The Tyranny of ‘Hate Speech’ Laws

Instead of catching terrorists, police in the UK are busy making threats against citizens.

I would remind the Cheshire Police to think carefully about what they are saying before posting messages online. Although they may believe their message is acceptable, citizens who cherish liberty could find it extremely offensive, since it disrespects fundamental free speech rights. At some point, the people might notice that agents of the state are not protecting their rights and decide to take corrective action.

Note that this tweet is a literal expression of tyranny, not just for the obvious reason that it threatens punishment for speech, but because it deliberately seeks to create a chilling effect on speech by instilling fear. The tweet stokes fear by invoking the arbitrariness of Britain’s hate speech laws. The laws are vague and selectively enforced, so it’s difficult for the people to know what might or might not be a crime. The Cheshire Police deliberately exploit this uncertainty by reminding people ‘Hey, you think you’re OK, but you never know when you might be facing a large fine or up to two years in prison!’ That’s an attempt to intimidate the citizenry. In a word, tyranny.

Citizens should not have to face uncertainty about whether or not they’re on the right side of the law. A fundamental requirement of the Rule of Law is that the law should define a bright line. Britain’s ‘hate speech’ laws and the actions of the Cheshire Police therefore contradict the Rule of Law.

Notice also that the law, or at least the interpretation of it by the Cheshire Police, defines an illegal act according to the arbitrary reaction of others: “other people may take offence.” Since discerning in advance what might or might not offend someone can be difficult, leaving it up to others to determine what offends them creates further legal uncertainty that is inconsistent with the Rule of Law.

Memo to the Cheshire Police: When you’re on the wrong side of the Rule of Law, you’re on the side of lawlessness and tyranny.

Berkeley Officials in Conspiracy to Violate Civil Rights?

A lot of people have been wondering why Berkeley police haven’t done more to contain rioting, both in February and earlier this month.

The February rioting in particular involved a suppression of free speech–a Civil Rights violation–as an appearance at UC by Milo Yiannopolous had to be canceled. We’ve noted previously that conspiring to violate people’s Constitutional Rights is a federal felony under 18 U.S. Code § 241. Now evidence suggests that, in Berkeley, the criminal conspiracy may have gone all the way to the top.

Berkley [sic] Mayor Jesse Arreguin was revealed to be a member of the anti-fascist group, By Any Means Necessary (BAMN), on Facebook. BAMN orchestrated the violence that shut down a scheduled lecture at UC Berkeley featuring Milo Yiannopoulos in early 2017. Arreguin is allegedly also friends with BAMN leader, Yvette Felarca, on Facebook.

Attorney General Sessions, please call your office.

Aside from criminal prosecution, federal law also allows victims of civil rights violations to sue for damages.

[I]n any case of conspiracy set forth in this section, if one or more persons engaged therein do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby another is injured in his person or property, or deprived of having and exercising any right or privilege of a citizen of the United States, the party so injured or deprived may have an action for the recovery of damages occasioned by such injury or deprivation, against any one or more of the conspirators.

I’m not a lawyer, but it seems to me that Milo Yiannopolous might have a case against Berkeley officials. At the very least, the discovery process would be quite interesting.

If some of the Big Money men on the political right really want to strike a blow for freedom, they should stop funding loser pols like Jeb Bush and Little Marco Rubio and start bankrolling some civil rights lawsuits.

Reminder: Federal judges are just bureaucrats, not entitled to rule us

I was taken aback today by the title of an article at Breitbart.

The part that concerned me was not the refugee issue but that a lowly federal trial judge could issue an “order” to the President of the United States. Is that really the way our constitutional system is supposed to work?

Last month, a different federal trial judge, this one in Seattle, placed a restraining order on President Trump’s ban on travel from seven terrorist nations, and the president obeyed the order. Leaving aside whether or not Trump’s policy or motives are wise or moral, the question I have is: How can a trial judge give orders to the POTUS? I understand that a judge can issue an opinion. After all, everybody’s entitled to their opinion! But where does the Constitution grant a trial judge the power to give orders to the president?

Well, the answer is that the Constitution grants federal trial judges no such power. Even in the case of the Supreme Court, it’s not clear that the president has to obey–Andrew Jackson certainly didn’t believe he had to obey the Supreme Court.

