Newspaper column: Feds flagrantly infringe free speech rights with futile ferreting

Reason magazine has been hit with a federal subpoena seeking “any and all identifying information” about comments posted on an online blog discussing the conviction and harsh sentence given to the founder of an online website called Silk Road, where illegal drugs could be bought and sold.

One comment on the blog suggested, “Its (sic) judges like these that should be taken out back and shot.” Another, “Why waste ammunition? Wood chippers get the message across clearly.”

For two weeks the magazine was under a gag order to not discuss the subpoena, but that has been lifted.

Personal liberty blog illustration

“From press accounts of similar actions at other news publications and social media sites, we know that it is increasingly common for the federal government to demand user information from publications and websites while also stifling their speech rights with gag orders and letters requesting ‘voluntary’ confidentiality,” a recent Reason blog posting states. “Exactly how common is anyone’s guess …”

Excuse me, but Nevadans have been there and done that.

In 2009 in a remarkably similar case the feds issued a sweeping subpoena for information on those who commented on a Las Vegas Review-Journal story about the trial of Las Vegan Robert Kahre, who was charged with tax fraud for using the rather inventive argument that he could pay people in U.S. minted gold and silver coins based on their precious metal value but for tax purposes use their face value, which is many times less.

One online commenter called jury members “12 dummies” and said they “should be hung” if they convicted Kahre.

Another called the federal prosecutor “evil incarnate and everything that is against the American justice system.”

The newspaper was served with a subpoena from the U.S. attorney’s office demanding that the paper turn over all records pertaining to those postings, including “full name, date of birth, physical address, gender, ZIP code, password prompts, security questions, telephone numbers and other identifiers … the IP address,” etc. There was no indication what they were looking for or what crime, if any, was being investigated, just a blanket subpoena for voluminous and detailed records on every private citizen who dared to speak about a federal tax case.

As editor of the paper at the time my instinct was to fight the subpoena tooth and nail. Instead the paper convinced the prosecutors to narrow their search to a couple of comments. Of course, the paper only had an email and name for each comment, both of which could be fictitious and most were.

But the American Civil Liberties Union vowed to fight on, believing a chilling effect remained. ACLU attorney Margaret McLetchie sought a court order declaring the original subpoena unconstitutional. She said the ACLU had filed on behalf of three clients, who posted anonymously on the newspaper website. They remained anonymous during the legal action.

“The right to speak anonymously about politics is older than the Constitution,” McLetchie said at the time.

At one point I asked readers what they would do if confronted with such a subpoena.

The readers were quite brave with my company’s money and my freedom. Nearly 700 people voted. Of those, 51 percent bravely said they would have fought to the highest court in the land even if they (meaning I) landed in jail. Only 16 percent said they would immediately turnover what the feds were asking for, while 33 percent said they would surrender information only on those who clearly made threats or admitted criminal acts.

“For many people now and in the future, this is not academic. What will happen when a friendly federal investigator visits your employer asking about what you’ve been posting online?” I wrote then.

All of the comments on the Reason site and the newspaper site were cliches of outrage and mere hyperbole, which are protected free speech rights.

In 1969, the U.S. Supreme Court threw out a case against a man who while protesting the draft had stated that if he were made to carry a rifle “the first man I want to get in my sights is L.B.J.” The court called this “crude political hyperbole which, in light of its context and conditional nature, did not constitute a knowing and willful threat against the President …”

Why the feds continue to pursue such matters is a mystery, but they do.

In December 2010, the 9th Circuit Court of Appeals affirmed federal Judge Kent J. Dawson’s ruling that the claims of those persons who had been subpoenaed were moot because the subpoenas were no longer in effect. The feds made everyone scramble, but then just slithered away.

A version of this column appears this week in the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel, the Lincoln County Record and the Sparks Tribune — and the Elko Daily Free Press.

Man from Nevada on hot seat over Burning Man demands

Burning Man photo from 2014. (AP photo)

So, how do you think this is going to turnout?

The head of the Bureau of Land Management is Neil Kornze, a native of Elko and former policy advisor to Harry Reid, who managed to have the 35-year-old confirmed by the Senate 71-28 shortly before the bungled standoff with Bunkerville rancher Cliven Bundy.

Now Kornze’s agency is demanding expensive pampering from the organizers of the Burning Man festival in Black Rock Desert. The Reno newspaper reports that the BLM is demanding that the festival organizers build a $1 million luxury facility replete with trailers, flush toilets, washers and dryers and vanity mirrors for the comfort of BLM executives and agents and unspecified VIPs. Festival organizers say the cost of permits and complying with BLM demands have risen from $1 million in 2011 to nearly $5 million this year.

