John Yoo's Torture memo declassified

Many of you are working on papers related to torture and will probably find it helpful to take a look at the newly declassified John Yoo torture memo from 2003. We have known that these memos existed, but had not seen the text itself. It is now available.

Washington Post

New York Times

Balkinization

Text of Memo Part I

Text of Memo Part II

The position of those inside the DoD who disagreed with the Yoo (and final) torture rules.

FCC auction of spectrum

The FCC has now completed the auction of the part of the broadcast spectrum that will be vacated when the broadcast television stations stop broadcasting analog signals next February. This is the 700 mhz slice of the spectrum and it has potential to be useful for many services such as wireless broadband internet. One of the biggest questions about this auction, related to the concerns in Anarchist in the Library, is what forms of control will be imposed over this important slice of spectrum? Who will control it (well, we know the answer to that now) and to what end? How will access to the new networks be granted? Will it be on a neutral, open basis or will it be tightly controlled and hierarchical? If you are interested in following up on this, here are some places to start.

In 2005 Matthew Yglesias criticized US policy on broadband as a failure compared to the policies in other countries. Much of the pessimistic projection of the future in his article has now come to pass.

Gizmodo, an entertaining technology site, has an overview of the 700 mhz auction, who the players were and what they hope to get out of the billions they have agreed to pay for control over slices of the airwaves.

It turns out that Verizon and AT&T won most of the auction, with Dish Network and a few others also taking a few pieces. However, things proceeded in a way that rules requiring that part of the spectrum be treated as an open platform kicked in.

Nevertheless, the auction was seen as a victory for Google, since the bidding was high enough to trigger the "open-platform" rules it requested for the nationwide airwaves eventually won by Verizon.

Google called it a victory for American consumers. "Consumers soon should begin enjoying new, Internet-like freedom to get the most out of their mobile phones and other wireless devices," said a statement from Google lawyers Richard Whitt and Joseph Faber.

Time will tell what this "open-platform" will actually look like in practice, whether it will allow for innovation at the ends of the network that isn't controlled by Verizon, or whether the 700 mhz block of spectrum which had been "the public airwaves" regulated by government licensing procedures in the public interest (an admittedly flawed regulatory regime to be sure) have simply been privatized to be regulated by Verizon licensing procedures.

BSG Top Ten list

OK - not at all related to class, but now that I have some of you hooked on this show, here are a couple of Battlestar Galactica items:

BSG Top Ten List on Letterman




BSG Season 4 preview trailer (spoiler alert, obviously)

Municipal WiFi

We were just talking about this subject, the Times has a piece up today about the efforts of various cities to set up low cost WiFi networks. The focus of the piece is on for-profit arrangements with Earthlink and other providers, although near the end of the article they briefly touch on alternative models such as municipally provided non-profit service (as they have in some European cities and some smaller towns in the US). Why have the large city WiFi models failed? Are public-private for profit partnerships the problem? Have cities set the wrong goals for these policies? Will the US find itself at a disadvantage in a global economy if it doesn't do a better job of providing broadband internet access to a larger share of the population?

Too many watchlists

We are all familiar with the no-fly lists and the ways in which they can complicate air travel for people with similar names to those on the lists. It turns out, there are more of these lists than most of us have been aware, although the existence of these lists is not itself secret (in fact, here is the list of about 6000 names). (Washington Post)

More American consumers have gotten caught up in a special brand of watchlist purgatory because their names are similar to ones on OFAC's list of "specially designated nationals," according to e-mails and other documents released under court order yesterday. By law, businesses are barred from conducting transactions with anyone on the list. Yesterday's court-ordered release of documents to the Lawyers Committee for Civil Rights of the San Francisco Bay Area, offers a window into the kinds of disruptions suffered by those ensnared in the process, as well as the difficulty of clearing their names.

More businesses are seeking, as part of a credit check, to know whether a person is also on the OFAC list. Failure to do so can bring a stiff penalty. Often a person whose name is similar to a name on the watchlist will be flagged by credit bureaus, which produce the reports businesses use to decide who is eligible for a car or home loan or to rent an apartment.

