Turning the Nanny State to Your Advantage

Since it looks like the red light cameras are a go again, I wonder if some local entrepreneurial band will take a cue from Britain's The Get Out Clause and turn nanny-statism to their advantage:

Unable to afford a proper camera crew and equipment, The Get Out Clause, an unsigned band from [Manchester, England], decided to make use of the cameras seen all over British streets.

With an estimated 13 million CCTV cameras in Britain, suitable locations were not hard to come by.

They set up their equipment, drum kit and all, in eighty locations around Manchester – including on a bus – and proceeded to play to the cameras.

Afterwards they wrote to the companies or organisations involved and asked for the footage under the Freedom of Information Act.

"We wanted to produce something that looked good and that wasn't too expensive to do," guitarist Tony Churnside told Sky News.

"We hit upon the idea of going into Manchester and setting up in front of cameras we knew would be filming and then requesting that footage under the Freedom Of Information act."

Only a quarter of the organisations contacted fulfilled their obligation to hand over the footage – perhaps predictably, bigger firms were reluctant, while smaller companies were more helpful – but that still provided enough for a video with 20 locations.

"We had a number of different excuses as to why we weren't given the footage, like they didn't have the footage. They delete after a certain amount of time, so if they procrastinate for long enough, they can claim it's been deleted," Mr Churnside said.

Here's a link to the video. As they say, "good on you" boys.

Silencing the Iconic

I see that the following news item on the legendary Brigitte Bardot caught Jay Nordlinger's eye, as well:

The headline was arresting: "Brigitte Bardot on trial for Muslim slur." She had incited "racial hatred." Oh my goodness, how? What did she say? I prepared for the worst. BB had said, "I am fed up with being under the thumb of this population, which is destroying us, destroying our country, and imposing its acts." That's it: For that, on trial as a criminal. ...

Ladies and gentlemen, when I hear about Brigitte Bardot, or Mark Steyn and Ezra Levant in Canada, I am grateful to live in a free country. For all my complaining about America, I am grateful. And I know you are, too.

The differences between the United States and other Western nations aren't always directly before us, but sometimes we are gifted with reminders.

The Right to Know What's Happenin' With Chariho

It looks like the attempt by the National Education Association to place restrictions on school committee members' communication with the public in the Chariho district has come to an end. NEA Assistant Executive Director Peter Gingras, who last year filed a Labor Relations Board complaint against the Chariho School Committee making the vague assertion that Committeeman William Felkner's publishing of the Chariho School Parents Forum blog constituted an attempt "to communicate directly with bargaining unit members represented by the union", has notified the LRB that he wishes to withdraw the complaint.

Over at CSPF, Committeeman Felkner has posted a letter written by Hopkinton resident Mary Botelle which eloquently describes the multiple flaws in the premise of the NEA complaint…

1. Freedom of speech and assembly are guaranteed to all citizens. In this era, websites provide an electronic form of assembly and the written word replaces the spoken word. Therefore, Chariho School Parents' Forum, managed by William Felkner, provides parents and taxpayers with a method of making their concerns and opinions known…
2. Section 16-2-9.1 of the General Laws entitled Code of Basic Management Principles and Ethical School Standards (copy enclosed) provides the standards to be followed by school committees.

   It is to be noted that subsection (4) and (5) refer to communication with the public:

   (4) Accept and encourage a variety of opinions from and communication with all parts of the community.

   (5) Make public relevant institutional information in order to promote communication and understanding between the school system and the community.

   Therefore, it is clear that the committee should invite the community to participate so that decisions made will reflect the will of the community, and to provide information so that the community will be properly informed.

To its credit, the LRB never appeared to take the complaint very seriously. However the process dragged on, in part, because Chariho Superintendent Barry Ricci and the Chariho school board's lawyer seemed unable to summon any enthusiasm for defending the free speech and due process rights of school committee members, or for defending the right of the public to be given as much information as possible about school committee proceedings. The lesson here is to be wary of the nexus between government bureaucrats and labor unions; they sometimes act under the assumption that they can agree to bargain away the Constitutional rights of the general public. Expect this issue to pop-up in Rhode Island in various forms over the next few years.

The Early Reviews Are In: Senator Whitehouse's Big Surveillance Speech Was a Flop

Even liberal law professors are not impressed with the speech that Senator Sheldon Whitehouse gave last Friday criticizing the President's use of executive power to conduct intelligence gathering. This is from Georgetown Law Professor Marty Lederman…

Senator Sheldon Whitehouse of Rhode Island has been one of the very best, most careful and most thoughtful legislators in recent months on a wide range of legal issues relating to the Gonzales DOJ, the war on terror, NSA surveillance, and the like.

Therefore it's with some regret that I write here to take issue with his latest speech on the Senate floor, expressing his outrage in response to reading classified OLC memos on the NSA surveillance questions. I am confident that there is much in those memos that gave Senator Whitehouse plenty of reason to be shocked and dismayed, and I hope that he will continue to make more of them public. In this case, however, I think Senator Whitehouse has primarily aimed his criticisms at the wrong targets, sorry to say.

…and this is from Yale Law Professor Jack Balkin…

Whitehouse doesn't like the Protect America Act any more than I do. But he should direct his fire at the Congress that produced it last summer in a shameless display of capitulation to demagoguery and fear mongering.

Professor Matthew Franck of Radford University offers a conservative critique of the speech here.