This year’s eclectic event — described as celebration of art, music and free expression, whatever that means — is scheduled to take place between Aug.30 and Sept. 7. It annually attracts about 70,000 people and generates about $35 million for the local economy.

In addition, the Reno paper says emails it has received spell out a demand that the facility be stocked with hot-and-cold running desserts and a 24-hour full-service kitchen providing a potentate’s menu of gourmet meals and snacks that include (we kid you not) 10-ounce steaks, 18-ounce pork ribs, poultry, ham, fish, vegetables, potatoes, bread, salad bar with five toppings and three dressings and desserts.

Kirnze’s old boss Harry has sent a letter to his new boss, Secretary of the Interior Sally Jewell, critical of the BLM demands.

“I care strongly about the environment in the Black Rock Desert and was glad to author the legislation that created the Black Rock Desert-High Rock Canyon-Emigrant Trails National Conservation Area where Burning Man is held,” Reid wrote. “While I agree that the BLM should take its permitting duties seriously and work with Burning Man to both guarantee the safety of its participants and the protection of the environment, providing outlandishly unnecessary facilities for the BLM and its guests should be beyond the scope of the permitting requirements. Part of Burning Man’s philosophy is self-reliance and living with the elements is part of the experience. Flush toilets and laundry facilities can be found about ten miles away in Gerlach, Nevada, if BLM’s employees need such amenities.”

The Reno Gazette-Journal reports that Nevada’s other senator, Dean Heller, spoke with Kornze this week and called the demands “a bit over the top.”

Rep. Mark Amodei said the BLM demands raised ethical concerns.

BLM Deputy Director Steve Ellis issued a statement saying the agency need to assure employee health and safety, sanitation and environmental compliance but he was concerned about cost of the agency requests.

We suspect Kornze will find a way to tone down the agency demands.


AG opens another front in fight against EPA water grab

Earlier this month, the Environmental Protection Agency issued its final rule to “clarify” what water is covered by the Clean Water Act of 1972, which originally was intended to limit pollution of navigable waterways. The clarification puts nearly every stream, ditch, wetland or muddy hoof print under EPA control.

AG Adam Laxalt

Members of Congress were already moving forward with legislation to block the usurpation of state water rights. Reps. Mark Amdoei, Cresent Hardy and Joe Heck voted with a majority of the House (261-155) on a bill to block this EPA water rule (H.R. 1732). Rep. Dina Titus, of course, voted against it.

On Monday Nevada Atttorney General Adam Laxalt joined the fray. He joined a dozen others in suing in federal court over the so-called “Waters of the United States” rule.

“I will fight for Nevada each time President Obama attempts to unilaterally ‘transform’ this country through expansive and unconstitutional new interpretations of decades-old laws. My office has pledged a commitment to protecting our state from unreasonable federal overreach and will continue to do so at every opportunity,” said a Laxalt press release.

Coming on the heels of the Supreme Court ruling reining in the EPA’s overreach on emissions from coal-fire power plants, it seems the lawsuit has promise.

“This is the latest power grab by this presidential administration to expand federal oversight into areas that are better managed by state and local governments,” said Laxalt. “Congress directed that the states retain their sovereign authority over state land and water resources. The ‘Waters of the United States’ rule would grant the EPA authority over areas properly regulated by state and local governments. This expansive new rule is particularly problematic for states like Nevada, whose specific needs cannot be understood by federal agencies such as the EPA, with its one-size-fits-all approach to regulation.”

The new EPA rule would allow the federal government to require a permit and demand a fee for any work that alters the flow of water near any rivulet — anything from dredging an irrigation ditch to terracing a field — on public or private land.

Muddy hoof print (Getty Images)

At the time of the rules publication President Obama declared, “Too many of our waters have been left vulnerable to pollution,” which to the EPA includes dirt. “This rule will provide the clarity and certainty businesses and industry need …” he said, claiming the rule has been written to avoid harming farming, ranching and forestry.

But the Western Congressional Caucus said the EPA spurned public comment and input from the states in the rulemaking process, saying of the new rule, “This is nothing short of a federal seizure of state waters, to the point where very few, if any, water bodies will be left for the states to manage. Water rights, economic growth, and local conservation efforts will suffer. Instead of working with the local officials and state agencies who know their needs the best, citizens will have to depend on a disconnected federal bureaucracy for management of our most precious natural resource: our water.”


Editorial: The IRS should back off changing gaming rules

The Internal Revenue Service is pondering new rules regarding tax reporting by casinos — including tracking player rewards and loyalty card programs and lowering the threshold for reporting electronic jackpots from $1,200 to $600.

