yAdditional Notes (Our Fundamental Rights):

Legend: Ch=Chapter, P=Page, pr=Paragraph (numbered from top of page including incomplete first paragraph).


(Ch: I, P. 2, pr. 1): Were I rewriting this Introduction, I'd probably mention here that the most important source of unenumerated "fundamental rights" from a constitutional perspective is the (substantive) due process clause of the 14th Amendment, which invokes life, liberty and property rights. See the note below for Chapter 11.

(Ch: I, P. 2, pr. 4): In fact, only the first two Amendments specifically establish the right of an individual to act upon his own wishes (free speech, religious practice, assembly, association, bearing of arms). The nex six provisions of the Bill of Rights are predicated upon the assumption that the government (or some other party) has initiated some specific action against the individual.

The Constitution, before the Bill of Rights, actually did contain several “procedural” affirmative (or “original”) rights. These include

·  The right to a writ of habeas corpus, preventing arbitrary imprisonment without charge, except in extreme public danger  (Article 1, Section 9)

·   Prohibition against bills of attainder, which are statutes that convict people of crimes (particularly capital or death-penalty crimes) without trial  (Article I Section 9)

·   the right to a trial by jury in criminal cases (the Bill of Rights added the protection for civil cases)

·   prohibition on ex post facto laws

·   guarantee that citizens of one state have privileges and immunities in other states (full faith and credit)

·   prohibition on religious litmus tests for positions in national government

·        prohibition against non-proportional capitation taxes, which would have made a federal income tax unconstitutional before the Sixteenth Amendment.


Libertarians often claim that many regulatory activities by federal government and many statutes are unconstitutional because they go beyond the enumerated powers, particularly in Article I Section 8. Nevertheless, this section stipulates that Congress has the power to make any and all laws necessary and proper to execute its other powers.  This is called both the Sweeping Clause and the Necessary and Proper Clause.  The phrase “promote the general welfare” appears in both the Preamble and in the first provision in the Enumerated Powers of Article I Section 8.  Liberals have generally viewed social justice and even the redistribution of wealth (and programs like Social Security and Medicare) as justified by “general welfare.”  Conservatives might view the draft this way (or as justified by the explicit power to raise and administer the military).  These kinds of interpretations have tended to focus some judicial activism upon equal protection arguments tied to suspect class status.    

As I develop in the related Bill of Rights 2 piece, it seems that a national popular consensus would be required for the courts to begin to narrow the powers allowed the federal government into a more libertarian direction.  The people need to let the courts know that they want this.

President Bush (Nov. 2001) has signed an executive order authorizing secret military tribunal trials (“star chambers”) of foreign (non-citizens) suspected of terrorism.  There is some justification under explicit war powers given to Congress and the Executive branch although where one draws the line with other constitutional provisions (like due process and trial by jury) is unclear.

The recent case where “Dear Abby” (Jeanne Phillips) called police after receiving a letter confessing (heterosexual) pedophilic fantasies (but not actions) and where the police raided the writer’s home and seized a computer with child pornography would, in my mind, raise the question of whether probable cause (associated with the Fourth Amendment) was satisfied (fantasies alone are not “threats”) before the police searched the home and computer.  Also, the FBI (in early 2002) broke up a large child pornography operation based on closed e-groups on Yahoo, with a sting called “Operation Candyman.” Details are at http://www.fbi.gov/pressrel/candyman/candymanhome.htm    The FBI and police tactics for tracking down child pornography customers can be quite draconian, including searching their hard drives for cached and deleted graphics files of minors engaging in sexual acts. Technically it is illegal to download (or even click on a link leading to) a sexual image of a minor, and doing so may result in conviction. The government is making a collective argument that (just as with drug users) customers are fueling the exploitation of minors. A chilling account of how an ex-Marine and policeman was snared by this operation is provided by Steve Silberman, “The United States of America b. Adam Vaughn,” Wired, Oct. 2002, p. 126. Indeed, to the extent that an open society offers unprecedented freedom, there is also unprecedented opportunity to fall to one foolish impulse.

 Chapter 1:

(Ch 1, P. 9, pr. 2): One way to say this is, we could develop an informal, non-legally-binding national consensus that every praiseworthy adult ought to demonstrate that he or she can support someone besides himself or herself, starting in young adulthood and throughout adult life. This might be demonstrated by various combinations of family or parental responsibilities and other volunteer work. Our "cultural war" could really come to this!

Chapter 1: General:

I didn’t provide a separate chapter on the Right to Bear Arms (the Second Amendment), but in the DC case District of Columbia v. Heller, the Supreme Court decided 5-4 that this is an “individual right” not just belonging to “militias.”  The blogger entry is here. It’s unclear as of yet whether the Incorporation Doctrine will eventually apply this interpretation of the Second Amendment to the states. The link for the Opinion (June 27, 2008) is here.

In June 2008 a Houston, TX grand jury refused to indict a 61 year old man Joe Horn, who shot two burglary suspects after robbing a neighbor’s home and approaching his. Texas law allows deadly force at home to protect property, and sometimes to protect a neighbor’s property if agreed. The CNN link is here.  

Chapter 2:

(Ch 2, P. 14, pr. 2) There is indeed enormous controversy among libertarians over abortion. Some maintain that there is a right not to be the victim of aggression, but no particular right to have one's life continued at expense to others. The enormous cost of caring for the aging (as we face an Alzheimer's explosion) is now smothered by Medicaid programs, but some day we may see children (especially those without dependents) being required to support aging parents as states find Medicaid payments for custodial care going out of control.

            Moral arguments about the right to life might support legislation, say, prohibiting health insurance companies from screening consumers with genetic tests, as well as against organ-selling (and baby selling, as with a well-publicized case in Britain in early 2001). And libertarian thought could regard the creation of human life according to a specific genetic code as "aggression."

(Ch. 2 general): Roe v. Wade (1973) essentially protects elective abortion as a "fundamental right" during the first two trimesters. Casey v. Planned Parenthood pretty much replaced the trimester approach with a doctrine which maintains that the state may not place an "undue burden" on elective abortions before (expected) viability for the unborn. This would hold even if there were a biological or genetic test (like the XP28 chromosome) believed capable of predicting future homosexual orientation of the unborn child.

There has been controversy about laws (“targeted enforcement,” which used to be used against gay bars) in some states to make it difficult for abortion providers to operated as “businesses,” and they could come under scrutiny according to the “undue burden” standard when, for example, applied to poor women who must travel or pay large fees.

(Ch, 2 general): Regarding the French drug RU486, the “morning after pill,” the FDA states “The Food and Drug Administration has approved mifepristone (trade name Mifeprex) for the termination of early pregnancy, defined as 49 days or less, counting from the beginning of the last menstrual period.”  There has been talk that pressure could be put on a new president to try to have it made illegal.  My own feeling is that the fertilized zygote is not a “person” with a right to life that outbalances a woman’s control of her own body, at least until the unborn is reasonably capable of self-awareness, which (as I said in DADT Chapter 6) might reasonably be expected after about 3 months, and Roe v. Wade is more liberal with the mother than even this. Persons who would want to ban RU486 are more likely to do so out of a symbolic deference to social standards regarding the consequences of sexual intercourse (and this eventually affects gays, too).  There have also been suggestions that some morning-after pills are really contraceptives that work before fertilization and therefore do not present an abortion problem. (See Alan Dershowitz, Supreme Injustice, p. 201.)

(Ch. 2, general). In 1998, the then Missouri Senator John Ashcroft (President-elect Bush’s controversial appointment drafted an amendment giving the unborn the right to life immediately upon conception and fertilization, except for rare medical exceptions. It would have made many forms of contraception illegal.  It went nowhere.   Personally, I do favor letting the states (but not the federal government) ban late-term partial-birth abortions with rare medical exceptions. Public funds should not be used to pay for elective abortions, and parental notification and consent laws (if made at the state level) for minors having abortions seem proper to me. 

(Ch. 2, general). For a thorough airing of all views on the possibility of human cloning, see the feature story by Nancy Gibbs on p. 46 of the February 19, 2001 issue of Time.  Many babies would have birth defects and might age rapidly.  The obvious argument is that the rights of the cloned person are by fiat violated, but some libertarians claim that this is not much different than the problems today with the problems of mothers who smoke, drink, or use harder drugs. All kinds of other questions about “rights” come up. Some gay activists claim that, if homosexuality is ever shown to have a principally genetic or biological cause, then gays will have a “loyalty” ukase to clone other gays; this idea sounds very collectivist to me. Maybe thirty years from now human cloning will replace abortion and homosexuality as a controversial “moral” problem, but I doubt it.  

Peter Augustine Lawler, in “Libertarian Fantasy and Statist Reality” in the Nov/Dec 2002 Social Science and Modern Society, presents a bizarre “reversal” argument for cloning. “Libertarians believe that it is their right to defend natural inequality and diversity from government. They do not deny that I have not earned what I have been given by nature. But what I am is largely determined by what I do with what I have been given. What nature has given to me is mine. So libertarians believe that women may do what they please with their bodies.” (Okay, this is Uncle Remus in Disnay’e So Dear to my Heart. “It’s what you do with what you’ve got!” To be cynical, his passage reminds me of the bizarre strip rituals and after-hours bacchanals at gay discos where gay men discover what has been given, as if some new natural order could be determined!)  Later he argues that libertarians will not be able, however, to deny men the right to control the genetic destinies of their own children once they are capable through science of doing on, because then men are in a position that this is part of their “nature”! This whole thing about inequities has always come down to this for me: people should not be able to hide from their own personal weaknesses (whether through redistribution of wealth or marriage), put people who are more fortunate should pay their dues and prove that they can provide for others besides themselves. 

ABC World News Tonight (May 6, 2004) covered the new opportunity to select and implant an embryo in a mother of a child to provide a sibling who, at birth, will have umbilical stem cells that can save an older child’s life.

(Chapter 2, general): April 22, 2001, CBS “60 Minutes” ran a story about a psychiatrist who refused to prescribe medication for a prisoner in Arizona so that the prisoner could be executed according to state law.  He had to deal with an ethical and legal dilemma between the guidelines of the AMA and of an order from an Arizona court.   

(Chapter 2, general): There has been controversy over stem-cell research, which the new Bush administration wants not to be funded.  There is the fear of a “slippery slope” leading to cloning and “murder” for spare parts (as above).  Personally, I do not have a problem with creating individual cells or groups of cells to develop therapies for diabetes, cancer, AIDS, and the like, as long as some defined limit (much below the level of an organism) on what may be done is established.   There is a paradox here: ultimate respect for human life cuts both ways, as we may want a seamless definition of human life, yet we want to save lives of children with diabetes, cystic fibrosis, and all kinds of other diseases that would yield to gene therapy based on this research. Conservative (and Mormon and pro-life) Senator Orin Hatch makes the argument that normally embryos that would be used in this research are otherwise discarded.  A number of celebrities (such as Michael J. Fox) have publicly supported limited stem cell research, and there will be an interesting test if high-profile people and corporate interests are able to sway public opinion away from a particular religious or narrowly constructed “moral” interpretation of the issue. However, private companies like the Jones Institute in Norfolk, Virginia are now creating stem cells in vitro for research only (there is a similar effort in Worcester, Mass.) , and this brings up the debate as to whether clumps of stem cells really are “embryos” for purposes of moral debate (in comparison to abortion and cloning).  On August 9, 2001, President Bush announced support for federal funding for stem cell research for up to 60 lines for which discarded “embryos” already exist, but not the killing of embryos in the future.  Yet columnists like Cal Thomas (The Washington Times, Aug. 12, 2001) called this a slippery slope where government could decide when to sacrifice a life (a “pawn”) for the benefit of “the general good” or of other needy people.  What about the draft?

(Chapter 2, general): The Terri Schiavo case in Florida has become a new symbol for the ukase of respect for biological human life. The husband insists that she did not want to be kept alive by artificial means, whereas the parents do. In March 2005 Republican members of Congress intervened to provide the federal courts a level of review. Of course, Republicans are undercutting their own ideology about states rights and the “sanctity of marriage.”  In an age of runaway medical technology and costs, saving biological life at any cost can have tremendous costs for others, especially other family members—under the guise of making “sacrifices” to protect the vulnerable. Will this case become a springboard for a new assault on early term abortion?

Chapter 3:

(Ch. 3, P. 15, pr. 4)     As NBC "Dateline" reported on Nov. 10, 1998, private companies in Nazi Germany participated in using "slave labor" and there is controversy today over whether these companies (those still in existence) still owe reparations.

Chapter 3, general: The slavery and segregation experiences in our history do add a level of argumentation. In ABC "Nightline" debates, Democrats Al Gore and Bill Bradley both emphasize the need to end all irrational discrimination against any previously stigmatized groups, including gays and lesbians, even by the military. In fact, with respect to race, our social history shows that people tended to look upon the Negro as biologically different in a way that made him intrinsically inferior. Hitler tried to propagate an even more vitriolic "class aversion" against the Jews and many other groups (including gays), upon totally incorrect theories. So many people view "civil rights" today as a matter of avoiding (under legal mandate) making class distinctions between people (that is, to insist that gays are like everybody else) or of emphasizing that some differences are simultaneoulsy both immutable and benign. The latter precept works very well with race, but not so clearly with sexual orientation when "behaviors" will be involved. It is true that some people (the Paul Cameron and Fred Phelps crowd) still regard gays as inferior "creatures" who should be treated, at best, like zoo exhibits (as in a famous "Twilight Zone" episode). But to base a legal strategy to end discrimination just based on this model is totally inadequate morally. People should examine whether adult consensual sexual behavior should become a "fundamental right" (next chapter). As for myself, I could never be content to "ride" on civil rights won through such shallow group politics and "political correctness" when I know that I am capable of better. The "group rights" model allows government to make gays second class citizens in areas like the military and family law, and then turn around and pretend that it can "protect" them from discrimination -- and get away with it in "politically correct" rhetoric. I was taught to recognize contradictions to generate mathematical proofs!

