Antipeonage Act Website
See also www.antipeonage.0catch.com
A tribute to a hero, my father.
We WON reinstatement of eight plaintiffs in Pittman et al. v. King's Command Foods, Inc. on September 8, 2003!! Please go to the Pittman et al v. King's Command Foods Website for further details. It has now been more than thirty days. No Petition for Review has been filed, it will be remanded back to King County Superior Court.
Some practical advice for support contemnors in the State of Washington
A Way to Walk a Mile in a Noncustodial Parent's Moccasins.
The Space Shuttle Columbia. A Tribute to the Heroes. What I believe happened, and hope it did not. Why We Fly
It's Not Face Mountain, It's the Slag Pile 12 Miles From Face Mountain
Or go to mars.jpl.nasa.gov/mgs/msss/camera/images/01_31_01_releases/cydonia/ and download Photo M18-00606 and look at the Slag Pile. Look at the ground immediately to the east of the Slag Pile. We better find out what that is.
The purpose of this website is to introduce you to an Act of Congress that folks seem to have forgotten over the years. This statute is the Antipeonage Act of 1867. It currently exists as 42 U.S.C. §1994, which is the civil provision, and 18 U.S.C. §1581, which is the criminal provision. Just to keep you from thinking that I am talking about a myth, you may look these statutes up in the United States Code.
The Antipeonage Act is appropriate legislation Congress passed to enforce the Thirteenth Amendment, which abolishes slavery and involuntary servitude except as a punishment for a crime. It is not the least bit unconstitutional, because it is authorized by an Appropriate Legislation Clause. What the Antipeonage Act does is that it defines as null and void any attempt by virtue of state law to establish, maintain, or enforce the service or labor of any person as a peon in liquidation of a debt or obligation, or otherwise. Any enforcement of such is a felony punishable by a fine of not more than $250,000 and imprisonment for not more than 20 years. If however, there is a kidnapping involved, say what happened to Dawn Case, imprisonment may be for any term of years to life.
Peonage is thus legally required labor to pay a debt or obligation. That child support is covered by the Antipeonage Act is argued in my briefs filed in Knight v. Maleng, 9th Cir. 00-35625.
The United States Supreme Court denied review of this case on October 1, 2001. That sucks, but there are millions of us nationwide, and for those of you who are not fighting back, what the Hell is stopping you? Answer: You. When you stop stopping you, that is the beginning of us stopping them. The day you stop being afraid of them is the day they start being afraid of you. With the Antipeonage Act, they have a lot to fear. Please click here for the need for numbers, money, and publicity.
In Knight v. Schmitz, 9th Cir. 01-35459 I argued that excessive child support orders violate the parent's fundamental rights under the Fourteenth Amendment. This effort was killed by the Rooker-Feldman doctrine, which brings me to ask this question: How come the Lovings were able to attack the validity of their old state court felony conviction for unlawful marriage in a class action civil lawsuit brought in federal court? I realize Feldman came down in 1983, but Rooker has been there since 1923. I wonder if the federal judiciary and the Senate and Presidents who appointed it decided that the Civil Rights Revolution of the 1960's and '70's is something we cannot allow to happen again? How else can we explain the rapid and complete embrace of Younger and Rooker-Feldman?
After the Washington Legislature passed the WorkFirst Act in 1997, I have had several opportunities to challenge its validity. In response to two letters from the Washington State Department of Social and Health Services threatening license suspension, I brought action in the state courts to have this multi-subject bill struck down on the grounds that multi-subject bills are prohibited by the Washington Constitution. The briefs are listed on the page Knight v. DSHS, Wash. Court of Appeals No. 46753-1-I.
Finally in September 2001, the DSHS decided to actually suspend my driver's license. Even though I previously filled out a change of address form that was effective for both of my vehicle registration and for my operating license, they are pretending that they "lost" this document and mailed the notice to an address different than either my old address or the new address I notified them of. What's more, they've acknowledged my change of address for vehicle registration, just not for my vehicle operating license!!!
We would not want to start trusting the government now, do we? Our government does everything it can to disabuse us of that notion!!
How I found out was that I started being pulled over and charged with driving while license suspended. This has resulted in several new actions. The pleadings are listed on Knight v. Seattle, No. C02-201R (now archived, however, you can find everything I posted on this case at www.antipeonage.0catch.com), Knight v. Mercer Island, No. C02-879L, and Knight v. Serpas, No. C02-1641C. We have a VICTORY in Mercer Island v. Knight! On January 17, 2003, the charges were dismissed with prejudice on remand because the City of Mercer Island elected to not continue the prosecution. After that, on March 11, 2003 the King County Sheriff's Department served me the licenses suspension paperwork that should have been properly served before. So now we have the Administrative Procedure Act adjudication in Knight v. State of Washington and DSHS. And, it appears that the King County Prosecutor does not understand collateral estoppel, I have had to fight a new battle and this time plead collateral estoppel! And I ultimately won this fight! See the CQ54646KC main page for this lovely little dustup.