At a hearing in Washington this past week Geoff Freeman, president and CEO of the American Gaming Association, testified that the proposed changes would be “far more complicated, onerous and unproductive than may have been understood” by the IRS.

In fact, a Wall Street analyst has estimated the regulations could result in $530,000 less in revenue annually per casino. That might mean the new regulations would not increase tax collections, but actually reduce them.

Seventeen members of the House of Representatives who represent districts with casinos — including all four of Nevada’s representatives, Joe Heck, Mark Amodei, Cresent Hardy and Dina Titus — have sent a letter to the IRS Commissioner John Koskinen urging the agency back off the changes.

They noted that the gaming industry supports 1.7 million jobs in this country from $240 billion in business activity and the proposed changes would have detrimental affects on those jobs and local economies.

“Since the $1,200 threshold level was originally adopted in 1977, to account for indexed inflation the threshold should actually be approximately $4,700 today,” the letter argues. “We strongly believe the IRS should not consider any reduction of this reporting threshold, as any lowering from $1,200 would have significant negative impacts on casino operations and consumers. Any reduction in this threshold would dramatically raise costs to comply, decrease gaming revenue due to more frequent ‘lock-ups,’ and would greatly increase the burden workload for IRS.”

Sounds like a full-employment plan for IRS paper pushers because the agency would be flooded with W-2G forms. The cost of processing the paper could well exceed any additional revenue.

In prepared remarks for the IRS hearing AGA’s Freeman said, “Finally, regarding the suggestion in the proposed guidance that sometime in the future the slot jackpot reporting threshold could be cut in half, from the current $1,200 level to $600, to be clear the casino gaming industry strongly opposes any such reduction. Our written comments detail the myriad adverse impacts that would result for the customer, the IRS and the industry — ranging from significant labor cost increases to more lost business revenue from machine down-time. We do not believe that the resulting flood of additional W-2Gs to the IRS will produce any meaningful additional tax revenue and will simply be more administrative burden for everyone involved, including the IRS.”

After the Washington hearing Freeman told a reporter, “The customer would walk away. This would have enormous implications not just for loyalty cards in the casino industry but in the broader hospitality industry — hotels, airlines and others.”

Both the industry and congressional representatives urged the IRS to scrap its proposed mandatory reporting requirements and take a voluntary approach that lets the many jurisdictions where gambling takes place to craft workable solutions.

We urge our congressional delegation to continue to pressure the IRS to relent from this damaging and counter-productive effort that will cost Nevada’s economy dearly and doubtlessly result in job losses that we can ill afford.

A version of this editorial appears this past week in some of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel,  Sparks Tribune and the Lincoln County Record.

Deuling editorials: Right thing to do, wrong way to do it

The New York Times editorial said the Supreme Court’s gay marriage ruling “fits comfortably within the arc of American legal history.”

The editorial continued, “As Justice Kennedy explained, the Constitution’s power and endurance rest in the Constitution’s ability to evolve along with the nation’s consciousness. In that service, the court itself ‘has recognized that new insights and societal understandings can reveal unjustified inequality within our most fundamental institutions that once passed unnoticed and unchallenged.’”

The decision may fit in the arc of changes in attitudes and politics, but it grasped never intended power for five of nine unelected justices.

Justice Atonin Scaliea called it a putsch.

The editorialists at The Wall Street Journal put it this way: “The revolution in mores about gay and lesbian participation in the institution of marriage is among the most dramatic cultural shifts in U.S. history. Justice Anthony Kennedy’s opinion in Obergefell v. Hodges is a declaration of social inclusion whose outcome is welcomed by ever-more Americans. The complication is that the Constitution is silent about marriage and social-policy preferences, which are supposed to be settled by the people and the political branches.”

Nevada voters approved a constitutional amendment banning gay marriage by a voted of 69.6 percent in 2000 and 67.1 percent in 2002. The 9th Circuit Court of Appeals in 2014 struck the amendment as unconstitutional. It is questionable whether it would pass today, if it were on the ballot.

The Washington Post editorial also mentioned changes in attitudes. “Yet the fact that it’s foreseeable to Mr. (Justice John) Roberts that same-sex marriage bans would fall, state by state, to popular pressure shows how far the country has come, and quickly. In states where lower courts had already ordered same-sex marriages to commence, the transition has been generally calm. We expect to see the same maturity and acceptance across the country now.”

The editorialists at Investor’s Business Daily also questioned the power of the court to do what it did. “Do five men and women believe they can rewrite traditions dating back thousands of years with a few strokes of their mighty pens?” they wrote.