Chapter 3, General: On November 4, 2000 the Associated Press reported the formation of a “Reparations Assessment Group,” or “Reparations Coordinating Committee” by a number of civil rights lawyers, seeking a legal basis for reparations to be paid to descendents of American slaves.  Associated with the Group are Johnie Cochran and Harvard Professor Charles J. Ogletree, who said "We will be seeking more than just monetary compensation," Ogletree, who said. "We want a change in America. We want full recognition and a remedy of how slavery stigmatized, raped, murdered and exploited millions of Africans through no fault of their own." According to an ABC “20-20” report on March 23, 2001, author Randall Robinson (author of the book The Debt: What America Owes to Blacks) is active in this effort.  There could be a lawsuit against the federal government and a number of American companies said to have benefited undeservedly from the slave trade, in early 2002.  Claims have been announced to average $500,000 per African-American, and some unscrupulous organizations have been collecting “dues” or “donations” for such a reparations effort.  Walter Williams, from George Mason University, argued against the reparation idea in the broadcast, partly on the basis of money spent on black poverty since 1965.   There was a big story on the reparation issue in USA Today on February 21, 2002, “Activists challenge corporations that they say are tied to slavery,” by James Cox , in which activists seem to want to base legal claims on the idea that companies ranging from life insurers to railroads (and the companies that acquired them much more recently, perhaps not fully understanding the slavery issue during due diligence) are (along with their shareholders) burdened with “tainted” or “undeserved” wealth obtained from or based upon slavery in the distant antebellum past.  While public pressure could be put on these companies, it seems questionable whether they are really legally guilty of any retroactive torts for ancestral actions that were not illegal when they were committed. Holding such much violated the “ex post facto” clause in the Constitution/.

Chapter 3, General: David France, “Slavery’s New Face,” Newsweek, Dec. 18, 2000, provides a chilling and detailed discussion of the essentially slave employment (and “slave trade”) of illegal immigrants, especially as domestic help. I would be concerned about the possibility of illegal immigrants as home-health live-ins, given the severe labor shortage in custodial care (see http://www.doaskdotell.com/content/health.htm).  Of course, we could claim that migrant farm workers are sometimes indentured servants, as is the cheap labor in the Third World. Or we could also argue that in the Third World (particularly in India, say, compared to successful Hong Kong), servitude is actually encouraged by government bureaucracy that discourages automation and small business. 

Chapter 3, General:  The PBS series “The Irish in the America: Long Journey Home” offers observations on servitude and freedom that offer telling moral twists in discussion. When Irish immigrants settled in New Orleans in the early 1850’s, they were often treated worse by employers than were slaves, regarded by their owners as “investments” or recently freed black employees who were more skilled. Young Irish women, working as domestics in Boston, recognized family obligations to the extent that they would send almost all of their earnings back home to try to get siblings passage. Later in the 19th Century immigrants, working in underground coal mines, would be forced to pay for their own tools (as well as housing in company shantytowns) to the point that they often had negative earnings.  Now, a Milton Friedman may argue that this is a necessary first step in “the process” of developing wealth and higher living standards for descendants.

Chapter 3. General: In Vermont (ironically, perhaps, considering its progressive same-sex civil union provision), state representative Fred Maslack has introduced a bill requiring all non-gun-owners to register with the state and for male non-gun-owners of military age to pay a $500 registration fee! A taste of Switzerland, or perhaps a hint regarding eventual support for another draft. Don’t assume that conscription can never come back.   

Chapter 3.  General.  Britain actually freed the slaves in all of its possessions in 1832, but required slaves to serve their masters for 7 years in indentured servitude to reimburse the slave owners for their “property.” 

Chapter 3. General.  I should have also mentioned the 13th Amendment in this Chapter (it is listed in Chapter 11), adopted in December 1865 to abolish slavery in the United States. 

Chapter 3. General.  On September 21, 2004, ABC “Nightline” presented a program on modern day slavery, especially overseas where women (and even men) may be sold into prostitution. Americans who use their services may be supporting slavery, although the same argument could be made about buying some products manufactured in some sweatshops overseas. Rep. Linda Smith (R-WA) has suggested strengthening sanctions against countries who do not crack down on these practices. Recently there were partial sanctions against Venezuela for this reason.

Chapter 3. General. The 13th Amendment and the right to be free of involuntary servitude is given as the basis for lawsuits by some Army reservists who were called back to serve in Iraq apparently after completely resigning their commissions.

Chapter 3: General. U.S. History students in high school learn that impressments of Americans on ships by British ships was an indirect cause of the War of 1812. Impressment is a form of involuntary servitude.  The History Channel ran a documentary “The War of 1812” on January 22, 2005. 

Chapter 3: General. The 1950 World Book Encyclopedia article on slavery starts with this amazing sentence: “Slavery was actually a forward step in the march toward civilization. For many hundreds of years, conquerors simply killed their enemies. The idea of using captive men and women to do the rough work in a community, instead of killing them, was therefore a humane reform.”  Would an article start like this today? Even Wikipedia discusses it in pragmatic economic terms: http://en.wikipedia.org/wiki/Slavery

Chapter 3: General: Here is an important relatively new concept:  Back door draft (or conscription) -- the practice of involuntarily retaining persons in the Armed Forces because of an ongoing conflict when these persons originally volunteered. It is controversial whether this would amount to the moral equivalent of "involuntary servitude." The practice has occurred with the war in Iraq since 2003.   

Chapter 3: General. July 29, 2007, USA Today reported that Ohio is considering “drafting” poll workers (election judges). Go here.  There is a PBS film “By the People: Democracy in the Wild,” link here.

Chapter 3:  General: A district attorney in Long Island NY is prosecuting ten nurses from the Philippines for resigning suddenly together to protest the practices of a nursing home, the charge being reckless endangerment of disabled patients. (Feb. 2008).  The link is here. 

Chapter 4:

(Ch.4, P. 19, pr. 2)      In 1833, Judge Joseph Story, in writing about the 3rd, or "Quartering" Amendment, had noted that the the 3rd Amendment implies that a "man's home is his castle; and that this was the first time (about 165 years ago) that a Justice referred to a right to privacy from the Bill of Rights.

(Ch. 4. P. 20, pr. 3)     Certainly, unplanned pregnancies among unmarried women create a cost that "society" pays for and arguably makes a lot of heterosexual private activity society's "business" but then questions come up such as, holding fathers responsible, welfare reform, voluntary assistance arrangements.

(Ch. 4, P. 20, after pr. 5) Overuse of antibiotics and development of resistance among bacteria provides another menacing example of where private behaviors may eventually jeopardize public health.

(Ch. 4, P. 23, para. 4).  Eskridge, in Gaylaw (Harvard University Press, 1999) points out that statesodomy laws punishing consensual acts in private really did not come into being until after World War II.  By the late 1950's, some states were aggressively chasing homosexuals out of the closet by closing down gay bars (often invoking police payoffs) with laws forbidding serving alcohol to or allowing the congregation of "known homosexuals." 

(Ch. 4. P. 29, after p. 3) If one raises choice of intimate partner to the level of a "fundamental right" and wants to stay within libertarianism, one then is forced to balance property rights (as fundamental) with the "right" to be free from discrimination because of intimate partner. If one wants to protect expression of sexual orientation in law under this philosophy (after deciding that intimate expression is more "important" than property when there is this "conflict of interest"), then there would be no exceptions, not even for religious organizations or for individual landlords. Compare this to an analysis of "religion" as a "fundamental right" (really, "exalted right") that must be traded off against property rights.

(Ch. 4. P. 30, after pr. 2). The aggressive behavior of e-commerce vendors (as reported on CBS "60 Minutes" on November 28, 1999, over and above what we are annoyed by with telemarketing) is raising even more privacy concerns. Partly through the use of "cookies," special protocols managed by Netscape and Internet Explorer (and other browsers), web operators can keep track of who visits their sites and sell this information (somewhat the way credit reporting companies sell "promos") to other commercial interests. It is conceivable that this information could be sold to police agencies, private detectives (or "skip tracers") and employers (even though we haven't heard of this yet). Should there be more government regulation to prevent this? Furthermore, chat room talk and listserver postings are often archived, and it is conceivable that they could be searched (or even "purchased"), say, by employers who were sensitive to the way a key employee uses (even with his own private resources) his own name (publicity rights), but this ties into the next chapter. We know of one case of a technical writer who "hid" his gays-in-the-military site from perspective employers. (For example, sites can be hidden from search engines with HTML "No Robots" commands.)

(Ch. 4: General): The First Amendment specifically mentions Freedom of Assembly and Petition but not freedom of association. The Supreme Court has recognized freedom of association for political purposes (“expressive association” and this can be difficult to separate from social association sometimes), on the theory that politics generally requires collective action; but an 1989 decision held that it did not apply to social association (a concept that could be important in the James Dale v. Boys Scouts case if it goes to the Supreme Court.)

(Ch. 4: General):  Of course, we can discuss “the choice of significant other” in the context of miscegenation (Loving v. Va., 1967) one the one hand, and polygamy on the other, where the arguments will be especially doubled-edge.

(Ch. 4: General) Jeffrey Rosen has written a book, The Unwanted Gaze, about the implications of cyberspace for personal privacy.  “Privacy keeps you from being judged out of context, from being judged on the basis of information rather than knowledge.”  While the usual concerns about privacy involve such possibilities as tracking the sites one visits, there are more subtle ones.  If someone becomes well known because of a controversial web site, will people who know the person feel that they are being singled out even if they are not specifically mentioned? 

A lot is being written now about the tracking of consumer habit on the web, as an invasion of privacy. For example, the October 2000 issue of Yahoo! Internet Life features articles “Nowhere to Hide” by Robert Scheer, and “Global Eavesdroppers” by Jeff Howe. There will be debates in Congress as to the appropriate public policy”: an “opt in,” or an “opt out” paradigm.  Privacy experts prefer “opt in,” where the customer gives explicit permission for his profile to be shared.  

(Ch. 4: General) A recent threat to privacy is a product called “Carnivore,” which the FBI has developed to eavesdrop on emails and electronic transactions, looking for signs of terrorist activity, drug dealing, and the threat. This hardly sounds more constitutional than unauthorized wiretapping on telephone or interception of mail. 

(Ch. 4: General). It is useful to note the distinction between a right to “procedural privacy” and a “right to private choices,” as delineated by Amitai Etzioni in Chapter 6, “A Contemporary Conception of Privacy,” in The Limits of Privacy (New York: Basic Books, 1999). The notion privacy, apart from property—the “right to be left alone”—first appeared in an essay “The Right to Privacy” in the Harvard Law Review in 1890 by Samuel Warren and Louis Brandeis.  

Chapter 4: General.  The Boston Globe, on Nov. 13, 2000, ran an article “Do perks invade privacy,” examining whether employees who take advantage of employee discounts in computer purchases or free personal email and Internet accounts (often issued for employees who travel) give employers a means to snoop on off-work on-line activities (see comments below).   Is an employee who dials in to his own personal email account on a company computer (or who telnets to his own computer from a company policy and then dials in) violating company policy?  

Chapter 4: General.  There are effective protections of personal privacy in credit history and financial records in federal law, compared to what is available from federal law to protect privacy of medical records.  State laws are generally comprehensive, but the federal government did not address the issue until the Health Insurance Portability Act (HIPA) of 1996, which had been designed to deal with the issues of pre-existing conditions in employer-sponsored health insurance. HIPA gave HEW the responsibility to implement privacy and consent protections in electronic or computerized health records only in 1999.  

Chapter 4: General. On Feb 10, 2007, Dale Wetzel of the AP reported that the North Dakota legislature is seriously considering removing open cohabitation (of heterosexual couples) as a sex crime. It would be reduced to a misdemeanor, and only when a cohabitating couple claims to be married. North Dakota has been one of seven states with such laws. In theory, cohabitation was a sex crime and might even have resulted in sex offender registry.

Chapter 4: General. There is a serious effort in Ohio (as of late 2006) to develop a civil sex offender registry, and in other states (such as Virginia) vigilante groups have pursued and identified suspected but not convicted sex offenders. Here is my blog entry: http://billonmajorissues.blogspot.com/2006/09/civil-registry-proposed-in-ohio-ex.html  

For a chart describing privacy law with respect to HIV in Minnesota (probably representative of most states) see the publication “The Providers’ Guide to HIV Confidentiality and Disclosure in Minnesota,” by Lynn M. Mickelson, Esq. And Vanessa Hansen, published by and available from the Minnesota AIDS Project. Except for individual life insurance applications the protections are considerable. An employer may not require an HIV test unless HIV sero-negativity were job-related (see note 109 in DADT Chapter 5).

Chapter 4: General

John Stossel reported on ABC “20-20” February 16, 2001 that police can obtain purchase recprds from bookstores and web sites in gathering evidence for drug prosecutions.  Again, the “drug exception” to the right to privacy. 

Similary, on February 20, 2001, the Supreme Court heard arguments in Kyllo regarding the use of heat-seaking devices to analyze homes for illegal drug activity (growing marijuana under hot lights) without entry or a search warrant. Similar technology is possible to detect hidden or concealed weapons.

Chapter 4: General:  And now (June 2001) the state of Oklahoma wants to do DNA tests (“voluntarily”) on all males living near a rape victim, regardless of probable cause or reasonableness of suspicion.  Unreasonable search and seizure before invasion of privacy! 

Chapter 4: General:   For Electronic Frontier Foundation’s analysis of the 2001 USA Patriot Act for anti-terrorism visit http://www.eff.org/Privacy/Surveillance/Terrorism_militias/20011031_eff_usa_patriot_analysis.html  My essay is at http://www.doaskdotell.com/content/epatriot.htm

Chapter 4 General: See John F. Kelly, The Washington Post, Dec 1, 2003, “Va. Adultery Case Roils Divorce Industry,” about the actual conviction on John Raymond Bushey Jr. for adultery after 18 years of marriage in Virginia, leading to his resignation as attorney for the town of Luray.

