Thirty renowned authors examine 30 of those “threats,” which include the emergence of sharia law within western nations, the paradoxical uniformity that “politically correct” diversity has spawned, the abandonment of democracy promotion abroad, the State regulation of daily life, the imposition of campus speech codes, and the “threat” of cyber-anonymity.

At first glance the “new threats” seem like a grab-bag of issues that will rouse and rile a reader committed to individualism . . . and they do so in rapid secession.

The thought-provoking essay “The Isolation of Today’s Classical Liberal,” by legal scholar Richard A. Epstein, appears directly before the socially conservative essay, “Single Women as a Threat to Freedom,” in which antifeminist Jessica Gavora dismisses a plausible lifestyle choice largely because “single women are pro-statist.” “The Rise of Antireligious Orthodoxy,” by conservative Mark Helprin, directly precedes an essay by the notoriously antireligious left-radical Christopher Hitchens; the juxtaposition is not meant to provide balance, since Hitchens deals with the issues of multiculturalism and diversity.

Yet clearly this is a carefully constructed anthology. At a third or fourth glance, an integrating theme emerges. At its root New Threats is a socially conservative collection on issues that this movement assesses as threats; the anthology’s libertarian contributors indicate where these two movements intersect.

Consider the excellent essays by libertarians Max Borders and Katherine Mangu-Ward.

In “The Urge to Regulate,” Borders recounts how bureaucratic regulation crushed his dream of starting a small home-based business designed to sell products at a farmer’s market. He imagines a parallel world without “regulatory barriers,” in which hard work and reputation are allowed to succeed. Then, poignantly, Borders speculates about “the possible worlds that government interference destroys.” These are populated by working people who long to provide for their families.

In “The War on Negative Liberty,” Mangu-Ward analyzes the bizarre spectacle of Americans asking the government to strip them of lifestyle choices like smoking or consuming trans fats. Or at the very least they wish government to impose punitive taxes on such choices. She compares the Taliban’s prohibition of women eating ice cream to the Brooklyn mom who turns in an unlicensed vendor. The common denominator: “[B]oth want the same thing—a targeted ban on ice cream.”

Borders and Mangu-Ward address fundamental questions that mirror each other. Borders asks, “What makes people want to control others?” Mangu-Ward asks, “[H]ow could people who cherish freedom clamor for the state to take away their choices?”

In opposing government regulation of business and its imposition of political correctness on food choices, the two essays exemplify issues on which libertarianism and social conservatism converge. Similarly, a few nonconservative authors like Hitchens touch on the rare areas of confluence between the right and other positions. In areas of difference, however, it is the conservative voice that is heard. As such New Threats is a fascinating window into the psychology of social conservatism and the issues that will be “burning” for them in the future.

What are some of the differences on issues? Perhaps they are most pronounced in foreign policy. New Threats authors equate democracy with liberty and think that Americans should export it. In “The Abandonment of Democracy Promotion,” Tara McKelvey—a senior editor at The American Prospect—claims such exportation “belongs high on the U.S. foreign-policy agenda and should be supported by substantial resources.” Former New Republic contributing editor James Kirchick concludes in “Transnational Progressivism” that “any threat to American global predominance . . . is in and of itself a threat to freedom, not only to our own, but especially to those people living in dark places.”

An aggressive foreign policy designed to export a specific political system is a difference of opinion with libertarians, indeed.

New Threats is, in rapid turn, provocative, annoying, and enlightening. It is also puzzling in its omission of certain issues and seemingly obvious points. For example, given the 21st-century focus, little discussion of technology occurs outside of a critique of cyber-anonymity. Abstract “ingratitude” is included as a threat to freedom whereas concrete reproduction and population control in light of new technologies is not. In presenting sharia law as a threatening parallel legal system, it is not clear why sharia courts could not operate as Hasidic ones currently do.

Nevertheless New Threats is fascinating and extremely well written. Social conservatives will be delighted; libertarians will embrace fully half of it; Progressives with high blood pressure had best be selective . . . or at least consult a doctor beforehand.

For over 25 years the Westport, Connecticut industrialist battled the federal withholding tax, which she refused to collect from employees’ wages.  If the government wanted her “to be their agent,” Kellems declared, they “have to pay me, and I want a badge.”

In For a New Liberty, economist Murray Rothbard discussed Kellems’s stance: “What moral principle justifies the government’s forcing employers to act as its unpaid tax collectors? The withholding principle, of course, is the linchpin of the whole federal income tax system. Without the steady and relatively painless process of deducting the tax from the worker’s paycheck, the government could never hope to raise the high levels of tax from the workers in one lump sum.”

