In the through-the-mirror world we now live in, people who once unambiguously supported free speech now are finding plenty of things they want censored.
Chief among those opposing ideas they want silenced are Donald Trump’s. His remarks — from the silly, labeled unpresidential, to the more extreme labeled racist/sexist/misogynist/hateful — have attracted a surprising group of otherwise intelligent people demanding he be shut up.
Salon to Les Barricades!
An article on Salon made the case, specifically demanding Twitter ban Trump. Here’s one representative paragraph:
Republicans may not be willing to hold him [Trump] accountable for his dreadful behavior, but the rest of us don’t have to fall in line. Trump has repeatedly signaled his enthusiasm for dictators, which gives us serious reason to fear he may be eyeballing such powers for himself. Banning his Twitter account would be an important act of resistance.
(Of course American presidents have supported a long line dictators — pick your faves, from Stalin in WWII to Somoza to the Assads to Saddam –without themselves becoming dictators, but no matter, we’re beyond history here.)
But Twitter Has Terms of Service!
Twitter, Facebook, etc., are private businesses and thus not subject to the First Amendment (which only restricts the government from crushing speech) and can make any usage rules they like. But in reality social media outlets have in our age become the public squares of the day, and must be seen and treated as such. For example, when they actually had the guts, good newspapers would go out of their way to print opposing viewpoints, recognizing their status as a public forum.
So yes, yes, Twitter can ban redheaded users (sorry, gingers!) if they want to, but it would be detrimental to our broader national commitment to hearing each other out, including hearing from people we don’t agree with. No, ESPECIALLY hearing from people we don’t agree with. Of course there are also the problems that come up once you start banning people, given how opinions of what should be “allowed” can change as quickly as overnight election evening.
So the fact that an entity can ban speech doesn’t mean it should.
In a broader context, it is also always helpful to remember there are no laws against “hate speech” that prevent people from making rough political statements, or even stupid ones. There are laws against inciting violence “Kill all the redheads” but not against saying they suck or are monkeys.
“You Can’t Yell Fire in a Crowded Theater”
That paraphrase of a paragraph from a 1919 U.S. Supreme Court case, Schenck v. United States, 249 U.S. 47 (1919), written by Justice Oliver Wendell Holmes, is often cited as justification for limiting free speech. Here’s what Holmes wrote:
The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger.
The statement says the First Amendment doesn’t protect false speech that is likely to cause immediate harm to others, three conditions. The speech must be demonstrably false, and it must be likely to cause real harm (not just offense or hurt feelings, a “clear and present danger”), and do so immediately.
The interpretation of the First Amendment has been understood and adjudicated to impose a pretty high barrier to restrictions on what can be blocked or banned, and over the years has allowed flags to be burned, the KKK and Nazis to march, artists to make sculptures from their own body waste, and all sorts of political statements, at least a handful of which you would strongly disagree with and be deeply offended by.
And so expression whose ban has been upheld over the long run has been narrow, things the vast majority society agrees are truly dangerous, such as child pornography.
That’s the whole point — with as few limitation as necessary, protect expression people may or may not want to hear. The First Amendment is not there to protect Dancing with the Stars (though it does) but to protect the hard stuff, the hard calls.
Schenck is Actually Evil
And yes, Schenck itself was a crappy case that sought to use the Espionage Act against a Socialist pamphleteer, to stop free speech, not protect it, and the case was overturned. In fact, Holmes’ statement was a dictum that the First Amendment is not absolute, that restriction is lawful, along with the developing idea that restriction on speech should be narrow and limited.
It was the later case of Brandenburg v. Ohio that refined the modern standard for restricting speech to that “directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” But we talk about Holmes’ “fire in a crowded theatre” line as a kind of shorthand for all that.
Let Him Speak — Loudly
Justice Holmes, perhaps as an act of contrition, later wrote in another landmark case:
The ultimate good desired is better reached by free trade in ideas — that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out.
So following the broad values enshrined in the First Amendment’s guarantee of free speech, even though it can, Twitter should not ban Trump. Let him tweet, hell, give him 20 extra characters. And let us know, judge, agree, oppose, and argue about what he says.
PERSONAL BONUS: Writing in a mainstream publication that the president shouldn’t be allowed on Twitter? Jesus Christ, pull your shit together and get a freaking grip on yourselves. If you can’t do that, go hide under your bed and hug your stuffed animal Bobo. You want to worry about authoritarianism? It always includes shutting up people you don’t want to listen to.
Copyright © 2015. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity. Follow me on Twitter!
The problems many are now predicting under the Trump administration did not start on November 8. The near-unrestrained executive power claimed by the Obama administration will be transferred to the president-elect. Here’s what that means.
Obama did not prosecute, fire or discipline anyone for torturing people on behalf of the people of the United States. He did not hold any truth commissions, and ensured almost all of the government documents on the torture program remain classified. He did not prosecute the CIA official who willfully destroyed video tapes of the torture scenes. He has not specifically disavowed secret prisons and renditions, just suspended their use.
As with the continued hunting down of Nazis some 70 years after their evil acts, the message that individual responsibility exists must stalk those who would do evil on behalf of a government. “I was only following orders” is not a defense against inhuman acts. The purpose of tracking down the guilty is less to punish and more to discourage the next person from doing evil; the purpose is to morally immunize a nation-state.
Because of these failures President Trump can, as he has proposed, restart the torture program at any time. Some claim the CIA won’t participate. Some always will of course, and if not at CIA, then a contractor will be found. And if another terror attack or two take place, then people at CIA and elsewhere in government will be lining up to conduct the torture as they did last time. They know they will never be held accountable. Indeed, Trump is apparently considering the CIA official who destroyed the torture tapes, Jose Rodriguez, to head up the agency.
Obama legalized, formalized, and normalized drone assassinations on a global scale, including the killing of American citizens without due process in direct violation of the Fifth Amendment, on the president’s order alone. The only real restraint he codified is self-restraint. When you leave a door open, you never know who will walk in.
Because of this President Trump can do the same thing. Trump is unlikely to blow up the entire world with the nuclear codes, but please do not act surprised when his choice of American citizen targets may not match up with yours.
Obama never closed Guantanamo as he promised. He could have, simply by depopulating it regardless of what Congress might have said. In 2014 when Obama needed to trade five Taliban from Gitmo for U.S. Army soldier Bowe Bergdahl in Afghanistan, Obama simply ordered those Taliban freed. He could do the same with anyone else there. He could have applied the full pressure of the U.S. on various countries to accept freed prisoners. He could have ordered the show trials to be conclude.
Obama did not do these things. He instead normalized indefinite detention as a policy of the United States, and alongside that, as with torture and drone assassinations, the use of secret, convoluted legal opinions to justify such executive powers.
So if President Trump choses to start refilling the cells at Guantanamo, and reminding the world of the lengths a frightened America is willing to go to imprison a single man, it should not be a surprise. And with the “legal” opinions, including ones still secret, behind such policies, stopping Trump will require years of counter-litigation never even begun under the Obama administration.
Obama prosecuted more federal whistleblowers as spies under the Espionage Act than all previous U.S. presidents combined. He sent to jail people who exposed torture, and people who allegedly leaked information to journalists showing American complicity in dangerous acts abroad. He had Chelsea Manning prosecuted for exposing war crimes in Iraq. He used the Espionage Act to destroy the lives of others who under any definition except his own would be considered political heroes.
Obama and his Justice Department created the playbook for how to use the hereto obscure Espionage Act to do these things.
So if President Trump, perhaps with an attorney general Rudy Giuliani, uses that playbook to lock up whistleblowers, journalists, and people you might call dissidents and political prisoners, remember to again look the other way.
Freedom of Information Act (FOIA)
The Obama administration set a record for redacting government files or outright denying access to them in fiscal year 2014 – some 77% of FOIA requests were redacted or denied outright. More than any previous administration, Obama took longer to turn over files, said more often it couldn’t find documents and refused a record number of times to turn over newsworthy files quickly absent lawsuits brought to force the government’s hand. In the case of Hillary Clinton, files considered “unclassified” in one context were redacted in whole in another.
Though the backlog of unanswered requests grew by 55%, the administration cut the number of full-time FOIA employees by nine percent. Despite the critical nature of the documents, the State Department was allowed to do its FOIA screening of the Clinton emails largely with an ad hoc crew of retirees. The impact on journalists, and the right of the people to know, was immeasurable.
So don’t be surprised if the Trump administration does not end up as the most transparent one ever.
Obama never realistically reigned in the NSA after the Bush-era Patriot Act allowed the agency to turn its surveillance tools on the Homeland. Absent a few cosmetic changes, NSA continues to gather the full spectrum of Americans’ communications in violation of the Fourth Amendment, abetted by the secret FISA court and vaguely Constitutional tools such as National Security Letters and parallel reconstruction. Information lives forever, and the NSA is building bigger data warehouses to keep storing it.
President Trump will have that information about you at his disposal. And so all who bleated “they had nothing to hide and thus have nothing to fear” during the Obama (and Bush) administration, out of trust for a president or fear of terror, well, now you can join the rest of us who have been terrified for a very long time.
Copyright © 2015. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity. Follow me on Twitter!
In most third world societies, when people don’t like the results of an election, they take to the streets. In America, we take to the Internet.
But the end result is the same. The system is undermined because we do not like the results it yielded. Accusations of something unfair having happened are slung around, usually either unsupported by facts, based on faux “statistical anomalies,” or via a small data set that is blown up into something general to prove “the system is unfair/corrupt/wrong/inaccurate” to people who already believe that to be true but need talking points for their Facebook pages.
Of course a nice tag-along is if this can all be blamed on an outside third party. Dissatisfied people have little interest in blaming themselves, their flawed candidate, or acknowledging the strengths of the opponent among a large segment of voters. Nope, easier to blame someone else. For that, a person who has been molded into a one-word symbol of, well, everything and anything Americans fear, Putin.
And so a recent article in the Washington Post terrifies me. It is at a level of journalism that previously was reserved for conspiracy theories on Geocities’ style web sites. Here’s a selection from the article:
The flood of “fake news” this election season got support from a sophisticated Russian propaganda campaign that created and spread misleading articles online with the goal of punishing Democrat Hillary Clinton, helping Republican Donald Trump and undermining faith in American democracy.
Russia’s increasingly sophisticated propaganda machinery — including thousands of botnets, teams of paid human “trolls,” and networks of websites and social-media accounts — echoed and amplified right-wing sites across the Internet as they portrayed Clinton as a criminal hiding potentially fatal health problems and preparing to hand control of the nation to a shadowy cabal of global financiers.
So: Clinton lost because Russia wanted Trump to win because Trump will favor Russia so Russia created fake news which influenced over 62 million Americans to overlook Trump’s flaws and vote for him. Got it.
