Tag: first amendment

Court Season

The Supreme Court is set to issue a number of landmark ruling this month (saving them for the end of the session, as usual). You can read Doug Mataconis or Evan Bernick for good conservative takes. I’ll do quick hits with how I think the Court will rule and how I think the should rule. And, of course, as each ruling comes down, I’ll put up a post.

The thing about the Roberts Court is that they are very conservative. Not in the political sense, but in the temperamental one. They prefer not to make broad sweeping decisions that upend masses of law and precedent. They tend to defer to legislatures. They like to rule narrowly and specifically. Roberts works very hard to build consensus (see last year’s slew of 9-0 decisions). They have been slow to defend civil liberties except for the First Amendment. So while I expect some landmark decisions, I don’t expect any that will radically reshape the law.

I do expect, however, to hear the losing side of several cases scream that the Court has exercised unprecedented power, set fire to the Constitution and brought plagues of locusts. Whichever side they oppose will be acting in a purely partisan fashion while their side are zealous defenders of the faith. You can decide if that hysteria is warranted.


The Forest Service Charges for Freedom

What on Earth?

The U.S. Forest Service has tightened restrictions on media coverage in vast swaths of the country’s wild lands, requiring reporters to pay for a permit and get permission before shooting a photo or video in federally designated wilderness areas.

Under rules being finalized in November, a reporter who met a biologist, wildlife advocate or whistleblower alleging neglect in any of the nation’s 100 million acres of wilderness would first need special approval to shoot photos or videos even on an iPhone.

Permits cost up to $1,500, says Forest Service spokesman Larry Chambers, and reporters who don’t get a permit could face fines up to $1,000.

First Amendment advocates say the rules ignore press freedoms and are so vague they’d allow the Forest Service to grant permits only to favored reporters shooting videos for positive stories.

Well, duh. The Forestry Service is claiming they are protecting the wilderness from being exploited for commercial gain, as dictated in the Wilderness Act of 1964. I don’t have the exact language of the law in front of me, but that reeks of bullshit. The Act has been in place for fifty years and we haven’t needed this. It’s one thing to enact rules to prevent a camera crew from traipsing through and destroying protected areas. But requiring a permit reeks of censorship. Mataconis:

What if, for example, a national or local television news reporter were covering a story based on allegations of malfeasance by Forest Service officials that made taking video on Forest Service land relevant? How, in that context, is a reporter supposed to apply for a permit to begin with? From the descriptions of the process, it appears that media outlets are required to provide some kind of justification for why they need the video in question, and in this case that would require the reporter to either lie to a government official or potentially reveal the story they are working on to people who are the focus of that investigation. In a case like that, if a permit is denied, the strong implication would be that the agency had something to cover up because of the manner in which it was restricting press access.

Gee. I have no idea why a government agency might want to vet what’s being reported out of their bailiwick.

Don’t think is happening in a vacuum. If the Forest Service can restrict media access to public lands, other agencies will start restricting media access as well. This is a trial balloon by the Feds. And it needs to be popped.

Security Letters In The Lurch

So this happened:

They’re called national security letters and the FBI issues thousands of them a year to banks, phone companies and other businesses demanding customer information. They’re sent without judicial review and recipients are barred from disclosing them.

On Friday, a federal judge in San Francisco declared the letters unconstitutional, saying the secretive demands for customer data violate the First Amendment.

The government has failed to show that the letters and the blanket non-disclosure policy “serve the compelling need of national security,” and the gag order creates “too large a danger that speech is being unnecessarily restricted,” U.S. District Judge Susan Illston wrote.

She ordered the FBI to stop issuing the letters, but put that order on hold for 90 days so the U.S. Department of Justice can pursue an appeal to the 9th U.S. Circuit Court of Appeals.

The NSL’s do not allow agents to examine the content of communications, but look for patterns. But there is zero judicial oversight and, as mentioned, the gag order prevents recipients of NSL’s from even telling people what they’re doing, placing them under enormous stress.

I suspect — or maybe hope is the right word — that the Ninth Circus will also have issues with the security letters on both First and Fourth Amendment grounds (they recently put limits on the governments ability to search your computer at the airport). The FBI issues tens of thousands of these a year and a 2007 investigation found that they were very lax in following the few rules that applied to them (Surprise! A federal agency was abusing the rules in the absence of oversight!). The Second Circuit demanded the FBI notify recipients that they can challenge the gag order in Court but EFF is of the opinion that it’s not enough and it’s not being done consistently.

The secretive NSL’s create another issue beyond First and Fourth Amendment concerns. One of the problems with challenging the Surveillance State is that people being surveilled often don’t know it. This makes it very difficult to challenge surveillance powers in Court because, in the Clapper decision last week, SCOTUS ruled that challengers lack standing unless they personally have been subject to a problematic search. This puts civil libertarians in a catch-22. You can’t know if you’re being surveilled but you can’t challenge the law unless you know you’re being surveilled.

