I have been pondering how best to respond to the Wednasday decision by the Oregon Court of Appeals on the Oregon Education Association assault on free speech. (A122158 American Fed. Teachers v. Oregon Taxpayers United, especially read the Dissent)

Is this comment too hot? Too hot for the top civil liberties advocate in the state of Oregon? You decide:

Following Haselton's Wednesday ruling could I obtain treble damages direct from the city, not the Auditor personally, for the anticipated clean money I could have obtained had the City accepted my filing for the Auditor position and for which I sought mandatory pre-approval to get 1000 fives and 1000 signatures?

Of course Mr. Hinkle could have the case if he wants it.

After reading Haselton's view toward free speech and the remedy of making another party pay as damages one's own free speech costs (core free speech costs) I could only think of the bar itself (the collection of members, rather than the organization) and legal fee battles as a template; discretionary awards (or just another name for arbitrary).

"But for" the abominable Court of Appeals ruling against free speech on Wednesday I might have been able to move on to other things of interest. The gamble is if the Oregon Supreme Court would reverse the Court of Appeals in mid stream (not a bad outcome, it just reduces the potential for an award and legal fees).

Membership in a Florida outfit, with some board members living on foreign soil, ought not be considered a proper restriction upon running for elective office for Auditor in the City of Portland, even if the restraint is stuck into the city charter.

Thoughts? Consider it a question with sufficient intrigue and nuance to be interesting to some folks attending.

The Press Release from the City Club announcing an October 8 event is filled with praise. Justly earned praise.

Charlie Hinkle Presents Lecture Sunday, October 8

Sunday, Oct. 8, at 12:30 p.m., Rev. Charles F. Hinkle, City Club past president, will speak at historic First Congregational United Church of Christ on the topic: “Responsible Citizenship in a Divided World.” His talk is this year’s Helen & Egbert Oliver Annual Memorial Lecture, sponsored by the church.
1126 SW Park Ave. 503-228-7219.

Charlie will be talking about reclaiming a spirit of optimism in our civic life. He will address the importance of community activism, of being involved in civic endeavors even in (or especially in) a world that seems increasingly out of control. The lecture is free and open to the public. The lecture is preceded by a luncheon at noon for a $5 donation.

Charles F. Hinkle is a graduate of Stanford University, Union Theological Seminary, and Yale Law School. He is a partner in the Portland, Oregon office of Stoel Rives LLP, and an ordained minister in the United Church of Christ.

He taught constitutional law courses at Lewis & Clark Law School for many years, and was the first Oregon lawyer to be listed under the First Amendment category in Best Lawyers in America. Rev. Hinkle has served as president of the ACLU of Oregon and of the City Club of Portland, and as a member of the national ACLU board, the Board of Governors of the Oregon State Bar, and the House of Delegates of the American Bar Association. He is a past chairman of the Constitutional Law Section of the Oregon State Bar, and is a member of the Oregon State Bar House of Delegates. As attorney for The Oregonian and for the ACLU, he has been lead counsel in many cases involving free speech, equal protection, and other constitutional law issues, including gay rights, the death penalty, assisted suicide, obscenity, freedom of association, and religious liberty. He has received awards from the Metropolitan Human Rights Commission, the Oregon State Bar, the City Club of Portland, the ACLU, and other organizations for his civic and charitable activities.

For more information, contact Rev. Dr. Patricia Ross, Senior Minister, at 503-228-7219.

It would serve anyone interested in free speech well to go visit.

It is too bad that someone at the city club saw fit to remove my comment. In a civil society it is important to remain optimistic. I do wish I could hear what Mr. Hinkle, in his own words, would have to say on the matters raised, from the perspective of the greater public interest.

UPDATE Friday 10 AM: See NW Republican: Sizemore WON, For the most part

This is the comment I drafted to rebut and clarify:

I do not know how to best illuminate the breadth of the swath that the majority opinion represents against free speech. I became nauseous while reading the majority opinion. But then the cure was found in the dissent. You must read the dissent.