Why Telecom Immunity Matters

I owe Monique an answer to a question she asked a few weeks ago on my view of including in Foreign Intelligence Security Act reform legislation an immunity provision for telecommunications companies who cooperate with executive branch surveillance requests.

To understand why telecom immunity is an important issue, you need to start from one basic fact: real surveillance is not like what happens during an episode of 24. When the National Security Agency or some other spy agency listens in on a foreign telephone call, they don't do it by having Chloe O'Brian clandestinely tap into the worldwide communications network without anyone else knowing. Unlike the fictional CTU, real American intelligence agencies go through the front door; they probably even ask for some technical assistance from the telecom to set things up. That's why a significant part of the substance of the FISA legislation currently being debated by Congress describes circumstances under which telecom companies are required to cooperate with the government's requests for assistance.

Under the threat of privacy lawsuits, however, telecommunications companies are likely only to comply with surveillance requests if they can be given ironclad assurances that the requests do not run afoul of the law. On the surface, this is not a bad thing, but because the House's version of FISA reform treats only communications where both ends are outside of the United States as legitimate targets for foreign intelligence gathering, such assurances, regardless of the location of the target, are impossible to give in the absence of a court order.

Here is the problem, which the Democrats in Congress seem determined to ignore: what happens when a foreign surveillance target, located in a foreign country, unexpectedly makes contact with someone within the United States? Under the bill passed by the House last week, if any suspicion exists at the start of a surveillance operation that a party being monitored might contact someone inside of the US, the agency must to stop listening the moment a cross-border communication occurs, unless a court-order is already in hand. So unless telecommunications companies working with the NSA or some other US intelligence agency are willing to accept promises that cannot possibly be guaranteed -- namely, that foreign citizens under surveillance in foreign countries will never contact the United States -- court orders will be required for any foreign surveillance operations seeking to make use of American telecommunications hubs.

There are at least two ways that Congress could mitigate this problem. One would be to make it clear that as long as one party is outside of the United States, communications involving that party are to be treated under the rules of foreign intelligence gathering, no court order ever necessary. Or Congress could give telecommunication companies immunity in cases where they are complying with requests signed off by the Attorney General, reducing the legal risk they would bear in cooperating with executive branch requests for information. So far, House Democrats have been unwilling to pass either of these provisions, showing less interest in encouraging private institutions to cooperate with the government in fighting terrorism than in injecting the court system as strongly as they can into foreign surveillance operations.

Andrew McCarthy has more details on FISA reform in a Human Events article available here.

The Militia and the Second Amendment

Roger Williams University Law Professor Carl T. Bogus argues against the existence of an individual right to bear arms in Tuesday's Projo…

The traditional view is that the [second amendment] grants people the right to keep and bear arms only within the constitutionally-mandated militia — that it guarantees the states armed militia to provide for their own security.

But Professor Bogus errs in suggesting that a militia is something created by a state. The militia exists, whether states choose to effectively utilize it or not, as Georgetown University Law Professor Randy Barnett explains with this powerful example…

On September 11th of 2001, however, the United States came under aerial attack by planes piloted by foreign nationals. Two planes struck the World Trade Center destroying it and, with it, thousands of innocent civilians inside. Another struck the Pentagon killing hundreds of members of the armed forces. A fourth plane, United Flight 93, was heading for the nation’s capital with the likely target being the White House. It was stopped from reaching its target, but not by the Army, Navy, or even the Air Force. Nor was it stopped by the National Guard or the armed constabulary of the District of Columbia. After all, these official personnel cannot be everywhere the nation is threatened. No, unlike [in the War of 1812], this time the White House was saved from possible destruction by the heroics of members of the “unorganized militia” who, after learning on their cell phones of the attacks by other planes, acted in concert to protect the capital from a second successful attack in the same morning at the cost of their own lives.

The second amendment isn't a grant of a right to state governments. It is a guarantee of the right of individuals to prepare themselves to defend their country and their countrymen, under the most dire of circumstances.

The Wiretap Law & Joe Klein II

I may have been wrong about the Dems reaching the outskirts of reasonableness on the issue of Foreign Intelligence Security Act reform.

The text of the Democratic FISA reform bill that passed the House in mid-November empowers the Director of National Intelligence and the Attorney General, without a court order, to authorize the surveillance of non-United States persons located outside of the United States suspected of having contacts within the United States -- but only for 45 days. The relevant section is Section 105C…

Sec. 105C: (b) Emergency Authorization -- Notwithstanding any other provision of this Act, the Director of National Intelligence and the Attorney General may jointly authorize the emergency acquisition of foreign intelligence information (as defined in paragraph (1) or (2)(A) of section 101(e)) for a period of not more than 45 days if --

(1) the Director of National Intelligence and the Attorney General jointly determine that--
(A) an emergency situation exists with respect to an authorization for an acquisition under section 105B before an order approving the acquisition under such section can with due diligence be obtained;
(B) the targets of the acquisition of foreign intelligence information under this section are persons reasonably believed to be located outside the United States who may be communicating with persons inside the United States;

Under this law, after the 45 days have run out, an intelligence agency would have to cease surveillance immediately if a party under surveillance contacts the United States -- even when that party is a non-United States person, located outside of the United States -- unless the operation had been given prior sanction by the courts.

