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Posts Tagged ‘first amendment’

Another day, another outrageous attack on free speech. Colorado resident Phillip Greaves was arrested a week ago by Florida cops on obscenity charges. His crime? Writing a book on pedophilia called: The Pedophile’s Guide to Love and Pleasure: A Child-Lover’s Code of Conduct. The cops, posing as buyers on the internet, got him to mail a copy of the book to them and then flew to Colorado to arrest him.

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.

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I am a great fan of Wikileaks. I think they are playing an extremely valuable role in “promoting the climate of transparency and accountability necessary for an authentically liberal democracy” *. As Clay Shirky puts it,

Citizens of a functioning democracy must be able to know what the state is saying and doing in our name, to engage in what Pierre Rosanvallon calls “counter-democracy”*, the democracy of citizens distrusting rather than legitimizing the actions of the state. Wikileaks plainly improves those abilities.

Still, I see the concerns of those who are worried that ongoing leaks from the US embassy cables will affect diplomacy adversely, push things further under the carpet, hurt the interests of the US and other nations, maybe even increase the chance of war. These concerns are legitimate and I will not try to go into a detailed explanation here as to why I think they are overwrought. Suffice it to say that I believe that the status quo is so much to the side of government secrecy these days that that, not too much transparency, is by far the greater danger.

So this post will not defend the thesis that Wikileaks is good and Julian Assange is a hero. That is a thesis both true and worth defending, but not what I wish to write about today. This post will be much more personal. It will be about darkness and disillusionment. It will be about the reaction to Wikileaks, and what it forebodes for freedom in the US.

***

Consider for a moment, what has been the reaction to Wikileaks from prominent US politicians and much of the mainstream American media.

(*) That Assange should be treated as a “traitor” and murdered with no due process has been strongly suggested by Marc Thiessen, Seth Lipsky (with Jeffrey Goldberg posting Lipsky’s column and also illiterately accusing Assange of “treason”), Jonah Goldberg, Rep. Pete King, and The Wall Street Journal.

Not all of the bullies were content with merely making statements. Joe Lieberman, chairman of the Senate’s committee on homeland security, contacted Amazon and pressured the company into cutting off Wikileaks from hosting its files on its cloud server. He did the same with Tableau, a small software company that was merely hosting some charts summarizing the material released by WikiLeaks , such as the charts counting the documents which originated from each country, the number of documents by year, etc. none of which is classified.

There is also strong evidence that the US government has itself been involved in compelling private companies, such as Paypal and Visa, to cut off Wikileaks’ fund sources. Moreover there has been absurd and sad attempts at censorship of American college students. A State Department official warned students at Columbia University’s School of International and Public Affairs that anyone who will be applying for jobs in the federal government could jeopardize their prospects by posting links to WikiLeaks online, or even by discussing the leaked documents on social networking sites (!)

And while I think it is irresponsible to make any definite conclusions about the legitimacy of the rape charges for which Assange is wanted in Sweden, going by the fact that the handling of the case has been highly irregular, I will not be too surprised if it turns out that the charges are essentially bogus and the prosecution is acting under pressure from the US so that they can hold on to him till the US formally submits an extradition request.

Note that neither Assange nor Wikileaks has ever been held directly or indirectly responsible for even a single death by their disclosures, and Robert Gates, the US defence secretary himself admitted that while some of the cable leaks were embarrassing or awkward, the consequences for US foreign policy would be “fairly modest”. All of this makes the extra-legal pursuits by the authorities, the dictating of terms to private companies and the equating of an information disseminator like Assange with actual violent terrorists extremely shocking. I think Shirky is right on the money here:

When authorities can’t get what they want by working within the law, the right answer is not to work outside the law. The right answer is that they can’t get what they want.

The Unites States is — or should be — subject to the rule of law, which makes the extra-judicial pursuit of Wikileaks especially nauseating. (Calls for Julian’s assassination are even more nauseating.)

