I spy with my little eye

Strangely, the pile-up of news about the government's intrusive domestic spying (a redundancy, probably: is any domestic spying not intrusive?) stirs a bit of optimism in me.  I mean, this has been going on for a while, even if most Americans have been either ignorant of it or ignoring it.  I wrote about the offending clause in the PATRIOT Act -- the dreaded article 215 -- in my last book and since it takes me forever to finish a book, that's got to be a looong time ago. (I'm pissed off about the IRS bullying tea partyistas too, but that's a different kettle of govt intrusion & overreach.)

The concern then was the FBI demanding records from libraries and bookstores.  Not to worry, said then-Atty Gen. John Ashcroft, we have better things to do than track who takes out what from the library.  Whereupon, the FBI proceeded to demand records of who took out what from the library and, in the bargain, gagged librarians from even acknowledging it was going on.  Four librarians in Connecticut sued and the FBI eventually backpedaled, but you can bet that didn't stop similar fishing expeditions.  When PATRIOT came up for reauthorization in 2011, what had been dubbed "the library records provision" -- which is apparently what the feds now claim allows then to gather records on who Googles or Netflixes what -- was tucked safely in place.

Technology has outstripped the legislation, as it always does, so we're now finding out about reams of usage records of Verizon customers stored somewhere in the government's vast and secret data mines and the phones of AP reporters being tapped after they embarrassed the government, which, to my way of thinking, is part of their job.  The spy stories will no doubt continue to grow in the coming days, weeks, months....as long as someone keeps paying attention.  Which is my point.

Maybe now that we are paying attention, there will be enough outrage that government spying on citizens with no cause for suspicion will be dialed back.  (I'm not so optimistic as to think it will be ended.)  It's happened before, post-Watergate, for instance, and the government can occasionally be embarrassed into doing the right thing.  Here's hoping.  And complaining.  And cheering for those -- Glenn Greenwald take a bow -- who bring this crap to light.  It's what we've got going for us.

Supreme sanity

It got pretty much buried by the June surprise from the Supreme Court, upholding the essence of the only health care plan to make it through Congress since Medicare, but sanity did prevail when the court struck down the Stolen Valor Act, which had made it a crime to lay claim to military honors you never got.  Frankly, this wasn't even one of the hard free speech puzzles; as the court ruled, it's a bad idea to empower the government to make a list of things you can't lie about.  So, good for you guys and girls (please, no feminist outrage; I honor the women on the court sufficiently) -- or at least the 6 justices who got it right.  Not a valiant act, exactly, but a sensible one.

The Muzzles of 2012

From the Thomas Jefferson Center for the Protection of Free Expression comes this year's list of particularly ham-fisted censorship with its Muzzle awards.  This makes a nice pairing with the list of under- & unreported stories compiled by Project Censored.  As I've often said, when it comes to permitted expression, everyone seems to have a line which should not be crossed.  For our amusement -- and alarm -- may of those lines have irony written all over them.

Know which way the wind blows

       A Marine meteorologist (that's Marine, as in branch of the military) has lost his security clearance, without which he can't do his job, because he refused to stop posting satire and criticism of the President on Facebook.  (Details from AP)  Sergeant Gary Stein did stuff like superimposing Obama's face on a poster for the movie "Jackass."  OMG!
       Stein's lawyer points out that he broke no law and the ACLU has trotted out that pesky First Amendment, but the Marines counter that he violated military policy, which severely limits a Marine or soldier's political speech while in uniform.  (Does this raise the question of what he was wearing when he went online?)  Apparently, the policy has been in place since the Civil War.
       Stein's postings may have been disrespectful of his commander-in-chief, but they also seem to be satire, which has been explicitly protected under the First Amendment since 1988 in Hustler v. Falwell.  Satire seeks to undermine authority, but it's doubtful that these parodies would make much difference in conducting military operations or, in this case, predicting the weather.
       More significant is that the Marines decided to go after Stein after he wrote on Facebook that he wouldn't follow unlawful orders from the prez.  That challenge -- Stein first wrote just that he wouldn't follow Obama's orders, adding "unlawful" later -- goes to the defense military resisters, such as Camilo Mejia and Ehren Watada, tried when they were prosecuted for refusing to fight in Iraq.  It relates to the "Nuremberg defense," which holds that subordinates are not liable for criminal acts they commit while following orders -- and by extension, sanctions soldiers refusal of unlawful orders.  Military and civilian judges very, very seldom allow such an argument to be introduced (and didn't in either Mejia's or Watada's trials).
       So here we have a case of slippery slopes all round.  For the Marines, the slip would be in allowing a weatherman to show which way he thinks the wind blows.  For civil libertarians, it's in continuing a restrictive policy which tramples the First Amendment rights of those whom we laud as heroes as soon as they put on the uniform -- and apparently relinquish their right to speak their minds.
  

