30 November 2011

The MMA Ban and the First Amendment: The New York Legislature Embarrasses Itself

Stephen Kershnar
New York’s Ban on Mixed Martial Arts
Dunkirk-Fredonia Observer
November 27, 2011

In 1997, New York banned mixed martial arts (MMA). MMA involves combat that combines a range of more specific combat sports, dominant among them wrestling, boxing, Brazilian jujitsu, and karate. New York is in the minority here. Currently, 45 of 48 of states with athletic commissions permit and regulate MMA. The law was pushed by New York City Mayor Rudy Giuliani and signed into law by Government George Pataki.

Recently, Zuffa, LLC, the parent company of the Ultimate Fighting Championship (UFC) along with a number of professional fighters and fans sued the New York officers who enforce the ban, specifically, the State Attorney General and the New York City Attorney General. The plaintiffs assert that the ban violates the Constitution, including the First Amendment, Due Process Clause, Equal Protection Clause, and Commerce Clause. I’ll focus on the First Amendment.

The First Amendment argument runs as follows. As Slate’s Dahlia Lithwick points out, the ban allows amateurs to participate in MMA, but prohibits people from advancing or profiting from it. That is, the ban targets the public performance of MMA, not the fighting that comprises it. New York enacted a narrow ban because the legislature didn’t like MMA’s message. Specifically, it wanted to protect children by banning the sport’s glorification of violence. The bill’s sponsors, Senator Goodman and Assemblyman Kaufman, were clear that they sought to ban the public performance of MMA in part because of the message it sends to children.

On a side note, this ban is uncommonly silly. Children in New York children are awash in glorifications of violence. Consider first-person shooter games, violent movies and rap music, and professional wrestling. MMA is unlikely to add much to this atmosphere. However, uncommon silliness does not make a law unconstitutional.

The problem with the ban is that the Supreme Court has been crystal clear in holding that the Constitution prohibits governments from banning a specific message, whether directly or indirectly. There are exceptions to this general rule, but they focus on a few narrow categories. The Court held that governments may ban obscenity (graphic pornography without redeeming value), child pornography (graphic child pornography), fighting words (expressions that tend to immediately cause violence), clear-and-present danger (expressions that tend to cause immediately dangerous situations), and fraud. Glorification of violence does not fit into any of these categories.

In a recent case, Brown v. Entertainment Merchants Association (2011), the Supreme Court again made it clear that states may not create new categories of unprotected expression. It specifically held that they may not ban glorifications of violence (in videogames), even when done to protect children.

Worse, the ban is so poorly written that it likely covers expressive activity that is uncontroversially protected by the First Amendment. The ban makes it a crime for people to “materially aid” a combative sport activity. As the plaintiffs point out, the materially aid clause is so sloppily written that it might cover citizens to write to state officials asking them to repeal New York state’s MMA ban, a local artist who sells t-shirts with pro-MMA slogans, New York film distributers who produce videos of MMA bouts in other states, and video “parties” at Madison Square Garden where people pay to watch MMA fights on the big screen.

The plaintiff’s other argument (New York is shutting down its message) is less clear. Their claim is that professional MMA sends messages about discipline, challenge, and inspiration. This includes the following specific messages: skill and training can accomplish remarkable things, skill and training can defeat brawn and brutality, respect for one’s opponent is consistent with combat sports, and it is admirable to be courageous in the face of a challenge. Other MMA proponents (for example, legendary fighter Renzo Grace) see the message aesthetic terms, analogous to the strategic beauty of chess. The general test for a message for First Amendment protection is whether there is a statement that the agent tries to send and the audience is likely to receive. It is not obvious that professional MMA bouts contain such a message.

The problem is that parallel arguments could be made with regard to obscenity (graphic pornography). Its message is the pleasure can be achieved through excellent performances and a range of sexual practices. It also expresses how conventional limitations on sex (limiting it to married couples, twosomes, heterosexuality, or the vagina) are outdated and hinder both pleasure and artistic displays of the human body. Still, this inconsistency is irrelevant given that the Justices who foolishly allowed the obscenity-exception to be written into the Constitution (see William Brennan) are gone and the current ones have largely prevented further rewriting.

A bigger problem for the shutting-down-message argument is that, as Jonathan Snowden of MMA Nation points out, even the UFC’s attorney, Barry Friedman, concedes that courts are skeptical about the right to engage in sport for sake of sport. For example, Friedman mentions a case allowing a municipality to ban jogging without a shirt or numchuk possession. One can see the motivation here. First, the messages here often have minimal, trivial, or vague content. For example, what message does topless jogging send?