***

But yet, strangely enough, it is not the extra-legal methods and the skirting of due process that disturb me the most about the whole affair. It is the fact that if the American authorities ever manage to get Assange extradited and then succesfully prosecute him (neither will be easy) for these disclosures, it will mean the end of the First Amendment as we know it.

Reports suggest that such action is being considered at the highest level. Eric Holder confirmed a couple of weeks ago that there is “an active, ongoing, criminal investigation” about Wikileaks. More recently, there have been reports that the Obama DOJ has convened a Grand Jury to consider bringing charges against WikiLeaks and Julian Assange. If this is correct, it would be a greater assault on press freedom than anything attempted by the much reviled Bush, indeed perhaps the greatest assault on press freedom in the last fifty years.

At this point, it is necessary to clear a few things.

1. For the purpose of American law, Wikileaks most definitely qualifies as a member of the press. Note that Wikileaks does not solicit newsleaks directly and they do not contact potential leakers. If the leaks come to them voluntarily, they simply take steps to protect the identity of the source, and eventually, if deemed newsworthy, the leaks are published on their site, along with commentary and explanations. If Wikileaks did not exist, the leakers would go to traditional newspapers, such as the New York Times. As far as this case is concerned, there is no intellectually coherent way to distinguish between Wikileaks and other members of the press that have also published the same leaked cables (NY Times, Guardian, Der Spiegel…), often before Wikileaks has.

2. Some have suggested that Wikileaks could be prosecuted for possession and distribution of stolen property. It seems ridiculous to have to point out something so elementary, but information isn’t and has never been “property”. A property exists in physical form and has a unique copy. In this case, the computer files were not stolen, but copied. If someone takes a book and makes unauthorised copies of it, he is not charged with violating property laws. He is charged with violating copyright laws, a very different beast. And there are no copyright issues involved in distributing embassy cables, because according to American law, any work “prepared by an officer or employee of the U.S. Government as part of that person’s official duties” is not entitled to  copyright protection. Yes, the person who actually leaked the cables can still be charged with high-level breach of contract, but Assange is not the leaker, and there is no evidence he or anyone at Wikileaks helped the leaker with the unauthorized copying.

3. Some have suggested that all these laws and protections don’t apply to Assange because he is not an American citizen. Apart from the gross immorality of such a stance and the terrible consequences it would lead to if actually implemented across the board, it is also factually untrue: once the US takes jurisdiction of someone, any prosecution must be in accordance to the law and the defendant, whether US citizen or not, typically enjoys all the constitutional protections (with a few exceptions that are not relevant in this context).

4. Some have suggested invoking privacy laws to go after Wikileaks. But privacy laws are very specific; they apply only to sensitive personal details (medical records, private letters) of private individuals and not to public figures in their official government correspondence.

But there is one law that Assange on a literal reading seems to have broken, and that is the Espionage Act of 1917, passed during the First World War. The language of the Act is breathtakingly broad: it makes it a felony for any person “having unauthorized access to…any document…relating to the national defense…which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully…[to] cause to be communicated delivered, or transmitted [any document]…to any person not entitled to receive it.” So on a literal reading, this Act would apply to the actual leaker as well as Wikileaks and the various newspapers that republished it, and even your next door neighbour who puts a link to Wikileaks on his Facebook profile. As American University law professor Stephen Vladeck told ABC News , “one of the flaws of the Espionage Act is that it draws no distinction between the leaker or the spy and the recipient of the information, no matter how far downstream the recipient is.”

There is just one problem. The Espionage Act has never been successfully used to prosecute a media organization. It is generally believed that such a prosecution would fail because of the First Amendment, which protects freedom of speech.

There is little doubt that the First Amendment applies in this case. Wikileaks is certainly a member of the press; besides, as the Supreme Court once noted, “Freedom of the press is a ‘fundamental personal right’ which is not confined to newspapers and periodicals.” Indeed, the freedom belongs to everyone from “the lonely pamphleteer who uses carbon paper or a mimeograph . . . [to] the large metropolitan publisher.”