“Temporary” Measure

The withholding tax on income had been introduced in 1943 as a temporary measure to finance World War II. Called “the Victory Tax,” it required businesses to use their own resources to withhold taxes, to maintain records, and to remit money; mistakes or noncomplaince could result in severe penalties. Thus businesses became unpaid accountants and tax collectors for the federal government.

After the war there was no sign of withholding’s repeal and so Kellems, who had master’s degree in economics and a nearly completed Ph.D, ceased to comply. Her rebellion was based on far more than the lack of a badge.

In her 1952 book, Toil, Taxes and Trouble, Kellems explained that her rebellion was based on constitutional grounds. Article I Section 2, Clause 3 of the U.S. Constitution declares, “Representatives and direct taxes shall be apportioned among the several States . . . according to their respective Numbers. . . .” Section 9, Clause 4 states, “No capitation, or other direct, Tax shall be laid, unless in proportion to the Census or Enumeration. . . .”

Kellems concluded, “[O]ur forefathers bound fast the hands of Congress and secured the liberty and freedom of the American people. How? By making it utterly impossible to levy an income tax. An income tax is certainly a direct tax [which] must be paid by the person receiving the income. By specifying that direct taxes must be levied in accordance with the number of people, not upon what they produced, as in the days of ancient Egypt, an income tax was simply out of the question.”

(Contrary to Kellems’s position, however, Americans courts have long held that the income tax is a constitutional indirect tax.)

Asked for Prosecution

In February 1948 Kellems publicly invited the government to prosecute her. Instead, four IRS agents arrived and demanded $1,685.40 even though her employees had been paying the correct amount. The rebuffed agents intimidated her bank into surrending that amount from her account.

The conflict became famous nationally when television shows such as “Meet the Press” interviewed Kellems. On Eleanor Roosevelt’s 1950s talk show, “Today With Mrs. Roosevelt,” Kellems explained, “As you know, Congress can pass all of the laws it wishes to. The President may sign all of the laws that he wishes to. But no law is a valid law in our country until it has been declared constitutional by the Supreme Court. Any citizen doubting the constitutionality of a law has the right, and in my opinion the duty, to break the law in order to provide a test case. That is all I did.”

Kellems also organized a nationwide group called the Liberty Belles and Boys to seek the repeal of the withholding tax.

Sues the Government

In 1949 tax agents demanded $6,100. Despite proof that her employees had paid their own withholding, the agents once again forced her bank to turn over the money. In January 1950 Kellems sued for its return in the federal district court in New Haven. She was not permitted to argue constitutional grounds, but she secured a full refund nonetheless.

Eventually Kellems abandoned her legal pursuit of the IRS  because of its expense, but she never abandoned the fight. In 1969 she disobeyed a court order to  produce financial records on the grounds that it violated her Fifth Amendment rights. According to some reports, she also refused to file tax returns; other reports claim she filed blank forms. In a 1975 interview with the Los Angeles Times — the same year as her death — Kellums declared, “Our tax law is a 1,598-page hydra-headed monster and I’m going to attack and attack and attack until I have ironed out every fault in it.”

This little known and indomitable crusader deserves a place in individualist history, standing proudly beside contemporaries such as Rose Wilder Lane and Isabel Paterson.

Woolf was among the fortunate few who inherited money and so inherited her independence. The vast majority of women needed to earn it through sustained labor. Her elite status may explain why Woolf’s commentary missed a key factor defining the status of poor women surrounding them.

Although Woolf correctly denounced social prejudice as a barrier to women’s economic advancement, it was only when prejudice was embedded into law that women were consigned to the kitchen or unskilled labor. Whenever the law was weakened, poor women surged into rooms of their own.

Nevertheless, Woolf’s essay is honored as an early blast at patriarchy and an indictment of the unfettered marketplace. Instead of recognizing how regulation harms poor women, Woolf’s descendants have called for an ever more shackled marketplace.

What were the circumstances for English working women in 1929? A tug-of-war was occurring between the repeal of economic legislation and its imposition. The first led to greater opportunity for women; the second closed doors. Both phenomena sprang largely from the same cataclysmic event: World War I (1914-1918)

War Years

During the war years, an estimated two million women stepped out of the kitchen to fill the jobs vacated by enlisted men. Millicent Fawcett, president of the National Union of Women’s Suffrage Societies (1897-1918), declared, “The war revolutionised the industrial position of women — it found them serfs and left them free.”

After the war women’s economic status blurred, with many employers replacing women with returning men. Three factors ensured that women would remain in the workforce, however.

