Charles Carreon, The Arizona Kid

For the sake of ornament and illumination.

Re: Charles Carreon, The Arizona Kid

Postby admin » Thu Oct 17, 2013 9:17 pm

PORNOGRAPHERS INFRINGE EMILY TRADEMARK AND MATTEL IS SILENT -- HOW SWELL IS THAT?, by Charles Carreon

05/19/09

Barbie’s Neglected Cousin Lacks A Champion

Will the real Emily Doll please stand up?

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Remember the slogan, “You can tell it’s Matell — It’s Swell!” Well, it doesn’t seem very swell that young girls who do an online search for “Emily Doll” on Google, get this result — after the one paid spot, the first three entries are for porn sites!

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The first two Google links go to the EmilyDoll.com website, that is owned by the same guy who owns TeenDolls.com.

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The TeenDolls.com website is the mothership for EmilyDoll.com and other sites like it -- AlyssaDoll.com and BaileyDoll.com. This image below has been modified with a couple of clouds to conceal what is revealed at EmilyDoll.com, and it would take only a few clicks for a young girl curious enough to explore the mysteries of EmilyDoll.com to discover a new role model.

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I’ve got to say John Albright has more nerve than sense. After all, there’s a Federal law, the The Truth In Domain Names Act of 2003, authored by no less an eminence than Senator Orrin Hatch, that seems to address this sort of conduct. Thinking perhaps this might be of importance to Mattel, I sent the following email to Mattel’s trademark lawyer:

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Strangely enough, this email drew no response from Mr. Moore. Two weeks later, I called and left a message with his secretary, one of those detailed messages whereby you communicate the gravity of your concerns. But like a coin dropped down an exceedingly deep well, my inquiries werereciprocated by the silence of the tomb. Finally, I put my blogger’s hat on, and sent him a letter with a few questions, explicitly referencing the cybersquatting law and Truth In Domain Names Act:

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I was particularly surprised by Mattel’s laissez faire attitude to the infringement of its registered trademark, because Barbie has always been such an aggressive litigator. Like in that BarbiesPlaypen.com case — it’s a landmark case, and Mattel’s rep for kicking the stuffing out of any clown stupid enough to play porn games with the Barbie name is legendary. See Ellen Rony’s comments on the topic in the Domain Name Handbook. But when I looked on the US Patent & Trademark website and found that Mr. Moore was the trademark godfather for both of these young ladies — Emily and Barbie — I couldn’t help but wonder — why doesn’t Emily merit any protection? Is it only the slender-hipped, bullet-bra type that gets any respect in Hollywood? Is a little girl not worthy of a little trademark muscle from the company legal department?

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Well, if Mattel’s just going to play Humpty Dumpty

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and sit on the wall while unscrupulous operators lure little girls into the skin trade, you might want to give them a hand to get off it. Adult websites certainly have their place in our world, but not at the top of a search page for “Emily Doll,” with a design and typestyle that is clearly meant to lure young girls into viewing what the law classes as harmful material.

U.S. Code

TITLE 18 > PART I > CHAPTER 110 > § 2252B

§ 2252B. Misleading domain names on the Internet

How Current is This? (a) Whoever knowingly uses a misleading domain name on the Internet with the intent to deceive a person into viewing material constituting obscenity shall be fined under this title or imprisoned not more than 2 years, or both.

(b) Whoever knowingly uses a misleading domain name on the Internet with the intent to deceive a minor into viewing material that is harmful to minors on the Internet shall be fined under this title or imprisoned not more than 10 years, or both.

(c) For the purposes of this section, a domain name that includes a word or words to indicate the sexual content of the site, such as “sex” or “porn”, is not misleading.

(d) For the purposes of this section, the term “material that is harmful to minors” means any communication, consisting of nudity, sex, or excretion, that, taken as a whole and with reference to its context—

(1) predominantly appeals to a prurient interest of minors;

(2) is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable material for minors; and

(3) lacks serious literary, artistic, political, or scientific value for minors.

(e) For the purposes of subsection (d), the term “sex” means acts of masturbation, sexual intercourse, or physcial [1] contact with a person’s genitals, or the condition of human male or female genitals when in a state of sexual stimulation or arousal.
--------------------------------------------------------------------------------

[1] So in original. Probably should be “physical”.


I can’t seem to get Michael Moore’s interest, but if some other people, like angry moms, started filling his inbox with complaints, it might make a difference.

And there’s always the government. A quick search of “enforcement of truth in domain name act of 2003″ lead me to a link where I found this:

DEPARTMENT OF JUSTICE, NATIONAL CENTER FOR MISSING & EXPLOITED CHILDREN LAUNCH EFFORT AIMED AT MISLEADING DOMAIN NAMES

WASHINGTON, DC - April 20, 2004 - As part of an ongoing effort to crack down on websites that deceive minors into viewing pornographic and obscene materials, the U.S. Department of Justice and the National Center for Missing & Exploited Children (NCMEC) announced today that the National Center's CyberTipline, a reporting mechanism for child sexual exploitation, will now feature the ability to receive reports from the public on misleading Internet domain names.

The new reporting feature was added today to the National Center's CyberTipline, accessible at http://www.cybertipline.com, or by calling 1-800-THE LOST (1-800-843-5678). The addition was prompted by a DOJ initiative, led by the Child Exploitation and Obscenity Section of the Criminal Division, to crack down on misleading domain names following enactment of the Prosecutorial Remedies and Tools Against the Exploitation of Children Today Act (the "PROTECT Act") on April 30, 2003.

Among other things, the PROTECT Act created a new federal law, codified at Title 18, Section 2252B of the United States Code, that makes it a crime to knowingly use a misleading domain name on the Internet with the intent to deceive a minor into viewing material that is harmful to minors on the Internet. This crime carries a penalty of up to four years in prison and/or a fine. An offender might commit this crime, for example, by using a domain name that features the name of a popular children's cartoon character, purposefully misspelled, and leads to a website featuring materials harmful to minors. The new law also makes it a crime to use a misleading domain name on the Internet with the intent to deceive any person into viewing obscenity, which carries a penalty of up to two years imprisonment and/or a fine.

"The Department of Justice and the National Center for Missing and Exploited Children are taking this step today to protect children from dangerous and inappropriate experiences on the Internet," said Attorney General John Ashcroft. "Now, alert and concerned parents can help law enforcement identify and dismantle these misleading Internet sites that are set up to lure their children into viewing obscene materials."

"This new feature will allow the public to take an even more active role in helping law enforcement clean up the Internet and protect our children," said Assistant Attorney General Christopher A. Wray of the Criminal Division.

"Though the Internet is full of educational and fun experiences for kids, there are individuals who misuse the Web to prey upon children's vulnerabilities," stated NCMEC President Ernie Allen. "We now have the means to combat this threat to kids, and with the public's help the CyberTipline will be even more effective as a bridge between law enforcement and concerned citizens."

The Department of Justice continues to prosecute violators of the Truth In Domain Names provisions of the PROTECT Act. In February 2004, John Zuccarini was sentenced by a federal judge in Manhattan to 30 months in prison on charges that he created and used misleading domain names on the Internet to deceive minors into logging on to pornographic websites. Those domain names included close misspelling of domains names that are popular with children, such as "www.dinseyland.com," (a variation on Disney Land's website) and "www.bobthebiulder.com," and "www.teltubbies.com" (variations on the websites for "Bob the Builder" and "Teletubbies").

The new feature has been added to the CyberTipline, which already provides members of the public a means to report child exploitation crimes, including the trafficking of child pornography, online enticement of children, child prostitution, child sex tourism, non-family child sexual molestation, and obscenity sent to children. Since its inception in March 1998 through April 2004, the CyberTipline has processed more than 230,000 reports of child exploitation crimes, a large number of which have been sufficient to refer to law enforcement for investigation.

CONTACT:
http://www.usdoj.gov
CRM 202-514-2008
TDD 202-514-1888


And Don’t Forget The Importance of Statistics

If anyone asks you how you know that young people under the age of 18 are being lured into EmilyDoll.com, tell them that according to QuantCast.com, 11% of the thirty-five hundred visitors to EmilyDoll.com every month are between the ages of 12 and 17. That would be 350 a month, or more than ten per day, or one every couple of hours. See the chart below and click it for more information at the main quantcast.com website.

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Re: Charles Carreon, The Arizona Kid

Postby admin » Thu Oct 17, 2013 9:19 pm

RANDOMNESS -- A MYTH SCIENTISTS CREATED TO SIMULATE IGNORANCE, by Charles Carreon

06/01/09



"Chance is but our ignorance of causes." -- Lamarck

May I propose a bet? I bet you think that life is kind of random. Even if you’re religious, and think that not a sparrow falls except it is marked by your father-figure in heaven, or that the All-knowing Maha-Kleptonanda keeps track of it all in the infallible Karmic Record, fundamentally you think that what comes next is no more knowable than the next roll of the dice or number about to come up in a lotto game. And as a result, you think that life is “random.” So I won the bet, right? Well now, give me three more minutes, and I’ll prove you wrong, and you’ll be so satisfied with my argument you’ll kiss the concept of randomness goodbye forever. Ready?

Randomness is a mathematically created concept used to simulate ignorance. What do I mean by that? Well, just imagine that you live where I live, on a cul-de-sac in a neighborhood where it’s easy to get lost. All day long, cars come through the cul-de-sac and they don’t stop. They just buzz through, obviously lost. Now if I were to write down all the car license numbers and give them to a math professor or an investigator on a list, and ask them to tell me what they all had in common, they couldn’t figure it out. They would just say they were random. But there’s nothing random about them. They were all cars driven by people who were lost in my neighborhood, almost certainly looking for someone else’s address nearby, but not on our cul-de-sac. Every car was driven by a person loaded with intention, not some random cruiser out to see what the front of my house looks like. Nothing random about them, but if you were ignorant of how I compiled the list of license plate numbers, you’d just have to assume they were random.

