA 1461 prohibiting the
mailing of obscene or crime-inciting matter "does NOT offend constitutional
safeguards ... or fail to give men in acting adequate notice of what is
prohibited."
(What's obscene? Well, Anthony Comstock knew it when he saw it back in the
early 1900's, but that's a whole 'nother story.)
Twelve years after ROTH, STANLEY was decided. The court in STANLEY held that
"[M]ere private possession of obscene matter ... cannot constitutionally be
made a crime."
Justice Thurgood Marshall wrote for the majority, holding that Georgia's
statute punishing mere possession unjustly infringed upon Stanley's First
Amendment rights "to receive information and ideas" regardless of their worth
and to be free, except in very limited circumstances, "from unwarranted
governmental intrusions" into his privacy.
"If the First Amendment means anything," Justice Marshall wrote, "it means
that a state has no business telling a man, sitting alone in his own house,
what books he may read or what films he may watch. Our whole constitutional
heritage rebels at the thought of giving government the power to control men's
minds."
STANLEY didn't overturn ROTH. But did it signal the beginning of the end of
ROTH? Where would the Supreme Court draw a line between government's
(claimed) right to forbid what it calls obscene, and the right of individuals
to be left alone?
The 2d Circuit thought they knew.
STANLEY was decided in 1969 and held that the First Amendment protects
Americans' rights to *receive*, possess and enjoy information and ideas
regardless of their worth, including supposedly obscene books and movies, in
the privacy of their own homes.
Even now, except in a number of states that have enacted child-porn
exceptions following the Supreme Court's OSBORNE decision (1990), mere private
possession of all types of books, movies and pictures that some or many would
consider to be obscene *is* still protected by STANLEY.
But STANLEY was decided during a tough time for the Court. President
Johnson's attempt to appoint Abe Fortas to be Chief Justice was met with
tremendous resistance from segregationists and law 'n order types in the U.S.
House and Senate. They despised Justice Fortas and the extensions of civil
liberty he'd fought for throughout his career, both on the bench and in
private practice.
But they attacked him publicly for his libertarian approach to obscenity
cases that were heard by the Warren Court. To mobilize public opinion and
smear his reputation, Strom Thurmond of South Carolina and others brought out
the heavy artillery: God's own warriors, Charles Keating's Citizens for Decent
Literature, Inc. (CDL).
Remember Charles Keating, the guy who swindled all those billions from the
S&L's during the 1980's? All those billions that our grandchildren are gonna
be helping us pay back? Yup, CDL was Charlie's baby. The Fortas hearings
showcased Senator Thurmond; one James J. Clancy, an attorney who appeared on
behalf of CDL; and a whole *bunch* of dirty movies that had become part of
CDL's traveling roadshow in its attempt to defeat the nomination. The
smut-busters had a field day on the Hill!
So Justice Fortas was vilified in public for many months and finally asked
the President to withdraw his nomination. In May of 1969 Fortas resigned from
the Supreme Court. President Nixon appointed Warren Burger to be Chief
Justice, Burger begat Rehnquist ... but I digress.
Ahem. STANLEY protected private possession. One could now receive, possess
and enjoy. But how can you receive something unless someone delivers it to
you? How can you possess something in the privacy of your own home without
first somehow acquiring it and bringing in there, or causing it to be brought
to you? How can you acquire, without breaking the law, that which you may now
legally possess?
Well, STANLEY didn't say.
Can you go and buy it somewhere, put it in a sack, and then drive home with
it? Can you "receive" it from a friend who hands it to you on your doorstep?
Can you ask somebody to sell or give it to you, so that you can have it for
your own private enjoyment at home? Can you give it away or loan it or sell
it so someone else can "receive" it?
Can a courier or parcel service bring it to your door? Or could you now,
finally, receive it in the mail as a logical extension of STANLEY, for your
own private enjoyment, even though neither ROTH nor STANLEY had invalidated
the Comstock Act?
Again, STANLEY didn't say. The lower courts were left to wonder what the
Court might be *ready* to say ...
So one year later, in October of 1970, the U.S. Court of Appeals for the
Second Circuit felt it was time to review and perhaps re-interpret the
government's power to enforce the postal obscenity laws.
