A Modest Proposal to Pomote Domestic Tranquility

Published on Opinion Forum on May 20, 2010

Huff and Puff and down fall the houses of falsehood

Here is a truly fascinating article from Huffington Post by Jim Taylor, PhD in psychology and lecturer at the University of San Francisco, a well known bastion of unbiased intellectual thought. Mr.^* Taylor complains that the sources of information nowadays are too many, too prolific and too motivated by politics and/or ideology, and that we lack the resources, intellectual and otherwise, to distinguish "facts" from "falsehoods" and from opinion. President Obama recently said much the same. They are, of course, right correct.

Mr. Taylor directs his message not to those whose "facts" are incongruent with his.

The reality is that, for these extremists, when ideology comes face to face with the facts, facts are the victim. You need look no further than the birthers, truthers, death panelists, and Sarah Palin devotees to see the profound disconnect from fact for those who hold extreme ideologies.

Rather, his message is directed toward the reasonable folk who agree with him.

This post is directed toward to [sic] everyone else, those who, whether a Republican or Democrat, Christian, Jew, Muslim, or atheist, environmentalist or industrialist, socialist or capitalist, are reasonable people who believe that truth should trump ideology, who are interested in separating fact from fiction, and want to know both sides of an issue before forming thoughtful and well-supported opinions. Just look at the health-care legislation. Decent people can disagree about what is the best health care system for America, but that determination should be based on facts, such as how many people will be covered and what will the costs be, not ideology or prostituting to special interests.

Truth is good; untruths are bad; distortions, spins and misinformation are bad. Gosh Darn! We agree.

However, Mr. Taylor's prescription (in this context, perhaps I should accord him the honorific "Doctor") is as follows:

The federal government should create a Department of Information whose responsibility it is to determine the facts behind any decision that confronts our country. I know what you're thinking: This sounds like something that belongs in a totalitarian regime. But the reality is that someone has to decide on what is factual and what is not. So who can we trust to give us the most accurate information available? Big Business? Traditional media? The blogosphere? I certainly wouldn't trust any of them.

Though our government is far from perfect, it does exist, at least in theory, to serve the best interests of the American people. That's more than can be said for any other influences in our society; everyone else has a self-serving agenda. And our government already decides what is factual in many areas, whether the Office of Management and Budget deciding how much the health-care legislation will cost, the Federal Reserve describing the state of our economy, or even the decisions handed down by Supreme Court (though, interestingly, they are called opinions not facts). I know, budget estimates are often wrong, the Fed has made glaring economic-policy mistakes, and the Supreme Court has made some lousy decisions, but those mistakes may be more a reflection of the complexities of life and honest disagreement on ambiguous issues rather on than intentional misinformation.

Here's the next part of my proposal. Anytime there is a factual dispute, the Department of Information would render a decision on what the facts are. Those parties who come out on the short end of those decisions would not be allowed to use their "facts" any longer (just like having potentially dangerous drugs or products taken off the shelf). If they do, there would be fines levied to punish the transgressors. This system would not only make clear what the facts are and empower those who want the facts to be known, but it would also discredit the lunatic fringe and reduce the influence of their views on the majority of people.

Now that's a stupendous idea, despite that ratty old Constitution written by a bunch of long dead obscenely rich white male jerks (please excuse the redundancy) obviously cursed with an overabundance of Neanderthal genes! It should be tossed into an (ecologically sound) trash bin. Should it fly (and Mr. Taylor acknowledges that it might not -- but then, scientists were once said to know that a bumblebee couldn't fly), anyone who advocates that 2 + 2 = 6, that the Germans and Japanese were the bad guys and the United States and Great Britain were the good guys during the Second World War, that Arizona's Jim Crow immigration law is reasonable and constitutional or that under the Health Control Law costs are likely to rise, medical care to suffer and/or that the old farts might get the short end of the stick – being in all cases clearly misguided, politically and/or ideologically suspect wrong – would have to shut up or be punished by fines. Big fines, I hope. Perhaps Huff and Puff and Daily It's So Kos I Say So should get some of the fine proceeds. That will show those damn Fascist ideologues on the right. If only King George Bush II the Perverse or Prince Cheney the Unspeakable had thought of this and implemented it! But then President Bush's faith-based initiatives were bad and President Obama's faith-based initiatives are good. Maybe there is an ideological difference. Or maybe President Obama is the physical embodiment of faith.

What are facts, anyway? Obviously, it a true fact that man made global warming is happening and that the consequences will be draconian unless we cease spewing toxic CO₂ into the atmosphere – now, Damnit! Saint Al the Gored is correct, there is no legitimate scientific dispute and civilization as we know it will fall into oblivion if he can't buy another mansion or jet aircraft out of the (non) profits from cap and trade transactions. Once upon a time, more physicians preferred camels to any other, well, I suppose, cigarette.

Back when the Health Control Law was passed and signed, and only some of Santa Claus' elves (and maybe Rudolph) at the North Pole had read and understood it, there were no "facts;" only opinions based, quite likely, on the same reliable sources as those upon which Attorney General Holder relied in criticizing the new Arizona immigration statute – television and newspaper reports by folks who hadn't bothered to read it either and who, I might suggest, were among the ideologically blessed. Responsible officials can't be bothered with the trash spouted by those of impure ideology or worse. Get thee behind me, Satan, Fox, Beck, Palin, Rush et al! Make way for The New York Times and MSNBC! Quick! Before they die.

Still, if there were to be an official governmental arbitrator of what is fact and what is falsehood, it would greatly simplify life. The entire problem of separating the wheat from the chaff would be pushed off on someone else and hidden behind one of Douglas Adams' SEP (Somebody Else's Problem) fields where nobody could see it. The SEP field theory was noted in the second (or was it the third?) of Adams' five book Hitchhiker's Guide to the Galaxy trilogy. I have read that "Adams had a keen interest in the effects of drinking on intelligent people, and discovered that you can get past writers block by drinking vast amounts of alcohol, blacking out, and waking up in a cow field." I don't believe it for a moment and hence it is not a real fact.