Take another example. We’re sitting on a park bench in front of a pond, and it’s just starting to rain. I ask you, “Where will the next drop fall?” You say, “I don’t know.” Or maybe you say, “How the hell would I know?” Right then, the next drop falls, making a ripple on the surface of the pond. Well, that wasn’t a random event. That raindrop had been falling out of the clouds for miles, and finally, it reached its destination, after being buffeted by crosswinds and polluted with dust, falling and falling with perfect purpose toward its inevitable collision with the surface of the pond. Nothing random about that. At no point did anything random happen to that raindrop, because everything other event that took place that affected the speed and direction of its fall, and determined the moment and place of its contact with the surface of the pond, were all, equally non-random. But since both you and I were ignorant of all of those factors, we simply say, “It’s random.”

To finish my explanation, I have to explain why I say it’s a “mathematically created concept used to simulate ignorance.” Here’s what I mean by that. Mathematics is not a process for generating random outcomes. It is a system for generating and analyzing determinable outcomes. Remember that’s what’s so awful about math – only one right answer – and you don’t know it. You might wish that math problems could be solved with random answers, but you could only peddle that notion in literature class, not math class. Computers are big calculators with clever layers of articulation laid over them called interfaces. You might, logically, conclude that computers have a hard time with the concept of randomness. Actually it’s worse than that, and I’ll now indulge in a literary digression. It’s said that Samuel Johnson once criticized someone’s book, and some nice person next to him said that he should be more charitable in his assessment, because it had been very difficult to write it. “Difficult!” Johnson retorted, “I wish it had been impossible!” Well, that’s how it is with computers and random numbers. It’s not only difficult for computers to generate a random number – it’s impossible.

Computer programmers know this, so they have these things they call “random number generators,” but all they do is generate a number that is good enough to be impossible for you to predict. In other words, since you are ignorant of how the computer generates the number, it’s as unpredictable as where the next raindrop will fall on the pond, or what the number of the license plate of the next car will be when it drives through my cul-de-sac. That’s just because you don’t know all the variables that would go into generating a solution. Since mathematicians want to generate solutions even to problems where there are too many variables, they turn dark holes of ignorance into wells of randomness. They start pulling numbers out of a hole, and say that since no one can predict which one will be next, there’s no order to it. It would be more honest for them to say that they do not know the order, but they’re too proud to do that, so they have enshrined the notion of randomness in mathematics as a tool for predicting outcomes using the data that is available. But it doesn’t mean that randomness is real. It’s not. Everything has a cause, nothing comes from nothing, and you shouldn’t confuse a mathematical tool with a cosmic reality.
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Re: Charles Carreon, The Arizona Kid

Postby admin » Thu Oct 17, 2013 9:21 pm

WE INSURE GOLDMAN SACHS, WHY NOT INSURE PEOPLE?, by Charles Carreon

07/14/09

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Don’t you just love that Lloyd Blankfein? He’s the head of Goldman Sachs who’s just announced that his bank is cutting midyear bonus checks in the amount of $3,400,000,000. Midyear bonuses, you ask? Who gets those? Well, bankers do, because if they wait until the end of the year, in an economy like this, their profits might have evaporated.

Goldman is, as you should know, no longer an “investment bank,” as it was when it was run by former CEO Hank Paulson, who left it to orchestrate the Bush bailout during the meltdown of 2008. On September 21, 2008, Goldman decided to pick up some insurance, so it could put government money to work shoring up its finances, and became an FDIC-insured bank that can borrow at the effective zero interest rate that the Federal Reserve provides to big banks so they lend it to their borrowers for as much as the market will bear.
If they have borrowers, of course, which Goldman does not. Goldman doesn’t do any consumer loans, but it still went ahead and borrowed $28,000,000,000 from the Federal Reserve, money that it is using to make money, and of course, pay bonuses. Those bonuses, Goldman is saying, are a reward for taking wise risks that paid off. I disagree. Goldman has insured against risk by buying influence. Perhaps you don’t know how they turned the AIG disaster into a goldmine. I’ll quote from Glenn Greenwald’s opinion piece in yesterday’s Salon:

Goldman … was A.I.G.’s largest trading partner, according to six people close to the insurer who requested anonymity because of confidentiality agreements. A collapse of the insurer threatened to leave a hole of as much as $20 billion in Goldman’s side, several of these people said.


But Goldman had the fix in. Remember when Edward Liddy took up the top position at AIG for $1 per year? Well, maybe he only got a dollar from AIG, but Liddy was a member of Goldman’s Board of Directors! And as head of AIG, he took bailout money and plugged that potential hole in Goldman’s bottom line, paying them 100 cents on the dollar for all the worthless “Credit Default Swaps” that Goldman had bought from AIG. How’s that for turning straw into gold? Flaming straw! How does Goldman do it? You know how they always say they have to pay big bonuses for “talent?” Well, Greenwald explains how it works when you pay for “talent”:

[Goldman] received some $13 billion through AIG. More troubling is that the original plan to bail out AIG was concocted at a meeting held last fall, run by then Treasury Secretary Hank Paulson who, before becoming Teasury Secretary, had been CEO of Goldman Sachs. Also attending the meeting was Lloyd Blankenfein, the current CEO of Goldman Sachs. Also at the meeting: Tim Geithner, then head of the New York Fed.


Yes, pay for talent, by all means. God forbid they would lack for the cash needed to buy influence. Since 1989, Goldman has made nearly $30,000,000 in political donations — to Republicans, Democrats, anything that votes! That meant that when Paulson hired Neil Kashkari, another former Goldman executive, to administer the TARP bailout, no one complained even slightly. They just let Goldman guys write Goldman more checks, and more checks, and more checks. Definitely there are no “balances.”
Meanwhile, Americans who have no influence — whose Congressional representatives wouldn’t talk to them for anything in the world — are being booted out of their jobs and evicted from their homes, are looking through the want ads and scrounging for money to pay for health care if anyone will provide it to them since they have no insurance. All that suffering on Main Street has got some people listening to talk radio, and talk radio listeners could be forgiven for thinking that “socialized medicine” is about to destroy what my favorite right winger, the penguin-voiced Mark Levin, calls “the greatest health care system in the world.” Under “the Obama plan,” as Mark calls it, we will all have to wait in line for health care, and will be unable to get every little old treatment that we might desire. Yes, things will get bad, like they are in Canada, Europe and Britain. But almost 20% of Americans get their health care in the local ER, so how great is that?
But I’ve been listening to talk radio long enough that I understand how it works. Corporations good, people bad. It’s a good thing to give billions to big corporations, because they are staffed by people who have a closet full of nice suits, and make fat campaign contributions. It’s a bad idea to give anything to people, because they rarely own even one good suit, and make no campaign contributions. If a corporation gets sick, lots of bankers lose money, like the angry bondholders in the GM bankruptcy. If a person gets sick, they just curl up and die, and no one really cares. So of course you want to insure banks, no matter how much it costs, and you totally wouldn’t want to insure people, no matter how much that might help them. Glad I got that clear in my mind.
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Re: Charles Carreon, The Arizona Kid

Postby admin » Thu Oct 17, 2013 9:23 pm

PORN WITHOUT CONDOMS LEADS TO AIDS FOUNDATION LAWSUIT, by Charles Carreon

07/22/09

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On July 16, 2009, the AIDS Healthcare Foundation and Michael Weinstein petitioned the Los Angeles Superior Court for a writ of mandamus directing the Department of Public Health (DPH) to enforce California Health and Safely Code sections 120575 and 120 175 by requiring all performers to use condoms in the making of hardcore pornography in Los Angeles County.

Petitioner AIDS Healthcare Foundation (”AHF”) is a California nonprofit corporation. AHF is the nation’s largest private provider of HIV/AIDS medical care. … In addition, AHF operates the largest private HIV/AIDS and sexually transmitted disease testing and prevention program in California.

[A]n epidemic exists. County health officials have acknowledged it, documenting thousands of cases of sexually transmitted diseases among performers over the past five years. The spread of disease among performers in pornography endangers both the performers themselves and the public at large, due to the transmission of disease from performers to their sexual partners inside and outside the industry. Despite a ministerial duty to take all reasonable measures necessary to prevent the transmission of these diseases. officials with the Los Angeles Department of Public Health have done nothing to combat this known, serious health threat to the people of Los Angeles County, needlessly placing thousands of people at risk of disease and death.

DPH has cited numerous figures confirming an epidemic of sexually transmitted diseases among performers in adult films, including the following:

a. Performers in hardcore pornography are ten times more likely to be infected with a sexually transmitted disease than members of the population at large;

b. There were 2,013 documented cases of chlamydia among performers between the years 2003 and 2007;

c. There were 965 documented cases of gonorrhea among performers in the same period;

d. Many performers suffer multiple infections, with some having four or more infections over the course of a year;

e. In the period of April 2004 to March 2008 there have been “2,847 STD infections diagnosed among 1,884 performers” in the hardcore pornography industry in Los Angeles County.

DPH acknowledges that condoms are “[h]ighly effective in preventing HIV and other STDs” and would “likely have prevented all 3 female cases of HIV [in the industry] in 2003.” PPH asserts that condoms are used in less than 20% of heterosexual adult films, and that performers in heterosexual adult films who insist on using condoms can be banned from work.

DPH has observed that, without a legal requirement to use condoms in the production of adult films, performers are “effectively denied choice” to protect themselves because there is “too much economic pressure not to use, fear of being asked not to work again.” DPH is aware that industry efforts at self-regulation, including use of HIV testing, have not reduced the number of STD infections. DPH has noted that a year after the 2004 outbreak of HIV among hardcore pornography performers in Los Angeles County, the industry’s practices remained “mostly business as usual.”