I went to war. Not.

       The Stolen Valor Act is bouncing around the courts.  The latest ruling at the appellate level has determined that the law, which makes it a crime to lie about your military record, does not violate the First Amendment because, the court reasoned, the F.A. doesn't protect lies.  That case involves Rick Strandlof, who told some whoppers in Colorado a few years ago. The veterans he lied too, including some active in IVAW, were mostly as reluctant to challenge him as were civilians. (The Supremes will consider a different challenge to the law, also on First Amendment grounds, probably next month.)
       Advocates of unfettered speech are concerned that this expands potential punishment for "false statements of fact" and threatens journalists who publish erroneous news reports. We all know we're not supposed to lie, but if that decision stands, it would be a significant roll backward on press freedom. 
      I have a different concern, a question: Why are the facts about whether someone was a soldier more sacrosanct than other speech?  Making up or exaggerating a military record is remarkably common: politicians, professors and other storytellers get outed for it regularly.  Some get away with it (Geo. W. Bush, anyone?), some resign in disgrace. 
       On the other hand, a lot of veterans play down their wartime actions --out of modesty or revulsion at the question, Did you kill anybody?  But sometimes they do it out of guilt for what they did and took part in.  Are those false statements also illegal under this law, or would that have to be the Stolen Guilt Act?   Because it's all there in the name: that knee-jerk, too-simple-by-half assumption that anyone who puts on a military uniform and makes it out of boot camp is a person of valor; i.e. a hero.  And no one should steal from a hero, right?  Unless, of course, real valor can be neither bestowed, nor taken away.

how big is the First Amendment's tent?

       I'm interrupting my viewing of the live feed from Occupy Boston (which may or may not be in the process of dismantling itself or being dismantled by the Boston Police Department) while occasionally checking on how the stock market is doing (quite well today, thanks to Merkozay's latest deal to "save the euro") (embodying therein my, and much of the country's, internal contradictions) to consider the recent ruling by a Massachusetts judge who found that "The act of occupation...is not speech" and is therefore not protected from "prosecution for trespass or other crimes."  In other words, the city of Boston can kick the protesters out of Dewey Square, where they've set up a community, which seems to function as well as most, for the past 2 months -- no thanks to city officials, who have cited health and safety violations, while preventing the camp from improving its plumbing/sanitation and shelters/winterization.
       So are we in favor of free speech, but?
       The occupiers mean to be provocative; that's the point of protest, but it seems to me that, as a matter of strategy, it's smarter for officials just to let the encampments be.  Across the country, the movement has gotten the most attention when police attacked the protesters -- from the first videos of young women being pepper sprayed in NYC to the veteran in Oakland, eyes rolling back in his head as he's carried to  the hospital, to campus cops pepper spraying students at UC Davis.  In Boston, it was the night when 141 protesters were arrested, starting with the perfect photo-op of aging veterans getting knocked down & hauled away as they recited the oath of loyalty to the Constitution they had taken on enlistment.  And last night, as protesters awaited another police action, the news media were all over it.
       In contrast, ignoring protest, as the Bush administration did with the massive marches against the invasion of Iraq, proved to be quite effective.  Within months, we were told that the antiwar movement had gone away.  (Not true, but most people -- including much of the antiwar movement -- believed it.)
     But power seems to need to assert itself and finding a legal loophole is an effective way of doing that.  At least for a while.  Change comes when enough people become ungovernable.  The occupy movement isn't there yet, but it has made politicians uneasy enough to try to squash it and has altered the discussion -- which is another purpose of the protest.  In response to the court's decision, posters went up at Occupy Boston saying, "You can't evict an idea."
     Actually, you probably can, but you can't be certain of silencing it by pulling down tents, which is what matters now.  There are lots of public spaces left to occupy for some length of time and lots of other strategies for keeping that idea alive and promoted as a thorn in the side of the powerful.  Being forced to close down the tent cities before winter makes them really miserable is a gift to the movement.  It can declare, not victory, but persecution, which brings public sympathy and attention.  Then it can regroup and continue to build and find other ways to speak eloquently against unfairness and corruption.

