carnage and culture

Monday, May 11, 2015

May 11, 2015

The suspected gunmen, Elton Simpson, 31, and Nadir Soofi, 34, wounded a security guard before being shot dead by police at an event showcasing cartoons mocking the Prophet Mohammed.

Pamela Geller and Robert Spencer organized a cartoon contest in Garland, Texas to demonstrate the need to exert the right to free speech against Islamic threats. This event in actuality, and predictably, provoked a violent response from two radical Muslims that resulted in their deaths. It also has called down a firestorm on the organizers’ own heads from both liberals and conservatives for unnecessarily insulting Islam and Muslims.

There’s a far better and more important way to exercise free speech about Islam, and Robert Spencer in particular should be aware of it and is well placed to facilitate it.

Publicizing cartoons of Mohammed is a thumb in the eye of Muslims, particularly pious ones holding to the Wahhabi and Salafist view that portraying or mocking Mohammed is blasphemy. Cartoons are therefore a double outrage. However, cartoons do nothing substantial to undermine the ideology of radical Islam that plagues the earth, they just expose a raw nerve among some Muslims and hence elicit sympathy from non-Muslims, even including prominent Fox News pundits such as Bill O’Reilly and Martha MacCallum and conservative Catholic leaders such as Bill Donohue.

It would be far more effective to have a calm, protracted discussion and debate about the origins of Islam and the real life of Mohammed. Such an event should be more akin to a panel discussion mediated by Jim Lehrer than a media circus presided over by Bill O’Reilly or Jon Stewart, and it should bring in views from across the political and religious spectrum.

Back to Spencer, he wrote a summary of deep and serious research, Did Muhammad Exist?: An Inquiry Into Islam’s Obscure Origins. He was apparently attempting to popularize some dense, highly academic, and quite inaccessible research contained in books such as The Hidden Origins of Islam: New Research into Its Early History. This book is a collection of essays, edited by two highly respected German academics of Islam, Gerd Puin and Karl Heinz Ohlig. Puin’s reputation is so sterling that the government of Yemen asked him to lead an analytical project on the oldest known copies of the Qur’an and related fragments. It’s highly significant that two of the authors of the essays in The Hidden Origins of Islam, Christoph Luxenberg and Ibn Warraq, feel compelled to publish under pseudonyms, or more accurately noms de guerre, for fear of reprisal from Muslim fanatics.

The work of these academics and others like them is far more important than any cartoon of Mohammed could ever be. It is part of research dating from the 19th Century that tried to understand the origins of Islam based on objective, verifiable information rather than only the traditional Islamic sources of the time that have led to the common view of Mohammed, the Qur’an, and Islam. No overall consensus has emerged, but a few points of agreement exist, widely unrecognized by the general public (based on my own discussions with well-educated, well-informed non-Muslims).

Probably the most important point from this work is that Arabic as both an oral and especially written language was evolving in the 7th and 8th Centuries and was in a state of great flux. Writers were using vocabulary and written characters borrowed from the closely related Aramaic-Syriac that was the lingua franca of the Mideast of the era. Using an understanding of these languages contemporary with the putative timeframe of Mohammed and the Qur’an leads researchers to significantly different understandings of the scripture and the traditions about the life of Mohammed.

Another point of agreement appears to be that non-Muslim sources from the period, including ancient coins and inscriptions, do not clearly support the traditional story about the role of Mohammed, the emergence of Islam, or the origin of the Qur’an. Instead, they point to a very different set of possibilities.

The thinking of the academics goes much farther than basic points such as these and has profound implications for the understanding of the Qur’an and Mohammed’s role in founding Islam. Without opining on their accuracy, here are a few of the more meaningful implications being discussed by these academics as a group:

· Mohammed may be a mythical figure, or he may have been an historical figure with a very less important role and in a very different locale than Islamic sources claim.

· Islam may not have arisen in the Hijaz (modern western Arabia), but rather in Mesopotamia.

· Islam may have originated as a Christian sect in which Jesus was considered a great teacher and prophet but not divine. This sect specifically may have arisen out of the Nestorian sect after the collapse of Sassanid Empire at the hands of the Byzantines – not Arab Muslim armies.

· The defeat of the Sassanid Empire in 622 may have been why Arabs selected that year to reset their calendar, rather than Mohammed’s supposed exile to Medinah.

· References to “Mohammed” in the Dome of the Rock – the earliest monument of putative Islamic origin – and contemporary coinage may not have referred to a person’s name, but rather might have meant “deserving of praise.” Hence, the commonly understood phrase “Mohammed is Allah’s messenger” may have instead originally meant “praise to the messenger of Allah” (understood to be Jesus).

