Integrity of Freedom:  Actual Selves in a Regime of Authority

Stage 1:  conception of the whole.

Outline of the project

Introduction: Integrity of movement in birds, persons and music.
  1. Images of freedom

    1. Images of freedom are based on physical materials that undergo transformations — e.g., transformations of water that produce snowflakes — and on movements of animal bodies.

    2. A psychology of personal freedom integrates movements and feelings (and other images) that are grounded in a person's gut and viscera, skin, heart, exterior senses, pelvis and legs, sex-life, hands and arms, breath, voice, mouth, face, mind, and spirit.

    3. Development of personal freedom occurs during activities involving lifestyle habits, play, goals, adventure, skills, knowledge, work, property, money, arts and technology.

    4. Cultivation of collective freedom occurs in families, friendships, cohorts, clans, contests, religions, schools, communities, markets, businesses, institutions and politics.

    5. Development of freedom can guide a society as a value, goal and standard for action.

    6. Actual exercises of freedom begin, grow and succeed through the flow of a universal integrating and liberating power.

  2. Exercises of freedom in a regime of authority

    1. Constructions begin with a polarity between a free body and an authoritarian mind.

    2. Actual practices of freedom and authority provide substance for constructions.

    3. Constructions operate in correlative domains of freedom and authority.

    4. Domains of authority are organized as: arbitrary, hierarchical or formal; rigid or responsive; improvisational or regimented; short-sighted or long-sighted.

    5. Reciprocal accommodations between practitioners of freedom and responsive authorities can establish structured domains of freedom in a regime of authority.

    6. Integrity, tyranny and betrayal in exercises of authority respectively foster, corrupt and suppress exercises of freedom in a regime of authority.

    7. Intentional practitioners of freedom can combine various methods of engagement with and separation from authority.

    8. Freedom leads to its own subordination to higher values of family, society, life and God.

Extracts from introductory materials: (Integrity of movement in birds, persons and music).

Aspects of integrity of movement.

Using sweeping terms and ignoring exceptions, we might say that every possible feeling produces a movement, and that the movement is a movement of the entire organism, and of each and all of its parts.

William James, Principles of Psychology (1890), The Production of Movement.

The Form, a slow, relaxing series of movements based on animal behavior, is designed to develop calm, peace and gentleness within us. ... the Form is done as slowly and smoothly as clouds drifting in the sky. ... Many lessons are learned from the smoothness of the Form. While smooth, the movements are not mushy, but crisp and precise. Each movement is clearly finished before proceeding on to the next. Our attention is focused on the present moment.

To concentrate on the present is to trust in the future and in your own power. As a present-minded student, you trust that in the next second you will make the proper movement. You don't have to think about it first. You don't have to check up on yourself. The next second, your inner power will be there to do the right thing, just as it is there this second. This inner intelligence, which we call Body-Mind (BM), does not need the thinking mind to tell it how to do the Form.

Momentum is felt as slow-motion waves flowing through the body. As an arm moves to the right, a wave of momentum slowly spreads through it until, reaching the fingertips, the wave slowly bounces back through the center of the body and perhaps into the opposite leg, which steps out next. Thus, these waves of momentum splash in slow motion from one part of the body through the center and into another part. It is a very sensuous experience.

The Form is an art which the BM can really "sink its teeth into" and thereby exercise its abilities. Motion is the canvas of this art, and the eddies and currents of the waves of momentum are the paints. BM paints a moving internal picture with momentum. Each eddy and current has its own set of qualities, just as each brush-stroke has its own quality and adds a new color to the canvas.

Bob Klein, Movements of Magic: The Spirit of T'ai-Chi-Ch'uan (1980), The Form (I) (excerpts)

A melody is a series of tones that makes sense.

A melody is a whole — and a temporal whole, a whole whose parts are given as a sequence, as temporal succession. ... it is "the whole which is more than the sum of its parts," a Gestalt ... [citing M. Werthelmer, W. Koehler and K. Koffka.]