Let me repeat that for emphasis. Wikileaks and its leaked cables is exactly the sort of thing that the First Amendment protects. Free speech gives Wikileaks, and other members of the press, the right to disseminate any information provided by a source, regardless of whether the said source obtained this information legally or illegally, so long as the material is not libelous (and even this would only invite a civil penalty) or incite imminent lawless action (which is a very high standard to meet and is certainly not the case here).

The closest parallel to Wikileaks was the Pentagon Papers case. There, the federal government took the New York Times to court under the Espionage Act because it was about to publish classified documents relating to the Vietnam war. The government lost that case. The New York Times went ahead and published the truth about the Vietnam war in what was a watershed moment in American history.

Dan Ellsberg, the whistleblower behind the NY Times Pentagon Papers leaks, is a fan of WikiLeaks in particular and whistleblowers in general. He argues that WikiLeaks founder Julian Assange “is serving our democracy and serving our rule of law… I’ve sort of been waiting for somebody to do this for forty years.”

Based on the Pentagon Papers precedent, it may seem obvious that Wikileaks is in no real danger of prosecution. But there is a small problem. In the Pentagon papers case, the government wanted the Supreme Court to issue a prior restraint injunction barring the publishing of the documents by the NY Times and other newspapers. The Supreme Court declined to do so on First Amendment grounds. But what if the government had gone to court again after the fact and sought to punish the newspapers for breaking the law? How would the judges have ruled then? It is unclear.

What is clear is this. In the unlikely event that the government succeeds in convicting Assange under the Espionage Act, it will set a tremendous precedent. It will mean that the Court will for the first time have ruled that when applied to the press, secrecy and national defence interests protected by the Espionage Act trump the First Amendment when the two are in clash. Previously only actual spies and leakers were under the ambit of this Act. Now everyone, in particular all journalists, bloggers and  whistleblowers, will be. Since there is no limit to what governments can classify, it will have a breathtaking effect on the future of investigative and political journalism. As I have already made clear, there is no intellectually coherent way to distinguish between Wikileaks and traditional newspapers. They will all be at risk from future prosecution. During the Bush administration, there were in fact several explicit threats to prosecute members of the press for reporting things the government wanted kept secret. The Bush administration never went ahead and did so because they thought such a prosecution could not succeed. If the Obama administration succeeds in this case, nothing will stop them, or future governments,  from using their new found power to censor free speech whenever they want to. Without the First Amendment as an effective bulwark against government overreach, it will be easy for the government, especially in times of war or fear thereof, to haul up dissenters and silence journalists. In fact the Espionage Act, as written, does not even require that information need be classified for its disclosure to be actionable.

Even the newspapers, previously detached or pro-prosecution, have started realising the grave danger. The Washington Times‘ reporter Eli Lake wrote:  “I oppose the application of the espionage statute to Assange because the same kind of prosecution would make me a criminal too.” The New York Times‘ Eric Lichtblau and The Washington Post‘s Dana Priest warned that prosecuting WikiLeaks would endanger investigative journalism generally. The Washington Post Editorial Page came out in opposition to prosecuting WikiLeaks on Sunday, recognizing that “the government has no business indicting someone who is not a spy and who is not legally bound to keep its secrets” and that “doing so would criminalize the exchange of information and put at risk responsible media organizations.”

***

But I have not yet really explained why I am so bothered by all this. I am not an American citizen; nothing binds me to that land. And if one takes the universal moral standpoint — why, yes it is immoral and rights-violating to persecute Wikileaks for its exercise of free speech — but there are far worse violations of rights happening around the world on most days. It may seem almost silly that I find the Wikileaks episode so disturbing and am less affected by the various attacks on individual liberty by the government of my home country, India.