In the end, a lot of this is going to end up in the lap of the Supreme Court. I have little faith that they will rein in the government now that Stephens is gone. But it’s possible, given Scalia’s occasional sympathies toward civil liberties, that the facade of unilateral unlimited government surveillance power could be cracked.

Monday Must-Read

Ken at Popehat has an amazing compilation of ‘The Year in Blasphemy” where he basically lists every documented case he could find of someone being accused of blasphemy or punished for it. It’s a must-read (actually, Popehat is a must-read full stop).

Money quote, which should be tattooed on every apologist for radicals:

There you have it — a year of what Eric Posner might call “other values and the need for order,” a year of what Anthea Butler might call incidents of people being “inflamed,” a year of what Garrett Epps might say are different understandings of freedom and different views of the “essence” of free speech, a year of the competing “international norms” referred to by Professor Peter Spiro. These are the values to which we, as Americans, are invited to yield.

I think not.

As the Posners and Butlers and Eppses and Spiros of the nation have begun to speak in the wake of Benghazi, others have refuted them. Some have pointed out a truth illustrated by this year of blasphemy: anti-blasphemy laws are a tool for religious majorities to suppress religious minorities, and a mechanism for the more powerful to oppress the relatively powerless, and tend to be used in a lawless manner resembling modern witch hunts. That is the norm we are asked to embrace.

The “witch hunt” verbiage is particularly apt. As you read over the list, the thing that jumps out is how arbitrary this is. Basically, these Islamist governments (and, to be fair, a handful of Christian fundamentalists) arbitrarily crack down on anyone who catches their attention. All you have to do to ruin someone’s life if accuse them of slandering Muhammed or defiling or Quran or having a smart look on their face during prayers. And then the full power of the religious state comes down on them, resulting in prison, lashes, ruination and sometimes death.

(A lesser version can be seen in laws in places like the UK which punish people for saying offensive things on the internet. Popehat again, on the case of Michael Woods, now sentenced to three months in jail for making sick comments about a murdered girl. As noted in the link, this law is applied completely arbitrarily. A million bad comments can go by without a trace. But if you hit a celebrity or a high-profile criminal case and your comments happen to get the attention of the media … well, enjoy prison.)

We simply can not waver in our defense of the First Amendment. To falter even for a moment is to invite the fanatics in, to give them the power to single out a citizen and destroy his life; perhaps because of something he said but more likely because he happened to piss them off. While Obama’s speech on this subject to the UN was problematic, there was one passage that was worth quoting:

I know there are some who ask why we don’t just ban such a video. The answer is enshrined in our laws: our Constitution protects the right to practice free speech. Here in the United States, countless publications provoke offense. Like me, the majority of Americans are Christian, and yet we do not ban blasphemy against our most sacred beliefs. Moreover, as President of our country, and Commander-in-Chief of our military, I accept that people are going to call me awful things every day, and I will always defend their right to do so. Americans have fought and died around the globe to protect the right of all people to express their views – even views that we disagree with.

We do so not because we support hateful speech, but because our Founders understood that without such protections, the capacity of each individual to express their own views, and practice their own faith, may be threatened. We do so because in a diverse society, efforts to restrict speech can become a tool to silence critics, or oppress minorities. We do so because given the power of faith in our lives, and the passion that religious differences can inflame, the strongest weapon against hateful speech is not repression, it is more speech – the voices of tolerance that rally against bigotry and blasphemy, and lift up the values of understanding and mutual respect.

I know that not all countries in this body share this understanding of the protection of free speech. Yet in 2012, at a time when anyone with a cell phone can spread offensive views around the world with the click of a button, the notion that we can control the flow of information is obsolete. The question, then, is how we respond. And on this we must agree: there is no speech that justifies mindless violence.

I quoted Salman Rushdie some time ago. Worth quoting him again:

Of the current confrontation, [Rushdie] says, “I think it’s very important that we hold our ground. It’s very important to say, ‘We live like this.’ ” Rushdie made his post-fatwa life in America in part because he reveres the freedoms, including the freedom, not so protected in other Western democracies, to say hateful, racist, blasphemous things.

“Terrible ideas, reprehensible ideas, do not disappear if you ban them,” he told me. “They go underground. They acquire a kind of glamour of taboo. In the harsh light of day, they are out there and, like vampires, they die in the sunlight.”

Bookmark that Popehat post. Read it any time you waver in the defense of free speech. Because if we ever give in, that’s the kind of world we will live in: a world where neighbors can accuse neighbors; a world where the socially and politically powerless can have the power of the state turned on them; a world in which law is even more arbitrary and oppressive than it already is; a world in which women and child can be beaten, lashed, assaulted and even killed with the smiling approval of the state.

Pity the Poor Commenters

Update: It would appear this is an April Fool’s joke. The thing is, it’s utterly believable. If it is a joke, I fell for it. I’ll refrain from flushing this post down the memory hole to spare my ego.

Feel free to slam Lieberman in the comments anyway. He’s still a Nanny State fuckwad, even if this is a hoax.