In No. C02-879L, Judge Lasnik not only dismissed my action on September 25, 2002, he barred me from litigating in federal court concerning child support issues. .tif file. This is the consequence of my having to fight this battle virtually alone. Had we some concerted activity, we could have achieved a different result. Before filing an appeal, I filed my Motion to Amend Judgment to illustrate how wrong this is. On January 30, 2003, he denied my Motion. On to the Ninth Circuit, with a Motion for Stay of Judgment Imposing Litigation Bar Pending Appeal, FRAP 8. Which Judge Lasnik immediately denied. We made this motion in the Ninth.
In Washington Association of Neighborhood Stores v. State of Washington, (2003) 149 Wash. 2d. 359, 70 P. 3d. 920, the Supreme Court of Washington upheld Initiative 773, the Tobacco Tax Initiative. That is fine as far as that goes, but they weaseled on what they said about Article II Section 19 in Amalgamated Transit. In Neighborhood Stores, the 5 justice majority in an opinion written by Charles W. Johnson (joined by Barbara Madsen, Faith Ireland, Tom Chambers, and Charles Smith) said that necessity of implementation was not necessary to prove "rational unity" in a bill with a general title. Never mind that is exactly what they said in Amalgamated Transit and Burien v. Kiga about the Tim Eyman Initiatives. They now say that "rational unity" is demonstrated where each provision is necessary to implement the other provisions, rational unity may also be demonstrated if the provisions "directly relate" to each other and to the title. Unfortunately the dissent written by Justice Richard Sanders and joined by Gerry Alexander, Susan Owens and Bobbie Bridge fails to criticize this "clarification" of the test for rational unity in Article II Section 19 challenges to multi-subject bills. What they criticize is that if the Initiative does not mandate appropriations for health care, then it violates the subject in title part of Article II Section 19. This line of reasoning is further developed in Citizens for Responsible Wildlife Management v. State of Washington, (2003) 149 Wash. 2d. 622, 71 P. 3d. 644. Fortunately, Citizens rejected a suggestion that Initiatives be given less deference than Acts of the Legislature, both are to be given the same scrutiny. If only they would live up to that and not deny review to such cases where the Court of Appeals rejected an Article II Section 19 argument in an unpublished decision. But then, that is one of the reasons that the unpublished decision rule trashes the expectation for consistent application of the law. It frees the appellate courts from having to live with decisions in which they deliberately deviate from precedent to shaft a citizen, attorney, or an argument they do not like. To say that the judges are not political is like saying the ocean is not salty. While the Supreme Court of Washington sometimes grants review to unpublished decisions, they don't have the same incentive to do so unless the press is covering it like brown covers shit. And hot damn if the press usually doesn't even mention such cases while editorially criticizing Tim Eyman for presenting two subject Initiatives! That ranks up there on the hypocrisy meter with editorially whining about the corrupting effects of campaign contributions while charging more for political ads than for commercial ads.
On June 3, 2003, in the case of Bennett v. State of Washington, No. 29173-8, the State Court of Appeals, Division Two upheld the WorkFirst Act as a single subject bill without ANY analysis of its contents under the test for rational unity established in Amalgamated Transit, Burien v. Kiga, Neighborhood Stores, and Citizens.
Needless to say, we had to rewrite the dummy briefs we have placed on this website to account for Neighborhood Stores and Citizens. As you can see when reading these revised briefs, we can still make a powerful argument against these multi-subject bills, if the two parts of Initiative 695 or Initiative 722 do not "directly relate" to each other, which is the only way by which Amalgamated Transit and Kiga can be sustained, then the same can be said for the WorkFirst Act and the other bills challenged in these dummy briefs and the real briefs we have filed on behalf of myself. We cannot change the already filed briefs, of course, but do take Neighborhood Stores and Citizens into account when drafting your challenge to a multi-subject bill.
I do not fault the folks at Lane Powell who challenged Initiative 773. I am certain that they did a very good job. If they used the briefs posted on this website as part of their research, then the function of this website has been performed. Lane Powell need not confirm or deny looking at this website as part of their research.
We have done research on behalf of another client finding that liquor law violations are vulnerable because the original Liquor Control Acts of the 1930's easily embraced more than one subject and some of the bills passed since then amending the liquor laws breach the firewall between defining crimes and non-criminal matters. City ordinances are also governed by the single subject limitation. We posted a brief with the client referred to by the dummy name Gloria N.X. Celsius, represented by Justin Case of Li, Miles, and Furlong.
Winslow Bainbridge is a strange fellow. Juanita Kirkland found him intriguing at first but her infatuation dimmed and she got creeped out by his manner and telephone calls. She obtained a protection order under chapter 10.14 RCW and the City of Seattle charged him with violating the order. Upon a little research, the good folks at Li, Miles, and Furlong determined that SMC 12A.06.180 does not cover protection orders granted under chapter 10.14 RCW. They brought a motion to dismiss on behalf of their client Winslow Bainbridge. It turns out such a charge is better made under SMC 12A.06.190. But not to worry, we will analyze the Ordinance that created SMC 12A.06.190 for multi-subjectness. Our challenge to SMC 12A.06.180 as being based on multi-subject Ordinances is still valid for the client who is charged with violating a domestic violence related protection order.