There were no widespread changes in industry norms regarding the use of condoms, work practices during sex scenes, or industry training and education ofperfonners in the avoidance of sexually transmitted diseases, including HIV. California Health and Safety Code section 120575 provides that “[i]t is the duty of local health officers to use every available means to ascertain the existence of cases of infectious venereal diseases within their respective jurisdictions, to investigate all cases that are not, or probably not, subject to proper control measures approved by the board, to ascertain so far as possible all sources of infection, and to take all measures reasonably necessary to prevent the transmission of infection.”

DPH has failed to take “all measures reasonably necessary to prevent the transmission of infection” within the adult film industry. In fact, DPH has done nothing to prevent the transmission of disease in the production of pornography, tlnls allowing a significant public health risk to remain completely unchecked.” Pursuant to Health and Safety Code section 120175, DPH has a non discretionary ministerial duty to take reasonable steps to stop the spread of “contagious, infectious or communicable diseases,” including sexually transmitted diseases. DPH is aware of cases of infectious venereal diseases within its jurisdiction that are being spread due to practices within the hard core pornography industry. DPH has failed to take “measures as may be necessary to prevent the spread of the disease or occurrence of additional cases” within the adult film industry. In fact, DPH has taken no measures to prevent the transmission of disease in the production of hardcore pornography.
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Re: Charles Carreon, The Arizona Kid

Postby admin » Thu Oct 17, 2013 9:27 pm

DANGEROUS DRIVING -- TEXTING VS. DRINKING, by Charles Carreon

07/28/09

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Everybody’s talking about the arrest of Alexandria Virginia’s Chief of Police for a big, fat .19 DWI. Don’t know if you’ve ever tried out the “breathalyzer,” but I can say with certainty that a .12 is hammered. When I was in the Jackson County District Attorney’s Office fifteen years ago, I did a controlled drinking session with the Oregon State Police, with Sr. Trooper Snook playing bartender. I drank 10 shots of tequila in two hours. Hit a .05 within the first hour, blew a .12 after 2 hours, and had killerheadache a few hours later. Strangely, I felt like I’d have been most dangerous behind the wheel at .05, when I was euphoric, exhilirated, and didn’t feel overtly impaired.

My fellow lawyer Jon Katz wrote a lengthy kind of bleeding-heartish, wrapped-in-the-Constitution blog post relying heavily on the presumption of innocence, the unreliability of the breathalyzer, and the “junk science” of “field sobriety tests.” I agree with him on all three counts, but at .19 you’ve got so much room for error that it’s pretty hard to beat. Somebody blowing a .19 would stink like a beerhall from ten feet away. Although I did beat .14 DUI in Oregon years ago — it happened for only one reason — my client was pulled out of a bar where he’d been drinking after Deputy Jo Gardiner said she saw him speeding a half hour earlier, and I proved that she was lying about the speeding. Cop lies, jury acquits. (In People v. Simpson, it wasn’t just that “the gloves didn’t fit” — it was the fact that Furman was a lying piece of it that caused the jury to acquit.)

But, however morally reprehensible driving about likkered up might be, it seems that DWT,Driving While Texting, increases the risk of accidents by more than twenty times. Of course, how long can it be before a Hollywood starlet is busted, drunk, coked up, and Twittering — “OMFG, I’m getting busted!”
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Re: Charles Carreon, The Arizona Kid

Postby admin » Thu Oct 17, 2013 9:32 pm

GATES CASE AND THE 4TH AMENDMENT, by Charles Carreon

07/30/09

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You have to be careful when you hit the keyboard with a passion to defend your buddy. Boston Cop Justin Barrett has been suspended and is on his way to being sacked for this email, which has some gems. (The full text of the email is at the bottom of this post.) Even for those of us who don’t eat bananas in the jungle, the Barrett Email has some lessons for how to behave when confronted by an earnest expression of police interest:

Your defense of Gates while he is on the phone while being confronted [INDEED] with a police officer is assuming he has rights when considered a suspect. He is a suspect and will always be a suspect. His first priority of effort should be to get off the phone and comply with the police, for if I was the officer he verbally assulated like a banana-eating jungle monkey, I would have sprayed him in the face with OC deserving of his belligerent non-compliance.


There is just a lot to be learned from that comment, isn’t there? If you are a “suspect,” you have no rights, and anything other than responding to the cop’s inquiries is a form of “belligerent non-compliance.” In one way, the claims of Barrett and his lawyer that this was not a racist comment bear some additional consideration. In fact, if the “suspect” were a slightly intoxicated banker fumbling with the keys to his house, or a venerable Irish Monsignor responding to questions about pedophile activity, a different set of Boston police protocols might kick in, but for your average citizen, the failure to stand and deliver when addressed by a police officer may well ignite uncontrollable rage. And an angry cop can arrest just about anyone for no reason and let his “suspect” deal with the consequences.

The Fourth Amendment seems to be missing in action in this discussion. It guarantees our right to be free from unreasonable “searches and seizures,” and in the famous case of Payton v. New York, the U.S. Supreme Court held that the arrest of a murder suspect in his home without a warrant was unconstitutional. A person’s home is accorded special protection under our constitutional jurisprudence. Sgt. Crowley, who arrested Professor Gates, was violating the Fourth Amendment when he allowed his anger to get the better of him. Now Justin Barrett’s unintentionally honest defense of his fellow-officer has confirmed the arrogant attitude behind Sgt. Crowley’s actions.

While Obama now wants to dissolve all the tension at his “beer summit” by lifting a cold one in the company of Gates and Crowley at the White House, it seems the truth just wants to ventilate itself. And the truth is that when police get hot-headed, our rights are at risk. The Constitution and the Bill of Rights are there to rein them in, and to give us relief at the courthouse when they allow their passions to trample on our rights of dignity, freedom of movement, and freedom of speech. If I could have texted Obama an answer to give the reporters who asked him about Gates’ arrest, I would have texted this:

All American police officers are obligated to respect the civil rights of our citizens to remain safe in their homes from a warrantless arrest. If those rights were not respected in this case, then Prof. Gates would have a claim against Sgt. Crowley.


This comment would have dodged accusations of reverse racism and put the shoe on the right foot. Obama is the President of all Americans, and the Constitution and Bill of Rights protect the rights of all Americans. And don’t you forget it.

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Re: Charles Carreon, The Arizona Kid

Postby admin » Thu Oct 17, 2013 9:36 pm

REPROGRAM YOURSELF! -- A REFUTATION OF THE METHODS AND CONCLUSIONS OF STANLEY MILGRAM'S BEHAVIORAL CLASSIC, "OBEDIENCE TO AUTHORITY", by Charles Carreon

August 16, 2009

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Obedience to Authority, by Stanley Milgram

Stanley Milgram’s Obedience to Authority: An Experimental View, published in 1974, is a short book that became a must-read text for behavioral scientists by dropping the following bombshell: Ordinary people will intentionally torture other people with agonizing electrical shocks if a man in a white lab coat tells them that it’s all part of a “learning experiment.” Milgram managed to garner this information without actually shocking anyone. The “learners” being shocked were actors; the true subjects of the experiment were the “teachers;” and the experiment was designed to determine if any of the “teachers” could disobey the “experimenter’s” order to “proceed with the experiment” once the “learners” began to scream in pain.

Milgram’s data showed that, if they couldn’t hear the screaming, 65% of the “teachers” would give their “learners” what they believed was a 450 volt shock using a switch labeled “DANGEROUS.” If they were able to hear their “learner” screaming, 62.5% of the “teachers” would administer the 450 volt shock. If they had physically touched their “learner,” 30% of the “teachers” would administer the 450 volt shock. Milgram’s results were replicated in studies around the world, with the highest “obedience” score being recorded in a study in Munich, where 85% of the “teachers” would shock up to the highest level. Based on this data, Milgram reached a number of intermediate conclusions of doubtful validity, and one final conclusion that in this writer’s opinion, is almost certainly wrong.

In this essay, I first debunk Milgram's final conclusion -- that humans are hardwired to obey even evil and immoral orders -- then explain why his intermediate conclusions are unwarranted, and finally, derive what I believe are valid conclusions to draw from the experiment.

Milgram’s final conclusion is founded on the pseudo-Darwinistic generalizations so common among the scientists writing in the post-Second World War period:

Let us begin our analysis by noting that men are not solitary but function within hierarchical structures. In birds, amphibians, and mammals we find dominance structures (Tinbergen, 1953; Marler, 1967), and in human beings, structures of authority mediated by symbols rather than direct contests of physical strength. The formation of hierarchically organized groupings lends enormous advantage to those so organized in coping with dangers of the physical environment, threats posed by competing species, and potential disruption from within.


Let us begin by observing that Milgram refers to humans as “men,” and that men are the most violent half of the human species. Let us then deconstruct the blithe assertion that “men … function within hierarchical structures,” a statement that ignores the fact that all the evidence shows that historically, from the Neolithic cave-painter tribes to the aboriginal tribes of today, “hierarchical” society has not been the norm. Just as it has been said that, statistically, most people have eaten reindeer as the principal component of their diet, so also, most humans have lived in non-hierarchical societies.

Let us next consider how scientific a statement can be that attempts to derive a conclusion from a one-sentence generalization about “birds, amphibians, and mammals.” Aside from being ridiculously overbroad, it makes no sense. Is Milgram really saying that lions, that hunt in groups, are evolutionarily advantaged over tigers and jaguars, that do not? Really? Then consider this statement by Milgram, a little farther down the page: “Behaviors that did not enhance the chances of survival were successively bred out of the organism because they led to the eventual extinction of the groups that displayed them.” Is that so? Then why are there any tigers and jaguars left at all, if their individualized hunting system is inferior to that of their competitors?

