first amendment

WikiLeaks Backs Censorship in Response to Tucson Shootings

by Hans Bader on January 14, 2011 · 5 comments

in International, Legal, Personal Liberty, Sanctimony, Zeitgeist

In a press release, WikiLeaks has blamed Arkansas Governor Mike Huckabee, Sarah Palin, and other conservatives for the Tucson shootings, and called for them to be prosecuted for “incitement.” It is not clear why WikiLeaks thinks people such as Huckabee had anything to do with the shootings. Even Sarah Palin has said nothing that would constitute incitement, much less illegal incitement under the U.S. Supreme Court’s governing First Amendment rulings in Hess v. Indiana and Brandenburg v. Ohio.

As Jack Shafer notes at Slate, “crosshairs and bull’s-eyes have been an accepted part of the graphical lexicon when it comes to political debates,” and are not incitement to violence, any more than other commonplace political words like “targeting, attacking, destroying, blasting, crushing,” and “burying” are. The rhetoric of American politicians like Sarah Palin is usually bland and mild by international and historical standards. As David Brooks notes, there is “no evidence” that the shooter was influenced in any way by conservatives like Sarah Palin, and claims to the contrary are simply “vicious charges made by people who claimed to be criticizing viciousness.”

Image credit: Byeskille’s flickr photostream.

Does Wikileaks Have a First Amendment Case Against Joe Lieberman?

by Ryan Radia on December 8, 2010 · 6 comments

in Legal, Personal Liberty, Tech & Telecom

Amazon made headlines last week when it abruptly cut off service to Wikileaks, allegedly on the grounds that the site had violated Amazon’s terms of acceptable use. However, Amazon’s decision to terminate Wikileaks came less than 24 hours after Amazon received a phone call from Senate Homeland Security Committee staff (at the behest of Sen. Joe Lieberman) inquiring about the firm’s relationship with Wikileaks. According to a report in The Guardian, Amazon’s decision to terminate service to Wikileaks was a “reaction to heavy political pressure.”

That’s not all. Glenn Greenwald reported last week on Salon.com that another Internet company, Tableau Software, also decided to disable service to Wikileaks because of pressure from Joe Lieberman. Unlike Amazon, Tableau admitted that its decision was directly prompted by pressure from Lieberman. From Tableau’s statement:

Our decision to remove the data from our servers came in response to a public request by Senator Joe Lieberman, who chairs the Senate Homeland Security Committee, when he called for organizations hosting WikiLeaks to terminate their relationship with the website.

It’s difficult to see Joe Lieberman’s “public request” as anything but a thinly-veiled threat. Case in point: In addition to his staffers’ phone calls, Lieberman went on MSNBC last week, stating bluntly, “we’ve got to put pressure on any companies … which provide access to the Internet to Wikileaks.”

As Chairman of the Senate Homeland Security Committee, Lieberman is in a uniquely powerful position to push for legislation that might harm private firms like Amazon. He can also hold Congressional hearings, which frequently turn into public spectacles and garner massive media coverage. A company’s CEO enduring a congressional grilling on Capitol Hill can significantly impact that firm’s public image — and, in some cases, its stock price as well. While no individual Senator has the power to enact laws, promulgate rules, or enforce regulations, a single crusading politician can arguably cause cognizable harm to any U.S. company that pushes back against “requests” to suppress unfavorable content.

How does this implicate the First Amendment? As EFF’s Rainey Reitman and Marcia Hofmann pointed out on the DeepLinks blog, “The First Amendment to the Constitution guarantees freedom of expression against government encroachment — but that doesn’t help if the censorship doesn’t come from the government.”