Another of Justin Case's hypothetical clients, Millie Graham, is charged with a felony count of violation of RCW 69.50.401(f). Her son Michael Graham was busted for delivering a controlled substance and she put him up to it. Our motion to dismiss the charge on the grounds that subsection (f) was added by a multi-subject bill, Laws 1987 chapter 458. Michael Graham was charged with delivering more than two kilograms of a Schedule I or II controlled substance, cocaine, RCW 69.50.401(a)(1)(i)(B). He's in a heap of trouble and Li, Miles, and Furlong is gonna have to go the distance to save his butt. Senior partner Qiahao Yiqian Li has joined Justin Case in representing him. Take a look at Laws 1971 1st ex. sess. chapter 308, the Uniform Controlled Substances Act, chapter 69.50 RCW. Take a good look at RCW 69.50.301-312. I would say that it provides for regulation and licensing of LEGAL manufacturing and distribution of controlled substances, which is a different subject than defining CRIMES. In addition to the UCSA, there is Laws 1989 chapter 271, the Omnibus Alcohol and Controlled Substances Act. Anytime you see the word "Omnibus" in the name of a bill, you know that it is the product of everyone and their kid brother coming to the Legislature with their wish list and the Legislature accommodating the wishes. Congress is allowed to do that but the Washington Legislature is prohibited by Article II Section 19 of the Washington Constitution. The reason I increased Michael Graham's quantity of cocaine to five pounds is to better establish his standing to challenge this lovely multi-subject monstrosity. It not only breaches the firewall between defining crimes and providing for non-criminal matters, it breaches the often enforced firewall between funding and appropriations measures and provisions affecting substantive rights. Here is the Michael Graham Brief.
Justin Case wrote a brief for Ella Vader, arrested for possessing amphetamine with intent to deliver. Laws 1998 chapter 82 actually contains a provision that declares itself null and void absent the passage of a funding bill by June 30, 1998. Tsk. Tsk. Tsk. It makes you feel like the school teacher with a particularly creative bunch of excuse makers. And then there is his client Magnus Olsen, arrested for possessing a firearm at Rainier Beach High School. We will provide the motion to dismiss.
You will be seeing more briefs along this line, as we draft multi-subject bill challenges to a whole bunch of RCW's. For parties, we'll use dummy names such as Roman Miles, Bonnie Lake, and Franklin Stove unless our client agrees to allow us to use the actual brief on this website. My favorite dummy corporation is Imperial Quartz, Sand, and Gravel, Inc., I hear they've retained Li, Miles, and Furlong. Other dummy corporations might include Smith Foundry and Machine Shop, Inc. and Cooper Container Corporation.
It's really very simple: You have a client adversely affected by an RCW. Well, shucks! You just waltz on over to the Law Library and look up all of the Laws of Washington that went into the statute. You find a multi-subject bill creating or amending the statute, you have a good faith motion to dismiss or argument on appeal, if prior to the amendment, the statute did not prohibit your client's actions. Such as owning a long firearm after a felony conviction. We can blast BIG UGLY HOLES in the Revised Code of Washington this way and force the Legislature to re-pass all of the provisions in single subject bills.
The problem is the absolute lack of similarity of the Supreme Court of Washington decisions in In re Boot, which upheld the obscenely multi-subject Violence Reduction Act because all of the subjects are related to violence reduction, and Amalgamated Transit, which struck down Initiative 695 because one provision was not necessary to implement the other. Then Neighborhood Stores revises that to the "directly relate" test. WELL, WHICH IS IT? If the relatedness of all of the provisions of a bill to the subject of its title render it single subject, regardless of how many firewalls between appropriations and substantive law, defining and punishing crimes and non-criminal matters, etc. are breached, then Initiative 695 is a single subject bill. If the lack of direct relationship of each provision to each other provision is what defines a bill as two subject, then the Violence Reduction Act, the WorkFirst Act, the Omnibus Alcohol and Controlled Substances Act, the Uniform Controlled Substances Act, the Liquor Control Act, and many other bills are all void as multi-subject bills.