Chapter 4, General: Of course, if you propose the right to choose a consenting adult significant other without state prejudice as a “fundamental right,” you can run into the socially conservative objection that the implications of everyone making these choices legally would be letting less competitive people out into the cold.  See the essay on naricissism.

Chapter 4, General: The military gay ban is partly justified by the idea that straight soldiers have a right to “privacy” in the barracks with respect to persons who might be sexually interested in them. There are other employment situations where the “privacy” of someone who cannot give consent could be compromised. See Chapter 4 notes at the runnote file.

Chapter 4, General: Historians claim that ancient Greek and Roman (Latin) societies did not have words for the concept of “privacy.”

Chapter 4. General: Chris Crain, Executive Editor of The Washington Blade, has an excellent editorial in the July 29, 2005 issue concerning the possible judicial philosophy pf John Roberts, President Bush’s choice for the Supreme Court, particularly with respect to the notion of (sexual) privacy as a fundamental right. The web reference is http://washblade.com/2005/7-29/view/editorial/  Crain writes:

Does he believe that some personal choices are so private, and so central to an individual’s liberty, that the majority cannot tread on them for no good reason other than they believe it is immoral?

“Before I came out, I never understood just how important that question can be for many Americans, whether they’re gay or women or simply choose to live their lives in a way disapproved of by the majority.

“John Roberts, who is married with kids, never got that comeuppance. He has lived his entire life as part of the majority, and my strong suspicion is that he sees no threat to freedom from the majority weighing in on those personal choices, and he sees no words in the Constitution giving courts the power to stop it.” 

Chapter 4, General. Jeffrey Rosen, “Supreme Futurology, Roberts v. the Future,” The New York Times Magazine, Aug. 28, 2005, discusses a number of liberty interests that make come up this century on the Supreme Court (in the light of the John G. Roberts, Jr. appointment by President Bush). One example is lie detection by brain scans (or “brain fingerprinting”), which might invade the putative right to privacy or right to be left alone, and conservatives jurists sometimes believe that this determination should be left to democratically elected legislatures. A brain scan (like a pupilometric test of penile plethysmograph) can be used to determine if a former sex offender or pedophile is making “progress” or conceivably, in the future, if a job applicant working with underage people (teenagers or kids) is sexually attracted to them. Another liberty area could be the use of new techniques to allow persons of the same sex to mix genetic materials to conceive a child (with a surrogate mother for a male couple) allowing same-sex “sexual reproduction” but still offending the moral sensibilities of some people with a large investment in heterosexual process.

Chapter 4. General. Columnist George Will has pointed out the difference between “privacy” and “personal autonomy,” the latter concept of which is a foundation of classical liberalism but, he says, not necessarily guaranteed as a fundamental right by the 14th Amendment or otherwise in the Constitution. (The Washington Post, Dec. 1, 2005) The median concept is “private choice” which becomes less private in an Internet age.


Chapter 5:

(Ch. 5, p. 31, pr. 5) We shouldn't take our right to Internet access "for granted." Orginally, the Internet was underwritten by the government (through the National Science Foundation) to assist research and military institutions. By about 1992, commercial interests had convinced government that they would fund its development if allowed to use it. In short order, the Internet became a powerful tool for personal soap-boxes like mine. While commercial enterprises wanted it, what the Internet has done is to take away some of the power of the traditional owners of the commercial press and give it back, indeed, to the "people." Besides censorship and other intellectual property issues (below), growth in personal use of the Internet faces challenges of saturation, to the point that phone companies already want to start excluding it from unlimited message unit service. However, Rep. John Shimkus R-Ill, Member of the House Commerce, Telecommunications, Trade and Consumer Protection Subcomittee pooh-poohs this "urban legend" and reassures us that the Internet Tax Freedom Act protects web users from "access charges" until 2001 (see USA Today, Feb. 25, 1999, p. 14A).

(Ch. 5, p. 32, pr. 3)  This is a place to add another wrinkle to the “free speech” arguments against “Don’t Ask, Don’t Tell.”  One could propose that a gay servicemember ought to have the right to “tell” in an abstract fashion so that he(/she) does not have to misrepresent himself to others. But one would not necessarily have the right to attract public attention this way, or, especially, to make the details of one sexual tastes known, as these would be particularly distracting in the military environment.  But this could have been handled by the “Code of Conduct” as in http://www.doaskdotell.com/content/whitehou.htm

 (Ch. 5, p. 32, pr. 5)    Is writing as such a profession (in the sense that one will write about what is assigned for income)?  It certainly is so for journalists, screenwriters and many freelancers. There is a National Writer's Union. (The site is http://www.nwu.org/, it indicates that it welcomes freelancers and it does appear that this organization will allow writers who do not pay their bills with their writing to become members.)  And some friends have criticized me for writing and publishing conspicuously while I'm still working (with a "cushy" income).  Is one supposed to go through the "starving artist" phase to establish oneself as a writer?  People who write on someone else's dime will always be constricted in what they may say (the "Cradle will Rock" problem) and therefore the public needs the input from people who write but not immediately for a living, to get the whole story. But there can be real conflict over public attention (and "publicity rights") here.

Incidentally, NWU officially took a stand with a resolution in February 2003 opposing the (then upcoming) war in Iraq. I answered an email to me from them on this critically. An organization representing writers should not take a position on a complicated political issue and imply that writers support that position, although it would be all right for members within the organization to form their own ad hoc coalition to express that view collectively. Of course, you can say, what if what you are opposing is an obvious “evil” (say, neo-Nazism)?

Congressman John Conyers has introduced legislation to grant freelance authors an exemption from anti-trust legislation. NWU has advocated that writers stand firm on not relinquishing rights for electronic replication and obtain a minimum of $1 for paid contributions. There would be an issue if a new writer submitted a large but original piece to a visible periodical and charged less in order to “get in.”

See intelct.htm for more expansion on this (as, for example on trademark, where an "assumed name" for publishing could conceivably infringe upon an undected trademark).

(Ch. 5, p. 35, pr. 2).  One major duplicating chain was sued and lost a judgment for helping assemble "college outline guide" from plagiarized materials. A printer or duplicating service would not be in a position to know if there were misuse of "fair use," say, in quotations by an author, but requiring identification and reasonable proof of ownership (such as a Library of Congress copyright certificate) would certain sound like a prudent practice and provide reasonable defense.      

(Ch. 5, p. 36, after pr. 1)        Moral rights, widely recognized in Europe and less so in the United States, prevent unauthorized misrepresentation or adaptations of an author's work. Respect for moral rights does not usually interfere with free speech. An author's wish that he not be mentioned in a publication with some slant he finds objectionable would not violate his "moral rights."

(Ch. 5. P. 37, pr. 1). To follow on an earlier note about off-the-job Internet activities, see DADT Chapter 5 Note 174b for cases where employees were fired for off-the-job Internet pornography. Employers might fear that the "pervasiveness" of (even) off-the-job Internet or even radio talk show "hate speech" or pornography could make them liable for "hostile workplace" claims from offended coworkers and customers. This extends upon Jonathan Rauch's essay on the tension between "hostile workplace" and free speech in "Officers and Gentlemen: How Workplace Harassment Rules Have Outlawed Prejudice, Destroyed Free Speech and Trashed the Constitution," The New Republic, June 23, 1997. Companies generally feel that they have their hands full preventing abusive behavior (and misuse of company computers) within the workplace, and (unlike the military!) they generally do not want to restrict employee "off duty" freedom any more than necessary in practical terms; but given the topology of the Internet they are bound to start considering regulating (in personnel manuals) expressive behaviors off the job, too. (Companies might also become concerned about "publicity rights" and possible SEC concerns over stock market manipulations; obviously employees of a publicly-traded company should never(!!) comment (even at home) about their company or any of its competitors on company-specific stock discussion "trash boards (message boards)" such as those offered by Yahoo.com. Recall, in early 1999 a software engineer in North Carolina was prosecuted for securities law violations for creating a site that had the "likeness" of a similar site from a well-known financial newsletter, and then posting a false rumor that his own employer was a particular takeover candidate.) In August 2000 there was a similar incident involving a former employee of a wire services company. When financial professionals discuss specific securities in their own writings and publications, SEC rules often require that they disclose any financial stakes they have in companies they are writing about (ABC “Nightline” September 5, 2000).  In “The Boss is Watching,” Jeff Howe, Yahoo! Internet Life, Oct. 2000, p. 104  (http://www.xmediapartners.com/) there is a report of two employees who were fired for criticizing their employers on investor “trash” boards despite the fact that they had used fake identities and had done so with their own home computers and on their own time.  In both cases, yahoo.com had disclosed the identities (for “Childers” and Aquacool_2000) in response to subpoenas (the article does not indicate whether actual libel was involved), but Yahoo has since settled with “Childers.” Howe also reports a surveillance service, eWatch, which will scan news groups, AOL message boards and editorial sites (even like this one) for “corporate activism” (eWatch has over 800 clients) and will even target a particular person’s out-of-work Internet “publishing” activities for a hefty fee.  It’s important that a “privacy right” might arguably protect anonymous Internet postings done with a person’s own resources, but not when the person identifies himself or seeks eventual commercial benefit.  On August 23, 2001, Ann Merrill reported in the Minneapolis Star Tribune that Nash Finch had filed a federal suit against 50 “John Doe’s” for “anonymous” postings on a Yahoo! trash board in which allegedly the posters gave away trade secrets and company confidential information. Nash Finch will subpoena Yahoo! for the identities of the posters, which it suspects are current and former employees, and there will be legal challenges about the right of the employer to do this.

With regard to anonymous postings, Georgia tried (in 1999) to pass a law making it illegal to post anonymously on the Internet, or even to use a fictitious screen name as on AOL.     

On February 8, 2000, the Minneapolis Star Tribune ("Search raises privacy issues," by Eric Wieffering and Tom Kennedy) reported on a court authorized search of the home (not company-owned) computers of 21 Northwest Airlines for evidence of possibly having organized an illegal union sickout. This sounds in line with other searches that may happen when there is suspicion of insider trading or selling trade secrets. Yet, attorney John Roberts was quoted as saying, "business speech is not subject to the same protections as political speech," and the story maintains that "courts have been willing to help companies crack down on so-called 'cybersmearing,' -- bad-mouthing companies or their management online."

(Ch. 5. P. 37, pr. 2) Actually, even the CDA attempted to offer "affirmative defenses" involving the use of adult screening devices according to available technology, but the Supreme Court found this provision most a unconvincing protection. The Court also held that the law was not limited to commercial providers. Finally, the Court understood that the topology (or "geography") of the Internet does not allow "zoning" that effectively separates adults and children, more or less voluntarily, in the physical world of "real objects."

Not all of the Communications Decency Act was overturned. A provision that limited the exposure of ISP’s for liability for illegal content posted by their customers (that is, including content illegal under terms of this law) was let stand.

(Ch. 5, p. 38, pr. 2) The relevance of the Opinion Rule in libel cases could be compromised if the primary motive of the writer were commercial.

(Ch. 5, p. 38, pr. 3) Congress has considered making it a crime (at least in pictures) to suggest that a minor is engaging in sexual activity even if an adult is used or the image is generated by computer. Remember the film The Tin Drum, which a district attorney in Oklahoma tried to ban on the theory that a particular bedroom scene constitutes "child pornography."  On February 12, 2001, ABC “Nightline” covered this problem of the Child Pornography Prevention Act (in the context of Spectator magazine): material  which “looks like” child pornography (that is, virtual child pornography) is prosecutable even if no child is used to produce it.  The book-novel (Vladimir Nabokov) Lolita,  which describes a love affair with a 12-year old girl, might be illegal. (There were films in 1962 (MGM/UA) and 1997 (Worldwide); the girl is 14 in the films.) What about a novel that describes a sex act with a person underage in some states even if (in the fictionalized setting) the person looks like an adult or the character commiting the crime in the plot of the novel does not know that the person is underage (an interesting pretext for a novel). Is all of this “thoughtcrime”?  What about sex education materials?  Is there a principled distinction between cartoons and “virtual reality” depictions of sex acts?  Of course, many will argue that computer generated images of children in sex acts encourages (by “mental effects”) actual sex acts against children by unstable people. This law has some of the problems of COPA (below). It will be heard by the Supreme Court in October 2001. Three out of four appeals courts have upheld it.   (Later Note: 8/31/2001 :  Here is a good reference on this Act: http://www.parrhesia.com/cp.html  It would appear from this analysis that an affirmative defense is provided if the speaker or distributor does not advertise the material as portraying sex by minors and if real adult actors are used.  However, Jerry Hall of Tate & Bywater raises troubling questions about state jurisdiction at http://www.tatebywater.com/features/099705.html.).  The Supreme Court heard oral arguments on this, Ashcroft v. Free Speech Colaition, 00-795, on Oct. 29, 2001.  See http://www.cnn.com/2001/LAW/10/30/scotus.child.porn.ap/index.html.  The movie Traffic was mentioned, and I know of others that could conceivably be affected by the law (The Deep End).

On April 16, 2002, The Supreme Court overturned this law. 6-3. Justice Anthony Kennedy, writing for the majority, said, “The mere tendency of speech to encourage unlawful acts is not a sufficient reason for banning it. The right to think is the beginning of freedom and speech must be protected from government because speech is the beginning of thought.”