Proof? Stuff on Facebook. Main source of that proof? A group of unknown origin, financing, and makeup (“an independent team of concerned American citizens”) called PropOrNot, i.e., propaganda or not. The group also “strongly suspects that some of the individuals involved have violated the Espionage Act, the Foreign Agent Registration Act, and other related laws.”
A second source quoted by the Washington Post is Clint Watts, a fellow at the Foreign Policy Research Institute (which has been around in one form or another since the 1950s, dedicated to the Cold War), who says of the Russians “They want to essentially erode faith in the U.S. government or U.S. government interests.” Watts’s report on his work appeared on a blog this month as Trolling for Trump: How Russia Is Trying to Destroy Our Democracy. That piece claims without any real evidence at all that “Russia is actively trying to put Donald Trump in the White House… And the evidence is compelling.”
I encourage everyone to read some of the linked articles. This is seriously scary Cold War paranoia stuff.
And guess what? The ProporNot group has created a (black)list of websites that it claims are controlled/influenced by the Russians. While — dammit — this website in not included, I take some solace in noting that I have written for or been reprinted by 11 of them.
“They use our technologies and values against us to sow doubt,” said Robert Orttung, a George Washington University professor who studies Russia, quoted in the article.
And that sounds dangerously close to saying our First Amendment’s freedom of speech provisions seem to be the root of this threat to American democracy.
Copyright © 2015. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity. Follow me on Twitter!
For those who woke a week ago to discover the First Amendment is under attack, I lost my job at the Obama/Clinton State Department in 2012 for writing We Meant Well, a book the government did not like, and needed the help of lawyer Jesselyn Radack and the ACLU to push back the threat of jail.
My book was critical of actions in Iraq under both the Obama and Bush administrations. One helped protect the other.
Braver people than me, like Thomas Drake, Morris Davis, and Robert MacLean, risked imprisonment and lost their government jobs for talking to the press about government crimes and malfeasance. John Kiriakou, Chelsea Manning, and Jeff Sterling went to jail for speaking to/informing the press. The Obama administration tried to prosecute reporters from Fox and the New York Times for stories on government wrongdoing.
Ray Maxwell at the State Department went public with information about Clinton’s email malfeasance before you had even heard of her private server. The media called him a liar, an opportunist, and a political hack and he was pressed into retirement.
Indeed, Obama prosecuted more federal whistleblowers under the Espionage Act than all previous United States presidents combined, including Richard Nixon, Ronald Reagan and George W. Bush.
The Obama administration also set a record (77%) for redacting government files or denying access to them in fiscal year 2014 under the Freedom of Information Act.
More than any previous administration, Obama took longer to turn over files, said more often it could not locate documents, and refused a record number of times to turn over time-sensitive files quickly, requiring years-long legal actions to be brought to force the government’s hand. In the case of Hillary Clinton, files considered “unclassified” in one context were redacted in whole in another.
Though the backlog of unanswered requests grew by 55%, the administration cut the number of full-time Freedom of Information Act employees by 7.5%. Despite the critical nature of the documents to the election, the State Department was allowed to do its Freedom of Information Act screening of the Clinton emails largely with an ad hoc crew of retirees. The impact on journalists, and the right of the people to know, was immeasurable.
So spare me. The war on our freedoms was well under way before last week. Where the hell were you and your safety pins then?
Florida’s Orange County Public Schools announced this week students must have parental permission if they want to kneel during the national anthem at football games or otherwise silently protest, such as refusing the say the pledge of allegiance.
The move comes after students in a single school district knelt in solidarity with 49ers quarterback Colin Kaepernick’s protest against social injustice in America.
Exercising First Amendment rights in Florida now requires parental permission.
As Unconstitutional as They Come
The school announcement is so wholly unconstitutional as to be laughable, except that it is Florida, the state immune from reality.
Previous decisions in the 11th Circuit Court of Appeals already found the portion of Florida law requiring students to “stand at attention” during the anthem violates the First Amendment. The Supreme Court has long upheld not participating in the pledge, or remaining seating during the anthem, is protected speech under the First Amendment.
West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943), was the courageous wartime decision by the Supreme Court holding that the Free Speech Clause of the First Amendment protected students from being forced to salute the American flag and say the pledge of allegiance in school. The Court stated constitutional rights are to be “beyond the reach of majorities and officials.” It held that the state did not have the power to compel speech for anyone.
Barnette overruled a 1940 decision on the same issue, Minersville School District v. Gobitis, which said dissent was to try to change a school policy democratically — i.e., through the same system that imposed the restraints being challenged.
The Court has also upheld that the Bill of Rights applies to students in Tinker v. Des Moines Independent Community School District (1969).
Officials claim they are following a state law regarding the pledge of allegiance that requires participation in patriotic gestures (they are of course following the exact law the 11th Circuit has ruled unconstitutional, which makes it not really a law anymore, but whatever, Florida uber alles.)
And so in sweaty Collier County one principal is telling students that they’ll be sent home if they don’t stand during the anthem at sporting events.
“You will stand and you will stay quiet,” Lely High School Principal Ryan Nemeth announced. “If you don’t, you are going to be sent home and you’re not going to have a refund of your ticket price.”
Ouch! No refund of the ticket price for you, commie ISIS terrorist students, unless you have a note from home.
I want to read about the first student, who, when asked for his note giving him permission to remain seated during the pledge, hands over a copy of the Bill of Rights and says f*ck you, Florida.
What to do about all those darn videos showing cops murdering people?
They make it much harder for law enforcement to lie about their own actions, and just get everyone all fired up. Why not ask Apple (for starters) to build in a “feature” on a future generation of iPhones that will allow cameras to be disabled remotely?
A patent granted to Apple this month details technology that remotely disables iPhone cameras using infrared sensors. Someone you do not know and cannot see will be able, without your permission, to disable the camera on a phone you own and are legally using, perhaps to take video of your son’s Little League game, perhaps to take video of a police officer choking to death an innocent man.
Apple’s patent application used the example of a rock band wanting to prevent audience members from recording a concert. Nasty bootleggers and their darn YouTubing!
While the First Amendment, backed up by much case law, guarantees the right of citizens to record the actions of government employees, including the police, conducting their duties in public places, the Amendment does not guarantee corporate America has to sell you the technology to do so. It is Constitutionally unclear if a police force using such technology to block video would violate the First Amendment (hey, you could switch over to your Dad’s camcorder that’s in the basement), but knowing the way things work, the cops would try it first, worry about court cases later.
And indeed you can hear the arguments terrorism, national security event, blahblahblah. Perhaps the police could designate First Amendment Video Zones outside any large event where citizens could shoot video of each other to their heart’s content?
Another interesting legal question would be the effect of citizens using some other technology to disable the technology used by police to disable camera phones. Would that become illegal, the way some states have made the use of radar detectors in your car illegal?
So as the cops like to say, “Hey, nothing to see here folks, move along.”
The bones of our democracy — the core elements that separate that way of life from others — lie in the First Amendment to the Constitution, specifically the rights to free speech and a free press.
Without the ability to speak freely, and to have things about our government reported equally freely to us, most of the rest of the concept of what was laid out on July 4, 1776 and later falls away. Thomas Jefferson himself stated that an “informed citizenry” was the key to everything.
So it is with more than a little anxiety that we learned secret rules allow the FBI to spy on journalists with such ease that the restraints are really nothing more than a bit of paperwork. As always, the ostensible justifications for another deep step into Post Constitutional America are terrorism, security, protecting the homeland. And, as always, the outcome seems to be much more about stomping out whistleblowers than anything else.
As revealed by an anonymous whistleblower to The Intercept (the government refused to release the information), secret rules allow FBI agents to obtain journalists’ phone records with approval from only two internal officials. No warrant needed. No outside oversight. No courts, no judges, no hearings, no public records.
The rules govern the FBI’s use of national security letters (NSL), which allow the bureau to obtain information about journalists’ calls without going to a judge or informing the news organization being targeted. National security letters are themselves an anti-Constitutional outgrowth of the Patriot Act and its successors. The letters allow the FBI and other law enforcement agencies conducting a national security investigation to demand access to information without a warrant, and, in most cases, prohibit the organization required to supply the information (for example, a library asked what books you read) from even acknowledging the request was made.
The FBI issued nearly 13,000 NSLs in 2015 alone. No one outside of government knows why they were issued, who was affected, and what information was gathered.
The FBI’s secret rules in the specific cases of whistleblowers and leaks only require an additional couple of internal signatures. In addition, the rules specify any extra oversight layers do not apply at all if the journalist is believed to be a spy or is part of a news organization “associated with a foreign intelligence service” or “otherwise acting on behalf of a foreign power.” That will easily rope in any national media service, and most likely is broad enough to pull in quasi-national media outlets like the BBC or Japan’s NHK. And once again, it is the FBI itself defining who is and who isn’t whatever it wants them to be.
In an era when our government conducts more and more of the “people’s business” in secret, the need for brave men and women to step and an provide information, and the need for brave journalists to report that information, is ever more urgent. Without men like Edward Snowden working with journalists, we would never have known the depths of the NSA’s spying, for example. And without the heroic efforts of the person who leaked these once secret FBI rules, we would never have known what new tools the government had granted itself to weaken the press freedoms that otherwise helped sustain this nation for centuries.
Cleveland Police Chief Calvin Williams issued a warning to an undisclosed number of masked protesters outside the Republican National Convention: “If you are a member of a group that causes you to have to hide your face, then you probably need a different cause.”
Police claim they have received at least a dozen calls related to concerns about the small groups of black-clad “anarchists” with masks.
So why is Chief Williams so concerned about the face masks? Too early for Halloween?
Nope, facial recognition.
Law enforcement aggressively employs facial recognition technology at events such as the Republican National Convention to identify “persons of interest” and to catalog new persons of interest. Masked faces don’t play as well with the technology (though newer tech can get around some limitations, and iris scan tech needs only to see your, well, eyes. More below.)
With facial recognition, a computer digitizes an image of someone’s face in a way that makes fooling the system difficult, stuff like measuring the distance between eyes, the angle of one’s nose, ear lobe shape and other tough to alter things.
Reports suggest in addition to public gatherings where people are enjoying their First Amendment rights to assemble and speak, airports scan passengers, hotels scan lobbies, stores scan aisles, casinos scan their gambling floors and many police street cameras are tied into the systems.
A publicly-known example occurred after the Boston Marathon bombing of April 2013. The subsequent Boston Calling music fest was subject to heavy use facial recognition surveillance, one guesses in case there were more Tsarnaev brothers out there. Law enforcement in the UK used facial recognition technology to scan the faces of thousands of attendees at the Download music festival without their knowledge.
And, oh, yeah, those iris scanners.
Iris scanners have quickly moved from the realm of science fiction into everyday public use by governments and private businesses.
