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Posts Tagged ‘free speech’

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 forgot to post this earlier. Ron Paul on the floor of the US Congress:

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I noted yesterday that the apparent government strategy to indict Assange as co-conspirator rather than disseminator of the leaked cables would be still be highly problematic, and the danger to the First Amendment no less grave. Since then, there have appeared articles by several well known writers and legal experts who have come to the same conclusion.

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.

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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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Here are some recent articles on Wikileaks that are worth reading.

Glenn Greenwald:

The WikiLeaks disclosure has revealed not only numerous government secrets, but also the driving mentality of major factions in our political and media class.  Simply put, there are few countries in the world with citizenries and especially media outlets more devoted to serving, protecting and venerating government authorities than the U.S.  Indeed, I don’t quite recall any entity producing as much bipartisan contempt across the American political spectrum as WikiLeaks has:  as usual, for authoritarian minds, those who expose secrets are far more hated than those in power who commit heinous acts using secrecy as their principal weapon.

[...]

Before setting forth why these WikiLeaks disclosures produce vastly more good than harm, I’ll state several caveats as clearly as I can.  Unlike the prior leaks of war documents, there are reasonable concerns about this latest leak (most particularly that impeding diplomacy makes war more likely).  Like all organizations, WikiLeaks has made mistakes in the past, including its failure to exercise enough care in redacting the names of Afghan informers.  Moreover, some documents are legitimately classified, probably including some among the documents that were just disclosed.

Nonetheless, our government and political culture is so far toward the extreme pole of excessive, improper secrecy that that is clearly the far more significant threat.  And few organizations besides WikiLeaks are doing anything to subvert that regime of secrecy, and none is close to its efficacy.  It’s staggering to watch anyone walk around acting as though the real threat is from excessive disclosures when the impenetrable, always-growing Wall of Secrecy is what has enabled virtually every abuse and transgression of the U.S. government over the last two decades at least.

Democracy in America:

I think we all understand that the work of even the most decent governments is made more difficult when they cannot be sure their communications will be read by those for whom they were not intended. That said, there is no reason to assume that the United States government is always up to good. To get at the value of WikiLeaks, I think it’s important to distinguish between the government—the temporary, elected authors of national policy—and the state—the permanent bureaucratic and military apparatus superficially but not fully controlled by the reigning government. The careerists scattered about the world in America’s intelligence agencies, military, and consular offices largely operate behind a veil of secrecy executing policy which is itself largely secret. American citizens mostly have no idea what they are doing, or whether what they are doing is working out well. The actually-existing structure and strategy of the American empire remains a near-total mystery to those who foot the bill and whose children fight its wars. And that is the way the elite of America’s unelected permanent state, perhaps the most powerful class of people on Earth, like it.

If secrecy is necessary for national security and effective diplomacy, it is also inevitable that the prerogative of secrecy will be used to hide the misdeeds of the permanent state and its privileged agents. I suspect that there is no scheme of government oversight that will not eventually come under the indirect control of the generals, spies, and foreign-service officers it is meant to oversee. Organisations such as WikiLeaks, which are philosophically opposed to state secrecy and which operate as much as is possible outside the global nation-state system, may be the best we can hope for in the way of promoting the climate of transparency and accountability necessary for authentically liberal democracy. Some folks ask, “Who elected Julian Assange?” The answer is nobody did, which is, ironically, why WikiLeaks is able to improve the quality of our democracy. Of course, those jealously protective of the privileges of unaccountable state power will tell us that people will die if we can read their email, but so what? Different people, maybe more people, will die if we can’t.

Jack Shafer:

International scandals—such as the one precipitated by this week’s WikiLeaks cable dump—serve us by illustrating how our governments work. Better than any civics textbook, revisionist history, political speech, bumper sticker, or five-part investigative series, an international scandal unmasks presidents and kings, military commanders and buck privates, cabinet secretaries and diplomats, corporate leaders and bankers, and arms-makers and arms-merchants as the bunglers, liars, and double-dealers they are.

We shouldn’t be surprised by the recurrence of scandals, but, of course, we always are. Why is that? Is it because when scandal rips up the turf, revealing the vile creepy-crawlies thrashing and scurrying about, we’re glad when authority intervenes to quickly tamp the grass back down and re-establish our pastoral innocence with bland assurances that the grubby malfeasants are mere outliers and one-offs who will be punished? Is it because our schooling has left us hopelessly naïve about how the world works? Or do we just fail to pay attention?