· The Qur’an itself may not have been compiled until almost 100 years after the year Mohammed supposedly died and it may have been brought together from disparate sources, with some portions even written specifically for the purpose of claiming a divine heritage for an imperial religion.

· The actual authors of the Qur’an or significant parts of it may have been members of the ruling elite of the emerging Arab empire of the early 8th Century. Their objective may have been to claim divine support for their regime in an effort to counterbalance similar claims made by their adversaries, the Byzantines.

In short, this scholarship calls into question the central claim of Islam, that Mohammed lived and produced the Qur’an from divine revelations.

If these questions received wide attention and resulted in an open debate among academics from both within and outside Islam, and if they were resolved in anything like the form outlined above, then Islam itself would undergo a fundamental transformation. Among the most important results of this transformation would be that the most violent, aggressive commands from the Qur’an, which are primarily in the penultimate surah (by traditional temporal reckoning, Surah 9) and hence abrogate all more peaceful and ecumenical verses, would therefore be recognized to be the recruiting literature of imperial functionaries rather than commands from the deity.

Imagine if the average Muslim witnessed this debate and its conclusions: The appeal of strictly literalist readers of the Qur’an and Sunna such as the Wahhabis and Salafies would evaporate. These radicals would no longer have credible claim to divine commandments.

Such an outcome may be far too much to hope for any time soon in those Muslim societies that are largely untouched by outside influences and hence cling to their traditional beliefs, such as Afghanistan and rural areas of Pakistan, Iran, the Mideast, and North Africa. But what of Muslims in more cosmopolitan environments, and especially in the West? Open discussion of Islam’s origins and authority might lead to a powerful shift in how these people view their religion and its commandments.

This is a possibility with implications far too great for world peace and prosperity to overlook, particularly because of mere politically correct inhibitions. Respectfully discussing and debating these ideas would be a tremendous benefit to the entire world. Such debates should be embraced by academics and journalists from across the political spectrum, and from outside Islam as well as those from within Islam who are sufficiently open-minded and brave to participate.

Rather than hold contests intended to violate religious prohibitions just because such an act should be protected speech, surely people such as Spencer and Geller, as well as Bill O’Reilly, Megan Kelly, Jim Lehrer, Bill Donohue, should instead endeavor to undertake and organize this debate. They should put the likes of Puin, Ohlig, Luxenberg, and Warraq on the air to explain their views to the public as a whole. They should invite Islamic scholars and apologists to join these discussions and debate the merits. These debates should be public and highly promoted.

This is a challenge to all these people, but especially Spencer, Geller, and the journalists, to capitalize on the publicity of the contest and subsequence violence in Garland and turn that notoriety to good use. Let’s have an open debate about the origins of Islam and the Qur’an and let’s expose that thinking to as many people as possible, around the world.

Sunday, May 10, 2015

"Stay Quiet and You'll Be Okay"

By Mark Steyn
http://www.steynonline.com/
May 9, 2015

As we mentioned a week ago, I'm none too well at the moment, and it so happens my preferred position in which to write causes me severe pain - which is presumably some kind of not so subtle literary criticism from the Almighty. But I'm back, more or less, with lots to catch up on. There were two big elections in recent days, with dramatic results: in Alberta, the Tories were wiped out; in Scotland, the Labour Party was slaughtered; in England, the Liberals were crushed. Strange times.

I'll have more to say about the elections in the days ahead, but for now let me offer a whole-hearted good riddance to Ed Miliband, the now departed Labour leader who, in a desperate last-minute pander, offered to "outlaw Islamophobia". That was the British political establishment's contribution to a rough couple of weeks for free speech, culminating in the attempted mass murder in Garland, Texas.

That's what it was, by the way - although you might have difficulty telling that from the news coverage. The Washington Post offered the celebrated headline "Event Organizer Offers No Apology After Thwarted Attack In Texas", while the Associated Press went with "Pamela Geller says she has no regrets about Prophet Muhammad cartoon contest that ended in 2 deaths". The media "narrative" of the last week is that some Zionist temptress was walking down the street in Garland in a too short skirt and hoisted it to reveal her Mohammed thong - oops, my apologies, her Prophet Mohammed thong (PBUH) - and thereby inflamed two otherwise law-abiding ISIS supporters peacefully minding their own business.

It'll be a long time before you see "Washington Post Offers No Apology for Attacking Target of Thwarted Attack" or "AP Says It Has No Regrets After Blaming The Victim". The respectable class in the American media share the same goal as the Islamic fanatics: They want to silence Pam Geller. To be sure, they have a mild disagreement about the means to that end - although even then you get the feeling, as with Garry Trudeau and those dozens of PEN novelists' reaction to Charlie Hebdo, that the "narrative" wouldn't change very much if the jihad boys had got luckier and Pam, Geert Wilders, Robert Spencer and a dozen others were all piled up in the Garland morgue.

