I admit I am excited. It has been over a year since I first emailed the Daily Show to let them know what a great guest GJ will be. I have sent several emails since; so, I am sure, have countless others of his supporters. And it seems they finally listened!

I am also nervous. It is important that Gary does a good job. The Daily Show is key to reaching a huge portion of his largest potential support-bloc: the young.

So, Gary, here are some thoughts from a young supporter — one who has watched most of your interviews over the last year.

1. Be careful about some topics. For starters, there is the fair tax. You like to mention this in every interview. However, remember that the fair-tax is a drastic overhaul of the tax system, and to the uninitated, it can come across as wonkish, gimicky, or worse, make them deeply sceptical of your motives. The Daily Show audience is not a natural one to sell the fair tax to, and it might be best to avoid mentioning it. However if you must, here is how you should phrase it: “The current tax system is inefficient, overly complex, unfair and ends up hurting the middle class and small businesses, while the rich and big corporations end up taking advantage of its many loopholes. A much better system would be to tax consumption, rather than income, via a national sales tax. However, a pure sales tax is not progressive and will hurt the poor. So I couple with a prebate  so that each family unit can consume tax free at or beyond the poverty level, with the overall effect of making the FairTax progressive in application.” It is important (especially for a left-leaning audience as the Daily Show’s) to emphasize that the fair tax actually acts like a negative income tax for the poor, and thus couples as a welfare scheme for them. Another topic to be careful about is the abolition of certain departments, such as the Department of Education. This will not go down well unless you are careful about how you phrase it. Emphasize that this department has only existed since 1980, and education hasn’t improved since then. Emphasize that you think education is very important, but that the any useful public investment in schools and education is basically done by the states, and this particular federal department hinders far more than it helps.
2. Know your audience. The Daily Show audience is young and left leaning. Emphasize issues like (ending) the war on drugs, upholding civil liberties, keeping the internet free of censorship or surveillance, and fighting against the military-industrial complex. Tell them that you believe in a woman’s right to choose, and that the government has no business interfering with goes inside the bedroom. Avoid talking too much about spending cuts or tax cuts. However, economic issues will come up, and your selling point is your sterling performance as governor of New Mexico. Remind the audience that the US is only a few years away from reaching Greek level of debt crisis, and your aim is to fix government, not to break it.
3. Distinguish yourself. For starters, emphasize Obama’s betrayals. Obama promised to end raids of medical marijuana in states where they are legal. Instead these raids have gone up. He promised to protect whistleblowers who expose government wrongdoing. Instead, he has gone after them with a vengeance, going so far as to target journalists. He has hugely expanded the drone attacks and resorted to sophistry (a militant is defined to be any military age male in the vicinity of an area targeted by a drone) to minimize official civilian casualties. He has shown he cannot be trusted. You can. Obama did not have the guts to veto the indefinite detention act (NDAA) despite initially saying he would, but if such a law had come on your desk, you would have vetoed it. Remember that most people who watch the Daily Show voted for Obama — tell them they should vote for you because you are far better than Obama on many issues they care about. Tell them that Obama has betrayed their trust. And lastly, do not start off your interview by talking about Ron Paul — as you did in the Dan Carlin interview. (By the way, I think you did well in the Colbert Report).
4. Be substantial. I thought some parts of your interview with Carlin came across as vague or unspecific. Here are some criticisms on Dan’s forum by his listeners – go through them ( http://www.dancarlin.com/phpbb3/viewtopic.php?f=1&t=32905)  Be reasonable, but firm, clear and substantial. Talk of definite liberties that Obama has taken away (war on drugs, going after medical marijuana dispensaries, killing civilians abroad with drones and then killing the mourners all without due process, signing indefinite detention and renewing the Patriot act, targeting free speech as in the case of NY Times journalist Risen and ex-NSA Thomas Drake). Talk about your approval ratings in New Mexico and how you turned a debt ridden state into one with a surplus.
5. Know your host. Jon Stewart is smart and he has interviewed libertarians before. Here are the 19 excellent questions he asked Andrew Napolitano (see http://texaslynn.wordpress.com/2012/04/30/john-stewarts-19-questions-for-libertarians-answered-by-a-constitutional-conservative/ look at the questions, not the answers). Think about them. A good place to start answering them would be tell Jon Stewart: “I want government to be effective , protective of our rights and respectful of our freedoms. I believe freedom is intrinsically valuable. But I am not a doctrinaire libertarian. As president, my main job will be to solve our problems and I am open to any ideas that will get us there.” Also be ready for questions that might put you on the spot (your support for private prisons (if this comes up, talk about strong safeguards to prevent abuse), your support for relaxing labor regulations that might potentially lead to child labor (tell them unambiguously that you do not intend to scrap all labor or underage work regulations, merely to improve them and cut the ones that go too far).

