Sheridan: Con-Law

STUDENT INDIVIDUALITY & EXPRESSION

Another exchange from the Conlawprofs listserv:

The problem is NOT to "go a long way toward eliminating many of the 
problems we see in litigation." The problem is to encourage pupils to 
think, to encourage individuality, and to encourage expression. The 
problem is NOT to regiment students into one size fits all mentality as 
expressed (or not expressed) in language, dress, political, religious, 
and nationalism views or any other views. This was the point of Justice 
Jackson and the Court in Barnette, Frankfurter famously (and 
disgracefully) dissenting.

George Carlin is an example, under this latter view, of the kind of 
student I think we want to encourage to develop. He was a product of 
the Catholic parochial school in his neighborhood and enjoyed the 
support of the nuns, or at least one, or a few, despite his naughty 
language, once they realized that he was using it for effect and not 
insultingly or gratuitously toward them. As a result, George Carlin has 
done more for constitutional law than a lot of us around here, if I may 
daresay.

The problem with Prof. D.'s analysis is that, unless I miss my guess 
badly, he thinks that he's one of the good guys, the select few who 
knows what's good for the rest of us, young pupils especially, because 
they're young and pupils, because his heart is good, as he sees it. His 
heart may be wonderful, or it may be totalitarian for all I know. When 
one advocates in favor of regimenting students toward uniformity of 
belief, behavior and expression, my suspicion is that at this point 
one's heart veers from the wonderful end of the spectrum toward the 
other. My guess is such people have trouble with the likes of the 
George Carlins, and GC-wannabes. I don't. Nor do I think they, or 
anyone, should think like me. They should think like themselves. 
They'll do better than me, or anyone I know.

My suggestion would be to get out of the way of the students and let 
them express themselves freely. We are a free country, as the saying 
goes. Deal with the results in discussion later, not by cutting off the 
expression beforehand. Prior restraints in the form of bans coupled 
with threats of punishment for thought and expression do more than 
chill, they freeze the thought and expression on students as well as 
adults, as Prof. Alexander Bickel notably observed, for which thank 
you. See Floyd Abrams's "Speaking Freely," (Viking Penguin, 2005, 
throughout). We're raising citizens, mind you, not automatons. How 
will they learn to question authority as adults if we don't encourage 
them to do so as students? That is, or should be, the difference 
between the ideal America and the ideal Nazi Germany, say, or Soviet Russia.

I'd rather put up with the messiness of student creative free expression 
than the conformity of ignorant adults. Those parochial school plaids, 
incidentally, could probably use some further embellishment, plaid 
itself being an embellishment and some adult's (or a committee of 
adults) choice. Embellishment is one of mankind's oldest impulses (see 
the tattoos on the Ice-man discovered in a Swiss-Italian Alpine glacier 
some years ago), being a subset of creativity, individuality and basic 
humanity, all values that ought to be emphasized in the elementary 
grades of all schools of whatever kind, but which I suspect are not.

rs
sfsl

R.D. wrote:

> Thanks for the book recommendation, Marci.
>
> One thing public schools can do to restrict troublesome student speech 
> is to restrict more speech in a generally applicable manner, rather 
> than to selectively restrict unpopular speech on the basis of viewpoint.
>
> For example, adopting a school dress code that requires solid color 
> sport shirts or blouses will prevent the problems expressive t-shirts 
> can cause in the schools.
>
> Schools should also avoid sponsoring controversial "days" such as Gay 
> Pride Day or National Day of Silence. When a school encourages 
> students on one side of a controversial issue to express themselves, 
> it should not be surprised when students on the other side of the 
> issue feel the need to engage in counter speech. When the school then 
> responds by censoring the counter speech, it engages in viewpoint 
> discrimination and runs the risk of acting unconstitutionally.
>
> Back in the day, many schools had student conduct policies that 
> required students to walk silently from class to class in the hallways 
> (and enforced the ban with detention). This, too, is better than 
> punishing only religious expression or only certain political viewpoints.
>
> Students have the right to speak in public schools, and in particular 
> have the right not to be restricted because they express unpopular 
> political viewpoints, but it is indeed possible for schools to 
> restrict conduct and adopt dress codes that can go a long way toward 
> eliminating many of the problems we see in litigation.
>
> R.D. 

