So, based on the opinion in the “Bong Hits 4 Jesus” case I have a simple question, which I’ll only use a short amount of space for.
If the decision says that speech of a political nature is allowed, then technically wouldn’t a banner or t-shirt proclaiming Bong Hits 4 Jesus, not be a comment on the outcome of the case?
In 2006, Human Rights Watch named Google, Yahoo! and Microsoft as three of the worst offenders of freedom of speech for their role in helping to censor Chinese internet content. Google.cn (Google in China) censors the “Tank Man” image from the 1989 Tiananmen Square protest from its search engine so that Chinese citizens searching for “Tiananmen Square” bring up fairly innocuous images and descriptions of Tiananmen Square and Microsoft has offered a blog tool that “generates an error rejecting ‘profanity’ when a user includes the word ‘democracy’ in the title of a blog,” according to Jonathan Zittrain and John Palfrey of the Berkman Center for Internet and Society at Harvard Law School. Most deplorable has been Yahoo!’s compliance with the Chinese government in implicating several Chinese journalists for their participation in either voicing online dissent or using the internet as a means of communicating to people outside the country about the conditions they find wanting.
The study of international politics often leaves little reason to have faith in international norms and principles—international norms and principles like the Declaration of Human Rights and the Kyoto Protocol which have a relatively weak ability to coerce signatory countries to uphold their agreements and to create real costs for nonsignatory countries to remain “outside” the bandwagon of signatory states. Privacy principles, established under the Organization for Economic Development and Cooperation (OECD) in 1980, fail to be upheld in the modern-day, by the governments of member countries because the OECD guidelines, while well-meaning, are constructed too broadly and vaguely for there to be a clear demarcation between violating those principles and carrying out those principles while bearing other national interests in mind. And even if someone, like Human Rights Watch, could decry that a country conducting internet surveillance on its citizens was violating the OECD Privacy Guidelines, what would come of it? There exists no organ to enforce compliance with international standards like the OECD Privacy Principles.
Added to the problem of enforcement is the amorphous and quickly changing scope of cyber law, where privacy acts and precedents in communications and electronics regulations can be either ignored, discarded, or blurred because the “internet” is the new frontier of communications and technology, where new challenges and opportunities to interpret—or misinterpret—the law and prior norms abounds.
In light of all of international governance’s prior failures, I do acknowledge that in the absence of real enforcement mechanisms, the simple act of signing onto an international agreement may create reputational costs in an iterated game theory scenario that would induce a country to comply with norms and standards:
For example, if Country A were to default from an international standard that a group of other countries adhered to, Country A could be blackballed out of important trading deals that are important to its economy. Thus, there would be a strong economic incentive to stick with the agreement. This is generally how the World Trade Organization (WTO) is supposed to work. And in general, this method of using economic incentives to induce “good behavior”—or democratization—has been painted in the West as a success of neoliberalism.
But despite the iota of faith in international law that I have, I think that the strength and potential in neoliberalism lies not within the construct of international laws developed by state governments banding together in economic arrangements like the OECD or the WTO. The new frontier for international governance and the creation of new norms for “good behavior,” in my opinion, lies within multinational corporations. Multinational corporations span more publics than can traditional state governments and can infiltrate many more close-off societies than well-meaning non-profit humanitarian agencies that are barred access by authoritarian governments fearful of the private agendas that humanitarian agencies bring with them through the pervasive arm of market forces.
One project that I think holds particular promise is the “principles project” being developed under the advice of the Berkman Center of Internet and Society at Harvard Law School. By the end of 2007, several large corporations with stakes in cyber law and internet governance, including Google, Microsoft, Vodafone, and Yahoo! met with groups like Amnesty International, Human Rights in China, and Reporters Without Borders to discuss how to draft a framework intended to adjudicate the two interests that have been traditionally opposed—generating profit and adhering to human rights.
The project is intended to follow the footsteps of Leon Sullivan, one of the fathers of the concept of “corporate social responsibility” who published the “Sullivan Principles” in 1977 to ensure nondiscrimination and the protection of human rights by companies.
Following the publication of the “Sullivan Principles,” the world saw a rise of corporations rising to the challenge of adopting the “Sullivan Principles” in the attempt to more clearly define their responsibilities to their stakeholders and their workers, and as companies bandwagoned to adopt these principles, it became a reputational cost for those companies that did not adopt the principles to be seen as legitimate by their shareholders.