Iris recognition is rarely impeded by contact lenses or eyeglasses, and can work with blind individuals as well. The scanners can catalog up to 50 people a minute without requiring the individuals to stop and stand in front of the scanners.
Information gathered from iris scanners or facial recognition in multiple locations can be sent to a central database that can be used to track an individual’s movement throughout the city, or to determine which individuals in the database associate together.
So hippie protesters, have a great time in Cleveland! Actually, the cops will know if you are having a good time, because they are watching.
With the Democratic and Republican conventions entering normal earth atmosphere, it’s time to get ready to rumble!!!!!!!!!!!!!!
Both conventions promise excellent violence in the streets, especially in Cleveland, where a toxic slosh of Trump Brownshirts, anti-Trump protestors and the always blood-thirsty Cleveland PD will meet head-to-head-to-head in “free speech zones,” public parks and perhaps the streets themselves.
Now even the cops in Ferguson and Baltimore knew they couldn’t just outright fire live rounds (yet) into the crowds while the cameras were there, and maybe the Clevo cops know it too. So what’s a law enforcement officer interested in violently dispersing a crowd to do? Of course there are your standard tear gas rounds, night stick charges, and rubber bullets but that’s all so… 2015.
So why not use a real 21st century weapon, the LRAD. Watch for it in Cleveland, or at a protest near you.
Weapons of War
The LRAD was first deployed for use in Iraq, and quickly found its way onto Navy and commercial ships sailing amongst Somali pirates. The bad boy is a sound cannon.
The LRAD company prefers to label its product a tool to broadcast messages and pain-inducing “deterrent” tones over long distances. The device produces a sound that can be directed in a beam up to 30 degrees wide, and the military-grade LRAD 2000X can transmit at up to 162dB up to 5.5 miles away.
Fun fact: A jet engine at 100 feet is 140dB. Sound at 180db will cause tissue damage.
But of course the LRAD is non-lethal, so its maker says that anyone within a 100 meters of the device’s sound path will experience extreme pain. The version generally utilized by police departments (the LRAD 500X) is designed for short bursts of directed sound that cause severe headaches in anyone within a 300 meter range. Anyone within 15 meters of the device’s audio path can experience permanent hearing loss.
Permanent hearing loss begins at 130dB, and if the device is turned up to 140dB, anyone within its path would not only suffer hearing loss, they could potentially lose their balance and be unable to move out of the path of the audio.
First Amendment… Never Heard of It
So basically, put one of these on a truck and you can clear out a street pretty effectively. And the great thing about such a handy First Amendment-denying tool is that it is indiscriminate. It blasts the breath out of unruly hippies, legitimate journalists, peaceful protesters, happy tourists on the sidewalk, just everybody equally. Sorry about those who were exercising their Constitutional right to protest, because NOW HEAR THIS MOTHERF*CKERS!
The LRAD device has been used on several occasions against activists in the U.S. The first documented was in Pittsburgh during the G-20 summit in 2009. The Pittsburgh police used it again following the Super Bowl in 2011. The LRAD was used against Occupy protesters in Oakland and New York. New York brought their LRADs out again for the Black Lives Matter marches.
One Pittsburgh protester sued, saying the LRAD used against her made fluid leak out of her ear, and produced dizziness, nausea, and headaches. The city ultimately settled the suit for $72,000.
Make no mistake here: this is a weapon of war, developed for the battlefield, that is now being used on American streets against Americans.
BONUS: The LRAD Corporation announced earlier this month that the LRAD RXL model has been recognized as “Best Acoustic Hailing Service” by the Government Security News 2016 Airport, Seaport, Border Security Awards Program. The LRAD DS-60 was named as a finalist in the “Best Mass Notification System” category.
In another step towards the fascist state Donald Trump has warm dreams envisioning, FBI agents and Cleveland police officers “visited” the homes of local activists in an attempt to gather intelligence on possible planned demonstrations surrounding the Republican National Convention. Such actions step over the line of information gathering into the realm of seeking to chill free speech.
Activists said they viewed the visits as intimidating. A spokeswoman for the local branch of the FBI acknowledged only that “community outreach” took place as law enforcement officials try to ensure the GOP convention is a “safe and secure” event. During their visits, officials asked activists about past addresses, political and social affiliations, and plans for the RNC. The questions appear on their face of dubious constitutionality.
A spokesperson for the National Lawyer’s Guild, a group prepared to defend those arrested for exercising their First Amendment rights outside the convention, first reported the visits by teams of federal and local law enforcement officials.
Some of the activists are involved with groups planning RNC demonstrations, while some aren’t, the spokesperson said. She also said that some of the people who were visited were among the 71 people who were arrested in May 2015 in the aftermath of protests that broke out following the acquittal of Michael Brelo, a then-Cleveland police officer who had been charged with voluntary manslaughter in connection with the 2013 shooting deaths of two Cleveland motorists following a police chase.
The FBI and police made no attempts to hide what they were doing; in fact, quite the opposite.
For example, in a June 8 public hearing, Deputy Police Chief Ed Tomba told members of City Council’s public safety committee that Cleveland police have “a real, real good idea of who we think is coming here and what their objectives are. And if we can deter those objectives, that’s what we’re going to do.”
Cleveland purchased a $10 million “protest insurance” policy to protect against civil rights lawsuits resulting from the convention.
Once upon a time, all of America was a First Amendment Zone. That’s now as dead as Alexander Hamilton.
The city of Cleveland revealed part of its security plan for the
Nuremberg rally Republican National Convention. Securing the convention will require a heavily policed, fenced off 3.3 square-mile First Amendment Zone. A fun fact is that the First Amendment Zone is about the same size as Baghdad’s Green Zone.
(Pictured above is the free speech zone from the 2012 Democratic Convention)
The Zone concept in Cleveland is to ensure that the people’s rights to free speech are “preserved,” only someplace far enough away that no one can hear them, and surrounded by police so that the speech stays in line.
The ACLU of Ohio filed a lawsuit to change or block the Zone; the result was only a slight enlargement of the area allotted.
“What the city has done here is draw a gigantic blanket area that covers most of downtown Cleveland,” says Elizabeth Bonham, staff attorney for the American Civil Liberties Union of Ohio. “When the government takes the extreme step of limiting speech and assembly in any way, the burden is on them to justify that those restrictions are reasonable.”
Access into the Cleveland Zone will be controlled by law enforcement, who also will regulate protests and other activity (no details available on what that means; I guess people will need to experiment with what free speech will get them Tasered.) No tennis balls, baseballs, umbrellas with metal tips, ladders, sticks, poles, strollers, flashlights, balloons (?) or bike locks will be allowed. The Zone will be overseen by the Cleveland police, the FBI, FEMA, and the U.S. Secret Service.
Cleveland mayor Frank Jackson has said the Zone and other crowd control measures are “an attempt to balance between safety, security and constitutional rights of people and ensure we have a successful convention.”
Ah yes, the old standby of “balancing” security and inalienable rights. Gotta love that. Now let’s go bust some hippie heads!
BONUS: The use of First Amendment Zones is Constitutional under many circumstances. The Supreme Court, via Ward v. Rock Against Racism, developed a four-part analysis to evaluate the constitutionality of time, place and manner (TPM) restrictions. To pass muster under the First Amendment, TPM restrictions must be neutral with respect to content, narrowly drawn, serve a significant government interest, and leave open alternative channels of communication. The test case had to do with a concert that people nearby felt was too loud, and has been expanded to cover the use of First Amendment Zones.
A guy who wasn’t feeling the patriotism decided to burn an American flag and tell the world about it on Facebook — only to get arrested the next day after neighbors complained.
Bryton Mellott, 22-years-old, of Urbana, Illinois, was taken into custody after police received calls about his Facebook posts, which included a picture of him setting the Stars and Stripes on fire (above) and a message explaining that he was “not proud to be an American. In this moment, being proud of my country is to ignore the atrocities committed against people of color, people living in poverty, people who identify as women, and against my own queer community on a daily basis.”
Despite a very clear 1989 Supreme Court ruling (Texas v. Johnson) affirming that flag burning is a form of political speech fully protected by the First Amendment, cops charged Mellott under Illinois’ flag desecration statute, a law written years before the Supreme Court ruling and which is now unconstitutional.
Sergeant Andrew Charles of the Urbana Police Department said his town had never charged anyone under that law in 27 years, but that police proceeded with the arrest out of an attempt to “balance civil liberties with issues of safety.”
He never explained what safety was involved, how any safety issues might have been resolved by the arrest or why no one in Urbana has kept up with the Constitution, which is online.
The state’s attorney assigned to the case immediately decided not to proceed with a prosecution. No penalties for the cops, however!
“Who the hell are you?” said a startled Barack Obama, clad only in his Kenyan flag boxers.
“Easy Barack, chill. Wait, sleeping alone? Awkward. Anyway, I’m Thomas Jefferson, or at least his ghost. Every once in awhile I get bored haunting the attic at the White House and come down to visit, see how the wonderful democracy we created is doing. Add any new rights to our Bill of Rights recently?”
“Um, it sort of hasn’t gone that way. Except maybe for the Second Amendment, lots of solid growth there,” said Obama.
“Yes, yes, even upstairs we’ve heard the gunshots. You realize we intended that so Americans would be ready to serve as citizen-soldiers when called up to form militias, right? We never wanted a large standing army, and figured if every stout yeoman farmer retained a musket that would pretty much cover it. I’ll check my notes, but I am pretty sure we never intended the Second to end up arming unhindered homophobic maniacs, or angry white guys who hate abortion in the name of a Christian God, with bazookas.”
“Sure, Tom, we may have made a misstep or two, but we had a couple of Democrats stage a sit in on the House floor to demand gun control,” said Obama.
“Hmmm. Sitting down when they should be standing up for something? And why weren’t you with them, Barack?”
“Um, I had Hamilton tickets, couldn’t make it.”
“Oh, jeez, Hamilton, again. Where the hell’s my musical? Anyway, how are the rest of the Amendments doing?” Jefferson said.
“Well, Tom, we had to make a few… adjustments. Time of war and all.”
“Good God, did a foreign army invade Boston? Damned Canadian troops cross the border? British Men o’ War in New York harbor? What is this war?”
“Well, 15 years ago some guys killed about half as many Americans who have died in the wars we started since then. That’s kinda it, really,” said Obama. “Been basically riffing off that ever since.”
“And so we pretty much trashed the Fourth Amendment and now spy on all Americans 24/7. The First Amendment, especially the right to free speech part, that hasn’t held up well, either,” said Obama. “And you have to take your shoes off at the airport but none of us remember why that is anymore.”
“But Barack, a well-informed citizenry, secure in their persons and papers, who can assemble to speak truth to their government is essential,” Jefferson said. “Actually, that’s kinda the whole thing.”
