March 8, 2006
Free Speech vs. Pain
Philosopher of Law Ronald Dworkin has a very nice short piece in the NYRB about the Danish cartoon debacle, The Right to Ridicule. It basically recaps about all the things smart people have said about this episode, but in a concise manner. For example, he leads off by noting that "Reprinting would very likely have meant—and could still mean—more people killed and more property destroyed." But he goes on to consider the risk that this "will be wrongly taken as an endorsement of the widely held opinion that freedom of speech has limits, that it must be balanced against the virtues of 'multiculturalism,'" and hails free speech as necessary for a democracy. If (like me) you were dismayed by this whole affair but remained unclear on what to think about it, Dworkin offers clear and forceful arguments for distinguishing why the international printing of the cartoons in solidarity was ridiculous, from why their printing should be defended in principle.
Posted by tony at 12:27 PM | Comments (0)
January 22, 2006
Speaking Freely
If you were on any Bay Area Rapid Transit (BART) trains or in any stations recently (which I certainly wasn't), you might have noticed some ads from a rather provocative campaign (via FindLaw):
The ads criticize Roe v. Wade and ask: "Abortion: Have we gone too far?" They also contain specific anti-abortion arguments, such as this one: "The Supreme Court says you can choose: after the heart starts beating, after its arms and legs appear, after all organs are present, after the sex is apparent, after it sucks its thumb, after it responds to sounds, after it could survive outside the womb."
Now, this raises quite a few interesting questions. The first one that comes to mind is, who thought this would fly in San Francisco of all places? But more importantly, what can be done about this outrage? And an outrage it is for people in the area:
Unsurprisingly, pro-abortion-rights groups are concerned about the ad campaign. Many activists have taken to defacing or destroying the posters. Indeed, the ads' backers have already exhausted their supply of replacements, and have had to order many additional prints. Some pro-Roe advocates blame BART officials for permitting the ads. As one organizer put it: "[E]very woman has noticed them. I couldn't believe BART would allow something like this. Why are they doing this?"The author of the article (law professor Vikram David Amar) knows the right answer, of course. BART officials cannot constitutionally deny the political speech of one group just because they (or BART riders) don't agree with the opinions expressed.
This seems a pretty obvious conclusion, but I can understand why some will find it unsatisfactory. As Amar points out, the only way BART could suppress these political ads would be a remove all political ads from their trains and stations. But this is also problematic in light of the First Amendment precedent, which is used to protect generally against:
laws or policies that simply discriminate on the basis of "content" or "subject matter." A law banning political ads may be viewpoint-neutral in some sense, but it is certainly subject-matter-discriminatory, treating political speech less favorably than, say, commercial speech. And subject-matter-discriminatory laws are usually subjected to the same judicial skepticism as are viewpoint-based laws.Amar's advice is that "the answer to what a person or community views as 'bad speech' is not 'no speech,' but rather 'more (and better) speech.'" But the course of action which this leaves open to pro-choice groups - mounting their own counter-campaign - doesn't sound so productive to me. Seeing as the current campaign served mostly to anger women and reproductive rights activists, plastering the subway with ads that anger conservative christians seems a surefire way to escalate the conflict. I would think letting the anti-abortion groups fire up the opposition is a much better strategy, but perhaps that's why I'm not in politics.
Anyway, while thinking about somewhat unpleasant consequences of the right to free speech, I also came across a piece on ALDaily, about David Irving's Austrian imprisonment. For those of you who don't remember, Irving is the British historian and Holocaust denier who famously sued an American historian, Deborah Lipstadt, for libel after she called him "one of the most dangerous spokespersons for Holocaust denial" in her book, Denying the Holocaust. Anyway, now he's in jail "in Austria for two speeches he made in 1989, during which he allegedly claimed there had been no gas chambers at Auschwitz." Interestingly, "Irving's lawyer said the historian no longer denies that gas chambers existed in Nazi death camps." What interests me about this is the seemingly implicit acceptance of speech act theory in this conviction. If you're guilty of perjury, you're under arrest for saying something, but specifically for saying something which, under those circumstances, constitutes a crime, i.e., lying under oath. Arresting Irving for making statements he now disagrees with suggests that it was the act of saying, at that time, which constitutes the crime. This view is not uncommon amongst people who talk about racist or sexist language, but it is a little surprising to see it in use in this way.