It is impossible to have a discussion of these laws without referring to the following passage from John Stuart Mill’s influential work On liberty. The sentence in bold from the excerpt below is usually called the harm principle and is a cornerstone of libertarianism.

The object of this Essay is to assert one very simple principle … That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not sufficient warrant. He cannot rightfully be compelled to do or forbear because it will be better for him to do so, because it will make him happier, because, in the opinion of others, to do so would be wise, or even right… The only part of the conduct of anyone, for which he is amenable to society, is that which concerns others. In the part which merely concerns himself, his independence is, of right, absolute. Over himself, over his own body and mind, the individual is sovereign.

I suspect that many liberal-progressive types agree with the harm principle on some level. So they often tend to justify paternalistic laws not on paternalistic grounds but on the grounds of limiting negative externalities. For instance, in their support for motorcycle helmet laws, their argument might echo that of the Massachusetts high court, which in 1972 (when it affirmed that a motorcycle helmet law was rationally related to the public welfare) declared:

From the moment of injury, society picks the person up off the highway; delivers him to a municipal hospital and municipal doctors; provides him with unemployment compensation if, after recovery, he cannot replace his lost job; and, if the injury causes disability, may assume the responsibility for his and his family’s continued subsistence. We do not understand a state of mind that permits plaintiff to think that only he himself is concerned.

In other words, your decision to ride un-helmeted harms other people, and so society can rightfully coerce you to wear a helmet.

The word “harm”, of course, needs to be interpreted narrowly in order that the harm principle be meaningful. A harsh word hurts. Breakups hurt. Abandoning your wife and going off with someone else may cause intense emotional harm. Everytime I buy something from X and not from his competitor Y, I am harming Y and favoring X. All these activities are legal, and should be.  Only kinds of harm that directly violate others’ rights (by causing violence upon them, or depriving them of their life, liberty, or property) should enter into the calculus.

Still, it is clear that if society is forced to pay extra because of someone’s recklessness, it is indeed a harm inflicted by the reckless individual upon the other members of society; who then might be justified in their intervention. This is what the high court affirmed in its ruling. In doing so, however, the court committed an elementary (but common) mistake; the failure to consider the alternative. The pertinent questions — when considering whether there should be a helmet mandate — are the following:

• Does a person who rides unhelmeted cause a negative externality greater than one who wears a helmet?
• Can any such negative externality be removed (i.e. internalized) without resorting to a helmet mandate?

Let us tackle the first question first. It is almost an article of faith among many that the unsafe and the unhealthy incur higher health costs. However, a recent study by Dutch researchers found that smokers and the obese typically cost less to society than the average person, the reason being that they die younger. It is likely that similar conclusions hold for several other activities that the safety brigade frowns upon. There is no doubt that a typical mountaineer or a base jumper spends much less over his lifetime on health and hospital costs than your average grandpa. So even if one lives in a jurisdiction where health costs are socialized, the argument that these people cost more to society, and hence their unhealthy/unsafe activites should be restricted, is specious.

The data on motorcycle helmets is more ambiguous. Some studies have found that riding unhelmeted reduces health costs per person (for the same reason as above, namely untimely death). Others have found a slight increase. For instance a 1996 NHTSA study showed average inpatient hospital charges for unhelmeted motorcyclists in crashes were 8 percent higher than for helmeted riders ($15,578 compared with $14,377). Now, that’s a small difference, and it is worth noting that the study only considered motorcyclists who were actually admitted to a hospital. When those who die on the spot are included, it is quite possible that riding unhelmeted actually reduces costs to society. There is also evidence that helmet mandates make little difference to  insurance premiums. Currently there are 30 American states where there is no universal helmet law for motorcyclists. There are 20 states where such a law does exist. The health insurance premiums across these states show almost no correlation with helmet laws. None of this is to say that it is good to be reckless or unhealthy, merely that the claim that by doing so you cost extra to society is often not true.