“Sure, we have free speech zones at all the big events now, and CNN holds TV townhalls with pre-selected questions. Got that covered. But don’t ask me about due process. I kinda kill American citizens abroad with drones now. Yeah, so there’s that. You know what a mic drop is, Thomas?”
“OK, OK, I glanced at a newspaper on my way down here, and at least there is some good news. I see that you finally corrected the biggest mistake we made with the Constitution, and got rid of slavery. Indeed, I see now that most Americans are even saying how much Black Lives Matter. That is a very nice sentiment,” Jefferson said.
“Thomas, maybe you better sit down and I’ll explain…”
Thomas Jefferson said that an informed citizenry is critical to a democracy, and with that as a cornerstone the Founders wrote freedom of the press into the First Amendment to the Constitution.
The most basic of ideas at play is that the government should in no way be allowed to control what information the press can report to the people, and cannot place restrictions on journalists. One of the principal characteristics of any fascist state is the control of information, and thus the press is always seen as a check on government power that needs to be stomped on. Ask any surviving journalist in North Korea, or Saudi Arabia.
And so it is with terror we learn the United States Secret Service, in the name of security, is for the first time in our Republic’s history running background checks on thousands of journalists who plan to report from this summer’s Republican and Democratic Party nominating conventions.
Journalists who don’t pass the security screening process, for which of course there are no publicly-stated criteria and which has no system of appeal, will be denied credentials to cover the GOP convention in Cleveland, and the Democrats’ in Philadelphia. As the Daily Beast writes, this is the government deciding who can and can’t be a journalist, and through that process, heavily influencing what will be reported. Happytime government stenographers from CNN? Step right in, sir. Investigative, real journalists from The Intercept? Um, maybe not. Will a journalist from an “un-American” news source such as The Daily Worker be denied simply based on affiliation?
Oh, the issues are many.
For example, security clearances are typically denied to persons with an arrest record. Will that also apply to journalists who have been arrested in protest situations while exercising one or more of their First Amendment rights? Drug use is also often a negative indicator for a security clearance, so does that mean a person busted for a loose joint in college may not report from inside the convention hall?
The Secret Service denies that a protest arrest will lead to a denial, though admits that arrests for assault, or domestic violence, charges could. At issue is that such arrests can cover a very broad spectrum of behavior, determined at a very local level. For example, imagine an African-American falsely charged with assault in some mean Texas backwater. Note also, as in most security clearance processes, the standard is an arrest, not necessarily a conviction.
Obtaining security clearances also involves the “voluntary” turning over of personal information to the government, to often include associations, employment history, professional affiliations, fingerprints, financials and the like. If a journalist wishes not to hand over that information to the Secret Service, does that automatically bar him/her from playing his mandated role of informing the public? Apparently it does.
There is also the question of control of all that personal information. The Secret Services states on its website that it has a contract with the Ardian Group, a private contractor, “to capture that Personally Identifiable Information for credentialing production” (though the Service itself makes the actual yes or no decision to allow access.)
In a widely distributed “Dear Colleagues” letter, John Stanton, Washington bureau chief of BuzzFeed, asked the capper question: “Should the Secret Service have jurisdiction over the First Amendment?”
Evil is participatory, says interviewee David Harris at the beginning of a documentary in progress about Vietnam-era draft resisters, The Boys Who Said No!
Evil continuing depends on people joining in, and the first step to stopping it, he continues, is withdrawing your own participation. So Harris said no to the Vietnam-era draft, and went to jail for it.
The Boys Who Said No!
The Boys Who Said No! is set during the late 1960s and early 70s, when thousands resisted conscription at the risk of federal prison. Unlike those who evaded the draft by fleeing to Canada, getting various deferments, or resorting to violent protest, the subjects of this film chose civil disobedience.
It was a costly decision.
An estimated 500,000 young men evaded or refused to cooperate with the draft, and 3,250 went to prison for their beliefs, the largest mass incarceration of war resisters in U.S. history. The film tackles this broad narrative mostly through the story of David Harris (who spent three years in Federal prison for refusing to be drafted, and for encouraging others to do the same) and his wife, folksinger Joan Baez. Interviews with many other draft resisters round out the narrative.
As part of understanding the Vietnam era, the film also reviews the history of the draft, and opposition to previous drafts, and the Vietnam war. Resistance to the war is tied into the larger civil rights movement, two sides of the same coin in opposing unjust actions by the government, with the inclusion of the Reverend Martin Luther King, Jr. visiting Joan Baez and those jailed for blocking the Oakland Draft Board in 1967.
How Do You Say “Vietnam” in Arabic? Iraq
To a younger audience, the film is perhaps a bit funny, guys with weird hair and unhip clothing burning whatever draft cards were. For a cynical generation, it is as easy to dismiss the value of individual action as it is wrong to do so. Indeed, the actions of one person alone can amount to little. But as an interviewee says, you never know who’s watching. The Boys Who Said No! illustrates how one can become two, two can become ten, and over time they together remind you all that sand on the beach was once a rock.
The Boys Who Said No! thus resonates strongly today.
It offers an answer to the question of what courage is in a modern world: not only choosing the harder right over the easier wrong, but being willing to pay the price for acting on conscience, for a good bigger than oneself. And in that definition, the actions of men like David Harris and the thousands who joined him in refusing the draft, become clearer. The path they put themselves on leads in a straight line through whistleblowers Ellsberg (Pentagon Papers), Drake and Binney (NSA), Manning and Assange (Iraq War), Kiriakou and Sterling (CIA) and Snowden.
Acts of conscience never go out of fashion, and a country never has enough examples. That’s what makes a film like The Boys Who Said No! more than historical document.
To many today the war in Vietnam seems as old as the battles at Gettysburg and Antietam. But think about this: Vietnam was a war started on false pretenses (U.S. ships attacked in Gulf of Tonkin, Weapons of Mass Destruction in Iraq), built on deeply flawed fear (Communism will overtake Southeast Asia, a caliphate will engulf the Middle East), a faux-threat to the United States/Homeland (Communists on the beaches of California, Islamic terrorists in your town) and the strategy of extraordinary means spent for limited ends. Very, very similar comparisons apply to America’s war in Central America during the 1980s.
And before you dismiss that by saying the struggle against Islamic terror is “different,” remember this: history shows those who resisted the war in Vietnam, and that in Central America, turned out to be right.
The Boys Who Said No! is currently in production, but in need of additional funding for completion. Take a look at a 17 minute excerpt, and visit the project’s website, Facebook, or Indiegogo page if you wish to contribute.
A Bit More
The Boys Who Said No! was directed is Judith Ehrlich, who won an Academy Award nomination for The Most Dangerous Man in America: Daniel Ellsberg and the Pentagon Papers. The producer is Christopher C. Jones, who at age 17 refused to register for the draft, was arrested and served nine months in federal prison. As the documentary is not complete, my comments above are based on previews and clips I have seen.
The film takes its title from a 1960s poster showing Joan Baez’ sisters sitting on a couch with the caption “Girls say yes to boys who say no.”
The FBI is instructing high schools across the country to report students who criticize government policies as potential future terrorists, warning that such “extremists” are in the same category as ISIS.
The FBI’s Preventing Violent Extremism in Schools guidelines try to avoid the appearance of specific discrimination against Muslim students by targeting every American teenager who is politically outspoken, as if that somehow makes all this better. The FBI’s goal is to enlist every teacher and every student as informants. The concept is not dissimilar to attempts by the FBI to require tech companies such as Apple to become extensions of the FBI’s power. FYI, the FBI also now has full access to data collected on Americans by the NSA.
You really do need to scan through the FBI’s materials, which are aimed directly at our children; my words cannot describe the chilling 1984-tone purposely adopted.
As author Sarah Lazare points out, the FBI’s justification for such mass teenage surveillance is based on McCarthy-era theories of radicalization, in which authorities monitor thoughts and behaviors that they claim without any proof lead to acts of subversion, even if the people being watched have not committed any wrongdoing. This model is now (again, welcome back to the 1950s) official federal policy.
The FBI guidelines claim “High school students are ideal targets for recruitment by violent extremists seeking support for their radical ideologies, foreign fighter networks, or conducting acts of violence within our borders… youth possess inherent risk factors.” In light of this, the FBI instructs teachers to “incorporate a two-hour block of violent extremism awareness training” into the core curriculum for all youth in grades 9 through 12.
Here are the danger signs the FBI directs teachers keep a sharp eye out for:
— “Talking about traveling to places that sound suspicious”;
— “Using code words or unusual language”;
— “Using several different cell phones and private messaging apps”;
— “Studying or taking pictures of potential targets (like a government building);”
— “Some immigrant families may not be sufficiently present in a youth’s life due to work constraints to foster critical thinking”;
— “Encryption is often used to facilitate extremism discussions.”
And just to make sure the connection with McCarthyism and the red baiting days of the 1950s is clear enough, the FBI materials warn “Anarchist extremists believe that society should have no government, laws, or police, and they are loosely organized, with no central leadership. Violent anarchist extremists usually target symbols of capitalism they believe to be the cause of all problems in society — such as large corporations, government organizations, and police agencies.”
So, sorry, Bernie Sanders supporters.
Yep, you should care. Very much. Hang up the phone and listen.
What This is All About
The FBI wants Apple to help unlock an iPhone used by one of the attackers who killed 14 people in the December San Bernardino shooting. Specifically, the Bureau wants Apple to create new software that would override a security system on the phone designed to erase its contents after ten unsuccessful password tries. The new software would also eliminate the built-in pause required between tries.
The software on the San Bernardino shooter’s phone, after ten tries, will automatically destroy any data on it as a security measure. The FBI needs that ten try limit, plus the required pauses between tries, taken away so that they can run a “brute force” attack against the password. A brute force attack runs an unlimited number of passwords (a1, a2, a3… aa1, aa2, aa3…) at high speed against the system until one works.
Apple said no. The FBI took Apple to court, where it successfully argued an 1789 law that compelled cooperation with simple court orders applied to Apple’s encryption in 2016. Apple is appealing.
What This is Really All About
This is really all about encryption, and whether the U.S. government can force companies to bypass their own security systems on demand. It is about whether a tech company’s primary obligation is to provide secure products that protect the privacy of its customers (good and bad people), or to act as a tool of American law enforcement to strip away that privacy as the government requires.
The battle is actually even more significant. Since the Ed Snowden revelations exposed the NSA spying on persons worldwide, including inside the United States, the Federal government has been demanding a “back door” into commercial encryption systems.
Some simplified tech talk: encryption turns data from something that can be read into 23hd892k*&^43s. Two “keys” are needed; one to turn the data into unreadable text, and one to reverse the process. In the case of the iPhone, Apple holds the encrypting key, and the user the unencryption key, her password. A backdoor is a bit of computer code that would allow law enforcement to bypass that second key and read anyone’s data. That’s what the Feds want, as, per Snowden, some current, commercially available encryption may still be beyond the NSA’s ability to break, and some other encryption can only be broken slowly, with expensive computers.
