Editor’s Note: Liberty Nation’s Washington Political Columnist Tim Donner and Legal Affairs Editor Scott Cosenza sit down to discuss legal challenges and cases taking place across America. This is the transcript of Liberty Nation Radio heard coast-to-coast on the Radio America Network. A podcast version of this program is also available by clicking the link.
Now it is time, many would say beyond time, for the ultimate segment of Liberty Nation Radio, which we entitled Talking Liberty. It is when we re-introduce our regular contributor, constitutional lawyer and Libertynation.com legal affairs editor, the man we prefer to call simply – it’s not that simple – our guardian of individual liberty, Scott Cosenza. Scott, welcome back.
Tim Donner: Let’s start with, we’re talking about so many macro issues now with the election and changing administrations and core challenges, but it’s individual liberty that is mostly under threat now. Let’s start with micro-story, which has macro revelations or macro importance, so to speak. A school board has said that they will not reverse a fourth-grader’s suspension for a BB gun incident during virtual school. Welcome to 2020.
SC: Well, yeah, let me just say this. First of all, it wasn’t an incident. It’s only now an incident because they made it one. There was no incident, and we’ll get into why, but I would just say that in terms of the level of infringement and consequence that you mentioned at the top of the segment there, the reason why I focus on stories like this and traffic cases often, is because that’s where most people run up against impermissible exercises of government power. Most people aren’t even negotiating treaties or conducting wars, right? It’s this daily interaction and grind, and also the breadth of the violations.
When they occur at a minor level, they’re more often to affect, I think, so many people. The reason why it wasn’t an incident, Tim, is because what happened is during an online Zoom class at a public school in Louisiana, a kid moved a BB gun from one portion of his living room to another so that his brother didn’t trip on it.
He didn’t make a display of it or threatened anybody with it, or even mention it. But the teacher happened to see and made a stink about it. The school, Tim, charged him with taking a replica or fake gun to school. That’s what the allegation was because he was on a Zoom class at his own home. What’s important, Tim, is to remember that when you are displaying your home or the contents of your office or wherever, to the Zoom classes, you’re doing it to the government, which may use that information to punish you. I read a story recently about a teacher lamenting how some of the kids don’t even put their camera on. They teach to what they call black squares with a name on it, right?
If those of us who have Zoom experience know what that looks like, and there’s a good reason legally, Tim, why you might want to do that, which is to not provide evidence that may hurt you or your child. You can think of the potential things a teacher might either see or think they saw occurring at your home that would then generate a complaint to them – to Criminal Services or Child Protective Services – none of which would be founded or present if the kids were at the classroom. When we deal with government, we always have to be cautious about that, especially when there are some entrepreneurial activities, and I’m not suggesting that that’s necessarily what this teacher was up to.
But, there can be incentives on the reporting side to generate more issues than fewer. I think it’s a strong word of caution for students or parents of students who go to government schools and participate in these online things.
TD: The familiar term would be the slippery slope, and we are part way down it now. Now, talk about a slippery slope, it was several years ago – and we’ve been discussing it ever since – when Colorado became the first state to legalize recreational marijuana, and that made them, and the other states who have since legalized weed, not in conformity with federal law. In other words, it’s still a federal crime to even possess marijuana, but the House has taken an action to pass a bill to decriminalize marijuana at the federal level, finally.
SC: That’s right, Tim. I think it’s always important to say, because so few Americans know it – and fewer still, as we go along with more and more states legalizing at the state level – that it is a federal crime to possess any amount of marijuana, whether that’s for personal use or for distribution or any capacity, even in a state where it is permissible to do so under state law. I just think it’s a … I couldn’t believe it, Tim. I was so surprised that just in terms of, obviously when I graduated from law school, there was no such thing as legal marijuana in any state in the country. And to see such a massive change where we even have a few Republicans voting for this effort that was overwhelmingly supported by Democrats, I think it is a good step on the road to change and a necessary step on the road to changing that federal law, so that it allows Americans to do what they’ve clearly expressed an interest in wanting to do legally.
TD: To be more precise, the House passed the Marijuana Opportunity Re-investment and Expungement act by a vote of 228 to 164.
SC: Which, by the way, we should add, Tim, will surely die before it even gets to the first step and a half of the Senate, because Mitch McConnell has indicated he is no fan of any kind of movement on legalizing marijuana. For now, it’s a dead letter, but I still think it is a win for liberty.
TD: Let’s move on to lovely California, most specifically, Los Angeles and the new district attorney there, George Gascon, who is planning to implement sweeping changes to the DA’s office – of what nature?
SC: Well, this is an interesting story, Tim. I have found that, depending on the source of the analysis, I’ve been reading about, what his announcement says from conservative circles. “It is a lament that he’s going to let criminals run free.” From liberal circles, it’s kind of a celebration of an end to policies that they think punish disadvantaged people mostly. I think there’s probably a mix in there is, really where the truth lies, that some of his policies are likely to be anti-liberty, in the sense that when you don’t prosecute people who have committed violent crime or demanded they’re held in custody until there they can demonstrate the safety to society, that prejudices everyone who is interested in liberty.
He said that unless people are charged with felony violence, he won’t do that. At the same time, for some of the lesser charges, for cash bail, they have been used to discriminate against poor people, basically. If you or I had to spend a couple of hundred dollars to get out of jail, we would do it. It wouldn’t even be a question. You’d have six people lining up to do it, but for destitute-type folks – which Los Angeles has plenty of – that presents an insurmountable burden. It’s a mixed bag, but some of the changes are good.
TD: Meanwhile, the Federal Trade Commission and 47 States have filed suit to essentially separate Facebook from their ancillary holdings, Instagram and WhatsApp. Is this an antitrust type of initiative?
SC: Make no mistake. It’s not sort of – it is an antitrust initiative. I think the more interesting fact about this type of prosecution is that it doesn’t depend on the intent of the actors. The attorneys general that are prosecuting this case need not prove that Facebook set out to be a monopolist or monopolize the marketplace. They can almost prove that just that they’re a victim of their success, if they did it too well, and then, therefore, exhibit too much power over the marketplace. The laws that’s currently constituted can force Facebook to divest itself. Even though, again, they have clean hands in the matter.