Please momentarily suspend the union anti-union dichotomy (same as the capitalist anti-capitalist dichotomy). Pretend that there were less than ten incorporated private firms and the database managed at filinginoregon.com had all but ten entries that could be listed on one single page. Any pro-liberty advocate would insist that their own individual filings, to form corporations and the "recognition" of the right (on similar terms) to engage in private or public purposes, must be accepted; or none can.

Apply that to unions. The isolation on OEA and AFT would be just as myopic as asserting that Nike and Intel are the only two entities that are allowed to incorporate and that all other people are routinely denied the opportunity to incorporate via the arbitrary power of the Corporation Division. Pretend that the Employment Relations Board served as a template for the creation of an Incorporation Board, as a quasi-judicial body, through which anyone seeking "recognition" for their organization must appeal against the government itself that persistently refuses, as a matter of course, to recognize anyone other than Nike or Intel.

Suppose that in the facts of this case that the state DID NOT mandate that ALL "persons" (as noted related to the Oregon Constitution's provided right to propose initiatives) must be done exclusively through a PAC. It is this very characterization, admitting that not a single solitary soul, not a single solitary "person," can exercise their Oregon Constitutional right as an individual that enabled Mr. Sizemore to escape personal liability.

I insist that the incorporation is optional, even for a PAC. The final substantive paragraph of even the dissent would be incompatible with this voluntariness. The point in the paragraph itself depends on the rejection of the plausible legal argument of the "absurdity" that the compulsory formation of a PAC as a precondition to exercising the right to advocate for an initiative "by reason of" (a now-familiar phrase on causality) denial of the opportunity for ANY "person" to exercise such right as a person.

The majority's acceptance of the speech costs (core free speech costs) of an opponent as a measure of damages is out of whack with the routine and universally accepted notion from all political sides about ANY POLITICAL DEBATE that the remedy for speech that one finds disagreeable is simply "more speech." (And by implication at their own expense; except of course for attorney fees by reason of being a member of the bar or not.) This theme - that of more speech as a remedy -- is repeated in US Supreme Court opinions with such frequency that one can consider it to be a truism. The majority in this court decision must either be legally incompetent or ethically challenged to ignore this reality so as to achieve "ends" that they wanted and to take a sledge hammer to the body of law on free speech in the "means." It must not be allowed to stand.

I had in the past submitted, knowingly, a prospective petition with 25+ names on a matter WITHOUT obtaining prior approval for circulation. I certainly desired for the Sec. of State to give me a fine so I could obtain "standing" to object, "as applied" rather than "facially," to certain elements of the election laws. (Feel free to make public records requests for any of my correspondence with the SoS and AG.) It would be my argument that such a FINE, and other like fines, are ALL an impermissible "burden" (to use a word that is routinely found in US Supreme Court cases as a standard for measuring the level of threat or prospect of "chill" to obtain standing on federal free speech rights sufficient to demand a remedy of invalidation of a statute or to obtain an injunction). The proper dividing line for the State of Oregon, acting either by and through the Secretary of State or through the Judiciary in an selected remedy (even the risk of being dragged into court, as an invalid prior-restraint, via the issuance of a fine and even DELAY of acceptance of the submission), is confined solely to potential denial of acceptance of a petition. This would be narrowly tailored to the state interest in not wasting money by placing a matter on a ballot where there is supposedly not enough public support to justify that expense (however small that cost may, which could itself be overcome by an offer of private payment for such cost). An anonymous phone poll of a statistically significant sampling of folks is often quite satisfactory for the GOVERNMENT TO SPEND THE MONEY FOR PLACEMENT OF A MATTER ON THE BALLOT (where fraud is governed instead by an honor code, unverified, of the pollster and the anonymous callee's).

I believe that it would be fair to call the opinion as an abomination to free speech. Particularly the imposition of one's own speech costs upon another, particularly via the exercise of judicial power as a remedy where the court is instead supposed to act as a protector of 'individual liberties" rather than acting as an amplifier of restrain. The highest possible civil judgment available to the Secretary of State directly was far less than that which the AFT and OEA each obtained, via their participation and their requested remedy. That is, it is the JUDICIARY and the JUDICIARY ALONE that extended the IMPERSSIBLE BURDEN on the exercise of free speech.