Now, I despise collectivism. I am an Indian citizen who has lived in the US, but I owe allegiance to no country, and never will. But here’s the thing; as a principled libertarian, I don’t get to see our cherished principles in action very much. Even the US is not really particularly libertarian, it is better than most, but worse than many, especially on social  issues. And the US foreign policy over the last sixty years has been as unlibertarian and violative of rights as one can possibly get.

But on the single issue of freedom of the press, the US has for the most part, been outstanding. And there is really one reason for that. It is the First Amendment.

Laws  — and the rights granted therein — are the engines that sustain modern liberal democracies. And of all laws, there is none as special as the First Amendment. Of the innumerable fundamental rights enshrined in the constitutions of various countries, the First Amendment is the most amazing, the most successful, the most astonishing. It is, to me, the jewel of the entire legal compendium.

The greatness of the First Amendment lies in its absoluteness. Other countries that had incorporated weaker versions of free speech protection, — i.e. with caveats — were ultimately left with no real free speech at all. As I have often pointed out, it is only speech that offends that requires government protection. Recent events in Canada and Europe have amply displayed the chilling effects of hate-crimes legislation.

In the US one can insult entire groups and not be charged with hate speech. One can write books on how to commit suicide or pamphlets about how to be an effective anarchist and generally have no fear that the government will ban them. One can criticize the government or make parodies of well-known figures without fear of legal trouble. One can burn the American Flag if one chooses, even though most people think it should be illegal to do so, and not worry about ending up in jail.

Yes the First Amendment, or rather the version as currently applied after numerous interpretations by the courts — is not perfect. For instance, courts have ruled that obscene material — usually extreme pornography — that have no other social value do not enjoy First Amendment protection and can be banned. I think that is a huge blemish on the First Amendment. The First also, sadly, does not fully protect certain sorts of commercial speech. But we do not live in a libertopia, and these are some of the few rare blemishes. Overall, the free speech rights in the US exceed that of any country I know of and comes pretty close to being perfect. There are some other restrictions on free speech that the First Amendment does not protect, such as libel, or words that lead to imminent lawless action, but I think those restrictions are more or less justified.

Ah, free speech. It’s such a radical concept, if you think about it historically. And the fact that the founders of the US put in this clause in the constitution, without caveats or modifiers, over 200 years ago, is nothing short of astounding. There have been many proposed US laws that have been — rightly — ruled unconstitutional because they violated the First. It is almost a miracle to see a  sentence make so much difference, often working against heavy popular opinion.

As a NY Times commenter once put it, the point of freedom of speech isn’t to protect the content that everyone agrees is acceptable or even desirable–there’d be no purpose to an amendment that protected what everyone agreed was worth protecting. The point of freedom is speech is to protect the content that exists at the margins of society; the things that many people find to be objectionable or even reprehensible. Without such protections, core values of our civil society are at risk.

It is the rigorous application of the First Amendment that has, more than anything else, preserved these core values in America. And of all the forms of speech, none is as valuable as political speech, and by extension political reporting. It is this form of speech that governments and tyrants will seek to clamp upon, often in the guise of the national interest. It is important to be extremely vigilant against any attempt at doing so. Ben Franklin once wrote “Where liberty dwells, there is my country.” If the First gets distorted beyond recognition, as a successful Wikileaks prosecution will undoubtedly do, that country will not be the US.

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In a huge victory for free speech, the Supreme Court of the US today struck down a law that banned recording, possession or distribution of videos featuring animal cruelty. The Supreme Court concluded that as written, the statute is overbroad and limits all sorts of speech that the Court believes is protected by the First Amendment.

The decision also strikes down the notion of “serious value” as a legitimate criteria for determining if certain offensive speech is worth legal protection. However, as Eugene Volokh notes, by the same logic, the obscenity law should also go. Will that happen anytime soon? Volokh opines, and I agree that it is very unlikely the Court will go that far. Weight on tradition will probably prevent the Court from overturning Miller and declaring all obscenity legal.