To boil this down to a three minute oral argument, you would tell the court:
"The Washington Federation of State Employees case, In re Boot, the Jenkins, Acevedo, and Knight cases cited by Boot, and Amalgamated Transit, Burien v. Kiga, Washington Assoc. of Neighborhood Stores v. State, and Citizens for Responsible Wildlife Management all found that the bills and initiatives at issue had general titles. All held that all that was necessary was that there be 'rational unity' in all of the provisions with respect to the subject of the general title. However, Amalgamated Transit, Kiga, Neighborhood Stores. and Citizens together established a test to determine rational unity: Each and every provision of a bill or initiative with a general title must directly relate to each and every other provision, or it lacks rational unity. As an example, had the Uniform Controlled Substances Act been passed without the 300 series sections concerning the lawful uses of controlled substances by the health care industry, it would meet the Amalgamated Transit rational unity test. The provisions providing for law enforcement powers and responsibilities directly relate to the provisions defining crimes and the penalties for the crimes. These provisions do not directly relate to the provisions concerning lawful health care uses of controlled substances and vice versa. Amalgamated Transit made this exact point with Initiative 695: absent the section providing for a vote on all tax increases, all of the other provisions would have had rational unity with the repeal of the MVET and the establishment of the flat $30 license tab fee. Because the previous decisions concerning the Violence Reduction Act, the Omnibus Alcohol and Controlled Substances Act and other omnibus bills do not analyze these bills under the direct relation test subsequently established by Amalgamated Transit and Neighborhood Stores, these omnibus bills passed by the Legislature must be re-analyzed under this test for there to be 'rational unity' in the way this state's courts interpret Article II Section 19."
Given that most of our fellow citizens are angry at the disallowance of Initiatives 695 and 722, this argument may prove exceptionally persuasive with elected judges.
You want to stick it to the seat belt Nazis? We join the clickitstickit campaign with our challenge to a seat belt citation. We now have a State's Motion for Order Continuing Oral Argument and Staying All Proceedings Pending Decision by Supreme Court that cites State v. Eckblad, Supreme Court of Washington No. 74109-3!!! Check this out and go to our I3697882 Page to find out how you can benefit from this!
This website will continue on. We will just keep adding more and more information. The reason there is only text, lots of links in blue, and so little graphics is to pile on as much information as possible for the bytes of server that I am using. Other ways of fighting this battle, might be to sue a deputy sheriff and his elected boss for bad faith arrest. If an arrest is the crime defined by 18 U.S.C. §1581, then of course it is bad faith and he has no immunity to a 42 U.S.C. §1983 assault. If you have other ideas, feel free to pursue them and then e-mail me about them. I would also appreciate those who link to this site from their sites. I will happily return the favor.
I have also tried my hand as a fiction writer, you can find samples of my fiction at my Neanderthal Return website. If you wish to support me in my endeavor, purchasing my novel Neanderthal Return from www.1stbooks.com is a great way to do it. A good friend of mine, Ivy Rose Nightscales, has placed her book of poetry, Garden of Words, on www.1stbooks.com. If you like poetry, please give her book a look. To show that I have my lighter moments, my comment on the Area 51 phenomenon.
I have done my own versions of some of the famous war posters, but I do not have enough space on this Geocities site. I refer you to www.antipeonage.0catch.com . Because I do not want to be accused of "remote loading", you will have to find your way to the jpegs from there. You should love them, they are great satire.
We have allies in this fight: Click here for links to some of our allies. One ally is Mr. Perry Manley. He was recently prosecuted for child support contempt and had the case dropped.
I also list links to neutral source of information.
I believe I have an explanation as to why these crazies hate us.
On the issue of violence, I must comment on the sad case of Tacoma Police Chief Brame. Yes, we protest the loose and rather inclusive definitions of domestic violence, and the lack of due process when it comes to establishing restraining orders that seriously restrict the freedom of the respondents, particularly where the facts do NOT meet even these expanded definitions of domestic violence. But spouses should refrain from physically assaulting each other and ought not murder each other. An interesting revelation is that I do not believe that those who lash out at their wives and girlfriends are motivated by the same issues that motivate us to oppose, with arguments as to law, the support orders, their enforcement, or even anti-harassment orders.
It is with great reluctance. I have decided to support President Bush in his decision for war. Here is why. However, I am wondering just WHO is providing the United States Government the HALF TRILLION DOLLARS in new loans each year to pay for the deficit. And WHY? I voted for Bush because I was fed up with the Clinton crap that was defended and represented by Al Gore. But I just do not understand why ELECTED Republicans are so willing to spend so madly (and join the Child Support Crusade destroying the fathers, generating more bureaucracy and spending) when many GRASS ROOTS Republicans CANNOT STOMACH all this spending and bureaucracy! I just hope that the deficit financing is not coming from the Saudis and others who do not expect to ever get their money back, but are willing to pay us to relieve them of Saddam and Osama bin Laden. Of course getting rid of OBL is a worthwhile project by itself. But I wonder.
I hope that this garbage that happened at the Abu Ghraib prison is not conducted by more than a small number of troops and officers who violated their oaths. Cruel and unusual punishment is one of the things prohibited by the Constitution they swore to support, protect, and defend against all enemies, foreign and domestic. At the same time, my sincere condolences to those who loved Nick Berg and all who have been killed during and since September 11, 2001. To the troops not guilty of any crime: Thank you from the bottom of my heart. If you find the men responsible for murdering Nick Berg, kill them. They, like Osama bin Laden, don't deserve anything else.
Click here for a brief history behind the Antipeonage Act.