But why fight Apples against Oranges, Union against Non-Union, Communist against Anti-Communist, when one can introduce Small-business against Big-Business, Union-Formation against Monster-Union, or . . . isolate on the GOVERNEMNT AS A SPEAKER in the clean money debate. Below is a copy of a comment I posted to a City Club Blog post in reference to an upcoming presentation by Mr. Charles Hinkle on the matter of a Civil Society (if that is NOT ON POINT I do not know what else could could be; but they removed this comment):

Following Haselton's Wednesday ruling could I obtain treble damages direct from the city, not the Auditor personally, for the anticipated clean money I could have obtained had the City accepted my filing for the Auditor position and for which I sought mandatory pre-approval to get 1000 fives and 1000 signatures?

Of course Mr. Hinkle could have the case if he wants it.

After reading Haselton's view toward free speech and the remedy of making another party pay as damages one's own free speech costs (core free speech costs) I could only think of the bar itself (the collection of members, rather than the organization) and legal fee battles as a template; discretionary awards (or just another name for arbitrary).

"But for" the abominable Court of Appeals ruling against free speech on Wednesday I might have been able to move on to other things of interest. The gamble is if the Oregon Supreme Court would reverse the Court of Appeals in mid stream (not a bad outcome, it just reduces the potential for an award and legal fees).

Membership in a Florida outfit, with some board members living on foreign soil, ought not be considered a proper restriction upon running for elective office for Auditor in the City of Portland, even if the restraint is stuck into the city charter.

Thoughts? Consider it a question with sufficient intrigue and nuance to be interesting to some folks attending.

While some folks might experience "chill" I instead feel the chill of excitement at seeing yet another opportunity to redirect a government attack on individual liberty right back at them with all the clarity of a nearly perfect mirror.

Does Mr. Sizemore's attorney wish for a little bit-o-fun with the City of Portland? I do want treble damages, otherwise I could not explore the issue of challenging the very THREAT posed by Mr. Haselton's apparent pledge of loyalty to OEA and AFT over that of individual liberty and the ample words of the US Supreme Court.

The door is open too for obtaining a discretionary award in the ERB of a penalty (measured, ironically, by union dues) for all non-tier-one and non-tier-two Portland Teachers (see pdxape.us) -- direct from the district rather than as an extraction from the workers pay checks (but only going back six months from the occurrence of an unfair labor practice BY THE DISTRICT to unlawfully restrain a competing union). It could shaped to fit, I suppose, as a ORICO action, but a circuit court would likely disclaim jurisdiction as it touches (ha ha) on matters that instead should be addressed by the ERB. (But remember my attitude toward the Secretary of State accepting filings for incorporation, neutrally and routinely. The ERB is far too tolerant of their own arbitrary action.)

--PDXNAG

(It is all just good fun.)

To repeat -- I think that a PAC obtains it's free speech character only as a prism through which a real live "person's" free speech rights are funnelled, and that a real live person is the ONLY repository of such rights. On this point I object even to one element of the opinion of the dissent -- which necessarily conflicts with the notion of a PAC being used as a shield to individual liability. I do not wish for the OEA to use their own articles of incorporation, and acceptance of the same by the Secretary of State (as itself another possible intervening causation thing, related to such point in the opinion) to shield tier-one PERS member interests from being matched directly against their non-tier-one coworkers. That is, the OEA is just an entity and cannot represent each and every single issue that might be faced by ALL individual members, to also include every last member of the class of citizens described in a given bargaining unit and to the disregard of their individual voluntary choice not to be a member of, or affiliate of, the OEA.

Associational rights include the right not to associate. The opinion was a disaster for associational rights -- favoring interest groups over individual rights.

UPDATE: RE Maui-Gate:

It can hardly be argued that staying in a hotel in Hawaii is even remotely related to getting out some message to the public. It does not even belong in the category of a campaign expenditure. It is just like ordinary taxable income . . .

. . . but income that must be made transparent by reason of the status of the candidate and the giver. Do we really want to encourage the trips by excluding such ordinary income from taxation? That is the question. (Less junkmail?)

I could think of much broader transparency to cover ALL convention center type activity by all sorts of interest groups, for-profit and non-profit alike, as a precondition to claiming the same as a valid tax reducing expenditure. Detailed transparency can be a statutory condition on any and all incorporations. If they talk politics then let it all instead be after tax; voluntary for each individual.