I think that developing “web principles” is a step in the right direction for the amorphous state of internet governance. If enough major internet corporations go on board to adhere to principles that prohibit corporate complicity with internet censorship, deciding not to do business with closed information societies in China and other countries, it becomes clear that in the end, state governments will be the ones to buckle. Governments will not be able to afford the economic costs of having inferior technology and communications networks, and they will have to make significant concessions to the corporate ideologies of the companies providing technology and communications services.
This is the new frontier of internet governance—governance by major corporations. But this is not a hegemonic rule of the Googles and the Microsofts, but governance scheme largely tempered by the democratic-minded markets which they serve. Most of the impetus for creating a “principles” framework came from the public backlash from stakeholders to Yahoo!’s and Google’s efforts to censor the internet in China. As human rights remains a significant concern for many stakeholders, it is clear that the market forces of neoliberalism will continue to give economic incentives for companies to adopt more “socially responsible” means of conducting business.
Today brought a decision in the “Bong Hits 4 Jesus” case, Morse. The ruling was 5-4, and the Alito concurrence that was joined by Kennedy will be controlling in the case, not the opinion of the Chief Justice. SCOTUSblog has preliminary thoughts on the holding:
Morse is a very limited holding — essentially limited to the drug context. The Alito concurrence, joined by Kennedy, is controlling. He writes: I join the opinion of the Court on the understanding that (a) it goes no further than hold that a public school may restrict speech that a reasonable observer would interpret as advocating illegal drug use and (b) it provides no support for any restriction of speech that can plausibly be interpreted as commenting on any political or social issue, including speech on issues such as ‘the wisdom of the war on drugs or of legalizing marijuana for medicinal use.’”The opinion of the Court does not endorse the broad argument advanced by petitioners and the United States that the First Amendment permits public school officials to censor any student speech that interferes with a school’s “educational mission.” See Brief for Petitioners 21; Brief for United States as Amicus Curiae 6. This argument can easily be manipulated in dangerous ways, and I would reject it before such abuse occurs. Speech advocating illegal drug use poses a threat to student safety that is just as serious, if not always as immediately obvious. As we have recognized in the past and as the opinion of the Court today details, illegal drug use presents a grave and in many ways unique threat to the physical safety of students. I therefore conclude that the public schools may ban speech advocating illegal drug use. But I regard such regulation as standing at the far reaches of what the First Amendment permits. I join the opinion of the Court with the understanding that the opinion does not endorse any further extension.[emphasis author's]
Thankfully the Court rejected the Government’s contention that anything that interferes with the ‘educational mission’ of the school could be censored. Clearly such a holding would mean that any protest would probably be against the educational mission of a school, and even worse could effectively render student debate/protest of educational issues at their own school as unprotected speech.
Even the Chief Justice said that had the banner conveyed any sort of political or religious message it would be acceptable. That speech about the political debate around criminalization of drug use or possession is protected, but viewed the current case as a celebration of illegal activity.
The controlling opinion here does worry me, it’s clear that they went to great lengths to say that this was a very limited holding. That this only dealt with the encouragement of drug use, and that such regulation should be at the “far reaches” of what the First allows. However, too many outstanding issues remain.
The opinion makes mention of debating medical marijuana usage, or other politics surrounding drugs as long as it doesn’t advocate their illegal use. This part really bothers me because the holding seems vague enough to invite reckless censorship by school officials, and as this case was just decided it will be interpreted by District and Circuit courts.
I want to know when an argument for the legalization, decriminalization, or use of marijuana as a medical substance shifts from a political discussion and into an argument for drug use. It seems too vague to me, in saying that medical marijuana has clear benefits, is that not encouraging its use, perhaps by individuals who have heard this argument and may suffer from symptoms that medical marijuana may help? Is the distinction that it is assumed that medical marijuana would be a legal enterprise and so would be equivalent to student speech advocating the continued use of anti-depressants? However, with abuse of pharmaceuticals on the rise, could even that be considered promoting drug use? Or what if a student simply says, “I think marijuana should be legalized,” quick reading of the opinion suggests that would be protected, but interpretation by lower courts can once again force the issue.
In regard to student speech, I believe that full First Amendment rights should be extended to students attending public schools. The object of any education is to create a well-rounded member of society. When it comes to their role in civics, instruction should not be limited to a classroom discussion and memorization of the Preamble to the Constitution. Being able to practice those rights is crucial to the development of a citizenry that truly values freedom.
Students need to debate complex and often gray area issues about politics and social situations in their education. But outside of teacher led discussion, students must also be able to practice such freedom within the school itself and in their discussions with one another or in criticism of teachers and curricula.