The Lawyers Committee sued the Treasury Department last year under the Freedom of Information Act for records of complaints relating to OFAC's list. Last year, the group documented the cases of at least a dozen people denied services, including being blocked from buying exercise equipment. Yesterday's partial release of records raised at least 30 new cases in which people sought OFAC help.

If you have ever tried to clear a mistake from your credit report, or been the victim of identity theft, you know what a hassle it can be to deal with the credit bureaus. Now mix in the feds and fear of terrorism and you have a recipe for a kafka-esque soup of obstacles and frustrations.

I know that the law wasn't literally aimed at preventing terrorists from buying exercise equipment but, you know, unless terrorist suspects start entering arm wrestling competitions, is there any good reason that we should apply the watch list to treadmill and bowflex machines? Isn't this a problem of a law being so overbroad in application that it is likely to fail to do what it is intended to do (either by being so extensive as to be unworkable, or engendering so much hostility from innocent people minding their own business that the laws get overturned)?

Updated: The New York Times points out that a lot of people have been concerned about the list, probably because while the list is not that long (6000 names) many of the names are common Arab and Latino names that are shared by many people who are not listed.

A Federal District Court judge in San Francisco last month ordered the Treasury Department to release all the complaints after a Freedom of Information Act request, Mr. Hwang said. He said his organization believed that what they received was only a small fraction of the complaints filed. Among other indications, he said, was that Henry Paulson Jr., the Treasury secretary, said in Congressional testimony last year that his department fielded up to 90,000 telephone complaints about the list over one year.

Sony advocates anarchy.... in 1975

No really. Check out the marketing for the first Betamax, it is all about decentralizing, taking control at the end point of the network, using technology and content in anarchic ways, and not having to watch commercials (thus stealing such artistic gems as Airwolf and the Facts of Life).

Gun rights case

For those of you who are interested, the oral arguments in DC v Heller, the Second Amendment case over DC's nearly complete ban on personal, functioning guns, has now been posted at Oyez. Don't expect a decision in the case before the last week of the term in June.

Copyright violation

Is this video a copyright violation? Should the existence of this clip be forbidden?

What's so funny about... wiretapping

There was a good, brief summary of past abuses of wiretapping power in yesterday's LA Times. For a detailed, documented account see David Cole and James X. Dempsey's Terrorism and the Constitution.

From Julian Sanchez in the LA Times op-ed section:

But focusing on the privacy of the average Joe in this way obscures the deeper threat that warrantless wiretaps poses to a democratic society. Without meaningful oversight, presidents and intelligence agencies can -- and repeatedly have -- abused their surveillance authority to spy on political enemies and dissenters.

The original FISA law was passed in 1978 after a thorough congressional investigation headed by Sen. Frank Church (D-Idaho) revealed that for decades, intelligence analysts -- and the presidents they served -- had spied on the letters and phone conversations of union chiefs, civil rights leaders, journalists, antiwar activists, lobbyists, members of Congress, Supreme Court justices -- even Eleanor Roosevelt and the Rev. Martin Luther King Jr. The Church Committee reports painstakingly documented how the information obtained was often "collected and disseminated in order to serve the purely political interests of an intelligence agency or the administration, and to influence social policy and political action."

Science education and religion

Would a bill like the "Religious Viewpoints Antidiscrimination Act" be constitutional? Which cases are most relevant to this law? Which principles? Are the potential consequences of such a law for students in Oklahoma relevant to the constitutional question?

The bill requires public schools to guarantee students the right to express their religious viewpoints in a public forum, in class, in homework and in other ways without being penalized. If a student's religious beliefs were in conflict with scientific theory, and the student chose to express those beliefs rather than explain the theory in response to an exam question, the student's incorrect response would be deemed satisfactory, according to this bill.

The school would be required to reward the student with a good grade, or be considered in violation of the law. Even simple, factual information such as the age of the earth (4.65 billion years) would be subject to the student's belief, and if the student answered 6,000 years based on his or her religious belief, the school would have to credit it as correct.