But what about the section 105A(a)(2) exception discussed in the previous post, which seems to create a seven-day good-faith grace period in cases where non-United States persons unexpectedly have contact with parties inside of the US? Wouldn't 105A(a)(2) override any other provision and allow surveillance to continue for a week, while the proper warrants were obtained?

The answer may be no, because of one little adverb…

Sec. 105A: (a)(2) If electronic surveillance referred to in paragraph (1) inadvertently collects a communication in which at least one party to the communication is located inside the United States or is a United States person, the contents of such communication shall be handled in accordance with minimization procedures adopted by the Attorney General that require that no contents of any communication to which a United States person is a party shall be disclosed, disseminated, or used for any purpose or retained for longer than 7 days unless a court order under section 105 is obtained or unless the Attorney General determines that the information indicates a threat of death or serious bodily harm to any person.

To understand the problem, consider the following not unreasonable scenario. American intelligence agents know that a terrorist leader is running a terrorist cell from his base in Farawayistan. They have evidence that his cell has contacts in the United States, but are not sure who or where they are. To try to learn more about them, the DNI and AG authorize monitoring of the cell-phone traffic into and out of Farawayistan.

Now, what happens if the terrorist leader doesn't make a call to his American contacts until 46 days after the start of the operation?

The monitoring of the call between Farawayistan and the United States cannot be claimed to have been "inadvertent" if discovering the identities of a terrorist group's American contacts was a goal of the surveillance. Therefore, by the letter of the law, the seven-day grace period from 105A(a)(2) does not apply, returning us to where this debate began: in order to conduct effective surveillance, i.e. to not be required to hang-up in situations where the targets of foreign surveillance unexpectedly contact the United States, while fully complying with the law, American intelligence agencies will have to obtain court orders when monitoring the communications of foreign nationals on foreign soil.

Fortunately, there does seem to be a straightforward solution available here. Drop the notion of "inadvertently" from the 105A(a)(2) exception and create a broad rule that says whenever a foreign national under surveillance contacts the United States, an intelligence agency has 7 days in which they are allowed to continue surveillance; at the end of the seven days, the government must either have obtained a warrant, if surveillance is to continue, or else be required to destroy the information related to the United States person that was listened in upon. Then drop everything from sections 105B and 105C that might imply that court orders are ever necessary to conduct surveillance of foreign nationals who are outside of the borders of the United States.

ADDITIONAL INFORMATION:

Congressman Peter Hoekstra, ranking Republican on the House Intelligence Committee, had an article in yesterday's National Review Online explaining his opposition to the Democratic version of FISA reform .

The Wiretap Law & Joe Klein

Time Magazine columnist Joe Klein is taking a bit of a beating from the left side of the blogosphere for his reporting on the Foreign Intelligence Surveillance Act legislation passed by the House of Representatives on November 15th. Here is a once-modified version of what Klein wrote to touch off the controversy…

The Democratic strategy on the FISA legislation in the House is equally foolish....Unfortunately, Speaker Nancy Pelosi quashed the House Intelligence Committee's bipartisan effort and supported a Democratic bill that -- [Rush Limbaugh] is salivating -- House Republicans believe would require the surveillance of every foreign-terrorist target's calls to be approved by the FISA court, an institution founded to protect the rights of U.S. citizens only....

(In the original version of this story, Joe Klein wrote that the House Democratic version of the Foreign Intelligence Surveillance Act (FISA) would require a court approval of individual foreign surveillance targets. The bill does not explicitly say that. Republicans believe it can be interpreted that way, but Democrats don't.)

The best way to figure out what the proposed law means (and if either version of Klein's description was accurate) is to recap its evolution.

The temporary electronic surveillance law that the United States is currently operating under says that…

Sec. 105A: Nothing in the definition of electronic surveillance under section 101(f) shall be construed to encompass surveillance directed at a person reasonably believed to be located outside of the United States.

This makes clear that the monitoring of any communication involving one party outside of the United States is to be treated as a foreign intelligence operation, outside of the jurisdiction of the court system. If an intelligence agency is listening in on someone who is located in a foreign country, and the person under surveillance unexpectedly calls a contact in New York City, right now, no court approval is required to keep listening.

The current section 105A expires in February. In October, the Democrats proposed this as a permanent replacement…

Sec. 105A: (a) Foreign to Foreign Communications -- Notwithstanding any other provision of this Act, a court order is not required for the acquisition of the contents of any communication between persons that are not United States persons and are not located within the United States for the purpose of collecting foreign intelligence information, without respect to whether the communication passes through the United States or the surveillance device is located within the United States.

Unlike the present law, this law would have placed only communications where both parties were outside of the United States beyond the jurisdiction of the courts. And somewhat distressingly, situations involving parties outside of the United States communicating with parties inside of the United States were not explicitly treated. A new subsection under section 105A appeared, on its surface, to set some rules for cases where only one party to a commuication was outside of the U.S…

Sec. 105A: (b) Communications of Non-United States Persons Outside of the United States -- Notwithstanding any other provision of this Act other than subsection (a), electronic surveillance that is directed at the acquisition of the communications of a person that is reasonably believed to be located outside the United States and not a United States person for the purpose of collecting foreign intelligence information (as defined in paragraph (1) or (2)(A) of section 101(e)) by targeting that person shall be conducted pursuant to --
(1) an order approved in accordance with section 105 or 105B; or
(2) an emergency authorization in accordance with section 105 or 105C.