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Homeland Security Violating Due Process and Free Speech In Internet Power Grab?

by Hans Bader on December 2, 2010 · 1 comment

in Legal, Nanny State, Personal Liberty, Regulation, Tech & Telecom

Law professor David Post notes that the Department of Homeland Security is seizing entire domain names, not to protect national security, but to enforce run-of-the-mill copyrights.  He calls this an unconstitutional due process violation, noting that “80 websites . . . have now been prevented from speaking to US citizens even though the website operators, whose domains were seized, had no notice or opportunity to respond to the charges against them (and to argue, for instance, that they are NOT infringing copyrights or trademarks), no adversary hearing, and certainly no adjudication before a neutral [judge], that anything unlawful is going on at these sites.”

He also notes that Congress has not yet passed a bill that would have granted the federal government the specific authority to seize domain names.  (Senator Wyden of Oregon has put a hold on a bill known as COICA, the Combating Online Infringements and Counterfeits Act, that would allow U.S. courts to “seize” domain names belonging to U.S. or foreign websites simply upon a charge, by the Attorney General, that the site was “primarily devoted” to infringing activities.)

Earlier, CEI’s Ryan Radia and 40 law professors criticized COICA, arguing that it contained “egregious constitutional infirmities,” and would lead to restrictions on speech that are unconstitutionally overbroad and violate First Amendment rules against prior restraints.  Professor Post also argues that the domain-name seizures would be “prior restraints on speech” that are “blatantly unconstitutional.”

CEI also took aim at another restriction on speech. Earlier, Ryan Radia and I criticized California’s overly broad law restricting video games for minors as a First Amendment violation, which is before the Supreme Court in the case of Schwarzenegger v. Entertainment Merchants Association.  A bunch of state attorney generals like Connecticut’s Richard Blumenthal (rated the worst attorney general in America by CEI) have filed a brief urging the Supreme Court to uphold the law.  (The idea that minors have First Amendment rights is not new, but rather has been recognized for generations, as I explained in my 2007 law review article — the Supreme Court first ruled that the First Amendment applied to the states in the 1925 Gitlow decision, and soon thereafter applied the First Amendment to minors in its 1943 Barnette decision.)

Celebrate Egyptian Blogger Kareem Amer’s Freedom by Defending Free Speech

by Michelle Minton on November 17, 2010 · 1 comment

in Culture, Personal Liberty, Zeitgeist

Tonight have a drink and give a Tweet to the man who spent four years in an Egyptian jail, and remember that he is not the first, nor the last, blogger or writer to be silenced. Be thankful that we live in a nation where “highlighting inappropriate aspects” about your country won’t get us thrown in prison (it might actually get you a TV show).

After more than four years in an Egyptian prison, Kareem Amer was released, having finished out his sentence. Kareem was jailed as a result of articles he’d published on the Internet that were secular in nature and critical of the Egyptian government. He was officially charged with “spreading data and malicious rumors that disrupt public security,” “defaming the president of Egypt,” “incitement to overthrow the regime,” “incitement to hate Islam, and breach of public peace.” And finally, he was accused of “highlighting inappropriate aspects that harm the reputation of Egypt and spreading them to the public.”

The many people of various ideologies who threw their support behind Kareem will be celebrating his release tonight, including CEI. While you toast to the liberation of an innocent man, remember that there are many others who are currently being silenced and that freedom, even here in the United States, is something that requires constant and serious vigilance. There are more insidious ways to silence free speech than simply locking someone up in prison.

Intellectuals of the libertarian bent are often painted as being reactionary, inflammatory, and petulantly idealistic. In some cases, that might be true. Yet, what we seek to do, some with more finesse than others, is defend individual rights and freedoms from every threat, no matter how small it may appear.

Forcing artists, writers, or any individual to alter or eliminate his or her work, whether it is a video game, TV show, movie, play, or blog, is also a threat to free expression. It may not seem like much at first — and Americans would not stand for a blogger being thrown in jail simply for saying something the government didn’t like — however, they have stood by while state, local, and federal government officials, wielding their pens like knives, cut into our freedoms with a thousand tiny pen strokes. After enough of those cuts, the fabric that maintains our liberty in this country and separates us from Egypt begins to fall apart.