• Some women embraced their wider sphere and would not willingly retreat into economic shadows.
• Britain’s huge death and casualty rate in the war meant that abled bodied men were less available. Approximately 750,000 men died, with 2.5 million claiming disability.
• Many women faced a future as widows or spinsters responsible for their own sustenance.

British law reacted to women’s changing status in contradictory ways. The Sex Disqualification Removal Act of 1919 eliminated legal barriers to women in the civil service, courts and universities, thus recognizing their wider role. When this legal barrier was lifted, women surged forward. Carrie Morrison became the first female solicitor three years later. Overwhelmingly, however, the act benefited well-to-do women.

Although the civil service might have served as a stepping stone for all poor women, it became regulated at the urgent request of women themselves. Despite fewer employable men, Britain experienced the general unemployment brought by the Great Depression. Widows and spinsters wanted married women who sought the same jobs discriminated against. For example, in 1921 an estimated 102,000 female civil servants pushed forward a resolution to ban married women; it remained in force until 1946.

Over and over the preceding scenario replayed during the twentieth century. Laws were repealed and all women advanced; laws were passed and some women were set back.

Protection Equals Privilege

Even laws intended to protect women, like the civil service restriction, ended up privileging one class of women at the expense of another. This too has escaped the notice of Woolf’s descendants who have lobbied passionately for the restriction on free employment, from affirmative action to pay equity, from mandated quotas to paid maternity leave.

I’ve had reason to notice. I once needed a room of my own. And I know on a personal level how laws can harm those they intend to protect. I ran away from home at 16 years old because the streets were safer than my family. Unfortunately it was Canada in December and sleeping in a church with an open-door policy was a stop-gap measure at best. I needed a room with heat and a door that locked.

I was lucky because I was 16-years-old. Child labor laws designed to protect children from exploitation did not apply to me, and so I was able to get a minimum-wage job in a furniture store, filing years worth of boxed papers. If I had been “protected” either as a child or a female from being able to negotiate for less money than other applicants demanded, I would not have been able to to rent a room in a boardinghouse. Instead, I would have been “protected” into begging, stealing, dealing drugs, or sex work. Like most runaways, I would not have “turned myself” into the authorities known as social services.

What saved me was the ability to contract on my own terms so that I could buy a room with a lock and go on to build a life.

On the one hand, there is the Sandusky response. Jerry Sandusky is the former Penn State football coach accused of serial child molestation. Even before a trial, states are scrambling to pass new laws to require universities and athletic associations to report any suspicion of child abuse. In this response, children are defenseless and desperately need their innocence protected by diligent adults.

On the other hand, there is the public-school response. A mere sampling of news stories from last week:

• A 9-year-old is suspended for sexual harassment because he told another student that a teacher is “cute.”
• A high school student is handcuffed for wearing a hoodie that did not match school colors.
• a 13-year-old student is arrested for allegedly burping during class.
• a 7-year-old is investigated for sexual harassment for  hitting a boy in the groin who was allegedly choking him.

In this response, children are dangerous brutes and adults should treat them as emerging criminals.

Both approaches harm children.

Children as Emerging Criminals

Childhood is a disorderly period, rife with energy and curiosity. Teenagers correctly question the rules of their lives and stretch themselves in a stumble toward adulthood.

These are periods of natural human evolution, but they are cast as criminal or pathologized as “unhealthy.” When viewed as criminal, harmless behavior such as developing a crush on a “cute” teacher is punished as harassment. Public schools confront healthy children and teenagers with “zero tolerance” policies that were designed to rein in drug dealers but are now being applied to dress codes and burping. And so a dress-code violation that used to merit detention now results instead in handcuffs.

Those who criminalize children offer a tremendously negative view of what it is to be young. They depict children as savages and their interrelationships as so hazardous as to need adult correction at every turn; this only encourages children to view each other with suspicion. But children are not savages; they are human beings with rights. How they mature is intimately connected to the inspiration and compassion received from the adults on whom they depend.

No one wants violent bullying to be ignored, but the solution should not be more extreme than the problem. And in the absence of violence, there are far worse things than allowing children to work matters out without applying a guidebook of regulations that rival the military.

Children as Vulnerable Victims

Protecting children by criminalizing adults is no less harmful. Anyone who truly abuses a child deserves contempt and criminal charges. But the fact that child abuse exists must not be used as an a prior indictment of adults, especially of men, as potential child molestors. And yet this indictment has been embedded into society by practices such as airlines’ refusal to  seat a child by a nonrelative male or by laws that can be interpreted to require a show of affection to be reported as suspected abuse.