Net neutrality

I promised a post to explain why net neutrality is an issue. You can watch Tuesday's (March 11, 2008) Congressional hearing on this subject here (about 2 hours) On the other hand, I don't know if I can do better than John Hodgman on this score, so here he is.



This is a live issue, there are hearings in Congress and we will likely see legislative activity in the near future. The financial stakes for the big companies who use the internet are high, and the stakes for citizens as consumers and as participants in the political community (two different things) are even greater.

For more information, see Save the Internet (advocacy organization supported by a politically diverse coalition in favor of net neutrality).

Washington Monthly on Torture

The Washington Monthly has just published a special issue on torture. While TWM is a liberal opinion journal, the writers are political figures and academics from across the political spectrum, all of whom oppose the use of torture.

In a related note, the House failed to override Bush's veto of the intelligence authorization bill which included a ban on torture, requiring all interrogations to meet the Army's published standards on interrogations.

Loyalty oaths and religion

Headline from the San Francisco Chronicle "Quaker Teacher Fired for Changing Loyalty Oath."

Updated 3/10/08: And now she has been rehired with a clarification that the oath does not require part time math teachers to use violence in defense of the US and California constitutions.

New images from Abu Ghraib

Wired has a 3 minute video with previously unseen photos from Abu Ghraib. The piece includes an interview with a research psychologist, Philip Zimbardo, who studies how regular people become capable of committing acts of torture and prisoner abuse.

Zimbardo conducted a now-famous experiment at Stanford University in 1971, involving students who posed as prisoners and guards. Five days into the experiment, Zimbardo halted the study when the student guards began abusing the prisoners, forcing them to strip naked and simulate sex acts.

His book, The Lucifer Effect: Understanding How Good People Turn Evil, explores how a "perfect storm" of conditions can make ordinary people commit horrendous acts.

He spoke with Wired.com about what Abu Ghraib and his prison study can teach us about evil and why heroes are, by nature, social deviants.

Battlestar Galactica

The producers of Battlestar Galactica gave an hour long interview to the legal blog Concurring Opinions talking about torture and morality and other legal topics in the BSG world they have created. I haven't listened yet, but I will. I imagine that these interviews (especially the first two parts) would be well worth listening to in the context of the episode many of us watched the other night ("Pegasus").

Part I: Legal Systems

Part I-B: Torture, Necessity and Morality

Lithwick on torture

Dahlia Lithwick takes up the issue of the changing definition of, and public acceptance of, torture. Her argument tracks some of the same ideas that came up in our discussion on Wednesday and places revelations like the Abu Ghraib photos in the context of the shifting public debate over torture.

A few years ago I wrote about the connection between the torture photos taken at Abu Ghraib and the congressional debate over detainee treatment rules. I argued that the leaked photos, along with memos from the Justice Department's Office of Legal Counsel that redefined torture in appalling new ways, were not in fact a public relations blow to the Bush administration, but a sort of foot in the door for looser torture standards—a way to begin desensitizing the American people to the kinds of abuse that had been going on in secret. Two years after the images surfaced, Congress enacted a law essentially permitting the acts depicted. And just as those images paved the way to our broader torture policy, the CIA torture tapes now stand to do the same thing for water-boarding in particular.

Does Lithwick's argument support Scarry's concern that torture warrants would legitimate torture more broadly and make it more common, or does this argument suggest that Dershowitz is right and warrants are needed in order to set boundaries on the use of torture? Does the fact that we are having a class discussion about torture support Lithwick's account of change in the public understanding and acceptance of torture?

torture under law

Scott Horton, in an address to a religious audience, reviews Torture and Democracy by Darius Rejali. We have discussed torture as a moral issue in class, Horton's is a moral argument from a different perspective, but it is also a political argument, and a claim about national identity. It is an interesting piece on what sounds like a good book. The thesis:

Few societies had a more carefully charted system of torture than the Romans. They used torture much as President Bush contemplates its use, namely as a tool for interrogating enemies. They specified permitted techniques and detailed who could use it and under what circumstances. They regulated its admissibility as evidence in legal proceedings. They refrained from negative moral judgments about torture, but while embracing its use, they also noted that it really wasn’t particularly effective or useful in extracting information from subjects. The prime rule they devised is the one that Paul relies upon in Acts–they forbade torture to be used against a citizen who was uncondemned. That is to say, torture could be used as a punishment, but not in connection with interrogation.