For the sake of argument, however, let us assume that there is indeed a significant negative externality associated with the act of not wearing a helmet. I would argue that this does not justify a mandate. What it does justify are steps to internalize this externality. How can this be done? By making sure that those who ride helmetless pay for the consequences. Here’s a proposal: Every motorcyclist who does not wear a helmet should be forced to either a) carry adequate insurance, or b) have proof of sufficient personal funds, or c) pay a certain amount of money annually into a common pool that would pay for any accident related costs not covered by their insurance; the amount would be empirically adjusted to ensure that unhelmeted motorcyclists, as a group, are cost-neutral for the taxpayer with relation to their helmeted counterparts, or d) sign a waiver that no part of their health or other costs reasonably attributable to their decision to not wear a helmet can be charged to the taxpayer. Furthermore, insurance companies, if they wish, should be allowed to charge an extra premium on helmetless riders.

People often go bonkers saying that they do not care to pay for risky decisions taken by others. Well, they don’t need to! Switzerland, the country I currently live in, has the right attitude about some of these things. The Swiss mountains are beautiful but many of the activities people love to do here (hiking, skiing, mountaineering, sledging, climbing, paragliding, base-jumping and so on) carry inherent risks. They do not ban any of these things here or mandate protective gear (a recent straw poll on a Verbier ski-slope found almost everyone, including the helmeted, opposed to compulsory ski-helmets) or even skimp on the protections. In fact, every time someone is in trouble and calls for help so that he can be airlifted out, a helicopter comes in swiftly for the rescue. What they do later, however, is to make an airlifted person pay the bill. Unless, of course, the person is already a patron of REGA, which one can do by paying a measly sum of 30 francs. Most avid adventurers choose to do so, and this small fee (which is basically an insurance premium) covers any heli-rescues they may need to avail of. So if you happen to need an airlift, and you aren’t a REGA patron, you pay for your rescue to the last cent. If you are a patron, you don’t pay anything. Externality internalized.

The proposal on internalizing public costs due to helmetlessness that I briefly sketched above is similar in spirit. I really don’t see how anyone committed to the harm principle can reject such a proposal and continue to defend helmet mandates. Yet, I know from experience that many will. I think the reason is that many of those arguing for mandates on grounds of externalities haven’t really thought carefully about externalities, nor do they really care. As evidenced above, the externalities related to motorcycle helmets, whether positive or negative, are most certainly negligible as a fraction of total costs; no one will notice any real difference in taxes or insurance premiums whatever the helmet law. There are all kinds of legal activities that people regularly do that create far, far, larger externalities, or involve much bigger risks. Then there’s the fact that the people who call loudly for helmet laws (whether it be motorcycling, cycling or skiing) only do so when someone tragically dies, but they barely notice it if someone is injured and requires expensive long-term care. Yet it is the former that actually saves the taxpayer money. When these same people resort to the specious “externality” argument while debating their helmet laws, I want to scream at them: “Stop arguing in bad faith.”

In fact, the act of riding a motorcycle itself is highly risky; whether or not one wears a helmet makes a difference in only a small number of cases (if a motorcyclist gets into a serious crash, a helmet will rarely save him). Yet very few people would support actually banning motorcycles. If one only cared about externalities and costs to the taxpayer, one should support regulations and counteracting measures roughly in proportion to the size of the externalities. In reality, the regulations reflect the size of the moral disapproval. It is stupid to ride without a helmet. It is such a completely unnecessary risk. Riding helmetless or not wearing a seatbelt is incredibly foolish. There should be a federal law stopping all these. Period.

The true reason behind paternalism (whatever the purported reason) is the desire of people to impose their values on others. Quite simply, paternalists ignore that different people have different values. Like all nannies, they think they know best. They decide what risks are acceptable and what risks are unnecessary. They fail to see that maximizing health is not the same as maximizing happiness. To some people, the joy of riding down a hill, unencumbered by a helmet, unweighed by laws, feeling the wind in your face and hair, is indeed worth the risk of severe injury or death. Besides, there is an inherent value to freedom. As Jacob Sullum put it, when it comes to how people feel about their lives, they may well prefer to make their own bad choices rather than have better ones imposed on them.