The totalities that are called Gestalten are distinguished by the characteristic that in them the individual part does not acquire its meaning from itself (or not exclusively from itself) but receives it from the whole. We know that melodies exhibit this characteristic to an especially pronounced degree; taken by itself, the individual tone is meaningless, mere sound; it is only by entering into relation with other tones, and vice versa, that it acquires musical meaning, becomes a part of the totality "melody."

The Gestalt psychologists have ... appl[ied] themselves principally to the investigation of spatial Gestalten ... where the parts of a whole occur not successively but together, are all present at once...

Let us summarize: melody is temporal Gestalt; temporal Gestalt presuppose that a temporal whole — a whole whose parts with the exception of the one part present at the moment, either are no longer there or are not yet there — is given to us in an immediate experience. This is precisely what happens in hearing a melody. The existence of the individual tone in a melody is being directed toward what no longer exists and what does not yet exist; thus past and future are given with and in the present and are experienced with and in the present; hearing a melody is hearing, having heard, and being about to hear, all at once.

What melody is on a small scale, the total course of the musical work is on a large scale — a whole that unfolds in time and is so constituted that, though its individual members appear one after another, the whole, in order to be present, does not have to wait for member to be added to member, but is, so to speak, always there, not factually, as with spatial Gestalt, but as direction, as oriented tension.

Victor Zuckerkandl, Sound and Symbol: Music and the External World (1956) at 15 (initial definition of melody) and excerpted from "The Musical Concept of Time / Digression II: Temporal Gestalten."

This integrated movement of a bird.

I observe a particular movement of a bird — this movement — as the bird hops and flaps in a tree from one branch up to another branch. There are different ways to perform such a movement that may depend on the species of the bird, any injuries previously suffered by the bird and/or external circumstances of the movement such as winds. I observe an apparently healthy bluejay making this movement on a tree outside my window on a still, sunny day.

Before this movement, the bird is alert with its body in a balancing condition and with toes curled around the perching branch. The head is twitching, which I interpret in terms of visual focusing on the goal of this movement. The course of observable movements of the body starts with bending of the legs; then the wings open up while the legs push down; next, the wings close down forcefully and the bird detaches upward from the springy perch; the neck extends while the legs bend fully, bringing the feet up close to the body; a reversing upward wing-flap slows the bird while legs open and toes curl around the new perch; movement slows and stops as legs straighten, wings fold in and the bird returns to an alert, balancing condition.

I suggest that this movement of a bird requires organized and coordinated movements of many different parts of the bird. There are a great number of movements of separate muscles where each movement must be accurately timed, each with a certain amount of strength. The many muscles of a bird, e.g., about the neck, along with their intricate attachments to the spine, are revealed by dissection of roasted chicken. Individual movements must be integrated to produce "a movement of the entire organism, and of each and all of its parts." (William James, above.) Integration includes both a single generative form that organizes all parts of the integrated movement and also interactive coordination between and among parts according to feelings that arise during the integrated movement. Successful performance of the integrated movement requires unification of form and feelings. The capacity of a bird to perform this integrated movement with easy success seems marvelous to me.

Birds successfully perform such hops and other movements millions of times during their lives, as demonstrated by a multitude of online videos. I marvel at all such successes and at the enormous diversity of movements in some 10,000 species of birds. Marvelous movements of birds include movements of flying around trees and branches in a forest; movements during flocking and migration; movements of foraging and feeding; movements of preening and cleaning the bird's own body and bodies of mates and young; movements of contesting and fighting for food, territory, mates and clans; movements of building nests, of brooding eggs and of rearing young; movements of birdsong.