The article “The Web’s Dark Secret,” Newsweek, March 19, 2001, by Ron Nordland and Jeffrey Bartholet, discusses the distinction between pedophiles and child molesters, as well as giving a frightening account of how the Internet has facilitated anonymous pursuit of underage sexual partners. Again, this will raise the question of whether unsupervised use of the Net should somehow be bureaucratically regulated by the civil and criminal systems. This piece also has a sidebar about virtual child pornography—when may Congress or a legislature “ban something because it may incite some people to do bad, bad things” outside of the imminent threat of lawless action? (Yup, I am my brother’s keeper.) For the record, we supply the CyberTipline for reporting child pornography 1-800-843-5678 or through http://www.cybertipline.com/. Online service and information providers (including this one) are soon going to required by law to report incidents that carry a reasonable suspicion of child pornography.  See also comments below about a lawsuit against NAMBLA and its ISP. “Law and Order,” the Special Victims Unit (NBC/USA) did an episode mentioning NAMBLA as some pedophiles (presented as wall street traders and plastic surgeons) are set up in a law enforcement sting, with their rationalizations exposed.

The Child Online Protection Act is already being challenged in federal court. There is controversy as to whether the Act regulates subject matter, or just specific ways of expressing adult subject matter. There is also controversy over whether the limitation of the act to "commercial" content providers protects free speech in practice, and whether there is sufficient protection from prosecution for internet web hosts who may "solicit" content providers. Plaintiffs claim that adult identification at login, at least in a way that would not hinder efficient web use of, say, discussion groups, is not yet economically feasible and that even if feasible, it would hinder communication of ideas among adults.. There already exist browser software that can interpret a rating system (similar to movies), so that content providers would then rate their sites appropriately, and that parents, when buying personal computers and providing Internet accounts for their own children, could reasonably be expected to set up these accounts with appropriate rating controls. Then adults would face no interference. But this isn't good enough for the politicians. (See the link above, or http://www.doaskdotell.com/special/copasup.htm for the 2004 Supreme Court ruling.)

COPA, in fact, provokes some interesting questions. Do commercial providers have less valid First Amendment claims than do individuals (depending perhaps upon their credibility and overall pattern of conduct)? Do commercial providers have a right to enrich their business opportunities by displaying free "adult material" (not just pornography) that conceivably can harm some children? (They didn't need the Internet 10 years ago for this!) Does government have a compelling interest in providing some "protection" to children from adult Internet content regardless of whether parents take the initiative to install filtering or rating controls, or is parental responsibility a valid component of the "least restrictive means" available calculation? OK, let me play devil's advocate! The courts will!

On February 1, 1999, Judge Lowell Reed of the Eastern District of Pennsylvania issued a Preliminary Injunction against the enforcement of COPA. At the heart of his reasoning was the observation that forced validation would hinder (constitutionally protected) access to the Internet by adults seeking non-pornographic but sexually explicit information (and not just "Playboy"), even though providers could probably "afford" the validation. The Department of Justice appealed, with oral arguments held before the Third Circuit on Nov. 4, 1999. Justices asked questions about "community standards," and an interesting theory that requiring adult verification requires a customer to self-identify (to a possibly untrustworthy site operator), a process not required when purchasing adult books in "brown wrappers." What if someone in the miltitary were "outed" by such a process? (Note: the Third Circuit upheld the Preliminary Injunction on June 22, 2000. The Supreme Court maintained the injunction on May 13, 2002 but overruled a finding that the community standards architecture of the HTM definition would be unconstitutional and remanded the decision back to the Third Circuit for findings on least restrictive means analysis. The recent appearance of  client-locating software like GeoPoint from quova.com may complicate the evaluation of the case.  See the story “The Dark Side of the Net: A Look at Legislation Attempting to Protect Children” by Tracy Baker, in Smart Computing, Aug. 2002, p. 40.)

I want to emphasize one point: I run a "tiny" publishing operation which does not now make a profit on its own, and with low volume; nevertheless, commercial format has a practical effect of giving my Internet writings much more weight and credibility. Of course, there is a possibility of future financial gains (publishing, television, or film) from this. So, if my strategy for reaching this goal means placing arguably adult materials in a public space where (particularly, younger) children may "accidentally" find them, have I done something wrong? Perhaps I don't have (in due process terms) a "fundamental right" to do this (as a commercial augmentation of individual free speech, especially when one considers that the Supreme Court does allow more regulation of commercial "speech" for consumer protection, rights of publicity, use of public airwaves, etc.). However, if I were not able to do so, the availability of certain kinds of political argumentation to the public could be lost, and this is a genuine First Amendment concern (the ability of adults to "receive" speech). The bottom line is that the government must use the least restrictive means available to keep "adult" materials away from children and that the government must consider whether voluntary measures can work. An important observation is that anyone can become a “publisher,” reaching the entire planet with an inexpensive .com domain.  See my materials on COPA at this site.

I want to emphasize how strong the First Amendment (free speech as an “explicit right”) is in the United States, compared even to western European countries. (Germany, for example, doesn’t allow any pro-Nazi speech, and Britain allows very weak defenses to libel.) For people who believe in a public policy of "kids first," it may be surprising that the courts bend over backwards to make sure that any statutory restrictions on constitutionally protected exchange among adult speakers must meet a "least restrictive means feasible" test.

On January 1, 2000 Australia will put into place a rather draconian Internet censorship laws that would severely restrict the self-publishing of adult subject matter within the country and require ISP's to filter all alien sites when pages are requested. I presume that some of this site will be blocked. Even the British Commonwealth does not have the same level of free speech as our First Amendment guarantees us. But the use of the Internet in a unsupervised manner by many ill-willed people (as with respect to Columbine) certainly brings upon the possibility of repeated calls to curtail First Amendment freedoms in this country.

There is also a Children’s Internet Protection Act (CIPA) effective 2001, now being challenged in court, and it would require schools and libraries getting federal funds to install filters for pornography and adult material. This is less draconian than CDA or COPA but still involves government sponsored censorship, using technology that cannot reliably separate pornography from adult non-pornographic (and First Amendment protected) material.  See http://www.ifea.org/, the Internet Free Expression Alliance for more details (there are other less conspicuous laws).  Another source is on eff: http://www.eff.org/Censorship/Censorware/#law

There is also a Children’s Online Privacy Protection Act (COPPA, 1998), associated with COPA, and this merely prohibits web sites from collection information it knows to be children under 13 without consent of parents.  This has not been challenged.

On May 22, 2000, CBS 48 Hours reported a story of a housewife who (with the knowledge of her husband) created a commercial Internet site with pornographic photos of herself, apparently always with credit card charges (so that it would have complied with COPA). But, after complaining about a threatening email, she was arrested by Polk County, Fla. authorities and threatened with prosecution on the theory that she had created and distributed obscene materials from within the state of Florida, and that even if visible only on the Internet, the community standards of Polk County applied.  After a year, authorities dropped the charges, and then reinstated after she called a talk show host who then humiliated the district attorney.  One might say, “She talked too much,” but how could she live with herself if she ran scared?  (I feel the same way.) The simple fact is that some people do not like the challenge that her values and freedom present to the credibility simple “religious” morality.

In July 2000, Kenneth Paulsen, of the First Amendment Center, presented a survey in which around 50% of American actually favored laws forbidding public speech defamatory to any religious group (as well as to any race).  The Anne Frank House Museum in Amsterdam offers a video with comparative audience votes on several free speech questions, where the danger that speech aimed at a particular group may encourage violence or at least discrimination by others. (In particular, the activities of white supremacy groups with respect to the Byrd murder case in Texas is analyzed.)  Again, the First Amendment in this country stops only with the threat of “imminent lawless action” but some feel that it should not tolerate “blood libel” or hatred aimed at any group, even when no immediate crime is anticipated.  Certain epithets have been used in the past to keep racial or other groups “oppressed” and it understandable that their use might be unacceptable, but where should the line be drawn in the law?  It seems that some people want to be kept comfortable by using the law to enforce good manners.  40% of all Americans, according to Paulsen, could not name a specific right enumerated in the First Amendment. 

This study was repeated with about 1000 adults by the First Amendment Center in June 2001. According to a release by the National Libertarian Party:

‘46% said the press in America has "too much freedom to do what it wants." By contrast, only 36% think there is "too much government censorship."

71% think it is somewhat or very important for the government "to hold the media in check."

39% agree "the First Amendment goes too far in the rights it guarantees." That's up dramatically from just 22% who held that opinion last year.

* 64% disagreed that "people should be allowed to say things in public that might be offensive to racial groups," with 36% saying there should be laws against such speech.’ 

(Ch. 5, P. 40, pr. 4). In fact, colonial-era English law required a "license to publish"; England in earlier times did not protect free speech and the free press; the 1689 Bill of Rights made no mention of it. The invention of the printing press was indeed dangerous to established interests who saw the easy availability of information as politically and socially destabilizing, as some people see the Internet today.

(Ch. 5: General): There have been recent (late 1999) reports of a school district in Washington State which subjected teaching job applicants to an "attitudes" test to make sure they would fit in with a diversity program. Since this is applied by a public agency, is this a violation of freedom of speech?

(Ch. 5: General): ABC News reports a site which provides instructions as to how to hack, how to get around network passwords, etc. (I won't give it here). The group says it is trying to force companies into better security procedures. Should this be protected by the First Amendment?

(Ch. 5: General): Under "natural rights" philosophy, there is a theory that free speech is subordinate to property rights. See essay by Chris Mayer (follow links).

(Ch. 5: General): The recent outbreak of "denial of service attacks," (especially "distributed denial of service attacks,") could eventually make smaller ISP's reluctant to take on controversial customers. And there is the possibility that small ISP's and domain webmasters who do not practice good security ("egress filters") could be held liable if their machines are used as "launching pads" for these attacks without their knowledge.  Again, there is the possibility that the law (statutory or common) can be used to keep small operators "in their place" and favor established political and commercial interests that have (as the consumer might see it) "legitimacy."  

(Ch. 5: General): There has been a lawsuit attempting to shut down a Teacher Review website, originally created by Ryan Lathouwers to rate teachers at San Francisco City College. The plaintiff, Curzon Brown, maintains that the site’s reviews defames teachers on the site and presumably hampers their ability to conduct courses and grade students as they deem necessary.  Does the First Amendment prohibit public criticism of those who need to maintain their position of judgmental discretion over others?  There have been similar cases in public school systems with students’ websites created with their own resources. 

(Ch.5: General): In the April 18, 2000 Washington Post, Maria Glod’s article “Mom is a vigilante hunting pedophiles on the Net,” described undercover operations by average citizens (working with police) to “entrap” pedophiles on the Internet by posing as underage. If COPA were upheld, would citizen groups start hunting down porn sites that offered free unrestricted “teasers” or even other “adult” oriented sites? 

(Ch. 5: General): HR 2987, the Methamphetamine Anti-Proliferation Act, would give the FBI the authority to order web hosting services to shut down without warning to domain owners domains with certain information about drug manufacture and use.  According to ABC “20-20,” a report by John Stossel on free speech on July 26, 2000, it became illegal during 1999 for anyone to distribute information (in print or presumably on the Internet) on how to make a “destructive device”; we don’t have the name of any such law.  The actual “crime” is called “illegal distribution of information.” The legal standard for the constitutionality of such a law involved whether it invokes the threat of “imminent lawless action” (used to be “clear and present danger”). 

In similar “chilling effect” spirit, the 1998 Digital Millennium Copyright Act prohibits not only with tampering with technical anti-copyright-infringement schemes implemented by record companies or by e-publishers but also with publishing information (as on a web site) on how to do it.  Record companies and movie studios are under no obligation to exempt “fair use” copying in these schemes. So, if I wanted to make a broadband documentary movie about boy bands and perform (without permission) just a few measures from an “N Sync” song to demonstrate some technical point about rhythm, I’d have to perform it myself.

  (Ch,, 5, General): The Boston Globe, on May 18, 2000 in a story by Judy Rakowsky, reports that the parents of Jeffrey Curley, who was murdered by a pedophile in 1997, have sued in federal court in Boston not only the NAMBLA organization for its website whose writings, according to the plaintiffs, “incited” the boy’s killer, but also the site’s ISP, which the plaintiffs maintain should have known better than to provide service to a pedophile organization. (I’ll also say that one can reasonably debate the intentions of NAMBLA, and leave that to others.)  As with the Paladin case, where a book publisher settled out of court with a murder victim’s family which maintained that the publisher had negligently published an “assassination manual” (Hit Man, by “Rex Feral,” actually a housewife who had accumulated information from popular crime sources) this appears to be a case where an unstable person may have been influenced into committing a crime by authors who did not know the perpetrator.  I am very concerned about the implications of holding the author of a piece of writing liable in these circumstances, and especially with holding an ISP liable, when the ISP cannot possibly police its customers.  This would provide an example of the “chilling effect.”  The end result of using the law this way could be to shut down many ISP’s and deny many otherwise unpublished writers the chance to start establishing themselves. (However, note that the Communications Decency Act of 1996 contained a provision to put a brake on this possibility and this provision was allowed to stand.)  How much must we sacrifice because of the crimes of a few?  It’s pretty easy to see how this logic could be used against sites that provide drugs or weapons information.  Of course, it should remain a crime to knowingly participate in a violent act by providing information to a specific party that one believes will commit a particular crime (that’s called being a accessory before the fact).  

There is another case, in which Planned Parenthood won a judgment against a site called the “Nuremberg Files” which it maintains was a “hit list” against abortion providers. The case is under appeal in the 9th Circuit (as of September 2000) and the appeals court has suggested mediation. The “threat of imminent lawless action” doctrine did figure in to the district court’s decision (with instructions to the jury to consider violence against abortion providers in the past).

The federal government is charging an Internet essayist Jim Bell with “interstate stalking” for passing information on the whereabouts of government agents with the intention of endangering them, and it has used his bizarre Internet essay “Assassination Politics,” which describes a wager system based on the deaths of government agents, as evidence of intent to incite lawless action.  

On December 7, 2000, ABC “World News Tonight” ran a story about the explosion of hate sites on theWeb, with particular focus on the way these sites attract children with enticing puzzles and games.  “White supremacy” is, after all, a concept and under our constitution it may be discussed freely in public like any other idea, however repulsive to most people. Some people will feel that a democracy must, through the ballot, make some ideas publicly unacceptable (as Germany officially does today with neo-Nazism). One speaker for one of these sites did indicate that the Web has taken control of what may be said publicly away from the “establishment.” In the long run, hate speech may well lead to more calls for control of Internet content (liability by ISPs and search engines, and outright censorship) than has pornography, whatever the favorable First Amendment rulings (as the 3rd Circuit’s upholding the injunction against COPA) so far. 