Let us conclude by straining the jargon and hyperbole from this sentence, “The formation of hierarchically organized groupings lends enormous advantage to those so organized in coping with dangers of the physical environment, threats posed by competing species, and potential disruption from within. This mass of verbiage can be condensed to the following compact statement: “Heirarchical societies repel internal and external threats more effectively than non-hierarchical ones.” Excuse me? Is that why Cortez, with forty-nine men on horseback, defeated the entire Aztec empire? Aztec society was perhaps the most hierarchical in human history. Aztec priests, armed with divine authority, sacrificed numberless humans in an orgy of socially-approved bloodletting aimed at ensuring the yearly return of the sun. Cortez may have commanded a disciplined cadre of armed men, but surely Moctezuma’s “enormous” hierarchical leverage and enormous armies should have carried the day. Similarly, if hierarchy and numerical advantage is an evolutionary trump-card, the Incas should have prevailed over Pizarro, the Teutonic barbarians could not have toppled the Roman Empire, and Sitting Bull could not have won at Little Big Horn. Milgram’s argument that hierarchical societies are the product of natural selection is little more than hogwash laced with Darwin-flavored Kool-Aid.

Unconcerned that his argument is a counterfeit of valid evolutionary thinking, Milgram spends freely, erecting monuments of nonsense that have been taken at face value by generations of readers. Take this statement, in which Milgram concretizes the “enormous” advantage of hierarchy by evoking the monuments of the Pharaohs and ancient Athens: “We look around at the civilizations men have built, and realize that only directed, concerted action could have raised the pyramids, formed the societies of Greece, and lifted man from a pitiable creature struggling for survival to technical mastery of the planet.” Again “men” do all the building, and the fact that both Egypt and Greece built their cyclopean structures with slave labor is conveniently forgotten. One may well also ask, aside from attracting tourists, what advantages do the Parthenon and the Sphinx bring to the inhabitants of modern day Greece and Egypt? Finally, Milgram, writing at the height of the Cold War, conveniently forgets that our “technical mastery of the planet” placed humanity a button-push away from planetary holocaust, while for millions of years, our ancestors had never faced that danger, despite being “pitiable creatures struggling for survival.”

Milgram pumps the close of his pro-hierarchy sermon with one last scientific fable. Observing how, after “a wolf pack brings down its prey … the dominant wolf enjoys first privileges, followed by the next dominant one,” Milgram argues that the pack is “stabilized” by hierarchy – as if there had ever been a canine revolution or a Bolshevik wolf! From this anthropomorphic claim, Milgram derives a Confucian aphorism: “Internal harmony is ensured when all members accept the status assigned to them.” Forget that Confucius was concerned that without social rules society would go to the dogs -- Milgram has the dogs teaching philosophy!

Today, when the biggest dogs on Wall Street have eaten the entire economy and then some, the unemployed can take comfort in Milgram’s reminder that they are contributing to the stability of society by accepting a low place in the feeding hierarchy. Indeed, our species as a whole enjoys, yes, you guessed it, an “enormous” advantage. Ever wondered why Goldman Sachs and Morgan Stanley preside over the nation’s economy, paying its top employees millions in bonuses? Look no further than Stanley Milgram for an explanation – we are born to this subjugation, and better off for it, “because organization has enormous survival value,” and therefore “was bred into the organism through the extended operation of evolutionary processes.”

Perhaps you think I am being uncharitable, but Milgram needs no charity. He said he wanted to provide us with knowledge, and we shouldn’t accept ignorance in its stead out of respect for his ghost. Presumably because he caught humanity in an unflattering pose, all of his generalizations have been swallowed relatively uncritically. Having revealed his argument that obedience is biological destiny to be utter nonsense, we can proceed to the next level of the critique.

Milgram deceived the subjects of his experiment, the “teachers,” in at least three ways. First, he told them that he was conducting an experiment that he was not, in fact, conducting. Second, he told them that the experiment was lawful. Third, while the experiment was in progress, he had his white-coated “experimenters” tell the “teachers” that if anything happened to the learners, the consequences would not fall upon the “teacher,” but rather on the experimenter.

The first lie is obvious to everyone, but the reader must be careful to keep it in mind, remembering that although the experiment that Milgram performed was not illegal, the experiment the “teachers” thought they were performing would have been illegal, if they had actually performed it. Obviously, the experiment would not have “worked” without this deception.

The second lie is clearly not obvious, since it apparently didn’t occur to any of the participants, that the whole experiment they thought they were conducting was illegal. We may presume that Milgram didn’t recruit any criminal lawyers into his experiment, because any prosecutor or criminal defense lawyer would know that an experiment that subjects people to dangerous electric shocks would be criminal despite the “scientific” trappings. They would also tell you that, even if “learners” consented to suffer some level of harmless shock, refusing to stop the shocking after they demanded it would be criminal. An astute criminal lawyer might even suspect that the whole setup was devised as a “sting” operation by some imaginative prosecutor seeking to convict people of assault by electroshock.

For example, if the same criminal laws were applied to the “teachers,” as are applied to accused pedophiles, drug dealers, and weapons traffickers, the teachers could have been convicted of torture. Everyone has heard stories about the pedophile who engages in an online exchange in which some apparently sick person offers to set them up in a hotel room for a tryst with a ten-year old. Money changes hands, and the pedophile walks into Room 33 at the Roadside Chalet with a heart full of yearning and a bag of compromising novelties, children’s books and Valium, only to be met by a group of heavily armed men with an arrest warrant. Thousands of people are in prison right now for trying to buy drugs from police agents who had no drugs to sell, because the mere expressed intention to buy the illicit substance and an act in furtherance of that intention, is a convictable offense. In the arms-trafficking context, in 2005, a New Jersey jury convicted British citizen Hemant Lakhani merely for being willing to aid terrorists, by being present when an informant “sold” a fake shoulder-fired missile to the FBI. Lakhani, in his seventies, was sentenced to 47 years in prison.

Similarly, who could doubt that an aggressive prosecutor looking to pull off a “torture sting” could set up a Milgram-style “experiment,” and charge those who agreed to participate? Many jurors would vote to convict defendants who were demonstrably willing to administer additional shocks to victims who appeared to be screaming in agony. It wouldn’t matter that the “learners” in the sting were actors, just as it made no difference that the shoulder-fired missile in the Lakhani case was a fake. The commission of an act that the actor believed would cause agony would suffice for conviction.

So Milgram lied when he told the “teachers” that the experiment as they believed it was being conducted -- was lawful. In a fraud prosecution, the law defines such a lie as a “material misrepresentation,” because the truth about this subject would be “material” to a person making the decision whether to participate in the experiment. Nobody would have agreed to participate if they had been required to sign a waiver form that said, “I understand that the legality of this experiment is doubtful, and I could be prosecuted for assault or more serious crimes if the learners are injured by teaching shocks that I administer.” Let us imagine, for sake of analysis, that one of the “teachers,” unable to deal with the stress of being “forced” to continue shocking the “learners,” had fallen over dead of a heart attack. His heirs would have been legally justified in suing Milgram and his accomplices for fraudulently inducing him to participate in a risky activity that in fact caused death.

The third lie Milgram told was that “teachers” would bear no responsibility for their actions. This lie was delivered by the “experimenter,” the man in the lab coat, when “teachers” questioned whether it was really proper to continue shocking people who were screaming in pain already. The experimenter would say, “it’s my responsibility” or similar words that removed the burden of continuing the “experiment” from the teacher’s shoulders.

Milgram’s experiment thus does not prove what he claims – that people in a “legitimate” environment will torture other people because they are biologically programmed to obey authority. It proves that if people are conned by scientists into thinking that their acts are part of a genuine scientific study (that has of course been vetted for safety and legality), then they will do what, under other circumstances, they would not do – torture their neighbors with electroshock. It proves that scientists can develop a convincing con that can overwhelm people’s basic good sense by brandishing their credentials and supplanting lawful authority with a twisted simulation of a scientific setting.

Milgram asserts that people were unable to break the spell of “obedience” because they were in an “agentic state,” in which they have no independent will, and their body is merely a connecting rod between the will of their director and the task that must be performed. Milgram states that the stress of torturing people threatens to break them out of the agentic state, but certain “binding factors” prevent them from acting. There are essentially two “binding factors”: first, the subject’s fear that if he stops shocking the “learner,” it will confirm the wrongness of what he has done up until that point, and second, the subject’s fear that if he refuses to continue, he will break a commitment to the experimenter and insult his authority. The “agentic state,” Milgram asserts, taps into each person’s inner subordinate, a pure suckup, who does not look outward to see the world, but rather, looks up and sees his superior, who for him, becomes the world.

Milgram’s image of humans genetically programmed to serve as agents of superior authority, is fortunately unsupported by the evidence. Milgram has drawn false conclusions by refusing to acknowledge that he induced people to participate in the experiment by telling them it was lawful. He refuses to acknowledge that since the participation of his subjects in the “learning experiment” was procured by fraud, it was not voluntary. He further refuses to see that more than “binding factors” are preventing his subjects from abandoning the experiment. In addition to the “binding factors,” and obviously more importantly, they are prevented from renouncing that agreement by keeping them physically confined in the phony laboratory, and psychologically confined in a state of ignorance. If the truth that the learning experiment was unlawful had been revealed at the outset, he would have had no participants. And if it had been revealed when the screaming started, they would all have quit. So deception by creating a false appearance of lawful authority, not obedience to lawful authority, was the cause of the experimental results.

Milgram’s duplicity is equally in evidence when he cons his readers with his unwarranted conclusions. Deploying the jargon of natural selection, and tossing about a few platitudes about the glory that was Greece, he makes a quick and dirty argument that invokes Darwinism to support the silly claim that “obedience” is bred into humanity by millions of years of evolution. In truth, the social organizations of animals have been the subject of thousands of studies by natural scientists, and the term “obedience” does not feature prominently in their analyses. Milgram simply asserts his prejudice and claims that science supports it, but this is no more scientific than torturing people to teach them how to memorize word lists would have been. He is huckstering his readers with faux science just as he deceived his experimental subjects. His essay is supported with charts and graphs. He summarizes his findings in percentages by category. This must be science – it looks like it! On the contrary, it looks like science, but it is not.