>
> "Democracy is two wolves and a lamb voting on what to have for lunch. 
> Liberty is a well-armed lamb contesting
> the vote."--Ben Franklin (perhaps misattributed, but still worthy of 
> Franklin)
>
> "It's a funny thing about us human beings: not many of us doubt God's 
> existence and then start sinning. Most of us sin and then start 
> doubting His existence." --J. Budziszewski (The Revenge of Conscience)
>  
> "Once again the ancient maxim is vindicated, that the perversion of 
> the best is the worst." -- /Id./

***

>
>
> --- On *Sun, 2/22/09, 
>  Date: Sunday, February 22, 2009, 8:24 AM
>
>  I wanted to point out to folks interested in these topics that
>  Anne Dupre has a new book out with Harvard Univ. Press on this
>  topic: /Speaking Up: The Unintended Costs of Free Speech in
>  Public Schools/. Her work is worth reading in no small part
>  because of her credentials: she is a former public school teacher
>  who went to law school, clerked at the Court, and now teaches at
>  U. Ga. I'm sure plenty may not agree with her, but should read
>  her work nonetheless.
>  
>  Marci
>
>  --------------------------------------

WE DON'T BELIEVE IN CERTAIN THINGS ANY MORE

Part of an exchange from the Conlawprofs listserv:

I've read the interesting, more or less, discussion and think that the
obvious solution is for the secular-school authorities to call an
assembly of students and for a teacher or the principal to state that in
the olden days we believed in magic and the devil and all sorts of scary
things including something called "God," a scary man who allegedly
punishes people and causes natural disasters, but who is otherwise very
good, for what is a little unclear. Men believed in witches and hanged
women. However, thinking people no longer do, and if another person
tells you otherwise, please report it to your parents or teacher for
further clarification.

This is satisfactory, is it not?

rs
sfls

R.D. wrote:
British School's Handling of Child's Religious Remarks Brings
> National Attention
> <http://religionclause.blogspot.com/2009/02/british-schools-handling-of-childs.html> An incident in a British school between two young children is turning
into a national controversy. As reported by Ekklesia
> <http://ekklesia.co.uk/node/8652> and by Church Times
> <http://www.churchtimes.co.uk/content.asp?id=70847>, last week 5-year
> old Jasmine Cain, a student at Landscore Primary School in Crediton
> <http://en.wikipedia.org/wiki/Crediton>, upset a classmate by telling
> her that she would "go to hell" if she did not believe in God and
> Jesus. Head teacher Gary Read told Jasmine that her remark was
> inappropriate in the school with children from diverse backgrounds.
> Jasmine's mother, Jennie Cain, works as the receptionist at the
> school. Read asked her to make sure that her daughter did not repeat
> the remark that left her classmate in tears. Now Jennie Cain is
> challenging the head teacher's actions, saying that her daughter's
> religious beliefs are not being respected. She sent out e-mails to ten
> friends asking them for support. When Jennie was asked to stay home
> while the matter was being investigated, supporters around the country
> began to speak out. The Archbishop of York said that the school's
> treatment of Jennie Cain is an affront to the sensibility of
> Christians. (London Telegraph, Feb. 13
> <http://www.telegraph.co.uk/news/newstopics/religion/4604205/Archbishop-speaks-in-support-of-primary-school-receptionist-facing-sack.html>.)
> Now the Governors of the school have set up a special committee to
> investigate the incident.
>
>
> How would such a case come out here? In the 9th Circuit? Of course,
> there have been a number of cases in the lower federal courts
> involving "anti-gay" religious speech by public school students, and
> these cases have come down both ways.
>
> May a student be disciplined for discussing his belief in salvation by
> Christ alone at recess or at lunch in the cafeteria? Does it matter
> that some classmates are deeply offended by the speaker's religious
> doctrine?
>
>
> R.D.
> W. Professor of Law
> University of N. College of Law
> Etc.
>
>
> "Democracy is two wolves and a lamb voting on what to have for lunch.
> Liberty is a well-armed lamb contesting
> the vote."--Ben Franklin
>
> "It's a funny thing about us human beings: not many of us doubt God's
> existence and then start sinning. Most of us sin and then start
> doubting His existence." --J. Budziszewski (The Revenge of Conscience)
>
> "Once again the ancient maxim is vindicated, that the perversion of
> the best is the worst." -- /Id./
>
>
>
> ------------------------------------------------------------------------
>