What This is Really, Really All About
The fight isn’t over whether Apple can comply with the government’s request; technically it can. It’s whether it should.
Efforts to force companies to create that desired back door have proven unsuccessful. Many tech companies resent that the NSA hacked into their systems whenever possible up until the Snowden revelations, and others fear a consumer backlash if they cooperate too broadly. Congress so far has been unable to pass laws compelling the creation of back doors. The FBI is so desperate that they even deleted “safety” advice they once issued recommending people do encrypt their phones.
The San Bernardino shooter’s iPhone is seen by many as a test case.
The request is technologically doable, the shooter is dead, fully without privacy and cannot countersue, a search warrant for the phone exists, the phone is physically in the FBI’s possession on U.S. soil and the circumstances are very much PR-friendly — the guy was a terrorist, and who knows, maybe the phone holds clues to prevent some future attack. You really can’t do better than that.
Some 40% of Americans agree that Apple should unlock the phone. And just in case you still don’t get it, remember the government took the provocative step of asking the court to unseal the case, which would normally be secret by default.
Apple is pushing back.
The company filed a request to vacate response to the court order, claiming it violated the First and Fifth Amendments, and exceeded the powers granted to the government in the All Writs Act, that 1789 law. Facebook, Microsoft, Twitter and Google plan to file briefs supporting Apple’s position. Meanwhile, both the FBI and Apple want Congress to weigh in, and indeed the House Judiciary Committee will hold a hearing on encryption issues.
It is very likely the case will reach the Supreme Court.
The Broader Implications
The case the Supreme Court will almost certainly hear is not about a single phone, but about creating a legal precedent for the United States government to demand whatever cooperation it needs from private companies with stockholder obligations to bypass security and encryption as it wishes; FBI director Comey stated the case will “be instructive for other courts” when interpreting how far third parties have to go in helping the government hack their products.
In an op-ed, the New York Police Department Commissioner and his intelligence and counterterrorism chief admitted that what Apple has been asked to do will drive how the government demands tech companies provide access to secured devices in the future.
Why You Should Care
If Apple fails, the U.S. government will be able to read the contents of any electronic device in the U.S., regardless of encryption. The legal precedent will absolutely spill out past the iPhone to all other devices. For anyone who lives, travels or passes through America, this will touch you. In addition, phone, email and social media data passes through the U.S. from many parts of the world even if the users on both ends are outside the country.
In addition, what would Apple’s (Google’s, et al) response be to a request from your favorite bad government? What if China were to require it hold a backdoor key as a condition for sales in the Mainland? What if your favorite bad government overtly decided to use that backdoor to “legally” gather proprietary data from your company, against journalists and dissidents, or to amass blackmail information on a colleague?
A win for the government in the Apple case would also further stretch the applicability of the All Writs Act to ever more information inside the U.S., or held by companies with ties to the U.S. — medical records, for example.
For investors, will knowing the U.S. and your favorite bad government now have access to a device help or hinder sales (Apple has already claimed compliance will “tarnish the Apple brand”)?
And of course once backdoors exist, who, in the age of leaks (Snowden hacked the NSA itself), can assure that the knowledge will not end up your favorite set of wrong hands, say perhaps those Russian gangsters who are always sending you Spam emails?
Bottom Line: everyone has something they wish to keep to themselves. The Apple case will significantly affect how possible that will be going forward.
When we speak of the government’s ongoing assault against the First Amendment, it is typically in the context of Freedom of Speech. That is indeed primarily the focus, using the tools of The State to silence its critics. But not if you are a Muslim.
For many Muslims, the clause inside the First Amendment most often violated is that of Freedom of Religion. One of the latest battles in that war is playing out now in New York City.
Because the worst of the 9/11 attacks happened in New York, the city has always claimed a kind of de facto exemption from having to follow the rule of law. Under its former mayors, the NYPD actively conducted blanket surveillance of the Muslim community, to include sending undercover cops into mosques and Muslim social events for “intel.” Though no obvious terror attacks were identified or thwarted, the NYPD insisted the program was critical (see the same tired arguments expelled as “torture worked, though we won’t tell you how.”)
NY’s current mayor, Bill Blasio, promised in April of 2014 to dismantle the so-called NYPD Demographics Unit, which was responsible for singling out one religious group among all others, apparently based on the twisted post-9/11 logic of “Muslim –> Likely Terrorist –> Spy on all Muslims.”
However, despite the promise, the NYPD has continued its spying in violation of the First Amendment.
The most recent example was discovered when the website The Gothamist wrote about an NYPD undercover detective who converted to Islam to spy on students at a local college. The police admitted to the spying, but claimed it did not violate the First Amendment in that it was “targeted” and not “overarching blanket surveillance.” The undercover cop developed intimate ties with the students she met, even attending bridal showers and weddings. She also joined the school’s Islamic Society to gather information on Muslim students.
Glenn Katon, legal director for Muslim Advocates and a lead attorney in Hassan v. City of New York, which alleges that the NYPD engaged in a program of “blanket, suspicionless surveillance” that discriminated on the basis of religion, recently won a small victory when the Third Circuit court found that the Hassan plaintiffs had standing and raised valid constitutional concerns, and reversed the suit’s previous dismissal. The courts had previously in that dismissal required the plaintiffs to prove on an individual and personal basis that they had been surveilled, a difficult request given that while the NYPD admitted blanket surveilling the Muslim community, it would not confirm individual cases (see “Catch-22” in the dictionary.)
An attorney in another ongoing lawsuit against the NYPD, Handschu v. Special Services Division, stated that for a police officer to be placed undercover for as long as in the current case, there would have to be a terrorism enterprise investigation in place, which would require permission from the Commissioner of Intelligence and proof of an ongoing criminal conspiracy. No such terrorism enterprise or ongoing criminal conspiracy has even been alleged by the NYPD. They conducted the spying anyway based on the idea that terrorists are Muslims so therefore all Muslims must be treated as potential terrorists.
Indeed, Handschu originally dates back to 1985, when the courts prohibited the NYPD from investigating political and religious organizations and groups unless there was “specific information” that the group was linked to a crime that had been committed or was about to be committed. Following 9/11, the NYPD has counter-sued, sought to modify and/or ignored what are known as the Handschu Guidelines as they wished.
NYPD Deputy Commissioner of Intelligence and Counterterrorism John Miller said, without apparent shame, that the need to prevent terrorist attacks sometimes comes into conflict with the need to respect the constitutional rights terrorists in theory are attacking. “We have two sets of tensions that pull against each other every day, and the hardest thing to have to do is find a balance.” Um, no. Our freedoms are ensured by the Constitution John Miller, that document you are sworn to uphold and protect.
Miller might want to run his ideas by the Supreme Court, and perhaps a few of the innocent Muslim students whose religion alone put them under surveillance. They might argue that what the cops call the need for public safety indeed puts them outside the scope of Americans who qualify for that safety.
Serial idiot Lindsey Graham, among too many others, stated that if only more people in Paris had been armed, the tragedy would have been lessened.
He echoed a popular right-wing meme in America, that “all it takes is a good guy with a gun to defeat a bad guy with a gun,” and that therefore any form of gun control in these United States would render us more vulnerable to attack.
Such statements ignore multiple realities, one of which is that a bunch of would-be vigilantes would go to nightclubs and restaurants always armed, and that their blasting away inside a dark, crowded place in the midst of a panic would not kill more innocent people than the terrorists. Many people, for example, dramatically overestimate their own skills, never mind the accuracy of a handgun at distances of more than a few yards. Add in accidental shootings, deadly overreactions to things that are not threats, amateurs unsure who the bad guys are killing each other, stray rounds and that fact that many people in nightclubs and restaurants have had a drink or two, and you have a recipe for even more danger, not less.
But before we even worry about that, let’s enjoy the hypocrisy of this: it is perfectly legal in the United States for person on the FBI terrorist watch list to purchase guns and explosives, and many of them do.
Who in America other than terrorists cannot legally buy guns. That list includes felons, fugitives, drug addicts and domestic abusers. Fair enough.
But not terrorists (unless they are also felons, fugitives, drug addicts or domestic abusers.) A report from the Government Accountability Office hilighted by the Washington Post says at least 2,043 known and suspected terrorists in the United States legally purchased firearms between 2004 and 2014.
“Membership in a terrorist organization does not prohibit a person from possessing firearms or explosives under current federal law,” the Government Accountability Office concluded. This includes persons on the FBI’s consolidated terrorist watchlist. Note that records for 2011 and 2012 are incomplete “because of a programming error the FBI subsequently fixed,” according to the GAO. So no one really knows how many terror suspects legally bought guns over the last 11 years.
A bipartisan bill offered this year (the “Denying Firearms and Explosives to Dangerous Terrorists Act of 2015”) is strongly opposed by the National Rifle Association (NRA). The NRA states the bill is “aimed primarily at law-abiding American gun owners,” and that the bill was “sponsored by gun control extremists.”
Yes, yes, there are ways to purchase guns illegally on the street, and legally at gun shows, that bypass background checks and any other controls, so any would-be terrorists can still pick up some semi-automatic iron as needed.
At the same time, however, that our First, Fourth, and Fifth Amendment rights are being stripped away in the name of freedom and security, perhaps it is worth also taking another look at what might be done with the Second Amendment at the same time.
So this tells you about what you need to know about the cops’ respect for the First Amendment and the public’s right to know, as well as their contempt for the judicial system when caught in a lie.
A New York police officer who arrested a journalist/photographer on assignment for The New York Times in 2012 was convicted, albeit three years after the fact, in what was a simple, straightforward case, of falsifying a record to justify the unlawful arrest.
The officer, Michael Ackermann, 32, in the center of the photo above, was found guilty of a single felony count of offering a false instrument for filing. Officer Ackermann had claimed the photographer, Robert Stolarik, interfered with the arrest of a suspect by repeatedly discharging his camera’s flash in his face.
A subsequent “investigation” found that Stolarik did not own a flash or have one on his camera at the time. One does wonder how long such an investigation might have taken, considering it should have taken about 10 seconds after the arrest. Got a flash, sir? No? Ok, thanks, you are free to go.
“I think it’s important; it’s rare that people are held accountable for their actions,” the journalist said. “In this case, he lied, and he lied to protect himself, and it turned on him.”
Officer Ackermann testified during the trial that he had made an “honest mistake” when he claimed Stolarik’s camera partially blinded him as he helped fellow officers make an arrest. He said he had mistaken ambient light at the scene for a camera flash.