There has also been criticism of video games and other miscellaneous out-of-context stunts or violent incidents which may be imitated by minors despite warnings by exhibitors. For example, a teenager tried to imitate a self-immolation stunt depicted on a popular music network and was gravely burned. Where such media are a “proximal cause” of imitative violence or self-destruction by minors (in conjunction with a First Amendment argument) will surely be litigated soon.  

(Chapter 5: General): A major question remains is whether the government can impose different standards for open speech on the “pervasive” Internet compared to print.  Maybe, maybe not. 

(Chapter 5: General): Let us purport that there is a “don’t ask don’t tell” mentality in business, where people are supposed to pretend publicly that they are absolutely loyal first and foremost to their profession and to their organization.  But organizations and corporations are never in a position to speak the complete truth; only individuals are.  What hath our president started with his duplicity?

(Chapter 5: General): An interesting comparison to the free speech issues is posed by the Napster controversy, launched by a software package written in 6 days by teenage Shawn Fanning (Time, Oct. 2, 2000, story by Karl Taro Greenfeld).  Fanning, according to the story, is no introverted geek; the discipline of team sports (baseball) gave him the focus and concentration to write this intricate package which essentially aims to eliminate middlemen in the process of “trading” music on the Internet.  The question is whether personal use trading on this scale really constitutes copyright infringement. In the 1960s, I used to trade phonograph records with friends and we taped them; we didn’t feel it was wrong because we bought so many (classical) records anyway. Possibly Fanning can argue the same thing. But the point is his desire to provide a new productive communication capacity for the public at very low cost, much as I try to provide political argumentation at low cost and to “infect” the system with a new paradigm. By changing the economic rules we can step on the turf of others.  When does this turf consist of legitimate property rights?

On February 12, 2001, the Ninth Circuit ruled (in instructions to a lower court with respect to an injunction rewrite) that Napster must screen for copyrighted material, although record companies would have to identify what was to be screened for. This is thought to be technologically impossible—a discouraging precedent in one sense if the same reasoning could be applied in a future trial of COPA-like laws where web operators are again expected to screen visitors for age even if technologically expensive or difficult.  

Subsequent events would lead eventually to the bankruptcy and shutdown of Naptster.

A related controversy concerns Morpheus, a file-sharing service that has no index or central registry of what is being shared. Yet 29 music publishers, in late 2001, sued Morpheus for allegedly facilitating copyright infringement. A legal question may develop over whether the legal uses of such file-sharing (such as publishing one’s own music or work in a “choir” community or without needing one’s own web server for broadband hosting) outweigh the practical likelihood of “average” use to avoid paying for music and other materials. Yet the lawsuit could be construed also as an attempt by the music and entertainment industry to put a brake on competition from small self-publishers. See comment on article by Lardner elsewhere on this page.

Chapter 5: General.  Here’s a fictitious Midnight Express/Proof of Life scenario: an American runs a controversial Internet domain with adult content that is constitutionally protected free speech in this country. He gets arrested in an Islamic country for trafficking “pornography” where his domain is viewed  when he travels there on business. As after Truman Bradkey, could it happen?

Chapter 5: General. On June 5, 2001, Kevin Diaz, in the Minneapolis Star Tribune, “Old Alliances, new foes in Minneapolis porn case,” reports that some employees of the Minneapolis public library are considering legal action, claiming that their involuntary exposure to pornography viewed by library patrons constitutes a hostile workplace.  Maybe this sounds far fetched to me, but one can see the odd conflicts and bedfellows of modern society and politics: a conflict between free speech on the one hand and the right to be free from embarrassment in the workplace (a variation of the right to privacy).  Complicating this is litigation over the federal government’s attempts to deny funding to libraries that do not install porn filters for minor viewers (Children’s Internet Protection Act) and earlier litigation over library filtering in Loudon County, Va. 

Chapter 5 (General) On June 19, 2001 the Journal of the American Medical Association (JAMA) published a study from the University of New Hampshire of 1051 teens (10-17) who use the Internet, which found that at least 20% were approached with sexual proposals.  Particularly vulnerable were kids who participated heavily in chats and identified themselves, or kids with personal (non-business) web pages. About 3% experienced aggressive solicitation from pedophiles, a few of whom have been arrested by state-police led Internet stings (especially in states with higher ages of consent). The Internet offers an enormous “opportunity” for the pedophile to take advantage of his anonymity. 

Chapter 5 (General):  Attempts by Congress to enhance copyright protection on the Internet have led to some bizarre problems, such as the arrest of Dmitri Sklyarov for writing programs to circumvent software locking on Adobe product. Sklyarov had written these in Russia for an employer, and was arrested when he came to Las Vegas to discuss his decryption technique. The law at issue is the DMCA, or Digital Millenniun Copyright Act of 1998.  The most controversial section of this act is the “anti-circumvention provision,” which makes it a crime to break a software or content publisher’s encryption method. Arguably, this goes against the spirit of pre-Internet copyright law, because it would be a crime even for the purposes of purportedly “fair use.”  The DMCA also compromises “first sale” and “limited time” concepts well established in copyright law, at least for digital works.

Peter Coffee weighs in on the DMCA issue with an articule in eWEEK Technology Editor (Ziff Davis) in which he maintains that the DCMA could eventually mean government licensing of computer professionals. See “Busted for Developing without a License” at http://www.iccp.org/iccpnew/BUSTED%20FOR%20DEVELOPING%20WITHOUT%20A%20LICENSE.htm

However the DMCA exempts ISP’s for copyright liability for actions of their customers in most circumstances. See


However, in January 2003 there was a new brouhaha when Judge John Bates ruled that Verizon could be required to identify a customer who “illegally” transferred music files to other friends. There has been considerable criticism that this ruling requires ISP’s to police their customers and could cause ISP’s to raise fees to everyone to cover costs associated with file-sharing even though many customers do not use it (and not all file-sharing is illegal). The Recording Industry Association of America (RIAA) had sued for the injunction. The 1998 DMCA does not require a judge to sign off on a subpoena to identifies a suspected violator.

Newsweek, Aug. 20, 2001 has an important story, “Busted by the copyright cops,” (Steven Levy) on this case. It mentions that Sklyarov’s potential personal criminal liability comes from the fact that his program was commerciallt distributed, albeit by his employer. It also mentions a lawsuit against Eric Corley of 2600 Magazine for merely providing a web link to a site that held an copyright-encryption-bustiing program called DeCSS. A federal appeals court has this case, and it could make any webmaster who provides illegal links liable (“downstream liability”) for what sites he or she links to does.

The federal copyright law as a whole falls within the explicit powers given to Congress in Article I  Section 8 (libertarians, note!).  However the DMCA arguably gives the content owner the possibility of “protecting” facts, which are not supposed to be copyrightable. The DMA creates a shadowy concept of “para-copyright” that could be easily manipulated by content publishers or software providers for anti-competitive purposes.

The SSSCA (Security Systems Standards and Certification Act) goes even further, as proposed it would require manufacturers of digital devices and maybe software and even ISP’s to provide counter-copying devices.  This could put some enterprises out of business because they don’t have the scale to prevent unintended use by their customers. 

James Lardner provides an analysis of all this, “Holly Wood versus High-Tech” in Business 2.0, May 2002. The by-lines are “Hollywood says Silicon Valley promotes piracy. Andy Grove and others say that’s crazy. The battle over digital theft is getting ugly and the stakes are higher than you think. Disnye’s Michael Eisner and others say Hollywood will defend all its intellectual property at all costs. Silicon Valley eminences like Andy Grove say those are fighting words—if it means trampling consumers rights and squashing innovation.” The article maintains that even ability of PC manufacturers to continue offering CD write and DVD write drives is threatened. “From Hollywood’s perspective, some tech people wryly observe, the ideal PC would be a souped-up TV set, with ads and programs dubed out by the same handful of media giants that control TV today, and the interactivity limited to buying things from them.” This invokes not only legitimate copyright issues, but also turf battles over the competition from new film-makers and content providers, often very low cost and not employing union help.

Electronic Frontier Foundation weighed in on all of this with a press release:

“As Hollywood's Broadcast Protection Discussion Group (BPDG) rushes to establish a laundry-list of mandatory and forbidden "features" for digital television devices -- including PCs -- one company has called on Congress to expose the process to the "sunlight of government." Philips North America CEO Lawrence J. Blanford broke ranks with the other BPDG participants when he testified before Senator Hollings' Commerce committee on April 25th, blasting the process, calling its direction "not in the interest of sound public policy, not in the interest of the affected industries and certainly not in the interest of the consumer."

”The BPDG mandate is meant to be the kinder, gentler face of Hollywood's bid to win a veto over new technology, a "consensus" involving all interested parties (except, of course, the public, the press and the small entrepreneurial companies whose technology would be banned under a BPDG regime). While the whole world has been blasting Senator Hollings' Consumer Broadband and Digital Television Promotion Act (CBDTPA), the secretive BPDG group have been establishing a standard that bans free and open source television software and leaves a veto on new technologies in the hands of the studios.

”The end result will be a marketplace full of devices with components that have been effectively specified by Hollywood; a world where "tamper-friendly" software licensed under free/open-source licenses cannot interact with commodity PC components; a world startlingly like the one promised by the CBDTPA.

”Mr. Blanford's brave stand marks the first public indication that the BPDG process is anything but a consensus. As Philips stands up to Hollywood's self-centered assertion that only they are qualified to assess the value of new technology, we need to recognize the risks Philips is taking on our behalf.”

and provided a letter to be sent to Congress,

Then Electronic Frontier Foundation (http://www.eff.org/) provided this additional warning about proposed new legislation in May 2000

May 28, 2002 / Expires: June 28, 2002)

Imagine a world where all digital media technology is controlled by Congress and Hollywood. Senator Ernest Hollings and a powerful group of
Hollywood entertainment interests are pushing Congress to pass an anti-consumer bill called the Consumer Broadband and Digital Television
Promotion Act (CBDTPA) to bring just such a world into existence. The CBDTPA promises a world where your ability to use the digital media that
you buy may be severely limited. Legal freedoms that you have long enjoyed could drastically change. If CBDTPA passes, you may not be able

    *    Play your CDs on your desktop computer
    *    Create legal copies or mp3s of the music that you own to play in
your car, or listen to while you exercise
    *    Create mix-CDs of music you've paid for

This is not the way copyright law is supposed to work. The Betamax decision, handed down by the Supreme Court in 1984, established the
principle of "substantial non-infringing uses" - if a technology (such as a
VCR) can be used for legitimate copying, such as time shifting or
home viewing, the fact that the technology can also be used for copyright infringement does not make the technology illegal. The Betamax
principle allows technologists to create tools that can be used for good, even if they can be used in other ways. The CBDTPA breaks the
delicate balance reached between copyright holders and those making fair uses of copyrighted works. This bill, and other attempts by Hollywood to
curtail your rights, must be stopped.

What YOU Can Do Now: This is YOUR chance to voice your opposition to
CBDTPA. - Subscribe to the new EFF Action Center and send your member of
Congress an email, letter or fax. You can take action by going to:

    *    http://action.eff.org/tinseltown/

On July 25, 2002 -- U.S. Rep. Howard L. Berman (D-CA), together with Reps. Howard Coble (R-NC), Lamar Smith (R-TX), and Robert Wexler (D-FL) introduced legislation to address copyright infringement on publicly accessible peer-to-peer (P2P) networks. The bill is called the “Peer to Peer Piracy Prevention Act” (HR 5211), and gives copyright owners “safe harbor” means to enforce their rights. Critics claim that this will allow copyright owners or movie studios to harm individual home computers or even neighborhood high-speed Internet connections without proper accountability.  In 2003, individual computer users have been sued by the RIAA, which has been partially successful in the legal battle to get names of alleged anonymous infringers from ISP’s, at some cost to the ISP’s and with considerable concerns from the legal community about due process or judicial supervision. Parents could face surprisingly liability from the actions of their kids or their kids’ friends on their own home computers.

 Then, in October 2003 the MPAA chief Jack Valenti and seven major movie studios decided to ban film studios from sending free DVD screener to voting members of the academy for Oscars. The cited reason was to reduce piracy. But one wonder, why can’t voting Academy members be trusted not to pirate their free copies?  Small films on platform theater releases depend on free samples to get academy members (especially those not in major cities) to see teir films, and investors depend on MPAA attention in deciding to invest in more specialized independent films “for adults.” Could Hollywood’s real intention be to eliminate low cost competition from independents and force everyone to play by its own “lowest common denominator” numbers-driven and earnings-driven rules to attract the “average person” at a multiplex?  Another question is, why can’t independent film makers do with their own property what they want (that is, send their own DVD screeners)? That is fine under copyright but might be viewed as “bribery.” What we wonder is if this is a first step of large media interests to stifle grassroots competition from new artists with low overhead but low capital.  

Chapter 5, General:  There are also security implications from the explosion of Net publishing and discussion on the Web.  In August, 2001 there were proposals to license PC users, as a Wired News article by Michelle Delio, at http://www.wired.com/news/politics/0,1283,46096,00.html.  I go into this more at http://www.doaskdotell.com/content/hpdadt/speech.htm .

Chapter 5, General: On November 3, 2001 a Green Party official was denied boarding on a flight when her name showed up on a list supposedly because the Green Party opposes the war in Afghanistan. (letter by Kaia Svien to the Minneapolis Star Tribune, Nov. 16, 2001).