But in any event, for a long time now presidents have acceded to the decisions of the Court. An argument can at least be made that the Court is constitutionally co-equal with the presidency. But the same cannot be said of the federal courts below the Supreme Court.

As Michael Walsh reminds us, the Constitution created the Supreme Court, but the lower federal courts are all creations of Congress.

[F]ar from being a “co-equal” branch of government, almost the entirety of the federal court system is a creature of Congress, and can be restructured or abolished at any time. Don’t believe me? Take a look at Article III, here presented in its entirety.

That’s right–Congress brought the federal courts into the world, and Congress can take them out. Congress, if it wants, can remove that Maryland trial judge and abolish his job.

Congress has it within its power to re-organize the judiciary below the Supreme Court level in any way it sees fit. It can also change the rules concerning lifetime tenure, removal and anything else it chooses.

A federal trial judge basically serves at the pleasure of Congress. So a trial judge is not co-equal with Congress. But the president is.

It follows that the constitutional status of the Seattle trial judge is no more exalted nor secure than that of a bureaucrat at the FAA or the Consumer Product Safety Commission. Nobody would accept that such a bureaucrat could issue orders to the president and unilaterally block presidential policies. And yet the president obeyed the Seattle judge, and in the weeks following the order, thousands of people entered the United States contrary to the president’s policy.

I would submit that the president had absolutely no obligation to obey the Seattle judge’s restraining order. The president could have and should have continued to implement his travel ban as the case made its way through the appellate courts. If eventually the Supreme Court had ruled against the president, then perhaps in that case the president would have had to yield. But that would mean yielding to the Supreme Court, not to some robed bureaucrat in Seattle.

Now, many people no doubt view this conflict as a kind of David vs. Goliath situation, and believe that it’s a good thing that even a lowly federal trial judge can check the power of the President of the United States. But that’s the wrong way to look at it. Unlike Congress and the president, the trial judge is unelected and not directly accountable to the people. The people can express their will only through the elected branches. The trial judge is therefore checking not just the power of the president but the power of the people. The trial judge is not David. The people–you and me–are David, and allowing judges to rule as petty tyrants over us diminishes our liberty and is intolerable.

The problem here is not just the arrogance of the judges who think they can overrule the people’s representatives, but that the judges are granted so much deference. These judicial opinions are nothing more than that–opinions–and should be treated as such. The idea that the president is obligated to defer to the Supreme Court is questionable enough. But how did we get to a place where lowly trial judges issue orders that the president must obey? The idea is not just absurd, but anti-democratic and unconstitutional. Some degree of judicial deference is to some degree desirable, but the practice has been taken much too far.

My solution to this sort of judicial tyranny is simple: ignore them. To paraphrase a hero of the left, Joe Stalin, how many divisions does the Maryland trial judge have?

Obamacare: Finally, a Journalist Asks the Right Questions

At this point it is now seven years too late, but a journalist finally asked the right questions about Obamacare. That journalist was Tucker Carlson, and he asked the man who should know the answers as well as anybody–Jonathan Gruber, the MIT economist who was the ‘architect’ of Obamacare.

Tucker Carlson Destroys Obamacare Architect Jonathan Gruber

Carlson specifically asked two good questions that go to the heart of what is objectionable about Obamacare. Here is one of them.

Why should I be forced to buy a plan that offers things that don’t pertain to me in any way?…They’re forcing people to buy things they don’t want and that don’t help them…things that do not apply and will never apply to me such as breastfeeding, prenatal care, substance abuse counseling…why should I have to buy those plans?

Indeed, one of the most objectionable, maybe the most objectionable, provision of Obamacare is that it empowers unelected federal bureaucrats to decide the terms of my health care plan–what it covers and what it does not cover. In a free society, the terms of my insurance policy should be determined through agreement between me and my insurance company. Gruber calls this a “small issue,” but it’s actually an outrageous encroachment on the freedom of the people.

After first dodging the question and forcing Carlson to ask a second time, Gruber offered the following response.

The answer is that basically as a society we have to decide what is going to define fair insurance.

This is another way of saying that people–you and I–should not be free to decide, and so ‘society’ should decide for us. But it turns out that the group of people who decide is not ‘society’ but rather those aforementioned unelected federal bureaucrats. Gruber’s response provides no rational justification for the policy, just an assertion of his belief that people should not be free to decide for themselves. Every time choices and decisions get taken away from individuals and turned over to ‘society,’ it means that the people have less freedom.