Nevertheless, despite the fact that alcohol is inexpensive and there are plenty of cow pastures here, I have implemented a remotely similar strategy at home. We have four dogs. Two of them are too puppy-like and carefree to worry, and I don't like doing it myself. So, I have delegated all responsibility for worry to the two pups who seem best fitted to the task. Getting a lobotomy might serve the same purpose, but might not be covered by my health insurance: it might be covered under the new Health Control Law, but I don't know and need a Department of Information to tell me. Regardless of that, the pup delegation costs absolutely nothing. I have denied them internet access, imbuing them with a degree of purity generally lacking in others. Now, I can be happy and carefree. Something similar would, in my carefree state of mind, be superior to Mr. (Dr.) Taylor's offering, and might also encourage the adoption of unwanted puppies otherwise doomed to execution. That, at least, seems worthwhile.

________________________
^*When I was in undergraduate school eons ago, people with medical degrees were referred to as Doctor. It was considered snobbish for a PhD to refer to himself as "Doctor" because all of his peers also had that degree. Even lowly instructors and the post-doc teaching assistants who handled small seminars for the Big Man had them. Students absorbed this perception, and Professor Doctor Smith was referred to simply as Mr. Smith. Alas, that was then and this is now, but I still adhere to the notion.

If There is No Real God, How About an Artificial One?

First Published at Blog Critics on May 4, 2010

We need at least to conduct ourselves as though there were one.

Judeo-Christian religion in the United States is far from dead, but other religions are increasingly viable. In addition to Radical Islam ("eighty percent of the prisoners who 'find faith' in prison convert to Islam,"  generally of the radical kind), Leftism, Multiculturalism, Progressivism and the like seem pervasive. Even the Church of Global Warming, while modestly weakened, remains sufficiently vibrant that absolution may yet be had by buying dispensations. Mere ideologies perhaps, aside from Radical Islam, but their adherents bring religious passion to their dogmas and consider it churlish, if not criminal, to question them. While the Judeo-Christian religions remain vibrant, the others seem not only indignant but overtly hostile; there is at least a chance that they will prevail, if not soon then eventually. As suggested below, that would be unfortunate.

Douglas Adams, author of Hitchhiker's Guide to the Galaxy and other neat stuff, died in 2001. Although his memorial service was held at the Anglican St. Martin in the Fields Church, he had described himself as a "radical atheist" in order not to be confused with mere Agnostics. Adams did not "believe" in God, nor did he "believe" that there is no God. He was "convinced" that there is no God, and that is rather different. Like Adams, I don't "believe" one way or the other; unlike Adams, I am not "convinced" that there is no God and consider myself an Agnostic rather than an Atheist. I am also partially color blind and can't distinguish various color shades. I understand that most others can do so and I act on the assumption that the various shades exist. I accept that my sensory perceptions as to such matters may be inferior to theirs and also that there is no cure; stuck is stuck. Somewhat analogously, other people may have superior ability to sense the divine than I do; so be it  There is nothing I can do about that either; again, stuck is stuck. Although in some ways I behave as though they may be right, just "going along to get along" wouldn't work because belief cannot be faked; there is also the problem that there are very many divergent perceptions of the divine. It seems unlikely that all of them are right but it is quite possible that all of them are wrong.

In a 1998 speech, Adams propounded a fascinating question, "Is There an Artificial God?" He suggested that there is and cited an example from Bali.

Now, rice is an incredibly efficient food and you can grow an awful lot in a relatively small space, but it's hugely labour intensive and requires a lot of very, very precise co-operation amongst the people there, particularly when you have a large population on a small island needing to bring its harvest in. People now looking at the way in which rice agriculture works in Bali are rather puzzled by it because it is intensely religious. The society of Bali is such that religion permeates every single aspect of it and everybody in that culture is very, very carefully defined in terms of who they are, what their status is and what their role in life is. It's all defined by the church; they have very peculiar calendars and a very peculiar set of customs and rituals, which are precisely defined and, oddly enough, they are fantastically good at being very, very productive with their rice harvest. In the 70s, people came in and noticed that the rice harvest was determined by the temple calendar. It seemed to be totally nonsensical, so they said, 'Get rid of all this, we can help you make your rice harvest much, much more productive than even you're, very successfully, doing at the moment. Use these pesticides, use this calendar, do this, that and the other'. So they started and for two or three years the rice production went up enormously, but the whole predator/prey/pest balance went completely out of kilter. Very shortly, the rice harvest plummeted again and the Balinese said, 'Screw it, we're going back to the temple calendar!' and they reinstated what was there before and it all worked again absolutely perfectly. It's all very well to say that basing the rice harvest on something as irrational and meaningless as a religion is stupid - they should be able to work it out more logically than that, but they might just as well say to us, 'Your culture and society works on the basis of money and that's a fiction, so why don't you get rid of it and just co-operate with each other' - we know it's not going to work!

So, there is a sense in which we build meta-systems above ourselves to fill in the space that we previously populated with an entity that was supposed to be the intentional designer. . . and create one and then allow ourselves to behave as if there was one, all sorts of things begin to happen that otherwise wouldn't happen.

Let's assume for purposes of argument that Adams was correct. Then comes the tricky bit: what sort of artificial God should there be and how should we go about behaving as though He exists and cares about what we do and don't do? Egocentric to raise such questions? Perhaps, but if an actual God made us and is "good," He surely included a healthy dose of ego as well as lots of less desirable attributes. If He exists, I hope that he will not be much offended by the process.

For devout Christians and Jews, these questions probably needn't be answered; their beliefs suffice. Adherents to Radical Islam, the "religion of peace," probably don't need to answer them either, but it might be useful for all of us if, while taking qat breaks from suicide bombings, honor killings and beheadings, they were to give some thought to the matter.

Since Christians long ago ceased burning witches and heretics at the stake and now generally abjure the killing of Jews for having crucified Jesus and thereby kick-starting Christianity, the God of the New Testament might be a good model for an artificial God. The United States, like the rice farmers in Bali, did pretty well until He was shoved to the side by multiculturalism and became decreasingly relevant to the behavior of modern American society. Multiculturalism is not a very propitious God.