This naturally still leaves the question: How can all this be reconciled with the use of “serious value” as part of the obscenity test? I think that as a matter of logic it can’t be. But the Court isn’t just after logic; among other things, it also gives some weight to tradition, and the obscenity exception is very deeply rooted in American law.

Still, I dare hope. For this court has given us Heller, Citizens United and Stevens — three great decisions in favor of liberty in a span of two years. So maybe, just maybe, it is not completely absurd to hope for a day when the Supreme Court declares the obscenity law unconstitutional. (And such an occurrence will surely make the NY Times readership’s collective head explode. After fiercely criticizing the ‘right-wing’ court for Heller, Citizens United, and to a lesser extent Stevens, they will be flummoxed about what to do with a ruling that the progressive base will applaud and the conservatives will despise. What fun!)

Update: A NY Times commenter, clearly in the minority, expresses exactly what I feel about matters of free speech.

Thank God. The point of freedom of speech isn’t to protect the content that everyone agrees is acceptable or even desirable–there’d be no purpose to an amendment that protected what everyone agreed was worth protecting.

The point of freedom is speech is to protect the content that exists at the margins of society; the things that many people find to be objectionable or even reprehensible.

Without such protections, core values of our civil society are at risk (namely, the free flow of ideas and information).

As a practical matter, it is also worth remembering that the tables can quickly be turned on what is ‘acceptable’ vs. ‘unacceptable’ discourse–in a matter of a few years, the good can become the bad and the bad can become the good. The 1st Amendment offers protections against these vicissitudes of social norms.

In short, despite the terribleness of dog fighting–and I agree, it is a terrible and immoral sport–this was an excellent decision. No, wait, let me change that a bit: BECAUSE of the terribleness of dog fighting, this was an excellent decision.

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The diplomat, 47-year-old Rowan Laxton, allegedly shouted “f***ing Israelis, f***ing Jews” while watching television reports of the Israeli attack on Gaza last month.

He is also alleged to have said that Israeli soldiers should be “wiped off the face of the Earth” during the rant at the London Business School gym near Regents Park on January 27. [...]

After a complaint from a member of the public, Mr Laxton was arrested for inciting religious hatred – which can carry a seven-year prison term – and bailed to reappear at a central London police station at the end of March.

Here’s the full report.

The wisdom of having a law directed against incitement of racial hatred is questionable; the particular application here borders on the absurd. Or perhaps I am merely arguing from a strictly American viewpoint — courts here have repeatedly ruled that “incitement” must always carry an element of imminence — which might not apply in the land of the Queen.

Anyway, the point is, a person would never be prosecuted for a racial tirade in the US. Reminds me that in many ways, the US still offers free-speech protection far superior to anywhere else. I should do some research on Switzerland law before I move there.

Also read: My short post comparing free-speech protections in some selected countries.

Update: I should add that the free speech protections in this country exist primarily because they are constitutionally granted. If the present public had its way, it would certainly get diluted, as it has in so many other places.

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And thuggishness by, well, see below…

A month ago, I wrote critically about Obama’s attempt to silence advertisements that opposed him: using a combination of his passionate supporter-strength and legal threats.

Sadly, it was not a one-off incident.

The latest targets of the Obama campaign is an advertisement by the National Rifle association (NRA). Obama claims that the ad misrepresents his position, which may well be true. But his response goes beyond that.

The Obama campaign has written radio stations in Pennsylvania and Ohio, pressing them to refuse to air an ad from the National Rifle Association.

“This advertisement knowingly misleads your viewing audience about Senator Obama’s position on the Second Amendment,” says the letter from Obama general counsel Bob Bauer. “For the sake of both FCC licensing requirements and the public interest, your station should refuse to continue to air this advertisement.”

As the letter makes clear, it’s not just a request but a transparent legal threat.