“Apparently so. So much for our democracy.”

As I noted before in comments, the ruling opens a new chapter in the interpretation of the Free Exercise Clause of the First Amendment. WSJ also noted as much: “A better response — as practical politics and for civic comity — would be to support laws that protect the conscience rights of religious believers and faith-based institutions that do not honor same-sex marriages. The unfortunate truth is that the political left is rarely magnanimous in victory, and its activists may not be satisfied until the force of government stamps out private values and practices they find deplorable.”

Likewise IBD: “Justice Samuel Alito made plain that the decision ‘will be exploited by those who are determined to stamp out every vestige of dissent.’ Those who continue to believe gay marriage is wrong, he added, ‘will risk being labeled as bigots and treated as such by governments, employers and schools.'”

The five justices have opened a can of worms.

It will be interesting to see how the once libertarian-leaning Las Vegas newspaper opines on this topic, if it does.


Newspaper column: Those who once pushed for clean energy now balk at paying the price

Be careful what you so ask for. You just might get it — good and hard.

Return with us now to those thrilling days of the 2013 Nevada legislative session, when lawmakers, determined to save the planet from carbon dioxide-induced global warming by closing down all of the state electric grid’s coal-fired power plants, passed Senate Bill 123. Those coal plants would be replaced with clean renewable energy and natural gas-fired plants.

Some of the state’s biggest and most influential companies supported passage of SB123.

Josh Griffin, testifying on behalf of MGM Resorts International, told an Assembly committee: “I am here to support (SB123). As you all know and have heard here today, the piece of legislation in front of you represents thousands of hours of work by so many different interested parties, many of whom have already spoke. … We are proud to support the efforts in this bill.”

Crescent Dunes Solar Project

Richard Perkins, representing Wynn Las Vegas, chimed in: “As Mr. Griffin indicated, the large users in southern Nevada, particularly the gaming companies, participated with NV Energy working through the bill and finding compromise areas. We are here in support of the bill.”

At a Senate Committee hearing a letter was submitted on behalf of Las Vegas Sands Corp. signed by Andrew Abboud, senior vice president of government relations for the hotel-casino company. “Las Vegas Sands Corp. writes in support of the compromise reached by NV Energy and representatives of the Nevada Resort Association and the Southern Nevada Hotel Group on SB123. The legislation is essential to speeding up the closure of Nevada’s coal-burning electric facilities and enhances our state’s commitment to green energy,” the letter said.

An email form Virginia Valentine, president of the Nevada Resort Association, was placed into the record in support of the bill.

Other companies also supported the bill, which was being pushed hard by Sen. Harry Reid.

Earlier this year The Beacon Hill Institute at Suffolk University in Boston released a study of the economic impact of SB123 commissioned by the Nevada Policy Research Institute.

The study estimated the bill, between 2015 and 2025, would cost Nevadans $617 million dollars and destroy 2,630 jobs by 2020, while driving up electricity prices by nearly 3 percent. These costs are spread across the grid, whether one is a customer of NV Energy or not.

Now, fast forward to a Public Utilities Commission (PUC) of Nevada hearing earlier this month.

MGM, Wynn and Sands are all trying to exit the state’s monopoly grid and purchase power elsewhere at a lower cost.

At that hearing Wynn Resorts President Matt Maddox sharply criticized the power company, saying, “Nevada Energy made more net income ($354 million net income) than the Las Vegas Strip last year. You know where all that money went? Omaha.” That was a reference to the power company being purchased in 2013, after passage of SB123, by a Warren Buffett company.

While Maddox was testifying, MGM CEO Jim Murren was on public radio complaining about having to pay $86 million a year for power and talking about the firm’s attempt to buy cheaper power on the open market. “We’re not interested in subsidizing everybody who lives in our state on the backs of us overpaying for our power,” he said.

Former state Sen. Randolph Townsend also took the opportunity of the PUC hearing to criticize SB123. “(SB)123 was the greatest highway robbery I’ve ever seen coming through this state. I think it was a disaster,” he said.

At that PUC hearing commissioners denied a Las Vegas-based data storage company’s bid to pay a fee and exit the power monopoly, but indicated negotiation with that firm and the casinos could continue.

Another factor driving up the cost of power for everyone is a state law that mandates 25 percent of the state’s electricity be generated from renewables — such as solar, wind, biomass and geothermal — by the year 2025. Renewables cost three to four times as much as natural gas- or coal-fired power.