They silenced Kareem because he said things they didn’t like. There are ways even in the “liberal West” in which one group can use the government to silence or limit the speech of another group or individual, simply because they don’t like what they hear (for example, the recent discussions about reviving the Fairness Doctrine.) That is why, while we celebrate one man’s freedom, we must remember that the fight is ongoing and that the best way we can defend liberty around the world is to defend our right to speak up here at home.

Image credit: MohammedMaree ???? ???? mar3e’s flickr photostream.

My Role Model, Jenna Jameson

by Michelle Minton on October 27, 2010

in Nanny State, Personal Liberty, Precaution & Risk, Regulation

As a self-made business mogul, a mother and wife, and a cancer survivor, there are many aspects of Jenna Jameson to admire and emulate. That said, I’m not looking to Jameson’s movies for advice on safe sex; just as I wouldn’t turn to Martin Scorcese for lessons on how to be a successful cab driver in New York City. Movies are works of art, fiction, and fantasy. The argument that condoms should be made mandatory in pornographic films due to viewers potentially imitating what they see on screen is logically indefensible and somewhat shocking, considering that it is written on a site that regularly publishes articles defending freedom of speech, free expression, and keeping government out of the bedroom.

Kellee Terrell’s article, posted on Huffington Post yesterday, gives us a glimpse into the type of thinking that leads many intellectuals to advocate at one time for social liberty while at the same time demanding that government intervene in the personal choices of others. It stems from a condescending disbelief in the ability and the right of the average individual to make choices about their own life.

Why the Porn Industry’s HIV Problem Is Our Problem, Too:

While it is obvious that not using condoms on porn sets is a safety hazard, I have often wondered: How much of a safety hazard is it for viewers to consume condomless porn? How much does watching bareback sex influence or reinforce our desire to mimic that same behavior in our own lives?

…I am not so naïve as to believe that if the porn industry were to make condom use mandatory, that act alone would completely revolutionize how Americans view safer sex or condoms. But it cannot be denied just how powerful media is …

Perhaps now is the time for the porn industry to make some changes in terms of safer sex practices — not just for the sake of their own employees, but for the sake of all of us.

It is not the porn industry’s responsibility to teach anything to anyone. They make films and money. We can call them artists, or business people, and though some may release instructional videos, it isn’t fair to label them as custodians of anyone’s sexual decisions.  It may be interesting to examine possible correlations between behavior and viewing habits, but even a evident connection would not make actors, directors, or producers culpable for that behavior.

Based on Terrell’s logic couldn’t the argument be made that we ought to ban films and TV shows that feature rebellious youth (i.e. My So Called Life), dangerous driving (Rebel Without a Cause) or victimization of women (everything on the Lifetime TV Network) lest someone takes them as guidance for their life choices?

Obviously, this isn’t the case. It may seem incomprehensible that the same people arguing for a condom mandate are the same people who would normally scream at the top of their lungs if the government tried to regulate bedroom activities. However, because pornography is an issue of capitalism, of “big business,” they look upon the actors as victims in need of protection-whether they want it or not.

It is not the government’s right to regulate how adults engage in sexual activity; we each can and should take responsibility for our own sexual safety. And, as Jenna Jameson has proven throughout her career, adult film actors also should be left free from government interference to make the decisions that affect their lives and career.

Note: Jenna Jameson appears to favor either a condom mandate or at least some stronger regulations on set.  That doesn’t affect her status as a sharp business lady, but, like I said, I’m not looking to her for safe sex advice–nor am I looking to her for regulatory analysis.

Porn Stars Get Behind Personal Choice by Opposing Condom Mandates

by Michelle Minton on October 25, 2010

in Nanny State, Personal Liberty, Precaution & Risk

The most recent case of porn actor testing positive for HIV has renewed calls (or at least media attention to the calls) for a condom mandate in all adult films produced in Los Angeles County.

Last year, activists at the AIDS Healthcare Foundation petitioned California’s Division of Occupational Safety and Health and unsuccessfully sued the county Department of Public Health to put a condom mandate in place claiming that it was an issue of worker safety.

