Tag: First Amendment

Show Your Civic Illiteracy

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For proof of how many Americans fail to comprehend the scope of fundamental rights protected by the U.S. Constitution–not that more proof is needed–read this story about a high school student who successfully challenged the presence of a Christian prayer that has been affixed to the wall of her public school for almost 50 years.

A federal judge ruled this month that the prayer’s presence at Cranston High School West was unconstitutional, concluding that it violated the principle of government neutrality in religion.

In the weeks since, residents have crowded school board meetings to demand an appeal, Jessica has received online threats and the police have escorted her at school, and Cranston, a dense city of 80,000 just south of Providence, has throbbed with raw emotion.

State Representative Peter G. Palumbo, a Democrat from Cranston, called Jessica “an evil little thing” on a popular talk radio show. Three separate florists refused to deliver her roses sent from a national atheist group.

Based on the presence of this prayer in a public school for 49 years and the response of some of its inhabitants to Jessica Ahlquist’s assertion of a well-settled principle established by the First Amendment’s establishment clause I agree that Cranston is indeed “a dense city.” The decision’s opponents are of course entitled to voice their opinions, but one wishes they demonstrated some knowledge of establishment clause jurisprudence before excoriating her.

“Reincarnation Credentials?”

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The New York Times reports on an interesting case involving William Lawrence Cassidy, who posted over 8,000 Twitter and blog posts attacking a Buddhist leader named Alyce Zeoli. Cassidy has been arrested and charged with with violating a federal online-stalking statute, which raises First Amendment issues.  His speech would be protected if he were to stand on a soapbox and harangue passersby with the content of his Tweets, unless they constituted “true threats” of harm to Ms. Zeoli. The question is whether delivering these messages through Twitter changes their character. Zeoli’s lawyer said the Tweets are analogous to “handwritten notes” directed personally to Ms. Zeoli.  The Electronic Frontier Foundation has asked the court to recognize the protected nature of Cassidy’s tweets. It’s not relevant to the First Amendment issue, but Cassidy is not a sympathetic character. The Times reports “[h]e has a record of assault, arson and domestic violence. According to the federal complaint, he was also convicted of carrying an unspecified “dangerous weapon” onto a plane in 1993.”  We will undoubtedly discuss this case in classes this fall.

But that’s not the primary reason for this post.  Sometimes I just cannot let small absurdities pass without comment.  The Times reports “Ms. Zeoli is considered to be a reincarnated master in the Tibetan Buddhist religious tradition, and is known to her followers as Jetsunma Ahkon Lhamo.” Cassidy’s animus towards Ms. Zeoli apparently arose after he”also claimed to be a reincarnated Buddhist,” claimed he had cancer, and joined Zeoli’s organization. He left and began posting anti-Zeoli messages “after they came to doubt his reincarnation credentials and found that his claims of cancer were false.”

This clearly has nothing whatsoever to do with the First Amendment issues but what, I must ask, are reincarnation credentials?

Cyberbullying Acquittal

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Missouri’s first post-Megan Meier cyberbullying prosecution ended in the defendant’s acquittal.  Elizabeth Thrasher was charged with harassment after a spat with her ex-husband’s girlfriend’s teenage daughter led her to post personal information and photos culled from the daughter’s MySpace page on a Craigslist sex-wanted site.  The daughter kicked off the spat by calling Thrasher a “fat fucking bitch” in an email.   The Missouri law was enacted after the much-publicized suicide of 13-year old Megan Meier, after Meier was bullied by a neighborhood mother acting through a fictitious MySpace proxy.  (I need diagrams to understand these relationships.)  Following the acquittal the state prosecutor said “I think there are some difficulties with the statute that were brought to our attention.”  If convicted Thrasher faced up to four years imprisonment.

Shariah Ban KO’d in OK

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I should have posted this months ago to close the story.  Better late, etc.  Remember Oklahoma’s referendum last November (see posts here and here) banning Shariah law, sponsored by a Republican legislator and approved by 70% of voters, even though there’s no binding U.S. court decision applying Shariah law?  A federal judge, as predicted, permanently barred the Shariah ban, ruling that its “primary effect inhibits religion and . . . fosters an excessive government entanglement with religion.”

The U.S. House made a big show last week of reading the U.S. Constitution aloud.  Maybe if our citizens and elected officials spent less time mouthing and more time understanding application of its words, they’d promote fewer obviously unconstitutional laws.

More on WikiLeaks

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In my Internet law course we talk about some of the Internet cultures that formed in the 1990’s–techno-Utopians, anarchists, parliamentarian legalists, and royalists, to borrow Julian Dibble’s categories. Many students wonder why.  These categories from a lost world have little relevance to the environment in which they Facebook and SMS; it’s like discussing Whigs and Tories.  I tell them these cultures still exist and can shape current debates about Internet governance, but I’m sure this sounds academic.  But what I love about teaching Internet law is how events coincide with class discussions.  Anyone who doubts the relevance of  the forces these categories represent has not heard of WikiLeaks.