Second, the sport category appears to be irrelevant to the Constitution. A few years ago it was incorrectly reported that for a fee, a Nevada business was allowing men to hunt naked women (employees) with paintball guns. Whether this activity is protected by the Constitution does not depend on whether this is a sport. This can be seen in that the category sport is not mentioned in the Constitution, not part of the drafters or ratifiers’ intentions, not part of what justifies it, and so on.

Third, the sport exception might result in various unprotected activities being repackaged as sport so that they might receive First Amendment protection. For example, The World’s Biggest Gang Bang 3 is a film of a woman having sex with 600 men. Were courts to recognize sport-based protection, the film could be repackaged as a sport and thereby receive First Amendment protection. It could be staged as a live sporting event, perhaps even to minors.

Were New York State’s ban to cover all MMA and not merely the public performances of it, then the ban might withstand Constitutional scrutiny, although it would be obviously irrational. The ban specifically allows boxing, wrestling, and karate competitions (Brazilian jujitsu is independently permitted) even though they comprise the vast majority of MMA action. What’s more MMA is as safe, if not more so, than a number of permitted sporting events, including professional boxing, football, ice hockey, car racing, equestrian sports, and rodeos. One study found that it was one-twentieth as dangerous as football.

Overall, the First Amendment case for striking down New York’s ban is strong because it is overbroad and, perhaps, because it targets a group’s constitutionally protected message. The law is so sloppy that it should also fall due to Due Process defects, such as vagueness and gross irrationality.

16 November 2011

Joe Paterno and the Sexual-Abuse Scandal

Stephen Kershnar
Blaming Joe Paterno
Dunkirk-Fredonia Observer
November 14, 2011

A sexual abuse scandal has brought down legendary Pennsylvania State University football coach Joe Paterno. At issue is whether he is guilty of a crime or a moral failure. Let me begin by stating the obvious: sexually assaulting children is extremely harmful, horribly wrong, highly illegal, and should not be tolerated.

Here are the facts as set out by Wikipedia, The Washington Post, ESPN, Sports Illustrated, and other news sources. For 31 years, Jerry Sandusky served as an assistant coach under head coach Paterno from 1969 to 1999. For 23 of those years, he was the team’s defensive coordinator (lead defensive coach). In 1977, he founded a charity (The Second Mile) designed to help troubled boys at State College, Pennsylvania, where Penn State is located. Roughly two weeks ago (November 5, 2011), Sandusky was arrested and charged with 40 criminal counts of sex crimes against boys. This includes seven counts of sexual assault (involuntary deviant sexual intercourse), seven counts of indecent assault, eight counts of corruption of minors, and so on.

The evidence for these alleged crimes is not new. In 2000, a janitor noticed Sandusky in a Penn State shower performing oral sex on a boy. He reported what he saw to his supervisor, but the latter did not pass this information on to school officials or the police. In 2010, assistant coach Mike McQueary saw Sandusky sodomizing a ten-year-old boy in the shower. He did not intervene, but later reported the incident to Paterno. The next day Paterno relayed this information to Athletic Director Tim Curley. Curley and Penn State Senior Vice President Gary Schultz (the administrator in charge of the police) ordered Sandusky not to bring any more children from Second Mile to the football building. University President Graham Spanier approved this order. None of the three appear to have taken further action. Sandusky was allowed to operate a summer camp on a Penn State satellite campus (Behrend near Eric), where he had daily contact with boys ages 9 to 18.

Curley and Schultz appeared before a grand jury. They testified that McQueary didn’t tell them of sexual activity. They were then charged with perjury (lying about McQueary) and failure to report suspected child abuse to the police. Penn State placed Curley on administrative leave and Schultz resigned. The Board of Trustees gave Spanier an ultimatum: resign or be fired. He resigned. Paterno offered to retire, but the Board refused and fired him.

One issue is whether Paterno committed a crime. University of Mississippi law professor Michael McCann argues that while possible charges against him include obstruction of justice, perjury, and failure to report suspected child abuse, he is probably not legally guilty of these crimes. Legally, a person obstructs justice when he conceals evidence or when he delays or frustrates a criminal investigation. Paterno probably didn’t do this because the day after McQueary spoke to him, he reported a version of what he heard to his boss, Tim Curley. Under oath, Paterno testified that McQueary told him that Sandusky was engaged in a general act (“doing something of a sexual nature”) to a boy, whereas McQueary testified he told Paterno that Sandusky was engaged in anal intercourse, but it is doubtful this difference, and how it affected what he told Curley, obstructs justice. Also, there is a time limit on pursuing this crime and it is about to expire.