Yes, Obama, and indeed every individual has the right to make legal threats. But this issues isn’t whether Obama did anything illegal in sending that letter (he didn’t) but whether you want a president who lacks the basic respect for the First Amendment and free speech that was displayed here. Can you imagine what it would be like if in an Obama administration, the people sending these letters are not lawyers but Federal investigators?

Yes, the First Amendment is too precious to take a chance with. So, despite the fact that I am an Obama supporter, I’ll respond to him in the only way I can think of — by linking to the NRA ad that he hates.

Update: I now see that David Bernstein at Volokh had the same idea. Good for him and I hope more people do this. The small difference is that Prof. Bernstein titles his post “Doing my patriotic duty”. I am not American, and in any case, this is not about a country. So let’s just say I am being true to my beliefs.

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This survey reveals everything that is wrong with the the state of freedom in the US. Some highlights:

42% believe that people should NOT be allowed to say things in public that are offensive to certain religious groups.

54% believe that people should NOT be allowed to say things in public that are offensive to certain racial groups.

38% believe that broadcasters should be required to report a certain amount of ‘positive news’ in return for using public airwaves.

66% believe that television broadcasters should be required to allot equal amount of time to liberal and conservative commentators.

62% believe that newspapers should be required to allot equal amount of time to liberal and conservative commentators.

PS: On the other hand, I am almost certain that the first two percentages would be even higher in other Western democracies.

(Hat Tip: The Volokh Conspiracy)

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Adult film producer John Stagliano — facing up to 40 years in jail if convicted in a currently running obscenity case – debates Pepperdine Law School’s Barry McDonald on free speech vs obscenity. Money quote from Stagliano:

Barry, your point is that people must be forced to not think things that you don’t like, and for that you’d have me put in jail. Your comment that it “seems” to you that viewing images “to obtain sexual pleasure cannot be the healthiest way of experiencing sex” seems not a good enough reason to imprison me for 39 years. In fact, using a proper concept of morality based on individual rights, it is you and those who would put me in jail when I did not infringe on anyone’s rights who are behaving immorally.

(Link via Reason Hit and Run)

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The American Civil Liberties Asoociation has, over the years, done a lot of commendable work in defence of freedom. Particularly praiseworthy is its consistent defence of the First Amendment. It has frequently extended legal help to protect those whose free speech rights have been threatened. It has fought for the separation of the church and the state and argued for the  decriminalization of drugs. For all that, it deserves our plaudits.

Unfortunately, the ACLU has been firmly opposed to other, equally fundamental, areas of freedom. It’s legal apparatus has ben used to file anti-discrimination claims against private clubs. The ACLU does not seem to recognize the fact that the so called ‘positive rights’ that it champions — for instance the ‘right’ of this woman to gain admittance into a social club – come only at the expense of the liberty of purely private organizations to operate in any way they wish. It is ironic that an organization that believes people should be allowed to say whatever they want does not believe that people should have the freedom to associate with whoever they want.

The ACLU has over 500,000 members and it has been influential in the evolution of constitutional law. Unfortunately, despite its name, it is not a libertarian organization and its influence has quite occasionally been used to curtail individual liberty. That is a sad truth. 

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Remember Karen Fletcher? The woman in the centre of the high-profile obscenity case I wrote about earlier? The reclusive lady who wrote violent sexual stories involving children in an attempt to cope with her own history of child abuse and was subsequently hounded by federal prosecuters? Well, the matter’s come to an end.

She battled the federal government’s allegations for more than a year and a half, but in the end, Karen Fletcher’s mental health will win out over her principles. And First Amendment lawyers will lose a key chance to have a court determine whether text-only material can be considered obscene.

Ms. Fletcher has decided to plead guilty to six counts of distributing obscenity online stemming from fictional stories published on a members-only Web site.