At the same time, certain behaviors of birds are said to be "stupid." This word collects phenomena where birds persist in failed attempts at performance or in maintenance of futile or even suicidal behaviors. In The Minds of Birds, Alexander Skutch, an advocate of avian intelligence and consciousness, has a Chapter 12 titled "Apparently Stupid Behavior." Birds have limited capacities to acquire new skills or to avoid dangers of a novel kind such as wind turbines that generate electricity. On the one hand, parents and mates recognize individuals in crowds of other birds and at long distances. On the other hand, a duck chick may attach to a boot as "mother;" mothers may be unperturbed by switches and changes in chicks carried out by a researcher in their absence; and birds may try to mate with crude images of wire and cloth. Marvelous movements of birds co-exist with their stupidity: this is another source of marvel, especially if such notions are extended to human beings. We can judge birds to be "stupid" because we possess additional kinds of intelligence, such as a "fluid or innovative intelligence, to which we owe the inventions, the moral and intellectual advances, that are the foundations of civilized life, and with us are transmitted from generation to generation by example and learning." (Skutch, Ch. 11, "Intelligent Birds," p. 112.) Another possible "explanation of some of the 'stupid' things" done by birds is that "they are more strongly influenced by what their whole experience and that of their ancestors, tells them ... than by the immediate indications of their senses." (p. 66.)

Context and background of this project.

Stage 1 of this project is set forth in outline form above as a conception of the whole project. I am currently exploring and writing about separate subject matters. Your suggestions are welcome.

This project stands independently of any other project and no knowledge of my prior projects is required. At the same time, this project advances a course of development and of online publication that extends back many years. The most recent predecessor project, How to solve "free will" puzzles and overcome limitations of platonic science (2016 ed.), is available as a .pdf file (...); see also the web page discussion of that project (...).

The course of development includes prior technical designs for models of sensory-motor activities of animals, e.g., An Eye for Sharp Contrast (2010) (...) and the ongoing "bursters project," where the current version is Elemental Constructions in Virtual Energy Domains: Forces and Balances, Movements and Measures, Forms and Feelings, Action and Image, Constraints and Freedom ( ... ) (.pdf, 889 kB), discussed on a web page ( ... ).

My concept of freedom is grounded in a physical principle and process that I call Shimmering Sensitivity. Shimmering Sensitivity is defined by reference to operations of Quad Net devices as they pass through a critical moment. During a critical moment, devices generate multiple possible movements; and multiple possible movements change into a single actual movement. At first multiple possible movements co-exist in a "shimmering" way; then, variable "sensitivities" to competing influences lead to selection of one actual movement. The process resembles an athletic footrace where multiple possible winners change into a single actual winner; the lead may change several times (like shimmering) and sensitive personal responses to events during the race may decide the actual winner. The process also resembles or models a person choosing a meal from a menu in a restaurant. Multiple possible meal orders change into a single actual meal order. I suggest that something like Shimmering Sensitivity is operating in brains and spines of vertebrate animals (and in brains and bodies of many invertebrates) and, further, that similar operations can also be embodied in a "kit of parts" of proposed new devices that resemble electronics devices.

I suggest that a system of such devices can mimic sensory-motor activity of an animal such as itching and scratching. The general principles is that during a critical moment in a cycle of operations, while the system is in a condition of Shimmering Sensitivity, multiple possible movements change into a single actual movement. As applied to the particular task, multiple possible scratches turn into a single actual scratch or no scratch at all. Diverse influences can affect the resulting movement. In anticipated constructions, many modules with overlapping and overarching cycles generate streams and waves of such critical moments. With enough modules and additional inputs, scratching movements can be developed into a stream of finger strokes of a piano or computer keyboard. Technical principles of Shimmering Sensitivity and its basis in the physics of materials are set forth at the Quad Nets website ( ... ), which includes prior publications not available at this site.

The course of development also includes investigations into music discussed in web pages and materials, "Shimmering Silences in Beautiful Music / An inquiry into the nature of personal experience" (2009) (...) and in technical designs "An Ear for Pythagorean Harmonics" (2009) ( ... ) and "A Procrustean Group of Harmonies" (2010) ( ... ).