Chapter 5, General:  After the September 11, 2001 terrorist attacks, many free speech issues arose. These are outlined at http://doaskdotell.com/content/hpdadt/terorism.htm and http://doaskdotell.com/content/hpdadt/speech.htm.  One issue of interest is blacklisting on the Internet of various professors (such as Robert Jensen at the University of Texas) who had criticized America’s “fighting back:” in colorful language, such as by the site owned by the American Council of Trustees and Government (I do not want to supply the link).

Chapter 5, General: China, in early 2002, started holding ISP’s explicitly responsible for censoring content put up by their customers for seditious or subversive content.

Chapter 5, General:  For more on how intellectual property law concepts interact with freedom of speech concerns, especially in the age of the Internet, see the doaskdotell discussion on intellectual property law.

Chapter 5: General  In early 2002 the Council of Europe circulated a treaty that would require European Union countries to outlaw Internet hate speech and to require ISP’s to police customers’ behavior with respect to hate speech.  These measures were supposedly justified by the Sept..11 tragedy.  It is unclear how this would affect ISP’s in the United States or even the UK.  ISP’s take the position that they are utilities, not “publishers.” Ameican 1st Amendment standards require toleration of public hate speech. Source: Bernhard Warner, European Internet Correspondent (Reuters).  

Chapter 5: General. Feb. 2002, Electronic Frontier Foundation reports a new website http://www.chillingeffects.org/ that will publicize “cease and desist” letters from companies or media outlets to individual website owners. 

Chapter 5: General: On April 22, 2002 CNN interviewed Jeannine Granick, of the Sisters of Loreto, who was ordered by the Vatican not to speak publicly about homosexuality. She had been active in advocating gay and lesbian causes within the Roman Catholic Church/ See also notes under Chapter 8.

Chapter 5:  Housing activist Paul Trummel was jailed for disobeying a court order not to publish accusations on his own web site; another party had gotten gotten a court to issue an injunction as an “anti-harassment” order (not the same as invasion of privacy or libel). The court ruling seemed to indicate that sometimes individuals do not have the same right to publish as does the established press. Don Monkerud covered this case in the Summer 2002 American Writer (from the National Writers Union) and comments “Such rights are not dependent upon whether a person is employed as a journalist. Every citizen is entitled to publih—it’s a basic freedom of speech issue.” That is, the “right to publish” should be viewed as a fundamental right. For more, see http://contracabal.net/806-05.html

Chapter 5: There have been recent alarmist claims that consolidation in the cable and ISP industries will lead to greatly increased Internet access prices and moreover to the elimination of much self-published or non-commercial content from the Web. Arthur Stamoulis, “Slamming Shut Open Access: Internet users are ready to switch to broadband. But they may be getting a lot less than they bargained for as regulatory changes create new Internet service monopolies,” Dollars and Sense, September/October 2002, p. 14. Stamoulis argues that Internet web access will fuse with cable service and that sites will be treated by providers as if they were broadcast cable programs, and that consumers will have to pay for packages of sites.  Small business owners and individuals will, he claims, find their own domains unaffordable in a heavily consolidated ISP environment.  It is hard for me to believe yet that this would make economic sense, or even that most consumers will by Internet access bundled with home entertainment. However, the growing concern about accountability and authentication with self-published materials could add some credibility to Satmoulis’s claims.

On Nov 1, 2002 the ACLU argued in Brand X Internet Service v. FCC (before the Ninth Circuit) that an ISP should be regarded as a telecommunications provider and not an information services provider.  The concern is that an ISP could control what is published by its customers. It is not clear how this would affect a company like AOL which is obviously both, and that has not so far censored personal publisher pages by its members except for its Terms of Service. The link is


Following up on this is the Wired News story by Michelle Delio, “Indie ISP’s Fight for Survival” in April 2003, at http://www.wired.com/news/privacy/0,1848,58628,00.html, with reference to a site dedicate to protect consumers of the telecommunications industry. http://www.teletruth.org/.  The threat is that proposed FCC regulations forcing ISP’s to take responsibility for legal violations by their customers could force many ISP’s without economic scale out of business by the end of 2003. There is also a story about Verizon’s being forced to turn over the names of customers suspected of copyright infringement under the DMCA, in an article by Kaite Dean, “Online Anonymity Comes Under Fire,” at http://www.wired.com/news/privacy/0,1848,58628,00.html. But on April 26, 2003 Matt Richtel presented a New York Times story, “Entertainment Industry Loses in Web Case,” where US District Court judge Stephen Wilson argued that Grokster ad StreamCast Networks, which offer Morpheus per-to-per computing, are not guilty of copyright infringement, since they are not as involved with what customers actually do as was Napster, and since their services have many legal uses with personal or non-copyrighted materials.

Chapter 5 (General): See John Markoff , “Terror-Tracking gency Weighted, But Discarded, Plan for Reconfiguring the Internet” New York Times, Nov. 22, 2002 p. A14, regarding a Pentagon proposal to eliminate anonymous use of much or all of the public Internet. It is not clear how this could have affected ordinary personal publishing.

Chapter 5: The ACLU is also litigating a case in which a researcher claims fair use rights to see what sites are blocked by Internet filter program N2H2.

Chapter 5: The ACLU is challenging a subpoena by 2TheMart to identify anonymous speakers from InfoSpace, even those who did not criticize the company. It is also challenging, in Mevlin v. Doe, an attempt by Pennsylvania judge to quash an anonymous critic. 

Chapter 5 (General): Could someone who operates a politically or socially controversial website from this country be arrested in another country (such as an Islamic country) where such speech is forbidden if he or she set foot in that country?

Chapter 5 (General): An example of a frivolous lawsuit intended to suppress free speech was one filed in 1998 by Texas cattlemen against Oprah Winfrey and Howard Lyman, when Oprah had Lyman on her show to present the mad cow risks of inter-cattle feeding (now banned).  Here is one reference: http://news.bbc.co.uk/1/hi/world/48964.stm The Opinion Rule may have been part of Oprah’s successful defense. Another lawsuit (trademark) against her in 2001 dealt with her use of the letter “O” to identify her magazine. Rosie O’Donnell had a fight with her magazine publishers when she felt that her publishers misrepresented her values.

Chapter 5. The Supreme Court is also reviewing a lawsuit against Nike shoes (filed by labor activist Marc Kasky) for allegedly misleading claims that its overseas workers labored in safe conditions with living wages and benefits. The question will be, to what extent does commercial (as well as political) speech get First Amendment latitude (under the Opinion rule) for potentially misleading claims. California law allows suits by citizens for false advertising claims. Nike settled in September 2003.

Chapter 5 (General). On May 5, 2003 the Supreme Court held that First Amendment claims do not protect telemarketers for charities when solicitors make intentionally deceptive or fraudulent claims about how donated funds are used. However, states prosecuting or suing telemarketers must meet a high standard of proof that fraud was intentional and material to the financial “success” of the fundraising. The Opinion is at http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=000&invol=01-1806

Or (without all footnotes) at http://www.doaskdotell.com/content/illtele.htm

A federal judge in Oklahoma ruled on September 24, 2003 that the Federal Trade Commission did not have the authority to run a do-not call list. When Congress tried to remedy that immediately, another federal circuit judge in Denver (Edward W. Nottingham) ruled that it is unconstitutional (according to the First Amendment) to maintain a do-not-call list that “discriminates” against commercial speech or commercial interests as opposed to political, artistic or non-profit.  The name of the case is Mainstream Marketing Services v. Federal Trade Commission. This would have to be weighed against the right of people to be left alone in their homes. Some have suggested that consumers be able to opt out of non-profit calls, too. A better solution is to allow calls to consumers or patrons who have expressed interest in the organization, issue, product or service (such as I do by running a website.)  Nottingham wrote “The First Amendment prohibits the government from creating a preference for certain types of speech based on content, without asserting a valid interest, premised on content, to justify its discrimination. Because the do-not call registry distinguishes between the indistinct, it is unconstitutional under the First Amendment.”  Bruce Fein provided an effective rebuttal in an op-ed “Court trips over phone lines” in the September 30, 2003 Washington Times. Conservatives maintain that this is judicial invention of “fundamental rights” in a truly facetious manner. My own letter to Congressman Moran in Northern Va is at this link.

In early 2004 there was a lawsuit filed by the family of the victims of a murder in Alabama against a web designer after a death row inmate provided the designer material about the murders to the designer, apparently under the nose of prison officials. This will be a first amendment claim, as to whether the line is crossed, particularly when there is a commercial gain from a past crime. Claims include intentional infliction of emotional distress, libel, invasion of privacy, and obscenity. Apparently the contents are very graphic.

Chapter 5, General. Joshua Kurlantzick provides an interest perspective on the Internet in less free countries in “Dictatorship.com.  The Web Won’t Topple Tyranny,” The New Republic, April 5, 2004, p. 21. The author argues that totalitarian regimes (or even moderately autocratic states like Singapore) find the web an efficient way to track people for political dissent. The web, where people surf alone, is not as effective a tool as older media addressing crowds drawn together into discussion and demonstration. He also discusses the efforts by many countries to control access to political sites. I have found that my site, controversial as some of it is, does have significant accesses from countries like Saudi Arabia, Malaysia, Singapore, and even China. It does not seem that I am being blocked by governments of these countries.

Chapter 5, General (and Chap 9): The McCain-Feingold law regarding campaign fiancé reform, with limits on soft money used to pay for political ads that mention candidates, has interesting first amendment (and expressive association) problems. Here is an interesting discussion from Cato, John Samples, “The Beginning of the End of McCain-Feingold.”


Also a member of the queerpolitics listserver writes:

“The FEC has proposed imposing strict fundraising, reporting and other requirements on nonprofits that express an opinion that could be viewed as promoting, supporting, attacking, or opposing a federal candidate or the policy position of a candidate. If adopted, the effect of these rules would be to muzzle virtually all nonprofit advocacy groups – in the middle of an election year, no less.” Here is the People for the American Way link:
Chapter 5 (General): “Swede’s Sermon on Gays: Bigotry or Free Speech?  Pastor Challenges Hate-Law Restrictions”,
 Keith B. Richburg and Allan Cooperman, The Washington Post, Jan. 29, 2003, discusses the conviction (and 30 day jail term) of
 Rev. Ake Green, a Pentacostal minister in Borgholm, Sweden, for violating Sweden’s hate-speech laws in a sermon in which he
 declared that homosexuality [to be a “cancer” that] “can infect and destroy the whole society.” European countries have hate-
speech laws banning speech directed at groups (“blood libel”) and in 2002 Sweden added gays and lesbians to that list of groups.
 “Prosecutors regularly indict people for statements that would go unchallenged in the United States.” Rev. Rob Schenck, of the 
Washington DC based National Clergy Council, expressed a fear of similar laws in this country. Kevin Cathcart, of Lamda Legal
 Defense and Education Fund, indicated that religious conservatives in this country are trying to twist the Green case.
Chapter 5: (General) A recent study of high school students shows a an appalling lack of understanding of or valuation of the First Amendment. The study was commissioned by the James S. and John L. Knight Foundation. 

“Among its findings:

•  Nearly three-fourths of high school students either do not know how they feel about the First Amendment or admit they take it for granted.

•  Seventy-five percent erroneously think flag burning is illegal.

•  Half believe the government can censor the Internet.

•  More than a third think the First Amendment goes too far in the rights it guarantees.”

Chapter 5: July 13, 2005: Ali Al-Timimi was sentenced to life in prison in Alexandria VA for soliciting others to go to Afghanistan to support jihad, and for raising money for terrorist causes. Some of his offenses took place a few days after 9/11/2001. This case has raised serious First Amendment questions. Jerry Markton, “Muslim Lecturer Sentenced to Life: Followers Trained for Armed Jihad” The Washington Post, July 14, 2005. “The heart of the government's evidence against Timimi was a meeting he attended in Fairfax on Sept. 16, 2001, five days after the attacks on the Pentagon and World Trade Center. Timimi told his followers that "the time had come for them to go abroad and join the mujaheddin engaged in violent jihad in Afghanistan," according to court papers.” Some persons played paintball as part of training exercises. 
Chapter 5: On Sept. 29, 2005 ABC “World News Tonight” reported that Bill Bennett (on a call to a syndicated radio talk show) speculated about the hypothetical possibility that all black children could be aborted to reduce the crime rate. Many were offended by his statement, but Meese insisted it was rhetorical, Socratic and subjunctive (a kind of “null hypothesis”): to show that there are no absolutes in desirable policy goals, and that desirable end results can be achieved by immoral means. Meese insists he had the right to say this under the First Amendment. He did.
Chapter 5: Europe continues to have fewer free speech protections. Mohamed Kamal Mustafa, imam of a mosque in Fuengirola, authored a book “Women in Islam” in which he allegedly described abusive practices toward women. A Spanish judge found him guilty of inciting violence against women. In the US, there must be the “imminent threat of lawless action” for such a conviction based on a book or website. However, American companies sometimes help authoritarian governments (China, Saudi Arabia) suppress bloggers and tighten filters. 
Chapter 5: Teachers in Washington state filed a case before the Supreme Court to get some reinstatement of portions of their union dues used without their permission for political purposes. The case is Davenport v. Washington Education Association. Article by Mark Mix in the D.C. Examiner, Dec. 18. 2005, here. 
Chapter 5: ABC “Nightline” reported on a debate at Yale University on pornography on Feb. 29, 2008. A story by Martin Bashir and Eric Johnson is “XXXFounder: Porn is “Fantasy, not Reality.” Porn Face-off challenges assumptions, draw huge crowds at Yale, link here.  The video link is here.  

Chapter 6

(Ch. 6, P. 44, after pr. 2) Of course, we could debate the "morality" of organ selling according to a "market": blood plasma (sometimes allowed), sperm (allowed), kidneys (not allowed).

(Ch. 6., P. 44, after pr. 3)  One could actually entertain and 2nd Amendment argument against the military gay ban.  Gays, like everyone else, putatively have a “fundamental right” to belong to collective pursuits for community defense (say, like the National Guard).  Or, the 2nd Amendment could almost be viewed as an understatement of the responsibility (Swiss style) to bear arms as a contingent requirement for community defense (and indeed those who do not own weapons are indirectly protected by those who do, say, from car-jackings).  So, the military gay ban becomes profoundly insulting, its “unit cohesion” justification coming across as a euphemism for the suggestion that gays burden the defense of the country or community. 