...but in reality, it didn't. The "emergency authorizations" section 105C (as well as the "orders" section 105B) applied, as did the new section 105A, only to situations where both ends of a communication involved non-United States persons outside of the United States…

Sec. 105C: (b) Emergency Authorization -- Notwithstanding any other provision of this Act, the Director of National Intelligence and the Attorney General may jointly authorize the emergency acquisition of foreign intelligence information for a period of not more than 45 days if --

(1) the Director of National Intelligence and the Attorney General jointly determine that...
(B) the targets of the acquisition of foreign intelligence information under this section are persons reasonably believed to be located outside the United States;
(C) the targets of the acquisition are reasonably believed to be persons that are not United States persons;

The proposed revisions offered no guidance on what legal procedures were to be followed when a target of surveillance located outside of the United States unexpectedly called a "United States person" inside of the United States. The new, narrower scope of the law could easily have been interpreted by the courts to mean that intelligence agencies were expected to immediately cease surveillance on communications that crossed the border -- even communications originating from known terrorist cells -- until a warrant was in order.

House Republicans saw this loophole in the Democratic proposal as a problem. They prepared an amendment to the bill that would have made clear that surveillance of electronic communications could continue, without a court order, any time that an acknowledged al-Qaida operative located outside of the United States contacted someone within the United States. Rather than have to vote on this amendment, the Democratic leadership pulled their bill off of the floor.

But the version of the bill that passed on November 15th (on a mostly party line vote) contained an even broader version of Republican amendment. The House-approved version starts off with the language of the initial Democratic version of section 105A (a), expressly placing communications involving two ends outside of the United States into the realm of foreign intelligence gathering not subject to court approvals. Then, through yet another subsection, the bill addresses situations involving foreign surveillance targets who unexpectedly make a contact within United States. The bill says that intelligence agencies may continue to listen and that they have seven days to get court approval of surveillance of the party within the United States…

Sec. 105A: (a)(2) TREATMENT OF INADVERTENT INTERCEPTIONS -- If electronic surveillance referred to in paragraph (1) inadvertently collects a communication in which at least one party to the communication is located inside the United States or is a United States person, the contents of such communication shall be handled in accordance with minimization procedures adopted by the Attorney General that require that no contents of any communication to which a United States person is a party shall be disclosed, disseminated, or used for any purpose or retained for longer than 7 days unless a court order under section 105 is obtained or unless the Attorney General determines that the information indicates a threat of death or serious bodily harm to any person.

Finally, it appears that the Democratic Congress has entered the realm of the reasonable on this issue! I am still of the opinion that communications crossing the border should simply be treated as foreign communications, but allowing seven days to obtain a warrant is an acceptable compromise.

Finally, back to Joe Klein. He did appear to mis-state the scope of the Democratic proposals. Even the original version would not have required court orders for all foreign surveillance targets, only those that made direct contact with persons in the United States and/or United States persons. But Klein's bashers are also being a tad disingenuous. If there was any major liberal/progressive objection to the original Democratic FISA bill on the grounds that it was a bad idea to require American intelligence agencies to cease surveillance operations when a foreign surveillance target unexpectedly called someone within the United States, that objection wasn't made very forcefully. Liberals seem to willing to accept either version of the bill, showing less of an interest in the content of surveillance law, than in just passing something that isn't President Bush's.

Senator Whitehouse Dodges the Telecom Immunity Issue

Remember "I voted for it before I voted against it" from the 2004 Presidential campaign? Well, according to a report from the Dow Jones Newswire (via CNN), Rhode Island Senator Sheldon Whitehouse has come up with a version for the year 2007. The issue is whether telecommunications companies who have cooperated with the government's electronic surveillance requests based on executive branch assurances that the requests were legal should be granted immunity from lawsuits…

Lawmakers on the Senate Judiciary Committee approved 10-to-9 Thursday a bill authorizing the federal government's warrantless wiretapping program without a clause offering immunity to telephone companies that may have cooperated with the program.

Just minutes before the vote, the committee had voted 11-to-8 in favor of immunity for the phone companies.

Democratic Sens. Dianne Feinstein, D-Cal., and Sheldon Whitehouse, D-R.I., voted with the nine Republicans on the panel in favor of preserving the immunity clause.

But in a strange twist that left many wondering what had happened, just minutes after this vote, Committee Chairman Patrick Leahy, D-Vermont, called for a separate vote to approve the bill without the section of the legislation with the immunity provisions.

The committee approved Leahy's call 10-9, along party lines.

Under the Senate procedures governing this particular bill, Democratic Majority Leader Harry Reid now decides exactly which text, i.e. the version with or the version without the immunity provision, will be considered by the full Senate.

In short, Senator Whitehouse punted on the issue -- and lived up to a prediction I made earlier in the year about this sentence from a February Projo report...

New U.S. Sen. Sheldon Whitehouse’s position is less clear,

...becoming a recurring theme for Senator Whitehouse's term of office.

Senator Whitehouse Dodges the Telecom Immunity Issue

Remember "I voted for it before I voted against it" from the 2004 Presidential campaign? Well, according to a report from the Dow Jones Newswire (via CNN), Rhode Island Senator Sheldon Whitehouse has come up with a version for the year 2007. The issue is whether telecommunications companies who have cooperated with the government's electronic surveillance requests based on executive branch assurances that the requests were legal should be granted immunity from lawsuits…

Lawmakers on the Senate Judiciary Committee approved 10-to-9 Thursday a bill authorizing the federal government's warrantless wiretapping program without a clause offering immunity to telephone companies that may have cooperated with the program.

