Proposition 8 Held Unconstitutional- What’s Next?

A three judge panel of the 9th Circuit Court of Appeals today held 2-1 that California Proposition 8 is unconstitutional. The case was decided on very narrow grounds, and only applies in California. Basically, the Proposition took away the marriage designation to about 18,000 couples who were married during the time it was legal for gay couples to marry in California, but left all the other rights of marriage for them intact.

It will certainly be appealed, ether to the 9th Circuit en banc, or to the US Supreme Court. The opinion is crafted so narrowly that the Supreme Court may actually pass on hearing the appeal. If not, and they hear the case, there is no telling what way they might rule. Due to that very narrow ruling by the 9th Circuit, the holding will probably be quite a narrow ruling as well, whether it upholds or overrules the 9th Circuit panel.

Predictions concerning the Supreme Court’s holdings on cases such as this generally are about as accurate as predicting Superbowl winners at the start of football season, or predicting the weather more than a week out. The best advice…stay tuned!

Supreme Court GPS Ruling

Today, the Supreme Court in a unanimous vote, ruled that police must obtain a warrant before attaching a GPS tracker to a suspect’s vehicle. This is one of the few decisions in quite a while that hasn’t reduced rights under the Fourth Amendment. It is also one of the first major cases testing the constitutionality of a digital technology in this way.

What will the ramifications be? It’s easy to speculate one way or the other, but here are a couple of thoughts concerning the ruling. A former police officer friend of mine pointed out that good old helicopters and unmarked cars still work pretty well for the police. Even here in the neighborhood of Silicon Valley, our law enforcement people still use these lower tech methods.

Another individual commented that police can still track suspects via the GPS in smartphones. That’s true, but in that case, a citizen can always turn off their smartphone and retain some control of knowledge of their whereabouts…unlike a GPS unit secreted under their car.

Here’s a third thought…not right on point for this case, but related. What about the use of police dogs to sniff for drugs in students’ private cars while parked at school?

As always, there will be unintended consequences flowing from this ruling. Even with the fine minds that sit at the Supreme Court considering all they can, there always are!

The Netizens That Roared

Yesterday, we saw quite an uproar over SOPA and PIPA, and watched as a number of supporters of the bills in Congress either switched sides or walked back from the bills.

Apparently, Google’s petition against the bills got 4-plus million signatures, and there were several other petitions online that also picked up large numbers. These, in combination with many sites going dark, have caused the wheels to come off the two bills, and it’s one of Hollywood’s few losses ever in Washington.

Opposition to the bills appears to cross liberal and conservative lines. I don’t think people are seriously opposed to stopping piracy at all, but the blunt force approach of this bill was just too much. It has been noted that a person could actually be prosecuted and convicted, and get one more year of jail time for downloading a Michael Jackson song than the doctor that killed him has been sentenced to! My objection is that the enforcement in the bills is similar to a private attorney general action in that a content provider could get a court order and close down a site, with no ability to have a day in court, present evidence, or appeal. The site is just out of business, even due to a link posted by a third party on the site. (This is also why the American Bar Association opposed the bills.)

It’s not hard to predict that these bills in another form will reappear and start winging their way through Congress again. Let’s hope this time that Hollywood will agree to meet with the tech and web folks, and craft something that will work on piracy, but not cause the wholesale destruction of free speech rights on the web.

The Supreme Court & Broadcast Decency

This week, the Supreme Court heard arguments in consolidated cases concerning the FCC’s regulation of decency. Chief Justice Roberts (as the only justice with young children) remarked that “All we are asking for, what the government is asking for, is a few channels where … they are not going to hear the S-word, the F-word, they are not going to see nudity.”

Justice Kagen expressed concern that the enforcement is inconsistent, pointing out the FCC opted not to fine ABC-TV for airing the expletive-laden movie “Saving Private Ryan” uncut. “It’s like nobody can use dirty words or nudity except for Steven Spielberg,” she commented.

Justice Stephen Breyer suggested the Court could look at the case narrowly and not strike down all of the FCC’s rules. “Does this case in front of us really call for the earthshaking decision that you all have argued for,” he asked ABC-TV attorney Seth Waxman.
While it’s always a roll of the dice to try to predict what the Supreme Court will do in a case- and we won’t see a decision in this one until likely the end of the term this summer, I believe Justice Breyer’s comment probably points to how the decision will come down. This court won’t be willing to throw out the decency rules wholesale, no matter that broadcasters have correctly argued that there are so many alternatives that decency policing is unnecessary. I predict that it will be a narrow holding, possibly setting up different guidelines for radio and television. We’ll know if I’m correct in July!

If Corporations Are People, People Should Get Corp. Benefits

Since the Citizens United decision by the US Supreme Court last January, corporations have had their ‘corporate personhood’ further extended with regards to political contributions. This has dramatically opened the corporate coffers for politicians, as has been written about at great length pro and con by analysts, and it is not the purpose of this to revisit or amplify any of those analyses.

Here, however, is a twist to the ‘corporate personhood’ fiction…why not extend those benefits corporations enjoy to natural persons…that is, you and I. Corporations can write off interest expense against income, yet natural persons are generally only afforded this valuable tax deduction on mortgage interest. (The limits are too high on some other types to really help most taxpayers. Of course, years ago, you could deduct interest on auto loans and consumer credit like credit cards until Congress wiped away these in order to take in more tax money.)

