First Amendment Archives - Page 2 of 3

The “right to be forgotten” bill should be forgotten

This bill is a constitutional and policy disaster that shows no sign that the drafters made any attempt whatsoever to conform to the requirements of the constitution. It purports to punish both speakers and search engines for publishing—or indexing—truthful information protected by the First Amendment.

Intellectual property lawyer/drummer Paul Rapp noted that a “right to be forgotten” bill has been introduced in the New York legislature. “These laws are based on some supposed ‘human right’ that… says you’re entitled to have embarrassing things in your past ‘forgotten’ on the internet.”

From New York Assembly Bill 5323, introduced by Assemblyman David I. Weprin and, as Senate Bill 4561 by state Senator Tony Avella: “Requires search engines, indexers, publishers and any other persons or entities which make available, on or through the internet or other widely used computer-based network, program or service, information about an individual to remove such information, upon the request of the individual, within thirty days of such request.”

The Washington Post writes:

So, under this bill, newspapers, scholarly works, copies of books on Google Books and Amazon, online encyclopedias (Wikipedia and others) — all would have to be censored whenever a judge and jury found (or the author expected them to find) that the speech was “no longer material to current public debate or discourse” (except when it was “related to convicted felonies” or “legal matters relating to violence” in which the subject played a “central and substantial” role). And of course the bill contains no exception even for material of genuine historical interest; after all, such speech would have to be removed if it was “no longer material to current public debate.” Nor is there an exception for autobiographic material, whether in a book, on a blog or anywhere else. Nor is there an exception for political figures, prominent businesspeople and others.

But the deeper problem with the bill is simply that it aims to censor what people say, under a broad, vague test based on what the government thinks the public should or shouldn’t be discussing. It is clearly unconstitutional under current First Amendment law, and I hope First Amendment law will stay that way (no matter what rules other countries might have adopted).

The website Reason received this blistering analysis from First Amendment attorney Ken White of Brown, White & Osborn (and also of Popehat fame):

This bill is a constitutional and policy disaster that shows no sign that the drafters made any attempt whatsoever to conform to the requirements of the constitution. It purports to punish both speakers and search engines for publishing—or indexing—truthful information protected by the First Amendment. There’s no First Amendment exception for speech deemed “irrelevant” or “inadequate” or “excessive,” and the rules for punishing “inaccurate” speech are already well-established and not followed by this bill. The bill is hopelessly vague, requiring speakers to guess at what some fact-finder will decide is “irrelevant” or “no longer material to current public debate,” or how a fact-finder will balance (in defiance of the First Amendment) the harm of the speech and its relevance. The exceptions are haphazard and poorly defined, and the role of the New York Secretary of State in administering the law is unclear. This would be a bonanza for anyone who wanted to harass reporters, bloggers, search engines, and web sites to take down negative information, and would incentivize such harassment and inflict massive legal costs on anyone who wanted to stand up to a vexatious litigant.

Conversely, the Association for Accountability and Internet Democracy (AAID) supports the bill, saying that “that the Right to Be Forgotten has allowed thousands of victims throughout the European Union to reclaim their dignity and their right to live a normal life unaffected by online exclusion from society.”

I remain unconvinced that the possible value of this legislation outweighs the onerous burden of removing true but supposedly “irrelevant” speech, and as a librarian, I actively oppose this bill.

Constitution Day 2015

Eliminating birthright citizenship… It implies a reckless urge to break down ancient legal principles without inquiring why those traditions existed in the first place.

Close up of the Constitution of the United States of America with quil feather pen — Close up of the Constitution of the United States of America with quill feather pen

Constitution Day is tomorrow, so I found some articles from the previous 12 months, pulling out quotes, to commemorate it. I suggest you read the whole article.

Civics For Dummies: Judicial Review
People who dislike particular court rulings often imagine that this power of judicial review wasn’t in the Founders’ original vision at all; somewhere along the line the Supreme Court just usurped it. But in fact, the Founders foresaw judicial review and approval.

How the NRA Rewrote the Second Amendment
“‘One loves to possess arms’ wrote Thomas Jefferson, the premier intellectual of his day, to George Washington on June 19, 1796.” What a find! Oops: Jefferson was not talking about guns. He was writing to Washington asking for copies of some old letters, to have handy so he could issue a rebuttal in case he got attacked for a decision he made as secretary of state. The NRA website still includes the quote. You can go online to buy a T-shirt emblazoned with Jefferson’s mangled words.