I hope that the inconsistencies I have seen aren’t abused and that further cases aren’t necessary. But as it stands, I think that it is inevitable that a challenge will occur, though it will be against the interpretation of the holding. This is another decision where Kennedy should have sided with the minority, and simply said in his opinion that schools need to work within the community and alongside parents to handle issues like these, but instead, with the slam of a gavel, the ability to broach the controversial at school is now curtailed, even if only in reference to taking bong hits for Jesus.
Great article by Bob Herbert on modern day slavery. I do a lot of work for the <a href=”http://www.polarisproject.org target=”_blank”>Polaris Project, which is a great NGO working on this issue. It is run by two Brown graduates who are very dedicated to this issue. To clear up the most common (and annoying) mistake about Trafficking:
In the Trafficking Victims Protection Act (TVPA) of 2000, sex trafficking is defined as: “the recruitment, harboring, transportation, provision, or obtaining of a person for the purpose of a commercial sex act.” Also defined in the TVPA, the legal definition of “severe forms of trafficking in persons” is:
It is important to note that nowhere in the TVPA requires that victims be from other countries or cross borders. Hence, trafficked persons can be from other countries as well as from the same country where they are trafficked. Domestic sex trafficking (or internal trafficking) definitively involves the actions, means, and purposes that meet both the definition for sex trafficking and “severe forms of trafficking in persons,” including elements of recruiting, transporting, and obtaining; elements of force, fraud, and coercion, as elaborated below; and the inducement of commercial sex acts.
If you don’t know about Human Trafficking or how big a problem it is, I implore you to read Herbert’s column (if you have TimesSelect) and to go through the Polaris Project website.
We’ve been looking since the dawn of time for a way to stop the perpetual motion machine of socioeconomic stratification.
Is the secret dispersal?
If so, should we force it?
So it turns out democracy is not as thorough as we might have hoped. Ask yourself, though: How many of the five first amendment freedoms could you name?
Kansas Attorney General Phill Kline has a tremendous amount of power in addition to too many ‘l’s in his name. The linked Slate article follows on the heels of a NY Times piece, neither of which (surprise surprise, given the sources), is what you’d call complimentary.
You won’t call me that, either. Personally, I’m used to conservatives being “strict original intent” kinda guys for the purposes of interpreting the Constitution. Certainly “strict adherence to and respect for the law” types, at any rate. And here’s Phill Kline, conceivably the most conservative man in a conservative state, fiddling with the rule of law to please himself. For those who haven’t read the article, this is the man who subpoenad 90 women’s abortion records, and is trying to outlaw teen sex, both in an attempt to weed out child abuse in the state of Kansas. Slate’s analysis is masterly, and I won’t repeat it here, but it’s pretty clear that he’s going after abortion clinics.
One wonders about the separation of powers when Presidents avow “signing statements” and state AGs interpret the law however they damn well please in order to stamp out their pet moral peeve.
I haven’t heard about any outcry in Kansas, and I know that the kids who might be thrown in jail (or juvee) as a result don’t have a vote, and therefore won’t be attentively courted by public officials in the upcoming election. My instinct here is to say that Phill Kline is everything wrong with our nation’s understanding of the rule of law, and that he should be fired.
But I’m just one man, I live hundreds of miles away, and I’m not the people of Kansas. Who knows–maybe they really do think it’s for the best.
It may seem like I’m beating a dead horse here, but unfortunately I’m one of those closet libertarian types. I wonder why won’t Bush allow a secret panel of the Senate Foreign Intelligence Committee to review the findings?
Of course for those of us who care about the rule of law the results really are secondary to the means if they were illegal especially when reasonable and efficient means (FISA) existed for the same purpose. But, if as the President contends these wiretaps provided us with needed information, and did not spy on Americans needlessly then why not allow the Senate to view the documents?
The idea that our government can’t operate with classified information is pretty ridiculous when Congress has been required to do so it has obliged. We still haven’t seen all the Abu Gharib photographs yet. If this program is so vital, so important, and so successful then Bush should prove to the Select Secret Committee just that, and do so through revealing the details to them confidentially. If, however, the Senate were to find evidence of abuse and illegality then they would and must come forward to their colleagues in the House revealing only the data that is illegal. The information that is useful for our protection would not need to be released anyway since it would prove nothing.
The ball is in your court Mr. President, why not prove just how useful your illegality is?
I’m usually a fan of the Becker-Posner Blog, and occasionally of the opinions of the titled author, 7th Circuit court judge Richard Posner. He’s a prolific author who writes volumes of popular jurisprudence, including today’s piece for The New Republic defending the NSA wiretap program. What if it works, he asks? Two problems.