This approach damages children who are taught to view any and all strangers with fear; in turn, adults are taught to avoid contact with children, even if they seem to be in distress. This endangers children. For every predator on the street, there are thousands of decent people who would normally come to the aid of a child in danger or distress. Laws that punish “unsolicited or casual contact” are unlikely to deter child rapists, but they will dissuade good samaritans.

My epiphany came several years ago with one news story. In 2002 a toddler wandered from her nursery school in the early morning and later turned up dead. A bricklayer named Clive Peachey drove past her on the street in his truck. At the inquest he stated, “I kept thinking I should go back. The reason I didn’t was because I thought people might think I was trying to abduct her.” Instead, he assured himself that the parents must be “driving around” and would find her. A few minutes later the little girl fell into an algae-covered pond and died. The man was devastated by the consequences of his inaction but had he stopped, his actions might well have been misinterpreted and resulted in an ordeal that could wreck his livelihood and the welfare of his own children.

Laws that mandate the reporting of any suspicious contact with children will result in a dramatic increase in false or malicious accounts that harm innocent people. They will also make adults withdraw from all contact with children.

Overwhelmingly, the retreating adults will be good human beings who would otherwise enrich children’s lives.

Ironically, the decency of ordinary people is what child-abuse legislators rely on. They depend on the outrage average people feel toward the willful harming of a child. And yet the laws passed in the wake of this outrage will serve to isolate children from decent people.

The answer lies in war, fear-mongering, political ambition, and the career path of the most pragmatic bureaucrat America has produced: J. Edgar Hoover (1895–1972), the first director of the Federal Bureau of Investigation (FBI). A supremely political animal, Hoover occupied high office for nearly 50 years, during which he was instrumental in laying the foundation for a national security state.

A national security state is one that is constantly at war and vigilantly on guard against “the enemy” who is both external and internal. The external enemy can be a combatant country or a concept, like communism or terrorism. The internal enemy is anyone within the nation who disagrees with official war policy or espouses the “wrong” concept.

Bureau of Investigation

Hoover’s career was born in war and in fighting “the enemy.” Before World War I the then-Bureau of Investigation (BI) pursued federal crimes, such as transporting  women across state lines for immoral purposes (the Mann Act, 1910). During the war the Justice Department, under which the BI functioned, shifted its focus to domestic security. It targeted the foreign-born within America.

In 1918 the Alien Enemy Bureau opened to track foreign nationals, radicals, and other suspected subversives. In his book J. Edgar Hoover and the Anti-Interventionists, historian Douglas M. Charles observed that it was in this bureau “that a young J. Edgar Hoover . . . learned to use administrative procedures to bypass legal restraints.”

Fear of subversives outlived the war. As Russia plunged deeply into communism, massive strikes rocked America; the labor unrest was blamed on socialists and foreign radicals. In 1919 Attorney General A. Mitchell Palmer appointed Hoover as head of the newly formed Radical Bureau with the mission of rooting radicalism out of American soil. Approximately 10,000 “subversives” were arrested, with several hundred foreigners deported. Civil liberties were ignored or skirted; for example, immigration regulations were altered specifically to facilitate deportations.

Public Scandal

In 1923 the BI’s abuses became a raging public scandal and a new attorney general vowed to clean house. In 1924, despite his role at the Radical Bureau, Hoover assumed BI’s leadership. Publicly he pledged an end to civil liberties violations. Privately he developed procedures to gather prohibited intelligence on the sly. For example, sensitive information never entered the BI’s files but was placed directly on Hoover’s desk to enter a parallel filing system. Hoover began to amass the vast database of personal information for which so many politicians in future decades would fear him.

Under the presidency of Democrat Franklin D. Roosevelt (1933-1945), the Republican-appointed Hoover made himself useful by providing intimate reports on FDR’s political opponents; indeed,  Hoover’s power increased under Republican and Democratic presidents because his services were of bipartisan value. Civil liberties violations were largely ignored. In the 1930s high-profile crime sprees, such as that of bank-robbing John Dillinger, allowed the federal government to develop an expansive crime program through which the BI assumed jurisdiction in areas formerly reserved to the states. In July 1935 the Federal Bureau of Investigation emerged. A federalized combination of intelligence gathering and crime control was established.

As fascism grew in Europe FDR focused on foreign policy and domestic security. In August 1936 a private meeting  between FDR and Hoover was recorded in then-confidential memoranda. FDR wanted “a broad picture” of subversive groups and, again, Hoover side-stepped legal obstacles through an administrative tactic. The FBI was allowed to investigate “any matters referred to it by the Department of State.” Thereafter, the FBI closely monitored journalists, political activists, antiwar advocates, isolationists, and critics of FDR.