Here is what I make of it all. We should act on the assumption that the United States' Judeo-Christian heritage is good rather than bad, that it merits our determined defense and that there are objective standards of right and wrong. Like the rice farmers in Bali, some of us may not know exactly where the standards came from or why, and there is less than unanimous agreement at the periphery as to what they are. Still, I think we can agree that the basics do exist, that they work and that we ignore them at our national peril. It strikes me as plausible that the basic moral teachings of traditional religions which succeeded over the centuries did so because their basic principles worked and were grounded in the nature of man. A variation on a principal teaching of Christianity, the Golden Rule, was articulated by Socrates and many others long before Jesus came on the scene, and if generally observed, it works. The concept of individual charity toward those less fortunate has roots at least as deep, and it would be a good thing if there were enough of it for the government to curtail its own politically directed, profligate and often socially disastrous efforts. My frame of reference, lest there be any doubt, is countries which, like the United States, have their roots in the Judeo-Christian religion but don't enforce an official state religion. Other countries might fare better than at present under such an Artificial God, but I lack sufficient familiarity with them to offer even remotely useful suggestions.

There must be tolerance toward those who disagree, within limits: those who wish to celebrate Saturnalia, or nothing at all, rather than Christmas, for example. That seems very unlikely to harm others and they should be free to do as they wish; that tolerance must be reciprocated if it is to persist. For example, those who wish their non-belief to be tolerated must learn to tolerate such things as Christmas trees, Easter bunnies and the public display of the Ten Commandments. I understand that in some communities, Jews work overtime during Christian holidays so that Christians can be free of secular obligations; I also understand that in some communities this kindness is reciprocated. Those who consider abortion an abomination per se should act in accordance with their views; however, they should not force others, on pain of criminal prosecution or private violence, to adhere to those views; neither should they be required to support, financially or otherwise, abortion or those who advocate abortion.

Kipling's In the Neolithic Age offers some useful insights.There, he essentially channeled a tribal singer from the Neolithic age, who recounted how he had murdered a rival who didn't approve of his songs and a "mammothistic etcher" whose art he didn't care for, because he knew his own work was right and theirs was wrong. His totem saw the shame, and in a vision of the night appeared to him, commenting that "there are nine and sixty ways of constructing tribal lays, and every single one of them is right." Then, the silence closed upon him and he awoke in a modern age, once again a poet.

Still the world is wondrous large,--seven seas from marge to marge,--
And it holds a vast of various kinds of man;
And the wildest dreams of Kew are the facts of Khatmandhu,
And the crimes of Clapham chaste in Martaban.

Here's my wisdom for your use, as I learned it when the moose
And the reindeer roamed where Paris roars to-night: —
There are nine and sixty ways of constructing tribal lays,
And — every — single — one — of — them — is — right!

We are in danger of forfeiting much that heretofore made the United States what many of us wish she still were. If the descent is to be halted or possibly even reversed, we had better be careful. Mark Steyn recently wrote,

Every time I retail the latest indignity imposed upon the "citizen" by some or other Continental apparatchik, I receive e-mails from the heartland pointing out, with much reference to the Second Amendment, that it couldn’t happen here because Americans aren’t Euro-weenies. But nor were Euro-weenies once upon a time. Hayek . . . wrote with an immigrant’s eye on the Britain of 1944:

the virtues which are held less and less in esteem and which consequently become rarer are precisely those on which the British people justly prided themselves and in which they were generally agreed to excel. The virtues . . . were independence and self-reliance, individual initiative and local responsibility, the successful reliance on voluntary activity, noninterference with one’s neighbor and tolerance of the different and queer, respect for custom and tradition, and a healthy suspicion of power and authority.

Two-thirds of a century on, almost every item on the list has been abandoned. . . [T]he reflex response now to almost any passing inconvenience is to demand the government "do something," the cost to individual liberty be damned. . . As Europe demonstrates, a determined state can change the character of a people in the space of a generation or two. Look at what the Great Society did to the black family and imagine it applied to the general population: That’s what happened in Britain.

Regardless of whether there is an actual God and regardless of our views on the matter, we should behave as though there were one of the sort on whom our fundamental national character has long been based. Failure to do so has already led the United States down the road toward oblivion, and this process must be reversed. Whether that can or will happen remains to be seen, but with the resurgence of popular support for the basic principles upon which the nation was founded, there is reason for optimism.

Lunatics, Once Objects of Derision, Now Govern.

Our souls soles are now free to soar, but we must love and understand all critters great and small.

Many years ago, in a less enlightened age, some people entertained themselves by visiting lunatic asylums in Washington, D.C. and making fun of the inmates. It was a cruel and inhumane exercise. Things have changed dramatically for the better as we have evolved and lunatics are no longer confined. As a modest form of reparation, they govern us -- not from padded cells but from well appointed offices where they are accorded the great respect which, as the previously oppressed, is their due. Turn about, as even small children know, is fair play.

This article should greatly encourage all who recognize that even lunatics now need love and understanding.

SCOTLAND YARD has bowed to Islamic sensitivities and accepted that Muslims are entitled to throw shoes in ritual protest — which could have the unintended consequence of politicians or the police being hit.

* * *

The concession has already been taken up enthusiastically by Muslim demonstrators, who pelted Downing Street with shoes in protest at the Israeli bombing of Gaza last year.

Dozens of ski-boots and clogs were also hurled at the US consulate in Edinburgh in a related protest, in which three policemen sustained minor injuries.

Shoes, and soles in particular, are considered unclean. Although the point has not been clarified by the authorities, it is likely that pork chops may now be hurled peacefully in response.

Unintended consequences? Indisputably. In any civilized nation, there must be a presumption that people who hurl shoes and other projectiles in the direction of other people make heroic efforts to avoid hitting them, just as suicide bombers merely wish to express their political views and don't intend to harm others. Unintended adverse consequences certainly are not properly to be anticipated. That is true in many other contexts. For example, I myself from time stick my fingers deep into an operating food processor to unclog a mess and routinely experience the unintended consequences of having them mutilated. Boy, have I been surprised, as I well should be; every time I do it, I experience the same surprise at the consequences, which I certainly do not intend. To expect unintended bad things to happen whenever one tries to prepare a meal would be paranoid, and there is no rational basis for assuming irrational behavior of any type from an otherwise tame food processor.