Wait, could we stop right there for a moment? Who has ever had a flash photo taken of themselves? You know, like when you see spots in front of your eyes for a few moments? Is there anyone other than this cop who can say with a straight face that it is possible to mistake a flash for no flash? In the dark, for God’s sake?
The prosecutor rejected Officer Ackermann’s explanation and contended that his actions had interfered with the freedom of the press and had subjected Stolarik to unlawful search and seizure, violating his First and Fourth Amendment rights.
Stolarik was taking pictures for a story about the NYPD’s controversial stop-and-frisk tactics, themselves considered by many to be a violation of the Fourth Amendment, when he saw officers arresting a young black woman. He was thrown to the ground and arrested by Officer Ackermann, charged with obstructing government administration and, of course, resisting arrest. The charges were quickly dropped.
Ed Snowden is right. We have lost too many of our freedoms. What the hell happened?
The United States has entered its third great era is what happened. The first, starting from the colonists’ arrival, saw the principles of the Enlightenment used to push back the abuses of an imperial government and create the Constitution and the Bill of Rights. The next two hundred some years, imperfect as they were, saw those principles progress, putting into practice what an evolving government of the people might look like.
We are now wading in the shallow waters of the third era, Post-Constitutional America, a time when our government is abandoning the basic ideas that saw our nation through centuries of challenges. Those ideas– enshrined in the Bill of Rights– are disarmingly concise, the haiku of a People’s government. Deeper, darker waters lay in front of us, and we are drawn down into them. The king, jealous of the People’s power, wants some back.
Pre-Constitutional America: 1765-1789
History turns out to be everything that matters. America in its Pre-Constitutional days may seem familiar to even casual readers of current events. We lived under the control of a king, a powerful executive who was beholden only to the rich landowners and nobles who supported him. The king’s purpose was simple: to use his power over Americans to draw the maximum financial gain out of the colony, suppressing dissent in service to the goal and to maintain his own power.
If you lived in Pre-Constitutional America, you knew that imposed laws could be brutal, and punishments swift and often extra-judicial. Protest was dangerous. Speech could make you the enemy of the government that ruled you. Journalism could be a crime.
Nothing to Hide, Nothing to Fear?
There were many offenses against liberty in Pre-Constitutional America. One pivotal event, the Stamp Act of 1765, stands out. To enforce the taxes imposed by the Act, the king’s men used “writs of assistance” that allowed them to burst into any home or business, with or without suspicion. Americans’ property and privacy were torn apart, ransacked, often times more as a warning of the king’s power than any “legitimate” purpose the original approved law might have held. Some American was then the first to mutter in ignorance “But if I have nothing to hide, why should I be afraid?” He learned soon enough everyone was treated as an enemy of the government, everyone, it seemed, had something to hide, even if it turned out they did not.
The Stamp Act, and the flood of similar offenses, created in the Founders a profound suspicion of government unchecked, a confirmation that power and freedom cannot coexist in a democracy. What was needed, in addition to the body of the Constitution which outlined what the new nation’s government could do, was a remuneration of what that government could not do. The answer was the Bill of Rights.
Never Again: 1789 – 9/11/2001
There was no mistaking it: the Bill of Rights was written to make sure that America’s new government would not be the old government of a king. Each important amendment spoke directly to a specific offense committed by the king. The Bill would protect Americans from their government. The rights enumerated in the Bill were not granted by the government, but already present within the People. The Bill said what the government could not take away. Never again, the Founders said.
For over 200 years the Bill of Rights expanded and contracted. Yet through out, the basic principles that guided America were sustained despite war, depression and endless challenges. It was a bumpy road, but it was a road that traveled forward.
(The Founders were imperfect men, and very much of their era. As such, the rights of women and Native Americans were not addressed. Shamefully, the Bill of Rights did not destroy the institution of slavery, our nation’s Original Sin. It would take many years, and often much blood, to make up for those mistakes.)
Post-Constitutional America: 9/12/2001 to the Present
Then, one sharp, blue September 11 morning, everything changed, and our Post-Constitutional era began.
You know the story: NSA spying, drone killing, Guantanamo, arbitrary arrests and police violence. And for every short-hand example, there are many other motes of shame you have probably thought of as you read. If not, open today’s newspaper or Google “NSA” and they’ll most likely be there. Remember too that Manning, Snowden and other whistleblowers were able to pass on only relatively small portions of the information the government is trying to hide, and we haven’t even seen all of the Snowden documents yet.
But isn’t it all legal? Taking the most generous position, all the things the king did, and the government now does, were (albeit often in classified form) approved in (albeit often secret) courts. But in Constitutional America, there was a standard above the law, the Constitution itself. The actions of the executive and the laws passed by Congress were only legal when they did not conflict with the underlying principles of our democracy.
The accepted history of our descent into a Post-Constitutional state is following 9/11, evil people under the leadership of Dick Cheney, with the tacit support of a dunce like George W. Bush, pushed through legally-lite measures to allow kidnapping, torture, imprisonment and indefinite detention, all direct contraventions of the Bill of Rights. Obama, elected on what are now seen as a series of false promises to roll back the worst of the Bush era-crimes, went full-in for the same or more. That’s the common narrative, and it is mostly true.
What is missing is a more complete view. Even today, years after 9/11, 45 percent of Americans say that torture is “sometimes necessary and acceptable to gain information that may protect the public.” Snowden’s revelations about the NSA revealed in depth how far the government has gone, though much of the raw outlines of what he filled in have been known for several years without much exposure in the mainstream media.
Americans, ignorant of their own history, seem unsure whether or not the NSA’s actions are indeed justified, and many feel Snowden and the journalists who published his material are criminals. The most common meme related to whistleblowers is “Patriot or Traitor?” and toward the war on terror, “Security or Freedom?” There is no widespread movement toward any real change in what the government has been doing. It seems many Americans like it, and support it.
To return to the set of rules, laws and beliefs that we still claim in high school civics classes define us, the Bill of Rights, means first deciding we will no longer agree to have those rights taken away from us. No, no, not taken away– given away, too easily. Too many Americans, compelled by fear and assured by propaganda, want the government to expand its powers further, embracing dumb-headly the idea that freedom is in conflict with security. The Founders, even as they remained under significant threat from the then-World’s Most Powerful Nation, knew all along the real dangers did not lie out over the water, but on land, at home, inside.
But wait, people say. I write angry emails all the time and nobody has kicked down my door. I went to court for something and it worked just the way the rules said. I was randomly selected at the airport and it took five minutes, no big deal. True all. For people who’s last strongly held belief was over who got cheated on the last round of Dancing with the Stars, life isn’t very different.
At issue in post-Constitutional America is not that all rights for all people all the time will disappear (though privacy seems on the chopping block.) It is that the government now decides when, where and how the rights which were said to be inalienable still apply. Those decisions will likely be made in secret and will be enforced without recourse. You’ll never know who is next.
We are the first to see what is post-Constitutional America, and perhaps the last who might stop it.
Cody Wilson, who created computer code that will allow someone to 3-D print a handgun, is trying now to use the First Amendment’s right to free speech to assure his Second Amendment right to bear arms.
And he has to sue to the U.S. Department of State to do it.
A Plastic Gun
3-D printing allows the use of plastics and some metals to create three dimensional objects, using an off-the-shelf “printing device” and computer code. You can create the code yourself if you are smart like Cody, or you can buy and download the code from a smart guy like Cody if you are not as smart. The printer takes that code and builds up the object, layer-by-layer (watch it work.) The tech is amazing, and is even being used now on the International Space Station to fabricate spare parts on demand.
Two years ago Cody posted online what is believed to be the world’s first computer code to create a 3-D printable gun. Wilson’s files for what he called the Liberator, a single-shot pistol, were partly a statement about freedom in the digital age and partly an assertion of his Second Amendment rights.
Enter the State Department
A few days after the plans for the Liberator were put online, the State Department ordered Wilson to remove them, threatening him with jail and fines for breaking rules on the export of military data.
State informed him that by posting his files online he may have violated a complicated set of federal regs, the International Traffic in Arms Regulations (ITAR), which seek to prevent the export of sensitive military technology. The regulations are pretty heavy stuff, aimed at stopping the export of classified military hardware, weapons of mass destruction, that sort of thing.
It is unclear that the intent of the regulations was something to do with 3-D printing of a single shot handgun. It appears that, in panic, the Federal government looked through its books for a way to stop people like Cody, and could not come up with anything else without violating the Second Amendment. Hence, the call to the State Department to step in as pseudo-law enforcement.
Note also that no terrorists have been stopped. Wilson removed the code from the web as ordered, but not before it was downloaded 100,000 times. It thus exists forever in cyberspace. And while Wilson is no doubt a clever lad, he is not the first/last/only person to know how to program a 3-D printer.
Wilson Fights Back
Wilson’s first move against State was to spend two years and thousands of dollars on lawyers to him file paperwork to comply with the ITAR regulations. State, for its part, took no action on Wilson’s case (Wilson’s attorneys claim State is obligated to issue a ruling in 60 days and just did not.) The State Department also did not respond to Wilson’s queries that it has no authority to regulate his actions inside the United States, where he believes the Second Amendment applied.
And so Wilson moved to the next step, filing suit via his company in May against the State Department, claiming that its efforts to stop him from publishing his plans amount to a prior restraint on free speech.
Basically, Wilson is trying to use the First Amendment to protect the Second. Pretty sure that is a first.
Wilson’s initial response from the judiciary was not warm. In August, a district judge denied a preliminary injunction against the State Department’s order, stating that any potential violations of Wilson’s Constitutional rights did not outweigh the public interest. Wilson filed an appeal to that decision and the case will be next heard by the 5th Circuit Court of Appeals.
Regardless of one’s thoughts on weapons, the issues here are Constitutionally significant, testing the depth of the First Amendment in the face of ever-expanding technologies, as well as the balance between individual rights and public good. The latter test has always been how the courts have judged limits on free speech (“shouting fire in a crowded theatre.”)
This one has Supreme Court written all over it.
Retired general and former Democratic presidential candidate Wesley Clark on Friday called for World War II-style internment camps to be revived for “disloyal Americans.”
In an interview on MSNBC in the wake of the mass shooting in Chattanooga, Clark said that during World War II, “if someone supported Nazi Germany at the expense of the United States, we didn’t say that was freedom of speech, we put him in a camp, they were prisoners of war.”
(During WWII, the United States detained over 11,000 ethnic Germans in the U.S. The government examined the cases under the Alien and Sedition Acts individually in a form of limited due process, and detained relatively few in internment camps. However, over 120,000 Japanese-Americans were sent off to camps without any form of due process. Most Americans consider these actions along the most shameful abuse of government power and civil rights since the abolition of slavery. The United States continues to pay reparations to those interned.)
Clark called for a revival of internment camps to help combat Muslim extremism, saying, “If these people are radicalized and they don’t support the United States and they are disloyal to the United States as a matter of principle, fine. It’s their right and it’s our right and obligation to segregate them from the normal community for the duration of the conflict.”