Just minutes before the vote, the committee had voted 11-to-8 in favor of immunity for the phone companies.

Democratic Sens. Dianne Feinstein, D-Cal., and Sheldon Whitehouse, D-R.I., voted with the nine Republicans on the panel in favor of preserving the immunity clause.

But in a strange twist that left many wondering what had happened, just minutes after this vote, Committee Chairman Patrick Leahy, D-Vermont, called for a separate vote to approve the bill without the section of the legislation with the immunity provisions.

The committee approved Leahy's call 10-9, along party lines.

Under the Senate procedures governing this particular bill, Democratic Majority Leader Harry Reid now decides exactly which text, i.e. the version with or the version without the immunity provision, will be considered by the full Senate.

In short, Senator Whitehouse punted on the issue -- and lived up to a prediction I made earlier in the year about this sentence from a February Projo report...

New U.S. Sen. Sheldon Whitehouse’s position is less clear,

...becoming a recurring theme for Senator Whitehouse's term of office.

Senator Whitehouse Supports Telecom Immunity, So Far

One issue being considered as part of the reform of the Foreign Intelligence Surveillance Act is whether telecommunications companies that have complied with customer information requests from the government should be granted immunity from privacy lawsuits. According to The Hill, an overwhelming majority of the Senate Intelligence Committee has approved an immunity provision…

The Senate Intelligence Committee last month approved a bill by a 13-2 vote that includes a provision to extend liability protections for companies that allegedly participated in the [Terrorist Surveillance Program] after the Sept. 11 attacks, provided that the firms can show they had authorization from the government. A corresponding FISA bill in the House, which is still awaiting floor action, does not include an immunity provision.

The Senate rules that this particular bill must follow to reach the floor require it also to be approved by the Judiciary committee.

The Hill article mentions that there are three Democratic Senators who sit on both the Judiciary and Intelligence committees; two of them voted for the bill with immunity provision, one voted against…

Two wildcards on the Democratic side will be Sens. Sheldon Whitehouse (R.I.) and Dianne Feinstein (Calif.), who both voted for the bill with the immunity provisions in the Intelligence Committee. Another Judiciary Committee Democrat who also sits on the Intelligence Committee, Sen. Russ Feingold of Wisconsin, has vowed to strike the immunity language during the markup.

Can We At Least Agree on Banning the Hyperbole?

Over on his blog, America's Report Card (named after a novel he published, not the scope of topics he addresses) Professor John McNally has put up a post claiming that PINHEADS (all caps in the original) have succeeded in getting When I Was a Loser, the now-controversial collection of essays he edited, banned from…well, he doesn't really say where it's been banned from.

When I Was a Loser has been removed from the Cumberland school-system curriculum. There's no doubt there. But does removal from the curriculum constitute banning in any meaningful sense of the word?

A couple of years ago, a local Michigan school board refused to allow the teaching of a Bible-based course that treated the Bible as a work of literature and history. Would it be fair to say that the Frankenmuth, MI School board voted to ban the Bible, or would that description confuse the issues more than clarifying them?

The claim that When I Was a Loser has been banned obviously depends on some form of fallacy, but you'll have to ask Justin to find out exactly which one is involved.

Justin provides the type of fallacy committed by Professor McNally. It is...

The fallacy of persuasive definition.

The Latest, Not Greatest, Proposed Revisions to Electronic Surveillance Law, Part 2

1. The Democratic leadership pulled its version of surveillance reform off of the House floor yesterday, according to National Public Radio, after the Republicans proposed the following change to the Democrats proposed change to the Section 105A "exception"…

What threw the bill into limbo was a motion by Lamar Smith (R-TX) to send the bill back to committee for an amendment. That amendment would allow any form of surveillance of Osama bin Laden, al-Qaida or other designated terrorist groups. Smith says it revealed a fatal flaw in the Democrat's legislation.

If the Republican amendment had passed, the revised law would have allowed American intelligence agencies to authorize electronic surveillance without court system involvement when…

1. The party under surveillance was a "non-United States person" outside of the United States, communicating with another "non-United States person" outside of the United States, or
2. The party under surveillance was outside of the United States and associated with a known terrorist group.

The Democratic leadership supported item 1, but did not want members of their party to have to vote on item 2. Draw your own conclusion about what that means, though you might want to start with the Baltimore Sun's reporting…

It was the most recent embarrassment for Democrats in efforts to update laws governing domestic spying by the National Security Agency and other U.S. agencies.

2. Here is a strange and underreported facet of this story: The proceedings of the Foreign Intelligence Surveillance Act court are shrouded in such secrecy, no one, save for a few privleged government officials, has been allowed to read the ruling where the court decreed expanded jurisdiction for itself! Here's Andrew McCarthy of National Review Online on the secret ruling that triggered the need for the temporary legislation we are now operating under...

Imagine if a public official, safe in the shadows of anonymity, penned a directive that radically rewrote American intelligence-collection law — statutes enacted by our democratically elected officials and signed into law by elected presidents (including elected Democrat presidents, hyper-sensitive to privacy concerns).