Most people has a deep seated urge to control others and bring them to the “right” path. It is important to be able to recognize this urge as the greatest evil. Libertarians oppose laws that mandate helmets or seatbelts, and those that prohibit drug use, prostitution, raw milk sales and the infinitely many other things the unwashed masses are supposed to keep away from. Yes, we personally may not indulge in or encourage most of these behaviors. But we recognize our decision to do so for what it is, an exercise of our own values and cost-benefit analyses, which may not match those of others.

***

The group was driving south on Route 11 in Lafayette around 1:30 p.m., headed toward Lake Como, just south of the Finger Lakes. It was a nice day, but they were there to make a point.

In the group was Philip Contos, from Parish, NY, and he was 55 years old. They were participating in a helmet protest ride initiated by ABATE, an organisation that opposes mandatory helmet laws. A beautiful day it was, but Philip’s bootlaces got stuck in a chain. The biker looked down to inspect the problem, looked up and saw traffic slowing and slammed on the brakes. The bike fishtailed, and he was ejected. He hit the ground with a crunch and he died on the spot.

He died on the spot. What did he die for? Was it to preserve his freedom to be an idiot, a rebel, a reckless individual? Perhaps he would have survived if he was wearing a helmet. But then again, if there was no law in New York that mandated helmets, he would not be out protesting that day, that beautiful day, and maybe his shoelaces would have not stuck in the chain…. His brother, Richard Contos, said Philip would do it again, if he could. “He would have wanted it that way. … He protested everything.” So, who was this man who protested everything?

I never met Philip Contos, but I feel joined to him. 

He died defending the freedom to be himself, to be free of moral busybodies telling him how to lead his life. I would probably wear a helmet if I did ride a motorcycle, but if I were in New York that makes it illegal to ride without one, I’d probably be joining Contos in his protest.

Helmets make one safer. But safety is just one thing among many. We do not have to live life in a way that maximizes safety. We have the right to make whatever trade-offs we wish in our personal decisions. He died defending this sacred right.

But last night, I couldn’t get myself to enjoy it much.

To enjoy a movie like this, you have to root for the good guys, in this case the cops. But the cops are enforcing the prohibition law. It is impossible for me to forget that.

A case can be made, and indeed is made in the movie, that the cops are just doing their duty. They are not responsible for the framing of laws, good or bad. Yet we rightly condemn not just Hitler and the other top Nazis, but also those smaller agents who actually implemented the acts of incredible evil conceived or masterminded by the former. (At what point does moral culpability extend from the planners to the executors? When, despite the fact that you are just doing your sworn duty, can you no longer escape responsibility? These are interesting moral questions I have no comprehensive answers to.)

The prohibition law was not just a bad law. It was an evil law. It criminalized an acitivity that violates no one’s rights and gives a lot of people pleasure. It inevitably led to a vast underground trade in illicit liquor. The result was violence and death. When people were not dying at the hands of the cops or the liquor gangs, they were dying as a result of poisoning. To prevent bootleggers from using industrial ethyl alcohol to produce illegal beverages, the government ordered the poisoning of industrial alcohols. In response, bootleggers hired chemists who successfully renatured the alcohol to make it drinkable. The government ordered th poisoning of alcohol through more deadly means. As many as 10,000 people died from drinking denatured alcohol before Prohibition ended.

I see the raids by Ness on liquor manufacturers and I see an oppressive state violating the rights of its citizens. I see the deaths in the movie and I do not blame Capone; I blame the government. The government is the aggressor here, the initiator of the cycle of violence; Capone is merely giving people what they want. I see Ness killing a bad guy and avenging the murder of his dead partner, and I do not feel satisfaction; I cringe at this instance of abuse of power. And through it all, I think of modern times, where there are about a hundred raids every day as part of the war on drugs, a foolish, evil, violent policy that accounts for more lives lost or destroyed every year than abuse of drugs can ever achieve.