If the American press were not so lazy and parochial, they would understand that this was the third Islamic attack on free speech this year - first, Charlie Hebdo in Paris; second, the Lars Vilks event in Copenhagen; and now Texas. The difference in the corpse count is easily explained by a look at the video of the Paris gunmen, or the bullet holes they put in the police car. The French and Texan attackers supposedly had the same kind of weapons, although one should always treat American media reports with a high degree of skepticism when it comes to early identification of "assault weapons" and "AK47s". Nonetheless, from this reconstruction, it seems clear that the key distinction between the two attacks is that in Paris they knew how to use their guns and in Garland they didn't. So a very cool 60-year-old local cop with nothing but his service pistol advanced under fire and took down two guys whose heavier firepower managed only to put a bullet in an unarmed security guard's foot.

The Charlie Hebdo killers had received effective training overseas - as thousands of ISIS recruits with western passports are getting right now. What if the Garland gunmen had been as good as the Paris gunmen? Surely that would be a more interesting question for the somnolent American media than whether some lippy Jewess was asking for it.

As for the free-speech issues, some of us have been around this question for a long time. I wrote a whole book about it:Lights Out: Islam, Free Speech And The Twilight Of The West - well worth a read, and I'm happy to autograph it for you. On page 123 I write about Jyllands Posten and the original Motoons:

The twelve cartoonists are now in hiding. According to the chairman of the Danish Liberal Party, a group of Muslim men showed up at a local school looking for the daughter of one of the artists.
When that racket starts, no cartoonist or publisher or editor should have to stand alone. The minute there were multimillion-dollar bounties on those cartoonists' heads, The Times of London and Le Monde and The Washington Post and all the rest should have said, "This Thursday we're all publishing the cartoons. If you want to put bounties on all our heads, you'd better have a great credit line at the Bank of Jihad. If you want to kill us, you'll have to kill us all..."
But it didn't happen.

The only two magazines to stand in solidarity with the Danish cartoonists and republish the Motoons were Charlie Hebdo in Paris and my own magazine in Canada, Ezra Levant's Western Standard. Ezra wound up getting hauled up by some dimestore imam before the ignorant and thuggish Alberta "Human Rights" Commission whose leisurely money-no-object "investigation" consumed years of his life and all his savings. But he was more fortunate than our comrades at Charlie Hebdo: He's still alive.

In Copenhagen, in Paris, in Garland, what's more important than the cartoons and the attacks is the reaction of all the polite, respectable people in society, which for a decade now has told those who do not accept the messy, fractious liberties of free peoples that we don't really believe in them, either, and we're happy to give them up - quietly, furtively, incrementally, remorselessly - in hopes of a quiet life. Because a small Danish newspaper found itself abandoned and alone, Charlie Hebdojumped in to support them. Because the Charlie Hebdo artists and writers died abandoned and alone, Pamela Geller jumped in to support them. By refusing to share the risk, we are increasing the risk. It's not Pamela Geller who emboldens Islamic fanatics, it's all the nice types - the ones Salman Rushdie calls the But Brigade. You've heard them a zillion times this last week: "Of course, I'm personally, passionately, absolutely committed to free speech. But..."

And the minute you hear the "but", none of the build-up to it matters. A couple of days before Garland, Canadian Liberal MP (and former Justice Minister) Irwin Cotler announced his plan to restore Section 13 - the "hate speech" law under whichMaclean's and I were dragged before the Canadian "Human Rights" Commission and which, as a result of my case, was repealed by the Parliament of Canada. At the time Mr Cotler was fairly torn on the issue. We talked about it briefly at a free-speech event in Ottawa at which he chanced to be present, and he made vaguely supportive murmurings - as he did when we ran into each other a couple of years later in Boston. Mr Cotler is Jewish and, even as European "hate" laws prove utterly useless against the metastasizing open Jew-hate on the Continent, he thinks we should give 'em one more try. He's more sophisticated than your average But boy, so he uses a three-syllable word:

"Freedom of expression is the lifeblood of democracy," said Cotler, who was minister of justice under Paul Martin.
"However..."

Free speech is necessary to free society for all the stuff after the "but", after the "however". There's no fine line between "free speech" and "hate speech": Free speech is hate speech; it's for the speech you hate - and for all your speech that the other guy hates. If you don't have free speech, then you can't have an honest discussion. All you can do is what those stunted moronic boobs in Paris and Copenhagen and Garland did: grab a gun and open fire. What Miliband and Cotler propose will, if enacted, reduce us all to the level of the inarticulate halfwits who think the only dispositive argument is "Allahu Akbar".