The course of development also includes prior discussions of a body-based psychology of freedom, as set forth on the web page   ( ... ) "Feelings, Forms and Freedom" (2013).

The course of development also includes the author's experience as an attorney representing clients in cases in the Ninth Circuit Court of Appeals involving freedom of technological innovation (the Fung) case and religious freedom (the Boardman case). Pertinent materials are listed below, with links to copies.

Author Background.

B.S.E.E., MIT, 1968, Tau Beta Pi.
M.A., Physics/Materials Science, UC Berkeley, 1971.
J.D., UC Berkeley, 1974; Chairman, Moot Court Board.
California State Bar (Admitted 1974, currently inactive).

Boardman case.

Proceedings in the Ninth Circuit Court of Appeals

On May 7, 2015, the Ninth Circuit rejected plaintiff's petition for rehearing in the case of Elizabeth Boardman v. Commissioner of Internal Revenue, 110 A.F.T.R.2d (RIA) 2012-6987 (E.D. Cal. 2012), affirmed March 12, 2015. Plaintiff's case has been dismissed.

The Petition for Rehearing and for Rehearing en banc... ) (.pdf file, 421 kB), was filed by Boardman on March 26, 2015 in response to the Decision of the Ninth Circuit Court of Appeals, which rejected Boardman's claim. See Decision of the Ninth Circuit Panel affirming the District Court filed on March 12, 2015, ( ... )  (.pdf file, 184 kB).

Extracts from the Petition (edited and re-arranged):

Plaintiff, a lifelong Quaker and peace activist, seeks restoration of religious freedoms of Quakers that were established during the 1980's and that expressly include a right to refuse to pay income taxes voluntarily, if the taxpayer files a correct tax return. The IRS collects taxes by involuntary means, plus statutory penalties, interest and collection charges. Quakers who abhor participating in violence, even indirectly, have maintained such religious practices of "war tax resistance" since the 17th century.

Plaintiff alleges that the IRS acts unlawfully to suppress religious practices of war tax resistance.

Under the Tax Equity and Fiscal Responsibility Act of 1982 (TEFRA), protestors should not be labeled "frivolous" or penalized if they reported "the correct amount due and explained in their attached statement their refusal to pay because of their objection to war." (Jenney v. U.S., 755 F2d. 1384 (9th Cir. 1985).)

See also Kahn v. U.S., 753 F. 2d 1208 (3rd Circuit 1985) ("The civil penalty statute does not prohibit her letter of protest."); Eicher v. U.S., 774 F. 2d 27 (1st Cir. 1985) ("penalizes only noncompliance with federal tax requirements, not taxpayers' freedom of expression.")

Plaintiff's Complaint quoted text from the online IRS website (since changed) that referred to Rev. Rul. 2005-20:

This revenue ruling describes as frivolous the refusal to file returns or pay taxes based on moral, religious or ethical objections to the government programs or policies for which the taxes will be used.

The Complaint alleged that the IRS applied a "frivolous" label to Plaintiff's attempt to carry her witness to tax court and that the IRS disregarded authorized procedures and used bureaucratic suppression, misdirection and misrepresentation against her.

Apparently, tax returns with enclosed religious protest messages may be flagged or labeled as "frivolous" and selected for adverse treatment; returns without full payment and without messages go to ordinary collections processing.

As stated by the District Court Decision when it dismissed the action:

Plaintiff claims that Defendant "employs punitive procedures and/or policies against persons who fail or refuse to make full payment of taxes on grounds of religion or conscience." Defendant's practices, according to Plaintiff, are discriminatory and seek to suppress conduct undertaken for religious reasons. In fact, Plaintiff alleges that Defendant intentionally frustrated her religious beliefs by depriving her of rights and procedures that would have been available had she not asserted a religious motive for withholding a portion of her taxes.
The Appeals Panel Decision ruled:
"the Anti-Injunction Act (AIA) precludes federal jurisdiction here..."
The Anti-Injunction Act provides that: "no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person ...." 26 U.S.C. § 7421(a).