For example, the Crescent Dunes Solar Energy Project near Tonopah is scheduled to come online this year. The solar thermal plant, which will generate power by using a massive array of mirrors to melt salt to drive its turbines, has a 25-year contract to sell power at 13.5 cents per kilowatt-hour. That wholesale price is three and half cents higher than the residential retail rate in Northern Nevada.

Be careful what you ask for.

A version of this column appears this week in the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel, the Lincoln County Record and the Sparks Tribune — and the Elko Daily Free Press.

The rules are precisely what the court says they are on any given day due to any given whim

Cato’s Michael Cannon accused the Supreme Court of playing Calvinball in its decision upholding ObamaCare.

In the old Calvin and Hobbes cartoon strip the characters played Calvinball, a game in which the rules were constantly changing to suit a player’s advantage.

You might conclude the court was playing Calvinball in three cases in two days.

In King v. Burwell on Thursday, the court said the words “established by the state” also mean established by a federal agency, when it comes of doling out subsidies.

Also on Thursday in Texas Dept. of Housing and Community Affairs v. Inclusive Communities Project, Inc., the court ruled that discrimination can be proven by mere disparate outcomes rather than actual evidence.

In Obergefell v. Hodges, today the court ruled, in its customary 5-4 split, that there is a right to gay marriage in every state, no matter how the citizens of any given state may have voted.

In the ruling today, Justice Antonin Scalia wrote in dissent a sentiment probably held by many libertarians:

Those civil consequences — and the public approval that conferring the name of marriage evidences — can perhaps have adverse social effects, but no more adverse than the effects of many other controversial laws. So it is not of special importance to me what the law says about marriage. It is of overwhelming importance, however, who it is that rules me. Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court. The opinion in these cases is the furthest extension in fact — and the furthest extension one can even imagine — of the Court’s claimed power to create “liberties” that the Constitution and its Amendments neglect to mention. This practice of constitutional revision by an unelected committee of nine, always accompanied (as it is today) by extravagant praise of liberty, robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves.

Justice John Roberts, back from his sojourn in Humpty Dumpty land in the ObamaCare ruling, opined:

Petitioners make strong arguments rooted in social policy and considerations of fairness. They contend that same-sex couples should be allowed to affirm their love and commitment through marriage, just like opposite-sex couples. That position has undeniable appeal; over the past six years, voters and legislators in eleven States and the District of Columbia have revised their laws to allow marriage between two people of the same sex. But this Court is not a legislature. Whether same-sex marriage is a good idea should be of no concern to us. Under the Constitution, judges have power to say what the law is, not what it should be. The people who ratified the Constitution authorized courts to exercise “neither force nor will but merely judgment.” The Federalist No. 78 …

Justice Clarence Thomas in his dissent took apart the Due Process argument of the majority:

The Court’s decision today is at odds not only with the Constitution, but with the principles upon which our Nation was built. Since well before 1787, liberty has been understood as freedom from government action, not entitlement to government benefits. The Framers created our Constitution to preserve that understanding of liberty. Yet the majority invokes our Constitution in the name of a “liberty” that the Framers would not have recognized, to the detriment of the liberty they sought to protect. Along the way, it rejects the idea — captured in our Declaration of Independence — that human dignity is innate and suggests instead that it comes from the Government. This distortion of our Constitution not only ignores the text, it inverts the relationship between the individual and the state in our Republic. I cannot agree with it.

How many other rights will now be found in the penumbra of the Constitution now that we have a right to health insurance subsidies no matter what the law actually says, a right to claim discrimination based on statistics (lies, damned lies and statistics) and a right to the benefits of marriage no matter what the law or constitution of a state may say.

Justice Anthony Kennedy, who wrote today’s gay marriage ruling, also wrote the opinion striking down the federal Defense of Marriage Act of 1996, signed by Bill Clinton.

In the that earlier ruling, Kennedy wrote:

The State’s power in defining the marital relation is of central relevance in this case quite apart from principles of federalism. Here the State’s decision to give this class of persons the right to marry conferred upon them a dignity and status of immense import. When the State used its historic and essential authority to define the marital relation in this way, its role and its power in making the decision enhanced the recognition, dignity, and protection of the class in their own community. DOMA, because of its reach and extent, departs from this history and tradition of reliance on state law to define marriage.

That was then, this is now in the game of Calvinball.

Polygamy must be a right, too. It is in the Bible. If Kennedy can cite Cicero and Confucius, why not the Bible?

In fact, Roberts asked that very question: “If not having the opportunity to marry ‘serves to disrespect and subordinate’ gay and lesbian couples, why wouldn’t the same ‘imposition of this disability,’ … serve to disrespect and subordinate people who find fulfillment in polyamorous relationships?”