Imagine that, rather than having such a critical national security decision made in the light of day, the anonymous public official issued the directive in secret — insulated from any political process in which the people whose lives hang in the balance were free to determine the appropriate line between liberty and security.

Imagine that we were not just barred from learning the name of the official; we were actually foreclosed from reading the directive under which we were now ruled....

Earlier this year — in the middle of an armed conflict against an international terror network which is promising renewed, 9/11-style attacks against the Homeland — an anonymous judge of the secret FISA court issued a classified ruling which radically altered decades-old, bedrock assumptions of foreign-intelligence law. The stealth directive deeply damaged the ability of the United States to investigate and prevent terrorist attacks.

We have not been permitted to learn the name of the judge. We have not been permitted to read the ruling — a ruling that so rocked the political branches that it became the subject of emergency curative legislation this summer. Legislation that is set to expire in about four months … after which we could once again be living not under FISA but under the secret whims of the FISA court.

Specifically, the judge ruled that our intelligence community now needs the permission of a federal judge before it can conduct electronic surveillance on non-Americans outside the United States who are communicating with other non-Americans outside the United States.

Mr. McCarthy is a former Federal prosecutor who prosecuted the first World Trade Center bombing case, so he is very familiar on this area of the law, but if you are skeptical about taking him at his word, note this otherwise curious qualifier in the Los Angeles Times pro-Democratic position editorial on the proposed new law…

Only this year, after the election of a Democratic Congress, did Bush shift ground and agree to allow the program to be supervised by the secret federal court created by FISA.

This acceptance of judicial oversight proved to be short-lived. When the court found fault with aspects of the program -- reportedly ruling that FISA required the government to seek a court order for "foreign-to-foreign" communications that are routed through the United States -- Bush pressed Congress to do much more than close what everyone agreed was a loophole created by advances in technology.

Reportedly?

Which procedure makes more sense for protecting civil liberties: Having elected representatives debate the procedures for surveillance and set the rules out in the open -- like we're doing right now, in case you haven't noticed -- or letting unelected, unaccountable judges set procedures in secret rulings that the public is not even allowed to read after-the-fact?

The Latest, Not Greatest, Proposed Revisions to Electronic Surveillance Law, Part 1

Here's a quick primer on the latest version of electronic surveillance law moving through Congress. Warning: there's some heavy (and not very well written) legalese in the portions of the new law excerpted below.

At the moment, foreign electronic surveillance is being conducted under a reasonably clear rule written into a temporary law (it expires in February) stating that no court-system involvement is required when one party (citizen or non-citizen) is believed to be outside of the United States…

Sec. 105A: Nothing in the definition of electronic surveillance under section 101(f) shall be construed to encompass surveillance directed at a person reasonably believed to be located outside of the United States.

Democrats want to limit the "exception" to cases where both parties are non-"United States persons" located outside of the United States...

Sec. 105A (a): Foreign to Foreign Communications -- Notwithstanding any other provision of this Act, a court order is not required for the acquisition of the contents of any communication between persons that are not United States persons and are not located within the United States for the purpose of collecting foreign intelligence information, without respect to whether the communication passes through the United States or the surveillance device is located within the United States.

...and also make explicit that intelligence agencies need to obtain court orders before conducting electronic surveillance in all cases not covered by section (a)...

Sec. 105A (b): Communications of Non-United States Persons Outside of the United States -- Notwithstanding any other provision of this Act other than subsection (a), electronic surveillance that is directed at the acquisition of the communications of a person that is reasonably believed to be located outside the United States and not a United States person for the purpose of collecting foreign intelligence information (as defined in paragraph (1) or (2)(A) of section 101(e)) by targeting that person shall be conducted pursuant to --

(1) an order approved in accordance with section 105 or 105B; or

(2) an emergency authorization in accordance with section 105 or 105C.

Reconciling section (a) with section (b) essentially requires court approval for any continuing foreign intelligence gathering operation. Without a court order in hand, an intelligence agency would have to cease surveillance immediately to comply with the law if a surveillance target unexpectedly contacted the U.S., or even contacted a resident alien outside of the U.S. The problem with this, as Mark Steyn has put it, is that…

If the U.S. government intercepts a call from Islamabad to London about a plot to blow up Big Ben, it can alert the Brits. But, if the U.S. government intercepts a call from Islamabad to New York about a plot to blow up the Chrysler Building, that's entirely unconstitutional and all record of it should be erased.

Wouldn't a rational surveillance reform seek to avoid creating situations where American intelligence agencies could run afoul of the law, just by diligently doing their jobs?

Religious People Have the Right To Assemble Too

Someone needs to tell the facilities manager at the Rhode Island State House that the government can’t deny members of religious groups the right to assemble when the same right is extended to secular groups. From Elizabeth Gudrais in last Wednesday's Projo…

Marco Schiappa, associate director for facilities management with the Department of Administration, told the State Properties Committee yesterday morning that a state policy — apparently both longstanding and long ignored — prohibits use of the State House or its grounds for religious purposes.

“We’ve either got to change the procedures, or we’ve got to stick to the procedures,” he told the committee.