(It is unclear what “conflict” Clark is referring to, but we can assume it is the undeclared war on an idea, terrorism. Terrorism has existed roughly since the beginning of civilization, so the duration of any conflict against it seems open-ended.)
Clark’s proposal appears to be based on the concept of targeting people for government scrutiny who are not “radicalized,” whatever that means, but who the government, or perhaps just Clark by himself, decides may become radicalized at some unspecified future date.
“We have got to identify the people who are most likely to be radicalized. We’ve got to cut this off at the beginning,” Clark said. “I do think on a national policy level we need to look at what self-radicalization means because we are at war with this group of terrorists.”
For those keeping score, Clark’s proposal would violate, at a minimum, the rights to free speech, due process and habeas corpus, and cruel and unusual punishment, all the while setting a precedent for “thought crime” in the United States.
Here’s the interview. Please note how the MSNBC drone interviewer does not challenge Clark in any way:
In the next release of statistics from the FBI and DHS about how many terrorist plot they have foiled, remember this one is included.
A 17-year-old Virginia teen, Ali Shukri Amin, faces up to 15 years in prison for contributing to Coin Brief and for Tweets about encryption and Bitcoin. He recently pleaded guilty to providing material support to Islamic State for all that. Amin was a high school honors student in suburban Virginia until his arrest.
Dana Boente, the U.S. Attorney for the Eastern District of Virginia, said the youth’s guilty plea “demonstrates that those who use social media as a tool to provide support and resources to ISIL will be identified and prosecuted with no less vigilance than those who travel to take up arms with ISIL.”
According to the defendant’s signed “Admission of Facts,”, Amin joined Twitter last June and acquired some 4,000 followers and tweeted about 7,000 times.
Here’s what, according to Amin’s court documents, landed him in prison:
— An article he wrote explained what Bitcoins were, how the Bitcoin system worked and suggested using a new Bitcoin wallet, which keeps the user of Bitcoins anonymous. The article included statements on how to set up an anonymous donations system to send money, using Bitcoin, to the mujahedeen.
— Amin tweeted that IS needed an official website and that IS should stop releasing propaganda “in the wild” and instead should consider using JustPaste.it.
— Also also Tweeted this link about Bitcoin.
— According to the government, Amin, “Through various tweets, provided information on how to prevent a website from being taken down, by adding security defenses, and he solicited others via Twitter to assist on the development of the website.”
— On his blog, Amin “authored a series of highly technical articles targeted at aspiring jihadists and ISIL supporters detailing the use of security measures in online communications to include the use of encryption and anonymity software, tools and techniques, as well as the use of the virtual currency Bitcoin as a means to anonymously fund ISIL.”
Amin, who apparently never left his suburban home, is also accused of “radicalizing” an 18-year-old Virginia youth who later traveled to Syria. Amin admitted that he helped the boy get a mobile phone, assisted him with travel, gave him a ride to the airport in his parents’ car and pointed him generally to where he would find IS supporters in Turkey.
Let’s Be Afraid
Critical to understanding how terrifying this arrest and prosecution are is understanding that Amin is going to jail not for what he wrote, but to whom he wrote to and, apparently, what he was thinking when he wrote it.
In other words, information, some of it amazingly technical, is splattered all over the web about Bitcoin, security, encryption and the other topics the high school kid wrote about. The processes are the same whether the money is going to your cool Kickstarter indie band project, or to Islamic State. Amin did not add anything special to the huge pile of info out there.
Instead, he was busted because he Tweeted and blogged openly in the direction of Islamic State. He was thinking nice thoughts about IS while doing it. There is no indication that IS asked him to do this, or responded to him, or even acted on any information he posted.
It is worth noting that IS, like you, could Google “Bitcoin” or any other of Amin’s subjects and read as much material as they wished. In such a case, would those websites also have some culpability toward supporting terrorism?
The limited assistance to the other boy in traveling notwithstanding, Amin seems to be headed to Federal prison for a thought crime tied up in violations of his First Amendment rights.
Keep that in mind before you blog, Tweet, update your Facebook or click on some of the links above, because the Feds are watching.
Social media sites such as Twitter and YouTube would be required to report “terrorist” videos and other content posted by users to federal authorities under legislation approved this past week by the Senate Intelligence Committee.
The measure, contained in the 2016 intelligence authorization, still has to be voted on by the full Senate. The measure applies to “electronic communication service providers,” which includes e-mail services such as Google and Yahoo. “Posted content” would likely also apply to readers’ comments, and in theory to authors’ postings such as this one.
Companies such as Twitter have recently stepped up efforts to remove terrorist content in response to growing concerns that they have not done enough to stem whatever the government deems propaganda. Twitter removed 10,000 accounts over a two-day period in April. Officials want more. “In our discussions with parts of the executive branch, they said there have been cases where there have been posts of one sort or another taken down” that might have been useful to know about, a Senate aide said.
The snitch bill is modeled after a federal law — the 2008 Protect Our Children Act — that requires online firms to report images of child pornography and to provide information identifying who uploaded the images to the National Center for Missing and Exploited Children. The center then forwards the information to the FBI. Of course actual images of child porn are pretty straightforward to notice, exploit innocents and involve no legitimate protected speech.
But otherwise, sure, it’s the same thing. Statement: I Like Terrorism = Child Rape Images.
Industry officials privately called the new law a bad idea only because it sounds like an expensive hassle for them. “Asking Internet companies to proactively monitor people’s posts and messages would be the same thing as asking your telephone company to monitor and log all your phone calls, text messages, all your Internet browsing, all the sites you visit,” said one official.
Wait, isn’t that what we’ve been told the NSA has been doing to us since 9/11?
Still, national security experts who will likely personally profit from the measure say it makes sense. “In a core set of cases, when companies are made aware of terrorist content, there is real value to security, and potentially even to the companies’ reputation,” said Michael Leiter, a former director of the National Counterterrorism Center, now an executive vice president with Leidos, a national security contractor. “Rules like this always implicate complex First Amendment and corporate interests. But ultimately this is a higher-tech version of ‘See something, say something.’”
But what about those nasty First Amendment issues?
“The intelligence bill would turn communications service providers into the speech police, while providing them little guidance about what speech they must report to the police,” said Gregory Nojeim of the Center for Democracy and Technology. “The natural tendency will be to err on the side of reporting anything that might be characterized as ‘terrorist activity’ even if it is not. And their duty to report will chill speech on the Internet that relates to terrorism.”
America: A nation of snitches, watching each other, reporting whatever thing we think is suspicious or terrorism. To The Authorities. But it’s for our own good, right Citizens? I think I saw a Twilight Zone like that. No, wait, it was the McCarthy Era, sorry.
It comes down to things like this as citizens fight to preserve their basic rights in the face of militaristic police encounters. So let us use technology to fight back.
A new smartphone app from the ACLU (available in iPhone and Android versions) does two very good things. It allows citizens to exercise their right to video police encounters in the public space, and it guards against the cops unlawfully destroying that video to cover up their own crimes. The ACLU app accomplishes this by allowing people to auto-upload cellphone videos of police encounters to the ACLU. The ACLU will then review and preserve the video footage, even if the cops seize the phone and delete the video or destroy the phone.
In addition, once the video is uploaded, the user can delete the information from his/her phone, lessening the chance of retaliation by the cops if they discover the “evidence” during a post-arrest search.
The app features a large red “Record” button in the middle of the screen. When it’s pressed, the video is recorded on the phone and a duplicate copy is transmitted simultaneously to the ACLU server. When the “stop” button is pressed, a “Report” screen appears, where information about the location of the incident and the people involved can also be transmitted to the ACLU. The video and the information are treated as a request for legal assistance and reviewed by staff members. No action is taken by the ACLU, however, unless an explicit request is made, and the reports are treated as confidential and privileged legal communications. The videos, however, may be shared by the ACLU with the news media, community organizations or the general public to help call attention to police abuse.
The app is available in English and Spanish. It includes a “Know Your Rights” page, a library of ACLU materials in your pocket.
“People who historically have had very little power in the face of law enforcement now have this tool to reclaim their power and dignity,” said the director of the Truth and Reinvestment Campaign at the Ella Baker Center, which is working with the ACLU of California to support the launch of the app.
Who will guard the guards? We will.
A story of our times, with massive First Amendment issues embedded.
A federal judge ruled that a group (more below, who they are makes this case even more complex) may put up posters on New York’s public buses and subways saying “Killing Jews is worship that draws us close to Allah.” The poster features a young man in a checkered headscarf with the additional words “That’s His Jihad. What’s yours?”
The poster is now at the epicenter between public safety and free speech. On Tuesday, a District judge ruled New York’s Metropolitan Transportation Authority (MTA) cannot stop the controversial ad.
The MTA argued the ad could incite violence against Jews.
However, MTA officials “underestimate the tolerant quality of New Yorkers and overestimate the potential impact of these fleeting advertisements,” the judge stated in his ruling. “Moreover, there is no evidence that seeing one of these advertisements on the back of a bus would be sufficient to trigger a violent reaction. Therefore, these ads — offensive as they may be — are still entitled to First Amendment protection.”
The MTA has now fired the next shot in the struggle, banning all “political” advertising on its subways and buses. You can certainly expect that decision to be challenged by a very broad range of actors.
The Speaker Versus the Speech
The issues surrounding the “Kill Jews” poster are complicated, in that the sponsor is a pro-Israel, anti-Muslim organization. Pamela Geller, the president of the American Freedom Defense Initiative (AFDI), the group that purchased the ads and sued the MTA to run them, was overjoyed at the court’s decision to allow her to post the, to some, inflammatory ads.
The Southern Poverty Law Center considers AFDI an “anti-Muslim” hate group. For example, earlier this year AFDI organized a portrait of the Prophet Mohammed contest, despite objections from Muslims who consider images of the Prophet blasphemous.
The presumed purpose of the “Kill Jews” ads placed by a pro-Israel group is to conflate the murder of innocents of one religion by smearing all members of another religion.
But can they say that kind of thing? Isn’t it Hate Speech and isn’t that illegal?
The Limits of Free Speech
The right to free speech enshrined in the First Amendment to the Constitution isn’t there for the easy cases; it is there for the tough ones.
The Supreme Court has thus been very reluctant in modern times to issue limits on free speech; what is now commonly called “hate speech,” things like the Klu Klux Klan using the N-word, or religious fundamentalists protesting at veteran’s funerals by way of anti-gay slurs, have been ruled repeatedly to be protected acts of free speech. You get the good with the bad, no matter what you personally consider the good parts and the bad parts.
See how it works?
Some Bad History
The broad concept of free speech is somewhat recent in the Supreme Court’s mind.
