Wikipedia:Reference desk/Archives/Humanities/2016 December 21

= December 21 =

55th United States Congress
Are there any secondary sources/books on the 55th United States Congress (not the records listed on the external links)?--KAVEBEAR (talk) 00:55, 21 December 2016 (UTC)


 * I'll just note what I found while looking for such sources. It's actually going to be extremely difficult to pinpoint sources about this Congress, because actions of the 55th congress are cited so many damn times in the literature. Basically there are tens of thousands of passing mentions of laws passed by the 55th congress (as well as other activities), in sources that are not really about that congress, or even the law that carries the citation. Someguy1221 (talk) 10:35, 21 December 2016 (UTC)

Invalidating an election due to criminal activity on a candidate's behalf
The recent hullabaloo about Russia supposedly hacking emails from the Hillary camp and giving them to wikileaks to publish got me thinking about a broader question:

If a COURT (a court, NOT the CIA or whatever - and it would probably have to be the Supreme Court, given the importance of the matter), FOUND (not merely accepted grounds for suspicion, but made an actual finding on the evidence, to the requisite standard of proof) that CRIMINAL activity was carried out on behalf of a candidate - AND, that the criminal activity had a real likelihood of having affected the outcome (the latter of course probably cannot be empirically proven, as to what would have been the outcome in the absence of the criminal activity). Could the court order the election outcome overturned? Please do not limit answers to the Trump situation, though it does interest me. For example if the Watergate scandal was not uncovered until after the election, and the Republicans had won re-election "on its back", including the criminal elements being deemed likely critical in nailing the victory - and post-election, the scandal broke about how the election was won, and the Democrats challenged the result in court. What would the law be - would the election result legally stand? (I'm interested in the law, both constitutional and statutory, though I suppose political realities of what would likely take place, e.g. in congress, come into the picture too). Eliyohub (talk) 10:30, 21 December 2016 (UTC)


 * No. The power to count electoral votes is given by Article Two of the United States Constitution to congress, which can pass laws to facilitate the process. The means by which an electoral vote can be challenged is spelled out in 3 U.S. Code § 15, and is to be handled by Congress, not the courts. Now, someone could certainly argue before the courts that something about an election violated the constitution, and that it should overturn the election, but then you're getting into mostly unprecedented legal territory. The case of Bush v. Gore considered the recount that was occuring at the time, and the court was not being asked to overturn a vote. Someguy1221 (talk) 10:44, 21 December 2016 (UTC)
 * In other words, a presidential candidate is in practice free to make use of whatever criminal tactics he or she likes, even watergate-scale ones, with impunity from any challenge to the election result, as long as their party controls both houses of congress??? Is that how the system really works? Eliyohub (talk) 11:03, 21 December 2016 (UTC)
 * Assuming the candidate's own party is willing to just look the other way, and the voters for those party members are willing to do the same, sure. But even a president-elect can be charged with violating election law and going to jail. Someguy1221 (talk) 11:14, 21 December 2016 (UTC)


 * Assuming the candidate committed an actual crime and could be directly linked to it (as opposed to benefiting indirectly from someone else's illegal activity), then the elected official could in principle be charged and convicted of that crime regardless of their office. In principle, no elected official is above the law, the courts have the power to try elected officials, and even the President could be sent to jail if convicted of a crime.  In most cases, an elected official being convicted of a crime subsequently leads to their removal from office (though such processes are usually independent).  In practice though, you might have difficulty finding an Attorney General willing to pursue such a case, and/or authorize a special prosecutor.  The Justice Department is supposed to be independent, but without the backing of either the President or Congress it would seem to be unlikely.  Alternatively a state Attorney General could run the investigation if the crime was tied to their state, and in some limited circumstances even the courts can order an investigation.  Dragons flight (talk) 11:23, 21 December 2016 (UTC)


 * On another hand, I have a Democratic friend who cannot be shaken from the position that, even if George W. Bush's bloody fingerprints were found on explicit orders to torture an innocent captive, he should not be prosecuted because the precedent would give future Presidents a motive to cling to power by extra-constitutional means. —Tamfang (talk) 20:39, 21 December 2016 (UTC)
 * If President Bush's actions were legal, however evil they might be (and I am NOT judging the morality of them), he couldn't be prosecuted anyways. Legality and morality are two separate things. I am, however, a strong supporter of the proposed State Secrets Protection Act, which would at least open the gates to civil redress for such victims, and constitutional challenges to government actions of this nature. Eliyohub (talk) 06:49, 22 December 2016 (UTC)
 * My friend and I are assuming, for the hypothetical, that some law was broken. —Tamfang (talk) 22:22, 22 December 2016 (UTC)

OK, follow-up question then: Could CONGRESS invalidate an election result and order a re-run if they concluded that due to either criminal activity on behalf of of the winner, or violations of electoral law, the election did not represent the will of the people?