First Amendment lawyers thought an acquittal in the case could have begun a trend — proving that text-only cases do not rise to the level of obscenity standards.

The Donora woman was charged in September 2006 based on her “Red Rose” Web site, where Ms. Fletcher, 56, and others posted fictional stories that depicted the rape and torture of children — including infants.

She and her high-profile First Amendment lawyers claimed that what she’d written was not obscene, and they hoped to prevail before a jury.

In their favor, they thought, was the fact that the federal government has never won a conviction based solely on text under current obscenity law.

But Ms. Fletcher, who has agoraphobia — a fear of public places — is not capable of sitting through what likely would be a weeklong trial, said one of her attorneys, Lawrence Walters.

“With a different client, with somebody who had the strength to fight, there might have been a different outcome,” Mr. Walters said. “While we’d like her to be a standard-bearer on First Amendment issues, this is not the person to endure a trial.

“Even worse, should she be convicted, I don’t know that she’d be able to withstand a jail sentence.”

Under the proposed plea agreement, Ms. Fletcher would avoid prison and be sentenced to a term of home detention.

When I wrote about this matter several months ago, I noted that this case would a key test for the greatest American law of all — the first amendment. I ended that post with the words:

It is possible that Karen Fletcher will not be convicted. If she is, God save us all.

I don’t blame Karen Fletcher for the decision she has taken. A trial is a painful affair and I cannot even imagine how traumatic it may be to some one who suffers from agoraphobia, as Fletcher does. Nevertheless, today feels like an anti-climax. A defeat would have been catastrophic, signalling the slow destruction of something precious and irreplaceable; a victory would have reaffirmed the protection enjoyed by free speech in this country. This, being neither, leaves things in the balance, for another day, another case, another hero.

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posted earlier about the Elane Photography case. The New Mexico Human Rights commission issued its opinion today, holding Elane Photography guilty of discrimination. As Eugene Volokh discusses here, the breadth of the decision is astounding and ostensibly covers other businesses of a similar nature. For instance, freelance writers — by the same logic employed by the commission — can be compelled to write things contrary to their religious beliefs.

As this case makes clear, the attack on freedom of speech from anti-discrimination laws is current and real. And it is getting worse.

(Link via The Volokh Conspiracy)

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Eugene Volokh writes about a hypothetical scenario involving a mixed-race couple in the photography incident:

The desire to prevent race discrimination should no more dissolve your right to be free from being compelled to speak (here, to create an artistic work) than it should dissolve the right to express bigoted views, to choose members of a racist political organization, or to select ministers (or church members) based on any criteria a church pleases. And if that means that writers and photographers can’t be legally barred from choosing their subjects based on race, that’s just an implication of the basic First Amendment principle of the speaker’s right to choose what to say.

There should be nothing particularly daring about this position.

Needless to say, I agree. And my position will remain the same if I am discriminated against by someone in the US because I am an Indian.

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In America, you have freedom of expression and freedom of association, except when you don’t. Since the passage of the Civil Rights Act, one does not really have the right to decide who one hires, or rents out one’s apartment to, allows inside one’s restaurant, or does business with. If you refuse to deal with someone commercially because of their race, sex, age, sexual orientation or other protected characteristic, the government will punish you.

Yet the Civil Rights Act, in its original form, did allow significant exceptions for activities of a private or expressive nature. Much of that is no longer true. Courts are interpreting the provisions of anti-discrimination laws in ever broader terms. One no longer, for instance, has the right to decide who one lives with.  And now, it appears that one cannot even choose what one photographs. 

Elane Huguenin refused to photograph a client’s same-sex commitment ceremonies, and the New Mexico Human Rights Commission decided that this violated state antidiscrimination law. Elane has to pay over $6000 in attorney costs.