I suggest that since corporations are persons and have nearly all the rights of natural persons, the reverse ought to be true as well. By virtue of personhood, natural persons should be able to deduct ALL interest against income! Why should natural persons be denied this valuable right when corporate persons take advantage of it all the time? Limiting natural persons’ ability to deduct interest curtails their free speech rights, as they may need to charge goods or services, or purchase a car via a loan in order to express their free speech. Shouldn’t the Constitutional right to free speech trump statutes and the tax code?

I’ll start deducting all my interest right after you do without repercussions!

Rigidity and Gridlocked Government

The present Congressional theatre, like that of most of the last year, is based on gridlock created by an absolute refusal to compromise by a faction of tea party influenced Congressional members. The rigidity of thinking frankly reminds me of a jury case years ago in a simple DUI case. The jury, after deliberation, took vote after vote. One juror always voted guilty, while 11 found the defendant not guilty. This particular juror was a naturalized citizen from an Asian Communist country. He simply refused to believe that any of the testimony for the defense was evidence. In his view, only what was presented by the prosecution was evidence, and he would not be swayed by any of his fellow jurors…including a law student and a nuclear engineer, and several other professional people.

The case ended in a hung jury, and the prosecution chose not to refile. This same kind of rigid thinking by some members of Congress is damaging to our citizens and our economy in the case of the refusal to extend the payroll tax relief for a couple months. The demand to make it for a year is, of course, a red herring. The very reason the senate passed (with 89 affirmative votes!) the two month one was to allow more time to hammer out details of a year long bill.

Today, even the editorially conservative Wall Street Journal slammed the House GOP for refusing to compromise on this, with great concern that it would do a lot of damage to the GOP politically in the upcoming 2012 elections…both at the presidential and congressional level. Politics notwithstanding, it is very harmful to a group of people who don’t contribute much to politicians and therefore don’t get their ear, but who comprise a massive majority of actual voters.

Rigid stances and refusal to compromise have not served our country in good stead in the past, and certainly aren’t at this juncture. The House GOP should pass the Senate bill now.

Footprints of the Giant

A number of years ago, composer/arranger Don Sebesky wrote a piece of music called “Footprints of the Giant,” which paid homage to one of the old masters, Bela Bartok. As the year comes to a close, we often take stock of what has happened in our lives and that of those around us, and think about or plan for the upcoming year. Sebesky, like many creative people, wanted to pay tribute to someone whose shoulders he had stood upon as he worked towards, and achieved a successful musical career.

Here’s a thought for you…whose shoulders have YOU stood upon to get where you are in life? As you plan for the upcoming year, who are you going to elevate to your shoulders and help achieve success in their career going forward? Such is truly its own reward, both for you, and for humanity. That individual you help may never become a giant in your or their field, but someone they help along the way very well may.

70 Years After Pearl Harbor- Events Still Transfix Us

Pearl Harbor was bombed 70 years ago. Many of us are contemplating that, and some have pointed out that there are a lot of folks that may not pay much attention. It seems that every generation has at least one major, defining event. Since Pearl Harbor, baby boomers are transfixed by the JFK assassination. For perhaps the ‘Gen X’ folks, it’s 9-11. These events both horrify and unify us. It is pretty much a certainty that there will be others as the timeline proceeds onwards. It’s how we deal with these as a people that helps define us. Make it your business to be defined in a good and honorable way!

End of Email- Oh really?

After reading another article on the ‘death of email,’ it seemed like a good idea to write about one of the reasons many companies would be loathe to give it up. The gist of the article is that a large French company, Atos, has banned email and is switching all employees to Facebook and instant messaging. (Find the article here: http://www.businessinsider.com/company-bans-email-2011-12.)

Here are a couple of factors that will probably keep most businesses using email, which also may apply to personal email. First, neither Facebook messaging nor IMs live on company servers…they are out of the company’s control. Companies like to save an electronic ‘paper trail’ for correspondence between employees and between employees and the outside in many cases. A corollary to this is that if there is legal action, the company may receive a demand to produce all email on a matter involved in the action, and that will be more difficult when it involves servers that belong to Facebook and IM providers like AOL, Microsoft, and Yahoo.

Another factor is the intra-company announcement. You know the kind. While some employees may consider many of these spam, so far there has been nothing to replace them for quickly getting information to a large group or even company wide. That will be much more of a chore on IM or Facebook.

For these reasons, and not just as a Luddite, I don’t see email going away any time soon. It may be that the second factor will be tackled with some new code that produces easier wide dissemination in IMs or Facebook, but the company server vs. outside servers issue isn’t going to change.

The Big Market Move…Nice, but…

It was encouraging today to see the stock market surge on several positive items in the news. So it’s the Dow’s best day since March 2009. That’s a good thing. the central banks intervened to help banks hit by the Europe debt crisis, and the Chinese Bank reduced their reserve requirement. This is all well and good if you’re a big trader or a bank, and certainly does affect all of us indirectly.

The other item was that the ADP employment report found an increase of 206,000 jobs, the most since last December. That affects a hell of a lot more people directly. What I’m waiting to see is the headline that employment has dropped to the lowest level since 2007, or that middle class wages have increased by as much as the top 1%’s income has. THOSE headlines would truly affect everybody in America in a positive way. If you believe in Santa, ask him for these! Even if you don’t, an almost 500 point move by the Dow is a nice (hopeful) start to a Santa rally.