Schiappa said he discovered the policy after assuming his current job six months ago. Because policy has conflicted with practice for so long, Schiappa recommended that the committee approve the Sept. 1 day of prayer, but offered this warning: “We want to make it clear that this may not be something that will be allowed in the future”…By the end of the day, Schiappa said he had asked lawyers whether changing it to allow religious events would cause any legal problems in light of the constitutional prohibition on establishment of religion. If not, Schiappa said, he expected the policy would be changed, subject to approval by Department of Administration Director Beverly Najarian.

Mr. Schiappa should be equally as concerned with running afoul of the Constitutional provision (that he seems unaware of) preventing government from interfering with the free exercise of religion.

In reality, it is highly unlikely that anything will come of this. Limiting the right to assemble because a demonstration has been deemed "religious" by the government is so clearly unconstitutional, even the ACLU opposes it…

Steven Brown, executive director of the ACLU’s Rhode Island chapter, called the policy “unconstitutional to the nth degree” and said his group “would be prepared to sue in a minute” if the state began enforcing it.

Brown said the State House was explicitly opened to demonstrations with a religious theme after a 1974 lawsuit over the state’s rejection of a group’s request to hold a prayer service in the rotunda to condemn cuts to the state’s welfare program by Gov. Philip W. Noel.

“In light of that history,” Brown said, “to see a policy that explicitly prohibits what a federal court said was constitutionally required is pretty shocking.”

However, the response from the Diocese of Providence on this matter is very, very disappointing…

The Roman Catholic Diocese of Providence declined to take a strong stance against the policy. “The state has every right to regulate the use of their buildings and their grounds,” diocese spokesman Michael Guilfoyle said.

Render unto Caesar and all, but the Diocese is wrong to take the position that public expression based on faith is somehow not worthy of the same protections from government extended to public expression based on any other motivation.

Finally, Monday’s Political Scene column from the Projo listed a few other prohibitions regarding demostrations at the state house that are not currently being enforced…

Just this year, the nonprofit advocacy group Ocean State Action has broken just about every rule on the list.

For instance: “No music allowed in the State House during normal business hours, 8 a.m. to 6 p.m., Monday through Friday.”

The group often begins or ends protests in the rotunda with a song. The group also assists Marriage Equality Rhode Island in sponsoring protests in favor of same-sex marriage, protests that usually include music.

Also: “Sleep-outs on the State House grounds are prohibited.”

Ocean State Action helped coordinate an overnight demonstration, including tents, to protest proposed budget cuts.

It is unclear why the religious group provision was the only provision that caught Mr. Schiappa’s eye.

England Continues to Ask for Calamity

Hot on the heels of news that gun crimes are up since Britain banned guns comes this controversy:

The database, which goes live next year, is to contain details of every one of the 11 million children in the country, listing their name, address and gender, as well as contact details for their GP, school and parents and other carers. The record will also include contacts with hospital consultants and other professionals, and could show whether the child has been the subject of a formal assessment on whether he or she needs extra help.

It will be available to an estimated 330,000 vetted users. Some of those allowed to check records, such as head teachers, doctors, youth offender and social workers, are uncontroversial, but critics have questioned why other potential users, such as fire and rescue staff, will have access to the database.

The concern is that, with so many children listed, and with so many people able to access it (with however many more able to find ways to break into it, I'd add), this database will be ripe for misuse. Apparently, the government already gets that, though:

The security fears are fuelled further by the admission that information about the children of celebrities and politicians is likely to be excluded from the system.

England Continues to Ask for Calamity

Hot on the heels of news that gun crimes are up since Britain banned guns comes this controversy:

The database, which goes live next year, is to contain details of every one of the 11 million children in the country, listing their name, address and gender, as well as contact details for their GP, school and parents and other carers. The record will also include contacts with hospital consultants and other professionals, and could show whether the child has been the subject of a formal assessment on whether he or she needs extra help.

It will be available to an estimated 330,000 vetted users. Some of those allowed to check records, such as head teachers, doctors, youth offender and social workers, are uncontroversial, but critics have questioned why other potential users, such as fire and rescue staff, will have access to the database.

The concern is that, with so many children listed, and with so many people able to access it (with however many more able to find ways to break into it, I'd add), this database will be ripe for misuse. Apparently, the government already gets that, though:

The security fears are fuelled further by the admission that information about the children of celebrities and politicians is likely to be excluded from the system.

A Greater Toll than You Know

It would seem that our discussion of civil rights and E-ZPass toll booths was not far fetched:

Generally mounted inside a vehicle's windshield behind the rearview mirror, E-ZPass devices communicate with antennas at toll plazas, automatically deducting money from the motorist's prepaid account.

Of the 12 states in the Northeast and Midwest that are part of the E-ZPass system, agencies in seven states provide electronic toll information in response to court orders in criminal and civil cases, including divorces, according to an Associated Press survey. ...

"You bring up the I-Pass records [in court] and it destroys credibility," said Levy, who has used such records two or three times for such purposes.

There remains a certain appeal to the argument that those who don't do things for which they don't want to get caught have nothing to fear. But again, the range of things for which it is advisable not to get caught can shift. Somewhere down the road, the lawyer may ask you: "So just where were you heading across the Newport Bridge on May 21st if not to make a donation of time by attending an event on behalf of that upstart candidate?"

What the New Wiretap Law Means

An NSA agent listens into a cell phone call between parties in Great Britain and Iran. This is what he hears…

All materials and personnel are in place. We await further orders.

Immediately, the party in Great Britain receives a return call…

Begin operations in 2 hours. All primary targets are to be destroyed.