On July 11, 2001 Attorney General John Ashcroft offered the opinion that the 2nd Amendment really was intended to protect individual self-defense for law-abiding citizens, as well as the right to function in small militias (a “right” that might come across as rather strange given the bad reputation, to say the least, of some extremist groups). There was a suggestion that the DOJ would go after some gun control laws. 

(Ch. 6, P. 49, after pr. 2). Another small issue that bears a curious contraposition to discrimination against gays is discrimination against families with children in commercial rental housing. This is now illegal in most states and municipalities, although twenty years ago it was common for commercial garden apartments (especially in southern states) to offer "adult living." Landlords complain that children are destructive and cause enormous expense after move out . This may be particularly significant for individual property owners who must rent after job transfers and protect their individual credit. (It was not a problem in my case.) In Minnesota, higher rent may be charged only when the justification based on "experience" can be documented in detail. Any well-intended statutory restrictions upon individual property owners (particularly in the ability to evict non-paying tenants) simply increases the risk of eventual foreclosure and "walking," or of dangerous assumption sales.

Still another variation occurs when individual homeowners do not want to rent to unmarried couples or to gay couples because of their religious convictions.

Chapter 6 (general): The legal ambiguities posed by the Internet and free speech could be further extended to discussions of the right to use your own property to run your own business. The April 4, 2000 issue of PC Magazine, Michael Miller’s column “Forward Thinking,” discusses a proposal by Bill Machrone that government should license ISP providers. Miller points out that ISP’s would then feel pressured to “censure” content (with respect to pornography, hate speech, and the like). Other proposals to regulate the Net are bound to surface. For example, force domains owned by individuals rather than “legitimate” corporations to follow a different naming standard or perhaps be subhosted in hometown sites (when they might not be picked up by all search engines). Another subtle problem can occur if individuals establish themselves “nationally” or “worldwide” to promote new businesses, while they are still working and have access to sensitive data (regulated by security classifications or privacy law). Conceivably, the government could claim that such persons have a “propensity” to violate confidences or privacy in order to further advertise themselves.     

Chapter 6: General  In some cases federal laws of  court opinions (Cratow in Chicago) requiring racial balance in publicly funded housing have interfered with partially privatized homebuilding projects (like those supported by Habitat for Humanity).

Chapter 6: From Electronic Frontier Foundation  (there are more details there): “Oslo, Norway - Acting years after pressure from the U.S. entertainment industry, the Norwegian government yesterday indicted teenager Jon Johansen for his role in creating software that permits DVD owners to view DVDs on players that are not approved by the entertainment industry.

January 9, 2002, the Norwegian Economic Crime Unit (ØKOKRIM) charged Jon Johansen for creating software called DeCSS in 1999 when he was 15 years old. "Johansen shouldn't be prosecuted for breaking into his own property," said Robin Gross, staff attorney at the Electronic Frontier Foundation (EFF). "Jon simply wanted to view his own DVDs on his Linux machine."   However, Johansen was acquitted in January 2003.

In a related case, in November 2002 the U.S. Supreme Court upheld a California Supreme Court ruling that Texas software author Matthew Pavlovich should not stand a civil trial in California for republishing an open source DeCSS descrambling program on the theory that he knew that his publication could cause "general effects" on the motion picture and technology industries in California

Chapter 6, general: Check the Bill of Attainder Project at http://www.isc-durant.com/tom/billofattainder/

Their side of this may be summarized: ‘The Bill Of Attainder Project is dedicated to having the phrase, "bill of attainder" defined in the law as: "A law or legal device which outlaws people, suspends their civil rights, confiscates their property, punishes or puts people to death without a trial."

By establishing this definition in the law, the people are restored in their right to private property.’

They do offer a video for sale.

Chapter 6 general: The system of free agency for veteran players (that started with the Curt Flood case in baseball) as well as non-compete clauses in employment all provide interesting sidebar discussions of property rights.

Chapter 6 general: George Liebmann, “There is another way to settle the ‘eminent domain’ debate” discusses a concept called “the land readjustment method,” which is common in war-damaged areas overseas.  Link.

Chapter 7, general. Related to freedom of religion is “right of conscience”; see http://www.doaskdotell.com/content/wchap5.htm  note 124c. 

Chapter 7, general: Regarding separation of church and state: Pastor Gregory A. Boyd, of the Woodland Hills Church in Maplewood, MN (St. Paul) has stirred controversy by refusing to politicize his conservative religious views. AOL story (may require subscription). 2006 Zondervan Book: The Myth of a Christian Nation, based on several sermons “The Cross and the Sword.”

For a story on the IRS challenging church exemptions because of politicking, see this blogspot entry.

From October 8 to October 11, 2006, The New York Times runs a series by Diana B. Henriques on religious exemptions from “fair employment laws,” property taxes, and the like, which means that secular activities pick up the tab for religion. A typical article occurs on Oct 9, “Where Faith Abides, Employees Have Few Rights.”

 Chapter 8

(Ch. 8, P. 52, pr. 4) The "family bed" is part of the resurgent "attachment parenting" approach, in which parents spend as much time with young children as possible, including sleeping with them, carrying them in backpacks, taking them to work, breast-feeding until the age of 5, and so on. It requires total psychological dedication, especially from the male parent (after "taming" by his wife). There have been reports that the "family bed" may be dangerous to children.

(Ch. 8, P. 55. Pr. 3) Frankly, the cultural war over "family values" could take a particularly poignant direction. Are the personal lives of people without dependents "less valuable" (at least from the point of view of general welfare) that the lives of those with families? Companies are going to face this question.

On November 30, 1999, President Clinton signed an Executive Order allowing states (voluntarily) to use federally subsidized unemployment benefits to pay some benefits to parents to take leave from work for the birth of a baby (or adoption). (It's not clear as of this writing whether hourly and salaried employees must use their paid vacation first; states probably can decide this.) As of the end of 1999, four states were considering using this. There are obvious arguments: payroll taxes will have to be raised, forcing people without children to subsidize others's kids (socialism??), unemployed workers may sacrifice for new parents, and small companies not covered by the Family and Medical Leave Act (requiring larger employers to grant at least unpaid leave) will wind up subsidizing "benefits" for larger companies.

One could speak culturally of an "obligation to parent." The Minnesota "Families" newssheet reports that single people are welcome to apply to become foster and even adoptive parents, even though many of the children needing parental care are severely developmentally disadvantaged and even though many single people, at least without the prior socialization of (heterosexual) marriage, would feel disinclined to take such a responsibility. 

One could imagine that, as the eldercare crisis grows, “conservative” politicians will want to bring back filial responsibility laws (see note 196 at http://www.doaskdotell.com/content/wchap5.htm) and yet continue insisting that gays and lesbians not have the legal right to marry or to adopt (to elect their own family commitments other than for parents or siblings).  (Note: filial responsibility still applies in some states with respect to Supplementary Security Income, SSI). This development would be roughly analogous to restoring conscription and keeping the military ban!  Some insurance underwriters in the long term care industry predict that 50% of working adults will be taking care of parents by 2010 (up from 8% today in 2001). 

In earlier generations, and sometimes today, unmarried children (especially women) were expected to stay close to their parents and take care of them. Their lack of control of or ownership of their own lives greatly inhibited their social and career potentials.  

Chapter 8 (General): The mapping of the human genome (announced June 26, 2000) also raises questions about “family values.”  Will prospective parents be “responsible” for genetic checking before having “defective” children? Will the possibility of genetic engineering make sexual intercourse less relevant? When will abortion be acceptable for an unborn (however recently after conception) with less than desirable genes?  What if there really is a “gay gene”?  Will we have a culture where the expectation that less capable people will be cared about becomes even weaker, since we can specify “perfect people”?  Could we some day have a Third Reich attitude about people?

 There is also controversy about intentionally having children (sometimes by insemination) to provide transplantation tissue for critically ill siblings (ABC “Good Morning America,” Jan. 11, 2001). 

Chapter 8 (General): There have been occasional reports of disputes created by sperm donors who want partial custody, particular of children of lesbian couples after they break up (H.J. Cummins, “Girl, 7, Caught in 3-way Struggle,” Minneapolis Star Tribune, Nov. 13, 2000. The article refers to the “gay-by” boom. The case discussed is that of Denise Mitten, Valerie Ohanian and donor Mark LaChapelle.  Some conservatives will argue that such inseminations should not be allowed at all, over “moral” concerns and the welfare of the children so conceived (the disadvantage they face from non having an at-home parent of each gender—but people used to make these kinds of arguments about miscegenation). Intellectually, one could pose that such births be forbidden while allowing or even encouraging gay adoptions, as a way to reduce abortion and (especially for minority children) provide more parents.  Again, whether the “system” will let gays and lesbians take real responsibility for others is critical to their not being second-class citizens or eventually being denied certain opportunities in difficult social or economic situations.  

Chapter 8 (General): Leslie Chang: “China Tries Easing Once-Brutal Approach to Family Planning,” The Wall Street Journal, Feb. 2, 2001, reports that until recently China would force women, after bearing one child, to wear intrauterine devices and apply forced sterilization after a second child. The government actually requires birth permits. On the other hand, some countries like Italy are becoming very concerned about the low birth rates (among Asian countries, especially Singapore).

Chapter 8 (General).  There is appropriate medical concern over the rising age of first childbirth in developed countries, as older women may be more likely to have children with more medical problems. And one can elaborate this concern into arguments above career over family, education before family, etc. (especially for women).

Chapter 8 (General).  There is a case in Wisconsin where a father of 9 children on probabtion for non-support was ordered not to sire children and the state supreme court upheld the order. The question concerns a putative due-process fundamental right to bear childreb.  

Chapter 8 (General).  As women get older, it is increasingly difficult for them to conceive.  Suzanne Fields provided a pointed column about this in the Aug. 13, 2001 Washington Times.  A more “competitive” society where men and women don’t value raising children as a desirable “choice” when they are still building careers makes things more difficult for women who really want to start their families young and to stay at home with the kids.

Chapter 8 (General): The notion that there is an implicit “obligation” to parent has figured into the debate over the sex scandal in the Catholic church and into the debate as to whether the Church must at least, allow priests to marry as well as “asking” sexual orientation and banning gays, military-style. The Vatican makes no bones about it: homosexual acts are a sin because of the disconnection from procreation (remember the “objective disorder” letter of 1986). In The New York Times, “Homosexuality in Priesthood is Under Increasing Scrutiny,” April 19, 2001, Laurie Goodstein wrote, “Vatican observers say that the scandal has prompted the Congregation for Catholic Education, a Vatican office, to reconsider whether new norms for psychological screening of seminary candidates should bar candidates who have homosexual orientation,” and, later, quoting Mark D. Jordan, a religion professor at Emory University from The Silence of Sodom: Homosexuality in Modern Catholicism: “An all-male celibate priesthood is an attractive choice for men who don’t want to get married, don’t want to participate in the worldy economy of families and lineage, who want to be with other men, and want to be within a system that will either help them not act out on their desires or else cover up when they do act out on their desires.” A term recently used in conjunction with pedophilia is ephebophilia, or sexual attraction to the point of activity with minor adolescents. (An “ephebe” is a young man between 18 and 20 in ancient Greece.)

CNN reported on April 23, 2002 that the Chicago archdiocese has tested priests suspected of improper sexual conduct with minors with penile plethysmograph testing. As far as I know, the military has not done this.

A judge (Marilyn O’Connor) in Rochester, NY ordered a couple with four children not to have more children until the children they have now are out of foster care. http://www.cnn.com/2004/LAW/05/08/conception.banned.ap/index.html

The Ohio Supreme Court will hear a case of Sean Tally, who has fathered seven children with five women and fallem $40000 behind in child support payments, and been ordered by Judge James J. Kimbler not to get anyone pregnant for five years. This is called a “pay up or zip up” order. Robert E. Pierre, “In Ohio, Supreme Court Considers Right to Procreate: A Man Behind on Child Support Got Orders not to Beget,” The Washington Post, May 11, 2004.

Chapter 8 General,  On January 28, 2005 “Dr. Phil” presented the story of a South Dakota couple that had adopted a native American child, only to find the birth mother able to force them to give up the child even after supposedly renouncing her rights, because of the Indian Child Welfare Act of 1978, that sees children as a collective tribal resource rather than just as citizens with individual rights in the usual sense. “By defining children as collective resources, essential to tribal survival, it stands as a significant exception to the rule of individualism in American law, where children’s best interests are invariably assessed case by case. ICWA made the adoption of Native American children by non-native people extremely difficult by erecting significant barriers to their adoption by anyone without tribal affiliation. It remains a source of ongoing controversy among civil rights and children’s advocates.” It is legalized tribalism. See http://darkwing.uoregon.edu/~adoption/topics/ICWA.html  In July 2005, there was a similar case with Kellu Buffalo with the Meskwaki Tribe in Iowa, was prevented from offering her child to a white couple in Indiana for adoption by this law.

Chapter 8 General: Other purported fundamental rights include the “birthright” of every child to a mother and father (an idea used against gay marriage and gay parents), and, with more subtlety, the right of a parent to expect blood loyalty from children and even siblings. Homosexual children feel that the demands of parents are sometimes aggressive and intrusive, but parents may believe that the child’s family responsibility loyalty was owed to them and taken “by force” – that the children “owe” them grandchildren. This observation fits into an increasing debate about filial responsibility laws.
Chapter 9

Campaign finance reform can be a double-edged sword indeed. Although reformers want it, it can not only interfere with the right of people to give their own money as they choose, but also tend indirectly to limit political opportunities to established parties and established special interests (John Stossel, ABC "20-20" February 18, 2000). 