Confederate soldiers during the U.S. Civil War (known to reprobates as the War of Northern Aggression), such as General Robert E. Lee, were clearly terrorists, just as it is clearly true that Islamic terrorism and Jihad don't exist. In this glorious age of enlightenment, all things must be considered within their proper and socially acceptable frames of reference. Otherwise, some really nice folks may be offended. Unfortunately, some seem not to have understood the memo and continue to view al-Qaeda as an enemy! Even President Obama, probably in an eminently forgettable Biden Moment, recently expressed fears that "nuclear terrorism poses a graver danger than the risk of war between nuclear nations." He specifically referenced al-Qaeda in this context, as did his Secretary of State, Ms. Clinton. On the other hand, perhaps the leaders of al-Qaeda and other so called terrorist/extremist groups have secretly converted to Methodism, in which case it is right and proper to refer to them as terrorists. If true, that would go far to explain current U.S. policy in the national security arena. In any event, feeble attempts such as this to revise history may slow but will not stop progress.

A few of the less perceptive ape-descended carbon based life forms here on Gaia may unfortunately disagree. However, I am confident that we can all cherish and adopt these great new principles befitting our post-modern age if only we reach an appropriate state of post-modern enlightenment.

When the new age of enlightenment dawns, and dawn in all glory it will, I fervently hope to see not only adherents of the Religion of Peace but all others evolve to new and higher plains from which we will all be permitted to hurl projectiles at each other in the peaceful exercise of free speech. All, and not just the favored few, must be given maximum latitude in acting out their heart-felt beliefs and animosities.

And this brings me to the real thrust of today's homily. There are many Neanderthals who want the United States and other imperialist international powers to force Iran to abandon the development of peaceful nuclear weapons with which to make a clear statement of her opinion of Israel, a highly reactionary and illegitimate state. Demonstrating the correctness of Iran's view, Israeli Prime Minister Binyamin Netanyahu recently demonized these peaceful efforts as an attempt to create "weapons of mass destruction!" He also manifested his continuing paranoia by again referencing the holocaust, a non-event. His drooling hatred was not hidden:

“The historical failure of the free world in facing the Nazi beast was in not confronting it when it could still be stopped," Netanyahu said, "today we witness the fire of the old-new hate, the hate of the Jews being spread by the regimes and organizations of radical Islam, spearheaded by Iran and its cohorts."

These fading and senile Neanderthals, and indeed the failed and failing nations they dominate, refuse to recognize that Iran has legitimate grievances against the rest of the world. She has suffered bravely through years of wicked oppression, and it is only right for her now to be allowed all of the freedom of expression she wishes.

Some are strangely prejudiced against the legitimate government of Iran and want her to just shut up. They are misguided and have been misled by the wicked imperialist efforts of the United States and her captive fascist media to foment rebellion so that imperialist countries can steal her patrimony. Iran rightly echoes the persuasive argument, "No Oil for Blood!" Despite the most oppressive efforts of the rulers of the world and their lackeys, the book is closing on the oppression of the Religion of Peace. It is high time for their soles to soar!

Court Orders FCC to Cease Exceeding its Statutory Authority

The decision may upset some big plans the FCC has for us

On April 6, 2010, a three judge panel of the Federal Court of Appeals for the District of Columbia Circuit held unanimously in Comcast Corporation v. FCC that the Federal Communications Commission (FCC) had over-stepped its statutory authority by attempting to regulate aspects of cable internet service not contemplated by statute. It has been suggested by an article in Cnet News that

Tuesday's decision could doom one of the signature initiatives of FCC Chairman Julius Genachowski, a Democrat. Last October, Genachowski announced plans to begin drafting a formal set of Net neutrality rules--even though Congress has not given the agency permission to begin.

It has also been suggested here that

The decision also has serious implications for the massive national broadband plan released by the FCC last month. The FCC needs clear authority to regulate broadband in order to push ahead with some its key recommendations, including a proposal to expand broadband by tapping the federal fund that subsidizes telephone service in poor and rural communities.

Probably so. Others have speculated that there may be additional impacts on communications, which is of course possible. On April 8^th the FCC nevertheless announced that it plans to move ahead on its broadband initiative "soon."

The FCC laid out its 2010 "broadband action agenda" without indicating how it will proceed in light of the court ruling. But the agency says it will ensure it has the legal authority it needs for its sweeping plan to increase broadband usage and Internet speeds.

Be that as it may, the Comcast decision itself will probably have little direct immediate impact on most of us any time soon, although it has some neat procedural twists and turns of the sort likely to tickle the fancies of attorneys. It also portends trouble for other currently hyperactive administrative agencies

A bit of background on the communications industry may be in order. As an attorney in private practice in Washington, D.C. from 1972 till 1996, I represented television stations across the country in their battles with the cable industry from the early 1970's until the Congress in 1984 essentially deregulated cable and left it up to local governments to regulate the rates charged cable customers. The full blown notion of net neutrality had not emerged while I was practicing law, so this article merely addresses some of the history of FCC regulation. Others are in a better position to speak of net neutrality and its potential impact on nearly all of us. Here is one such analysis, which I think makes well the point that regulation has its good and bad points; it is difficult to have one without the other.

When the industry was in its infancy, before I was born, there were radio stations which broadcast AM signals (FM came later) capable of being received at no charge by anyone with an appropriate receiver. Such radio stations were not common carriers, and had very different obligations than those imposed on common carriers, telephone companies, which made their services available by physical wires to customers who paid for the service. The various telephone companies were interconnected, also generally by physical wires, making long distance calls possible. The Communications Act of 1934 created the FCC, which was intended to deal with these quite different beasts.

Over the years, technology changed dramatically and the Communications Act was amended from time to time to take into account some but not all of the important changes. However, in some cases the technology changed too rapidly for statutory changes to keep pace. Consequently, the FCC tried to use its existing regulatory power to fill the void. Sometimes it did so wisely and sometimes not.

Although the first cable television systems were started in the 1940's, the industry advanced slowly until the 1970's, principally at first in places where over-the-air reception of television stations was difficult or impossible. Community Antenna Television Service (CATV) operators used more sophisticated and expensive receiving equipment than was feasible for individual households and delivered otherwise unavailable or marginal TV signals by wire to their subscribers. Although subscribers paid the CATV systems for this service, the CATV systems did not pay television stations for the "piracy" of their programming. As CATV became widespread, many broadcasters began to consider CATV an enemy and sought to have it regulated by the FCC. The catch phrase of the period was

it has long been known to thieves that if you can get something for nothing and then sell it, you can make a neat profit.