An authoritative decision of the District of Columbia Circuit rejects blanket preclusion of federal jurisdiction over IRS misconduct and prescribes a more careful inquiry.

Cohen v. U.S., 650 F.3d 717 (D.C. Cir. 2011) (en banc) involved disputes over IRS procedures for certain tax refunds. The court prescribed a fact-based approach for claims of alleged IRS violations of legal or constitutional taxpayer rights in cases where plaintiff does not challenge a tax assessment or collection.

Here, correct self-assessment of tax by the taxpayer is a premise of Plaintiff's claims. TEFRA and Jenney authorize immediate collections. Plaintiff prefers immediate collections to minimize penalty and interest charges.

IRS selections of conservative political groups for employment of methods of bureaucratic suppression were revealed in May, 2013, shortly after the Opening Brief in this appeal was filed. Allegations in complaints filed by such groups against the IRS resemble those stated herein, with a "BOLO" (Be On the Look Out) keyword list playing a role like the "frivolous" label here, flagging a file for adverse action by means of an unlawful test. The Cohen approach to the AIA has been applied in such cases with results favorable to the plaintiffs. (NorCal Tea Party Patriots v. IRS, 2014 U.S. Dist. LEXIS 97229 (S.D. Ohio 7/17/14); Freedom Path v. Lerner, 2015 U.S. Dist. LEXIS 22025 (N.D. Tex. 2/24/15).)

As an independent reason for a rehearing, preclusion of Quaker religious practices from protections of Religious Freedom is contrary to the Religious Freedom Restoration Act of 1993 (RFRA), which amended the AIA. (42 U.S.C. § 2000bb-3(a).)

In Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014), the Court held that RFRA established a "very broad protection for religious liberty." Dissenters objected to "a decision of startling breadth."

In Holt v. Hobbs, 135 S. Ct. 853 (2015), the Supreme Court ruled that the Arkansas Department of Correction violated RLUIPA (the Religious Land Use and Institutionalized Persons Act of 2000, which closely resembles RFRA but applicable to State functions rather than federal functions) when it failed to accommodate an inmate, "a devout Muslim who wishes to grow a 1/2-inch beard in accordance with his religious beliefs."

The Holt Court ruled: "RLUIPA requires us to 'scrutiniz[e] the asserted harm of granting specific exemptions to particular religious claimants' and 'to look to the marginal interest in enforcing' the challenged government action in that particular context," quoting from the Hobby Lobby decision.

Without taking evidence, the District Court below found:

Here, while Plaintiff claims she does not wish to interfere with tax assessment and collection, ... her complaint is actually a thinly-veiled attempt to force extensive and burdensome changes to Defendant's already complex taxation system. ... The Court has no doubt that ruling in Plaintiff's favor would negatively impact Defendant's established methods of assessing taxes. It is also clear that compelling Defendant to adopt procedures catering to the religious or moral views of every taxpayer would significantly burden tax collection. Indeed, the costs of administering the tax system may become prohibitively expensive, threatening the system's integrity, if Defendant allocated tax revenue based on the individualized beliefs of each taxpayer.
Discussing a position similar to that of the District Court, the Holt Court stated:
At bottom, this argument is but another formulation of the "classic rejoinder of bureaucrats throughout history: If I make an exception for you, I'll have to make one for everybody, so no exceptions." [Citation.] We have rejected a similar argument in analogous contexts, [citations], and we reject it again today.
Plaintiff submits that Holt requires RFRA determinations to be made on the basis of evidence. Under Holt, a determination by a district court on the basis of "no doubt," "it is also clear" and "costs ... may become prohibitively expensive" is insufficient when the federal government seeks to extinguish a religious practice.