Paterno is likely not legally guilty of perjury. The difference in Paterno’s and McQueary’s testimony is not clearly lying (intentional misrepresentation). Paterno might have failed to remember exactly what he was told (most of us can’t remember exactly what we were told and Paterno is 84 years old). Also, convicting Paterno would require a prosecutor to show that McQueary, rather than Paterno, did not misremember what he said or lie. Given his failure to intervene, McQueary might be seen as having a motive to misstate what he told Paterno.

Nor is Paterno likely legally guilty of failing to report sexual abuse. The Pennsylvania Child Protective Services Law requires teachers and school administrators to report alleged abuse to child protective services, police, or a supervisor. Paterno did this. In addition, it is doubtful that the law applies to him.

The moral issue is murkier. Was Paterno blameworthy for failing to do more? First, Paterno promptly turned the information over to his boss (Curley). He likely knew or reasonably expected that the information would be given to the administrator who oversaw the Penn State police force (Schultz). It is unclear that he knew or should have known that these two would have dropped the ball by not ordering an investigation. Nor did Paterno have a clear duty to monitor or oversee their actions.

By analogy, consider a lieutenant in the army who gets a report of a sergeant abusing recruits. He promptly reports this to his commanding officer (a captain) whom he trusts and who tells him he will take it from there. It is not clear that the lieutenant should second-guess the captain’s judgment about what happened and how to proceed. Nor is it clear the lieutenant should insist on meeting with the military police or the commanding officer’s boss (for example, a major) if the commanding officer were to disbelieve the report.

Second, even if he should have known, negligence is not the sort of moral failure that makes one a monster. Consider a ship pilot who daydreams and doesn’t notice himself doing so. As a result, he fails to steer his ship away from the rocks, which results in it sinking and a passenger drowning. Such an individual is flawed, but not terribly blameworthy.

Third, people often confuse moral and legal obligations. This is commonly seen in police officers and judges who enforce obviously unjust laws with a clear conscience. Consider, for example, officers who aggressively enforced laws that criminalized homosexuality in the 60’s and 70’s and perhaps, also, those who enforced the Rockefeller anti-drug laws. It is unclear whether Paterno made this mistake, but it is a common one.

Fourth, it is very hard to turn in beloved family and friends. Most mothers would have a hard time turning in a son, even if they had evidence that he committed a date rape and was a threat to do it again in the future. This might be due to self-deception or the sheer strength of her love. A similar thing is true of soldiers who witness wartime atrocities by brothers in arms. Consider, for example, soldiers who observed the My Lai massacre and did nothing to stop it. My guess is that after 31 years of working together under stressful conditions, Paterno was close to Sandusky.

Fifth, there is an underlying philosophical issue as to whether people have a moral duty to save strangers. For example, many rich and middle class people fail to donate money to starving children in the third world and don’t see themselves as bad people. Whether there is such a duty and whether it applied to Paterno is a discussion for another day.

None of this establishes that Paterno acted rightly (or wrongly). What it likely establishes is that he is not a moral cretin, gross moral failure, disgusting human being, etc. It is a separate matter whether these labels fit Spanier, Schultz, and Curley. They obviously fit Sandusky.

02 November 2011

Occupy Wall Street and Obama's Mean-Spirited Demagoguery

Stephen Kershnar
The Case Against Progressive Taxes
Dunkirk-Fredonia Observer
October 30, 2011

The Occupy Wall Street (OWS) crowd and President Barack Obama claim that the rich don’t pay their fair share and should be made to do so. They want to make the tax system more progressive. A tax is progressive when people who make more money pay a higher tax rate.

The federal income tax rates are progressive. In 2011, the rich (married couples who file jointly and make over $379,150) have a 35% federal income tax rate. The middle class ($69,001-$139,350) have a 25% rate and the working class and poor ($17,001-$69,000) have a 15% rate.

The rich pay a higher rate of their income to the government than other groups. The Tax Foundation found in 2009, that the top 1% of earners earned roughly 17% of income but paid roughly 37% of federal income taxes. The super rich (top 0.1%) of earners made 8% of all income, but paid 17% of all federal income taxes.