Eugene Volokh has a series of excellent posts regarding this particular incident, which I highly recommend. He argues that since photography is an art, this judgement violates the first amendment. I agree. However, even if that were not the case, I think there is no rationale for an anti-discrimination law that forces someone to offer their service to others – especially when the act of discrimination does not significant restrict the client’s ability to obtain that service (I am sure there were many other photographers who would have been willing to do the job for this particular client).

Ultimately, all these laws boil down to an intent to strip individuals of their right to make ‘immoral’ choices and use the power of the state to force this; and that, in my view is the ultimate immorality.

(Hat tip to The Volokh Conspiracy, where I saw this story)

Previous posts in this blog on anti-discrimination law:

Anti-discrimination laws and freedom

The need to defend the rights of bigots

 

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Keith Sampson, a university employee and student, has been charged with racial harassment for reading a book called “Notre Dame vs. the Klan: How the Fighting Irish Defeated the Ku Klux Klan” during his work breaks. Apparently, the mere presence of the word Ku Klux Klan offended a co-worker, despite the fact that the book is in fact about opposition to the Klan. The school’s Affirmative Action Office agreed. In a letter to Sampson, they accused him of “disdain and insensitivity” and ordered him to stop reading that book in the presence of co-workers.

Sigh… 

Update: The affirmative action office has (following the uproar?) issued a new letter to Sampson, effectively canceling its previous order and making a complete retreat from its earlier position.  

Further Update.

– 

Also read:
Don’t Glock in school.
Did you use the word?

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A hundred years ago, you could be arrested if your drawing, writing or other form of creative expression was considered obscene by the authorities. Artistic freedom was not as important as preserving public morality. And the idea that a century on, pornography could be displayed and sold in perfectly legal shops was unthinkable.

For good or bad, those times are far behind us. One of the greatest jewels of the United States is her First Amendment, a piece of law enshrined in her constitution and systematically strengthened by the courts through the last century – that guarantees the freedom of expression for all. In modern day USA you can depict anything and not worry about the moral police coming after you. Of course you can still be charged if your work is libelous or directly incites violence or violates someone else’s rights. But other than that, the idea that someone can be put in jail simply for expressing distasteful thoughts or fantasies is preposterous. This is a free country, right?

Wrong.

Karen Fletcher, a reclusive woman living in Pittsburgh, recently began posting short stories on the Internet that describe, in graphic detail, the sexual abuse of children – in order, she says, to cope with her own history of childhood abuse. The internet abounds in pornography, much of it visual. Fletcher’s stories had no illustrations, were obvious works of fantasy, and were not displayed publicly. The only way to read these stories was by paying a modest sum of ten dollars a month, so that – Fletcher says – she could she could keep the website running and also protect children (and unwilling adults) from accessing it. Yet those stories, read by about 29 paying subscribers, have made Fletcher one of the few people facing federal criminal charges for obscenity.

In many ways, Fletcher’s case is unusual. A obscenity charge is rare these days, and almost unheard of in situations where no one has been harmed in the making of the offending material. And a case like Fletcher’s, which involves only the written word, has not been successfully prosecuted in the last thirty five years in this country.

So if this case feels like a throwback to the dark ages, it indeed is. But it should not be viewed in isolation. Recent years have witnessed an increasing clamping down on civil liberties in the US, accompanied by the passage of the Patriot Act, draconian anti-discrimination laws, hate-crime laws and an atmosphere of extreme political correctness. This particular case seems to be an example of the Bush administration’s efforts to cater to the religious right and reinvigorate the Obscenity Act. It is a long, slippery slope. Once a certain level of freedom becomes unacceptable, the bar is lowered and the next act of censorship is not only easier but also more extreme. Intolerance begets greater intolerance and by the time you realise the value of what you have lost, it is too late. Once these freedoms are gone, the wheels of motion are much harder to turn in the opposite direction. Illiberality and offended sensibilities make for excellent political nourishment. Those of us from India will attest to that.

It is possible that Karen Fletcher will not be convicted. If she is, God save us all.

The case is now over, see update (5/21/08)


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