At this point the FBI became primarily an intelligence-gathering agency. Moreover, through administrative ruses and covert means, the agency functioned largely without legislative approval or public scrutiny; it became increasingly autonomous.

Intelligence Monopoly

Hoover then moved to ensure a monopoly on domestic intelligence. In 1939 FDR considered giving this authority to an interdepartmental committee. In his book Charles explained that Hoover warned the attorney general “of the civil liberty abuses” during the Palmer years and “argued that centralizing domestic investigations within the FBI could avoid the mistakes of the past. This clever civil libertarian argument worked. . . .” Domestic intelligence was placed under the authority of the FBI, Military Intelligence Division, and Office of Naval Intelligence; most importantly, the FBI coordinated all information.

From American entry in World War II through the ensuing Cold War, civil liberties gave way to security concerns. By then the FBI was already positioned as a centralized agency of social control, which was maintained through gathering intelligence for political purposes.

Hoover retained his FBI power base until his death in 1972. Subsequent “national security” agencies have followed in his footsteps by remaining secretive, by using administrative procedures to violate civil liberties, and by being useful to both parties. In a real sense, it is a photo of Hoover that should looking down on America as Big Brother.

An ordinance to introduce the proposal was passed unanimously by the county supervisors last week, and a vote is expected shortly. Whether or not it passes, Stone may be correct in stating, “I think we’re blazing a new trail here. In these very challenging economic times, I believe this can be a source of revenue. I believe this can return 3 to 5 million (dollars) a year during these very challenging economic times.” (Emphasis added.)

If passed, a “prison hotel” fee could be charged to those able to pay, with a lien placed on the assets and property of anyone who objects. In short, a person imprisoned for possession of drugs, or for obstruction of justice (such as speaking back to a police officer) could lose his home, car, or bank account to the county for payment of “hotel” fees, drug testing, medical care, and parole costs. A defendant with “equity” would also be charged attorney fees for using a public defender. As for those using the “services” of a parole officer, Stone states, “The County will do the same on the parolee’s parents’ property if that’s the only way to get the money.”

Designated Officer

Riverside County Counsel Pamela Walls raises revealing objections. The primary one addresses the legal authority of the council to seek reimbursement. She offers a solution to what is clearly viewed as an administrative obstacle: “In order to recover such costs, the Board must adopt an ordinance which designates the officer responsible for the collection of moneys ordered and the average per-day costs in the County jail or other local detention facility.”

In a similar practical vein, Walls warns that the fees may not return much money because so many prisoners are indigent. In this, Walls misses the point on two levels. First, the thousands of prisoners who do have assets are low-hanging fruit, ripe for government plucking; it is easy money for cash-starved bureaucrats.

Second, and more significantly, a “hotel” fee would provide  ominous incentives for future income. It would become tremendously profitable for the county to imprison people with houses, mutual funds, and retirement accounts. Such people constitute the respectable class of society to whom police often issue a polite warning rather than an arrest warrant. Now, warrants would be where the profits live.

Moreover, the fee establishes a strong financial incentive for courts to find people guilty. Supervisor Stone assured the public, “[I]f a defendant is found innocent, he will not be charged for the time he served.” Some of us “in the public” hear these reassuring words as, “Courts will be biased toward revenue-enhancing ‘guilty’ verdicts.”

Prisons for Profit

America has long recognized the use of prison labor as a source of profit. Section 1 of the Thirteenth Amendment reads, “Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.”

Under law, a prisoner’s time and his labor belong to the State. In America two basic models have been used to exploit the convict’s labor: the contract system and the public account system.

In the contract system a private business agrees to purchase the labor of X convicts and usually establishes a work shop within the prison to produce goods that will be sold on the market. When the work must be done on site – for example, at a farm –the convicts are generally transported there as needed or leased-out to be “cared for” by the leasing business concern at taxpayer expense.

Today, the laboring convicts are often given a tiny portion of the profits on a piece-work or hourly basis. This provides incentive to the workers without significantly reducing profit to the business or the prison.

Direct Exploitation

In the public account system the prison authority directly exploits the convicts’ labor by using them in public works, in producing goods to be sold in limited venues, or in tasks for which paid laborers would otherwise be required (such as cleaning roadsides). Prisoners who refuse to work can lose privileges, including “good time” credits that reduce sentences. Not surprisingly, most prisoners decide to work.

If Riverside County is successful in charging prisoners for their own maintenance, then the profits to made from imprisoning a person will proceed to a different, higher level. No more will the profits be limited by the number of hours or skills a convict can provide. His real estate and business, his goods and bank account, could be forfeited to the coffers of governments on every level. “Prison hotels” will entice authorities to arrest and convict people of means.