Also, STATES choose electors to the electoral college, based on processes set out in State law. If a losing candidate appealed to the STATE court in a particular state (a state on whose electoral college votes the outcome of the entire presidential election hinges) not to allow that state's electors to be dispatched in accordance with the outcome, due to violations of that state's electoral laws which may have effected the outcome, and the court agrees that this has indeed happened (electoral laws were broken, and the outcome potentially affected), could they tell the Electoral College "sorry, we've had a hiccup, you'll need to push back the electoral college vote as we re-run the process to choose electors (i.e. the election in that state, or certain districts thereof), we've mucked up"? Or would congress say "sorry, get your electors here by the specified date, or they don't get to vote in the electoral college"? Eliyohub (talk) 06:49, 22 December 2016 (UTC)


 * States can choose the electors however they like. They can throw out all their state laws at the last moment and do whatever they want to do. However, the electors must meet on time and cast their vote on time. In the past, states have quickly made up rules and changed the electorate at the last moment. There are also cases where the electors missed the vote. If you want to limit to this election, multiple electors selected to vote for Clinton tried to vote against her and were replaced. Is that part of the state law? I doubt it is written clearly. I expect there is a vague: If the state officials don't like what an elector votes, the elector will be replaced until the elector behaves properly. 209.149.113.5 (talk) 17:30, 22 December 2016 (UTC)

Criminal law and implied threats to Edward Snowden
Some U.S. politicians, and supposedly the head of the CIA, have suggested that Edward Snowden should be subjected to an act of extrajudicial murder. My question is, is saying such things not a criminal offence under U.S. Federal Law - inciting a murder in a foreign country, or making threats to kill (even if the victim is abroad)? I know politics means no chance of a prosecution, but are such statements legal, or are the peple making them potentially committing criminal offences?

And PLEASE, no opinions on the morality of Snowden's actions - simply the legality of suggesting that he be subjected to an extra-judicial murder, and the seemingly implied threats by the head of the CIA that they would do exactly that. Eliyohub (talk) 11:26, 21 December 2016 (UTC)


 * Under Brandenburg v. Ohio, the first amendment protects such speech unless it is intended to encourage an "imminent lawless action". Suggesting he should be killed in general terms is protected speech, as long as you aren't advocating immediate action.  Similarly, drone strikes and similar extrajudicial killings may be considered lawful when duly authorized by the Executive and appropriate US law, and if so, advocating for such an event would also be protected speech.  See also: United States free speech exceptions.  Dragons flight (talk) 11:38, 21 December 2016 (UTC)
 * Wouldn't an extraordinary rendition be more efficient, though risky, than a drone attack or a cruise missile from a warship? Sleigh (talk) 22:43, 21 December 2016 (UTC)
 * I wasn't really focusing on making Snowden dead (and you'd probably send a human assassin, not a drone or missile), just the legality of inciting doing such a thing, or implying threats to do it. Eliyohub (talk) 06:54, 22 December 2016 (UTC)

Non-traditional alcohol consumption
I was reading 2016 Irkutsk mass methanol poisoning and was surprised there was no link to an article discussing in general the phenomenon of people drinking alcohol-containing products not intended for consumption for the purposes of intoxication. Does such an article exist? --LukeSurlt c 16:15, 21 December 2016 (UTC)
 * Non-traditional methods of consuming alcohol or consumption of non-traditional alcohol? I think there's scope for both. Andy Dingley (talk) 16:20, 21 December 2016 (UTC)
 * I see what you did there. :) --† dismas †|(talk) 00:58, 23 December 2016 (UTC)
 * I see the article now uses a phrase "surrogate alcohol". It also explains that the poisonings happened because people thought they could trust what was written on a product label... Wnt (talk) 21:55, 21 December 2016 (UTC)