Alas, we have raised a generation of But boys. Ever since those ridiculous Washington Post and AP headlines, I've been thinking about the fellows who write and sub-edit and headline and approve such things - and never see the problem with it. Why would they? If you're under a certain age, you accept instinctively that free speech is subordinate to other considerations: If you've been raised in the "safe space" of American universities, you take it as read that on gays and climate change and transgendered bathrooms and all kinds of other issues it's perfectly normal to eliminate free speech and demand only the party line. So what's the big deal about letting Muslims cut themselves in on a little of that action?

Why would you expect people who see nothing wrong with destroying a mom'n'pop bakery over its antipathy to gay wedding cakes to have any philosophical commitment to diversity of opinion? And once you no longer have any philosophical commitment to it it's easy to see it the way Miliband and Cotler do - as a rusty cog in the societal machinery that can be shaved and sliced millimeter by millimeter.

Do what the parochial hacks of the US media didn't bother to do, and look at the winning entry in Pam Geller's competition, which appears at the top of this page. It's by Bosch Fawstin, an Eisner Award-winning cartoonist and an ex-Muslim of Albanian stock. Like many of the Danish and French cartoons, it's less about Mohammed than about the prohibition against drawing Mohammed - and the willingness of a small number of Muslims to murder those who do, and a far larger number of Muslims both enthusiastic and quiescent to support those who kill. Mr Fawstin understands the remorseless logic of one-way multiculturalism - that it leads to the de facto universal acceptance of Islamic law. All that "Prophet Mohammed" stuff, now routine even on Fox News. He's not my prophet, he's just some dead bloke. But the formulation is now mysteriously standard in western media. Try it the other way round: "Isis News Network, from our Libyan correspondent: Warriors of the Caliphate today announced record attendance numbers for the mass beheading of followers of the Lord and Saviour Jesus Christ..."

On Fox the other day, Bill O'Reilly was hopelessly confused about this issue. He seems to think that Pam Geller's cartoon competitions will lessen the likelihood of moderate Muslims joining us in the fight against ISIS. Putting aside the fact that there is no fight against ISIS, and insofar as the many Muslim countries in the vast swollen non-existent "60-nation coalition" are going to rouse themselves to join the fight it will be because the Saudi and Jordanian monarchies and the Egyptian military understand it as an existential threat to them, put aside all that and understand that Islamic imperialism has a good-cop-bad-cop game - or hard jihad, soft jihad.

The hard jihad is fought via bombings and beheadings and burnings over barren bits of desert and jungle and cave country in the Middle East, Africa and the Hindu Kush. The soft jihad is a suppler enemy fighting for rather more valuable real estate in Europe, Australia and North America, so it uses western shibboleths of "diversity" and "multiculturalism" to enfeeble those societies. And it does so very effectively - so that when a British soldier is hacked to death on a London street in broad daylight, you can't really quite articulate what's wrong with it; or that, upon the death of the ugly king of a state where Christianity is prohibited, the Christian ministers of Westminster Abbey mourn his passing; or that, when Australians are held siege in a Sydney coffee shop, the reflexive response of progressive persons is to launch a social-media campaign offering to battle Islamophobia by helping Muslims get to work; or that, when violent Muslims stage their first explicit anti-free-speech attack on American soil, everyone thinks the mouthy free-speech broad is the problem. This soft jihad goes on every day of the week, and Bill O'Reilly doesn't even seem to be aware that it exists.

So on the one hand we have Pamela Geller. On the other we have Francine Prose, a former president of PEN and one of those dozens of novelists who's boycotting the posthumous award to Charlie Hebdo. I've never read one of Ms Prose's books, so this piece by her in The Guardian was my first exposure to her, er, prose:

The narrative of the Charlie Hebdo murders – white Europeans killed in their offices by Muslim extremists – is one that feeds neatly into the cultural prejudices that have allowed our government to make so many disastrous mistakes in the Middle East. And the idea that one is either "for us or against us" in such matters not only precludes rational and careful thinking, but also has a chilling effect on the exercise of our right to free expression and free speech that all of us – and all the people at PEN – are working so tirelessly to guarantee.

This is a writer? This dessicated language is how Ms Prose deploys the tools of her trade? It isn't a "narrative", it's real life.That's real blood of real writers all over the Charlie floor - and it's not all "white European" blood, either: it includes people with names like "Mustapha Ourrad", Charlie's copy editor. Surely he's a fitting victim for Ms Prose as she goes around "working so tirelessly"? But no. The Prose "narrative" is too simple for complicating factors like blokes called Mustapha for whom the point of living in western societies is to live all the freedom of those societies.