Why should it be necessary for ‘society’ to define “fair insurance,” anymore than for ‘society’ to define a “fair golf course,” a “fair gym membership,” or “fair supermarket shopping”? These are all just contractual relationships voluntarily agreed upon by buyers and sellers. Would Gruber propose that federal bureaucrats insure “fair” grocery shopping by dictating to supermarkets which products they should and should not offer for sale?

Carlson’s second fundamental question (although it comes up first in the video) is this one.

Who are the victims? Who’s been hurt by Obamacare?

This is a crucial question, because the great con run by the political class is that they talk only about the benefits of their policies but not the costs. They don’t want to talk about all the people who will be hurt by the policy, because those people might then wake up and go into political opposition.

Gruber in reply identified only two categories of people hurt by Obamacare: “the wealthiest Americans…the top two percent,” and young, healthy people who, prior to Obamacare, benefited from “a discriminatory insurance market.”

What Gruber means by “a discriminatory insurance market” is actually just “an insurance market.” In a free and efficient insurance market, policy premiums are priced according to the risk of the individual. Healthy people with healthy habits therefore pay less than people with unhealthy habits. That’s how insurance is supposed to work–the market prices the risk. Gruber, however, believes that having an actual insurance market is unfair. When it comes right down to it, he is fundamentally opposed to the idea of health insurance. That’s why Obamacare is NOT health insurance, but an abolition of health insurance. Obamacare replaces the insurance market with an elaborate government scheme for rationing care and redistributing wealth.

I’ve always said that a one-line argument against big government is that it always ends up rewarding bad behavior and punishing good behavior. And that is precisely what Gruber advocates. He thinks smokers should be taxed to subsidize non-smokers, that those who eat healthy and exercise should be taxed to subsidize couch potatoes who overeat. As the saying goes, if you tax anything, you get less of it, and if you subsidize anything, you get more of it.

But in any event, Gruber’s list of Obamacare’s losers is far too narrow. In no particular order, the list needs to include all those young white women who go to tanning salons, because Obamacare put a 10% tax on indoor tanning. Other losers include millions of people who purchase insurance on the individual market but who are not eligible for Obamacare subsidies. Those people have seen their premiums soar. And speaking of those subsidies, they consist of tens of billions of dollars of taxpayer money that are needed to (barely) keep Obamacare afloat. So really, the losers also include basically anybody who pays federal taxes. That’s a lot of losers.

Obamacare’s losers also encompass all those who cherish the Constitution and constitutional government. Because in order to save Obamacare, the Supreme Court had to re-write the Constitution by ruling that the government is free to regulate inactivity so long as the penalty is called a ‘tax.’

Gruber’s reaction to the point that Obamacare has created many losers was somewhat fatalistic.

As with any law, the law creates winners and losers.

Sure, but the idea of a free society is that political insiders–in this case, industry lobbyists and Congressional aides–shouldn’t be able to get together and decide to make me a loser.

Gruber is right that the law creates both losers and winners. But he neglected to mention one of the biggest winners from Obamacare: himself. The man has made hundreds of thousands of dollars off of Obamacare.

Europe Failing to Protect Citizens

Notwithstanding what some might believe, the primary function of government is not to pay for your medical care. No, government’s Job One is the so-called Protective Function–defending the lives, liberties, and property of citizens from what John Locke called the “invasions of others.” Reading the news this morning offered some evidence, albeit anecdotal, that government is not performing the Protective Function as well as it should, at least in Europe.

Consider the following two stories, which nearly caused me to spit out my coffee this morning. The first comes from the British press.

Most of the outrage in the Daily Mail article is focused on asking how this guy could have been allowed to enter Britain from the Netherlands. But more remarkable to me is the fact that this guy apparently sawed off a woman’s head and then was released from prison after only six years. How can a guy who commits such a crime ever be allowed back into society?

I know there is a Rousseau-like strain of libertarian thought that believes everybody is basically good, and so punishments meted out by government are the problem and not the solution. But if government were to retreat from it’s protective function, society would have no choice but to mete out vigilante justice. That vigilante world would not exactly conform to the libertarian’s idealistic standards of justice and non-violence.