HECKLER'S VETO UNCONSTITUTIONAL

Here's the case:

---

February 3, 2009

Irving Feiner, 84, Central Figure in Constitutional Free-Speech Case, Is Dead

By DOUGLAS MARTIN

Irving Feiner, who played a significant role in the Constitutional debate over free speech when the Supreme Court upheld his conviction on charges of disorderly conduct for dangerously provoking a crowd as he spoke from a soapbox in Syracuse in 1949, died on Jan. 23 in Valhalla, N.Y. He was 84.

The cause was a ruptured cerebral aneurysm, a ballooning blood vessel in the brain, his daughter Emily said.

Mr. Feiner said years after his conviction that he was “a contentious young man” when, as a Syracuse University student, he mounted the soapbox at South McBride and Harrison Streets around 6:30 p.m. on March 8, 1949, to promote a leftist rally to be held at a hotel in Syracuse. The police said he urged blacks to take up arms against whites. Among other targets, he castigated the Syracuse mayor, the local political system and the American Legion.

(He always denied widespread reports that he called President Harry S. Truman a bum, saying that if he had meant to insult the president, he would have used an earthier phrase.)

The police estimated that 75 to 80 whites and blacks — 25 or 30, according to Mr. Feiner’s side — had gathered and were blocking the sidewalk and becoming restive. People heckled Mr. Feiner, and at least one man threatened him.

Saying he feared a riot, a police officer at least twice asked Mr. Feiner to get down from the box. Mr. Feiner refused and was arrested on the misdemeanor charge of disorderly conduct, found guilty by a judge and sentenced to 30 days in jail.

The conviction was upheld by two New York State appellate courts, and on Jan. 15, 1951, the United States Supreme Court followed suit by a 6-to-3 vote. Writing for the majority in Feiner v. New York, Chief Justice Fred M. Vinson said that he had no objection to the content of Mr. Feiner’s remarks, but that the reaction they engendered justified his arrest and conviction.

A dissenting opinion by Justice Hugo Black said that Mr. Feiner’s arrest resulted from his “deliberate defiance” of an arbitrary command and nothing else.

“I understand that people in totalitarian countries must obey arbitrary orders,” Justice Black wrote. “I had hoped that there was no such duty in the United States.”

The legal principle involved came to be known as the “heckler’s veto,” meaning that a disruptive listener could effectively stop a controversial speaker by threatening havoc. Over time, the Supreme Court’s 1951 decision, which put public peace ahead of freedom of expression, was superseded by nearly opposite judgments in later cases.

“The court abandoned the approach that the expression of mere ideas themselves could be punished as fighting words leading to breaches of the peace,” Jack Levin and Gordana Rabrenovic wrote in the journal American Behavioral Scientist in 2001.

Irving Hyman Feiner was born in Brooklyn on Nov. 23, 1924, to immigrants from Poland who ran a candy store. He grew up in Harlem and the Bronx and dropped out of high school to serve in the Army in Europe in World War II. After the war, he attended Syracuse University on the G.I. Bill.

He was a junior, and active in a leftist organization called the Young Progressives of America, when the group invited O. John Rogge, a former United States assistant attorney general, to speak. Mr. Rogge was part of the defense team for a group of black men accused of killing an elderly white shopkeeper in Trenton.