Why are so many British workers Polish?
Foreign-born population of the United Kingdom. There's 17 times more Poland-born Brits than Czech-born even though Poland has only 3.7 times the population and is further (though the near parts of Poland are closer than the far parts of the Czech Republic) Sagittarian Milky Way (talk) 20:47, 21 December 2016 (UTC)
 * Poles in the United Kingdom has a few explanations as to why the Polish population in the UK has gone up so drastically recently, did you see that article? uhhlive (talk) 22:15, 21 December 2016 (UTC)
 * I did not. Interesting article. So it goes back much further than the Noughties. I was wondering why many Eastern EU nations like the Czech Republic don't come as much (per capita). Sagittarian Milky Way (talk) 23:03, 21 December 2016 (UTC)
 * It does go back decades . The phenomena is a central part of the 1982 film Moonlighting (film). MarnetteD&#124;Talk 23:22, 21 December 2016 (UTC)
 * Mess up the ping so have to do it this way. MarnetteD&#124;Talk 01:21, 22 December 2016 (UTC)

Which wikipedia policy calls for the hatting of diatribes or rants, assuming they are relevant to the question, and do not violate any other wikipedia policies? The editor openly calls it a rant, but what does policy say? Eliyohub (talk) 05:51, 22 December 2016 (UTC)
 * Over the years there have been many debates about what is or is not acceptable behaviour on the refdesks. There is no definitive answer; what is acceptable to some isn't to others. Policies/guidelines aren't always the solution, it may be better to use WP:COMMONSENSE and WP:CONSENSUS. &#40;&#40;&#40;The Quixotic Potato&#41;&#41;&#41; (talk) 07:18, 22 December 2016 (UTC)

A four-year prison sentence for bathroom graffiti???
We don't have an article on aggravated harassment, and I am confused and appalled by this report. I mean, it's an idiot who kept scrawling swastikas, eventually on exterior walls of a university building - nonetheless, it still looks to me like a case of simple graffiti. If they put this guy in jail for four years for each swastika in the bathroom, can they put somebody in jail for writing pro-Trump slogans if it harasses the Mexicans? Meanwhile -- are they putting the gang taggers through any similar prosecution, or can those people put up their marks of ownership on people's houses and have them genuinely afraid to take them down but be treated as the overgrown juvenile delinquents this kid should have been? Anyway, just searching I would think the foolhardy statute was struck down. And is this only going on in New York, or is there more I missed? We should get some kind of article going. Wnt (talk) 21:20, 21 December 2016 (UTC)
 * That's the maximum; it's highly unlikely he would be sentenced to the maximum. Most people aren't, but sometimes an example is made, for better or (usually) worse. And then there's the fact that it's a lot of repeat offenses. A lot of crimes have a stupidly high maximum that's never met (how often does someone have to pay the full $250,000 for movie piracy?). Also, there is a difference between a swastika on Jewish places (signifying "hey remember that regime that nearly exterminated you?") and pro-Trump slogans on Mexican places (signifying, er ... a wall? he said bad things about them?) Not quite the same level, and you know that. --Golbez (talk) 21:28, 21 December 2016 (UTC)