More WikiLeaks articles, reaction, and analysis:


Today’s Amazon Special: Flip-Flops

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Amazon.com has taken brief, Kerry-esque, we-were-for-it-until-we-were-against-it stands on recent controversies.

  • That’s What Pedophilia Means? A month ago Amazon.com received heat for selling The Pedophile’s Guide to Love and Pleasure: a Child-lover’s Code of Conduct, a self-published rulebook by the self-appointed Mr. Manners of pedophilia.   Amazon.com defended its right to sell–and purchasers’ right to purchase–books on controversial topics.  “Amazon believes it is censorship not to sell certain books simply because we or others believe their message is objectionable.  Amazon does not support or promote hatred or criminal acts, however, we do support the right of every individual to make their own purchasing decisions.”   Amazon.com should have added “we will continue to support this right for 24 hours or until we cave to customer pressure, whichever occurs first.”  One day later it pulled the book–figuratively, of course, and without comment–from its electronic shelves. I am mildly critical of its decision not to sell the book. The First Amendment protects the book’s content, repellent as it may be, but Amazon.com’s mission is selling stuff, not defending First Amendment rights.  On a continuum of American values Amazon.com is closer to Wal-Mart and Sears than Feisty Independent Urban Bookstore.  My values are not Wal-Martian (pronounced “mar-tee-an”, nor “marshan”) but I respect that Wal-Mart would have known it’s opposition to the Pedophile’s Guide from jump. Amazon.com should have known more of its customers would howl in protest than applaud its courage.  It should have known that however heady the experience of staunchly defending the Bill of Rights, defiance in the face of threatened boycotts is not in its corporate DNA.  Better to be honest and say “we sell so much stuff that inappropriate content sometimes gets through our filters. We respect the First Amendment but we respect our customers’ patronage more.  We screwed up and we’re pulling the book.  Be aware it is likely to happen again, because we sell so much stuff that we can’t monitor all of it.”
  • We’re Hosting That WikiLeaks? Hackers targeted WikiLeaks after its release of hundreds of thousands of classified U.S. diplomatic documents.  Last week WikiLeaks moved its server operations to Amazon.com which, in addition to selling lots of stuff, hosts other websites, offering them the same robust protection from DDoS attacks and other hacker misanthropy that it provides itself.  A few days later Connecticut Senator Joseph Lieberman called Amazon with pointed questions about hosting WikiLeaks on its cloud servers.  A day later, denying Lieberman’s criticism was the cause, Amazon.com terminated WikiLeaks’ hosting account.  Why?  Because WikiLeaks’ was violating Amazon.com’s Terms of Service by providing access to content–the diplomatic cables–that violated a third-party’s rights to the content. This was not a late-breaking development in the WikiLeaks story. It moved its hosting to Amazon.com because it wanted protection from DDoS attacks directed at WikiLeaks in retaliation for its release of the cables.  A cynic might believe that WikiLeaks played Amazon.com like a cheap harmonica, knowing its penchant for waffling would result in Amazon.com throwing WikiLeaks back into the cold, cruel world only days after offering shelter.*

*Which makes me wonder if WikiLeaks founder/face/czar Julian Assange has a Christ complex.  But that’s a topic for another post.

WikiLeaks II

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The best source I’ve found of potential criminal charges in connection with WikiLeaks’ release of diplomatic correspondence is from the Congressional Research Service.  Dated December 6, written by Legislative Attorney Jennifer K. Elsea, and 21 pages long, Criminal Prohibitions on the Publication of Classified Defense Information describes the leaked documents, communications between WikiLeaks and the U.S. Government, the criminal statutes protecting classified information, and other relevant legal issues.  It includes this summary:

This report identifies some criminal statutes that may apply, but notes that these have been used almost exclusively to prosecute individuals with access to classified information (and a corresponding obligation to protect it) who make it available to foreign agents, or to foreign agents who obtain classified information unlawfully while present in the United States. Leaks of classified information to the press have only rarely been punished as crimes, and we are aware of no case in which a publisher of information obtained through unauthorized disclosure by a government employee has been prosecuted for publishing it. There may be First Amendment implications that would make such a prosecution difficult, not to mention political ramifications based on concerns about government censorship. To the extent that the investigation implicates any foreign nationals whose conduct occurred entirely overseas, any resulting prosecution may carry foreign policy implications related to the exercise of extraterritorial jurisdiction and whether suspected persons may be extradited to the United States under applicable treaty provisions.