But Rejali tells us that the barriers and internal rules could not hold. Once torture emerged as a practice authorized by law in some circumstances it spread very quickly, and ultimately the prohibition against torturing citizens could not be sustained. Moreover, he catalogues the appearance of torture and efforts of states to control it over many centuries and in many societies, with impressive chapters on the French in the waning colonial era, the Nazis through World War II, the Soviets from the Bolshevik Revolution, the Communist Chinese, the Iranians from the time of the Shah and after his overthrow, and finally, and most surprisingly, the United States under George W. Bush. There are clear lessons to be drawn from these historical excursions, but the experience of the Romans—the most masterful state-builders of antiquity—really tells us all we need to know. Torture is a virus which cannot be effectively controlled. If permitted at all, it will undermine the integrity and worth of humanity in any society in which it is let loose. It is the ultimate social agent of corrosion.

William and Mary case

I mentioned this case in class yesterday, although I had it a bit wrong. The President of William and Mary was either fired or forced out, depending on your interpretation of matters, in a dispute over a) an art show he allowed to take place on campus and b) the relocation of a cross from a prominent campus meeting space.

Is this a free speech case? Does it raise First Amendment religion clause issues? Would it be different if it had happened at a public university? Is Jon Stewart the most famous alum of William and Mary? Should alumni or outside groups have anything to say about what happens on a campus or the decisions made by university presidents?

DoJ - Waterboarding illegal today

A Justice Department lawyer will testify today that the DoJ has never found waterboarding to be legal under US law and that it would not be legal under current guidelines. This should be interesting testimony to watch, if you are near C-SPAN.

Updated: In today's testimony, Steven Bradbury actualkly argued that CIA waterboarding wasn't torture because it wasn't the same as what the Japanese did during WWII or what the Spanish did.


I had forgotten this, I believe some of you have read it before, but a former Navy instructor describes waterboarding and how it is used. In the New Yorker, Jane Mayer investigated the ways in which survival training provided source material for interrogation techniques at Guantanamo.

Waterboarding

This is a brief clip of a waterboarding demonstration. It is disturbing.



And it would be smart to ask prospective employers if they think waterboarding employees as a teambuilding exercise is a good idea. If they say "yes, all of our employees show that sort of loyalty to our firm" then you should run away.

Torture

As we get ready to discuss torture, here's some linky goodness to give an idea of where some major players in the debate over torture stand today.

In Return of the 9/11 President, Dan Froomkin suggests that if the President wants to claim that torture has provided information that has prevented attacks in the past then he needs to put up or shut up and tell us something specific. I won't hold my breath for that day.

Torture is sometimes used in situations that don't involve ticking time bombs (David Kurtz at Talking Points Memo) and now an FBI "clean team" has spent the last 16 months trying to get the 6 suspects charged today in cases related to 9/11 to repeat incriminating statements possibly first made under torture.

Scalia: "Freedom tickling not prohibited by 8th amendment." Since torture isn't punishment for a crime, it can't be "cruel or unusual punishment" which I suppose is true, if one ignores that this would mean that it is only after conviction that individuals have rights to humane treatment, and ignores the 5th amendment protection against self-incrimination. Scalia's argument is simply weird when one considers that we have to read the 8th amendment along with the 5th amendment. It seems clear in the history of the 5th amendment that it prohibits torture of suspects in order to induce self-incriminating testimony. Would Scalia think it was fine to seize the cars of speeding suspects - that as long as they are not convicted of the speeding offense then the seizure of their car is not an "excessive fine" under the 8th amendment or a violation of 5th amendment due process? (Please ignore that, in fact, this absurd state of affairs does exist under RICO and property of those suspected of drug crimes is seized all the time.)