This may have been somewhat unfair, since CATV operators had their own costs of operation; however, it also made sense because when a CATV operator imported unlimited distant TV stations instead of or in addition to local stations, and/or substituted its own commercials for those broadcast by local TV stations, the audiences of the local stations were fragmented. Advertisers did not get the expected value for their money and the revenues of local stations dropped. Since the FCC had a statutory responsibility to foster local broadcasting, and since broadcast stations were required to broadcast some generally non-remunerative programming ("public affairs," which with the demise of the Fairness Doctrine morphed into profitable talk radio and its television counterpart) and otherwise to operate in the public interest, it was feared that the FCC could not meet its statutory responsibility and that public interest would thereby suffer. The FCC ultimately agreed and adopted "must carry" rules, "network non-duplication" rules and rules limiting the numbers of distant stations CATV operators could make available and the conditions under which they could do so.

In United States v. Southwestern Cable Co., 392 U.S. 157 (1968), as relied upon in many subsequent cases, the Supreme Court held that despite the absence of any specific statutory authority to regulate the CATV industry, the regulations in question were within the ancillary authority of the FCC because the FCC (a) had statutory authority to regulate television stations and (b) had demonstrated that the limited regulations imposed on the CATV industry were necessary in furtherance of its obligation to keep broadcast stations healthy so that it could regulate them "in the public interest." The FCC was required to meet both parts (a) and (b) of the test. As time marched on, CATV mutated into its present form, making substantial non-broadcast content available to subscribers, often at premium prices. The CATV industry was largely deregulated by the Congress in 1984, leaving rate regulation to be undertaken locally.

Under the Communications Act, the Court of Appeals for the D.C. Circuit has exclusive jurisdiction to entertain appeals from most FCC decisions as well as the decisions of most other federal administrative agencies. The process obviates intermediate proceedings at the Federal District Court level and decisions by the D.C. Circuit are appealed to the Supreme Court. Nearly always, acceptance of such appeals is discretionary with the Supreme Court through the certiorari process. Very few petitions for grant of a writ of certiorari are granted.

In Comcast Corporation v. FCC, decided on April 6, 2010, the D.C. Circuit held that the FCC had gone too far in attempting to regulate the cable internet services provided by Comcast. It rejected the FCC's argument that statements of Congressional policy as expressed in the Communications Act and elsewhere, in and of themselves, granted far reaching regulatory authority. That

policy statements alone cannot provide the basis for the Commission’s exercise of ancillary authority derives from the “axiomatic” principle that “administrative agencies may [act] only pursuant to authority delegated to them by Congress.” . . . Policy statements are just that—statements of policy. They are not delegations of regulatory authority. To be sure, statements of congressional policy can help delineate the contours of statutory authority. . . . When exercising its Title II authority to set “just and reasonable” rates for phone service, . . . , or its Title III authority to grant broadcasting licenses in the “public convenience, interest, or necessity,” . . . , or its Title VI authority to prohibit “unfair methods of competition” by cable operators that limit consumer access to certain types of television programming, . . . , the Commission must bear in mind section 1’s objective of “Nation-wide . . . wire and radio communication service . . . at reasonable charges,”. . . . In all three examples, section 1’s policy goal undoubtedly illuminates the scope of the “authority delegated to [the Commission] by Congress,” . . . — though it is Titles II, III, and VI that do the delegating. So too with respect to the Commission’s section 4(i) ancillary authority. Although policy statements may illuminate that authority, it is Title II, III, or VI to which the authority must ultimately be ancillary. (internal citations omitted)

As the court observed, the FCC did not argue

that its regulation of an activity over which it concededly has no express statutory authority (here Comcast’s Internet management practices) is necessary to further its regulation of activities over which it does have express statutory authority (here, for example, Comcast’s management of its Title VI cable services). (emphasis added)

Rather, the FCC argued that it had all the authority it needed by virtue of Congressional expressions of policy. The D.C. Circuit disagreed, stating that the FCC's position was not only inconsistent with judicial precedent but that "if accepted it would virtually free the Commission from its congressional tether," opening the door for the FCC to do pretty much anything that pleased it.

The final paragraph of the decision should give the FCC and other now hyperactive administrative agencies some pause:

It is true that “Congress gave the [Commission] broad and adaptable jurisdiction so that it can keep pace with rapidly evolving communications technologies.” . . . . It is also true that “[t]he Internet is such a technology,” indeed, “arguably the most important innovation in communications in a generation,” Yet notwithstanding the “difficult regulatory problem of rapid technological change” posed by the communications industry, “the allowance of wide latitude in the exercise of delegated powers is not the equivalent of untrammeled freedom to regulate activities over which the statute fails to confer . . . Commission authority.” Because the Commission has failed to tie its assertion of ancillary authority over Comcast’s Internet service to any “statutorily mandated responsibility,” we grant the petition for review and vacate the Order.

The caution against impermissible agency intrusions to deal with rapid technological advances which the Congress has not got around to regulating should apply with even greater emphasis to impermissible agency intrusions into areas into which the Congress has been pressed by the current administration to intrude but has thus far declined the invitation.

Translated Text of Honduras Accord

This is a Google translation of the Honduras Accord, signed on 30 October 2009

PREAMBLE

We Honduran citizens, men and women convinced of the need to strengthen the rule of law under our Constitution and laws of our Republic, deepen democracy and ensure a climate of peace and tranquility to our people, we had a strong and frank political dialogue process to find a peaceful and negotiated solution to the crisis our country has been plunged in recent months.

As a result of this dialogue that sanity has prevailed, tolerance and the patriotic spirit of all its participants, we drafted a political settlement that will restore the peaceful coexistence of citizens and ensure a climate conducive to democratic governance in our country. This agreement, we are sure, will mark the path to peace, reconciliation and democracy, urgent demands of Honduran society.

The conclusion of this agreement demonstrates once again that the Hondurans are able to successfully practice dialogue and thank him and through it, achieve the lofty goals that society demands and the nation requires of us.

Under this, we have agreed to the following agreements.

