Re: [dvd-discuss] ClearChannel Plays It Safe

[Bryan Taylor <bryan_w_taylor(at)yahoo.com>]

--- Michael.A.Rolenz@aero.org wrote:
> Rather than substituting your own words into my writings why don't you try 
> reading them first.

I certainly did read what you wrote and quoted it in the standard way. If you
believe I am misinterpreting you, then you should point out the differnece in
my interpretation and yours instead of huffing and puffing.

> Gee?.isn't that what I wrote. <suggestion> Try rereading it..start with 
> "The courts have many times declared policy set by Congress as 
> unconstitutional"

Your quoted statement is true. However you have failed to recognize the
limitations on judicial review: the doctrine of judicial restraint. 

> In addition, the courts must ALSO review laws and policies not only upon 
> constitutional issues but whether or not they are in agreement.  If there 
> are two laws on the books, one which states that all lights must be turned 
> off after dusk save electricity and another that states that walkway 
> lights must be turned on to promote safety - ONE or BOTH of them must go 
> because they contradict each other. Is this a contrived example. Not 
> really. Look at the DMCA. Even Kaplan had to acknowledge that there were 
> provisions in it that are in contradiction to previous law. 

When two laws are passed, they should be read so as not to conflict, if
possible. If that is not possible, conflict is resolved in favor of the last
law. Under no case can a newly passed law be declared void because it conflicts
with a previously passed law. Your "BOTH" scenario simply cannot happen.

>> In a democratic society, the best you can hope for
>> is to have to live with a policy you don't like a little less than half 
>> of the time. 

> BTW- If the best you can hope for is less than half the time, then that 
> states that the finest and best minds in our country can't do better than 
> a roulette wheel or a craps table. While moving our government center to 
> Vegas may have some appeal, I'd prefer a much better performance.

It really doesn't matter what you prefer, especially if you aren't offering
suggestions for improving the political process by working within the system.

And having to put up with policy you don't like a little less than half the
time means that you win more than in Vegas because the odds are in your favor.
At least they are if you hold mainstream views (I should have made this clear).
If you aren't in synch with most people, then you can expect to suffer through
an endless stream of policies you don't like. That's just tough, but you are
free to whine about it all you want.

> The problems with your earlier claims of what constitutes a rational basis 
> type test are that you fail to see the circular reasoning in them. 
> Circular reasoning is inherently irrational.

I guess I'm with a whole lot of people who fail to see the circular reasoning,
including the Supreme Court. I'm going to continue to believe that I don't see
the circular reasoning because it doesn't exist, despite your unsubstantiated
claims to the contrary.

> CASES. The problem with the land use cases is that there are so many of 
> them. 

No, so far there are none of them. Produce citation or drop the point.

> In this instance, one can put QED since you state it as such. That 
> argument is fallacious a priori. The fallacy is that ANY policy adopted by 
> a Democracy is not necessarily a democratic proposition. Slavery was one 
> such policy. 

That isn't a question of majoritarian support for the policy. The US is not a
pure democracy. It has democratically elected leaders who exercise delegated
enumerated powers that are constrained by individual rights. Slavery violates
the rights of the enslaved. The fact that the Constitution did not properly
limit the exercise of State power to prevent gross violation of individual
liberty before (at least) the 13th and 14th amendments is an unacceptable flaw
that caused a Civil War. I support the US Constitution as it is now, not as it
was, and I don't see how the existance of slavery proves anything in this
debate.

> Most laws are entirely statutory but that does not mean that they are 
> unconstitutional nor does it mean that they cannot be traced back to 
> something in the Constitution. Promoting Commerce is one reason the 
> Anti-Trust laws were enacted. Trusts stiffle competition and do not 
> promote the general welfare. That experiment was tried in the 19th century 
> and pronounced a failure. Breaking up the trusts DID promote the general 
> welfare. After Taft really got going Wall Street couldn't get enough 
> trusts busted fast enough. 

And history has recorded the results of the two competing policies and a
consensus has emerged about which is "better". That does not mean that the
other one is unconsitutional.

> > That would be Article I, Section 8, Clause 1: "The Congress shall have 
> > power to lay and collect taxes, duties, imposts and excises, to pay the 
> > debts and provide for the common defense and general welfare of the 
> > United States; ..."

> Read the Clause again. It does NOT state that Congress shall INCREASE tax 
> revenues. A statement that Congress shall have the power to do BUSINESS 
> does not mean that it has a mandate or even a charter to increase tax 
> revenues or that it has an obligation to do so. 

The clause speaks for itself. 

I doubt you could find a lawyer, let alone a judge, who would argue that a
Congressional motivation to grow the economy so that it can better "provide" is
not given a rational basis by that clause. 


> >I'd like to return to an idea I touched in a previous post. Just 
> >broadcasting per se is in fact a public service. 
> 
> That begs the question. PROVE IT.

I provided a back of the envelope calculation that showed the market would
value each TV station broadcast to be worth a couple dollars per viewer per
year. Since it's given away for free, I call that a public service.

> You're begging the question. You have defined ANYTHING broadcast as being 
> a "rational" definition of public service. Your definition includes 
> EVERYTHING therefore it is not a useful or even a meaningful definition of 
> public service.

My definition of public service is giving the public something the public
considers valuable.

> > If you flippantly dismiss this argument, you will
> > lose every time in Court. It IS a powerful argument, even if it ultimately
> > fails. 

> Your argument fails to note that VHS sales are quite high and the public 
> benefitted from that before DVDs were around.

My argument (that the DMCA abridges my rights by denying me fair use of
material I own) isn't based on showing that Congress failed to weigh the
counterevidence properly. No judge is going to write an opinion that says
"Since Congress did not properly consider that VHS sales are quite high, we
must strike this law down". When I say it's a "powerful argument", that doesn't
mean I agree with it. In fact I said it "ultimately fails". 

> < is this the same Bryan Taylor who wrote commentary on the DMCA for the 
> LOC?>

Yes. Note that I said you would lose the argument "in court". The LOC is a
rule-making entitity that also advises Congress, so policy considerations are
properly addressed to them. For example, your VHS argument is a good one to
send to the LOC and a bad one to send to a Court. 

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