The case was U.S. v. DELLAPIA. Defendant had been convicted in District
court of using the mails to transport obscene material. At the close of the
government's case he moved for acquittal on the ground that his mailings were
private correspondence between himself and the recipient, and as such were
protected by the First Amendment.
The motion was denied and Dellapia appealed.
On appeal, the Second Circuit did not doubt that the films were "obscene" in
the constitutional sense. And but for STANLEY the court would have held that
ROTH's view on obscenity was sufficient to uphold a conviction. But *because*
of STANLEY the court was prepared to ask whether Dellapia's privacy was less
worth protecting than Stanley's, and the state's interest more compelling,
simply because the "crime" involved the U.S. Mail.
The court held that it was not, in both instances, and reversed the
conviction. In doing so it found that defendant DID NOT publicly distribute
obscene films; he DID NOT "pander or otherwise intrude himself upon public
sensibility"; and his mailing of obscene films was AT THE REQUEST of the
recipient.
"Solitude or isolation," the court noted, "has never been a precondition to
the Constitution's protection of other phases of the right to privacy."
The decision made sense but it was a bold extension of STANLEY. The court
held that it could not believe [all involved] became "less entitled to privacy
from public intrusion or public sanctions when they willingly shared similar
protected private experiences among themselves only. Each [person] merely
responded to the others' 'right to read or observe' whatever they pleased in
the privacy of their own homes."
OK so far. But there's still the postal obscenity laws, and that's what the
guy was tried on. For authority, the Second Circuit reached back for quotes
from two earlier Supreme Court cases:
[T] use of the mails is almost as much a part of free speech as
the right to use our tongues ...
Letters ... in the mail are as fully guarded ... as if they were
retained by the parties forwarding them in their own domiciles.
Pretty arrogant, but the Second Circuit is an influential court. It had
logically and coherently interpreted STANLEY as being a restraint upon
government's power to violate Americans' privacy rights when no valid
governmental interest is shown to be at stake.
But Richard Nixon was now President and the fundamentalists were feeling
their oats. Congress had most definitely *not* repealed the Comstock Act and
ROTH was still the law of the land. Abe Fortas had resigned from the Supreme
Court - he'd been forced out, really - and Warren Burger was the new Chief
Justice.
Barely six months after DELLAPIA, in U.S. v. REIDEL, the Court spoke again on
obscenity - and it was not amused.
Reidel had been indicted in California for using the mails to sell, to
persons over 21 years of age, a nifty little booklet called The True Facts
About Pornography. Reidel moved to dismiss, contending that the statute was
unconstitutional.
The trial judge granted his motion on the ground that defendant had made a
constitutionally protected delivery.
But the Nixon Administration wasn't having any. The government appealed to
the Supreme Court. The Court wasn't having any either, and held that the
postal obscenity laws are NOT unconstitutional "as applied to the distribution
of obscene materials to willing recipients who state that they are adults."
And just in case the lower courts from Maine to California hadn't got the
message the first time around, the Court reminded them that "The decision in
STANLEY ... holding that a State's power to regulate obscenity does not extend
to mere possession by an individual in the privacy of his own home, did not
disturb ROTH."
Justice White wrote the opinion, and even Justice Marshall concurred. Only
Justices Black and Douglas dissented.
"The District Court," White wrote, "gave STANLEY too wide a sweep." The Court
was not prepared to abandon ROTH by extending STANLEY beyond its simple facts.
STANLEY's focus, White wrote, "was on freedom of mind and thought and on the
privacy of one's home. It does not require that we fashion or recognize a
constitutional right ... to distribute or sell obscene materials."
White concluded by saying, in effect, that if the law is to be changed, it
should be Congress that changes it. "[T]he task of restructuring the
obscenity laws lies with those who pass, repeal, and amend statutes and
ordinances. ROTH and like cases pose no obstacle to such developments."
So there it is, circa 1970. You can posses it, but you can't receive it.
Actually, strictly speaking, you can receive it (STANLEY) but you just can't
*acquire* it (REIDEL). Get it?
Now somebody's gonna split hairs here and say "Sure I can get dirty movies,
it's just obscenity ya can't handle, so what's the big deal?"
So stay tuned for Part 2, sports fans, and we'll talk about some *really*
clever decisions that came out during the Rehnquist era. And also about
entrapment, and predisposition, and other neat stuff like that.