Information conduits like Julian Assange shock us out of that complacency. Oh, sure, he’s a pompous egomaniac sporting a series of bad haircuts and grandiose tendencies. And he often acts without completely thinking through every repercussion of his actions. But if you want to dismiss him just because he’s a seething jerk, there are about 2,000 journalists I’d like you to meet.

The idea of WikiLeaks is scarier than anything the organization has leaked or anything Assange has done because it restores our distrust in the institutions that control our lives. It reminds people that at any given time, a criminal dossier worth exposing is squirreled away in a database someplace in the Pentagon or at Foggy Bottom.
Attorney General Eric Holder says his Justice Department is going after WikiLeaks’ Julian Assange. At first glance, it seems like a straightforward case. Almost half of the 250,000 internal State Department cables Assange has published are classified, either at the confidential or the secret level (no top-secret documents are included), and rarely does the target of a criminal investigation commit his alleged crime so publicly. Holder knows it will not be easy, however. He realizes that as much as we may condemn Assange’s actions, they were not obviously criminal.
[...] The U.S. government has never successfully prosecuted a media entity for a leak. It is typically much easier to bring such cases against the government officials who do the leaking, because they sign nondisclosure agreements surrendering many of the legal protections they otherwise would enjoy.

[...] What law did Assange violate? It will surprise many that there is no statute making it illegal to reveal classified information. There are statutes that criminalize the disclosure of very specific types of classified information, such as the identity of a covert operative (think Valerie Plame) or “codes, ciphers or cryptographic systems.” But there is no catch-all law that simply says, “Thou shalt not disclose classified information.”

Indeed, when Congress tried to enact such a statute, President Bill Clinton sensibly vetoed it. His reason: The government suffers from such an overclassification problem – some intelligence agencies classify even newspaper articles – that a law of this sort would end up criminalizing the disclosure of innocuous information. And even that vetoed statute would have applied only to government officials, not to private individuals or journalists.

[...] The fact that classified information is involved does not preclude First Amendment safeguards. In the AIPAC case, Judge Ellis rejected the prosecutors’ categorical – and dangerous – argument that when classified information is at issue, the First Amendment affords no protection. Of course, the First Amendment is no license to disclose the recipe for the plutonium bomb to Osama bin Laden. But the Justice Department would have to prove that Assange’s disclosures were so dangerous to national security as to override the First Amendment. In the words of Justice Oliver Wendell Holmes Jr., the prosecution would have to demonstrate that what the defendant did was as immediate and as dangerous as “falsely shouting fire in a theater.” That is a heavy burden to meet.
[...]In 1971, Solicitor General Erwin Griswold asked the Supreme Court to bar publication of the Pentagon Papers because it would cause a “grave and immediate danger to the security of the United States.” Twenty-eight years later, he reversed his position in an op-ed piece in this paper. “I have never seen any trace of a threat to the national security from the publication” of the Pentagon Papers, Griswold wrote. Moreover, he expressed the view that “there is very rarely any real risk to current national security from the publication of facts relating to transactions in the past, even the fairly recent past.” 

What took 28 years to happen with the Pentagon Papers is already happening with the WikiLeaks cables. Although the State Department is of the opinion that Assange’s leaks have done serious damage to our national security – Secretary of State Hillary Rodham Clinton has called them “an attack on America” responsible for “endangering innocent people” and “sabotaging the peaceful relations between nations” – Defense Secretary Robert M. Gates, a savvy Washington veteran, has expressed a different view.

“I’ve heard the impact of these releases on our foreign policy described as a meltdown, as a game-changer and so on,” Gates told reporters at the Pentagon last week. “I think those descriptions are fairly significantly overwrought. . . . Is this embarrassing? Yes. Is it awkward? Yes. Consequences for U.S. foreign policy? I think fairly modest.”

If Assange is ultimately charged with disclosing information that is potentially damaging to national security, Eric Holder now knows who Assange will call as his first witness: the secretary of defense.

****

I do not have much to add beyond the articles quoted above. Suffice it to say that I believe that Wikileaks is playing an invaluable role in improving the world. Anything that acts as a counter-force against State secrecy is a good thing.

There are not many heroes in our era. Julian Assange is one of those rare few.

If you think similarly, or feel strongly about issues like censorship and free speech and government openness, I think it is imperative that you support Wikileaks by donating to them. Here’s the link.