What we can learn from Milgram is that people who lack an understanding of law and science can be manipulated by unscrupulous people. This is called criminality. It is not lawful authority. Whenever people are induced to commit acts that transgress the limits of law as they know it, whether it be the law of how to treat your neighbors, your children, or prisoners of war, the people who lead them into this moral transgression are criminals, and the people who commit the wrongful acts become criminals by participating. Milgram puzzles over what his subjects had to do in order to reach the level of refusing to participate in the experiment, but his analysis hits a dead-end when he decides to blame “evolution” for the tendency of people to give in to authority.

Evolution is not to blame, and our human biology does not doom us to slavish compliance with whatever top dog sits above us in the hierarchy. It is the abuse of authority by people who will create false, theatrical dramas to compel the obedience of other humans that can order soldiers to commit acts of war, torture, and mass killing. There is more than a passing similarity between how Milgram enlisted participants in his experiment, and how a nation of peaceful citizens is whipped up into a war fever. In both cases, lies are essential, and repeated assurances from the authorities that the whole enterprise is lawful and necessary. And the same missing factor – honest information about the experiment, or the war – would bring both to a grinding halt.

So we can learn from Milgram, so long as we don’t accept his conclusions. What we can learn is that whenever so-called authorities demand that we perform acts that we know, based on our deeply-ingrained social norms, are wrong, these authorities are acting outside of their lawful scope. Regardless of whether they are wearing lab coats, banker’s suits, police badges, military uniforms, or religious robes, if they direct us to violate moral or social law, they are not real authorities, they are deceivers, con-artists, attempting to exploit our ignorance. Whenever someone tries to overwhelm us with urgent demands, claiming that we must act contrary to past precedent because the old rules don’t apply in this “new” situation, we need to ask questions, demand answers, and declare our right to act according to our own inner moral guidance.

In every situation that presents a serious moral question for our decision, we must insist on our individual right to make that decision personally, based on our own convictions. We must reject Milgram's version of original sin, that we might call original servitude, and with it the notion that it is either right or inevitable that we should bow to the dictates of self-appointed authorities. As members of a democratic society, who bear the duty of self-governance, we must remember that we are individuals, born free, and can remain so only by asserting that we will live and act by the light of our own understanding. And authority be damned.
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Re: Charles Carreon, The Arizona Kid

Postby admin » Fri Oct 18, 2013 12:39 am

HEALTHCARE? WE DON'T NEED NO STINKING HEALTHCARE!, by Charles Carreon



08/29/09

I’m So Uninsured

Has anyone tried to get health insurance lately? I haven’t had it since I stopped working for Jackson County, Oregon in 1994. It’s simply prohibitive. For many years, I couldn’t get the non-smoker rates, because I still smoked my daily cancer stick, but I’ve cut that out now. My wife started worrying about not having it, so I said, “enroll at Pima Community College and get the insurance the college kids get.” She did, and what a sad, sad joke that was. The doctors in town looked askance at the company, whose reputation in Tucson is apparently not good, and when the bills came in, they paid a paltry fraction. For this we were out well over a grand per semester, i.e., four-month period. Given our health care needs, it made more sense to keep it in the bank, pay for doctor visits out of cash, and if catastrophe hits, just plan on declaring bankruptcy.

Who Needs Insurance?

I’ve worked for adult entertainment industry clients for the last nine years. Without making too many assumptions, I think it is a safe bet that people in this industry rarely obtain health insurance for themselves or their employees. Content producers often fail to require even basic health precautions in shooting scenes where models are exposed to body fluids, and workplace regulations in this field are nonexistent, resulting in an epidemic of chlamidia and other STDs in the LA industry, which caused the AIDS Foundation of LA to file suit against the LA County Health Dept. Lest you think that’s unique to a dirty business, think again. There’s nothing unusual about this situation in the USA, where people are frequently exposed to hazardous substances while working at jobs that provide no health insurance.

Why Are Americans So Sick And Why Is It So Costly To Heal Them?

Excuse me, but the elephant in the room passing nasty gas is called Fast Food and the Sedentary Lifestyle. The major killers are heart disease, hypertension, obesity, diabetes. Christ, I talked to a young man at Fedex Kinkos who has gout! You used to have to be rich to get gout. Now any schmo can afford it. Fast Food is the Modern Bread Line — you can always supposedly buy a burger for under a dollar. But Obama should re-enact that scene in Moon Over Parador where Richard Dreyfuss, playing the role of replacement-for-a-dictator of a banana republic who goes on TV to encourage his citizens to eat healthy, “Our Paradorean food — it’s tasty — but it’ll kill you!” But if he tried, Arby would rope him, Wendy would shock him with a cattleprod, and Ronald McDonald would follow the late Ray Kroc’s adage and “stick a hose in his mouth.”

Fact is, everything about health care is backassward in this country, due to the dominance of greedy geezers who have a chokehold on the ballot box and anti-scientific agendas that legislate morality. It’s easier for an old drunk age sixty-six to get on kidney dialysis after rotting his liver with Thunderbird wine than it is for an eighth-grader with a working mom to get cavities filled. Needle-exchanges are deemed immoral, even though they close down the major vector of transmitting contagion, while the same interest group clamors to close the borders to protect against swine flu. Swine flu, for that matter, can’t be called swine flu, because the pig farmers have fed Congress so much slop they think it’s yummy. We are tied with Poland and Slovakia with the 29rd highest infant mortality rate in the world (big improvement though since 1960, when it was 12th, but the AIDS epidemic in Africa has skewed the numbers). It’s easier to get your face shot full of Botulin than it is to get treatment for skin cancer. And let’s not forget, if you’re a pop star, you can get a daisy chain of crooked MD’s to bleach your skin, carve your nose down to a stump, and issue scrips for all the sedatives you need to cope with the pain of celebrity and ultimately sedate yourself to death. At that point, the end of you will be the beginning of a windfall for the record companies, and lawyers for your estate will protect your legacy by stemming the flood of counterfeit merchandise, because after all, people come and go, but trademarks are eternal.

I’m sorry if I sound like Keith Olbermann, but this subject makes me feel like Schwarzennegger in T2 — I’ve got a Gatling gun, an endless belt of ammunition, and an infinite supply of targets. So I’ll stop now, before I get accused of indulging in an orgy of verbal violence.

Is It Competitive In The International Economy to Require People to Buy Their Own Insurance?

US businesses are at a competitive disadvantage with foreign companies in nations where health care is provided by the government. Case in point — health care costs for retirees are one of the primary causes of the GM bankruptcy. And take note, that in bankruptcy, the funds those retirees thought would be protected for their health care are going to be dwindling as financiers with lawyers sort through the wreckage. And it’s not rocket science or Nobel-prize economics to know that if you can’t afford health insurance for your employees, you’re not going to attract the “best and the brightest,” indeed, like me, you might not hire anybody at all, and just contract everything out.

Would Insuring People Protect A National Resource?

I have previously pondered why it is acceptable to insure banks as a matter of public policy, but not to insure the health of people. The issue is always put in the negative — it’s “too expensive to have people going to the ER for primary care,” and “health care costs are out of control,” etc. How about this for a novel thought? — People are our greatest resource, and they will be more productive and benefit society more abundantly if the have health care, food, and education. People think they only want to pay for their own kids to get health care, but consider the fact that some random kid who can’t get dental care or a college education might, if given a chance, go to school and discover the biotech solution to the cancer that you or your loved one may someday get. Or they might just reform the fast food industry and save us from our addictive appetites. Or negotiate peace in the Middle East, or … you get the idea. Incidentally, they will be less inclined to crime and spreading contagion by shooting IV drugs and letting their heads be used as semen receptacle to earn the price of a hit. But no, people are considered a burden, a mass of demands that need to have bread lines and entitlements to continue their lives as non-productive, uneducated “consumers,” and only corporations create value, so only corporations can suck the tit of Big Government.
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Re: Charles Carreon, The Arizona Kid

Postby admin » Fri Oct 18, 2013 12:52 am

THIRD CIRCUIT DEALS GAMBLING SYNDICATE DEAD MAN'S HAND, by Charles Carreon

09/02/09

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The Third Circuit Court of Appeals upheld New Jersey District Court Judge Mary Cooper’s decision of all legal issues against IMEGA, a gambling trade association that had argued that the Unlawful Internet Gambling Enforcement Act of 2006, 31 U.S.C. § 5361 et seq. was unconstitutional.

The law makes it illegal for companies “engage in the business of betting or wagering” to accept checks, credit cards, or other forms of payment “to place, receive, or otherwise knowingly transmit a bet or wager by any means which involves the use, at least in part, of the Internet where such bet or wager is unlawful under any applicable Federal or State law in the State or Tribal lands in which the bet or wager is initiated, received, or otherwise made.” IMEGA, referred to in the opinion as “Interactive,” argued (1) that the Act was void for vagueness, (2) that it violated the right to privacy by preventing gambling in the privacy of the home, and (3) that it violated the First Amendment right to free speech.

The Third Circuit found all three arguments had no merit. The court decided: (1) The Act was sufficiently clear for any person “of ordinary intelligence” to understand it; (2) gambling is not protected from governmental impingement in the same way as is the right to have sex in the home; and, (3) the Act did not impinge on speech in any way.

We reject Interactive’s vagueness claim. The Act prohibits a gambling business from knowingly accepting certain financial instruments from an individual who places a bet over the Internet if such gambling is illegal at the location in which the business is located or from which the individual initiates the bet. 31 U.S.C. 5362(10)(A), 5363. Thus, the Act clearly provides a person of ordinary intelligence with adequate notice of the conduct that it prohibits.

It bears repeating that the Act itself does not make any gambling activity illegal. Whether the transaction in Interactives hypothetical constitutes unlawful Internet gambling turns on how the law of the state from which the bettor initiates the bet would treat that bet, i.e., if it is illegal under that states law, it constitutes unlawful Internet gambling under the Act.