[I'm anxiously awaiting this next post, and will send it out to the list
when/if it arrives.]
**
[Here's a piece which, although not consistent (or even much news for most of
us), I found interesting -- I even learned a few things I wasn't previously
aware of. It was originally printed in a Loompanics catalog. Remember, the
author is apparently like most people in that he believes that Rights can be
"eliminated" or "removed". Rights are not subject to a vote, they are not
dependent on the whims of the majority and they cannot under any circumstances
be "eliminated". Even convicted criminals still have Rights; through due
process of law, we RESTRICT THE EXERCISE of those Rights (NOT "eliminate"
them). These distinctions are crucial in the courtroom.]
The War on Drugs is Perfectly NORML
(C) 1993 by Jim Hogshire
When they came for the Fourth Amendment I didn't say anything because I had
nothing to hide.
When they came for the Second Amendment I didn't say anything because I wasn't
a gun owner.
When they came for the Fifth and Sixth Amendments I didn't say anything
because I had committed no crimes.
Then they came for the First Amendment -- and now, I can't say anything at all.
* * * * * * * *
When we bemoan the horrors of the War on Drugs we always speak of how the
Constitution "is being ripped to shreds." But even as we say these words we
don't seem to comprehend just what this means. We just say it, and then,
having said it (among friends of course) we go back to demanding that our
cable TV rates be lowered.
The truth is, our rights are not being "eroded." Most have already been
eliminated. And just like the above epigram suggests, your right to say so
will be the last thing to go. When they start telling you what to say and how
to think, you'll know it's all over. Sadly, that is what's happening now. The
police state has modified its laws to the point where it is downright
profitable to go hunting citizen/suspects -- someone who is growing even one
marijuana plant, "loitering" too long in a single area, selling
"paraphenalia," or saying the wrong things. The general acceptance of the
police state has paved the way for the "War on Drugs" to expand -- to porno
dealers, religious groups, gun owners, foreigners, and "troublemakers" of
every stripe.
This could never have happened without a stunning lack of resistance by the
people -- especially those who consider themselves at the forefront of the
Drug War Resistance. We "resisters" have allowed ourselves to be stratified
and fragmented to the point where nearly everyone -- no matter how supposedly
radical -- agrees with at least some of the government's oppression. Pro-hemp
people are among the worst offenders with their explicit pleas to allow the
government to "regulate and tax" hemp. Faux pro-drug luminaries like Terrence
McKenna (_Food of the Gods_, etc.) go a little further in advocating more use
of psychedelic drugs, but would still outlaw opiates and cocaine -- since
these are "hard drugs." It might also be that these folks don't happen to
like coke or smack too much and are thus willing to send their fellow man to
jail in the hope that _their_ particular drug will get the government's nod.
But the government only reluctantly gives the slightest of nods to MDs and
others with the proper credentials.
So far we have managed to believe that the various outrages (warrantless
searches, asset forfeiture, preventive detention, military troops enforcing
civilian laws, etc. ad nauseum) are temporary aberrations. Somehow we make
ourselves believe reason will overcome this madness before it goes too far. Or
maybe we each think it would never get around to us -- after all, _I'm not
doing any harm_. How could the police possibly be interested in me? Well,
they are interested in you -- and have demonstrated this time and again by
compiling huge databases made up of information on nearly every citizen who
owns a telephone.
The War on Drugs was never meant to alter anyone's drug use -- it was a money
and power scam from the start. "Fighting drugs" has given our government just
the excuse they need to send troops to foreign countries and to police our
borders and even our cities. The litany of atrocities is long and runs the
gamut from wholesale human sacrifices overseas, to the theft of a few hundred
dollars from a guy in an airport who can't immediately prove it wasn't earned
illegally.
And now they have come for the First Amendment.
A gardening supply shop just handed over $100,000 to the government rather
than prove it was not involved in a conspiracy to grow marijuana because it
had placed ads for grow lights in two magazines. A famous author is forced to
use a pen name on his latest books because his real name is too associated
with drugs and book dealers often refuse to carry any book that can bee
construed as promoting drug use. Even the word "marijuana" has caused a
gardening book to be taken off the shelves in fear of cops raiding, then
seizing the whole store.