However, the decision should be left up to the production companies and the actors themselves to determine the best way to protect themselves, their companies, and their reputations.

While this latest case has certainly caused some concern among adult performers in California, most of the calls for a condom mandate are coming from outside observers. Furthermore, many actors, such as the renowned adult actress Nina Hartley, have come out against taking away the choice from performers:

“As someone who is still working on the camera myself, I don’t feel any safer with condoms,” she said at a hearing in downtown Los Angeles in June.

Many of the actors in the business oppose the proposed mandate for condom usage. Some even claim that condoms make exposure to HIV and AIDS more likely due to “rubber rash” and friction burns, especially for female performers.

Ernest Greene, a longtime director and Hartley’s partner, explains on his blog:

[A single scene amounts to] over two hours of intercourse in various positions with constant stops and starts during which male performer’s erections rise and fall, condoms frequently tear or unravel and the degree of latex abrasion on the internal membranes of female performers’ vaginas lead to micro-abrasions that make them more vulnerable to all kinds of STIs. Most condom-only female performers eventually abandon condom use, not under pressure from producers, but rather because of the constant rawness and end-on-end bacterial infections produced by countless hours of latex drag.

In addition to problems with enforcement, there’s also the problem of personal choice and freedom of expression. In the end it is the individual actor’s choice to get into the adult entertainment industry and their choice whether or not they wear a condom.

At the same June hearing with Nina Hartley, an adult film actor who goes by the name Jeremy Steele, put it best when he said:

“There is no way to make the industry risk-free. Making things safer does not make it safe. If you’re worried or paranoid, you should not be in this industry.”

Bill to Regulate Political Speech Fails

by Ryan Young on July 27, 2010

in Personal Liberty, Politics as Usual, Regulation

The Hill:”Senate fails to advance campaign finance bill”

The First Amendment: “Congress shall pass no law… abridging the freedom of speech.”

Good news for anyone who wants to engage in political speech. But how sad that this happened because of politics, not principle.

It was mostly Democrats who favored the DISCLOSE Act. And according to today’s Senate vote, it was only Democrats who favored the bill. But Republicans are no heroes on this issue. Don’t believe their posturing. If the political winds were currently favoring Democrats, Republicans would be working their tails off to pass similar legislation.

The primary effect of campaign finance regulation is to stack the rules of the game in favor of incumbents. Both parties know this. And both parties will seek to use campaign finance regulation to their advantage however they can.

LibertyWeek 102: Collective Insanity

by Richard Morrison on July 19, 2010

in CEI Projects, Features, Podcast, Zeitgeist

Richard Morrison and Marc Scribner welcome guest co-host Alex Nowrasteh to Episode 102 of the LibertyWeek podcast. We take on the healthcare tax, obscenity and the First Amendment, the prognosis for the Gulf of Mexico, and the collective insanity coming out of Venezuela.

Supreme Court Dooms Chicago Gun Ban; Obama Judicial Nominees Oppose Gun Rights; Religious Clubs Lose First Amendment Case; Removal of High-Ranking Bureaucrats Made Easier

by Hans Bader on June 30, 2010

in Intellectual Property, International, Labor, Legal, Nanny State, Personal Liberty, Politics as Usual, Regulation, Sanctimony, Zeitgeist

The Supreme Court doomed Chicago’s handgun ban Monday by ruling 5-to-4 that the Second Amendment applies to state and local governments like Chicago, not merely the federal government.  (Most guarantees in the Bill of Rights are deemed so fundamental that they apply to both state and federal governments, but a few rights deemed trivial, like the right to a jury trial in lawsuits seeking over $20, only are applied by the Courts to the federal government, not the states.)  In 2008, the Supreme Court ruled that the Second Amendment protects the individual right to possess a handgun in a federal enclave, in striking down a handgun ban in Washington, D.C., in District of Columbia v. Heller.  Chicago’s ban is quite similar to the one found unconstitutional in Washington, D.C., so the Supreme Court’s ruling Monday in McDonald v. City of Chicago dooms Chicago’s gun ban.