Called the Trenton Six, they were first sentenced to death by an all-white jury on the basis of confessions that later proved to be false. They became a celebrated cause of the left and civil rights groups. Eventually, four were acquitted, and two were convicted and sentenced to life imprisonment.

Mr. Rogge and the folk singer Pete Seeger were scheduled to appear in a public school auditorium in Syracuse, but at the last moment Mayor Frank J. Costello revoked the permit. Mr. Feiner and others took to the streets with loudspeakers to promote attendance at the new location, the Hotel Syracuse.

After his arrest, Mr. Feiner was expelled from Syracuse University, and his admission to several law schools was revoked. He went on to success in the printing, movie exhibition and tropical-fish businesses. He ran unsuccessfully for offices that included Rockland County executive, state assemblyman and mayor of Nyack, N.Y., where he lived. He wrote more than one cantankerous letter to newspapers.

Mr. Feiner is survived by his wife of 58 years, the former Trudi Kramer; his daughters Susan Feiner and Emily Feiner; and five grandchildren. Another daughter, Rachael, died in 1971.

He returned to Syracuse and finished the work for his undergraduate degree, which he received in 1984. In 2007, the university invited him back to lecture on free speech.

WATCH OUT FOR THE BOOGIE-MAN

From the Conlawprofs list, my reply to a query about whether a city can or should protest a billbiard sign proclaiming that:

"Sharia Law Threatens America"

The context and an explanation of Islamic law appears in the post below, which grows out of an earlier discussion under the caption "Pound Salt," a few days ago.

Response by rs:

Let's say it's dual violation of both freedom of expression as well as the Establishment Clause, the latter being a subset of the former, as I see it, in this instance.

Suppose the sign read:  "The Boogie-man is going to get you!"

Are we free to post such signs all over in America?

I'd thought that we were, and that government was out of line to complain about it.

Did government have the right to stifle Eugene V. Debs when he made a speech opposing the draft during WWI?

Holmes voted that it did and Debs got 20 years in the federal pen.  Through the study of FA law and history, I'd somehow come to believe that all words are incitements (Holmes) and that the counter to speech that you don't like is speech that you do.  [Holmes later reversed position, becoming most supportive of freedom of conscience, once he found out what it was, courtesy of Judge Learned Hand of the Second Circuit (NYC and environs).  Nowadays Debs would get a free speech medal, not jail time.]

Under this reasoning, the anti-Sharia billboard is as protected by the FA as anything uttered during the last, hotly contested, presidential campaign.  In fact, it's traditional with us to go to extremes in language when irate.  Irate is a protected emotion, so long as it expresses itself in opinion and hyperbole, not threats or obscenity.  I know, we don't protect emotion, per se, but we do protect certain expressions of it, which is what I'm getting at.

The problem with government getting involved in advocating against some expressions is that this is an exercise of government power, even if government, or a government agent, asks nicely and as politely as possible.  When a policeman asks me very politely if I mind moving, I never mind, even if I do, and I move.  He's the last person whose displeasure I would like to encourage so long as I'm on his turf, which is everywhere except for when I have him on the witness stand, in which case he has to look out for the likes of us.

Awhile back, in one of the threads about library practice, we saw examples of one or more policy statements put out by a (or the) library association, setting forth standards for buying, stocking, lending, culling, and eliminating, but not burning, acquisitions known as books.

It seems to me that we might well use a statement of proposed policies for municipal and other governments and their agencies and agents suggestive of what positions to take and how to take them when members of the public complain about another member's parading, speechifying, demonstrating, billboard displaying, and such other recurring topics, not excluding school newspapers and room usage, as well as school funding for student activities.  I know, we already have one of these and it's called the Constitution, but this requires lawyers when what we'd like to do is to encourage the administrators to go to the FA seminar which addresses such questions and save the handouts, including who to call (not the ACLU, or maybe the ACLU) when being asked for the city to weigh in on whether it should lean on people who say things that other people don't like.  The latter need to be brought up to speed, not the former.