If you make the concessions that Francine Prose and Michael Ondaatje are implicitly demanding, what kind of art remains? There was a big fuss a few weeks ago when Steve Emerson said on Fox News that Birmingham, England was a Muslim no-go zone, and the BBC gleefully mocked him because it's only 28 per cent Muslim or whatever. That 28 per cent is pretty spectacular in just a couple of generations. How long before it's 40 or 50 per cent? So, if, circa 2030, you're a PEN member in Birmingham and you want to write a novel about your turf, it will necessarily involve a consideration of the relationship between an ever more Islamic city and what remains of its non-Islamic elements.

But Islam is telling you that subject's closed off. Not long after 9/11, some theatre group in Cincinnati announced a play contrasting a Palestinian suicide bomber and the American Jewish girl she killed. Local Muslims complained, and so the production was immediately canceled - because all the arty types who say we need "artists" with the "courage" to "explore" "transgressive" "ideas" fold like a cheap Bedouin tent when it comes to Islam. The Muslim community complained not because the play was anti-Muslim: au contraire, it was almost laughably pro-Palestinian, and the playwright considered the suicide bomber a far more sensitive sympathetic character than her dead Jewish victim.

But that wasn't the point: the Muslim leaders didn't care whether the play was pro- or anti-Islam: for them, Islam is beyond discussion. End of subject. And so it was.

So what kind of novels will PEN members be able to write in such a world?

Can Islam be made to live with the norms of free societies in which it now nests? Can Islam learn - or be forced - to suck it up the way Mormons, Catholics, Jews and everyone else do? If not, free societies will no longer be free. Pam Geller understands that, and has come up with her response. By contrast, Ed Miliband, Irwin Cotler, Francine Prose, Garry Trudeau and the trendy hipster social-media But boys who just canceled Mr Fawstin's Facebook account* are surrendering our civilization. They may be more sophisticated, more urbane, more amusing dinner-party guests ...but in the end they are trading our liberties.

A final cartoon from Bosch Fawstin:

"Stay quiet and you'll be okay:" Those were Mohammed Atta's words to his passengers on 9/11. And they're what all the nice respectable types are telling us now.

[*His Facebook page is back now.]

More tarnish on Patriot legacy, this time tainting Tom Brady

By Dan Shaughnessy GLOBE COLUMNIST MAY 07, 2015
http://www.bostonglobe.com/sports/

Tom Brady throws a touchdown pass in the third quarter.

Tom Brady throws a touchdown pass in the third quarter of the AFC Championship game. PHOTO: GETTY IMAGES

It’s a bad day for the Patriots. It’s an especially bad day for New England’s iconic quarterback, Tom Brady.

The Patriots are Super Bowl champs, but the NFL also believes the Patriots are cheaters. The Patriots certainly didn’t need to illegally deflate footballs to beat the Indianapolis Colts, 45-7, in the AFC Championship game, but according to Ted Wells’s report released Wednesday, they went ahead and did it anyway.

The report also says it is “more probable than not” that Brady “was at least generally aware” of the tampering. Golden Boy Tom is likely to be sanctioned when the NFL doles out its punishment in the wake of the damning report issued Wednesday afternoon.

So there. Deflategate takes its place alongside Spygate. The damage to the Patriot brand is universal and eternal. Brady, the Patriots, and their fans have to live with it.

Patriot toadies no doubt will line up to say that the league did not prove anything that would hold up in a court of law (Brady’s dad has already labeled it “Framegate”). It’s all circumstantial, they’ll say. Plus, it says right in the report that Bob Kraft and Bill Belichick knew nothing about the intentional deflation of the footballs. It was just a couple of rogue equipment guys breaking the rules.

Good luck with that one, folks. Bend yourself into a pretzel if you must, but Brady and the Patriots are insulting your intelligence if they want you to believe that they were not aware of what was happening to the footballs on game days.

No organization, no coach are more attentive to detail than the Patriots and Belichick. And we’re supposed to believe that before the kickoff of the AFC Championship game, a veteran team locker room guy can disappear while he’s in possession of game balls that have already been approved by officials?

Seriously, when do the Patriots stop lying and come clean on this thing? The damage is done. Insistence on innocence is not likely to be helpful when we get to the penalty phase of this scandal.

Nobody in Foxborough looks good. Brady looks like a guy who broke the rules and lied about it. Belichick looks ridiculous in the wake of his Jan. 24 Mona Lisa Vito science lesson. And Kraft evidently has been duped. Again. Just as he was duped on Spygate. And on Aaron Hernandez.

Remember Kraft’s defiance when he arrived in Glendale, Ariz., for the Super Bowl?

“I believe, unconditionally, that the New England Patriots have done nothing inappropriate in this process or in violation of NFL rules,’’ Kraft stated in his throwdown speech on Super Bowl Monday. He told us Belichick and Brady have never lied to him and then he said he wanted an apology if the investigation “is not able to definitely determine that our organization tampered with the air pressure in the footballs.’’