Opinion analysis: Reasonable mistakes of law by police do not violate the Fourth Amendment
The vague word “unreasonable” in the Fourth Amendment is a lawyer’s playground, and questions about what sort of circumstances constitutionally permit law enforcement seizures have thus plagued the federal courts since the Fourth Amendment was adopted.

Arizona, the Supreme Court and the End of Gerrymandering
In the fullness of time, it all wound up in litigation, in a wrangle over the definition of the word “legislature” that eventually reached the Supreme Court. What is a “legislature,” exactly? Is it a body of elected officials? Is it a body appointed by the people to perform a specific legal purpose? Can it be both?

Nothing Is More “Conservative” Than Birthright Citizenship
Make no mistake, eliminating birthright citizenship would require an overthrow of established traditions. It implies a reckless urge to break down ancient legal principles without inquiring why those traditions existed in the first place. In short, it requires precisely the sort of thing conservatives are supposed to be against.

The Five Worst Supreme Court Justices In American History, Ranked
Even amidst this dark history, certain justices stand out as particularly mean-spirited, ideological, or unconcerned about their duty to follow the text of the Constitution.

This week in Obama political scandal

It’s the attempt by the federal government to make legal acts, or marginally illegal acts, literally a federal case.

President Obama is currently embroiled in three situations labeled as political scandal. The IRS scandal is the most problematic in that it involves a highly disliked arm of government that affects almost everyone’s lives. But I agree that the REAL scandal in the IRS issue is that there are lots of political groups on both ends of the political spectrum getting tax-exempt status, when that designation should be limited to more cultural/civic issues. Since the Citizens United ruling by the Supreme Court in 2010, there have been far more organizations of every political stripe trying to influence elections, sometimes illegally. Also, the richer applicants fell under lesser scrutiny, a real class distinction. The President has shown public indignation over this particular issue, but he may be missing the bigger picture.

The notion that the Benghazi story is bigger than Watergate and Iran contra combined suggests that the “silly season” has already begun, Bob Woodward’s assertion notwithstanding. If there are altered documents, it may be Republicans feeding them to the mainstream media. At the end of the day, the real story on the government side will be that the US was ill-prepared for an attack in a hot spot, on a significant day (9/11 in 2012) despite warnings within the Administration, that no help was available to those who died there; that’s the scandal. The “talking points” of who said what, and when? An issue will be made of this, but it seems like usual interagency jockeying, rather than malicious intent to me.

I’m much more concerned by the unethical seizure of phone records of Associated Press journalists in connection to media leaks; it’s not just that First Amendment “freedom of speech” thing; it’s a Fourth Amendment “unreasonable search and seizure” thing, which has the effect of stifling whistleblowers. It’s the attempt to make legal acts, or marginally illegal acts, literally a federal case. One saw this in the Aaron Schwartz case, huge governmental overreach. The story of the octogenarian nun in federal prison for protesting may tick you off as it did me.

The President, as noted, seems to be worked up over one of these issues, but is more defensive about the other two. I would wish he’d get more excited about trampling people’s constitutional rights, but that does not appear to be in the cards. I find his behavior disappointing, to say the least.

Still, when the I word gets thrown around, I agree with this assessment: “it would take about fifty of each of the three to collectively equal Watergate, let alone the impeachment and incarceration we should have had over Iraq.”

Another day, another mass shooting

After President Reagan was nearly assassinated in March 1981, there was a “commonsense” limit on assault weapons, but that law lapsed nearly a decade ago.

When I first heard about the mass shooting in Newtown, Connecticut, it wasn’t until about noon on Friday, December 14, a couple of hours after the horrific event. After lunch, I spent about three hours listening to the online reporting, first on NBC News, then ABC News. I figured if I kept following it, perhaps I’d discover they’d gotten it wrong. And they had – it wasn’t 18 dead children, it was 20. The wrong brother was initially named as the shooter. The basic framework, though, remained terribly the same.

Sometimes, when people don’t like a piece of entertainment, they’ll say, “I threw up a little in my mouth.” A crude reference, I think. But, following this story, I literally DID.

My sorrow over the particulars of the story was made worse by the inevitable statements that we need to have a national “conversation” about gun control and mental health. Except that, for some, it’s not the right time; apparently, it’s NEVER the right time, because we’re always reeling from the last event. Rep. Jerrold Nadler of New York said, correctly, “If now is not the time to have a serious discussion about gun control and the epidemic of gun violence plaguing our society, I don’t know when is.”