When cops in Indiana ran out of names gleaned from confiscated garden supply
store customer lists and busted every hydroponic gardener they could, they set
up their own hydroponics equipment stores, charged low prices, then calmly
talked with customers while copying down names and license plate numbers. The
monetary gains from this operation were measly, but the number of people going
to prison and the fear injected into the community as a whole must have been
worth it.
The War on Drugs has been highly successful in cowing the population, and
increases its control every day. Once again, what is most disturbing is the
complicity of the people. From turn-in-your-parents campaigns to NORML's
obsequious "legalize, then tax and regulate!" proposals, to the idea that even
marijuana should be illegal if it exceeds a certain arbitrary quantity, even
some so-called "libertarian" types are tripping over themselves to help the
cops. When we are not busy validating portions of the government's propaganda
in the vain hope that we will be spared a pitiful ounce of weed, the rest of
us are silent.
Today we live in a culture of fear and distrust, a culture that has taken
fewer than ten years to create. The use of asset forfeiture laws was not very
commonplace until after 1985. And the assault on speech only began in the
last four years or so.
First, there is operation Green Merchant (it still continues, after collecting
billions of dollars and destroying countless lives). In 1987, Ed Rosenthal
first wrote with awe of some of America's pioneer indoor pot farms. Yet, he
may not have realized that even though he and his fellow pot smokers had moved
indoors, they were still in harm's way. After all, at that time the courts
still recognized some modicum of privacy rights (helicopters were not allowed
to hover just above a person's house taking infra-red pictures without a
warrant, for instance). But by the end of 1988, nearly every state had
mimicked federal statutes that not only relaxed the standards for probably
cause but also increased the powers of search and seizure.
These last laws have come to be known under the heading of "asset forfeiture"
and although they have been used vigorously in every state for at least the
last five years many people still express shock that such a thing is legal.
What is asset forfeiture? Basically it's this: The state seizes property
under what they term "probable cause" and then keeps it, claiming it now
belongs to the state because of a legal doctrine known as "relation back."
Relation back says that once any thing, be it cash, car, or bass boat is used
in an illegal way, it belongs to the state from that moment on. Thus if you
lend your car to someone who uses it to bring drugs to a friend, the car is no
longer yours. This is true even if the crime goes undetected for some time
afterward. That car belongs to the state and if it ever alleges that a crime
took place in it, it can take possession of it.
This legal doctrine is not new; it harkens back to the Inquisition when those
accused of heresy by the Church lost their property -- half to the Church,
half to the local secular official.
Normally, especially if the case is weak, the authorities will tell you to
kiss your property goodbye or face prosecution. With the maximum penalties we
have all voted for (or at least kept silent about) who wants to go to court?
Most people just grind their teeth and let the government keep everything. One
wonders what sort of marijuana tax could possibly compete with this as a
source of revenue?
You _can_ get your property back. You merely have to prove to a civil court
by "a preponderance of evidence" that the state is wrong in its suspicion that
the property was used in a crime. Now the burden of proof is shifted to the
defendant, and it is a difficult burden to boot. Preponderance of evidence
constitutes 51% or more (in the judge's opinion) of the evidence. Probable
cause requires only suspicion. Thus, the state takes by probable cause, then
requires a higher standard of proof from you, the ex-owner, to get it back.
Yes, this is the exact reverse of the doctrine of "innocent until proven
guilty." But they get away with it because no human is charged with any
crime. The case is against the confiscated property. That's why you see such
cases as The State of California vs. $5,000 cash. You see, property doesn't
have as many rights as people. Even if you are acquitted of any crime, your
car, cash or bass boat will still have to prove its innocence.
By the way, this is nothing new either. This legal fiction harkens back to at
least the 12th century when a kettle was once tried for murder after it fell
off a shelf on someone's head and killed him.
Obviously, this has made for some easy pickin's for state cops who often get
into humorous court battles with each other over which jurisdiction gets how
much seized property and bank accounts. It also invites the government to
play even faster and looser with any "rights" Joe Citizen might have left.
Thus, we have "paraphenalia laws" that are sporadically enforced to scare off
certain people or to drum up some quick money. Paraphenalia laws spawned
still others that make it illegal to even talk about drugs in such a way as
could be construed as "promoting their use and/or manufacture." The Analog
Substance Act has even made certain compounds illegal that haven't yet been
made or used by anyone. Indeed, these drugs exist only in theory. This last
bit is truly a new twist on legal reality. Even the harshest medieval minds
concerned themselves only with things generally recognized as real and did not
make that which did not exist illegal.