In sum, we must reject Interactives facial challenge to the Act. Simply put, a gambling business cannot knowingly accept the enumerated financial instruments in connection with a bet that is illegal under any Federal or State law applicable in the jurisdiction in which the bet is initiated or received. Thus, the Act provide[s] a person of ordinary intelligence fair notice of what is prohibited. Williams, 128 S. Ct. at 1845.4A

Next, Interactive contends that the District Court erred in rejecting its claim that the Act violated a constitutional right of individuals to engage in gambling-related activity in the privacy of their homes. As noted above, the District Court held that Interactive lacked standing to assert the rights of third-party gamblers, and alternatively, that the claim failed on the merits.

We share the District Courts doubts regarding Interactives standing to assert these claims, particularly because Interactive does not itself have any relationship with individual gamblers, but rather seeks to assert third-party standing based on its members relationships with such gamblers. However, … we need not decide whether Interactive has standing because, even assuming that it does, we agree with the District Court that Interactives claim clearly fails on the merits.

Interactives reliance on those cases is misplaced. Both Lawrence and Earle involved state laws that barred certain forms of sexual conduct between consenting adults in the privacy of the home. Lawrence, 539 U.S. at 567; Earle, 517 F.3d at 744. As the Supreme Court explained in Lawrence, such laws touch[] upon the most private human conduct, sexual behavior, and in the most private of places, the home. 539 U.S. at 567. Gambling, even in the home, simply does not involve any individual interests of the same constitutional magnitude. Accordingly, such conduct is not protected by any right to privacy under the constitution.

In its effort to locate a constitutional privacy right to engage in Internet gambling from ones home, Interactive looks primarily to Lawrence v. Texas, 539 U.S. 558 (2003), and Reliable Consultants, Inc. v. Earle, 517 F.3d 738 (5th Cir. 2008).

Before the District Court, 8 Interactive primarily pursued a claim that the Act violated the First Amendment. Although Interactive stated at oral argument that it had not abandoned that claim, it only tangentially mentions this argument in its papers to this court. In any event, the Act only criminalizes the knowing acceptance of certain financial instruments in connection with unlawful gambling. Simply put, such conduct lacks any communicative element sufficient to bring it within the ambit of the First Amendment. United States v. OBrien, 391 U.S. 367, 376 (1968).


The opinion is available at the link below.

Interactive Media Entertainment and Gaming Association, Inc. v. United States
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Re: Charles Carreon, The Arizona Kid

Postby admin » Fri Oct 18, 2013 12:59 am

NOT SO FAST! OBAMA'S NOBEL SUBJECT TO CONGRESSIONAL APPROVAL, by Charles Carreon

10/13/09

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The Emoluments clause, U.S. Constitution Article I, Section 9, Clause 8 (art. I, § 9, cl. 8), provides:

No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.


In a memorandum finding that NASA employees could not take paid leave to work for a Canadian University that was chartered under Canadian law, the United States Department of Justice has defined “King, Prince or foreign State” to include foreign universities:

Foreign public universities are, presumptively, foreign States within the meaning of the Clause.

The language of the Emoluments Clause is both sweeping and unqualified. The Clause in terms prohibits those holding offices of profit or trust under the United States from accepting “any present, Emolument, Office, or Title, of any kind whatever” from “any . . . foreign State” unless Congress consents (emphases added). There is no express or implied exception for emoluments received from foreign States when the latter act in some capacity other than the performance of their political, military or diplomatic functions. The decision whether to permit exceptions that qualify the Clause’s absolute prohibition or that temper any harshness it may cause is textually committed to Congress, which may give consent to the acceptance of offices or emoluments otherwise barred by the Clause.

*** Those who hold offices under the United States must give the government their unclouded judgment and their uncompromised loyalty. That judgment might be biased, and that loyalty divided, if they received financial benefits from a foreign government, even when those benefits took the form of remuneration for academic work or research. Moreover, institutions of higher learning are often substantially funded, whether directly or indirectly, by their governments, and university research programs or other academic activities may be linked to the missions of their governmental sponsors, including national scientific and defense agencies.

Accordingly, we conclude that foreign governmental entities, including public universities, are presumptively instrumentalities of foreign States under the Emoluments Clause, even if they do not engage specifically in political, military or diplomatic functions.



There can be no doubt that the Nobel Prize Committee is an institution of the Norwegian government. The Nobel website states:

Since the first Nobel Prizes were awarded in 1901, the Peace Prize has, in accordance with Alfred Nobel’s will, been awarded by a committee of five, appointed by the Storting (the Norwegian Parliamant), but without the committee being formally responsible to the Storting. According to rules laid down by the Storting, election to the committee was to be for a six-year term, and members could be re-elected. The committee’s composition should reflect the relative strengths of the political parties in the Storting, but the committee has elected its own chairman and deputy chairman. It was never required by the rules and on some occasions the matter has been debated, but so far all committee members have been Norwegian nationals.


Given that the avowed purpose of the award is to empower the President to exercise his influence in support of the Nobel commission’s mission to allegedly foment world peace, and comes with a very substantial “emolument,” $1.4 Million USD, it should be no-brainer that this comes up in front of Congress. Mr. Reid, Madam Pelosi, front and center! Let’s get this done before we vote on health care, okay?

This issue has already been raised by an anonymous poster, so I cannot claim to be an original thinker. However, the question is rather obvious, and I am uncertain why Attorney General Eric Holder has failed to consider it. Except, perhaps, that reading the Constitution isn’t a big priority inside the Beltway.

P.S. What I didn't cover here was this, far more trenchant question -- since when is the Commander in Chief of the world's largest rogue police force, a man who has failed to make good on promises to end torture and adventurism, who props up a puppet dictator in Afghanistan, and presides over a drone force that kills people like targets in a video game, a "Peace Prize" Winner?

APPLICABILITY OF EMOLUMENTS CLAUSE TO EMPLOYMENT OF GOVERNMENT EMPLOYEES BY FOREIGN PUBLIC UNIVERSITIES

The Emoluments Clause does not apply in the cases of government employees offered faculty employment by a foreign public university where it can be shown that the university acts independently of the foreign State when making faculty employment decisions.

March 1, 1994

MEMORANDUM FOR LAWRENCE F. WATSON
CHIEF COUNSEL
GODDARD SPACE FLIGHT CENTER
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

This memorandum responds to your request of September 9, 1993, for our opinion concerning the applicability of the Emoluments Clause, U.S. Const. art. I, § 9, cl. 8, to the employment by the University of Victoria in British Columbia, Canada, of two scientists on leave without pay from the Goddard Space Flight Center (Goddard), a component of the National Aeronautics and Space Administration (NASA). (1) We conclude that the Emoluments Clause does not apply in these cases.

I.

As Goddard has explained, Drs. Inez Fung and James K. B. Bishop have sought your administrative approval for employment as Professors in the School of Earth and Ocean Sciences at the University of Victoria until August 31, 1994. During that period, the two scientists would be in Leave Without Pay status from their positions at the Goddard Institute for Space Studies, a component of Goddard. (Goddard is itself a NASA field installation.) Both scientists hold the position of Aerospace Technology (AST)/Global Ecology Studies at the GS-15 level. For their services in teaching and research while on leave, Drs. Fung and Bishop would be paid $85,000 and $70,000 respectively by the University of Victoria.

The University of Victoria operates under the University Act, a statute enacted by the legislature of British Columbia. See University Act, R.S.B.C. 1979, ch. 419, as amended; Goddard Mem., Attachment 7. The Act provides that the university is to consist of a chancellor, convocation, board, senate and faculties. Id., Pt. 3, § 3(2). The chancellor is to be elected by the members of the convocation, id., Pt. 5, § 11(1), and is to serve on the board of governors, id., Pt. 6, § 19(a). The convocation is composed of the chancellor, the president, the members of the senate, all faculty members, all graduates, all persons added to the roll of the convocation by the senate, and all other persons carried on the roll before July 4, 1974. Id., Pt. 4, § 5.

The Supreme Court of Canada has outlined the powers of the boards of governors and senates subject to the University Act:

Under the University Act, R.S.B.C. 1979, c. 419, the management, administration and control of the property, revenue, business and affairs of the university are vested in a board of governors consisting of 15 members. Eight of the members are appointed by the Lieutenant Governor in Council, but two of these must be nominated by the alumni association. The provincial government, therefore, has the power to appoint a majority of the members of the board of governors, but it does not have the power to select a majority. The academic government of the university is vested in the senate, only a minority of the members of which are appointed by the Lieutenant Governor.

Harrison v. University of British Columbia, [1990] 3 S.C.R. 451, 459 (judgment of Dickson, C.J., and La Forest and Gonthier, JJ.) (plurality op.). Further, "under s. 22(1) of the Act, the Lieutenant Governor 'may, at any time, remove from office an appointed member of the board.'" Id. at 467 (Wilson, J., dissenting).

In general, the "management, administration and control of the property, revenue, business and affairs of the university are vested in the board." University Act, Pt. 6, § 27. In addition, the university "enjoys special government-like powers in a number of respects and the exercise of these would presumably fall under the jurisdiction of the board. It has the power to expropriate property under s. 48 and its property is protected against expropriation under s. 50. It is exempt from taxation under s. 51. The board may also borrow money to meet University expenditures (s. 30) and appoint advisory boards for purposes it considers advisable (s. 33). The University may not dispose of its property without the approval of the Lieutenant Governor (s. 47(2))." Harrison, [1990] 3 S.C.R. at 467 (Wilson, J., dissenting).

As pointed out above, the academic governance of the university is vested in the senate. University Act, Pt. 7, § 36. The senate is composed of a number of persons, including the Chancellor, the President, deans, administrators, faculty, students, 4 members of convocation, representatives of affiliated colleges, and 4 persons appointed by the Lieutenant Governor. Id., § 34. Thus, only a relatively small minority of the senate will consist of governmental appointees. (2)

Finally, the faculty is "constituted by the board, on the recommendation of the senate." University Act, Pt. 8, § 38. The faculty has various powers, including the power to determine, subject to the approval of the senate, courses of instruction. Id., § 39(d).