Secrecy and Iraq war history

Today's New York Times includes an piece on a RAND corporation study of the Iraq War. The unclassified report was delivered in 2005 and has yet to be publicly released.

Why might such an unclassified report remain effectively secret? Is this proper?

What are the similarities to New York Times v US (Pentagon Papers case)?

Detainee cases

There are some new developments in the detainee habeas corpus cases at the Supreme Court. I am not sure what these new developments portend for the detainees or the pending cases.

Also, keep an eye out today and tomorrow for developments in the PAA votes in the Senate.

George Carlin

Just a quick reminder, here is a recent version of George Carlin's "Seven Words you Can Never Say on Television" which was broadcast on the Pacifica network leading to the case FCC v Pacifica.

Those of you who read this blog at work will probably want to turn the sound down before watching the video as the language is definitely not work (or, for that matter, library) safe.

More obscenity

OK, I don't want this whole blog to be about butts, but today I said obscenity convictions are rare and now authorities in Virginia Beach are going to show you why.

Police, saying they were responding to citizen complaints, carted away two large promotional photographs from the Abercrombie & Fitch store in Lynnhaven Mall on Saturday and cited the manager on obscenity charges.

If you have been in an Abercrombie Store lately, I am sure you saw the same pictures. Click through on the link to see one of the two pictures, I think I can confidently say that you will not find it patently offensive, at least not in the way that would make you want to throw up or turn away in disgust.

Obscenity

The Miller test for obscenity is vague and subjective, perhaps this can give some insight into what it is trying to get at.

Journalists' sources and free speech

Does a government subpoena issued to a journalist to demand that he turn over the name of a source restrict free speech? How would New York Times v US (Pentagon Papers case) affect your answer in this particular national security related case?

Politics of Fear and PAA

This is a good piece from Dahlia Lithwick on the politics of fear and the current debate over the Protect America Act extension. It is full of links as well if you want more information on the PAA debate.

More libel

This is an interesting suit - Subway v Quiznos. The suit concerns consumer generated Quiznos ads that Subway contends defame their sandwiches - particularly the quantity of meat on those sandwiches. Does Subway have a case? Is an "Italian BMT" a public figure? Can people trying to win a Quiznos prize have actual malice against a "meatball marinara?"

A second point - why do advocates of tort reform never discuss cases like this one?

Butts are so icky

We'll be reading Pacifica and talking about indecent speech on broadcast media in a few days. Unlike advocacy of illegal action, I am not sure that we can say that there has been much liberalization on the question of indecency. The FCC will seek a $1.4 million fine of ABC affiliates for showing a naked butt on an episode of NYPD Blue in 2003.



Warning: The FCC says this clip is indecent

Free speech in Turkey

Turkey has more restrictive laws regarding speech than does the US (most countries do) but has decided, in response to several high profile prosecutions, to liberalize speech regulations. The regulations in question balance a variety of interests in ways that are unfamiliar under first amendment logic, but I think there are some similarities worth considering. Atilla Yayla, a political science professor featured in this article, was fired from his job, criminally investigated, and ended up fleeing to the UK because he mildly criticized Attaturk, the founding leader of modern Turkey. At first blush, this seems a bit hard to fathom. Today, the American founders certainly can be criticized, but for years it was considered the height of rudeness and quite controversial to suggest that Thomas Jefferson, as now appears to be confirmed by DNA testing, fathered one or more children with a slave, Sally Hemmings. In the UK, it is an offense (albeit rarely prosecuted) to insult the queen. To the extent that the law protecting Attaturk is grounded in his importance as a symbol of Turkish nationalism and nationhood (and I think it is), the law is quite similar to proposed constitutional amendments to offer special protection to the American flag and to the laws protecting the British Queen.

Updated: Yayla convicted, sentenced to 15 months in prison, suspended.