hacking the First Amendment

       Is it possible that hacking could be protected political speech? 
       I read this article about Homeland Security issuing cyber-threat warnings against the apparently political hacker group, Anonymous, and its ilk, and about online organizing of protests in San Francisco, and I wonder.  There's a specific reference to "a call to physically occupy Manhattan's Wall Street," which I've received -- not from Anon, but from AdBusters, a very-much-above-ground magazine, published in Canada.  I'm on some list; who isn't? 
       (Shrug)
       Organizers of protests have been using the internet and email for years.  They'd be dumb not to.  And last time I checked, the First Amendment protects protests on city streets.  Wall Street may be paved with stock options, but it's still a city-owned thoroughfare.  But then, new technologies always engender new anxieties.  Except that the tech and the anxious have been around for a while.  Maybe it's time to move on?

free speech for me and thee -- but I'm not so sure about thee

Another State Dept. embarrassment -- this episode in which a Palestinian cartoonist is uninvited to take part in a program focusing on free speech because, well, they don't like his cartoons, aka his speech.  Can't tell if the U.S. govt is immune to embarrassment or just tone deaf.

When is speech not speech?

       No, it's not a bad joke.  It was at the nub of the decision by the Supremes yesterday, decided in favor of some data mining companies, which sell information from pharmacies about prescriptions individual doctors write.  They then sell them to drug companies, which use the info. for selling more drugs back to the docs. The case, Sorrell v IMS Health Inc. was a challenge to a Vermont law that barred selling, disclosing or using that information for marketing purposes.  Selling it for research, much of which is probably carried out under the auspices or funding of drug companies, was still kosher, and that was the problem. 
       The decision's not a great surprise, given the make-up of the court, although maybe surprising that it was 6 to 3. There's not an extensive body of First Amendment law on commercial speech & this decision didn't address whether commercial speech hews to a lower standard than political speech.  The dissenting justices, however, claimed it was established law that commercial speech could be regulated without violating the F.A. 
       Seems to me this case involves a similar questions as regulating political contributions: Is a corporate entity guaranteed the same speech projection as an individual?  And, is money speech?  In practical terms, I don't think that Glaxo, Smith or Klein and their ilk are being stifled nearly enough and I can tell the difference between a dollar and a damn.  But money certainly buys speech, and it 's a cornerstone of First Amendment law that that the govt. can't pick and choose among types of speech, which did seem to be part of the Vermont law.  I suspect the founding fathers would have been as eager to protect free enterprise as free speech.  They weren't exactly socialists, after all.
       Which leaves me wondering if there isn't a better way to limit the rapacity and predation and intrusion of big pharma into our health care and our health -- like maybe a single-payer system, for starters?  Oh, I forgot; that's socialized medicine.

domestic surveillance? enemies list? la plus ca change -- et continue, bien sur

       In the we're-not-surprised and they-should-be-ashamed categories:  Someone found out that under the Bush administration, the CIA went after Juan Cole, who attacked the war in Iraq, among other misbegotten policies, on his blog, Informed Consent.  The CIA claims to be able to find no record of such surveillance, and Cole assumes he wasn't alone as a target.  All very familiar.  And depressing. 
       And continuing more publicly under the Obama administration in its aggressive prosecutions of government whistleblowers, including Tom Drake (ex-NSA), Jeffrey Sterling (ex-CIA), Steven Kim (State), Shamai Leibowitz (ex-FBI), and Bradley Manning, whose current status is unclear while the Army stashes him away in Leavenworth and the government figures out what they want to do about him, and through him, about WikiLeaks Julian Assange.