II.

The Emoluments Clause, U.S. Const. art. I, § 9, cl. 8, provides:

No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.

Goddard advances two basic arguments for concluding that the Emoluments Clause is inapplicable in these cases. First, it maintains that the University of Victoria is not a "foreign State" within the meaning of the Clause. Second, it suggests that when a Federal employee is on Leave of Absence Without Pay status, he or she does not occupy an "Office of Profit or Trust" under the United States. For reasons somewhat different from Goddard's, we agree that the Clause is inapplicable here. Although we believe that foreign public universities, such as the University of Victoria, are presumptively foreign States under the Emoluments Clause, we also find that, in this case, the university can be shown to be acting independently of the foreign State with respect to its faculty employment decisions. Because such a showing can be made, we conclude that in that context the University of Victoria should not be considered a foreign State.

A.

The Emoluments Clause was adopted unanimously at the Constitutional Convention, and was intended to protect foreign minister (3) James Madison's notes on the Convention for August 23, 1787 report:

Mr[.] Pinkney urged the necessity of preserving foreign Ministers & other officers of the U.S. independent of external influence and moved to insert -- after Art[.] VII sect[.] 7. the clause following -- "No person holding any office of profit or trust under the U.S. shall without the consent of the Legislature, accept of any present, emolument, office or title of any kind whatever, from any King, Prince or foreign State["] which passed nem: contrad.

2 M. Farrand (ed.), The Records of the Federal Convention of 1787 389 (1966); see also 3 id. at 327 (remarks of Governor Randolph). (4) "Consistent with its expansive language and underlying purpose, the provision has been interpreted as being 'particularly directed against every kind of influence by foreign governments upon officers of the United States, based upon our historic policies as a nation.' 24 Op. Att'y Gen. 116, 117 (1902) (emphasis in original)." Applicability of Emoluments Clause to Proposed Service of Government Employee on Commission of International Historians, 11 Op. O.L.C. 89, 90 (1987).

Our Office has been asked from time to time whether foreign entities that are public institutions but not diplomatic, military or political arms of their government should be considered to be "foreign State[s]" for purposes of the Emoluments Clause. In particular, we have been asked whether foreign public universities constitute "foreign State[s]" under the Clause. Our prior opinions on this subject have not been a seamless web. Thus, in an opinion that Goddard cites and relies upon, we concluded that while the University of New South Wales was clearly a public institution, it was not so clear that it was a "foreign State" under the Emoluments Clause, given its functional and operational independence from the federal and state governments in Australia. (5) Accordingly, we opined that the question posed there -- whether a NASA employee could accept a fee of $150 for reviewing a Ph.D. thesis -- had to be answered by considering the particular circumstances of the case, in order to determine whether the proposed arrangement had the potential for corruption or improper foreign influence of the kind that the Emoluments Clause was designed to address. On other occasions, however, we have construed the Emoluments Clause to apply to public institutions of higher education in foreign countries without engaging in such an inquiry. (6)

In re-examining these precedents, we have considered the claim that foreign universities, even if "public" in character, should generally not be considered to be instrumentalities of foreign States for purposes of the Emoluments Clause. On behalf of this view, it can be argued that the Clause was designed to guard against the exercise of improper influence on United States officers or employees by the political, military or diplomatic agencies of foreign States, because payments by those agencies are most likely to create a conflict between the recipient's Federal employment and his or her outside activity. Because public universities do not generally perform such functions, they ought not, on this analysis, to be brought within the Clause. (7)

After considering the question carefully, we have concluded that such an interpretation of the Emoluments Clause is mistaken. Foreign public universities are, presumptively, foreign States within the meaning of the Clause. (8)

The language of the Emoluments Clause is both sweeping and unqualified. (9) The Clause in terms prohibits those holding offices of profit or trust under the United States from accepting "any present, Emolument, Office, or Title, of any kind whatever" from "any . . . foreign State" unless Congress consents (emphases added). There is no express or implied exception for emoluments received from foreign States when the latter act in some capacity other than the performance of their political, military or diplomatic functions. The decision whether to permit exceptions that qualify the Clause's absolute prohibition or that temper any harshness it may cause is textually committed to Congress, which may give consent to the acceptance of offices or emoluments otherwise barred by the Clause. (10)

Further, it serves the policy behind the Emoluments Clause to construe it to apply to foreign States even when they act through instrumentalities such as universities which do not perform political, military or diplomatic functions. Those who hold offices under the United States must give the government their unclouded judgment and their uncompromised loyalty. (11) That judgment might be biased, and that loyalty divided, if they received financial benefits from a foreign government, even when those benefits took the form of remuneration for academic work or research. (12) Moreover, institutions of higher learning are often substantially funded, whether directly or indirectly, by their governments, and university research programs or other academic activities may be linked to the missions of their governmental sponsors, including national scientific and defense agencies. (13) Thus, United States Government officers or employees might well find themselves exposed to conflicting claims on their interests and loyalties if they were permitted to accept employment at foreign public universities. (14)

Finally, Congress has exercised its power under the Emoluments Clause to create a limited exception for academic research at foreign public institutions of learning. The Foreign Gifts and Decorations Act provides in part that Federal employees may accept from foreign governmental sources "a gift of more than minimal value when such gift is in the nature of an educational scholarship." 5 U.S.C. § 7342(c)(1)(B). (15) Thus, Congress has recognized that foreign governmental bodies may wish to reward or encourage scholarly or scientific work by employees of our Government, but has carefully delimited the circumstances in which Federal employees may accept such honors or emoluments. That suggests that Congress believes both that the Emoluments Clause extends to paid academic work by Federal employees at foreign public universities, and that the Clause's prohibition on such activity should generally remain in force.

Accordingly, we conclude that foreign governmental entities, including public universities, are presumptively instrumentalities of foreign States under the Emoluments Clause, even if they do not engage specifically in political, military or diplomatic functions. (16)

B.

Having found that foreign public universities may and presumptively do fall under the Emoluments Clause, we turn next to the question whether the University of Victoria in particular is an instrumentality of a foreign State (the province of British Columbia), and hence within the Clause. We conclude that it is not, at least with respect to the faculty employment decisionmaking that is in issue here.

Goddard contends that "[t]he ability of [Canadian] federal or provincial government officials to influence and control the actions of [the University of Victoria's board, senate and faculty] is most possible concerning the Board, but in all three cases is minimized by the other members of the organizations, the sources from which those members are obtained, the method of their nominations and appointments, and the procedures concerning replacement . . . Thus, it appears [that] the University of Victoria is established as a largely self-governing institution, with minimal influence exercisable over the daily affairs and even general policies of the University." Goddard Mem. at 6.

Without attempting to decide whether, as Goddard claims, the University of Victoria is generally free from the control of the provincial government of British Columbia, we think that the evidence shows that the university is independent of that government when making faculty employment decisions. We rely here chiefly on the Supreme Court of Canada's decisions in the Harrison case, cited above, and in the companion case, McKinney v. University of Guelph, [1990] 3 S.C.R. 229.

The principal question presented in Harrison was whether the University of British Columbia's mandatory retirement policy respecting its faculty and administrative staff was consistent with the requirements of the Canadian Charter of Rights and Freedoms (the Charter). (17) Whether the Charter applied turned on whether the challenged policy constituted governmental action -- an inquiry raising issues at least somewhat akin to those posed by the "State action" doctrine in United States jurisprudence. See Harrison, [1990] 3 S.C.R. at 463 (plurality op.). (18) Over dissent, the Court held that the university's policy was not governmental action under the Charter. In reaching that conclusion, three of the seven judges drew a distinction between "ultimate or extraordinary control and routine or regular control," and held that while the government of British Columbia may be able to exercise the former, it lacked "the quality of control that would justify the application of the Charter." Id.; see also id. at 478 (L'Heureux-Dubé, J., dissenting on the appeal only) (university not "government" for purpose of section 32 of Charter).

Similarly, in McKinney, a majority of the Court, again over dissent, held that the mandatory retirement policies of the defendant universities (there, located in the Province of Ontario) did not implicate the Charter. Moreover, the lead opinion emphasized the autonomy of the provincial universities when making faculty employment decisions:

The Charter apart, there is no question of the power of the universities to negotiate contracts and collective agreements with their employees and to include within them provisions for mandatory retirement. These actions are not taken under statutory compulsion, so a Charter attack cannot be sustained on that ground. There is nothing to indicate that in entering into these arrangements, the universities were in any way following the dictates of the government. They were acting purely on their own initiative . . . The legal autonomy of the universities is fully buttressed by their traditional position in society. Any attempt by government to influence university decisions, especially decisions regarding appointment, tenure and dismissal of academic staff, would be strenuously resisted by the universities on the basis that this could lead to breaches of academic freedom. In a word, these are not government decisions.

McKinney, [1990] 3 S.C.R. at 269, 273 (plurality op.); see also id. at 418-19 (L'Heureux-Dubé, J., dissenting) (while universities may perform certain public functions attracting Charter review, hiring and firing of employees at universities in both British Columbia and Ontario are not among such actions; "Canadian universities have always fiercely defended their independence.").

While the Ontario statute at issue in McKinney differed from the British Columbia statute considered in Harrison (in particular, Ontario's statutes, unlike British Columbia's, did not permit the provincial government to appoint a majority of a university board's membership), the Harrison plurality held that these differences did not establish that the core functions of the British Columbian universities were under the province's control. Harrison, [1990] 3 S.C.R. at 463-64 (plurality op.) Thus, the Court's statements in McKinney concerning the autonomy of Ontario's universities in matters of faculty employment would apparently hold true for the universities in British Columbia as well. (19) Furthermore, even the dissent in Harrison acknowledged "the lack of government control over the mandatory retirement policies specifically in issue here and over matters specifically directed to the principle of academic freedom." Id. at 472 (Wilson, J., dissenting). (20) The remaining member of the Court accepted the trial court's finding that the university's employment agreements were essentially private contracts. Id. at 479-80 (L'Heureux-Dubé, J., dissenting on appeal only).