Hate speech at funerals

You may or may not know the name of Fred Phelps, but he really hates gay people and any person, organization, or government body that doesn't hate gay people as much as he does. He is most famous for leading anti-gay protests at the funerals for American soldiers killed in Iraq. Next up:

A fundamentalist church whose members demonstrate at the funerals of soldiers killed in Iraq and believe God hates gays will protest the Academy Awards and the funeral of Heath Ledger, because the actor played a gay cowboy in the 2005 film "Brokeback Mountain."

Members of the Westboro Baptist Church in Topeka, Kan., are trying to find out where the 28-year-old actor's funeral will be held and have already made signs to hold outside the Oscars that read "God Hates Fags and Fag Enablers," "Heath in Hell" and "Mourn for Your Sins," Shirley Phelps-Roper, daughter of the church's controversial founder Pastor Fred Phelps, told ABCNEWS.com.

(snip)

Last year a Baltimore jury determined the Westboro Baptist Church was too vulgar and offensive to be covered by the First Amendment. The church was ordered to pay nearly $11 million to Albert Snyder, who brought a suit after the Phelps clan picketed the funeral of his 20-year-old son Matthew, who died while serving in Iraq.

As we discussed briefly earlier this week, many instances of religious speech draw on the speech clause and the religion clauses of the first amendment. Phelps and his followers could raise both free speech claims in their appeal of the Baltimore judgment, and free exercise claims against the state. On the other hand, their activities are extremely offensive to many people and it is genuinely difficult to fathom what possible contribution to public debate is made by the persecution of families in mourning. Protesting at the Oscars fits more neatly with our general first amendment categories although many might argue that their planned signage constitutes hate speech.

Are there significant differences between speech at the Oscars ceremony and a protest at a soldier's or actor's funeral? Can we draw first amendment distinctions that allow the Baltimore judgment against Phelps to stand while protecting his protest in front of the Oscars? Should both be protected, or neither?

Deporting citizens

So it turns out that the authorities have been deporting a small number of US born citizens by mistake without bothering to even make a simple phone call to check on their birth certificate records. This is the sort of thing that is bound to happen when we reduce or eliminate due process protections, access to legal counsel, and judicial oversight of bureaucracies. It is also likely that when we maintain separate standards for citizens and non-citizens that some citizens will find themselves improperly labeled. In the cases detailed in Taylor's piece, this resulted in American citizens being deported in some cases, and nearly deported in others, to countries who would regard them as foreigners. In fact, if Warziniack had actually ended up in Russia the Russians would have regarded him as an illegal immigrant and he might have ended up spending years bouncing back and forth between the two countries. As it was, he spent a lot of time in detention due to the mistakes made by the immigration authorities.

Campaign finance restrictions

An interesting speech case has been appealed to the Supreme Court and I think the Court will have to decide it promptly.

A conservative advocacy group, Citizens United, asked the Supreme Court on Tuesday to take up quickly and decide during the current Term a constitutional challenge to limits on its planned broadcast of ads promoting a movie about Democratic Presidential candidate Hillary Rodham Clinton. Tbe case may also affect promotion of a planned movie about another Democratic candidate for the White House, Barack Obama. A three-judge District Court in Washington refused a week ago to clear the way for unrestricted airing of three ads that promote the first film, “Hillary: The Movie” — a production that the District Court concluded amounts to a declaration that New York Sen. Clinton is not fit for the presidency so voters should not support her. A film that is similar is being prepared about Illinois Sen. Obama, to be ready in June.

One of the key problems in campaign finance law concerns determinations of what constitutes a campaign advertisement that advocates on behalf of, or against, the election of a specific candidate and what is merely non-advocacy political speech. When the speech in question doesn't look like a 30 second tv ad that says "Citizens United urges you to vote against Hillary Clinton" interpretation gets complicated. My take on this is that the District Court was correct as a matter of statutory interpretation (not that I am an expert on the campaign finance laws) but that the case raises serious questions about the constitutionality of this provision in the law.

It would be ironic, wouldn't it, if John McCain is the Republican nominee and groups that want to support his candidacy are prohibited by the McCain/Feingold campaign finance law from running ads in an effort to help him.