It also prompts another round of questions about how much freedom of speech is acceptable. Lipstadt herself is quoted in the article saying "I am uncomfortable with imprisoning people for speech. Let him go and let him fade from everyone's radar screens." She's willing to accept that the particular sensitivity of Germans and Austrians to claims like Irving's warrants their strict laws against Holocaust denial, but doesn't endorse them generally.
I don't find these laws efficacious. I think they turn Holocaust denial into forbidden fruit, and make it more attractive to people who want to toy with the system or challenge the system.Which sounds reasonable to me (and similar to how I feel about the anti-abortion ads). She advises that we "let [Irving] go home and let him continue talking to six people in a basement. Let him fade into obscurity where he belongs." Maybe ignoring it won't make it go away, but trying to legislate against it is just going to create martyrs and win them supporters.
Posted by tony at 1:37 PM | Comments (10)
July 20, 2005
Our New Swing Voter?
Everyone will by now have seen the headlines proclaiming that Bush Chooses Roberts for Court, so I won't waste time acting like I'm telling you anything new. WaPo also has this nice little bio piece which gives you some background on the man who will most likely take over for O'Connor.
Most of the original press surrounding the nomination made a point to mention Roberts' statement that Roe v. Wade was "wrongly decided and should be overruled", which he defends by pointing out that it was a statement made as lawyer for the first Bush administration. Apparently, he is known making the case that lawyers should not be held to believe the cases they make, and John Yoo at UC Berkeley seems to agree that he's not gunning for Roe, noting that
"he represents the Washington establishment. These Washington establishment people are not revolutionaries, and they're not out to shake up constitutional law. They might make course corrections, but they're not trying to sail the boat to a different port."So why Roberts? The Post pulls a quote from his former boss (as deputy counsel in the Reagan administration) Fred Fielding saying "he's generally conservative on presidential powers," a fact which could explain him as a pick if true. This anecdote is also somewhat telling:
In the aftermath of the disputed 2000 presidential election, Roberts played a key, if quiet, role in the Florida recount. Although his name did not appear on the briefs, three sources who were personally aware of Roberts's role said he gave Gov. Jeb Bush (R) critical advice on how the Florida Legislature could constitutionally name George W. Bush the winner at a time when Republicans feared that if the recount were to continue the courts might force a different choice.But the overall sense of the Post sketch is that he's a conservative able to voice his views "in moderate tones", which makes sense in a way. When it seemed Bush was going to nominate a woman, people were speculating that it was a strategic move to ease the confirmation process. This could easily be a means to the same end. For example, Harry Reid has already taken a decisively ballsy stance:
"The president has chosen someone with suitable legal credentials, but that is not the end of our inquiry," Reid said in a statement. "The Senate must review Judge Roberts's record to determine if he has a demonstrated commitment to the core American values of freedom, equality and fairness."Yet I don't see this leading to much more than a rigorous hearing by the Judicial Committee, and a less-than-unanimous vote. And from what initial news reports have drudged up, that's pretty reasonable - there are no obvious reasons why he shouldn't be confirmed.
Of course, Lindsay Beyerstein might have at least one reason.
Posted by tony at 12:22 AM | Comments (0)
June 29, 2005
No Meaningful Posts at Work
I just don't feel right dedicating an hour to crafting something interesting.
I can, however, bring you links.
A man in Weare, New Hampshire is seeking to use the precedent set by Kelo vs. City of New London to acquire land to for a development project called "The Lost Liberty Hotel". His claim is that his hotel will bring in tourists and tax revenue, which will benefit the town more than the building currently on the property: Justice Souter's home.