Now, search warrants issued on phoned-in "anonymous tips," "pre-trial
detention" based on a prosecuteor's allegation, probable cause based on
"profiles" that include several million people, are all commonplace. In some
states, it is a crime to have prescription drugs stored in anything but their
original container. At least one dissenting judge noted this made a pill
illegal for the time it took to remove it from the bottle and swallow it.
The War on Drugs brought us our first true thought crime when it introduced
the idea of a CONSPIRACY OF JUST ONE PERSON. Unlike any other federal
conspiracy charge, the War on Drugs does not require you to do a single thing
in furtherance of your conspiracy. In other words, if you CONSIDER selling
drugs -- that is itself a crime. For any other crime you have to DO
SOMETHING. Today we are seeing the first cases where speech -- the transfer
of information -- has become illegal. If someone asks you how to grow
marijuana, you will be guilty of a crime if you tell him.
Good thing for me I don't smoke pot, huh? Hope nobody asks me how to forge a
prescription. Or decides that ephedrine is an analogue of speed. Or decides
that a novel I write inspires thoughts contrary to the State's interests. This
is the application of "thought crime" and nothing less. To police our
thoughts, the cops keep extensive files on anybody, and everybody.
In some states, each and every prescription filled is noted by a computer and
kept in an enormous database. When, in the computer's estimation, something
appears "suspicious," the cops are dispatched to investigate -- if not make an
arrest. In Ohio, cops don't leave such crucial decisions up to a computer.
There, the police have free access to any pharmacy's records and are allowed
to even store this information at various police stations. And urine testing
has subjected the majority of Americans to lifestyle investigations by almost
anyone. Scrutinizing pee yields all kinds of information about a person
besides "drug use."
Each and every person traveling on an airplane is now noted by law enforcement
agencies, and even small bank transactions are reported to the government.
Police databases now make available extensize information on any citizen.
So far, our attempts at solutions to this problem have been utter failures. I
think that's because they rest on asking the system to change itself in a way
that is clearly not in the interest of the system at all. All this is due to
our silence and bleating for mercy. And Big Brother loves bleating sheep. He
loves the sheep who agree there is such a thing as a "hate crime," the sheep
who believe there are such things as "hard drugs" or drugs that "really should
be controlled" or that certain religious outlooks aren't "real churches." And
of course he loves the majority of sheep who are willing to part with "some of
their rights" and convince themselves they won't regret it.
The pro-hemp sheep are perhaps the worst of all. They have even been suckered
into arguing for marijuana legalization on the basis of its value as an
agricultural crop! About the only use for marijuana _not_ mentioned by
pro-hempists these days is that you can get high from it! Pro-hemp sheep love
to tell stories about how the Founding Fathers wrote our Declaration of
Independence on hemp paper. Some even go so far as to say that hemp can _save
the world_. Please master, if you let us have our hemp, we'll back up the
rest of your oppression. Here, you can even tax it, if you want.
But could the government ever expect to make as much money off taxation as it
already does with asset forfeiture? In a world where a police dog "alerting"
on a stack of cash results in a jackpot, or possession of any amount of drugs
costs you your house, is this supposed to lure them into legalizing pot -- the
chance to regulate at a lower profit than which they already regulate?
I know this is counter-culture heresy, but the fact is, no group has been more
complacent about the War on Drugs than the pro-marijuana smokers. For all
their self-righteous jabbering about freedom, they do little to secure it.
They buy 90% of the government's anti-drug line and heartily condemn users of
any other drugs. _High Times_ now "hates heroin, alcohol, speed and cocaine"
according to a _USA Today_ interview with _High Times_ editor Steve Hager.
"Now the only articles about heroin or cocaine you'll find in _High Times_
will tell you where to get treatment," he says. Once a million circulation
magazine devoted to all types of drug exploration, the magazine now
essentially agrees with the Drug Warriors that coke and "crack" are scourges.