Didn't the Clinton administration say it was going to promulgate a set of guidelines for schools that would show where the lines, or grains of sand, were in respect to Freedom of Religion questions?  I don't know whatever happened to that.  Probably became too controversial too quickly to go into effect, or maybe it's in place.

Perhaps the city, or all cities and townships, could print up a few canned notices to stick to the signpost holding the billboard, or any written message that draws complaints, stating that the message above represents the viewpoint of the people who rented the billboard and does not imply endorsement by any other person, the residents of the city or county, or any government agency.  If you would like to carry the matter further, kindly consult your lawyer or call one of the participants of Conlawprofs (telephone number) who will provide you with an explicit and clear-cut statement of what you are allowed to say and what you aren't in this country regardless of whether we are at war in countries that have different religions and other values or not and regardless whether you believe this to be a Christian country governed by the New Testament, mainly, with bits and pieces of the Old Testament thrown in for leavening, except during Passover, of course.

Respectfully,

rs
sfls

Query by Prof. EV:

On Nov 26, 2008, at 9:46 AM, EV wrote:

    You can see a copy of the billboard at
http://unitedamericancommittee.org/; the press release about it says:

The billboard, located just south of Luna Pier Rd. on the south bound
side of the Detroit-Toledo Expressway, states "Sharia Law Threatens
America". Sharia Law is a legal system recognized in many Islamic
countries such as the former Taliban regime of Afghanistan, and
currently Saudi Arabia, and is a legal system which dictates beheadings,
stonings, and other punishments for what are listed as crimes under
Sharia such as homosexuality and adultery, and according to critics
views women as inferior granting them little rights. Days after the
billboard went up, emails from angry Muslim residents began coming in to
the offices of the United American Committee, the organization behind
the billboard. "Muslims are the biggest victims of Sharia Law in the
world." remarked Tom Trento, a spokesperson for the UAC. Trento
continued "We hope this message inspires the Muslims of America who came
to this country to escape Sharia, to stand up against it."

    A hypothetical:  Say that the city asks the billboard company to
take down the billboard, without any overt threats against the company
if the company fails to comply; and say the billboard company indeed
goes along with the city's request.  Would this be any different for
constitutional purposes from Cucamonga's actions as to "Imagine No
Religion"?  If asking a company to take down "Imagine No Religion" is an
Establishment Clause violation, would asking a company to take down
"Sharia Law Threatens America" likewise be an Establishment Clause
violation?

    E.

YOUR BIG MENTAL SCREEN

This from an interview of the film director David Lynch by Deborah 
Solomon, in the NYT Magazine, "The Screens Issue," Sunday, Nov. 23, 
2008, p. 24:

Q:      ...Do you plan to film your [4th] wedding?
A:    No.  It's a hassle.  So many things these days are made to look at 
later.  Why not just have the experience and remember it?

Q:    Because most people have the experience and forget it.
A:    Some things we forget. But many things we remember on the mental 
screen, which is the biggest screen of all.

***

There; you have it; an authoritative statement from a pro who is 
stating that each of our mental screens is bigger and more important 
than anything you pay ten bucks to see amidst the popcorn smells and 
texting going on around you on those bright little cellphone screens, 
which may be worse than the woman seated behind you narrating the 
movie  in midstream to her long-suffering husband.

I suggest that this, your Big Mental Screen, is a lot closer to what the 
First Amendment protects than anything Holmes ever came up with.  It's 
not just the Hays Office that was trying to keep your screen pure, for 
what I don't know.  Most of the naughty stuff, I learned before I was 
seven, but I grew up in NY, so what could one expect.

***

This may be one of the best things I've ever posted to my colleagues on the Conlaw Professors listserv, yet it drew nary a comment.  Maybe the others didn't disagree.  Or maybe they thought it beneath notice and were being polite.