After President Reagan was nearly assassinated in March 1981, there was a “commonsense” limit on assault weapons, but that law lapsed nearly a decade ago. Even before then, we’ve ALWAYS been having “conversations” about these things; we TALKED after the 1999 Columbine, high school shootings in Colorado, and the 2007 Virginia Tech shootings, and the Arizona shootings last year, and the Aurora, Colorado movie theater shooters this past summer.

The “conversation” after this latest event thus far is more of the same. Why are mass shootings becoming more common? Some say we should have MORE people carrying guns. Yeah, right, against a guy in a movie theater wearing body armor packing heat, in a dark theater, with smoke bombs; heard THAT argument rehashed Friday night on CNN. At least I didn’t hear anyone suggesting five-year-olds should be packing heat.

More noise: Mike Huckabee uselessly telling us that school “carnage” caused by having “removed God” from schools. Ultimately, I think the Onion got it right.

Here’s my position: the Second Amendment right to bear arms is no more absolute than the First Amendment right to free speech. One cannot yell “fire” into a crowded building; one ought not be able to fire into a crowded building.

I’m done talking about it. If we don’t DO something, I don’t want to listen to more of the same rhetoric when this happens the next time. And there WILL be a next time, with the number of guns in this country.

The one thing I’m still mulling over: how to tell my elementary school-age daughter. She’ll surely find out from her friends. I don’t want her to be afraid to go to school. How do I make her feel safe, even though I can’t promise her it couldn’t happen again?
***
Newtown shooting: Names, profiles of the 27 people killed.

Happy memories of Newtown, from the town children’s librarian from 1994-1996.

Mocking Religion

Not all speech is protected by the First Amendment. Is this merely art? Or is this yelling “fire” in a crowded movie theater, where the consequences of one’s action, chaos, was foreseeable?

The question on Facebook the other day, I’m only mildly paraphrasing: “Should the US government be condemning a movie” – we know which movie, I think – “to improve diplomatic relations?” For me, it’s an unequivocal “yes.” Not that the audience of Secretary of State Hillary Clinton’s denunciation really cares. They seem to be of the opinion that the United States should arrest the filmmakers, or worse.

This leads me to all sorts of further questions. Should a government official comment on art at all? I use the term “art” loosely. In 1992, Dan Quayle, then the Vice-President, complained that TV character, Murphy Brown, deliberately had a child out of wedlock. Should he have been allowed to do that? Indeed, there are devotees who believe Quayle was right. I say yes, he should have said it, though I disagreed with him.

(When controversial art is paid for, in part or in toto, with public money, that becomes a whole new level of controversy.)

Should the Innocence of Muslims filmmaker be arrested? The film trailer is certainly crude and vile, and misleading even to some of the actors in the film, who swear Mohammed wasn’t even mentioned by name in the copies of the script THEY read. Seems as though some sort of fraud has taken place, but I’m not a lawyer.

Not all speech is protected by the First Amendment. Is this merely art? Or is this yelling “fire” in a crowded movie theater, where the consequences of one’s action, chaos, was foreseeable? The Supreme Court case Brandenburg v. Ohio (1969) allows proscribing “speech” if it will incite imminent lawless action, such as riots. It would SEEM that the Danish cartoon situation of a half-decade ago would suggest that the film would be received badly. But could the filmmakers have foreseen such a violent outcome? Don’t know.

In any case, Nakoula Basseley Nakoula, the alleged filmmaker, who was convicted of bank fraud, could go back to jail because the terms of his release stipulated that he be barred from accessing the Internet or assuming aliases without the approval of his probation officer.

Should the sensitivities of religious folks be taken into consideration? I remember the uproar over the Monty Python comedy Life of Brian (1979) and Martin Scorsese The Last Temptation of Christ (1988), directed by Martin Scorcese (1988), not to mention Mel Gibson’s The Passion of the Christ (2004). All appear on a list of The 50 most controversial movies ever, at #14, #1, and #20, respectively. I’ve only seen Brian, which I personally found uproariously funny, not to mention clearly NOT speaking about Jesus. Didn’t see the other two, but I think people, including politicians, can express their dismay without banning them outright.

And not so incidentally, I think artists should be able to make political statements, whether it be Barbra Streisand or Toby Keith. If people are annoyed by them and decide not to buy their albums, see their films, etc., that’s the way the marketplace works.

If this is more rambling than usual, blame Facebook.