In return for this dramatic about-face, _High Times_ has suffered a concerted
and sustained program of harassment by the DEA, which systematically drives
away its advertisers and subjects it to threats of prosecution. But its
hypocrisy remains transparent -- some of their largest advertisers are
companies that sell ephedrine and caffeine pills as fake speed. Both of these
drugs, especially ephedrine, can be fatal in relatively small doses.
Some articles suggest _High Times_ has come completely under DEA control when
they run articles that teach growers to do their best to grow as little as
possible so, if busted, they won't be charged with dealing and face stiffer
penalties. "If you grow, make sure you know the rules of the game," one
article ends, "and play the games accordingly." Is this the magazine that
published _The Encyclopedia of Recreational Drugs_? Advice on how to "play
the game?"
Al Capone would be ashamed.
At least the coke dealers resist. They shoot back at governments that shoot
at them. They put prices on judges' heads, they blow away cops and spring
their pals from prison. In our country, no one fears a sheep with a grow
light and a marijuana seedling. What is feared is physical abuse and death.
This has been the punishment for people with nothing to confiscate for years.
As a result, in areas where the punishment is not asset forfeiture, but
incarceration, the Drug War really is fought with guns. Mostly this is in the
inner city and on a few rural pot plantations. The propaganda has so far been
able to hornswoggle us with the lies of "instantly addicting crack," PCP
giving someone the strength of ten men, and the general fear of black people
at home and abroad.
The fear of the "Other" has led us to seriously limit firearms (semi-
automatic weapons are supposedly favored by drug dealers when, in fact, they
are most favored by police departments) and endorse pre-trial detention and
the U.S. Army enforcing civilian laws (when will we have forced billeting of
soldiers?). Oh, save us from those dark-skinned foreign druglords! We have
now allowed our governemt to adopt truly fantastic "crime packages" that
include the death penalty for destruction of government property, mandatory
life sentences for small amounts of this or that substance and general
mistreatment for anyone deemed a "kingpin" -- an elastic definition which
seems to mean "anyone accused of having drugs".
Before it's completely illegal, I would like to remind everyone that tyrants
don't get disposed of by rational arguments or deal-making. In the end, it
must become unprofitable and uncomfortable for The Establishment to continue
to wage their Drug War. To this end it is obvious that mere talk is not
enough (but, by all means SPEAK OUT -- without that all is lost) but action is
required. The simplest means of action is to turn the monster on its creators.
As the drug warriors become increasingly rapacious, as their SWAT teams blow
away more and more innocent people, the public's perception of them is going
to sour. So one of the best ways to fight the oppression is to bring the war
home to those who love it so much. Why not report your kindly local doctor
for drug dealing?
Without much prodding, you can get the police to tear his place apart, and
perhaps ruin his practice. The doctor will see he has more to fear from his
government than anyone else, and so will all his friends.
Why not go ahead and help the cops with their turn-in-your-neighbor programs?
Just make sure the neighbors you turn in are those with the smuggest attitudes
and the juiciest assets. If those guys believe so heartily in the fairness of
our criminal justice system, why not plant a little coke in their cars, then
call the cops? Throw pot seeds on a politician's lawn. As the richer and
more powerful discover the joys of dealing with the man in blue, they may come
to listen to your logical arguments. But as long as they think they can
escape the consequences of their own police state, they will continue to back
it.
Take a tip from the IRS -- terrorize just a few percent of the insulated
middle class and the rest will readily do what it takes to escape the same
treatment. After a slew of millionaires lose their houses, and some regular
folks lose their bass boats and enough regular white folks see their children
off to ten-year stretches in prison for non-crimes, the Drug War will cease.
But not before.
Otherwise, never miss a chance to expose the Drug War for what it is. If you
have children, encourage them to challenge their teachers whenever anti-drug
messages come up. Teach them to teach their classmates that the teachers are
lying. You don't have to promote drug use to promote your Constitution. All
you have to do is promote freedom.
**
Notes on and Interesting Excerpts from
Roscoe Pound's _The Spirit of the Common Law_, 1949
[I originally picked this up because of the title, hoping for something
decent. I should know better. Out of all the books ever published on common
law, ten percent, at most, actually know what they're talking about. This guy
knows all the words, but his philosphical dyslexia results in the concepts
becoming hopelessly tangled. I offer some of the more interesting quotes here.