Hustler v Falwell

Hustler v Falwell can be found here including audio of the oral arguments.

And the cartoon at issue in the case is here.

Whitney v CA

I forgot to put up a new link for this case although, of course, you are all fully capable of looking up the case. Anyway, try here for the case, scroll down about 2/3 of the way for Brandeis's concurring opinion (or just search for Brandeis).

Padilla sentenced

Padilla was sentenced today to 17 years 4 months in prison, far less than the life term suggested by federal prosecutors. Padilla's co-defendants also received shorter than recommended sentences.

ATT and internet privacy

(updated below)

ATT wants to start filtering all internet traffic that passes through their equipment for copyright infringement. This would affect ATT subscribers, obviously, but also most of the rest of us as ATT owns various bits and pieces of the internet. This dovetails with the internet surveillance that the Director of National Intelligence would like to impose. We already know how seriously ATT takes the privacy of their customers (not at all seriously) when the government asks for private data.

Start training your carrier pigeon (or your owl) because that soon may be the only way to have a private communication with anyone you can't see in person.

Update: I spoke too soon, I guess they will be watching your owls and pigeons too.

Libel against John McCain

(Updated below)

The latest, and truly despicable, dirty trick of the current campaign is a flyer and website that attacks John McCain by suggesting that he is some sort of Manchurian candidate who is both using his POW experience as a sympathy ploy to get elected and once in power will be controlled by shadowy outside forces to America's detriment. They also suggest that he betrayed his fellow POWs. This strikes me as more than enough to meet the test for libel from New York Times v Sullivan. Like John Kerry in 2004, McCain would have an excellent case to make even under the very restrictive actual malice standard that public figures such as McCain must prove. I won't link to the Vietnam Veterans Against John McCain website because I don't think they deserve to have their speech amplified. TPM has a copy of the flyer and links to the original website.

Reports say that McCain is hitting back against this, but really, who does he hit? There may be no effective answer to this kind of libel, even for a sophisticated and well-funded political candidate with almost limitless access to mass media. Once defamed in this way, it is not clear that McCain can undo the damage through his own speech and speech on his behalf. Even if most people reject these charges (and most people will) McCain's reputation still suffers damage. A lawsuit after the campaign is over will have no effect on the South Carolina primary this weekend. Will bringing such groups out into the open help? Will their behavior and speech be affected by public scrutiny?

Perhaps we need to resuscitate the criminal law of libel for a very narrow class of especially damaging kinds of politically motivated attack? Attacks like this one don't appear to contribute anything to public debate about who would be the best president and fail to promote any of the usual goals of free speech. It would be very difficult to come up with a positive argument for protection of this sort of defamatory attack.

Unfortunately, this is only one of an already depressingly large number of shadowy and sneaky defamatory attacks in this campaign and they aren't going away. They pose real problems for free speech theory and we should discuss some of these in class.

Updated: For more on who these people are, and from the AP.

Updated again: The story gets a bit more complicated. The flyer has never been distributed except to media outlets and the group behind it has no money to place ads on tv or to distribute their information other than sending things to local media and to their email list of supporters. Far more attention to this story has come from the McCain campaign's pushback, media coverage, and people like me writing about it. My earlier argument that McCain has no real way to undo the damage was, it now seems, an over-reaction in light of this new information since it appears that if he had ignored the whole thing, few people would likely have known anything about this group and its libelous charges.

Mike Huckabee

OK, this has nothing to do with constitutional law, or anything else in either class, but it really is worth a minute of your time.



Updated: Everything you might want to know about frying squirrels, from Slate (even includes a clip from Secret Squirrel!).

Internet surveillance

The Director of National Intelligence has publicly stated that the government needs the power to observe everything that happens on the internet.