There are proposals to allow parents more “votes” according to their headcount of children.  Do we give people the right, in a democracy, to more “votes” to make claims on the resources of others for their own needs (no matter how compelling)?

Some of the vote-count reform proposals, such as having voters enumerate second-choices and then requiring majority rather than plurality, would have the effect of making third parties more viable.

The enormous “excitement” over our “extra-inning” Bush – Gore election battle in 2000 (let’s say that Bush is the “visiting team,” and Gore keeps tying it up!)  does bring up the question of whether the “right” to vote is undermined by the electoral college.  In fact, as Harold Spaeth and Edward Conrad Smith point out (in the 1991 Harper College Outline The Constitution of the United States), the “right to vote” has only come to be viewed (in practical terms) as a “fundamental right” through political custom. (See http://www.doaskdotell.com/content/bor2note.htm.)  It is not guaranteed “directly” in the Constitution or Bill of Rights, but is granted by and controlled by the states through legislation.(However, Article I Section 2 does state that the “people of the several states” shall choose Representatives in Congress, a phrase that could legally imply a direct “right to vote.”)  Indeed, at one time states provided that only white men with property could vote, with suffrage for non-property owners, non-whites, women, and younger adults gradually (over a 150 year period) guaranteed by statutes and constitutional amendments (thus creating the impression of a “virtual” constitutional right to vote and guaranteeing a rather uniform national expectation of voting rights as implemented by states). The voting mechanism was not intended to implement pure “democracy” in the beginnings of our Republic: rather policy was to be developed through a carefully staged political participation and issue-centered debate.  Nevertheless, it is critical that when a person votes, his or her vote be counted just once exactly as intended. 

 Of course, as the Constitution is currently written, voters do not have a right to directly choose a president, and the founding fathers apparently intended to have a buffer in the choice of the presidency, partly out of deference to states and partly to prevent direct democracy “mob rule” or excessive collusion between the legislature and the executive (as in a parliament). Indeed, the Electoral College probably forces presidential candidates to pay more attention to how various issues play out with small groups of voters, although it might dilute the prospect that a third party candidate could ever be elected. Even so the constitutional amending process may well soon be tested over the Electoral College issue.  Could a convention happen?  Maybe, but it does not seem necessary; the measure can be raised first in Congress and it should be.  And states (like Maine already has) could pass laws allow proportional allocation of electoral votes.  And in Palm Beach County, Fla. (West Palm Beach) there has been discussion over whether the fundamental rights of less intact voters may have been violated by a ballot whose physical complexity did not seem excessive to many people.   See Clyde Spillenger, “Benefits of the Electoral College,” Minneapolis Star Tribune, Nov. 13, 2000, p. A13.

Indeed, it appears possible that the 2000 election will be affected by the lack of diligence by individual voters in the voting process, and there may be ultimately little the law can do to undo this. But for another view, which emphasize the past attempts to keep African-Americans from voting, see John Lewis, “We March to Be Counted,” Newsweek, Dec. 11, 2000, p. 38. 

It was pointed out on the Jim Lehrer hour that in the 19th Century voters had to cast their partisan choices very publicly (by reporting to a public place identified by colored banners) and could be fired for voting for the wrong candidates.

The Florida recount case (George W. Bush v. Palm Beach County Canvassing Board, et. al)   was heard by the Supreme Court on December 1, 2000. A variety of interlocking questions are presented.  To what extent to states have complete control over the selection of electors?  What standard must be met by states in the mechanics of elections and ballot counting to ensure due process and equal protection as defined in the 14th Amendment? May states control their own use of judicial intervention in determining electors in a federal presidential election? Article II does say “Each State shall appoint, in such Manner as the legislature thereof may direct, a Number of Electors…” but does this preclude or somehow limit intervention by a state’s courts according to the constitution of the state, or give the legislature the authority to override the courts?  What is clear, again, that the states as entities have a major intervention in selecting a president. This may include the responsibility for the legislature to select electors when the popular vote within the state for president results in a statistical tie. The Supreme Court, on December 4, 2000, vacated the Florida Supreme Court ruling, and sent it back, saying that the Florida Court had not clearly answered federal concerns about the proper recognition of Article II (particularly with respect to the extension of manual recount deadlines). Important precedents are McPherson v. Blacker (1892) and Minnesota v. National Tea Company (1940).  The language of the Opinion did reiterate the fact that states grant the “right of suffrage” but may not do so in an unconstitutional manner (with regard to equal protection, due process, race, servitude, sex, age over 18, poll tax).  However, liberal critics of the electoral process are correct in pointing out that the Executive Branch has considerable discretion in the way it implements administrative law (hence Cabinet appointments are sensitive, and not just John Ashcroft!). Furthermore, as the Winter 2001 UAW Solidarity points out, electoral representation was at one time partly based on slave counts and others who could not vote.

The volleys continued to be exchanged between the Florida lower courts, Florida Supreme Court, and U.S. Supreme Court by Dec. 11. In a second hearing, the Supreme Court was probing the inconsistency of standards for counting “undervotes” among counties of a state, as to whether this violated equal protection. Even liberal Justices like David Souter recognize that following the letter of the law now (resulting in a “conservative” outcome) may set a precedent for better human rights rulings on other issues later. To follow all the possible outcomes of this, the best detailed source (like a Bush-Libernan outcome) is USA Today on Dec 11, 2000. 

The final opinion of Bush v. Gore was rendered December 12, 2000 and has been covered exhaustively in the media.  Justice Ginsburg’s individual dissent was remarkable in that she apparently refuted the circular “safe harbor” arugment (she calls it an “untested prophecy”) used by the 5-4 “conservative” majority which seemed to hold the football and let the clock run out. The Democrats may claim indeed that they were denied their three timeouts in the last quarter.   

Since voting is a fundamental right (in the sense that it is still legislated by the states), the capability of mentally incompetent people (whether because of Alzheimer’s Disease, AIDS dementia, retardation or any other incapacity) is becoming controversial. Some states have laws regulating the ability of mentally incapacitated adult to vote, as when they are assigned legal guardians (who can answer for their contracts or debts), but they are unevenly enforced. See Shankar Vedantam, “Dementia and the Voter: Research Raises Ethical, Constitutional Questions” in The Washington Post, Sept. 14, 2004, p. A1.

Walter Williams, in “The Perils of No Tax Liability,” (The Washington Times, Sept. 16, 2004, p. A20)  suggests that every adult American should get one vote for every $10,000 per year that he pays in federal income tax. He quotes James Madison: “It is nevertheless certain, that there are various ways in which the rich may oppress the poor; in which property may oppress liberty; and the world is filled with examples. It is necessary that the poor should have a defense against the danger. On the other hand, the danger to holders of property cannot be disguised, if they be undefended against a majority without property.”

General: Imagine, if you will, a thought experiment in which adults with dependents are given more “votes.”  (Of course this may go back to times, early 19th Century, when property owners had more voting power and blacks counted as 3/5 of a person…)  This could liven the subtle but growing debate about “family responsibility” (or even filial responsibility).  

Constitutionally, this would be murky. There seems to be nothing direct in the Constitution to prevent states from doing this with respect to their own laws (with state constitutional amendments – although maybe you would get back to Romer v Evans type issues). For national elections to the Senate, this might be possible, for the House, Article I Section 2 in conjunction with several amendments (especially 15, getting rid of the original 3/5 clause for slaves) it would still seem to be one adult, one vote. But you can always contemplate amendments….

  Chapter 10

(Ch. 10, P. 63, after pr. 5)    The Preamble to the Constitution contains the phrase, "promote the general welfare." Indeed, this is legally a legitimate function of even the federal government (we can argue about explicit powers as listed by the founding fathers) and could be construed by social conservatives (or liberals!) as a warrant to "legislate morality" as a prerequisite to "ordered liberty." But "general welfare" historically (if not ideologically) tends to relate to how well one group or constituency (nationality, race, religious or cultural group, or income level) when compared to others. "Morality" of personal actions (personal accountability) becomes confused with loyalty to the immediate needs of one's group. Debate tends to concentrate on how groups treat each other than on how individuals do. After all, when a government does something wrong, it is usually the result of ego-mongering among those in power.

Chapter 11

(Ch. 11, P. 67, pr. However, when the Supreme Court articulates the notion that some kind of conduct subsumes a "fundamental right," it usually resorts to either the Fourteenth Amendment or one of the first eight amendments, and not specifically the Ninth Amendment. The Fourteenth Amendment incorporates the notion of "substantive due process" (with respect to taking away "life, liberty, or property") and applies it to the states as well as the federal government. A similar provision in the Fifth Amendment generally applies to actions taken by the federal government (such as Bolling v. Sharpe, 1954, dealing with segregated schools in the District of Columbia, then controlled completely by Congress). The Ninth Amendment is generally not regarded as "incorporated" by the Fourteenth; although, in Griswold v. Connecticut (1965) Justice Arthur Goldberg did refer to the Ninth Amendment as an important and specific buttress for the discovery of "penumbras" from other specific rights (as articulated by Justice Douglas). Were there no due process clause in the 14th Amendment, however, it is likely that the 9th Amendment would be used in the attempt to apply a "due process clause" to the states. The need to appeal to "tradition" in extracting "fundamental rights" (as the Supreme Court found lacking in support of a full right to sexual privacy in Bowers v. Hardwick (1986), stems from the controversy of textualism, interpritivism and "original intent."

(Ch. 11, P. 67, pr. 3) Under strict scrutiny, fundamental rights may be abridged to meet a compelling state interest as long as the least restrictive means available is adapted by the state to achieve its necessary end. This observation can be especially important in First Amendment cases. We could debate the notion that for some rights, no abridgement will be allowed by the state under any circumstances. For example, we could study this notion with respect to the draft.

(Ch. 11, P. 68, 14th Amendment). The controversy over hate crimes laws provides a good intellectual exercise in the application of equal protection. "Libertarian" principle would say that all crimes of a particular heinousness should be punished the same regardless of the victim. HRC (Human Rights Campaign) calls me and when I point this out, HRC agrees with me "privately" and then points out "political reality," that juries have been unwilling to punish severe crimes against gays. And, true, the law allows "intent" (as compared to "motive") to be used in determining the severity of criminal conviction and sentence. So I say, abolish "homosexual panic" and "Twinkie" (the Harvey Milk and George Moscone case) defenses.  See also the discussion at http://www.doaskdotell.com/content/endarev.htm

(Ch. 11, general). Graham Boyd and Jack Hitt provide a cute expose on the compromise of the Bill of Rights by the war on drugs, in Harper's (December 1999). For example, unreasonable search and seizure occurs, the right to confront accusers is lost to snitches (Illinois v. Gates, 1983), and the will of voters in several states to allow medical marijuana is ignored. In 1989, an astonishing 62% of Americans were willing to give up some civil liberties to wage a "war on drugs"!! This enclosure presents a copy of the original draft of the Bill of Rights as proposed in 1789 (twelve articles). See note for Appendix 9.

The debate over drugs does bring up the “am I my brother’s keeper” problem. Phenylephrine HCL is a legal decongestant that is effective as nose drops. In extreme quantities it may raise blood pressure and act as an amphetamine, and may be confused with illegal amphetamines on drug tests. But, in chemistry, small changes to structure mean big changes in mind-altering effects. A similar compound, Pseudoephedrine HCL, is used in non-drowsiness-producing nose-drops  The substance is useful in making methamphetamine. Should over-the-counter neo synephrine and Sudafeds be banned eventually because some people will use it? What about No-doz, that I remember students using even when I was in high school. Already in a few states (like Iowa) people have to sign to buy certain decongestants. Some teenagers overuse legal patent medicines in a practice called skittling.

(Ch. 11, general).  Libertarians often hold that unregulated immigration and emigration ought to be a fundamental right (of course it is not, as most countries want to protect their own residents from “undesirables” or from competition for jobs).  A good example is provided by studying the fix of high-tech workers brought over here on visa by companies and then “indentured” to the employers, and particularly vulnerable to possible deportation after a sudden layoff.  (Brad Stone and Fe Conway, “When a Pink Slip Means Immigration Limbo,” Newsweek, May 14,2001.)   

Appendix 1: On the Proposed 28th Amendment, I would add to provision 12 the phrase, "… and without undue hindrance to legitimate adult communication." This would be necessary to properly meet the 1998 Child Online Protection Act.

Appendix 5

(Ap 5, P 75, after pr. 5) The Fair Labor Standards Act actually puts dependent-less salaried exempt employees in the position of potentially being required to put in unpaid overtime for the benefit of those with dependents or families to support, regardless of state laws prohibiting discrimination on the basis of sexual orientation or marital status. Would gay marriage help alleviate the discriminatory effect on gays. ENDA conceivably could require change in other labor laws.

Appendix 8

(Ap 8, P 84, pr. 5) Men, especially, are encouraged to use marriage as a cover for their own cultural limitations. That is one of my gripe's with "family values": that relationships are such an inviting cover for one's own weaknesses. Adult sexuality is supposed to become the bridge to "fitting in" to serving a larger purpose that will provide a support network and make one needed; it is not supposed to be "misappropriated" for vicarious "creative" purposes. But, come on now, is it healthy to predicate a sense-of-self upon committed partnership (marriage) with another?

Appendix 9

(Ap 9, P. 86, pr. 2) A couple of other significant events "about 160" years ago: James Madison's death in 1836 (this bemused me), and the Amistad case (1839 through 1841, the film discussed in Chapter 3) in which slaves were "freed" and returned to Africa after the escaped from a Spanish slave trade ship. The Amistad represents the beginning of the time when slaves began to understand, under the paternalistic slavery economic system in the South, that they really should have a fundamental right to freedom. Until we all had the fundamental right to person freedom, one cannot really say that the Bill of Rights worked. (A good friend's email described the 1997 Amistad film as "libertarianeseque.")

©Copyright 2001 by High Productivity Publishing, subject to fair use. Questions, contact  Jbouska@aol.com

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