Some are patently false opinions or interpretations of common law or natural
law; others are merely statements of fact, which may or may not accord with
available historical data.]
p 34: "...the political interpretation...assumes that a movement from
subjection to freedom, from status to contract, is the key to legal as well as
to social development."
HUH? What drugs are you on, Roscoe? STATUS is FREEDOM; CONTRACT is SUBJECTION,
and you have them COMPLETELY REVERSED! Bouvier's law dictionary tells us that
STATUS is a man's position in relation to the rest of the world, and CONTRACT
is the DEGREE OF SUBJUGATION INTO WHICH HE HAS PLACED HIMSELF. In other words,
you may have the status of a freeman when you're born, but every time you
enter a contract, your freedom diminishes by that much more. Of course, if you
should enter into a contract which derogates your STATUS without your
knowledge, you can object and claim your rights once you are aware of the
fraud and can coherently explain your defense.
p 45-6: "For many years a favorite topic of presidential addresses before the
American Bar Association was the plethora of legislature-made laws. A late
leader of the American bar died in the harness writing an elaborate argument
against legislation..."
Hmm! Sounds like lawyers weren't ALWAYS ignorant fools...
p 53: "The Puritan has always been a consistent and thoroughgoing opponent of
equity. It runs counter to all his ideas. For one thing, it helps fools who
have made bad bargains, whereas he believes that fools should be allowed and
required to act freely and then be held for the consequences of their folly.
For another thing, IT ACTS DIRECTLY UPON THE PERSON. IT COERCES THE INDIVIDUAL
FREE WILL. It acts preventively, instead of permitting free action..."
And from this, it seems that not all religious folks are fools. Although
Puritans' "pleasure bad" routine gets tiresome rather quickly..
p 61-2: "In 1787 the legislature of Rhode Island, having put forth paper money
of the nominal value of $100,000 made it penal to refuse to accept the bills
in payment of articles offered for sale, or to make any distinction between
them and gold or silver coin, and provided further that if any one were
arrested of that heinous offense, he should be tried forthwith in an inferior
court by judges without a jury, on a summary complaint, without any
continuance and with no appeal. One Weeden being charged with violating the
statute objected that trial before such a special court, uncontrolled by the
supreme judiciary and without a jury, was repugnant to the charter which stood
as the constitution of the state, and hence that the statute was void. The
judges sustained this objection. Thereupon, on the last Monday of September,
1787, the judges were summoned to appear before the legislature much as Coke
and his colleagues had appeared before James I. The judges appeared, and two
of them made learned and convincing arguments that they could not be compelled
by statute to send a citizen to jail without trial by jury, when trial by jury
was guaranteed by the constitution, the supreme law of the state, under which
the legislature itself was constituted. The legislature, however, voted that
it was not satisfied with the reasons of the judges, and a motion to dismiss
the judges from their offices followed and would doubtless have prevailed had
it not appeared that the constitution unhappily required the deliberate
process of impeachment. Like cases occurred at the time in many states."
Shades of Thomas More! That darn due process of law just makes things so
INCONVENIENT when you want to punish people, doesn't it?
p 102: "When houses are scarce and landlords are grasping, Blackstone's
proposition that the public good is in nothing more essentially interested
than in the protection of every individual's private rights is not the popular
view. A crowded, urban, industrial community looks to society for protection
against predatory individuals, natural or artificial, and resents doctrines
that protect these individuals against society..."
So a starving mob doesn't care about anyone's rights. This may be true -- does
that necessarily make it good or right?
p 109: "Men are not asking merely to be allowed to achieve welfare; they are
asking to have welfare achieved for them through organized society. Much that
advertises itself as social is in truth individualist; it is individualism to
be attained through society rather than through individual self-help."
The first sentence is merely another thing which may or may not be true, but
is certainly not moral, even if it is true. I can make no sense out of the
second -- the collective is an individual? A is not A?
p 110-1: "...even if we grant that ultimately all interests, individual and
public, are secured and maintained because of a social interest in so doing,
this does not mean that individual interests, the details of which the last
two centuries worked out so thoroughly, are to be ignored. On the contrary the
chiefest of social interests is the moral and social life of the individual;
and thus individual interests become largely identical with a social interest.