 * To me it seems like wherever censorship is concerned, authorities are rarely satisfied with the maximum! With a real crime, the punishment fits the crime; but there is no possibility of proportionality with things like this. Wnt (talk) 22:00, 21 December 2016 (UTC)
 * Here are a couple of pretty good blog posts from Popehat that explains why journalists skip right to statutory maximums and use it as either a scare tactic or hyperbole. They are well sourced and the author is an attorney. uhhlive (talk) 22:36, 21 December 2016 (UTC)
 * About the unconstitutional bit, one of the sources you provided notes that the legislature is looking at clarifying the law. And these sources confirm that happened . I didn't find any commentary on whether it's likely the new law has sufficiently addresses the constitutional concerns.  Note in any case that the unconstitutional ruling seemed to be referring to aggravated harasment in the second degree. I assume this case, which involves swastikas is going to be prosecuted as aggravated harasment in the first degree which covers swastikas, burning crosses, nooses and premises relating to religion in a few ways.   .  This isn't legal advice, but AFAIU, the only cases which could be first degree which don't involve any of those are where someone has "Strikes, shoves, kicks, or otherwise subjects another person to physical contact, or attempts or threatens to do the same because of a belief or perception regarding such person's race, color, national origin, ancestry, gender, religion, religious practice, age, disability or sexual orientation, regardless of whether the belief or perception is correct" multiple times as a repeat offender or done that and some other form of first degree aggravated harassment.  So I don't see how it's possible for people writing Trump slogans or gang signs (except for ones with swastikas or nooses) to be pursued using the same law. Unless they happen to write these slogans or gang signs on a building related to some religion. And while I don't know how you cost a coat of pain, but it's possible one slogan or gang sign won't be enough anyway even if it is a religion related building.  Okay I know Trump has told people to "“knock the crap out of them"  before, but it was in reference to protestors etc so I don't think "Mexicans, we're going to knock the crap out of you" counts as a Trump slogan. In other words, even if it is perhaps theoretically possible someone who does that multiple times could be prosecuted for aggravated harassment in the first degree, it doesn't seem to count as someone being pursued for writing Trump slogans.  N.B. I'm not sure if the sources cited have been updated with any recent changes, but I'm not sure if the first degree law was affected anyway. I did find some proposed amendment, but I'm not sure it went through.  Nil Einne (talk) 23:54, 21 December 2016 (UTC)
 * From descriptions here and the earlier sources, I think  is probably the updated version of the second degree offence. Again this isn't legal advice but it seems to me gang tags could be covered under subsection 1, but Trump slogans not so much. (I don't think Trump slogans could could as harassment either, so even subsection 5 seems to be out. Well unless you're following a specific individual and writing Trump slogans whereever they go, but in that case it's more likely to be the fact that there's this nutcase following you rather than the slogans per se.) Nil Einne (talk) 00:17, 22 December 2016 (UTC)