1 .- ON THE GOVERNMENT OF NATIONAL UNITY AND RECONCILIATION
To achieve reconciliation and strengthen democracy under a Government of Unity and National Reconciliation, composed of representatives of various political parties and social organizations, recognized for their ability, honesty, competence and willingness to talk, who will occupy the various secretaries and deputy secretaries, and other state agencies in accordance with article 246 and following of the Constitution of the Republic of Honduras.

Given that prior to the June 28, the executive branch had sent to Congress the draft National General Budget of Revenue and Expenditures, in accordance with the provisions of Article 205, paragraph 32 of the Constitution of the Republic of Honduras, the government of national unity and reconciliation, respect and operate on the basis of the general budget, recently approved by Congress for fiscal year 2009.

2 - ON THE WAIVER to convene a National Constituent Assembly Amend the Constitution AS unreformable.

Fundamental. To achieve reconciliation and strengthen democracy, we reiterate our respect for the Constitution and laws of our country, refraining from making appeals to the convocation of a Constituent National Assembly, directly or indirectly and also giving to promote or support any referendum with the aim of reforming the constitution to allow presidential reelection, modify the form of government or contravene any of the articles of our Constitution irrevocable.

In particular, we will not make public statements or exert any influence inconsistent with Articles 5, 239; 373 and 373 of the Constitution of the Republic of Honduras, and strongly reject any expression contrary to the spirit of such items and special law regulates the referendum and the plebiscite.

3 - ON THE GENERAL ELECTION AND THE TRANSFER OF GOVERNMENT

To achieve reconciliation and strengthen democracy, we reiterate that, in accordance with Articles 44 and 51 of the Constitution of the Republic of Honduras, the vote is universal, compulsory, equal, direct, free and secret, and for the Supreme Electoral Tribunal with full autonomy and independence, control and implement all related to the acts and election processes.

Also make an appeal to the Honduran people to participate peacefully in the next general election and avoid all demonstrations to oppose the election or its outcome, or promoting the insurrection, unlawful conduct, civil disobedience or other acts that could produce violent confrontations or breaches of the law.

In order to demonstrate the transparency and legitimacy of the electoral process, we urge the Supreme Electoral Tribunal which authorizes and certifies the presence of international missions from now until the declaration of the result of general elections and the hand over to take place in accordance with Article 237 of the Constitution of the Republic, 27 January 2010.

4 - ON THE ARMED FORCES AND NATIONAL POLICE

To achieve reconciliation and strengthen democracy, we reaffirm our willingness to abide in all respects Article 272 of the Constitution of the Republic of Honduras, in accordance with which the Armed Forces, are available to the Supreme Electoral Tribunal from a month before the general elections, in order to guarantee the free exercise of suffrage, custody, transparent and monitoring of election materials and other aspects of process safety. We reaffirm the professional, apolitical, obedient and not deliberating the Honduran Armed Forces. Similarly, we agree that the national police must adhere strictly to what is prescribed special legislation.

5 - THE EXECUTIVE

To achieve reconciliation and strengthening democracy in the spirit of the themes of the proposed San Jose Accord, both negotiating committees have decided, respectfully, that the National Congress as an institutional expression of popular sovereignty, using its powers, in consultation with relevant bodies to consider as the Supreme Court and in accordance with law, resolve as appropriate in respect of "to roll back the ownership of the executive branch to its status prior to 28 June until the end of the current governmental period on 27 January 2010.

The decision to accept the Congress should provide the basis for achieving social peace, political peace and governance demanded by society and the country needs.

6 .- VERIFICATION ON THE COMMISSION AND THE COMMISSION ON THE TRUTH

To achieve reconciliation and strengthen democracy, we have the creation of a Credentials Committee of the commitments made in this Agreement, and those derived from it, coordinated by the Organization of American States (OAS).The commission shall consist of two members of the international community and two members of the national community, the latter shall be chosen one by each of the parties.

The Credentials Committee will be responsible for attesting to the strict compliance with all points of this agreement and will receive for it the full cooperation of the Honduran public institutions.

Violation of any of the commitments contained in this Agreement, established and declared by the Credentials Committee, will produce the activation of measures developed by the Commission to the offender or offenders.

To clarify the events before and after 28 June 2009, it will also establish a Truth Commission to identify the actions that led to the current situation and to provide the people of Honduras elements to prevent these acts were repeated in the future.
This Dialogue Commission recommends that the next government, as part of a national consensus, constitutes the Truth Commission in the first half of 2010.

7. ON NORMALIZATION OF RELATIONS OF THE REPUBLIC OF HONDURAS TO THE INTERNATIONAL COMMUNITY

By committing to faithfully fulfill their commitments in this Agreement, we respectfully request the immediate revocation of those measures or sanctions taken bilaterally or multilaterally, that somehow affect reintegration and full participation of the Republic of Honduras in the international community and access to all forms of cooperation. We call upon the international community to relaunch as soon as possible the current projects of cooperation with the Republic of Honduras and continue with the negotiation of future. In particular, we urge that, at the request of the competent authority becomes effective international cooperation that is necessary and timely for the Verification Commission and the Truth Commission in the future to ensure the faithful implementation and monitoring of the commitments made in this Agreement.

8. FINAL PROVISIONS

Any differences in interpretation or application of this Agreement will be submitted to the Credentials Committee, shall determine, in keeping with the provisions of the Constitution of the Republic of Honduras and current legislation and by an authentic interpretation of this Agreement, the solution appropriate.
Taking into account this Agreement is the product of understanding and brotherhood among Hondurans, strongly request the international community to respect the sovereignty of the Republic of Honduras, and fully observe the principle enshrined in the Charter of the United Nations not interference in the internal affairs of other States.

9 .- SCHEDULE OF COMPLIANCE AGREEMENTS

Given the entry into force immediately after this agreement after your subscription date, and in order to clarify the time of implementation and monitoring of commitments made to achieve national reconciliation, agree to the following schedule of compliance.

* October 30, 2009
1 .- Subscription and entry into force of the agreement.
2 .- formal delivery of the agreements to Congress for the purpose of Section 5, the "Executive".
November 2, 2009
1 .- Establishment of the Credentials Committee.
* From the signing of this Agreement and no later than November 5.
1 .- Formation and installation of the Government of Unity and National Reconciliation.
* January 27, 2010
1 .- Celebrating hand over of government.
* First half of 2010
1 .- Establishment of a Truth Commission.