Congress reacted to the practice of peonage in New Mexico Territory as described in this site's History page, when it passed the Antipeonage Act, original statute recorded at 14 Stat 546. New Mexico used its peonage system to enforce all kinds of debts and obligations: debts arising from express or implied contracts, awards for attorney's fees, tort judgments, and the duty of a husband to support his wife and children, whether divorced or not.
I kid you not! When we use contempt proceedings, arrest, and imprisonment to enforce orders to pay child support, orders that can be complied with only by employment, we commit the crime defined by 18 U.S.C. §1581. Everyone involved with enforcing support orders is guilty of this crime: the prosecutors, the deputy sheriffs who serve the warrants, the judges and family court commissioners who issue the warrants and blatantly order noncustodial parents to seek employment or punish them for quitting employment, the custodial parents and their attorneys who bring contempt actions or actions to establish child support, and the welfare agencies who actively establish and enforce support orders and pursue those noncustodials who, like Atlas, shrug when overburdened. All of these people are CRIMINALLY liable.
Click here for a list of some of our enemies, people who violate our rights under the 13th Amendment and the Antipeonage Act. Please read about an interesting trend with respect to elected county prosecutors in some of the western states.
All can and should be indicted by the local United States Grand Jury. If you are on the Grand Jury, you do not need the permission of anyone, not the Assistant United States Attorney who presents you with cases to indict, and not the judge who supervises you. YOU and only YOU, can decide whether to indict or "no true bill" a case. YOU can decide what crimes to investigate, issue your own subpoenas, review the paperwork that comes in as a result of the subpoenas, and question people you target for possible indictment for any felony defined by the laws of the United States.
Why do this? Integrity of the law. When we create an exception to the protection of the laws to allow us to "go after" a group of people we think are not doing their share, we open the way for all to lose their Constitutional rights. If the duty to support a child justifies denying a parent the protection of the Thirteenth Amendment, then what is to stop the government from ordering any parent, with or without custody of her children, into forced labor and visiting upon said parent all of the indignities currently imposed upon the noncustodial parents? Answer: NOTHING. Say a state agency, Child Protective Services, investigates a family and decides that while the children are not being abused or neglected, the parents are not earning enough money to "properly support" the children. The father works his 40 hours a week plus overtime, but he is non-union blue collar and worried about his job being shipped to China or Mexico. He does not make much more than minimum wage. However, they do not use food stamps or other public benefits and take care of themselves, even though the mother stays home with the kids. The state social worker decides that the father is doing all he can, but the mother must work at least 20 hours per week to better financially provide for the children. What is to stop the social worker from getting a court order REQUIRING the mother, on PAIN OF CONTEMPT PROCEEDINGS, ARREST, AND IMPRISONMENT, to work at least 20 hours per week?
Answer:
NOTHING. NOT IF WE HAVE ALREADY CONCEDED THAT THE THIRTEENTH AMENDMENT DOES NOT PROTECT THE FATHER IF HE IS NO LONGER MARRIED TO THE MOTHER OR NEVER MARRIED TO THE MOTHER.
That is what we are talking about! Please forgive us for being frustrated with all of the "sheeple" who refuse to "get it" and tolerate what we do to the noncustodial parents. If the Thirteenth Amendment does not protect the noncustodials, it does not protect ANY parent! You who are on the Grand Jury can start fixing this problem RIGHT NOW with the enforcement of 18 U.S.C. §1581, not to mention 18 U.S.C. §2 aiding and abetting, and 18 U.S.C. §241, conspiracy to deny civil rights. The rest of you can start fixing this problem by getting off your rear ends and doing the heavy lifting necessary to make our republic work the way it was designed to work. You do not have to vote to re-elect the problem. You could vote for the other guy even if you have to hold your nose. You can always get rid of her the next time around. You can use the initiative process (but use it wisely). Lest you think that "it won't do any good" ask yourself when was the last time you saw kilometers on road signs in the United States? When WE the PEOPLE say we don't want something, we get listened to. We just have to say it in numbers. And feel free to exercise your First Amendment rights as to this issue, it is how we protect the other Amendments.
Letter to New Zealand Member of Parliament Muriel Newman. She is at [email protected] In this letter I make what I believe to be the kind of argument that just might get through the thick skulls of those who cannot otherwise seem to grasp that this is a vital issue of FREEDOM, without which, we CANNOT be the parents our children need.
This is just part of an overall problem that is coming home to roost on our governmental institutions. In the recent election in Washington State, propositions to raise taxes for transportation projects and other tax propositions were soundly rejected. Yet another Tim Eyman tax cutting Initiative passed, only the agencies are going to ignore it unless ordered by a court to follow it. So much for the presumption of constitutionality of lawfully passed statutes. A state Supreme Court justice, Charles W. Johnson, who lost the endorsement of police, sheriff, and prosecutor organizations because he sided with majority court opinions reversing convictions on the grounds that the statute enacted by the Legislature did not actually outlaw what the defendant did, or did not define assault as a predicate felony for the crime of felony murder, was nevertheless re-elected. Perhaps voters figured that if the Legislature blew it, no point in blaming the judges for being bound by what was written in the law. In fact, hurray for the judges for getting it right for a change.