I’m not saying we should go back to the draconian punishments of Georgian England, in which a theft of more than 12 pence could bring the death penalty. But six years for beheading is absurd.

Now here’s the second coffee-spitting story from this morning: Suspended sentence for firebombing a synagogue.

A German regional court in the city of Wuppertal affirmed a lower court decision last Friday stating that a violent attempt to burn the city’s synagogue by three men in 2014 was a justified expression of criticism of Israel’s policies.

Johannes Pinnel, a spokesman for the regional court in Wuppertal, outlined the court’s decision in a statement.
Three German Palestinians sought to torch the Wuppertal synagogue with Molotov cocktails in July, 2014. The local Wuppertal court panel said in its 2015 decision that the three men wanted to draw “attention to the Gaza conflict” with Israel. The court deemed the attack not to be motivated by antisemitism…

The court sentenced the three men – the 31-year-old Mohamad E., the 26 year-old Ismail A. and the 20-year-old Mohammad A.—to suspended sentences. The men tossed self-made Molotov cocktails at the synagogue. German courts frequently decline to release the last names of criminals to protect privacy.

So the German government seems more concerned with protecting the privacy of convicted firebombers than with protecting the lives and property of innocent citizens.

Particularly perverse is the court’s conclusion that a political motive is somehow exculpatory. If anything the political motive makes the crime more insidious than if it were merely a random act of drunkenness. Political violence is something that civil society cannot tolerate and still remain civil.

In Europe, what does one have to do nowadays to receive a stiff prison sentence, post something ‘hateful’ on Facebook?

This will not end well.

When is it OK to Ignore Federal Law?

When is it morally justifiable for cities and states to willfully break or obstruct federal law?

Most would agree that it was morally justifiable in the 1850s for Northern states to resist Dred Scott and the ‘fugitive slave’ laws.

Historians, however, are less sympathetic to John C. Calhoun’s doctrine of nullification, which propounds that states can ignore federal statutes they deem to be unconstitutional.

Currently, Democrat mayors of big cities across the country are refusing to enforce federal immigration law.

providence

People who support open borders believe they have a strong moral case. In particular, many libertarians believe that borders and citizenship laws are just means of oppressing people, denying them the basic right to move freely in search of work and a better life.

This argument clearly has some merit, but I don’t find it entirely convincing. Effective borders serve to reduce chaos and ethnic strife. Moreover, open borders, as a practical matter, are incompatible with the modern welfare state. As Milton Friedman said long ago, you can have open borders or a welfare state, but not both. If libertarians want to open up borders, they should first work on setting the necessary preconditions by rolling back the welfare state.

Deciding which federal laws we can ignore is a tricky and dangerous business. If liberals and libertarians think that their moral arguments trump federal law, then can conservative localities do the same? In particular, can a conservative state like Utah or Oklahoma choose to ignore Supreme Court case law and enforce a statewide ban on abortion or gay marriage? Libertarians may disagree, but most citizens of those states believe they have a strong moral case.

How do we resolve conflicts between the law and our moral conscience? I’m not sure I know the answer, but Lincoln’s dictum that a nation divided against itself cannot stand should serve as a cautionary warning.

And as long as we’re on the subject of morality and the law, I have a question about when it’s OK for a private business to refuse service. For instance, Twitter this past week implemented a purge of numerous clients who were using the medium to propagate right-wing views. Many of the users who had their accounts terminated had never tweeted threats of violence, nor had they singled out other users for harassment. Some of the banned users even possessed accounts that had previously been ‘verified’ by Twitter, a distinction usually reserved for celebrities and public figures. Yet Twitter banned them on the basis, apparently, of their political views.

twits

Many commentators defended Twitter’s actions by asserting that, as a private company, Twitter is not bound by the First Amendment, and can therefore censor views it doesn’t like. This argument was made repeatedly in the comment threads of both conservative and liberal websites. For instance, at the USA Today, the most ‘liked’ comment among hundreds made essentially this point. usatoday

If Twitter were a newspaper or a book publisher, I would agree. But in the case of Twitter, the legal analysis does not seem so obvious. Twitter, it could be argued, is less like a private club and more like a public accommodation that offers a service to the public like a phone company. And the fact is that public accommodations are not legally free in all cases to censor speech. The phone company cannot terminate your service for telling an offensive joke over the phone. And under the Supreme Court’s 1980 “Pruneyard” decision, a California shopping mall–a private entity, to be sure–was told that it had to accommodate free speech.