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I rarely agree with the NY Times editorial board, least of all on matters of free speech and association rights. But I think they get it exactly right in this oped that sharply criticizes the recent Supreme Court judgement upholding a federal law against providing material support to terrorist groups.

The trouble with this ruling, as the editorial points out, and others such as Eugene Volokh have described, is twofold.

The philosphy behind the ruling doesn’t seem to have been laid out with sufficient clarity, and that creates a not insignificant risk that this will pave the way for further speech restrictions, such as on independent advocacy, when this conflicts with state interests.

The law that this ruling upholds, criminalizes actions that are purely political speech. For instance, the law would allow prosecution of any newspaper that coordinates with the spokesperson of a designated terrorist organization and publishes their point of view in an oped.

In sum, the Supreme Court of the United States got it terribly wrong on this one. I am surprised and saddened that this Court, which got it so right on other recent free speech cases has chosen this time to legitimize expanded executive powers and curtail precious freedoms. As for the Obama administration — who have proved themselves as bad as the Bush one when it comes to civil liberty abuse — they are probably relishing the fact that they have yet another tool to harass and prosecute journalists, academics and independent organizations that stand in their way.

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An interesting debate about anonymous speech on the internet, CDA 230, and the related issues of privacy, information flow and libelous harm. My position on the issue is expressed in my two comments on the thread.

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To the best of my knowledge, there exists absolutely no scientific evidence today in favor of any statistically significant genetic difference in mental abilities across races. Yet, I do not think we understand genetics well enough to absolutely rule out such a possibility. So I do not rule out the possibility that African Americans, are, on average, genetically predisposed to be less intelligent. In fact, I do not rule out this possibility for any race — Whites, South Asians, Mongoloids, Eskimos.

My position on the matter is identical to Eugene Volokh’s. “Whether there are genetic differences among racial and ethnic groups in intelligence is a question of scientific fact. Either there are, or there aren’t (or, more precisely, either there are such differences under some plausible definitions of the relevant groups and of intelligence, or there aren’t). The question is not the moral question about what we should do about those differences, if they exist. It’s not a question about what we would like the facts to be. The facts are what they are, whether we like them or not.”

The same is true for other group classifications, such as gender. In fact, according to noted Harvard psychologist Steven Pinker and many other experts, there is fairly good evidence of differences in mental abilities between males and females. For certain mental tasks it appears that males, on average, are genetically better equipped; for certain others, females are.

What is important is this: Even if some differences in mental ability exists across groups, given the extremely large variation between individuals in any group, these differences are irrelevant from a  moral or legal standpoint. It is not racist or sexist to suggest or believe that differences exist on average; it is racist and sexist to suggest we should treat people differently purely because they belong to a certain group.

What is even more important is this: The culture of pervasive political correctness today that makes is impossible to ask such questions without facing a huge backlash and social ostracization is stifling to intellectual curiousity, degrading to our intelligence and speaks only ill of our open-mindedness; in short like everything else associated with political correctness it is evil.

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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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I think that Scientology is a creepy, over-commercialized enterprise that feeds on people’s irrationality and does not do any good to anyone. In fact, I think the same about all religions and most quasi-religions.

But what was it that a great Frenchman said once? I do not agree with what you say but I will defend to death

To the point.  A French court has sentenced two Scientology centers of “fraud in an organised gang” and slapped a fine of almost a million dollars.

Here’s a link. They are a bunch of other links on the same story, easily accessible through Google, and the stunning thing is that they all use words like “pressured”, “harassed” and so on. Apparently some former members didn’t like all the money that the Church convinced them to spend on vitamins and such like, and so they sued.  No, they were not coerced in any way, nor were they shown a forged copy of  Nature containing a made-up paper on the virtues of Scientologistic vitamins. Merely “pressured”, and we are not talking about vulnerable body parts either.

I think this is a ridiculous case. But I subscribe to rather quaint notions of free speech and individual responsibility. I happen to believe that individuals and organizations should be allowed to say whatever they wish about heaven, hell or the spiritual succor obtained by eating  round bananas. I also happen to think that a conviction for fraud should meet an extremely high threshold of material misrepresentation of facts; for example by selling a handkerchief belonging to Nancy Pelosi to the customer who had asked for one used by Madonna. Short of such objective misrepresentations, irrational nonsense — whether spouted by religious organizations, new age spiritualists, ideologues, vegans or extreme environmentalists — should never be censored or prosecuted. One ought to take responsibility for one’s choices, and following a belief-system is a choice.