The "natives" are restless, and the power structure knows it. People simply do not trust government. Asked about re-electing the problem, voters will tell you that the opposite party nominee, if there is one, is often not a viable alternative. Meaning the Republican is too much of an anti-abortionist, too much in the thrall of "big business" or too "law and order" to be one likely to promote greater respect for constitutional rights. Or the Democrat is too much of a "tax and spender," too "disrespectful of the Second Amendment," or too much into "avant-garde" ideas such as mandatory seat-belt laws, banning tobacco smoking everywhere, the Metric System, public support for ugly and offensive art, or engaging in the hate campaign against noncustodial fathers along with the social conservative Republicans, to be one likely to promote greater respect for constitutional rights. Both are all too willing to sell those rights for federal funds.
So people who have been abused by Child Protective Services, now called the Children's Administration, by the child support system, by excessive taxes, by smoking restrictions, by enforcement of the marijuana laws, by irrational court decisions, by a complete lack of response by the local government or school district for their concerns, will enthusiastically collect signatures for Tim Eyman because he is trying to starve the system that abuses them of its operating funds. People are afraid of CPS, they do not trust them. Why is that? One explanation starts with the celebrated case of William and Kathleen Swan. Those who have been abused by this state's agencies are inclined to believe that they were railroaded. After a dispassionate and fresh review of State v. Swan, (1990) 114 Wash. 2d. 613, 790 P. 2d. 610, I am inclined to agree, though I freely admit that my life experience causes me to have this inclination. Please review my quick and dirty analysis of this decision and how this case has lead to the nightmare we know so well in Wenatchee and other places where there were mass prosecutions for child sexual abuse properly known as Salem style witch hunts. It is interesting to note that recent books and web sites on the subject of people believing unreasonable things list the allegations of a massive child sexual abuse ring in Wenatchee and the proposition that Bill and Kathy Swan sexually abused their daughter and her toddler neighbor, as being on a par with the proposition that crop circles are made by somebody other than Earth humans.
In Hickman v. Block, Silveira v. Lockyer, and Nordyke v. King, the Ninth Circuit did to the Second Amendment what the Ballek Court did to the Thirteenth Amendment. Here is my comment on that and why rights must be considered held by individuals or they are not rights. Any Fourth Grader who passes the Basic Skills Test can see that what comes before the comma is simply a explanation of necessity for the right that is stated after the comma. That is what the Fifth Circuit concluded in United States v. Emerson, (9th Cir. 2002) 270 F. 3d. 203, 227, and what Judge Gould concluded in his Special Concurrence in Nordyke. However, having found that the Second Amendment protected an individual right to keep and bear arms, the Fifth Circuit then failed to enforce the right in the case of a restraining order obtained in a domestic relations case. I criticize that too, because often the threats at issue in such restraining orders are made in the heat of high emotion by people who are not ordinarily a danger to society. Once the emotions cool down, most such people have no intention of ever carrying out the things they say. The finding of fact is not made by a jury of our peers, but by a judge with all of the institutional prejudices and blindnesses that come with being a judge, particularly in family law including the blindness to the Thirteenth Amendment and the Antipeonage Act extensively illustrated by this website. For an example of the perfectly legal if somewhat strange behavior that can result in a restraining order, see our dummy brief for Winslow Bainbridge. Facts as innocuous as described therein do result in restraining orders, often with exclusion radii as long as 500 yards. It is not rational to deprive Winslow of his right to keep and bear arms, not on the basis of any actual stalking or surveillance he perpetrated, but only on the unsupported belief of such surveillance by a nervous ex-girlfriend. And certainly not on the basis of strange phone calls that do not include any legally definable threats, but only denials of such threats.
Not infringing the right of the people to keep and bear arms is the only guarantee that a well regulated militia can be formed, whenever such proves necessary for the security of a free state, regardless of the circumstances. Sawed off shotguns and fully automatic rifles may be the weapons such a citizen's militia needs to deal with the emergency at hand. The state that infringes such right is not a free state, and has made the Faustian bargain Ben Franklin warned against, trading an essential liberty for the illusion of security. To say that the Second Amendment does not guarantee an individual right is like saying imprisonment for child support is not imprisonment for debt and saying that coercion of employment to pay child support is not involuntary servitude. It is an absurdity.
Because this website is visible around the Planet Earth, I sent a Letter by e-mail to the High Court of Australia concerning their recent decision in Dow Jones & Company v. Gutnick. Consider this question if you will: You publish a pamphlet within the State of Washington and distribute it within the State of Washington, anticipating that you would be governed by the defamation law of Washington as developed within Article I Section 5 of the Washington Constitution and the First Amendment. An Australian obtains a copy of your printed material. She gets on an aircraft and takes it home to Australia. You have no control over this. She then passes it around to her friends in Australia. An Australian mentioned in your pamphlet believes himself to be libeled. Should he be allowed to sue you in an Australian court under Australian libel principles and not under Washington defamation law as developed within our constitutional guarantees? The High Court of Australia said yes.