10 .- FINAL DECLARATION

In the name of reconciliation and the patriotic spirit that has brought us together at the negotiating table, we undertake to comply in good faith under this Agreement and what you as a result.

The world is witness to this demonstration of unity and peace, which commits us our civic duty, and patriotic devotion. Together, we shall demonstrate our courage and resolve to strengthen the rule of law and build a tolerant, pluralist and democratic.
We signed this Agreement in Tegucigalpa, Honduras, on 30 October 2009.

11 .- THANKS

We take this opportunity to thank the support and the good offices of the international community, especially the Organization of American States and its Secretary General Jose Miguel Insulza, the Missions of Foreign Ministers of the Hemisphere, the president of Costa Rica, Oscar Arias Sanchez, the final government of the United States, its President Barack Obama and his Secretary of State Hillary Clinton.

12 .- ON THE ENTRY INTO FORCE OF THE AGREEMENT TEGUCIGALPA / SAN JOSE
For internal purposes, the agreement takes full effect after its signing.
For purposes of protocol and ceremonial, will be held a public subscription on 2 November 2009.

Tegucigalpa Central District Municipality, 30 October 2009.

The Yale University Press and a Book about Cartoons

First published on Blog Critics on 19 October 2009

Refusal to reprint dastardly cartoons offensive to Islam was a giant step forward for free speech.

The Yale University Press is dedicated to principles of independence, academic freedom and scholarship; it adheres steadfastly to those principles without fear or favor; without regard to whether its actions cause anger, adverse comment or praise. Its honorable decision to publish The Cartoons That Shook the World minus a reproduction of the actual cartoons demonstrates YUP's fearless adherence to its principles.

YUP is to be commended for its willingness to court popular criticism. Few publishers of significance would be willing to risk outrage of the sort engendered by publication of only a bowdlerized version of The cartoons book. In an August 14, 2009 press release announcing its decision, YUP modestly declined to acknowledge that its courageous goal was to stimulate such criticism and thereby to encourage the sort of freedom of expression it well knew would be directed against it. Instead, it took the much disputed position that its decision was made to promote public safety.

After careful consideration, the Press has declined to reproduce the September 30, 2005, Jyllands-Posten newspaper page that included the cartoons, as well as other depictions of the Prophet Muhammad that the author proposed to include.

The original publication in 2005 of the cartoons depicting the Prophet Muhammad led to a series of violent incidents, and repeated violent acts have followed republication as recently as June 2008, when a car bomb exploded outside the Danish embassy in Islamabad, Pakistan, killing eight people and injuring at least thirty. The next day Al-Qaeda claimed responsibility for the bombing, calling it revenge for the "insulting drawings."

Republication of the cartoons—not just the original printing of them in Denmark—has repeatedly resulted in violence around the world. More than two hundred lives have been lost, and hundreds more have been injured. It is noteworthy that, at the time of the initial crisis over the cartoons in 2005–2006, the New York Times, Washington Post, and Boston Globe declined to print them, as did every major newspaper in the United Kingdom.

Despite this self-effacing explanation, it should be obvious that YUP's motivation had nothing to do with public safety; the chances of violent attacks against YUP or even Yale University as a whole resulting from publication of the already widely seen three year old cartoons in a scholarly volume, likely to be read by few, are laughably remote. Any suggestion that the copious free publicity for YUP certain to result from its decision was a motivating factor must also be rejected. YUP does not need publicity, good or bad. It is already one of the top thousand or so academic book publishing companies in the United States and would be shocked at the prospect of massive demand for one of its learned books. YUP fears the publication of a best seller as the gods fear Sarah Palin. Even more ludicrous is the mean-spirited charge that Yale University was motivated by a desire for financial assistance from such Moslem countries as Saudi Arabia. YUP doubtless has plenty of money, and the thought that Yale University might stoop to such mercenary thoughts is unthinkable.

These nonsensical theses must be put aside. YUP was merely following cherished Yale University Guidelines, known to and respected by all members of the university community.

[T]he history of intellectual growth and discovery clearly demonstrates the need for unfettered freedom, the right to think the unthinkable, discuss the unmentionable, and challenge the unchallengeable.

YUP courageously desired to subject itself to violent criticism from the proponents of free speech precisely to encourage such attacks. And vehement attacks there have been. Here is an article reporting and elaborating upon some of them.

Cary Nelson, the President of American Association of University Professors (AAUP), quickly responded on August 13 with a biting letter, "We do not negotiate with terrorists. We just accede to their anticipated demands." Yale's action struck the AAUP as creating much more harm. Yale violated "an author's academic freedom and [damaged] the reputation of the press and the university." These actions would impact "other university presses and publication venues" and "[had] the potential to encourage broader censorship of speech by faculty members or other authors."

It goes on and on, as do many other such articles; indeed, they continue to this day, more than two months after the initial announcement.

How better to encourage "unfettered freedom," thoughts of the "unthinkable", mention of the "unmentionable," and challenges to the "unchallengeable?" Indeed, how better to boldly go where no man had dared to boldly go before? By actively promoting a heretofore unthinkable freedom to suggest that YUP may have had some ulterior motive or, indeed, even that it was strangely misguided, was a truly courageous and brilliant exercise in generous self sacrifice of a type, magnitude and generosity rarely seen. Sadly, "the Yale faculty has mostly yawned."

It is, nevertheless regrettable that some even within the enlightened Yale Community were taken in by YUP's heroic hoax decision, and blamed it on cowardice. One undergraduate commendably proclaimed in the Yalie Daily that there are legitimate limits to freedom of speech.

While most of us would defend the free-speech rights of "birthers" or Klansmen or fraternity misogynists, we defend those rights in a manner that makes clear we don’t want to see those rights exercised in violation of our sensibilities and beliefs. Some ideas are not welcome at Yale, nor should they be.(emphasis added)

I cannot agree with that too much! Indeed, it warms the very cockles of my heart and sole (sic) to learn that Yale is a far better and more liberal place than when I floundered around intellectually there as an undergraduate more than forty years ago, and that only the right to exercise freedoms which do not offend is now desired.