--update, I could have tossed in this legislator participation in PERS jab:

If they could impose something akin to an import tariff then they could be the one to throw the parties (all off-budget, sort of off budget like something else treated as somehow not bound by the limitations on appropriations -- the origin of my mini-Marcos' point made elsewhere).

--update, yet another contemplated comment (subject of course to moderation, but I'M NEVER MODERATE, full steam away):

Someone could try to obtain a judicial interpretation of ORS 65.661(1)(a)(B)and(C) (relating to dissolution). But, Victoria has a rather broad view of a charity and her lack of "jurisdiction" (her word not mine) for a charity if no tax deductibility is offered -- but such is present here for the OREGON BEER AND WINE DISTRIBUTORS ASSOCIATION. (Like the deductibility of tyrannical compulsion of dues to the Association of Realtors, for example, to fuel PR support for speculation and gambling; as a condition for accessing the RMLS database -- without the same being considered an unlawful exercise of monopoly power.) One must Pay-To-Play in so many arenas; it really is no surprise that no one even broke a sweat among the legislators. The AG's office is as likely to amplify the influence of already influential interest groups -- Could I demand that the AG be just as scrupulous here as he was pertaining to a single prospective petition requiring 25 signatures (as an example of the minutia which can trigger AG outrage and accord TRUTH to the claims of Measure 42 opposition)? Power begets more power in a spiral. (I had taunted him and the SoS to fine me for submission of a non-preapproved prospective petition, to pick a fight, but I must be Small Fry and not worth being hit with the bat-of-arbitrariness quite yet.)

UPDATE Sat AM Oct 7 George Will

Newsweek: Speechless In Seattle

What has happened in Seattle prefigures what a national Democratic administration might try to do to stifle conservative talk radio.

Oct. 9, 2006 issue - SEATTLE—As the comprehensive and sustained attack on Americans' freedom of political speech intensifies, this city has become a battleground. Campaign-finance "reformers," who advocate ever-increasing government regulation of the quantity, timing and content of political speech, always argue that they want to regulate "only" money, which, they say, leaves speech unaffected. But here they argue that political speech is money, and hence must be regulated. By demanding that the speech of two talk-radio hosts be monetized and strictly limited, reformers reveal the next stage in their stealthy repeal of the First Amendment.

The point is that it is amendable to use as an attack. And this: "They hired a lawyer. That has become a cost of political speech."

UPDATE Oct 8 12:30 AM: The Volokh Conspiracy post by Ilya Somin: Libertarian Democrats?

My Comment:

Ilya, you need to review this case from Oregon:

A122158 American Fed. Teachers v. Oregon Taxpayers United
http://www.publications.ojd.state.or.us/A122158.htm

If someone were to look upon free speech as a canary in a coal mine or the last straw to fall . . . in the transformation from liberty to authoritarianism then this case should be quite revealing.

The costs of one's speech is the measure of damages against another. It parallels the award of attorney fees to a winner in court. Be sure to read the dissent.

I scratched down my reaction here.

As to AFSCME there was an Employment Relations Board decision less than two years ago where the ERB awarded damages to be paid by the public employer (i.e., the people) for an unfair labor practice charge where the measure of damages was conveniently the union dues that would have been deducted from employees and redirected to the union.

I can't find anyone locally to even recognize how extreme each of these cases are or to publicly articulate their concerns.

To isolate out the distraction of any Capital versus Labor issue I created my own union (pdxape.us) and thus can frame my arguments as one of a baby union demanding liberty against a big bold existing union. The arguments thus resemble little more than that of a small new family business fighting a big monopolist that has strong ties to government.

I was reassured to read your post.

The Democratic case for liberty, as practiced today, is little more than like a King that claims that his benevolence is inherently true and that he is likewise infinitely infallible -- like that of a religious figure claiming to be "good" against "evil" and omnipotent to the point of freeing the masses from the scourge of the old-fashion-truism of "limited" resources. It is based on a belief in the impossible.

[ continued at: Where is the attention to "Consumer Sovereignty" in your argument opposing private-litigation-lobby? ]