And I cannot forget it all just because it is a movie. Even though Ness and his crew are portrayed as hardworking honest cops, I cannot in my heart ignore that the law they are upholding is a terrible one. I guess that’s the main difference between the person I was then and am now. I know more and I cannot shut it off as easily.

I haven’t read the book, but it is apparently not — despite the title — a book on how to abuse children, but instead on how pedophiles can conduct themeselves around children in a manner that conforms to the law.

Eugene Volokh wrote a nice post explaining why Philip Greaves has not violated the obscenity statute nor any child pornography laws. Also read this post at Sexhysteria.

I am pretty sure that the charges against him will be eventually dismissed. Even if the jury convict him, he can appeal and will be virtually certain to win. The operative word though is “eventually”. Till then, he sits in jail. It appears that he lacks the money to hire a good lawyer or set himself free on bail (set at $15,000).

For a related case, read this old post of mine.

The intro and the music at the beginning is a bit jarring, and the acting could have been more professional, but overall these videos are well-made. They are an excellent primer on your rights when dealing with police and strategies for asserting these rights effectively but sensibly.

I am not an expert on the various aspects of this case, but this much seems clear to me: Binayak Sen was not responsible for an act of violence. It doesn’t matter to me whether he is a Maoist sympathizer or not — if he is, that’s an exercise of his right to thought. It doesn’t matter to me if he spoke in favour of the Maoist movement — if he did, that was an exercise of his right to speech. It doesn’t matter if he possessed banned books — as far as I am concerned, possession of a book, whatever it is, should never be a crime. It doesn’t matter if he gave significant medical aid to an injured Maoist leader — if he did, he was doing exactly what every good doctor would have done in his situation. It doesn’t matter that he visited said Maoist leader in the jail or elsewhere — even disregarding the fact that such contact would have been normal in view of the doctor-patient relationship, noone, should ever, in any circumstance, be penalized merely for being in contact with another human being.

If Binayak Sen actively played a role in planning or executing violent deadly attacks, he should serve the time. But as far as I can tell, there is no evidence whatsoever he did so. Whatever evidence there is, point in a very different direction.  The notion — non actionable, even if true — that he was some sort of a believer in a Maoist ideology seems to be supremely wrong-headed. By all accounts — and I am relying here on accounts of those who know him — Sen’s beliefs were of a far more mild variety: he believed in inclusive growth, aid to underprivileged communities, an opposition to a system that created “two kinds of people” (the haves and have-nots), and so on. He is on record saying he abhors violence, including the Maoist variety. The evidence also points to him selflessly serving these underprivileged communities through his work as doctor. From the linked Tehelka article:

Drive 150 kilometres away from Raipur into the unforgiving dustiness of the forest around Bagrumala and Sahelberia in district Dhamtari, where Binayak ran his Tuesday clinic, and the heroic dimension of his work overwhelms you. There is nothing that could have brought a retired colonel’s elite, accomplished son here but extraordinary compassion. Scratchy little hamlets, some no more than 25-houses strong. Peopled by Kamars and other tribals, the most neglected of the Indian human chain, destituted further by the Gangrail dam on the Mahanadi river. No schools. No drinking water. No electricity. No access to public health. And increasingly, no access to traditional forest resources. Here, stories of Binayak Sen proliferate. How he saved young Lagni lying bleeding after a miscarriage, how he rescued the villagers of Piprahi Bharhi jailed en masse for encroaching on the forest, how he helped Jaheli Bai and Dev Singh, how he helped create grain banks. “Do something. Save the doctor,” says an old man in Kamar basti. “We have no one to go to now.”

In short, the evidence points to him being a man who above all believed in doing good. As a doctor, and a humanitarian with certain beliefs, he did good to everyone, from the powerless poor to some who the state considers its enemy. He spoke out against things he considered unjust and criticized the state whenever he felt it did wrong. Some of his acts made him, in the eyes of the powerful, a dangerous man who needed to be put down.

This ruling is certain to be challenged, but it still means that the forces of evil have won this round. For India and for liberty, this day is a black one.

****

When I last wrote about Sen, a reader (Chetan) asked some interesting questions.

If this issue were to be discussed on the basis of principle alone, I would like to know your views about how you would view an arrest of a person who is actively involved in aiding and abetting a violent political movement.