Despite this entirely reasonable statement of principle, doubtless taught by the illustrious academics at Yale, the author attributed the YUP decision to fear, and expressed the odd view that

I would be prouder to belong to a university whose officials censored a book because of what they believed in, and not because of what they feared.

But, as demonstrated above, fear had nothing to do with YUP's selfless and productive decision. Voluntarily going into harm's way, by encouraging attacks on one's adherence to noble principle is not inspired by fear. It is inspired by courage and willingness to suffer the adverse consequences of one's actions. Lux et Vomitus Lux et Veritas! -- a motto now engraved on the hearts of all Yalies in Latin, Arabic, and also for the moment in Hebrew.

Robert E. Lee -- A Remembrance

There are and have been few like him.

General Robert E. Lee died one hundred and thirty-nine years ago on October 12, 1870 (now celebrated as Columbus Day) at the age of sixty-three. We, as a nation, have done with heroes and few remember him. The anniversary of his death will likely go generally unnoticed and unremarked upon. Yet he inspired a nation, or at least a fledgling nation, the Confederate States of America. Those who reminisce about him do so because of his devotion to honor, duty, integrity, for his compassion and for his wisdom. He had those now sadly rare qualities in rare abundance; although I (obviously) never knew him, I miss the likes of him today. When I read a news story dealing with our congresscritters, our president, or His administration, I scratch my balding head and wonder what happened.

The anniversary of General Lee's death having been called to my attention by an article in the Canada Free Press, I read again Rod Cragg's Robert E. Lee, General, A commitment to Valor. I could not find a link to the book on Amazon or even on Google, but somehow I had bought a copy at a used book store in rural Panamá. This article is largely based on it. This song is about General Lee's life.

General Lee's father, "Light-Horse Harry Lee," distinguished himself as a cavalry commander in the Continental Army during the American Revolution. Graduated from the U.S. Military Academy at West Point in 1829, Robert E. Lee eventually rose to the rank of Colonel as commander of the U.S. Army's Texas Department in 1860. Although he considered slavery a "moral and political evil," he declined command of U.S. forces when Virginia seceded and resigned from the U.S. Army to take command of Virginia's military forces. He felt that it was his duty to do so; his sense of honor compelled him. "I did only what my duty demanded; I could have taken no other course without dishonor." He valued honor highly, and because of it chose to fight on behalf of his home, Virginia, rather than for the Union. On April 20, 1861, he wrote to the Secretary of War:

Sir, I have the honor to tender my resignation of my command as colonel of the First Regiment of Cavalry.

Very respectfully your obedient servant,
R.E. Lee, Colonel First Cavalry

In a letter to General Winfield Scott, Commanding, United States Army, Lee wrote on 20 April 1861,

General: Since my interview with you on the 18th instant, I have felt that I ought not longer retain my commission in the army. I therefore tender my resignation, which I request you will recommend for acceptance. It would have been presented at once but for the struggle it has caused me to separate myself from a service to which I have devoted the best years of my life, and all the ability I possessed.

During the whole of that time -- more than a quarter of a century-- I have experienced nothing but kindness from my superiors, and the most cordial friendship from my comrades. To no one, General, have I been as much indebted as to yourself, for uniform kindness and consideration, and it has always been my ardent desire to merit your approbation. I shall carry to the grave the most grateful recollections of your kind consideration, and your name and fame will always be dear to me.

Save in defence of my native state, I never desire again to draw my sword. Be pleased to accept my most earnest wishes for the continuance of your happiness and prosperity, and believe me, most truly yours,

R.E. Lee.

When a substantial number of cadets at the U.S. Military Academy left to join the Confederate Army at the outbreak of the war, a special retreat ceremony was held at West Point, and Dixie is said to have been played in their honor.

Following many military successes and some defeats, Lee was promoted to General-in-Chief of all Confederate armies in 1865. Colonel Ives, an officer who served on General Lee's staff, wrote "His name might be audacity. He will take more desperate chances, and take them quicker than any other general in this country, North or South." Another wrote, "His soldiers reverenced him and had unbounded confidence in him, for he shared all their privations."

General Lee was compelled to surrender to General Grant at Appomattox Virginia on April 9, 1865. A Northern officer who observed him at Appomattox wrote, "In manner, [Lee was] grave and dignified. . . which gave him the air of a man who kept his pride to the last." A private soldier who had served with General Lee throughout the war wrote,

As Lee came riding alone into Richmond [after his surrender], his old followers immediately recognized him and followed him to his home where, with uncovered heads, they saw him to his door. Then they silently dispersed.

Later that year, he wrote to an English correspondent who had offered a place to escape the destruction of Virginia following the war. He said, "I cannot desert my native state in the hour of her adversity. I must abide by her fortunes, and share her fate."

There are many quotations from General Lee. Here is one of my favorites: "Never do a wrong thing to make a friend or to keep one; the man who requires you to do is dearly purchased at a sacrifice."

Here is the text of General Orders No. 9, HQ, Army of Northern Virginia, Appomattox Courthouse, April 10, 1865:

After four years' arduous service, marked by unsurpassed courage and fortitude, the Army of Northern Virginia has been compelled to yield to overwhelming numbers and resources.

I need not tell the survivors of so many hard fought battles who have remained steadfast to the last, that I have consented to this result from no distrust of them, but feeling that valor and devotion could accomplish nothing that could compensate for the loss which would have attended the continuation of the contest, I have determined to avoid the useless sacrifice of those whose past services have endeared them to their countrymen. You will take with you the satisfaction that proceeds from the consciousness of duty faithfully performed, and I earnestly pray that a merciful God may extend to you His blessing and protection. With an increasing admiration of your constancy and devotion to your country, and a grateful remembrance of your kind and generous consideration of myself, I bid you an affectionate farewell.

Robert E. Lee, General

To compare General Lee with any living person of note would be an exercise in futility. He was a man perhaps unique to his time, no politician, and the world in which General Lee lived was vastly different from the world in which we now live. Any comparison would be as pointless as it would be futile. Still, General Lee's sense of honor and its necessary adjunct, integrity, stand out as remarkable, and both qualities are sadly missing from many of those who now strut on the world stage. We should perhaps spend a moment to reflect on the character of General Lee in evaluating those who now have become our leaders; I am afraid that nearly all of them would suffer from the comparison.