On its surface Act 389 addresses a real and growing problem. As the recession deepens and the prices of commodities soar, the theft of goods — like copper from construction sites — has increased dramatically and everywhere. For example, this month two brothers in Pennsylvania were charged with stealing a 50-by-20-foot bridge and selling “the 15 1/2 tons of scrap metal for more than $5,000.”

It is difficult, however, to view the Act as anything other than a tyrannical tax grab. It is deliberately so broad as to explicitly include “pictures, objects of art, clothing,” tools, automobile parts and electronics (such as radios). In short,  thrift stores, flea markets, eBay, and yard sales are deliberately included; all they need to do is sell more than one item a month to be a covered business.

And if America’s most aggressive state crackdown on the “gray market” in used goods proves to be revenue-enhancing, other cash-starved states are likely to follow Louisiana’s lead.

Revenue Enhancement

There at least two ways in which Act 389 may rake in revenue:

1. Those who do not comply can be fined.

2. The Act specifies that instead of cash, a secondhand dealer must accept a “check, electronic transfers, or money order” issued in the dealer’s name. The required paper trails and reporting requirements set the stage for the future taxation of a relatively untapped activity. Secondhand businesses are notorious for tax evasion simply because their goods are often acquired and sold without paperwork. Act 398 closes that loophole with noose-like tightness.

Reporting Requirements

Act 389 requires “[a]ll payments made by check, electronic transfers, or money order shall be reported separately in . . . daily reports.” Along with a record of financial data that can be readily provided to government authorities, the dealer must maintain and report:

• the date and place of each purchase he makes
• the name and address of a seller, including information from a government-issued ID
• the license number of the vehicle delivering a purchase
• a full description of the good purchased (including weight)

In short, the government demands proprietary information, which is a business asset, even though no crime is alleged.

Objections

In 1862 Congress declared U.S. currency legal tender for all debts, and it is not clear that a state has the authority to ban its residents from using legal tender to make a legal purchase. Nevertheless both the IRS and state taxing agencies are sure to applaud the substituting of a paper trail for cash in any  economic transaction. As the self-interested president of Mastercard, Ajay Banga, has stated, “You can’t evade taxes if you accept credit cards.”

Privacy advocates will decry the creation of yet another government database to track every penny that goes into or out of a pocket. Some businesses will undoubtedly close their doors due to the sheer cost and aggravation of compliance. Struggling individuals are sure to resent the state regulation of innocuous ventures like yard sales or collecting cans off the roadside. They will howl at the prospect of paying taxes on selling used goods on which taxes were paid when new from income that was also taxed.

Louisiana will probably act to reduce the “howl factor.”

How a law is enforced is a different matter from what the law says. Enforcement is often selective and to date, thrift shops are reportedly still accepting cash. It is unlikely that the no-cash policy will ever be applied to a 25-cent child’s toy at a yard sale. Large and permanent business-like junk yards are far better targets in terms of public relations and the money to be gleaned in fines or “escaped” taxes.

Nevertheless, the law could be applied with no hesitation to anyone the authorities wish to target. Moreover the revenue net can be widened at will, and the information reported can be used to create new and innovative taxes.

Make no mistake, other states are watching.

The contempt revolves around the perceived message. Yet there is a multitude of messages. Indeed, initially the “leaders” (if that word applies to such a self-consciously democratic group) seemed opposed to imposing any meaning on the demonstrations beyond protesting Wall Street. Instead, they encouraged local organizers to define themselves.

Many messages have been ascribed, however. Some come from interviews with protesters on the street. Ezra Klein of the Washington Post stated, “Some of the people . . . want to End the Fed. Others want to tax Wall Street. One woman assured me that ‘very few’ of the top one percent live in New York, or even in the United States. ‘They’re in gated communities all around the world,’ she said. Someone else saw this as a cultural revolution.”

Other messages derive from lists of “demands” posted on forums even though the organizers claim the lists come from detractors who wish to make OWS look silly. Indeed, the “leaders” are currently working on an official message to counter what they view as widespread misunderstanding.

It is clear, however, that the original and most vocal protesters are left-wing and anti-capitalist. This aspect of OWS is what makes libertarians so derisive even though no similar depth of derision seems directed toward the right-wing aspects of the Tea Party.

A Place for Libertarians?

Why should libertarians be interested in OWS?

In the Salon article “What’s Behind the Scorn for the Wall Street Protests?” Glenn Greenwald explains, “Does anyone really not know what the basic message is of this protest: that Wall Street is oozing corruption and criminality and its unrestrained political power — in the form of crony capitalism and ownership of political institutions — is destroying financial security for everyone else?”