The 243-page report released Wednesday concludes that it is “more probable than not” the Patriots broke the rules and deflated the footballs. The mountain of evidence makes it impossible to draw any other conclusion. The paper trail indicates that Brady did not communicate with equipment guy John Jastremski for six months, then engaged in multiple conversations with Jastremski (more than 20 minutes of talking) in the days after the scandal broke.

The notion that Belichick did not know this was going on makes one’s head explode. Nothing happens in Foxborough without Belichick’s knowledge. Reporters check in at “security command” and are videotaped asking questions. No detail is too insignificant.

On Jan. 24, Belichick defiantly explained why the footballs would have become deflated during the course of the AFC Championship. It was all about science and weather. Unfortunately, the report states that only the 11 Patriot footballs were discovered to have a PSI level below league limits. All four Colt footballs magically maintained a PSI within the league limit. So Belichick’s science explanation is flawed.

But it is Brady who has the most explaining to do.

It stretches all believability to conclude that he had nothing to do with this. And it damages his hard-earned legacy across America. There are simply too many football people telling us that there is no way Brady can be telling the truth.

We all know that America is populated by jealous Patriot haters. Brady and the Patriots do themselves no service by impeding the investigation (team counsel would not let Wells have a second interview with Jim McNally, the officials’ locker room attendant) or telling us the sun is out when we are standing in the middle of a downpour.

The Patriots won the Super Bowl fair and square, with PSI-regulation balls. They did not need deflated footballs to beat the Colts. It certainly cannot be proved the Patriots were doing this every week. But they have armed their legion of enemies with a new weapon.

A deflated football is easier to throw, easier to catch, and harder to fumble. The rule allowing each team to prepare its own game balls went into effect in 2006. Since 2007, the Patriots have fumbled far less than the NFL average (once every 187 plays, compared with once every 105 for the rest of the league, according to Slate). They have also been the greatest bad-weather team in the history of football.

Now folks in Pittsburgh and Denver and Indianapolis are going to say the Patriots have been better because they cheated. This makes the deflation of footballs more than rolling through a stop sign. If there were no competitive advantage, why would the Patriots be doing it?

NFL commissioner Roger Goodell loves Kraft, loves Brady, and he loves the Patriots, but he presumably has to answer to 31 other owners — most of whom have had their butts kicked by the Patriots on a regular basis.

Sanctions are coming. For Brady and maybe for the Patriots.

It’s about systematically breaking the rules of competition. It’s about a loss of institutional control.

And a legacy tarnished again.

More ‘Deflategate’ coverage:

Dan Shaughnessy can be reached at dshaughnessy@globe.com. Follow him on Twitter @Dan_Shaughnessy

Regulation Run Amok—And How to Fight Back

By Charles Murray
http://www.wsj.com/
May 8, 2015

America is no longer the land of the free. We are still free in the sense that Norwegians, Germans and Italians are free. But that’s not what Americans used to mean by freedom.

It was our boast that in America, unlike in any other country, you could live your life as you saw fit as long as you accorded the same liberty to everyone else. The “sum of good government,” as Thomas Jefferson put it in his first inaugural address, was one “which shall restrain men from injuring one another” and “shall leave them otherwise free to regulate their own pursuits of industry and improvement.” Americans were to live under a presumption of freedom.

The federal government remained remarkably true to that ideal—for white male Americans, at any rate—for the first 150 years of our history. Then, with FDR’s New Deal and the rise of the modern regulatory state, our founding principle was subordinated to other priorities and agendas. What made America unique first blurred, then faded, and today is almost gone.

We now live under a presumption of constraint. Put aside all the ways in which city and state governments require us to march to their drummers and consider just the federal government. The number of federal crimes you could commit as of 2007 (the last year they were tallied) was about 4,450, a 50% increase since just 1980. A comparative handful of those crimes are “malum in se”—bad in themselves. The rest are “malum prohibitum”—crimes because the government disapproves.

The laws setting out these crimes are often so complicated that only lawyers, working in teams, know everything that the law requires. Everyone knows how to obey the laws against robbery. No individual can know how to “obey” laws such as Sarbanes-Oxley (810 pages), the Affordable Care Act (1,024 pages) or Dodd-Frank (2,300 pages). We submit to them.

The laws passed by Congress are just the beginning. In 2013, the Code of Federal Regulations numbered over 175,000 pages. Only a fraction of those pages involved regulations based on something spelled out in legislation. Since the early 1940s, Congress has been permitted by the Supreme Court to tell regulatory agencies to create rules that are “generally fair and equitable” or “just and reasonable” or that prohibit “unfair methods of competition” or “excessive profits,” and leave it to the regulators to make up whatever rules they think serve those lofty goals.