A class A misdemeanor in New York State is punishable by a maximum sentence of 1 year in jail. It sounds like the "maximum" being cited in that news story to sound scary is what you'd get if the judge sentenced the kid to 1 year consecutively for every misdemeanor he's charged with. I suspect (hope?) a sentence like that would be unprecedented. I can't find any New York sentencing guidelines for defendants convicted of multiple misdemeanors, or anything in New York State law that would stop a judge from doing this (aside from vague statutory and constitutional restrictions against unduly harsh punishment). The scary thing about the story is not how bad the sentence can be for drawing swastikas, it's how much leeway a judge has to destroy your life or set you free. Someguy1221 (talk) 00:09, 22 December 2016 (UTC)
 * But the crime the person is being accused of seems to be a class E felony not a class A misdemeanor. P.S. In cases there's any doubt, this source confirms it's first degree and also mentions 10 counts with up to 4 years for each count. Nil Einne (talk) 00:26, 22 December 2016 (UTC)


 * I was going by the alleged charge of second degree harassment. In that case, this source would suggest that first-time convictions of a Class E felony typically don't even get jailtime. Someguy1221 (talk) 00:29, 22 December 2016 (UTC)


 * The code linked above is quite explicit that this is a case of specific content-based censorship. Drawing a swastika, for whatever reason, is punishable by four years in jail; drawing a hammer and sickle is not.  As far as I can see, even writing "HITLER WAS RIGHT" in big block letters is not!  Similarly, hanging the baseball commissioner in effigy or even drawing a little comic figure of a student braiding a noose upon facing his Organic Chemistry midterm on the bathroom wall, would seem to make a person eligible for a four-year hitch if the campus doesn't like it; writing that the KKK knew how to deal with [Black Lives Matter] does not.  So it does not even really seem very organized as a method of content based censorship; it is simply a sort of random land mine laid out to catch the occasional racist who might wander down one particular path.  Does anyone disagree with that interpretation? Wnt (talk) 14:44, 22 December 2016 (UTC)
 * What does this have to do with anything? This isn't the place for random contributor's opnions of laws, and you know that. As to what is covered, your appear to be mostly correct although again this isn't legal advice. Nil Einne (talk) 21:27, 22 December 2016 (UTC)
 * Well, if the above was a statement of opinion, you wouldn't be able to confirm it was correct. Wnt (talk) 12:04, 23 December 2016 (UTC)
 * There's an obvious difference between commentary on what the law covers, and a random wikipedian's opinion on whether a law is organised or 'random land mine laid out to catch the occasional racist who might wander down one particular path' and you must know that. Frankly the former strongly risks providing legal advice, except that I think it's clear no one is likely to rely on what's said here to decide their risk of legal action if they go vandalising places. And short of deleting the whole thing, there was no real way to point out that the premise which started this question was incredibly silly and revealed an extreme lack of research on the part of the OP (i.e. you) since there was nothing to suggest the specific law concerned covered what you were suggesting. This is harsh, but this is the RD and you're not exactly new and the "fake news" issue has shown the incredible harm that comes from the lack of basic research before outrage. (This isn't commentary on whether it's right or wrong to be outraged, simply that you need to understand what you're actually looking at before you decide whether to be outraged. And also, noting that this isn't the place to be outraged.) Nil Einne (talk) 23:39, 23 December 2016 (UTC)
 * Honestly I have no idea what you're on about. The story I posted was apparently rather accurate - the four year sentence and the punishment specifically for a swastika were confirmed.  I didn't think it would hurt to ask for sources. Wnt (talk) 11:17 am, Today (UTC+8)


 * If you're caught defacing a public building, crying "censorship" is bogus. There is no constitutional right to damage public property. ←Baseball Bugs What's up, Doc? carrots→ 00:03, 24 December 2016 (UTC)
 * The government can probably restrict vandalism of public and private property sure. The question is whether they can provide added protection or greater sentences depending on the nature of the message of the vandalism. This has some discussion around such apparent non content neutral restrictions. It links to  which discusses the case of R.A.V. v. City of St. Paul and that article mentions Virginia v. Black which highlights why it's complicated. In other words there may be no constitutional right to damage a public building but there may or may not be the right to be treated the same as the person who writes Trump slogans or that they have a big penis or just some random tag they came up with. IMO the issue of whether to call this censorship is largely a red herring. Nil Einne (talk) 02:21, 24 December 2016 (UTC)
 * A somewhat parallel situation concerns bills attempted in five states to reduce the penalty for assault and/or aggravated assault to $25 or less if the person assaulted was in the process of burning an American flag, as a way of circumventing the Supreme Court's protection of that form of expression under the First Amendment. This was widely understood as a censorship mechanism.  Only the party whose penalty is altered is different in this case. Wnt (talk) 11:17 am, Today (UTC+8)
 * So anything that's not attempted murder is a $25 fine? Shooting him in the feet in front of a hospital? Cutting off his hand with a plasma torch? (like a lightsaber so can't bleed to death) Holding him down and stabbing his eyes out? Sagittarian Milky Way (talk) 16:16, 25 December 2016 (UTC)
 * Those things are felonies. ←Baseball Bugs What's up, Doc? carrots→ 16:23, 25 December 2016 (UTC)
 * Felony aggravated assault is a thing. Shooting someone is that (and possibly (usually?) attempted murder too). I suppose the last one might also be kidnapping or something similar. Maybe the second one too unless the flag burner was knocked out so his hand could be cut off without its owner being restrained. Thank God those bills didn't pass. Sagittarian Milky Way (talk) 16:50, 25 December 2016 (UTC)
 * They wouldn't have stood up in a court challenge. ←Baseball Bugs What's up, Doc? carrots→ 16:59, 25 December 2016 (UTC)
 * What court challenge? I thought you were just telling us people shouldn't gripe when they broke the law? Nil Einne (talk) 10:58, 26 December 2016 (UTC)