This powerful message is drawing in average people who are enraged. Thus the demonstrations have swelled far beyond hardcore ideologists. Many demonstrators now call themselves “the 99 percent,” meaning they speak for the vast majority of Americans. The 99ers carry signs that tell their stories in brief. In another Washington Post blog post, “Who are the 99 percent?” Klein explains, “These are not rants against the system. They’re not anarchist manifestos. They’re not calls for a revolution. They’re small stories of people who played by the rules, did what they were told, and now have nothing to show for it.”

Currently, the left is standing in the street beside outraged average people who are desperate to tell their stories. The Industrial Workers of the World has endorsed OWS ,and labor unions have joined the protests. And yet there seems to be no censorship of other messages; nothing prevents libertarian voices from joining the mix. If they did, the 99ers could see that it is not only the left who cares about injustice. If they did, at least some messages would be against state capitalism or the corporate state.

Blank Slate

It is not a difficult thing for libertarians to do. In the 1980s the economist Jeff Hummel and I arrived at a protest in Westwood, California, only to find it was largely anti-capitalist although it had been advertised as antiwar. Blank signs were provided on which people could write their own messages. I wrote “Make Profits, Not War.” While we marched, I argued with and explained myself to other participants, including one of the organizers. OWS offers a similarly blank slate for those willing to write their own messages and march.

There is yet another reason to refrain from derision; protesters have been maced, beaten, and arrested by the police for peacefully exercising their right to free assembly and free speech. The content of their speech is secondary to their right to speak out. “I disapprove of what you say but I will defend to the death your right to say it” is famously attributed to Voltaire. Libertarians who put their disapproval first and foremost are missing the proper emphasis.

They are also missing an opportunity. The left-wing rode a surging anti-Vietnam war movement into prominence in the decades that followed. The left marched with a cross-section of American society from priests to mourning mothers, from hippies to veterans. In doing so, it earned credibility. How much more credibility could be earned by libertarianism, a movement that actually gets the argument correct?

President Obama made the overhaul of America’s patent law a personal priority, including it prominently in his January 2011 State of the Union address. The America Invents Act was signed into law on September 16. The key change is a switch from “first to invent” to “first to file.”

Critics and advocates overwhelmingly focus on the practical implications of the Act. Fundamental questions about patents are rarely raised. These questions include: What is a patent? Do patents express a natural right or a governmental grant of monopoly?

What Is a Patent?

Patents and copyrights protect what is called “intellectual property.” A patent is an ownership claim to the expression or implementation of an idea. If the idea is an original expression – for example, music – the ownership claim is called copyright. If it is expression through implementation – for example, an improvement to a machine — the claim is called a patent. The holder of a patent can prevent anyone else from identically implementing the same idea. At its root, controversy over intellectual property is about freedom of expression and when it can be properly restricted.

Patents and copyright quickly part company. The most famous libertarian to make a sharp distinction between the two was the single-tax champion Henry George. He rejected the former and embraced the latter.

Why? In his periodical The Standard (June 23, 1888), George explained his objection to patents, “No man can justly claim ownership in natural laws, nor in any of the potentialities which nature hold for it.” A patent involves identifying and using a law of nature or a fact of reality, neither of which have been created by the discoverer.

Discovery versus Production?

George distinguished between two forms of labor involved in invention. The first was the mental labor of working out operating principles: discovery. The second form was the construction of a specific machine or implementation: production.

Since the principles discovered were preexisting – such as how X amps of electricity react to Y ohms of resistance — they  should be available for anyone to use and not monopolized by one man. To the argument that specific implementations – such as voltmeters — did not exist in nature and so could be patented, George replied that the principles on which machines operated were intrinsic in nature. A windmill expresses how the force of wind pushing against a particular surface can produce power. Thus every patent amounts to an ownership claim over an expression of nature and the logic of its application. A man could own a specific windmill he produced but he could not prevent others from similarly producing their own windmills.

This is a common distinction between patents and copyright. Patents are an ownership claim over preexisting natural laws and their implementation; copyright is a claim to “goods” with no preexistence.

Simultaneous Discovery

Another argument against patents is that they violate the rights of a simultaneous inventor. Two people can plausibly invent the same thing independently and at nearly the same moment; hence it is not proper for only one to have a monopoly.

Fields of endeavor can reach a stage where certain breakthroughs become almost inevitable. Then it is not uncommon for people independently to develop extremely similar applications. The most famous example may be calculus, developed by both Newton and Leibniz.