For instance, were it to be proved that a person provided not just intellectual but also material and tactical support to a violent movement, do you think the State has no right to imprison him? (The implicit assumption here is that the person didn’t involve himself with the violence. Let’s just say he provided funding and helped perpetrators of violence hide from the cops knowing what they had done)

While I cannot cover every scenario here, a few things I believe are:

Helping a violent movement  in a way that is directly linked to the execution of violent criminal acts (giving them money knowing it would be used to buy guns, helping them plan an operation, carrying letters detailing this plan from one person to another) should be a crime.

“Helping” a violent movement in any other way (moral or intellectual support, giving legal advice or medical help, carrying a letter that merely contains seditious propaganda) should not be a crime. Nor should giving money be a crime if it is the case that this money will only be used for legitimate purposes and not for violent acts (or, by mens rea, even if the financier believes incorrectly such to be the case).

From the libertarian viewpoint, the most important issue when pondering the legality of a certain sort of indirect support is whether its nature is intrinsically rights-violating (NAP violating). A good rule of thumb to resolve this is to ask the following question: would it, in your mind, be legal to offer the same sort of support to another group that had till then not committed any crime? If the answer to this question is yes, then the support should probably be legal even when offered to a violent lawless group.

Granted, a few cases are somewhat on the line, but in Sen’s case, it doesn’t even seem close.

This typically happens when Person A comes across some data/evidence that is in tension with his moral system. For example, A may value a certain principle and then realize one day that some regular action of his violates this principle. Or maybe A values several principles, and new data (or just new reasoning) seems to suggest that in at least some instance these principles are in conflict.

To give a couple of examples:

Time: 1790. Place: America. A values both individual liberty and a harmonious, prosperous society. The issue at hand is slave ownership. A reluctantly accepts slave ownership for the time being because he believes that Blacks are intellectually inferior and would not be able to live in the same land as the Whites. Perhaps A supports emancipation in principle but thinks an actual implementation would result in tremendous disorder, huge decrease in prosperity and would also require eventual deportation of all the Blacks back to Africa in a painful, costly and disrupting process. But one day his scientist friend shows him evidence that seems to strongly suggest that the inferiority of Blacks is a myth, and given proper education they would be as likely as Whites to succeed in intellectual endeavors.

Or to give a second example, A is a young European, living currently, who has a strong moral opposition to hunting for pleasure. He thinks it is wrong and rights-violating. Yet he eats meat. He justifies this by saying that killing for food or to achieve some other basic necessity is ok, but killing for pleasure is morally wrong. But one day, after a conversation with a friend he starts to wonder if his position is morally sound. He realizes  that he can get by  without eating animals (gaining the needed protein from other sources, such as lentils, milk and soy, as many Asians do) so the main reason behind eating meat is the pleasure he gains from it. So how is eating meat different form hunting then?

And so on…

The interesting question to me, is what A does in such a situation.  He has several choices:

1. Simple minded denial: He can just deny that the evidence exists. For instance the 18th century American could refuse to believe his scientist friend. He could claim that the facts and the research are false and move on. We seem to see something similar with some (not all) global warming sceptics today.

2. Tweaking:  He can decide that despite the new evidence/argument, he can resolve the tension with minor tweaks. For instance, he comes up with other evidence or arguments to counter the tension. Or he  makes minor changes to his priors that make this tension go away or at least become less pronounced. There are many ways to tweak one’s beliefs, some simple, some highly complex; some honest, some not, some based on reason, some based on emotion.

3. Biting the bullet: He can decide that his values are truly in conflict and modify them significantly. The 18th century American could either give up his belief  in liberty, or abandon his support for slave-ownership. The 2oth century European could decide that animals don’t have rights (and end his moral opposition to hunting) or decide to become a vegetarian. Any of these outcomes are what I’d call significant moral progress. At the individual level, they can be life-changing.

It seems to me that personality plays a complex role in deciding which of the above outcomes occur. As a rule, people have a strong emotional resistance to any sort of change in their moral priors. For that would mean acknowledging to themselves, and perhaps to others, that they have engaged in beliefs/actions that are false/evil. Some make a conscious attempt to avoid letting emotions take precedence over reason in deciding how one deals with such conflicts, while others go with the flow.