When Posner says that “Law in the United States is not a Platonic abstraction but a flexible tool of social policy,” I wonder why a prominent jurist like himself would not see how some (many?) value upholding the law for it’s own sake. As Jon Margolick mentioned to me earlier today, it is the reason why drug dealers get off on procedural technicalities–isn’t the important part that the law maintain its integrity, not that we advance the social policy of ridding our society of drug abuse? Years from now we want procedural justice to still mean something, and that includes making sure that the executive branch is not de facto excused from their misdeeds. Because the President is not above the law, it is indefensible to set a precedent that he may flout laws he dislikes–just because he wants to.
A second problem, as Posner alludes to, is that we can’t know the success of the program due to secrecy limitations. The results of the NSA program, including whether it has or has not thwarted attacks, cannot therefore be used in evaluating the domestic wiretapping policy. But that’s not the point: the question of successful (or even of good) policy is distinct from the question of legality. It looks like the administration (and Posner?) is trying to make the policy logically antecedent to the question of law. But if it can be shown that eavesdropping on international-domestic telephone conversations has successfully thwarted terrorist attacks, then perhaps a case can be made for expanding the legal boundaries of wiretapping: amend FISA, or have Congress authorize Bush’s program. The repugnance of the program mostly centers on how the (largely) unchecked executive branch has thwarted the limits imposed by FISA, and in the process, has probably broken the law. The architects of the program, if they knew they were breaking the law, need to be held accountable, now. I await Specter’s judiciary hearings with bated breath.
(I’m comforted by Posner’s sensible suggestion for a new rule on FISA that evidence gleaned through the wiretapping programs only be available in national security-related cases, and not, as he says, cases involving people who are defrauding the IRS. Safeguards like this, which would prevent the Bush administration from overreaching and gobbling up more law enforcement powers, make the legal use of wiretapping programs seem, at least on their face, less onerous.)
Jack Balkin points out, via a friend, that the Iraqi Constitution guarantees liberties we do not enjoy. And, in spite of the obtuse commenter on that post, the Iraqi Constitutional provision in question does not change in the face of war.
In what other areas is our democracy deficient? We’re clearly exporting an inexpertly crafted good–though we tout democracy as the be-all and end-all of freedom, it’s far from perfected here. Some questions, then: What does ‘democracy’ mean? Ought religiously-based democracies and secular democracies to share the same word? How specific are we (or, perhaps, how specific was President Bush in his second state of the Union) in referring to the “spread of democracy”? Are we comfortable not having liberties guaranteed to citizens of other nations? Can we still be a city on a hill if we compromise our own liberties for security?
And, because I would hardly be a political blogger if I let this opportunity pass, what do we make of Ben Franklin’s assertion that “Those who would sacrifice permanent liberties for temporary security deserve neither liberty nor security?” Does that question fit here?
I obviously think so. How about you?
This article comes in response to Will Saletan’s op-ed in the NY Times regarding the abortion debate, and I think it rebuts his points pretty clearly. This isn’t to say that he isn’t correct, or that this article is. The interesting thing about this exchange is that Saletan puts forth what he claims to be a new argument in the abortion debate, and the Feministe blog post effectively shows that it not only isn’t new, it’s old.
This raises the question: Given how reasonable this argument seems to be (i.e., “Abortion should be quick, accessible and rare”), and how much of the American public agrees with it….why are there such vicious sides taken in the abortion argument? Nearly everyone agrees that abortion is sometimes the best of bad options. Nearly everyone agrees that abortion is never an enjoyable or desirable outcome. Nearly everyone agrees that we should be doing more for sexual education and pregnancy prevention. Why, then, do we appear to be so far from a consensus?
The answer, I think, lies in the inevitable specialization of a two-party political system. As we come to identify with a particular side, we adopt that side’s positions. Over time, we forget the nuanced distinctions between ‘our’ position and ‘theirs’, and we know simply that ours is right and theirs is wrong. Once the nuances are gone, we slowly boil the opposing argument down to a sound byte: “Pro-choice” or “pro-life”, for example. And because of market specialization–because Democrats have blue news sources and Republicans red ones, and likewise for the political persuasions of friends, family, and neighbors–we never hear the heartfelt, complex and (all too often) shockingly similar arguments from the other side.
The irony is, of course, that I’m posting this on a blog dedicated to Democrats. The message must be that if you’re reading this, you should find a conservative to post on our other topics. If you’re a conservative, post us your favorite blogs, and please–please!–leave your opinions here for us to read.
The two-party system suffocates in its own design if we do not exchange ideas. Let’s not let that happen.
Bush is back on the offensive this week defending his illegal spying program. One wonders that with Democrats not sounding the attack horns so loudly, distracted by Alito, why such the loud defense from Bush? It seems to me that they know they’re in too deep, and relying on sketchy legal reasoning.