It gets worse. If a regulatory agency comes after you, forget about juries, proof of guilt beyond a reasonable doubt, disinterested judges and other rights that are part of due process in ordinary courts. The “administrative courts” through which the regulatory agencies impose their will are run by the regulatory agencies themselves, much as if the police department could make up its own laws and then employ its own prosecutors, judges and courts of appeals.

I’m not complaining about regulations that require, say, sturdy structural supports for tunnels in coal mines. But too often a sensible idea behind a set of regulations—for example, that exposed stairway floor openings with precipitous drops should have railings—is made ridiculous by their detail: If said railings are not 42 inches high, you can be fined, as per OSHA regulation 1910.23(e)(3)(v)(a).

Other regulations could be written only by bureaucrats with way too much time on their hands, such as ones that mandate a certain sort of latch for a bakery’s flour bins or the proper way to describe flower bulbs to customers, or the kind of registration form to be attached to a toddler’s folding chair, while also prescribing an option for registering the product through the Internet.

Regulations that waste our time and money are bad enough. Worse are the regulations that prevent us from doing our jobs as well as we could—regulations that impede architects from designing the most functional and beautiful buildings that would fit their clients’ needs, impede physicians from exercising their best judgment about their patients’ treatment, or impede businesses from identifying the best candidates for job openings.

It isn’t just people in the private sector who are prevented from practicing their vocations using their best judgment. Public-school teachers typically labor under regulatory regimes that prescribe not only the curriculum but minutely spell out how that curriculum must be taught—an infantilization of teachers that drives many of the best ones from the public schools. Workers in government offices are often governed by such strict job descriptions that chipping in to help out a co-worker or to take the initiative breaks the rules—and can even get them fired, as in the case of a Florida lifeguard who rescued a person who was drowning just outside the lifeguard’s assigned zone.

The broadest problem created by intricately wrought regulatory mazes is that, in an effort to spell out all the contingencies, they lose sight of the overall goal and thereby make matters worse. A particularly chilling example is offered by the 1979 Kemeny Commission’s postmortem on the Three Mile Island partial meltdown, which concluded that when “regulations become as voluminous and complex as those regulations now in place, they can serve as a negative factor in nuclear safety.”

I’ve been focusing on regulation in the workplace, but it isn’t just freedom to practice our vocations that is being gutted. Whether we are trying to raise our children, be good stewards of our property, cooperate with our neighbors to solve local problems or practice our religious faith, the bureaucrats think they know better. And when the targets of the regulatory state say they’ve had enough, that they will fight it in court, the bureaucrats can—and do—say to them, “Try that, and we’ll ruin you.”

That’s the regulatory state as seen from ground level by the individual citizens who run afoul of it. It looks completely different when we back off and look at it from a distance. For example, the Occupational Safety and Health Administration has authority over more than eight million workplaces. But it can call upon only one inspector for about every 3,700 of those workplaces. The Environmental Protection Agency has authority not just over workplaces but over every piece of property in the nation. It conducted about 18,000 inspections in 2013—a tiny number in proportion to its mandate.

Seen in this perspective, the regulatory state is the Wizard of Oz: fearsome when its booming voice is directed against any single target but, when the curtain is pulled aside, revealed as impotent to enforce its thousands of rules against widespread refusal to comply.

And so my modest proposal: Let’s withhold that compliance through systematic civil disobedience. Not for all regulations, but for the pointless, stupid and tyrannical ones.

Identifying precisely which regulations are pointless, stupid or tyrannical will be a lengthy process, but categories that should come under strict scrutiny include regulations that prescribe best practice for a craft or profession; restrict access to an occupation; prohibit owners of property from using it as they wish; prescribe hiring, firing and working conditions; and prevent people from taking voluntary risks.

Within each category, the task is to discriminate between regulations that should command our voluntary compliance from those that are foolish or worse.

When it comes to professional best practices, most people still want a government agency to prescribe precise checklists for, say, maintaining nuclear weapons. But prescribing, for example, how much time a worker in a nursing home must spend with each resident each week is stupid. Licensing has a strong rationale when it comes to physicians and airline pilots. But can’t we rely on the market to deal with incompetent barbers, interior decorators and manicurists?

Restricting the use of property makes sense if the proposed use would affect others by polluting air or water or by creating loud noises. But it should be OK to ignore the EPA when it uses a nonsensical definition of “wetlands” to forbid you from building a home on a two-thirds-acre lot sandwiched between other houses and a paved road—a description of the lot owned by the Sackett family in the famous Supreme Court case ofSackett v. EPA a few years ago.

Employers should not be free to ignore regulations that really do involve the exploitation of workers or unsafe working conditions. But there’s no reason for the government to second-guess employer and employee choices on issues involving working hours and conditions that don’t rise to meaningful definitions of “exploitation” or “unsafe.”