I’m just going to say what Alex and Jim already know: Joe Lieberman has no business being in office:

Section 230 (47 U.S.C. § 230) grants immunity to Internet Service Providers from being held liable for the comments of third parties to their websites. Basically, it’s what shields review sites like TripAdvisor or Yelp from butthurt business owners holding them liable for disgruntled third parties’ reviews. It is also what allows all of you to say whatever you want in the comments without The Legal Satyricon being taken to task for it (legally).

However, Lieberman’s proposed amendment would change that. The new language reads:

NoA provider or user of an interactive computer service shall may be treated as the publisher or speaker of any information provided by another information content provider.”

Although Lieberman is touting this amendment as an anti-terrorist effort, this action will have a chilling effect on all forms of Internet speech. Service providers from Comcast to Consumerist may now be treated as publishers to content posted to their websites. This opens up the possibility that review sites and others that rely on third parties for content will be held responsible for those very same deranged, sub-literate contributions. Lieberman’s proposed amendment will have a chilling effect on free speech, as any site that does not want to drown in legal bills likely won’t accept anonymous comments. If you’re a sissy with paper-thin skin or an obsession with “bullying,” rejoice, I suppose.

Any time legislation is justified because of terrorism, I become immediately suspicious. Terrorism is the “think of the children” of our time. If Congress proposed legislation allowing members to sodomize random members of the public (The ‘Please Use KY’ Act of 2012), they would justify it as an anti-terror effort.

Right now, you are only responsible for what you put on the web. If someone were to, hypothetically, write a libelous post about a US Senator having no testicles and the IQ of a drapery rod, only the poster would be responsible. But under the revision, the website, host and IP provider could all be held liable.

As far as I know, there is no federal anti-SLAPP provision. So this will open the door to anyone silencing anyone with a blizzard of lawsuits against intimidated hosts and IP providers. And it wouldn’t be just angry business owners. Next time SOPA comes up, websites criticizing it could endure an avalanche of libel suits (remember Chris Dodd’s tantrum). Popehat‘s commenters have pointed out that such lawsuits could targeted against ripoff report websites, sites that carry escort ads and sites that criticize the government (one anti-TSA blog gets 10% of its traffic from TSA itself).

Joe Lieberman has always been a Nanny State twerp. With this, he has crossed the line into being a full-on Nanny State fuckwad. We need to get him away from power even if it takes a catapult.

Kids Say The Darnedest Things

Free for me, but not for thee…….don’t recall me reading about this attitude as real prevalent with the founding fathers. But it has been very prevalent within the ranks of the left. We see this in many ways, from the vigorous effort to re instate The Fairness Doctrine to even the very definition of diversity as being applied only in terms of skin color or gender, not diversity of ideas or beliefs. Thus, we have the next generation of leaders spoon fed a limited application of one of this countries greatest freedoms. Check this video out concerning those best and brightest and how they would continue the tradition of unfettered speech:



Alright, to be fair, it would take some critical thinking skills, some dot connecting, to associate banning those with different points  of view from the radio as some how denying them free speech. But notice that the interviewer even tried to give them a heads up, several of them, but it just did not register. Bless their pea brains but maybe they thought that this was not really about free speech since these radio blowhards still have their newspaper columns, or their website, or the blogs, or other means to spread the hate. But when presented with only two concepts, removing evil people from the radio, evil people/radio,they could not fight their reflective nature and grabbed that pen with gusto.


Even the guy at the 1:30 mark, who almost came to his senses and spotted the prank, even he signed the petition. And the guy at the 1:50 mark, he is going to be your boss in about 10 years, just don’t call him stupid to his face.


There is a great Howard Stern bit where he sent a reporter to Harlem before the last presidential election and asked some questions, all the while switching the position of the candidates, funny as hell


The loss of liberties will not come at the end of a gun, but will die from neglect and starvation.

The ACLU and Terry Jones

This is interesting … but thankfully not surprising:

The American Civil Liberties Union of Michigan has weighed in on the Terry Jones saga, filing a brief supporting the controversial pastor’s right to protest this afternoon in front of a mosque.

In the eight-page brief to the 19th District Court, the ACLU argued that efforts to make Jones pay a peace bond to protest outside the Islamic Center of America constitute prior restraint of his rights to free speech and assembly.

But prosecutors argued in court today that Jones’ protest could compromise public safety because the Ford Road mosque is located in a heavily trafficked area near churches, a senior center and schools. Police also argued that Jones — who has burned a Quran — has had threats against his life.

The city has said Jones can move the protest to other “free speech zones” elsewhere in the city or pay a peace bond — as much as $100,000 — to cover police costs if he demonstrates at the mosque. He refused, setting up today’s court battle.

It’s fairly obvious to me: Terry Jones is a piece of shit; even a piece has First Amendment Rights.

The courts have been fairly clear on this: people can not be charged a fee for police protection because their speech might provoke violence. This is why everyone from the KKK to the Illinois Nazis gets to have their say. The First Amendment does not protect you from the consequences of your speech. If Terry Jones starts a riot or blocks traffic or something, he can be punished. But he’s an American. He gets to say whatever he wants. And good on the ACLU for standing with this vile creep. I just suggest they take a shower afterward.