The nation's top spy, Michael McConnell, thinks the threat of cyberarmageddon! is so great that the U.S. government should have unfettered and warrantless access to U.S. citizens' Google search histories, private e-mails and file transfers, in order to spot the cyberterrorists in our midst. (Wired "Threat Level" blog)

There are many angles from which we can observe the claims for new power that McConnell makes. Aside from the practical question of whether searching everything that happens on the internet is likely to be an effective strategy, think about this from the perspective of our current reading on political fear. Assuming, for the sake of argument, that looking for a needle in the world's largest haystack won't provide a whole lot of bang for our intelligence buck (although I suppose we could use prison labor - scanning internet traffic could be the 21st century equivalent of breaking rocks for punishment), why would McConnell want to publicly advocate for this power? If it won't work, what is it for? What sort of political fear is involved here? Will constant and pervasive internet monitoring have effects we can recognize through the literature on the politics of fear?

Did anyone watch the Democratic candidates debate last night? That too featured references to the politics of fear, particularly by Obama.



Updated: Here is the clip - Obama on politics of fear.

Campus speech codes

We will be reading a short selection from Jon Gould's book Speak No Evil which examines campus speech codes and related controversies. Such controversies are frequent occurrences, one is now active at Bergen Community College. It is also worth comparing a campus speech code like Bergen's proposed code to the Canadian hate speech law considered in the last post.

Updated: And this is a good example of why some people push for hate speech codes.

Hate speech laws in Canada

Glenn Greenwald has a good post up today about a hate speech investigation in Canada. Canada has more restrictive speech laws than does the US, laws that are consistent with their constitution but which allow the government to investigate and prosecute Canadians for hate speech that in the US would not be actionable. The case Greenwald references is that of Ezra Levant, who published the Danish Mohammed cartoons in his conservative Western Standard. A complaint was filed with the Alberta Human Rights and Citizenship Commission against Levant and the commission investigated. Greenwald has a 5 minute youtube clip of part of the investigation, as he says, it is "stomach-turning."

Greenwald argues against the investigation and utilizes some classic First Amendment principles to do so. The Canadian constitution has a free speech provision that is at least as strongly worded at the First Amendment. However, their constitution also has a clause that requires that provisions of the constitution always be interpreted against a background commitment to equality. In a conflict between free speech and political equality, the Canadian constitution is read to favor equality even at the expense of free speech. Canada also has more restrictive pornography laws than the US based on gender equality arguments like Catharine MacKinnon's. It is an entirely different constitutional arrangement than ours, there is a different politics to these cases in Canada than the US, and Canadian judges have different factors to consider when hearing these cases than an American judge deciding such a case under the First Amendment.

The Canadians (and the Danes, the Germans, the French, and the South Africans, among others) made different constitutional choices than the US has in structuring the meaning and content of free speech protections. We can learn a lot from the comparison between our respective constitutional practices. Greenwald's criticisms are all valid, if this were a question of American First Amendment law, and may be valid as a question of free speech theory (although he doesn't elaborate much of that theory in a short post), but the investigation he criticizes is constitutional under Canadian law.

We should discuss this case in class both in terms of what it says about free speech theory and what it tells us about American hate speech law that we will read in a couple of weeks. I don't think it is an accident that the Canadians designed their constitution (ratified in 1982) to privilege equality over speech and I don't think it is an accident that they included specific instructions on how to weight civil liberties provisions in case of conflicts between rights or freedoms.

Not just for Rudy

Of course, Rudy isn't the only one using fear in this campaign. With things not going so well for her campaign, Clinton has also played the fear of terrorism card a few times, most recently yesterday.

The 9/11 Candidate

We will watch this video in Issues tonight and discuss it.

Video for class

Today in Con Law II we will watch this video and discuss it.

And maybe this one too, on the same theme.

Welcome

Since welcome posts are obligatory, welcome to my new blog Office Hours. I will use this blog to communicate with the students in my courses in Spring 2008 and it is primarily designed with those courses in mind. The blog will serve as an alternative place for discussion related to the course topics, a space in which I can raise issues that we did not have time to discuss in class, post links to resources relevant to our in-class discussions, and highlight current news and commentary germane to our discussions. I may also try to include audio-visual content that may not fit the confines of the classroom but is relevant to the course.