A defense to such an Australian action is suggested by Yahoo!, Inc. v. La Ligue contre le Racisme et l'Antisemitisme, (N.D. Cal. 2001) 145 F. Supp. 2d. 1168 and 169 F. Supp. 2d. 1181. The Ninth Circuit heard oral argument in this case on December 2, 2002. The three judge panel is now considering their decision. Yahoo! obtained a declaratory judgment in the American court that a French court order requiring it to render inaccessible to computer users in France portions of its auction service wherein Nazi artifacts and propaganda is offered for sale and any links through its browser to web sites with allegedly pro-Nazi viewpoints and allegedly in support of the proposition that the Holocaust did not happen is unenforceable in the United States because such enforcement offends the First Amendment. British libel judgments are likewise unenforceable, and so would Australian libel judgments, particularly if rendered in the courts of Queensland and New South Wales. Queensland and NSW do not consider truth of the speech to be an absolute defense to an action for libel. At least Victoria, where Gutnick originated, does. But even in Victoria, the burden of proof is different than in the United States. In Victoria, a libel defendant, such as Dow Jones and Company, is required to prove the truth of its statement. In the United States, a defendant merely has to prove that it had a good faith belief in the truth of the statement. Public figures, such as celebrities and politicians, must prove actual malice on the part of the alleged defamer. Liberace, as an example, won a libel suit by showing that the defendant had no evidence or reason to believe that Liberace was a homosexual. The defendant maliciously said so. But O.J. Simpson has no reasonable chance to win any libel suit against any person who calls him a wife killer. (Unless he becomes a resident of Australia.) He was acquitted in the criminal trial, found financially responsible for the deaths in a civil trial, and Jay Leno can joke about him as finding the "real killer" in the mirror with impunity.
Another defense to a libel or defamation lawsuit in a foreign court is suggested by Young v. New Haven Advocate, (4th Cir. December 13, 2002) ____ F. 3d. ____. This American federal appeals court decision found that newspapers in Connecticut who publishes some of their content on the Internet cannot be sued in a court in the State of Virginia, including a federal district court in Virginia, unless there is a showing of "minimal contacts" with the State of Virginia as required by the 5th and 14th Amendment due process clauses. Merely publishing content on the Internet which can be downloaded and read in Virginia, does not grant a Virginia court or a federal court located in Virginia in personam jurisdiction over the party who posted the material on the Internet, to hear a claim for libel or defamation. Mr. Young, a Virginia prison warden, made the Gutnick argument: the allegedly defamatory information was posted on the Internet by defendants who knew he was a Virginia resident, who knew that content posted on the Internet can be downloaded in Virginia, and the damage to his reputation occurred mostly in Virginia. While the federal district court agreed with Mr. Young, the federal Court of Appeals disagreed and reversed the denial of motion to dismiss the suit. Young cited a copyright infringement case, ALS Scan, Inc. v. Digital Service Consultants, Inc., (4th Cir. 2002) 293 F. 3d. 707, which set a standard for interstate Internet cases. Both Fourth Circuit cases find that a plaintiff must show that an out of state Internet web master specifically aimed his content at an audience within the state the plaintiff wishes to bring suit. In the case of New Haven Advocate and the Hartford Courant, most of the content is aimed at Connecticut residents, i.e. local weather reports and real estate want ads. Therefore, the Connecticut newspaper cannot be sued in Virginia merely because its web site can be read in Virginia. This is in direct conflict with the finding in Dow Jones & Company v. Gutnick.
To take advantage of this defense, do not aim your content at an Australian audience. Most of the content on this web site concerns American law and those who enforce such American law (or fail to, depending upon which American law we're referring to). While an Australian citizen may work in the United States for an agency that enforces child support orders and therefore be in a position to take umbrage at my assertion that she is thus violating 18 U.S.C. §1581, she cannot say that such assertion is aimed at an Australian audience, even if Australians can download this website in Sidney and Melbourne. Even if I aim this web site at an Australian audience, say by listing Australian citizens who arrested American noncustodial parents found within Australia with the intent to enforce the American support orders (when I obtain such information, I might do that), and therefore say they violate 18 U.S.C. §1581, I can still assert in an American court that any judgment obtained in such a suit is unenforceable in the United States without offending the First Amendment, because I can show a good faith belief in the truth of such statement, and Australian courts do not consider that to be good enough defense to a libel action.