It's hard to tell what silence means and you shouldn't always rely on it, or you may be disappointed.

Nevertheless, the First Amendment protects many things:  conscience, expression, your right to think and believe what you want, not what someone else wants, etc.  It protects the inside of your head, not just what your eyes and ears see and hear, as Mr. Lynch so kindly and importantly pointed out.

NAUGHTY WORDS

You can't say that on TV!

Can you?

I don't know why not.

The argument against seems to be that little children will hear naught words before they're supposed to hear them.

We want them to hear the words at some point, because, how else will they learn they're not supposed to use them? 

They're taboo, just like screwing pigs in Polynesia.  I assume they don't want you to mess with the pork in Polynesia any more than they do in Poughkeepsie, but what do I know.

All I know is that by age six, I'd heard them all and had my mouth washed out with Lifebuoy soap for my troubles, dammit.  Lifebuoy was a particularly vile-tasting orange bar of soap, as I distinctly recall.

Because little kids like me, or as I was, at any rate, shouldn't hear naughty words, entertainers such as (the late, great) George Carlin, Cher, Bono, and even Janet Jackson (of beautiful breast fame at a Superbowl half-time performance) can't do their thing, which includes salty language and the occasional breast.

I don't geddit.

Let 'em swear away, I say.

Reminds me of an old Richie B. joke, he being a great friend, now a great lawyer.

Little Johnnie has brought a note home from the kindergarten teacher asking his father to come in to discuss  the little boy's naughty language at school.

"If he keeps this up," warns the teacher, "he won't get any more cookies at recess."

"Well if he doesn't watch his language," replies the dad, "fuck'im, don't give him no cookies!"

Ba-dum!

And that's how you take care of that.

The argument was before the Court today.

Preserve our culture, they're going to do.

Fuck'em, don't give 'em no cookies, I say.

Don't ask me what amendment gives the court the right to try to preserve this unholy culture.

Sounds like a states' rights issue to me.  Local control over filthy mouths.

I know, nationally licensed and regulated airwaves makes this a federal issue where centrally promulgated rules govern over local.  Drat.

We'll find out soon enough what Bono and Cher can say on TV.

TOMMY SMOTHERS & THE RIGHT TO HEAR

I posted this to the listserv for the Constitutional Law professors:

During the height of the Vietnam War, in 1968, the year of the police 
riot at the Democratic Convention in Chicago, at the beginning of the 
Nixon Era of right wing repression (sorry guys), CBS pulled the 
Smothers Brothers Comedy Hour off the air, for good, before its fourth 
year could begin.

Forty years later Tommy receives his Emmy and gives a thank you 
statement which includes:

"Freedom of expression and freedom of speech aren't really important," 
he told the audience, "unless they're heard. The freedom of hearing is 
as important as the freedom of speaking. It's hard for me to stay 
silent when I keep hearing that peace is only attainable through war. 
There's nothing more scary than watching ignorance in action. So I 
dedicate this Emmy to all people who feel compelled to speak out, not 
afraid to speak to power, won't shut up and refuse to be silent."

He also points out that you don't need government to repress speech 
when you have media conglomerates to do it for you.

At any rate, the closing of the show has remained a lesson in First 
Amendment undermining all these years.

You can ask who is a greater exponent of FA values, a teacher, or 
practitioners, like Tommy and Dick.

Today's S.F. Chronicle (at sfgate.com) features two articles and other 
references to the Smothers Brothers.

Here's the link to the lead article which will lead, as well, to the 
others:

http://tinyurl.com/6l2cqa

rs
sfls

***

This drew the following response:

On Oct 22, 2008, at 10:41 AM,  [someone] wrote:

Forgive my impertinence, but exactly how is the First Amendment
implicated when a private company cancels a television show?

***

To which I replied:

Forgive my broad construction, but freedom of expression is a value that extends beyond the confines of the First Amendment, it appears.

rs
sfl

***

Things went downhill from there, as follows:

Him:

Certainly, but we all have to guard against confusing private action with government action, which your message appears to do ("the closing of the show has remained a lesson in First Amendment undermining all these years").  The former is bad, but the latter is unconstitutional and therefore illegal.
 