In 2009, President Obama’s first Supreme Court nominee, Sonia Sotomayor, claimed before her confirmation to accept the Supreme Court’s ruling in Heller as binding precedent.  But on Monday, she joined a dissent by the Supreme Court’s four liberal justices calling for the Heller decision to be overruled.  Second Amendment scholar David Kopel says that Sotomayor was not candid, noting that her opinion “contradicted” what she told the Senate before the Senate confirmed her to the Supreme Court.  It is likely that future liberal Supreme Court nominees will pretend to support gun rights until they are confirmed, then vote against such rights once on the Court.

Obama’s current Supreme Court nominee, Elena Kagan, lumped the NRA together with the KKK as “bad guy orgs” while serving in the Clinton administration, suggesting that she will consistently rule against gun owners if her nomination is approved by the Senate.  Kagan failed to defend federal laws protecting crime victims while serving as Solicitor General.

As a Harvard dean, Kagan blocked the military from recruiting, in defiance of a federal law requiring access for military recruiters.  Kagan claimed her opposition was based on the military’s exclusion of openly-gay soldiers, not hostility to the military in general, but this is hard to square with the fact that she had no problem letting the Saudis sponsor an Islamic studies program at Harvard Law School, even though the Saudis flog and execute gay people, and she had no problem serving in the Clinton administration, even though Clinton signed into law both the restrictions on gays in the military she claimed to object to (the Don’t Ask, Don’t Tell policy), and the ban on federal recognition of gay marriages contained in DOMA.

The Supreme Court Monday also ruled that religious clubs can be forced by colleges to admit atheists and others who disagree with the club’s religious perspective as members, as long as the college requires this as part of a general policy of banning clubs from discriminating based on any characteristic.  The Supreme Court’s four “conservative” justices dissented against this ruling limiting the First Amendment’s freedom of association, while moderate Anthony Kennedy joined the Supreme Court’s liberal bloc in ruling against the religious clubs in Christian Legal Society v. Martinez.

In Free Enterprise Fund v. PCAOB, the Supreme Court, in a 5-to-4 ruling, cut back on restrictions on the ability to remove high-ranking bureaucrats, ruling that provisions of the Sarbanes-Oxley law that kept anyone from removing members of the Public Company Accounting Oversight Board except for willful misconduct unconstitutionally infringed on the constitutional separation of powers, which requires that important government employees be subject to some degree of accountability to higher-ups in the executive branch.  However, the Supreme Court left intact the bulk of the Sarbanes-Oxley law.  The red tape adopted by bureaucrats under Sarbanes-Oxley has driven many IPOs and American jobs overseas.  The red tape costs the economy $35 billion a year, according to the American Electronics Association, and it did nothing to prevent the mortgage meltdown, Bernard Madoff’s $50 billion fraud, or the faulty valuation of sub-prime mortgage-backed securities that helped spawn the financial crisis.

The Supreme Court overturned a ruling that allowed business methods to be treated as exclusive property under the patent laws, but did not definitively rule out the patenting of business methods, in Bilski v. Kappos.

A Telling Headline

by Ryan Young on May 21, 2010

in Personal Liberty, Politics as Usual, Zeitgeist

From The Hill: Vulnerable Democrats defend support for campaign finance legislation

Campaign finance regulations are an incumbent’s best friend. The incumbent already has name recognition, and a deep network of fundraising contacts. Heck, Congress’ franking privilege allows incumbents to send out de facto campaign messages for free. Challengers have none of those advantages.

It takes a lot of money to buy enough ads to get a challenger’s name recognition anywhere near the incumbent’s. Campaign finance regulations make it harder to raise that money, and harder to put up a fight against established officeholders. No wonder so many incumbents from both parties favor strict campaign finance regulations! It’s good for their job security.

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