The full set of criteria for designating regulations that are appropriate for systematic civil disobedience is necessarily complex, but the operational test is this: If the government prosecutes someone for ignoring a designated regulation even though no harm has occurred, ordinary citizens who hear about the prosecution will be overwhelmingly on the side of the defendant.

At the end of the process, we will have a large number of regulations that meet the criteria for being pointless, stupid or tyrannical. Let’s just ignore them and go on about our lives as if they didn’t exist.

The risk in doing so, of course, is that one of the 70-odd regulatory agencies will find out what you’re doing and come after you. But there’s a way around that as well: Let’s treat government as an insurable hazard, like tornadoes.

People don’t build tornado-proof houses; they buy house insurance. In the case of the regulatory state, let’s buy insurance that reimburses us for any fine that the government levies and that automatically triggers a proactive, tenacious legal defense against the government’s allegation even if—and this is crucial—we are technically guilty.

Why litigate an allegation even if we are technically guilty? To create a disincentive for overzealous regulators. The goal is to empower citizens to say, “If you come after me, it’s going to cost your office a lot of time and trouble, and probably some bad publicity.” If even one citizen says that, in a case where the violation didn’t harm anything or anyone, the bureaucrat has to ask, “Do I really want to take this on?” If it’s the 10th citizen in the past month who says it and the office is struggling with a backlog of cases, it’s unlikely that the bureaucrat’s supervisor will even permit him take it on.

I propose two frameworks for implementing this strategy. The first would be a legal foundation functioning much as the Legal Services Corporation does for the poor, except that its money will come from private donors, not the government. It would be an altruistic endeavor, operating exclusively on behalf of the homeowner or small business being harassed by the regulators. The foundation would pick up all the legal costs of the defense and pay the fines when possible.

The other framework would be occupational defense funds. Let’s take advantage of professional expertise and pride of vocation to drive standards of best practice. For example, the American Dental Association could form Dental Shield, with dentists across America paying a small annual fee. The bargain: Dentists whose practices meet the ADA’s professional standards will be defended when accused of violating a regulation that the ADA has deemed to be pointless, stupid or tyrannical. The same kind of defense fund could be started by truckers, crafts unions, accountants, physicians, farmers or almost any other occupation.

The regulatory empire will doubtless try to strike back, asking Congress for more money to hire more inspectors and lawyers. But it’s going to be a hard sell. The regulatory agencies are becoming as unpopular as the IRS, and members of Congress know it.

The unpopularity of the regulatory state also opens up a potential landmark change in jurisprudence. Federal courts are already empowered to overturn agency actions that are “arbitrary,” “capricious” or “an abuse of discretion,” but the Supreme Court has set the bar so high that the regulatory agency almost always wins if it followed bureaucratic procedure in creating the regulation.

The good news is that the Supreme Court has a history of responding to an emerging social consensus. A drumbeat of well-publicized cases in which the agencies have obviously acted arbitrarily and capriciously as those words are ordinarily used could lead the courts to adopt a more straightforward interpretation of them. That’s all it would take—not new legislation, not a sympathetic president, just the willingness of the Supreme Court to say that “arbitrary” and “capricious” can apply to the enforcement of regulations, not just their creation.

Neither the defense funds nor the Supreme Court can deter regulators from writing bad regulations. That would require Congress to stop writing vague laws with good intentions—an impossible dream. But we can hope to introduce common sense into the enforcement of regulations.

The changes I envision can compel regulators to confront the same reality that state troopers on America’s interstate highways face every day. If you are driving 8 miles over the speed limit on a deserted stretch of interstate, you might get pulled over by a state trooper who is bored or needs to fill his quota of tickets. That’s the situation we as individuals face when we commit a harmless violation of a government regulation. We are an isolated target.

Figuratively, the purpose of the defense funds is to get us off the isolated stretch of highway and onto an interstate where the flow of traffic is several miles above the stated speed limit. Faced with many people who are technically breaking the law but who are actually driving safely, state troopers stop only those people who are driving significantly faster than the flow of traffic or driving erratically. The troopers are forced by circumstances into limiting enforcement of the law to drivers who are endangering their fellow citizens.

In sports, this enforcement philosophy is called “no harm, no foul.” If a violation of a rule has occurred but it has no effect on the action of the game, the officials ignore it and the game goes on, to the greater enjoyment of both players and spectators. As the sports announcers say, “The officials are letting them play tonight.”

The measures I propose won’t get the regulations off the books, nor will they improve the content of those regulations, but they will push the regulatory agencies, kicking and screaming, toward a “no harm, no foul” regime. They will be forced to let the American people play.

This essay is adapted from Mr. Murray’s new book, “By the People: Rebuilding Liberty Without Permission,” which will be published May 12 by Crown Forum. He is the W.H. Brady Scholar at the American Enterprise Institute.