The hotel "will feature the 'Just Desserts Café' and include a museum, open to the public, featuring a permanent exhibit on the loss of freedom in America." However, the best part is that "Instead of a Gideon's Bible each guest will receive a free copy of Ayn Rand's novel 'Atlas Shrugged.'" (via Obsidian Wings)
Posted by todd at 11:51 AM | Comments (0)
June 27, 2005
I Need to get Back to Work
I'm working from home today, which means that I'm susceptible to diversion. I was doing well, until Ed Felten brought me a bunch of Grokster links. Dr. Felten is worried, others believe the court simply punted back to the lower courts, and industry lawyers love it.
The Christian Science Monitor doesn't seem to get it:
The Ninth US Circuit Court of Appeals ruled in 2001 that Napster could be held partly liable for copyright violations by those using its file-sharing program. The court ruled that Napster officials could have policed the illegal downloading activities through the company's centralized servers, but instead ignored the lawbreaking.Right. Not because maintaining central servers is needlessly slow and expensive, but because they're sneaky.
To bypass such legal liability, Grokster and StreamCast decentralized their servers, making it impossible for them to monitor how their file-sharing programs were being used.
Forbes.com has a more encouraging take:
Why not compete with free download services on their own turf? Companies such as Apple Computer, RealNetworks, Napster and others are making a go of selling music online legally. They have a long, long way to before they even come close to the number of pirated downloads, but the early results are encouraging.Leave it up to competition? That makes way too much sense.
Make the media companies compete, and they'll find a way to innovate on their own. Give them an excuse to start suing entrepreneurs with new ideas, and they'll just become more complacent than they already are.
I haven't read the decision yet (I need to get back to work!), and I don't know a lot about the law, but it seems to me that all is not lost for Grokster. My understanding is that this means there will be a trial in the Ninth Circuit, where Grokster will have a chance to show that they did not engage in inducement.
Meanwhile, there was also another relatively important technology decision today.
Posted by todd at 3:39 PM | Comments (0)
June 23, 2005
In Our Court
I'm sure many of you have already heard that the today the Supreme Court ruled in favor of appropriating private property for private development. For anyone unfamiliar with the idea of eminent domain, it is a long established policy to seize private property when there is a direct public need (roads and schools are the typical examples). Apparently, lower courts who heard this case mostly held that appropriation just for (private) economic development is only justified when the property being seized is blighted. But the New London residents in question were fighting this action because the neighborhood "includes Victorian-era houses and small businesses that in some instances have been owned by several generations of families", all of which will now be replaced by "a riverfront hotel, health club and offices."
This decision is rather unsettling to me, mostly because I'm torn by several different legal intuitions. For one thing, I've driven through New London, and it is certainly an area that could use a major revitalization effort, even if the neighborhood in question is itself not part of the problem (although I really wouldn't know either way). I'm also not crazy about championing the cause of property rights, especially at the cost of the economic health of a city. In that respect, clearly John Paul Stevens (as well as Anthony Kennedy, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer, who constitute the majority in this decision) agrees with me:
''The city has carefully formulated an economic development that it believes will provide appreciable benefits to the community, including -- but by no means limited to -- new jobs and increased tax revenue,'' Stevens wrote ... ''[i]t is not for the courts to oversee the choice of the boundary line nor to sit in review on the size of a particular project area,'' he said.Fine. But I can't help shaking the feeling that this is a terrible precedent, and that instances of exploiting this ruling by developers will far outnumer cases of positive development projects. Justice O'Connor is with me on this one:
''Any property may now be taken for the benefit of another private party, but the fallout from this decision will not be random,'' O'Connor wrote. ''The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms.''Preach it like it is, sister. And yet, something about agreeing with a decision on which Rehnquist, Scalia, and Thomas all joined just doesn't sit right with me. Maybe it's simply that the case here is private ownership of land vs. private development of that land, and that Stevens et al. simply believe that when the community stands to benefit (or at least, the local government has determined that it does), the law is on their side. In any case, I haven't yet read the decisions, but I do intend to, and I hope anyone else who is interested will do the same.
Posted by tony at 1:21 PM | Comments (2)