These Canadian cases cannot of course determine our interpretation of the Emoluments Clause. But they do provide compelling evidence that the University of Victoria is independent of the government of British Columbia with respect to decisions regarding the terms and conditions of faculty employment. Because that showing can be made, we believe the university should not be considered to be a foreign State under the Emoluments Clause when it is acting in that context. (21)

Conclusion

The Emoluments Clause does not prohibit the two NASA scientists from accepting paid teaching positions at the University of Victoria during their unpaid leave of absence from their agency.

Walter Dellinger

Assistant Attorney General

1 See Letter to Walter Dellinger, Acting Assistant Attorney General, Office of Legal Counsel, from Lawrence F. Watson, Chief Counsel, Goddard Space Flight Center, National Aeronautics and Space Administration, dated September 9, 1993 (the Goddard Mem.).

2 "With respect to some important matters, however, the decisions of the senate are effectively controlled by the board of governors." Harrison, [1990] 3 S.C.R. at 469 (Wilson, J., dissenting). For example, "every resolution passed by the senate respecting the establishment or discontinuance of any faculty, department, course of instruction, chair fellowship, scholarship, exhibition, bursary or prize (s. 36(i)) as well as internal faculty matters and terms of affiliation with other universities is of no force or effect unless approved by the board (s. 37)." Id.

3 See, e.g., The Federalist No. 22, at 149 (Alexander Hamilton) (Clinton Rossiter ed., 1961) ("One of the weak sides of republics, among their numerous advantages, is that they afford too easy an inlet to foreign corruption.").

4 The Emoluments Clause builds upon practices that had developed during the period of the Confederation. "It was the practice of Louis XVI of France to give presents to departing ministers who signed treaties with France. Before he left France in mid-1780, Arthur Lee received a portrait of Louis set in diamonds atop a gold snuff box. In October 1780 Lee turned the gift over to Congress, and on 1 December Congress resolved that he could keep the gift. In September 1785 Benjamin Franklin informed Secretary for Foreign Affairs John Jay that, when he left France, Louis XVI presented him with a miniature portrait of himself, set with 408 diamonds. In October Jay recommended to Congress that Franklin be permitted to keep the miniature in accordance with its December 1780 ruling about a similar miniature given to Lee. In March 1786 Congress ordered that Franklin be permitted to keep the gift. At the same time, Congress also allowed Jay himself to accept the gift of a horse from the King of Spain even though Jay was then engaged in negotiations with Spain's representative, Don Diego de Gardoqui." 10 John P. Kaminski et al. (eds.), The Documentary History of the Ratification of the Constitution 1369 n.7 (1993). See also President Reagan's Ability to Receive Retirement Benefits from the State of California, 5 Op. O.L.C. 187, 188 (1981) (discussing background to ratification of Clause).

5 See Memorandum to H. Gerald Staub, Office of Chief Counsel, NASA, from Samuel A. Alito, Jr., Deputy Assistant Attorney General, Office of Legal Counsel, re: Emoluments Clause Questions raised by NASA Scientist's Proposed Consulting Arrangement with the University of New South Wales (May 23, 1986).

6 See, e.g., Memorandum to File from Robert J. Delahunty, Acting Special Counsel, re: Applicability of Emoluments Clause to Employment of CFTC Attorney by East China Institute of Politics and Law (Aug. 27, 1992); Memorandum to Files from Barbara E. Armacost, re: Emoluments Clause and Appointment to the President's Committee on the Arts and Humanities (Nov. 15, 1990). The General Accounting Office has reached a similar result in a related context. See 44 Comp. Gen. 130 (1964) (retired Coast Guard officer subject to recall to active duty held not entitled to retirement pay for period in which he was teaching for Department of Education of State of Tasmania, Australia).

7 See Gerald S. Schatz, Federal Advisory Committees, Foreign Conflicts of Interest, The Constitution, and Dr. Franklin's Snuff Box, 2 Dist. Colum. L. Rev. 141, 163, 166 (1993) ("The Emoluments Clause's reference to foreign states was a reference to foreign governments' acts in their sovereign capacity, as distinguished from the acts . . . of foreign governmental entities without the legal capacity to represent the national sovereign . . . . The Clause addresses the problem of conflict of interest on the part of a U.S. Government functionary vis-à-vis a foreign sovereign in a sovereign capacity. The Clause thus may not be assumed to disqualify from U.S. Government service . . . an academic paid by a foreign government with which the officer does not deal").

8 See also Memorandum to Gary J. Edles, General Counsel, Administrative Conference of the United States, from Walter Dellinger, Assistant Attorney General, Office of Legal Counsel, re: Applicability of Emoluments Clause To Non-Government Members of ACUS, at 10-12 (October 28, 1993) (opining that Emoluments Clause applies to foreign public universities).

9 Accord 49 Comp. Gen. 819, 821 (1970) (the "drafters [of the Clause] intended the prohibition to have the broadest possible scope and applicability").

10 Accordingly, Congress has acted in appropriate cases to relieve certain classes of government personnel, e.g., retired military officers, from applications of the Clause. See Ward v. United States, 1 Cl. Ct. 46 (1982).

11 See Application of Emoluments Clause to Part-Time Consultant for the Nuclear Regulatory Commission, 10 Op. O.L.C. 96, 100 (1986).

12 Consistently with this view, we have opined that an employee of the National Archives could not serve on an international commission of historians created and funded by the Austrian Government to review the wartime record of Dr. Kurt Waldheim, the President of Austria. See Applicability of Emoluments Clause to Proposed Service of Government Employee on Commission of International Historians, supra.

13 Goddard's own link with Columbia University in New York City, see Goddard Mem. at 3, 7, is illustrative.

14 Of course, the same predicament could arise if Government employees worked at private universities abroad (or even in the United States). But the fact that the Emoluments Clause does not address every situation in which Government employees might be subjected to improper influence from foreign States is no reason to refuse to apply it to the cases which it does reach.

15 We have opined that this exception applied to an award of approximately $24,000 by a foundation acting on behalf of the West German Government to a scientist employed by the Naval Research Laboratory. We reasoned that a "program designed to honor United States scientists and enable them 'to stay for an extended period at research institutes in the Federal Republic of Germany to carry out research of the Awardee's own choice' seems to be in the nature of an educational scholarship, acceptance of which Congress has permitted." Letter to Walter T. Skallerup, Jr., General Counsel, Department of the Navy, from Robert B. Shanks, Deputy Assistant Attorney General, Office of Legal Counsel, at 4 (March 17, 1983).

16 We would also reject any argument that foreign public universities should be excluded from the purview of the Emoluments Clause on the theory that the Clause must be taken to prohibit only the acceptance of office or emoluments bestowed by a foreign State while engaged in performing "traditional" governmental functions, i.e., functions that governments would normally have performed at the time of the framing. The theory assumes that governmental support for higher education would not have been among such functions. The argument has several flaws. First, there is no such exception provided by or implicit in the language of the Clause. Second, the purposes of the Clause are better served if it is understood to cover all the functions of modern government, not some narrow class of them. Third, the Framers appear to have thought that support for higher education was indeed a legitimate function of government. The Constitutional Convention considered a proposal to empower Congress to establish a national university, but rejected it on the ground that the power was already embraced within the District of Columbia Clause. See 2 M. Farrand (ed.), The Records of the Federal Convention of 1787 616 (1966). President George Washington, in his first and eighth annual addresses, called on Congress to consider establishing a national university. See 30 John Fitzpatrick (ed.), The Writings of George Washington 494 (1939); 35 id. 316-17.

17 The Canadian Charter is, in essence, a bill of rights. The Federal Government of Canada "enacted first the Canadian Bill of Rights, R.S.C., 1985, App. III, in 1960 and then the Canadian Charter of Rights and Freedoms in 1982, the latter having constitutional status. The values reflected in the Charter were to be the foundation of all laws, part of the 'supreme law of Canada' against which the constitutionality of all other laws was to be measured." McKinney v. University of Guelph, [1990] 3 S.C.R. at 355 (Wilson, J., dissenting).

18 But see McKinney, [1990] 3 S.C.R. at 274-75 (judgment of Dickson, C.J., and La Forest and Gonthier, JJ.) (noting certain differences between Canadian and American doctrines) (plurality op.); id. at 343-44 (Wilson, J., dissenting) ("This Court has already recognized that while the American jurisprudential record may provide assistance in the adjudication of Charter claims, its utility is limited . . . . The Charter has to be understood and respected as a uniquely Canadian constitutional document.").

19 Judge Sopinka concurred in the conclusions and reasoning of the Harrison plurality except on the question whether the mandatory retirement policy was "law" within the meaning of section 15(1) of the Canadian Charter. He would have preferred not to decide that question on the basis of the assumption that the university was part of the government. Harrison, [1990] 3 S.C.R. at 481. In McKinney, Judge Sopinka agreed that "a university is not a government entity for the purpose of attracting the provisions of the Canadian Charter of Rights and Freedoms. " [1990] 3 S.C.R. at 444. While not being willing to say that "none of the activities of a university are governmental in nature," he was of the opinion that "the core functions of a university are non-governmental and therefore not directly subject to the Charter. This applies a fortiori to the university's relations with its staff . . . ." Id. As in his opinion in Harrison, he preferred not to reach the question whether, if a university were part of the government, its mandatory retirement policies would be "law" for purposes of the Canadian Charter. Id.

20 Judge Cory agreed with Judge Wilson that the University of British Columbia formed part of the government for purposes of section 32 of the Canadian Charter, but disagreed with her on other grounds. Harrison, [1990] 3 S.C.R. at 481.

21 Since it is not necessary to our decision, we do not address Goddard's alternative argument that Federal employees in Leave Without Pay status do not occupy an Office of Profit or Trust within the meaning of the Emoluments Clause.
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