That’s my worldview, and I like to call it freedom. France, as I never tire of pointing out, lost sight of the concept a long time ago. I am glad I don’t live there today, and I do not ever plan to either.

(Here’s a related short piece on soothsayers and fraud I wrote a while back.)

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I get plenty of junk in my Facebook feed every day most of which I barely give a second glance; today however, one particular item caught my eye. Titled “Vigil for Binayak Sen”, this particular Facebook event was in support of Dr. Binayak Sen, whose continued detainment by the Chhattisgarh government violates every principle of justice. Not only has he not been charged with any recognizable criminal offence, the laws under which he was arrested allow for arbitrary detention without any right of appeal: he has been in jail since May 2007 with no end in sight.

All that, however has nothing to do with why I am writing this post; the reason is because the description of this event  begins as follows,

Jonathan Mann award winner and civil liberties activist, doctor of the poor, Dr. Binayak Sen has been jailed by Govt. of India under fabricated charge of being a supporter of Maoism.

But why should it matter who Dr. Sen supports? Maybe he supports the Maoists, maybe he does not. That fact is completely irrelevant. If freedom means anything, it means the right to expouse any views, however repugnant. If you believe in freedom of thought and speech, supporting an organization, whether it is is the Maoists or Al-Qaeda or the Nazis, should never be a crime. It is only directly criminal deeds that ought to be actionable, nothing else; not views, not speech, not associations.

By starting the description of the event in this manner, the author automatically gives an impression that this arrest is wrong because Binayak Sen is accused of supporting the Maoists while he in truth does not. BS!  This arrest is wrong because it violates individual liberty and it’s wrongness would not reduce even the slightest were Binayak Sen the greatest supporter of Maoism in the world. Why are so few people inclined to defend liberty purely for liberty’s sake?

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Or at least I could be, if this report by the Missouri Information Analysis Center (a government agency that researches terrorism) is to be taken seriously.

If you’re an anti-abortion activist, or if you display political paraphernalia supporting a third-party candidate or a certain Republican member of Congress, if you possess subversive literature, you very well might be a member of a domestic paramilitary group.

[...] People who supported former third-party presidential candidates like Texas Rep. Ron Paul, Chuck Baldwin and former Georgia Rep. Bob Barr are cited in the report, in addition to anti-abortion activists and conspiracy theorists who believe the United States, Mexico and Canada will someday form a North American Union.

“Militia members most commonly associate with 3rd party political groups,” the report reads. “It is not uncommon for militia members to display Constitutional Party, Campaign for Liberty or Libertarian material.

After all I believe in freedom, possess plenty of ‘subversive’ books, have a Reason sticker on my car bumper, donate to several libertarian activist groups and would have voted for Bob Barr in the last election if I had been eligible to vote.

As long as they keep their fat asses in Missouri, I suppose I shouldn’t be bothered.

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This is terrific news.

Around three months before the elections, I had listed the possible re-imposition of the fairness doctrine as one of the downsides of an Obama victory. Now that Obama has categorically ruled out that option, I think it is safe to strike it off from my list of fallouts.

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They say rightly that truth is stranger than fiction.

So Muthalik and his gang of goons beat up women at pubs because they deem the activity is against Indian culture. This sets off similar acts of violence and vandalism by other Hindu right-wing groups. One of their victims, a fifteen year old girl, is so traumatized by the incident that she commits suicide.

What next? At the very least, you’d expect legal action against the perpetrators, right? But this is India, where miracles happen everyday, only in a bad way. Instead of directing its ire at the bad guys, a Mangalore local court directs the police to file a FIR against the Union minister Renuka Chowdhury for her statement comparing these incidents to the acts of the Taliban.

The whole thing beggars belief. The first news report I read on the matter didn’t mention the law that Ms. Chowdhury had allegedly violated (and for the life of me I couldn’t figure it out); so I scoured around some more. Finally I found it:

…directed the police to register the FIR under section 153 A (Promoting enmity between different groups) and B (Imputations, assertions prejudicial to national integration) and 505 (Statements conducive to public mischief) IPC and also to submit the investigation report before March 20,

The only thing more WTF than the act of the local court is this terrible set of sections under which the FIR was filed. There are ridiculous laws and  then there are ridiculous laws. In the theater of the absurd, anything is possible — and if the results are mostly tragic, hey that’s life!

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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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