Age probably plays an important role in all this; younger people are more likely to change their belief systems. As Fitzgerald once wrote, “At eighteen our convictions are hills from which we look; at forty-five they are caves in which we hide.”

In any case, I don’t have any deep insights to offer, but I think these are interesting questions, and being able to deal with moral dilemmas in an efficient, unbiased and rational manner would certainly improve political outcomes.

I have admired some of Greenwald’s writings in the past. But on Wikileaks and related First Amendment issues, he has been nothing short of breathtaking, a one man army. He has made every point worth making. He has repeatedly pointed out the dangers to free speech from an Assange prosecution, and the legal equivalence between Wikileaks and traditional newspapers. He was the first to reveal to a broad audience the inhuman conditions in which Manning is being held. He has been passionate in his appeals, razor-sharp in his arguments and accurate in his facts. With every article, he has exposed the hypocrisy/evilness of the US administration on this issue and has furthered the cause for liberty and free speech.

***

I donated some money to Greenwald today via Paypal. It was not so much to help him financially — I am sure he earns a good salary from his Salon column and other gigs — but more to express my support and admiration. This is what I wrote in my message: I am a libertarian. Likely we don’t agree on a lot. But for everything you have written about Wikileaks, you are my hero.

Here’s Jack Goldsmith:

I’m not so sure this path avoids awkward questions.  Charging Assange as a conspirator to Manning’s leak might distinguish the Times in the wikileaks case.  But it would not distinguish the Times and scores of other media outlets in the many cases in which reporters successfully solicit and arrange to receive classified information and documents directly from government officials.  Prosecution of Assange on this theory would therefore raise awkward questions about why DOJ does not bring charges against the American media for soliciting classified information on a regular basis.  It would be a fateful step for traditional press freedoms in the United States.  Indeed, unless I am missing something, it seems that a successful prosecution of Assange for conspiracy to leak would have broader and more corrosive implications for press freedoms than a successful prosecution under the ambiguity-riddled Espionage Act.

Josh Gerstein:

Reporters seek classified information all the time in telephone conversations, in private meetings and other contexts. Just Wednesday, the New York Times carried a front page story from Elizabeth Bumiller describing two classified National Intelligence Estimates on Pakistan and Afghanistan. Does anyone think she was entirely passive in this leak? That the reports, or some summary of them, simply arrived on her desk or in her inbox and she did nothing either to solicit them or to seek more details about them after receiving them? Frankly, if she didn’t at least do the latter, she wouldn’t be doing her job.

It seems to me if the Justice Department takes the approach the Times describes, the issue of classification might fall away altogether. But that could potentially make the First Amendment questions even more profound. A reporter who asks a county clerk for a document that is traditionally sealed might be committing a crime. And with virtually all information stored on computers these days, almost anyone who asks a government employee a question the employee might not need to know the answer to might be conspiring in an unauthorized intrusion into a government information system.

Jack Balkin:

Journalists are not merely passive recipients of information they receive from their sources. It make take weeks of negotiations (and rounds of drinks at the Mayflower Hotel) to get a source to agree to provide sensitive information, and work out the details of the disclosure. Agreements not to reveal a source who provides sensitive information are just that, agreements. If prosecutors wanted to, they would argue that such agreements were part of a conspiracy to leak classified information under the Espionage Act or related statutes.

Journalists should be very worried about the conspiracy theory that the Justice Department is considering. It puts them (and their jobs) in serious danger.

Glenn Greenwald:

Very rarely do investigative journalists merely act as passive recipients of classified information; secret government programs aren’t typically reported because leaks just suddenly show up one day in the email box of a passive reporter.  Journalists virtually always take affirmative steps to encourage its dissemination.  They try to cajole leakers to turn over documents to verify their claims and consent to their publication.  They call other sources to obtain confirmation and elaboration in the form of further leaks and documents.  Jim Risen and Eric Lichtblau described how they granted anonymity to “nearly a dozen current and former officials” to induce them to reveal information about Bush’s NSA eavesdropping program.  Dana Priest contacted numerous ”U.S. and foreign officials” to reveal the details of the CIA’s “black site” program.  Both stories won Pulitzer Prizes and entailed numerous, active steps to cajole sources to reveal classified information for publication.