He said he “had all kinds of lawyers review the process” to ensure it didn’t violate civil liberties or the law. And he insisted that a recent Supreme Court decision backs his contention that he had the authority to order the program through a resolution Congress passed after the 2001 terrorist attacks that lets him use force in the anti-terror fight. “I’m not a lawyer, but I can tell you what it means: It means Congress gave me the authority to use necessary force to protect the American people, but it didn’t prescribe the tactics,” Bush said.
“All-kinds,” eh George? Look I don’t think you need to be a lawyer to be President, but can you at least be a little more specific when discussing the law, it is after all what you’re supposed to be enforcing as President. It seems that the defense will take on one that has been used in the past, and has failed in the past. That because it is a matter of national security the President doesn’t have to follow the usual rules, and must act as he sees fit to protect the nation. Harry Reid hit the nail on the head when he said “We can be strong and operate under the rule of law…These are not mutually exclusive principles — they are the principles upon which our nation was founded.”
What is even more frustrating about the entire thing is that the FISA court, which was a court that handled surveillance requests in private, was established for just this kind of wiretapping. The FISA court allowed government to present information to a court off the public record and receive a warrant. The FISA court was not exactly stopping the government from investigating terrorists, on the contrary it long supported most Presidents and their requests. Now, however, the standard that Bush’s Justice Department presented was so low that FISA wouldn’t approve it, and so Bush circumvented the entire legal process.
The only other President who I can recall who tried to use the national security argument as openly as Bush is doing was none other than Richard Nixon. For a bit of history Nixon’s lawyers contended to the Court that they could use information obtained by warrantless wiretaps in court, since they didn’t need a warrant if they acted in the name of national security. The case is one of my favorites perhaps because of its unique name: United States v. United States District Court. I learned of this case in Freshman year when I studied the work of Arthur Kinnoy one of the nation’s most famous civil rights lawyers. This case was decided unanimously 8-0 (Rehnquist had to recuse himself as he prior to appointment was the architect of this theory), that the President did not have this type of unfettered power to spy on Americans.
The freedoms of the Fourth Amendment cannot properly be guaranteed if domestic security surveillances are conducted solely within the discretion of the Executive Branch without the detached judgment of a neutral magistrate. Pp. 316-318. Resort to appropriate warrant procedure would not frustrate the legitimate purposes of domestic security searches. Pp. 318-321.
It should be important to note that this case deals only with domestic surveillance and the issues of national security in the domestic realm and not internationally. FindLaw however has put together excellent resources for case law on the Bill of Rights, and in particular the Fourth Amendment. In their annotations they find this to say regarding the use of wiretaps in national security:
The question of the scope of the President’s constitutional powers, if any, remains judicially unsettled. Congress has acted, however, providing for a special court to hear requests for warrants for electronic surveillance in foreign intelligence situations, and permitting the President to authorize warrantless surveillance to acquire foreign intelligence information provided that the communications to be monitored are exclusively between or among foreign powers and there is no substantial likelihood any ”United States person” will be overheard.
And so of course we can in many ways come full circle, because Rehnquist who was “just a lawyer” for Nixon could be compared to Roberts and Alito who were “just lawyers” for Reagan. The reason the Alito nomination is so important is because the issue of presidential power, as was brought up at the hearings, will be crucial into whether or not the truth of Bush’s program is seen for its unconstitutionality and blatant disregard of FISA and the work Congress and the Judiciary have done to provide ample, expedient, but most of all lawful resources for the President to use in protecting our country.
We know now that this program has in fact overheard the voices and conversations of persons of the United States, in this case a pacifist group in Baltimore, not exactly your group of jihadists, and in fact a waste of resources that could be used to find said jihadists. Congress gave the executive a wide range of powers after 9/11 and did so in the PATRIOT Act. That Bush is relying on a resolution of force against Iraq and Afghanistan as the basis for spying on American’s is simply ridiculous. I wonder, and perhaps someone else could answer this, if Bush justifies any spying done on Americans with the resolutions of force, would that not be a violation of posse comitatus? At every stage the Congress has provided for what the executive can and can not do in regard to surveillance in America, and I think everyone would agree they’ve been pretty generous.
When Congress has saw fit to give the executive further powers to protect the nation it has acted both with the PATRIOT Act, and years earlier with the establishment of the FISA court. This recent trampling of civil liberties seems to be the final straw for members of Congress of both parties who still believe that the oath they took to uphold the Constitution actually means something. Now let us hope they do something about it.
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