This objection to patents was expressed by the nineteenth-century libertarian Benjamin Tucker: “The central injustice of . . . patent laws is that it [sic] compels the race to pay an individual through a long term of years a monopoly price for knowledge that he has discovered today although some other man . . . in many cases very probably would have discovered it tomorrow.”

Obama’s patent “reform” trades one injustice for another. Formerly the first to invent won the patent, even if someone else indisputably did the same thing independently. Now the first to file for a patent will win, similarly excluding independent inventors – not to mention anyone else who tries to use the natural principles as embodied in the invention.

Roots of Patent

Historically patents were grants of privilege awarded by a ruler to his favorites or to those willing to pay bribes. America broke precedent. Article I, Section 8 of the Constitution states, “Congress shall have the power . . . to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” The original American patent law thus extended protection in order to encourage innovation. However, one might say that it simply changed the criterion by which monopoly privilege would be granted.

Whether you agree with that original purpose or believe (as I do) that all patents are improper, the America Invents Act is repellent. By granting patents to those who merely file first rather than invent first, Obama further advantages State-privileged corporations with their massive research funds and lawyers, and takes a huge step backward toward the days of patents as royal privileges.

On August 26 the First Circuit Court of Appeals rejected a motion to dismiss a lawsuit against the Boston police for arresting a man who recorded their brutal treatment of a teenager. The ruling is only one stage of an important lawsuit but it may have sweeping consequences for two concepts that are crucial to civil liberties: police immunity and the free-speech right to record on-duty police in public. In essence, and in an unusual move, the court ruled against immunity and for freedom of speech. (Recording speech in the public realm is considered to be protected by freedom of speech.)

The federal Electronic Communications Privacy Act allows audio recordings if one party to the conversation consents. Thirty-seven states have adopted the “one consent” standard; 12 states require “all consent.” Massachusetts is one of them. (To check your state, click here.)

In recent years police departments have been plagued by a flood of embarrassing and legally explosive recordings of their officers’ savagery and disregard for the law. When posted online these recordings are a powerful restraint on police power. Thus some states have reinterpreted a law meant to prevent clandestine recording to permit the arrest of those who record the police in public, where there has traditionally been no expectation of privacy. A de facto war has erupted between some police departments and people who continue to record. Civil-rights organizations have expressed unanimous outrage at this assault on freedom of speech, police accountability, and due process.

Specifics of the Simon Glik Case

On October 1, 2007, attorney Simon Glik was arrested for recording  the “rough” treatment of a teenager on the Boston Commons and charged with disturbing the peace, felony wiretapping, and aiding the escape of a prisoner. Glik had stood peacefully to one side, and the prisoner had not escaped. The wiretapping charge resulted from the audio recording made with his cell phone.

In February 2008 all charges against Glik were dropped, whereupon he filed an internal-affairs complaint against the arresting officers. It was not pursued. In February 2010 Glik filed a civil-rights lawsuit in the federal District Court of Massachusetts against three officers and the city for violating his First and Fourth Amendment rights. The police asked to have the suit dismissed on two grounds: The police were immune from personal liability for their on-duty actions, and the free-speech aspect of the suit was not “well-settled” in law.

On the liability issue the District Court found that probable cause is required for an officer to be entitled to “qualified immunity from a Fourth Amendment claim.” “Glik’s Fourth Amendment claim is that the appellants lacked any such probable cause that Glik had violated state law at the time of arrest,” the court said, adding, “The presence of probable cause was not even arguable here.”

On the free-speech claim the court ruled, “Glik’s exercise of his First Amendment rights fell well within the bounds of the Constitution’s protections. . . . The freedom of individuals verbally to oppose or challenge police action without thereby risking arrest is one of the principal characteristics by which we distinguish a free nation from a police state.”

Predictably, the police department appealed to the First Circuit Court where, as commentator Carol Rose explained, the court would “decide whether cops can get away with wrongfully arresting innocent passersby in order to silence anyone who documents their misconduct.”

The Court upheld the District ruling. The lawsuit can proceed.

Russian Émigré

America is lucky that Simon Glik emigrated from Russia to the “freedom” of its shores. He did not walk away on witnessing police brutality; he refused to  obey a police command (“stop recording!”) that violated his civil liberties; he is tenacious about pursuing constitutional rights.

It is not possible to predict the outcome of Glik v. Cunniffe. The court system has a marked tendency to uphold immunity and other police protections, but the findings of the District and Circuit courts are encouraging.

Glik is an important case because it is a crack in the legal immunity that many states grant police officers for their on-duty misconduct. Freedom of speech is certainly at issue here, but Glik is equally important for advancing police transparency and accountability. Without these safeguards, it is not safe for anyone to walk down a street in America . . . not because of criminals but because of the police.