Consideration of merits and possible remedies in this case suggests that a minimum RFRA accommodation or constitutional protection should define categories of fully protected protest conduct (correct return filed, no tax remains due), partially protected conduct (correct return filed, refusal to pay full tax for religious reasons) and unprotected conduct. Penalties and procedures, e.g., IRS exercises of discretion, should conform to rigid neutrality when dealing with religious protestors. Harsh IRS collection methods directed at partially protected religious protestors might require some limitations. Regardless of specific terms, an accommodation or constitutional protection would clarify relations between religious tax protestors and the IRS.

Any accommodation would be drafted by the IRS with oversight by the District Court, subject to possible objections, suggestions and appeal by Plaintiff. Court approval of an accommodation would likely moot other issues.

For the foregoing reasons, Plaintiff requests a rehearing or rehearing en banc

Prior Proceedings (in reverse chronological order)

... )  Letter to the Court filed by the IRS on January 25, 2015 concerning the decision in Holt v. Hobbs that was decided by the Supreme Court on January 20, 2015 (.pdf file, 102 kB)

... )  Letter to the Court filed by Boardman on January 30, 2015 concerning the decision in Holt v. Hobbs that was decided by the Supreme Court on January 20, 2015. (.pdf file, 279 kB)

... )  Letter to the Court filed by the IRS on July 10, 2014 concerning the decision in Burwell v. Hobby Lobby Stores, Inc. that was decided by the Supreme Court on June 30, 2014. (.pdf file, 102 kB)

... )  Letter to the Court filed by Boardman on July 7, 2014 concerning the decision in Burwell v. Hobby Lobby Stores, Inc. that was decided by the Supreme Court on June 30, 2014. (.pdf file, 831 kB)

... )  Appellant's Reply Brief, filed by Boardman in the Ninth Circuit Court of Appeals on August 15, 2013. (.pdf file, 274 kB)

... )  Brief for the Appellee, filed by the Government in the Ninth Circuit Court of Appeals on July 3, 2013. (.pdf file, 377 kB)

... )  Appellant's Opening Brief, filed by Boardman in the Ninth Circuit Court of Appeals on May 8, 2013, docket number 13-15022. (.pdf file, 647 kB)

District Court Proceedings

... )  Memorandum and Order dismissing the action, filed by the District Court on December 6, 2012. (.pdf file, 145 kB)

... )  United States' Reply in Support of its Motion to Dismiss filed by Defendant United States (Commissioner of Internal Revenue) on August 15, 2012. (.pdf file, 193 kB)

... )  Memorandum in Opposition to Motion to Dismiss filed by Plaintiff Elizabeth Boardman on July 31, 2012. (.pdf file, 311 kB)

... )  Memorandum in Support of Motion to Dismiss filed by Defendant United States (Commissioner of Internal Revenue) on June 29, 2012. (.pdf file, 279 kB)

... )  Complaint filed March 13, 2012:

Elizabeth F. Boardman v. Commissioner of Internal Revenue, United States District Court, Eastern District of California, 2:12-cv-00639 MCE GGH. (.pdf file, 242 kB)

Fung case.

Columbia Pictures Industries, Inc. et. al. v. Gary Fung and isoHunt Web Technologies, Inc.

... ) Opening Brief on behalf of Gary Fung and isoHunt Web Technologies, Inc.

... ) Opposition Brief on behalf of plaintiffs Columbia Pictures Industries, Inc. et. al.

... ) Reply Brief on behalf of Gary Fung and isoHunt Web Technologies, Inc.

Hearing before the Ninth Circuit Court of Appeals on May 6, 2011, Ira P. Rothken, Esq. appearing for appellants Gary Fung and isoHunt Web Technologies, Inc.:

... ) Panel decision of the Court of Appeals (filed 3/21/13).

... ) Fung's petition for rehearing or rehearing en banc (filed 4/3/13). The petition was denied on May 15, 2013.

Email should be directed to the address shown in the adjoining image.

Copyright © 2016 Robert Kovsky

August 2016.