 * Nonetheless, if you choose to break the law, you're in no position to gripe about the consequences of your actions. ←Baseball Bugs What's up, Doc? carrots→ 07:58, 24 December 2016 (UTC)
 * Wnt, if you don't like someone burning or attempting to burn the flag, best weapon is a fire hose. Soak both the flag and the burner, flag burning over, simple. I think fire hoses and fire extinguishers are fair response, and I would defend my right to resort to them in both the legislatures and the courts, but otherwise, I don't declare open season to violence on flag-burners. Eliyohub (talk) 15:36, 24 December 2016 (UTC)
 * Some fire extinguishers are cold enough to cause frostbite (amputation and gangrene?). There's probably a kind with noxious chemicals, too (caustic?). Fire extinguishers that shoot carbon dioxide gas don't soak anything and he could relight the flag within seconds. Isn't fire hoses what they did to African-American people in the 60s? Sagittarian Milky Way (talk) 16:16, 25 December 2016 (UTC)
 * Hence a normal water-transmitting hose rather than a fire extinguisher. ←Baseball Bugs What's up, Doc? carrots→ 16:22, 25 December 2016 (UTC)
 * Also, no one has discussed the specifics of where a swastika would be seen to fit in the scheme of american free-speech protections, given that Nazi ideology calls for mass-murder. Symbols of violent gangs have raised similar issues, with their implied affiliation to criminal activity. Eliyohub (talk) 15:44, 24 December 2016 (UTC)
 * Burning a flag might violate legal restrictions on open-burning. ←Baseball Bugs What's up, Doc? carrots→ 16:15, 24 December 2016 (UTC)
 * Maybe, but that is again beside the point. As has already been mentioned, the US government may be able to restrict open-burning broadly. The question is whether they can specifically punish flag-burning as opposed to burning your teatowel (or whatever). Nil Einne (talk) 11:01, 26 December 2016 (UTC)
 * Your comment makes no real sense unless you reject the concept of human rights and challenging flawed laws completely which means (as I've mentioned before) you're basically saying whatever happens in North Korea at al is largely okay provided the punishments are in accordance to the law there. While you're free to hold such an ideal, this is a principle a substanial proportion of the world rejects. Note that this has nothing to do with whether or not the specific laws are wrong, which as I've said before isn't an issue for the RD to deal with but simply dealing with the point that a key component of liberal democracies is the ability to challenge your conviction or sentence if the law was either not implemented correctly, or the law is unjust for some reason regardless of whether you admit to breaking the law as worded. Even in places like New Zealand with Parliamentary sovereignty there's still recognition of this with the New Zealand Bill of Rights Act 1990 and similar laws, and NZ various treaties. Even if you aren't completely rejecting the idea of challenging laws, but trying to make some weird separation where people can challenge a law if it's felt the action shouldn't have even been unlawful, but not challenge it when it's agreed it's unlawful but the specific law you were convicted of was wrong this still makes little sense. Perhaps most importantly, it's a moot point. Your personal opinion on what people should and shouldn't be able to do aside, it's clear that you can challenge the laws in the US, which appears to be country we're interested, as my examples illustrated. If you're trying to say people can challenge the laws, but can't "gripe" about them, all I can say is WTF? Nil Einne (talk) 10:58, 26 December 2016 (UTC)
 * When injustice becomes law, resistance becomes duty. But no one has answered my comment as to where swastikas (and their affiliation with belief in mass-murder) and symbols of violent gangs fit in terms of first-amendment protections? I see them as fundamentally different to burning a flag, which is not an act associated with violence on the part of the burner. Eliyohub (talk) 15:58, 26 December 2016 (UTC)
 * The law doesn't seem to be speaking in terms of the meaning, though I'm not sure. The phrase for the first degree offense is "Etches, paints, draws upon or otherwise places a swastika, commonly exhibited  as  the emblem of Nazi Germany, on any building or other real property, public or private, owned by any person, firm or corporation or any public agency or instrumentality, without express permission of the owner or operator of such building or real property;".  Someone correct me if I'm wrong, but to me it sounds like that's an explanation, not an evaluation.  If a guy from a Buddhist student group tapes up a Falun Gong pamphlet, AFAICT he's up for a four year sentence.  But the gang logo isn't listed, so they're OK.  In the next section "Sets on fire a cross in public view" isn't even given an explanation - it doesn't matter if it's a Muslim guy mad at Terry Jones (pastor), so far as I know.  As far as the First Amendment is concerned, there is a nutty doctrine about "compelling state interest" that to me seems to let the courts pretty much do what they want one way or the other, or make up things like the Miller Test on the spot, so I wouldn't feel confident making any prediction.  But this case suggested more rather than less protection, and there seem to be faint indications that the Justin Carter case, which I've been occasionally checking back on since 2013, might have finally been affected by it.  (do you think they're right about the "Vacation Letter"?  Why no news of the ending then?) Wnt (talk) 02:15, 27 December 2016 (UTC)