Me:

No, we do not have to guard against confusing private action with government action, any more than we have to guard against creeping socialism in medicine and in bailing out Wall Street.  The media conglomerates rent the publicly controlled airwaves.  This gives the public a right to oversee how they are being used.  If the media corporations, such as CBS, censor comment on public issues in talk shows because the message is contrary to more dominant political views of, let's say, the current administration, as was the case in 1968, the speaker's right to speak and my right and yours to hear are both curtailed as two sides of the same coin.  The public-private dichotomy on which you rely was what kept slavery and Jim Crow in business for so long, until ways were found to overcome it.

rs


On Oct 22, 2008, at 11:42 AM, [someone, pcj] wrote:

POLE DANCING

Scientists often claim that the feature which distinguishes humans from animals is either:  using tools, laughing, feeling ashamed (see Mark Twain on this), or whatever else seems important at the moment.  They usually go by the boards after a moment's reflection shows an ape using tool to catch termites, after which he laughs and feels ashamed at not sharing.

I have a different theory, equally wrong.  It is that humans have a need to express themselves, unlike, say, peacocks.

Jon Carroll has a column on the expressive dance form known as pole-dancing, not to be confused with the waltz, although comparison with the tango might not be too far afield.

The reason for posting here, is that Carroll grants that pole dancing is no-doubt as salacious as the town fathers, morals police, and congregational elders believe.  But he says it is protected activity, nonetheless.

That's the thing about arguing First Amendment issues.  First you have to grant that the expression may incite to performance of the most dreaded, feared activity, such as the violent overthrow of the democratic form of (capitalist) government in favor of totalitarian communism (the big issue of the last century), and then you have to allow it anyway, at least up until the barricades are about to be stormed.  Or sexual intercourse between consenting adults may occur, equally scary, to some.

The case is Brandenburg v. Ohio (1969).  Unless the roof is about to fall in, the expression is allowed, regardless of content, assuming it can't be labeled, legally, obscene, which remains unprotected.  Pole-dancing?  Not obscene?  The waltz?  Not obscene?  We get deep into the impenetrable thicket of trying to define in words which forms of expression, apart from content, should be protected and which not.  As Justice Potter Stewart once observed of print-forms of obscenity, he couldn't define it, "But I know it when I see it."  We call this Chinese hidden law, the law of unwritten rules.

 

There's an old line that goes something like, "In Russia, everything that is not expressly permitted is forbidden.  In America, everything that is not expressly prohibited is permitted.  While in France, everything that is expressly permitted or prohibited is mandatory."  Or some such.

The Carroll article is below.

SPEAKING OF SECRET INFORMATION

Suppose you see a nuclear submarine hauling ass out the Bay, as we used to when the Mare Island Naval Shipyard was still operating in Vallejo.  Can you talk about it?  Speak of it on the telephone?  Mention in a letter what you saw?  Blog about it? (They didn't have blogs in those days).

Here's a case where some MIT students learned of a flaw in the ticket issuing system of the Massachusetts transit agency.  Presumably those who knew how to hack the system could issue themselves tickets and ride without paying the fare.

The MIT students wanted to discuss this.

The Agency didn't want them to publicize its breach of security, not only to prevent embarrassment, one supposes, but to prevent cheats from riding without paying.

A federal judge gagged the students, at least until the hearing, when he lifted the gag order.  In the Pentagon Papers case, U.S. v. NYT (1972), a federal judge gagged the New York Times during the pendency of the litigation which went to the U.S. Supreme Court.  The Court lifted the gag, but meanwhile, the Times was forbidden by court order from publishing the story of the decade, about how the Vietnam war was based on origins as phony as the war in Iraq, or almost, and the government knew it.  The gummint tried to claim "national security," but this turned out to be a joke, as the security of the nation was not at risk by allowing the voters and parents of the soldiers who were about to die, and the soldiers themselves, to know that they were being sent into a war that wasn't necessary except to a few paranoid types who always favor war, given a chance.