Just as in the 17th century an undue insistence on public interests, thought
of as the interests of the sovereign, defeated the moral and social life of
the individual and required the assertion of individual interests in bills of
rights and declarations of rights, there is like danger now that certain
social interests will be unduly emphasized and that governmental maternalism
will become an end rather than a means and defeat the real purposes of the
legal order. Although we think socially, we must still think of individual
interests, and of that greatest of all claims which a human being may make,
the claim to assert his individuality, to exercise freely the will and the
reason which God has given him. We must emphasize the social interest in the
moral and social life of the individual. But we must remember that it is the
life of a free-willing being."
Huh? Again, A=!A, it would seem. Quite a fine line he expects the omniscient,
omnipotent State to walk. No wonder most people are so confused, if this is
the most intelligent, reasoned material that so-called legal scholars can come
up with. (I won't bother commenting on his belief that Rights come from some
higher power, unless the list at large feels it would be a good topic.)
p 113: "...with a few conspicuous exceptions, the courts before and for some
time after the Revolution were made up largely of untrained magistrates who
administered justice according to their common sense and the light of nature
with some guidance from legislation. Until the Revolution in most of the
colonies, it was not considered necessary, or even expedient, to have judges
learned in the law."
As long as the contesting parties agreed to submit themselves to the court,
there's no controversy. And especially in this day and age, I'd much rather
have a judge who didn't start out as a lawyer. Remember "What License?" which
was posted to this list a short time back? (I'll mail it out again to anyone
who missed it who doesn't have anonymous FTP access.)
**
A Personal Note to the Subscribers of the Frog Farm
I'm quite short on things to send out this time around, and have exhausted
most of my newer material; I have yet to receive any submissions to the list,
but I realize I've been a bit lax in my duties as list host.
All of you (all four subscribers! ;) should already have read the FAQ, and
know that it doesn't really have any "questions" per se that get answered.
With the next version, that'll change; one question that just about everyone
has asked (usually after they get a sample of what sort of things are
discussed) is, "So why the heck is it called the Frog Farm?"
I'm relatively sure all of you are already familiar with the apocryphal
American folk tale about the frog and the boiling water. To be concise, the
moral of the story is that if you put a frog into water that's boiling, he'll
jump right hack out, but if you put him in a pot of cold water and raise the
temperature as slowly as possible, he won't recognize the danger until it's
too late.
This little fable has endeared itself to me mostly for its lasting relevance.
Although an atheist and [O|o]bjectivist, one book of the Bible in particular,
as portrayed by Roger Zelazny in _A Rose for Ecclesiastes_, has never been far
from my mind since I read it -- to wit, the more things change, the more they
stay the same. "There is nothing new under the sun", for as long as human
beings are what we are, and natural law governs our relationships, our
essential nature remains unchanged. Only our (still all too) weak knowledge
regarding it grows, at a pace probably frustratingly slow to the people who
actually consciously are aware of their need for philosophy. "The mass of
men", as Thoreau noted, still "lead lives of quiet desperation", and life,
instead of the joyful potential it should be, is a constant burden, cheaply
bought and sold.
(Incidentally, I don't agree with E.'s conclusions regarding life itself; not
surprisingly for that day and age, the alleged prophet(s) and author(s) came
to much this same conclusion; namely, that life in this reality was something
best exchanged for whatever else they imagined might lie beyond it. The very
fact that religion still holds the majority of the world's population in its
grasp in one form or another, whether in an organized group or by personal,
unspoken belief, shows us as conclusively as anything else that most people
are so afraid of living that their minds are compelled to imagine something
better, however nebulous and unprovable it might be. The mental contortions
gone through by those who try to reconcile rational and irrational beliefs can
be as painful for those witnessing them as they can be for those experiencing
them first-hand.)
The more most of my friends in my age group (the 13th generation to inhabit
this nation since the Founding Fathers) learn about history, law, philosophy,
and reality in general, the more pessimistic they seem to become. Amazingly
enough, my once-suicidal teenage angst has, through knowledge acquired
regarding these topics, virtually disappeared. I know I can't control other
people -- but I have no desire to. And I'm confident in my ability to control
my own life -- a thing I formerly believed impossible, or at least
unrealistic.
Here at the Frog Farm, we recognize that people aren't perfect. We don't
demand impossible performance. All we ask is the right to be left alone, to
live peacefully and interact only with those of our own choosing.
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