If we look at effective tax rates (what tax rates people actually pay), we see the same pattern. The rich paid the highest percentage of their income, 24%, to the federal government versus 11% for everyone else. The rate was a mere 8% for the upper middle class. Because the rich make most of the capital gains, they undoubtedly paid a far larger share of other weighty taxes (for example, corporate and dividend taxes). Even the claims of investors like Warren Buffet that they pay a lower rate of taxes on their income can be seen to be false once we realize the income is double-taxed, initially as corporate income and later as capital gains or dividends. Payroll taxes do not reverse this overall trend.

As usual, the poor free ride on others. In 2009, nearly 47% of U.S. households paid no income taxes. A significant number of those filing (more than 36% in 2008) paid no income tax and a significant number of them made money via the tax code because of the earned income tax credit and other child-tax credits.

The moral case for progressive taxation is surprisingly weak. The argument against is that when it comes to coercion, the government should treat citizens equally unless there is a good reason to treat them differently. There is no reason to tax the rich at a higher rate than others. Hence, the rich should pay the same tax rate (or, perhaps, the same amount) as others. Consider some of the reasons cited in support of progressive taxation.

One reason given for taxing the rich more is that they impose greater costs on society. This is false. Antipoverty programs such as Medicaid, food stamps, cash-welfare payments, and similar ones are pricey. Worse, the biggest government programs (Social Security and Medicare for the federal government, public education for local and state governments) are almost always justified because they provide benefits to the poor and working class. The poor also constitute the majority of people in prisons and are the focus of police officers, social workers, and many other government workers. As economist Walter Williams points out, if anyone should pay more taxes because they impose greater costs on the rest of us, it is the poor.

A second reason given is that the rich contribute less than do others. This is also false. The rich get rich through the free market, which involves people voluntarily giving them their money in return for goods and services they value more than the money and more than competitors’ products. Consider, for example, Apple’s Steve Jobs. Writing in National Review, Michael Tanner notes that Jobs generated as much as $30 billion annually in increased wealth for the U.S. economy in addition to his role in causing Apple’s stock to skyrocket. When Jobs took over as CEO of Apple in 1997, it was worth $2 billion. It increased to $350 billion, which made a lot of people holding Apple stock richer. His company’s technology also provided valuable benefits to teachers, doctors, soldiers, autistic children, people trying to overthrow tyrannical dictators, and so on. Note his estimated wealth ($7 billion) was a small percentage of the wealth and other benefits he generated for others. While this is an extreme case, the contribution of other rich people has much the same pattern. In any case if anyone contributes less and takes more, it is the poor for the reasons mentioned above.

A third reason given is that the rich don’t deserve their money. On some theories, what people deserve depends on how hard they work or how much they sacrifice. Professors Mark Aguiar and Erik Hurst found that the most educated people work more hours than others and have to pay dearly for the education required for their jobs. Because education likely correlates with income, it is not clear the rich are less deserving. In addition, the hard-work and sacrifice theories are mistaken. Consider a job where one man digs ditches using a shovel and a second uses a backhoe. The former might work harder or sacrifice more, but the latter will accomplish a lot more and, as a result, intuitively seems to deserve more money. If this is correct, then desert tracks contribution, if it tracks anything. Via their labor and capital (money), the rich contribute more.

A fourth reason given is that the rich need the money less. If we are talking about what people need (for example, food, clothes, shelter, and protection), these needs are satisfied through anti-poverty, emergency programs (for example, the Federal Emergency Management Agency), and the military and police. Like the rich, the middle class don’t need most of their income and no one is calling for them to be soaked.

Class warriors support their claim that the rich don’t pay their fair share by pointing out that the rich get much of the nation’s income. The Congressional Budget Office recently reported that between 1979 and 2007, rich people’s income increased much more quickly than others. For the top 1% of the population with the highest income, household income (after-tax and inflation-adjusted) increased by 275%. In comparison the middle class’s (21% through 80%) household income increased by just under 40% and the poor’s (bottom 20%) increased by only 18%.

The rich and affluent people’s share of all income is increasing. During the 1979-2007 period, the rich’s (top 1%) share of all after-tax household income increased from 8% to 17%. In 2007, the affluent (top 20%) made 53% of all such income. This means the top fifth of Americans made more than the other four-fifths. None of this, however, supports soaking the rich. Such a soaking requires these changes be linked to an argument from justice or fairness.

In the U.S., taxes are already progressive and this is wrong. The refrain from OWS and Obama that the rich should be made to pay their fair share contains a lie and is a mean-spirited attempt to pick on an unpopular minority.