One of the most shameful examples of restraint comes from the early 20th century case of U.S. v. Schenck. In that case, the Court decided Charles Schenck, the Secretary of the Socialist Party of America, could be convicted under the Espionage Act for writing and distributing a pamphlet that expressed opposition to the draft during World War I. It was in that case that Justice Holmes made his famous statement in favor of restraint, the one about free speech not allowing someone to shout “fire” in a crowded theatre.
So hate speech is illegal, like shouting Fire! and panicking a whole theatre full of people, right?
That Was Then, This is Now
The Supreme Court then did a 180 degree turn in the 1969 case of Brandenburg v. Ohio, which basically overturned Schenck. The Court held that inflammatory speech, even speech advocating violence, is protected under the First Amendment unless the speech “is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”
That is where today’s New York District judge’s specific wording came from. When he said that New Yorker’s would understand the broader political point of the “Kill Jews” poster and not actually be moved to murder, he was confirming the standard set in Brandenburg v. Ohio: you have to do more than just announce an intent toward violence, your statement has to be such that people will be actually willing to follow it.
Back to the New York Buses
Of course predicting what people might do in response to any bit of speech is very hard stuff. But the Supreme Court in fact granted that power to predict to the judicial system. In the “Kill Jews” case, the judge clearly decided no one would see the ads and decide, based on that, to actually commit murder.
And that brings us back to Justice Holmes, the same Supreme Court judge who gave us the “fire in the crowded theatre” lines. Holmes later recanted, and became a firm advocate of nearly unrestrained free speech. Holmes wrote (Abrams v. United States) that the marketplace of ideas offered the best solution for tamping down offensive speech:
The ultimate good desired is better reached by free trade in ideas — that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out.
In other words, let the ads play out on the New York buses and subways. The people are smart enough to know garbage when they smell it.
The government can kill all cell service in a designated area of its choice during “emergencies,” and does not want to disclose any details about how or when they might employ this.
Implications for the First Amendment are made clear by one known local use — San Francisco’s Bay Area Rapid Transit System disabled service to quell protests in four downtown San Francisco stations over the fatal shooting of Charles Blair Hill by police.
Standing Operating Procedure 303
The Department of Homeland Security came up with the Federal-level plan — known as Standing Operating Procedure 303 — after cellular phones were used to detonate explosives targeting the London public transportation system in 2005. Unbeknownst at the time to the public, the government shut down cell service in various locations in New York City, primarily around tunnels to and from Manhattan.
SOP 303 spells out a “unified voluntary process for the orderly shut-down and restoration of wireless services during critical emergencies such as the threat of radio-activated improvised explosive devices.” Since the details of SOP 303 remain secret, no one is certain when or how it might be invoked.
The U.S. Court of Appeals for the District of Columbia Circuit in February sided with the government and ruled that the policy did not need to be disclosed under a Freedom of Information Act (FOIA) request from the Electronic Privacy Information Center (EPIC.) The court agreed with the government’s citation of a FOIA exemption that precludes disclosure if doing so “could reasonably be expected to endanger the life or physical safety of any individual.”
EPIC asked the court to revisit its ruling. On April 10, the court ordered the government to respond, a move that suggests the appellate court might rehear the case.
EPIC originally asked for the document in 2011 in the wake of the shut down of mobile phone service in the San Francisco Bay Area subway system during a protest. The government withheld the information, EPIC sued and won, but the government then appealed and prevailed.
Who Decides When to Kill the Network?
Under the direction of the so-called National Security Telecommunications Advisory Committee, SOP 303 allows for the shutting down of wireless networks “within a localized area, such as a tunnel or bridge, and within an entire metropolitan area.” That Advisory Committee is a Reagan-era, presidentially-appointed body composed of up to 30 senior executive-level representatives from communications, information technology, banking, and aerospace companies.
Since SOP 303 is not a law, it cannot be enforced. However, the telecoms have agreed to cut off cell service voluntarily whenever the Federal government requests SOP 303 be invoked.
The process of shutting down the cell service goes through the National Coordinating Center for Telecommunications (NCC), a coordination body set up by Ronald Reagan in 1984. The NCC, which includes representatives from the Central Intelligence Agency, Federal Emergency Management Agency, National Security Agency, every important cabinet department, and a few dozen big telecommunications and defense companies, takes shutdown requests from state and national Homeland Security officials, verifies whether they are “necessary,” and passes those requests on to wireless carriers in the affected areas.
First Amendment Questions
Because cutting off communications imposes a prior restraint on speech, it’s unclear whether SOP 303 is constitutional, and of course the specifics of the agreement are secret and the limits of government authority in this area have never been tested in court.
According to Eva Galperin of the Electronic Frontier Foundation, governments in places like China regularly shut down cellphone service to quell protests. “They did it in Egypt as well,” she explained, during the protests that deposed former Egyptian president Hosni Mubarak.
The exact decision-making process in the United States is classified. But you’ll know when it happens — check your phone for bars.
First Amendment Semi-Win After Military Police Harass, Sexually Threaten Journalist
A very basic tenet of our democracy is that a free press exists to report to The People on the actions of their government, and that government is prohibited by the beautiful words of the First Amendment from interfering. In a small instance in Ohio, after the government had military police officers in the United States harass and confiscate the cameras of journalists, the journalists went to court and won back their rights.
The U.S. government agreed to pay The Toledo Blade newspaper $18,000 for seizing the cameras of a photographer and deleting photographs taken outside the Lima Tank plant last year. In turn, The Blade agreed to dismiss the lawsuit it filed U.S. District Court on behalf of photographer Jetta Fraser and reporter Tyrel Linkhorn against Chuck Hagel, then Secretary of Defense and the military police officers involved in the March 28, 2014, incident.
An attorney for The Blade said the settlement was made under the First Amendment Privacy Protection Act, which prohibits the government, in connection with the investigation of a criminal offense, from searching or seizing any work product materials possessed by a journalist. “The harassment and detention of The Blade’s reporter and photographer, the confiscation of their equipment, and the brazen destruction of lawful photographs cannot be justified by a claim of military authority or by the supposed imperatives of the national security state.”
The government admits no wrongdoing, however, and just paid off the settlement.
Here’s what happened. The reporter and photographer were in Lima to cover a news conference at another facility and had been tasked to take photos of area businesses for future use, including pictures of the tank plant, known as the Joint Systems Manufacturing Center.
As the pair were leaving they were detained by three military police officers and questioned. Fraser showed the officers her Blade identification, but initially declined to provide her driver’s license as she was not driving. She was removed against her will from her vehicle and handcuffed for more than an hour.
During the confrontation, the officers repeatedly referred to Ms. Fraser in the masculine gender. She objected and was told by one officer, “You say you are a female. I’m going to go under your bra.”
The officers then confiscated two cameras, memory cards, a pocket-sized personal calendar, and a notebook in clear violation of the First Amendment.
Philly Cop Arrests Man for Photographing Philly Cop Harassing Homeless Woman
A college student arrested as he photographed a Philadelphia police officer harass a homeless woman in a public park was put into handcuffs and held for an hour. Federal jurors must now decide whether the cop had cause to cuff Coulter Loeb, 24, and charge him with disorderly conduct.
The case, however, is about far more than a simple disorderly conduct rap. At issue is how the Philadelphia government sees the First and Fourth Amendments to the Constitution, and how it views people fulfilling their responsibilities as citizens to provide oversight to government employees performing their jobs. And it does not look good for all that in Philly.
Things went south almost from the get-go, after the trial judge dismissed any connection between the arrest and the First Amendment.
In a pretrial order that covered two similar cases, the judge ruled that the federal appeals court in Philadelphia had not “clearly established” a First Amendment right to photograph police as of 2011, when this incident occurred. “Whether the Third Circuit will eventually decide to follow what appears to be a growing trend in other circuits to recognize a First Amendment right to observe and record police activity is, of course, not for this court to decide, even if there are good policy reasons [to] adopt that change,” U.S. District William Yohn wrote. He therefore threw out Loeb’s free-speech claim, leaving a jury to weigh only the Fourth Amendment issues of false arrest and malicious prosecution.
Moving on to how the city of Philadelphia views these issues, we turn to the city attorney working the case, who described arrestee Coulter Loeb, in front of his ACLU attorney, as “a meddlesome 24-year-old” with “very high-minded ideas about government” and the role of media. The Assistant City Solicitor told jurors that Loeb was interfering with police work by photographing police work in a public place.
But what was in the mind of the arresting officer? “He [Loeb ]looked me up and down, and then took one step back. That to me was being a wise guy,” said the cop.
Irony Alert: Yes, yes, it was in Philadelphia in 1787 that the Constitutional Convention was held. How far we have fallen.
As regular readers of this blog know, a central theme of mine is Post-Constitutional America, the third great era of our history.
The Way It Was
In the first era, the colonial years, a unitary executive, the King of England, ruled without checks and balances, allowing no freedom of speech, due process, or privacy when it came to protecting his power.
In the second, the principles of the Enlightenment and an armed rebellion were used to push back the king’s abuses. The result was a new country and a new constitution with a Bill of Rights expressly meant to check the government’s power. As imperfect as all that was, it represented a concept of moving toward the better. Those ideas — enshrined in the Bill of Rights — are disarmingly concise. Think of them as the haiku of a genuine people’s government.
The Way It Is
Now, we are wading into the ever-deeper waters of a third era, a time when that government is abandoning the basic ideas that saw our nation through centuries of challenges far more daunting than terrorism.
America has entered its third great era: the post-constitutional one. Here we have only the rights the government allows us to have. Think of it as a variable totalitarian system. Free speech is not outlawed, but can be restricted at will — a punk cop Tasers a legitimate protester, the Federal government slams a prominent journalist away. Privacy exists, but only as the government doles it out, often as a reward for not being a troublemaker, while retaining the “right” to pull it away. The Stasi and 1984‘s Big Brother sought total control over every aspect of peoples’ lives; today’s power is used as needed, though the mechanisms of broad application exist and grow.
Not by Any Recognizable Rules
On or about Sept. 11, 2001, American character changed. What Americans had proudly flaunted as “our highest values” were now judged to be luxuries that in a new time of peril the country could ill afford. Justice, and its cardinal principle of innocent until proven guilty, became a risk, its indulgence a weakness. Asked recently about an innocent man who had been tortured to death in an American “black site” in Afghanistan, former Vice President Dick Cheney did not hesitate. “I’m more concerned,” he said, “with bad guys who got out and released than I am with a few that, in fact, were innocent.” In this new era in which all would be sacrificed to protect the country, torture and even murder of the innocent must be counted simply “collateral damage.”
At its root is a maddening ambiguity born of a system governed not by any recognizable rules of evidence or due process but by suspicion, paranoia and violence.
That sums it up for me about as well as anything else I’ve been allowed by the government to read.