Another not illegal, but

      A guy in western New York State gets even with his neighbor -- a recently opened mosque, which he says is too close and too brightly lit -- with an offensive sign and, yes, it's not illegal because it's on his property.  However, it's not a stretch to imagine, as a member of the mosque's board suggests, that the very large sign will be fodder for the local hatemongers, who will try to drag the law behind them.
      In the ever-thus vein, I'm reminded of a lawsuit over someone's right to burn a cross, albeit on someone else's property that time.  The case, R.A.V. v St. Paul, Minnesota, began in 1990 and went all the way up to the Supremes, who weren't asked to determine if the 17-year-old thug in the case had the right to burn a cross on the front lawn of the black family who lived across the street.  There were widely accepted laws in place to punish that.  What made it interesting was the Supremes' 6 to 3 ruling in 1992 that the city ordinance banning cross-burning as "hate speech" was overly broad and not content neutral and, therefore, unconstitutional.  That dealt a significant blow to hate speech laws, which had been popping up in cities and school across the country and, in one of those being-right-by-being-on-the-wrong-side victories which civil libertarians seem destined to seek, First Amendment advocates were pleased with the outcome.
      So maybe, rather than coming up with more unenforceable and counterproductive laws, the mosque could dim its lights and the sign maker could get a life and we could take the matches away from hooligans.  Unless -- could it be? -- getting along isn't really the point.

Is this direct incitement to violence?

       At the behest of the Israeli government, Facebook removed a page about the Palestinian intifada, which, according to a post quoted by AP, included a call for Muslims to rise up and kill all the Jews. 
       Well. 
       I suppose there's a legal response: U.S. law recognizes only a narrow category of "fighting words" as those "directed to inciting or producing imminent lawless action."  (Brandenburg v Ohio, 1969)  But, while Facebook is an American company, it has an international presence and reach and, more to the point, this is one of those instances where a court can resolve the legal issue, but not the human or moral one. 
       I like to think that most people shrink from advocating mass murder, at least in theory, but most people also rise to advocating war, at least under some circumstances.  Consistent pacifists are thin on the ground everywhere.  And though I haven't researched it, I'm pretty sure that Facebook, along with every other communication media, contains depictions, descriptions, and language of violence, some of which probably isn't very different from this "Third Palestinian Intifada" page. (The link I found is in Arabic.)  So an obvious objection to Facebook's action is that it's selective and bows to pressure from one political position, while probably tolerating something equivalent from another.
     Which ties me in my typical knot, an uncomfortable position to maintain for long:  While I can tell the difference between words and actions (I can also tell the difference between "expressive actions" by the likes of the jerk in Florida who threatened to burn a Koran and then finally did it and the Afghans who responded by killing a bunch of people who had nothing to do with that action.),  I want a lot less violence and bellicosity and calls to war, not more.  Still, I'm always leery of calls to ban whole categories of speech or writing or information... I almost wrote, "no matter how odious," and there's the rub.  Odium is one thing, murder quite another. 

the truth shall set you free -- from your govt job

Bradley Manning probably broke the law if, as assumed, he leaked batches of classified documents to WikiLeaks, but his bigger crime seems to have been embarrassing the government -- a govt which continues to embarrass itself by imprisoning him under unnecessarily harsh conditions while slapping on more charges without bringing him to trial.  Truth is the best defense in libel cases (and, in this case, would probably have support in the court of public opinion, if people started paying attention), but it got P.J. Crowley, State Dept. spokesman and retired Air Force colonel, sacked for his concise assessment of the Manning affair at an MIT seminar.  Crowley apparently knew what he was saying: he agreed that his remarks were on the record before they got blogged widely.  Maybe he was just sick of being a "government spokesman"?

Hold your nose and vote

Odious as it is, I think the Supremes got it right on the right of the Westboro Baptists to be assholes.

Who teaches teachers that blogs are not private?

       So a teacher creates a blog "for family and friends" in which she denigrates her stus as "disengaged, lazy whiners." The story includes that short quote out of context, followed by an ominous "and worse," so there may be more to it, but it doesn't sound much different from what a lot of teachers say or think.  Nonetheless, she got suspended and the superintendent doesn't want her back after she finishes her maternity leave, to which her "supporters" retort, free speech.  Thus, the battle lines are drawn.  Or maybe not.
       Yes, of course, she has a right to her opinion of her students, to voicing it too, but was she really so naive as to believe that she could restrict something she posted online to the readers she chose?  (Almost no one reads this blog, but I'm always aware that anyone could.)  We hear story after story about kids learning hard lessons about communication they thought was private snapping round to bite them, but this is an adult, a teacher and soon-to-be parent.  Surely, it would have made more sense to say this stuff to her family and friends in person, if that's whom she wanted to tell it to.  Aside from a breach of professionalism (euww! how stuffy does that sound?), there's the impact on her classroom because it's hard to teach students who know you disdain them. 
     So, yeah, let her keep her job -- and her blog, if she still wants to -- but help her to be a better teacher and make her figure out a good way to deal with the consequences of her words.