Note how a good lawyer sees the FA issue and moulds her presentation to make perfectly clear what's at stake.

Judge Dissolves Gag Order Against MIT Students

Chris Kanaracus, IDG News Service

Tuesday, August 19, 2008 12:40 PM PDT

A U.S. District court judge on Tuesday dissolved a gag order against a trio of MIT students who say they found flaws in the Massachusetts transit authority's ticketing system.

Zack Anderson, Russell "RJ" Ryan and Alessandro Chiesa had planned to present details of their findings at the Defcon hacker conference before a judge imposed the gag following a motion by the Massachusetts Bay Transportation Authority.

The students, who were apparently not present at Tuesday's hearing, are being represented by the Electronic Frontier Foundation, a San Francisco organization that advocates for civil rights in the high-tech world.

EFF legal director Cindy Cohn argued Tuesday that the federal Computer Fraud and Abuse Act concerns the transmission of information to protected computers, not speech to other people, in this case the students' planned speech at Defcon.

In addition, the students have no intention of releasing "key" pieces of information that would allow others to hack the system, Cohn said.

During her remarks, Cohn repeatedly framed the dispute as a First Amendment issue, and said if U.S. District Judge George O'Toole upheld the restraining order, he would be making "an unprecedented ruling" that would render the scientific community reluctant to publicize research of public benefit, for fear of legal reprisals. "This will set an example that will ultimately leave us all less secure."

She also characterized the MIT students as victims, saying they were only trying to help the MBTA by exposing the weaknesses in the system. "Our clients didn't create a vulnerability, they found it. They are being punished because they want to talk about it."

MBTA attorney Ieuan-Gael Mahoney had asked for a five-month continuation of the restraining order, saying that was how long the MBTA has determined it will take for the organization and its vendor to fix vulnerabilities in the MBTA Charlie Ticket system.

Mahoney praised a security analysis the students had given the agency, saying the information in it convinced them of the vulnerability.

"This is a very useful document. From it we came to the conclusion the Charlie Ticket had been compromised," Mahoney said.

But along with that praise, Mahoney weighed new allegations that the students had committed illegal acts. Mahoney did not provide specifics but said the MBTA has "solid information."

O'Toole ultimately sided with Cohn following the roughly 90-minute hearing.

The restraining order only pertained to the students' ability to discuss their findings publicly; the MBTA's lawsuit against them remains outstanding, Cohn said after the hearing.

It is unclear whether the MBTA will appeal O'Toole's ruling; Mahoney wasn't immediately available for comment after the hearing.

NEA v. Finley (1998)

See Souter's dissent for the law lesson here.

The general rule is that government provides a framework of legal protection for all speakers to say what they wish without government interference based on content, viewpoint, decency, popularity or unpopularity of ideas, etc.  If I think mainstream ideas of decency, or indecency, are foolish, I have the right to say so, I'd thought.

NEA v. Finley says otherwise.

Why?

Politics, not reason.  Put another way, politics is a reason all its own, however subjective, emotional, or otherwise based on passion, not reason.

There's a reason this comes up now, of course, but we'll have to get to it later.

Suffice it to say that NEA v. Finley looks like a victory by the conservatives for conservative values at the expense of freedom of mind because this freedom may be used to offend the sensibilities of religious people through the disparagement of their religious symbols.  In other words, if we stick to the principle that the flag may be burned, then why not the cross?  The whole idea of freedom of mind is that the existing order may be overthrown as a bad idea.  Luther and Galileo come to mind.  Both would have burned under NEA v. Finley which in other respects looks, for all its trappings, citations, etc., just like any respectable product of the high court, just as the decree condemning Galileo as a heretic unless and until he recanted may seem like perfectly charming edicts from Rome, about as legitimate, say, as the rack and the screw during the Inquisition.