In the decision made April 7, 2003 in Virginia v. Black, I must say the Supremes did a pretty good job. I would concur with Justice O'Connor's opinion, but I understand where Justice Thomas comes from in his dissent. A quick look at the facts: There are two events from which this case originates. The one case, involving Mr. Black, was a Klan rally on private property with the owner's permission and participation. It appears to be a typical Klan rally: speeches, songs, standing around in a circle in white robe and pointy hat costumes, and a 25 foot tall cross was lit up while they sang Amazing Grace. Doesn't that just make your skin crawl! To say that this gathering is not protected would be a terrible departure from previous First Amendment jurisprudence (Brandenburg v. Ohio, Tinker v. Des Moines Independent School Dist., Texas v. Johnson, and R.A.V. v. City of St. Paul). In the other case, several teenagers angry with a black neighbor who spoke to their mother about their shooting guns at a target range, retaliated by burning a small cross in the neighbor's back yard. The Supreme Court struck down the Virginia statute in question, but they said that a state can regulate the behavior of those who trespass on private property with a clear intent to intimidate so long as the statute is content neutral and dependent upon the traditional legal tests for determining when speech constitutes an unprotected threat of violence. Simply put, when people gather for a private rally on private property, their speech and expression, including burning a cross, is protected as long as there is no direct "true" threat. Even if we cannot stand that it was a Klan rally with a burning cross and seriously disagree with the sentiments expressed therein. But in the case of the two kids who burned a cross on a neighbor's lawn, perhaps Virginia can prosecute them if they rewrite the jury instructions to require proof of the element to intimidate. I must agree with this.
However, when it comes to intimidation, there are distinctions that must be made if we are to have freedom of speech that is legally protected. Those who enforce support orders may be intimidated by this website asserting that what they do is the felony of peonage. 1) It is the purpose of any criminal statute, including 18 U.S.C. §1581, to intimidate people from committing the actions it proscribes. That is a legitimate form of intimidation. 2) Those who oppose a government policy, including on the grounds that it violates another government policy long forgotten but not repealed, have to be able to express their opposition without being subject to charges of "intimidating" or "harassment" or "making threats". Simply put, I am protected in my speech as long as I do not come out and say that those who violate 18 U.S.C. §1581 in the enforcement of child support will be "dealt with", or some other expression indicating illegal violence. However, if I say that I will continue to plead the Antipeonage Act and encourage others to do so, and while that can lead to the criminal prosecution of those who enforce support orders, the possibility of criminal prosecution is the legitimate outcome of our being right about the meaning and the purpose of the Antipeonage Act. Those who violate it should suffer consequences. But my saying so is not a "true threat" and it is protected by the First Amendment, Virginia v. Black being one of many cases that supports this position.
As another practical matter, what about a film company producing a movie where the plot involves a Klan rally? Mississippi Burning comes to mind. So noted in Justice O'Connor's opinion in Virginia v. Black. Granted, everyone understands that actors in white robes are playing parts, not being the parts. But that cross will burn for as many "takes" as the director deems required to get the scene right. More kerosene will be added to the burlap as necessary to keep it flaming. No doubt the producers of Mississippi Burning scrounged up Klan artifacts and replica Klan artifacts for use as props. A costumer had to fill an order for Klan robes and pointy hats. Nevertheless, I have never heard of such a movie production company prosecuted for displaying a burning cross.
Likewise I have never heard of a movie production company being prosecuted for its use of Nazi flags, uniforms, and artifacts. Movie industry costumers may have made more Nazi uniforms than were made in Germany during the Nazi era.
A comment on the French laws against Nazi artifacts and propaganda: Numerous artifacts including flags, Hitler Youth daggers, armbands, and even copies of Mein Kampf signed by Adolf Hitler himself, were brought home by American troops as souvenirs and spoils of war. (And soon, perhaps paintings and posters of Saddam Hussein and elegant fixtures from his palaces, maybe even a Republican Guard arm patch or two.) In this context, the items have a valid historical significance and are symbolic of victory over this regime, and not of this regime's "Triumph of the Will". It is not surprising that such war souvenirs are offered for sale on Yahoo! and eBay. Perhaps the French court can cut some slack for the heirs of those who liberated France who sell the artifacts they inherited. Furthermore, France has allowed on her soil the filming of movies based on World War II. Such movies necessarily require the use of Nazi artifacts and uniforms or replicas of Nazi artifacts and uniforms. I guess we cannot sell copies of Saving Private Ryan, Schindler's List or any Indiana Jones movie to French citizens living within France because of all of the Nazi artifacts and replica Nazi artifacts filmed in these movies. And forget documentaries and entertainment movies that use clips from films produced or sponsored by the Nazi Propaganda Ministry. The History Channel had better censor itself where it broadcasts into French territory, which includes a couple of small islands, St. Pierre and Miquelon, that are a FEW MILES south of the Canadian province of Newfoundland. To broadcast a documentary on Nazi propaganda out of Newfoundland or Nova Scotia could violate French law.
I hereby violate the French laws with this link: I have no sympathy for the Nazi viewpoint, but to suppress free speech is to be like the Nazis. The J.V. Bond Company just sells the stuff. They do not appear to comment on it, other than as to the quality or condition of each item offered for sale.
I want to thank Geocities for allowing me to use their server for free. They provide an immensely valuable service for those of us who could not otherwise obtain access to the public to get our side of the story across.
Comments may be e-mailed to me at [email protected].