In any event, I am not a First Amendment lawyer, but I do wonder about the apparent legal double standard. How is it that Twitter, as a private platform, can refuse service to right-wingers merely on the basis of their political views, but a private bakery cannot legally refuse to participate in a gay wedding? Can someone clarify that for me?

Furthermore, the foregoing discussion concerns only the law, and not what is morally right. Twitter might be able to censor speech legally, but that does not imply that it is moral for them to do so. As we have seen, morality and the law are often in conflict.

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Does Drug Enforcement Cause Overdose Deaths?

A plausible economic theory states that prohibition of drugs or alcohol will increase the potency of the drugs that people consume illegally. More potent drugs are more economical for both users and dealers because they pack a bigger punch into a smaller volume, making them easier to transport and to conceal. Potent drugs can sometimes also deliver the required dose more quickly, which can help users to evade detection. There is evidence, for example, that alcohol prohibition during the 1920s caused an increase in the consumption of hard liquor relative to beer and wine. After all, there’s no point risking arrest at a speakeasy just to nurse a lite beer; the point is to get smashed.

The other problem with illegal drugs is the lack of quality control. So at the same time that the drugs are more potent, the lack of transparency and quality control makes the level of potency difficult for the user to determine. This uncertainty regarding potency dramatically increases the likelihood of overdose.

The conclusion is that the War on Drugs actually causes users to resort to drugs that are more dangerous than they might otherwise consume. Perhaps not so coincidentally, America’s current heroin epidemic took off right after authorities cracked down on prescription opioids like OxyContin. Abusing prescription opioids is bad; but at least OxyContin is produced by a reputable pharmaceutical company and not cooked up by gangsters in a Mexican hideout.

Now the New York Times reports that potency on the illicit market has ratcheted up to the point where people are using synthetic opioids up to 5,000 times more potent than heroin. The stuff is so dangerous that a tiny speck can kill, and cops are refusing to field test samples for fear of coming in contact with the stuff. The synthetic opioids are largely responsible for a record 200 overdoses in Cincinnati in just a two-week period.

Addiction specialists said the sharp increases in overdoses were a grim symptom of America’s heroin epidemic, and of the growing prevalence of powerful synthetic opiates like fentanyl. The synthetics are often mixed into batches of heroin, or sprinkled into mixtures of caffeine, antihistamines and other fillers.
In Cincinnati, some medical and law enforcement officials said they believed the overdoses were largely caused by a synthetic drug called carfentanil, an animal tranquilizer used on livestock and elephants with no practical uses for humans. Fentanyl can be 50 times stronger than heroin, and carfentanil is as much as 100 times more potent than fentanyl. Experts said an amount smaller than a snowflake could kill a person.

Around Cincinnati, police officers and sheriff’s deputies are so concerned about the potency of carfentanil and other synthetic opioids that they carry overdose-reversing naloxone sprays for themselves, in case they accidentally inhale or touch the tiniest flake.

The problem is growing so fast that overdose deaths in Hamilton County have doubled since 2012, and in the overall Cincinnati area overdose reports have more than doubled in just the past six months.

Meanwhile, the only response to the problem seems to be to send more and more people to jail. That’s the response in particular from the ‘law and order’ types in the rural and suburban counties. The New York Times published another fascinating report about how the Drug War is filling up jails in rural and suburban counties. Dearborn County, Indiana, just a bit west of Cincinnati, now sends more people to prison per capita than nearly any county in America.

By 2014, Dearborn County sentenced more people to prison than San Francisco or Westchester County, N.Y., which each have at least 13 times as many people.

A collection of small, quiet towns near the Ohio River, Dearborn County does not look like a prison capital. Violent crime is rare. There are few empty storefronts. And local officials, flush with money brought in by a popular local casino, have built a convention center and a high school football field fit for a movie set.
But the extraordinarily high incarceration rate here — about one in 10 adults is in prison, jail or probation — is driven less by crime and poverty than by a powerful prosecutor, hard-line judges and a growing heroin epidemic.
Opioid addiction spread early here. Mr. Negangard, the prosecutor, has fought the heroin crisis by aggressively going after drug crimes.
“If you’re not prosecuting, then you’re de facto legalizing it,” Mr. Negangard said.