WikiLeaks

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Tomorrow’s Internet law class-our last this semester–will focus on WikiLeaks.  (Good luck loading wikileaks.org.  The first topic may be “if a website’s URL does resolve to the site’s home page, does the site exist?” Another of the top four Google responses to a search for wikileaks.org also failed to load: http://cablegate.wikileaks.org/.    The two sites that loaded, with links to the leaked U.S. diplomatic correspondence, are http://213.251.145.96/ and   http://213.251.145.96/cablegate.html.)  This week it is hard not to find news stories, blog posts, rants, and raves about WikiLeaks’ dissemination of the diplomatic cables.  In no particular order, with no endorsement of their respective stances, and with no representation that these are the best courses of information, here is some of what I’ve read:

I’ll post more links when I access my laptop at school.

WikiLeaks is a mother lode of discussion topics:  freedom of speech, freedom of the press, national security, criminal law, extradition, ethics, Internet culture, network architecture, network security, file-sharing technology, citizen journalism, hacking, the 24-hour news cycle . . . and more, no doubt.

Hypocrisy, for example. WikiLeaks’ founder Julian Assange’s stated goal for WikiLeaks is to puncture organizations that maintain their authority by conspiring to hide information about their activities. In other words, secrecy–whether practiced by the United States government or sorority Alpha Sigma Tau–is inherently bad, therefore revealing secrets is inherently good.  Zunguzungo.com’s* lengthy, reverential exegesis of Assange’s writings favorably characterizes his definition of a conspiracy as “simply any network of associates who act in concert by hiding their concerted association from outsiders, an authority that proceeds by preventing its activities from being visible enough to provoke counter-reaction.”  Let’s see–network of associates . . . act in concert . . . hide concerted association . . . prevent visibility to outsiders . . . not accountable to anyone . . . doesn’t that perfectly describe WikiLeaks and its supporters?

Unless the topic is, say, engineering or math, I distrust binary thinking.  Reducing complex problems to black-and-white alternatives requires no thought, no analysis, no understanding of human nature, no judgment, no room for growth, no self-doubt, no capacity to listen, no compassion, no heart, no soul, none of what is special about humanity.   Assange’s blind faith in transparency makes him just another True Believer whose ego requires imposing his beliefs on the world.

*Which the website defines, apparently, as “harmonization [variant: harm minimization]”**

**To which I reply, wtf?

Oklahoma Reaffirms Law of Gravity

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A federal judge in Oklahoma–apparently visiting the state from the 21st century–enjoined enforcement of the recently-passed referendum banning consideration of Shariah law, among other things, from consideration by Oklahoma courts.  On November 22 the judge will hear arguments on whether the “Save Our State” amendment violates the First Amendment.  70% of Oklahomans (Oklahopersons?) voted for the ban.  To put it another way, seventy percent voted in favor of a law banning a practice that has not happened, and has no legal basis for happening, under the U.S. Constitution.

“Ohhhhh-Kla-Homa . . .”*

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” . . . where the wind comes whistling through our brains ”  last week approved State Law 755, which mandates that Oklahoma courts “shall not consider international law or Sharia Law.”   70% of Oklahomans voted for the Sharia Ban, the constitutionality of which has been challenged in a federal lawsuit filed last Thursday.  (No word on whether Oklahoma will consider any of my suggested ballot initiatives.)  Why did Oklahoma need to instruct it’s courts not to even think about Sharia Law?  Is the ban reflective of this country’s virulent anti-Islamic sentiment?

A co-sponsor, state Sen. Anthony Sykes, denied it sought to stigmatize Muslims. “We’re not trying to send any sort of message here,” said Mr. Sykes, a Republican. Rather, he said, Oklahomans wanted to insulate their judiciary from un-American influences. While no Oklahoma court ever has cited Shariah law, “we are on a slippery slope,” he said.

The linked WSJournal article in which this quotation appears notes that other states

have considered rules that restrict judges from making decisions that take into account foreign or international legal materials . . . Only Oklahoma’s measure singles out a particular religious tradition, []  though a proposal in Arizona lists Shariah along with canon law, Jewish law and karma, a conception of fate in Hindu and Buddhist traditions.

Wouldn’t preventing a court from considering karma itself be bad karma, resulting in all sorts of undesirable results?  I guess if you elected governor Jan Brewer and Sheriff Joe Arpaio, you aren’t worried about karma.

Mr. Sykes said he wanted to protect the Oklahoma judiciary from the influence of “Justices Ruth Bader Ginsburg and Elena Kagan and, I’m sure, Sonia Sotomayor, given her political leanings,” who he believed were inclined to rely on international law.

Idiocy.

*Recognizing that this may not trigger instant recognition in all AFC readers, here’s Oklahoma–sung by Hugh Jackman.