But maybe legalizing would stop people from overdosing because they wouldn’t have to resort to taking elephant drugs smuggled from Mexico.

If legalization, de facto or otherwise, seems too risky, then we can at least halt the crackdown on prescription pills and focus just on the really dangerous opioids.

Donnie Gaddis picked the wrong county to sell 15 oxycodone pills to an undercover officer.

If Mr. Gaddis had been caught 20 miles to the east, in Cincinnati, he would have received a maximum of six months in prison, court records show. In San Francisco or Brooklyn, he would probably have received drug treatment or probation, lawyers say.

But Mr. Gaddis lived in Dearborn County, Ind., which sends more people to prison per capita than nearly any other county in the United States. After agreeing to a plea deal, he was sentenced to serve 12 years in prison.

“Years? Holy Toledo — I’ve settled murders for a lot less than that,” said Philip Stephens, a public defender in Cincinnati.

If we’re punishing people more for prescription pills than for murder, and the drug problem only gets worse, maybe it’s time to try a different approach.

Public Service, Then and Now

THEN

1884-85: Ulysses S. Grant, while dying of throat cancer, 450px-Mathew_B._Brady_-_Ulysses_S._Grant_-_Google_Art_Projectworks desperately during the last year of his life to complete his memoirs. Having given up his military pension in order to become president, he needs to sell his memoirs to provide an income for his wife. The memoirs, completed just a few days before Grant’s death, are now considered one of the greatest works of American non-fiction.

1953: At the termination of his presidency, Harry S. Truman drives himself and his family back to the old family home in Independence, Missouri. He is granted no secret service protection, and declines opportunities to make money by lending his name to corporate boards, since he considers it unseemly to take a no-show job. His income of $13,000 for 1954 does not allow him to hire a secretary to answer mail. Congress, out of concern for Truman’s financial situation, passes a law in 1958 granting a pension to former presidents.

truman-retirement-P

NOW

2001-2016: Bill and Hillary Clinton amass a fortune of several hundred million dollars by peddling influence and taking bribes, laundered as ‘speaking fees’ and charitable gifts, from Wall Street and from shady international billionaires.

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Leftists Bringing Back Racial Segregation

Contemporary political labels are quite strange because they so often mean the opposite of their intended meaning. For instance, we call people ‘liberal’ who oppose classically liberal principles like freedom of speech, and we call people ‘progressive’ who hold utterly backward and retrograde beliefs. For a prime example of the latter, look no further than Oregon State University, where ‘progressives’ are bringing back the retrograde and deplorable practice of racial segregation.

Oregon State University will hold four racially-exclusive “Social Justice Retreats” focusing on “white privilege,” “microaggressions,” and “institutional racism” in the first month of 2016 alone.

During the weekend of January 8-10, the university will have two retreats — one specifically for white students, “Examining White Identity in a Multicultural World,” and “Racial Aikido,” which is specifically for non-white students.

According to the university website, the white students’ retreat will focus on “white privilege,” while the retreat for non-white students will seek to “empower students of color.”

So the objective of the white retreat is to make students feel guilty just for being white, and the purpose of the non-white retreat is to make students feel sorry for themselves, which of course will make it harder for them to succeed.

The university will hold an additional “Examining White Identity in a Multicultural World” retreat specifically for white faculty and staff members on January 8th and 9th.

The university does not appear to offer any social justice retreats specifically for non-white faculty and staff.

We fail to see how this blatant racial segregation could be constitutional. We imagine that the only way they can get away with the segregation is by not actually enforcing it. So for instance, if a non-white staff member wanted to join the white retreat, the university would back down and allow it in order to prevent grounds for a lawsuit.

In order to register for any of the retreats, potential attendees are required to disclose their “racial identity,” sexual orientation, preferred gender pronouns, and whether or not they “identify with a religious or spiritual practice.”

OK, just in case this policy finds it’s way to UD, we have our answers prepared.

Our racial identity–fuck you.

Our sexual orientation–none of your goddam business.

Preferred gender pronoun–Sir.

Religious or spiritual practice–none of your goddam business, and by the way, fuck you.

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