Now, the NSA monitor detects a third transmission, originating with the party in Great Britain, to a party in Providence, Rhode Island. The message is…

…but wait, should the NSA keep listening at this point? A number of Democrats in Congress and ACLU-types say not necessarily, arguing that when foreign calls reach the United States, any government agency involved in surveillance has to hang up, unless they have previously obtained a warrant for the party on the American side -- even if they didn’t know the identity of the party on the American side before the call was made.

This is the central issue involved in the changes to the wiretapping law signed by the President on Monday. The new law makes clear that phone calls and other electronic communications that involve one party beyond the borders of the United States are to be treated according to the rules governing foreign intelligence gathering. 181 Democrats in the House and 28 in the Senate voted against this. Mark Steyn has best described the strangeness of the minority position on this issue…

If the U.S. government intercepts a call from Islamabad to London about a plot to blow up Big Ben, it can alert the Brits. But, if the U.S. government intercepts a call from Islamabad to New York about a plot to blow up the Chrysler Building, that's entirely unconstitutional and all record of it should be erased.

All four members of Rhode Island’s Congressional delegation; Senators Jack Reed and Sheldon Whitehouse, and Congressmen Patrick Kennedy and James Langevin, voted to require the government to cease surveillance in certain situations where phone or other electronic communication trails originating in foreign countries unexpectedly lead to contacts in the United States.

2. The new statutes not only adapt intelligence law for cases where one party is outside of the United States, but as an OpinionJournal editorial from July 27 pointed out, they also clarify the handling of certain cases where both ends of a call are outside of the United States…

If an al Qaeda operative in Quetta calls a fellow jihadi in Peshawar, that call may well travel through a U.S. network. This ought to be a big U.S. advantage in our "asymmetrical" conflict with terrorists. But it also means that, for the purposes of FISA, a foreign call that is routed through U.S. networks becomes a domestic call. So thanks to the obligation to abide by an outdated FISA statute, U.S. intelligence is now struggling even to tap the communications of foreign-based terrorists.

3. The Boston Globe states that the new law allows the executive branch to conduct "oversight-free surveillance", but that’s not true, even at the most basic level. According to the text of the law…

`(h)(1)(A) A person receiving a directive issued pursuant to subsection (e) may challenge the legality of that directive by filing a petition with the pool established under section 103(e)(1). (Note: The “person” referred to above would basically be the employee of a telecom company. The “pool” would be the Foreign Intelligence Surveillance Act (FISA) Court, the special court designated by Congress to hear domestic surveillance cases.)

`(B) The presiding judge designated pursuant to section 103(b) shall assign a petition filed under subparagraph (A) to one of the judges serving in the pool established by section 103(e)(1). Not later than 48 hours after the assignment of such petition, the assigned judge shall conduct an initial review of the directive. If the assigned judge determines that the petition is frivolous, the assigned judge shall immediately deny the petition and affirm the directive or any part of the directive that is the subject of the petition. If the assigned judge determines the petition is not frivolous, the assigned judge shall, within 72 hours, consider the petition in accordance with the procedures established under section 103(e)(2) and provide a written statement for the record of the reasons for any determination under this subsection.

Re: On-the-Spot License Suspension

On the spot... after a trial... whatever. I don't think a 5% reduction is worth taking the step of granting a police officer with a tube the power of judge, jury, and executioner.

If we're serious about curtailing drunk driving, let's not revoke licenses at all, or at least without multiple warnings (unless death or injury results). Instead, we should reregister drunk drivers' license plates so that they somehow convey the offense, perhaps with different colors or symbols related to the number of incidents — say, one red bottle for each. We could even go so far as to give police officers more discretion in pulling over drivers based on these plates.

I've heard that Ohio did something like that, once, but that it was abandoned after too many important people were seen driving around with their shiny new tags. That's an outcome that would simply have to be resisted, but it does offer a different context for considering the on-the-spot revocation: I wonder whether the suddenness of the penalty, all within one traffic stop, mightn't give police officers (who are human, after all) incentive not to test or to pull over "important people" in the first place.

On-the-Spot License Suspension

Utilitarian or libertarian? Choose your side, with respect to this Bruce Landis article in today’s Projo…

In 41 states, if you drink, drive and fail the breath test, your license is suspended on the spot.

And that, a national study released yesterday said, is the way to cut drunken-driving deaths: quick punishment, it said, brings a significant, measurable reduction in the death rate.

In Rhode Island, one of the nine states without such a law, it can take weeks or months to suspend the license of a drunken driver…

The study found that the pre-conviction suspension laws reduced alcohol-related fatal accidents by 5 percent, which they estimate would have saved at least 800 lives per year in the United States.

The study’s central point is that immediate punishment is essential to effectiveness.

Note: All “driving is a privilege” based arguments will immediately be ridiculed. The government doesn’t have the power to create "privileges" that it can choose to bestow upon some citizens, but not others.

Reporter Banned from a National Press Club/Council on American Islamic Relations Event

This report from Fox News seems worthy of a raised eyebrow or two…

The Council on American Islamic Relations held a symposium at the National Press Club in Washington Tuesday. The Washington Times reports CAIR National Board Chairman Parvez Ahmed characterized Bush administration policies as driven by fear, and is irrational and divisive.

All this occurred after CAIR had banned some media outlets who allegedly had given it unfavorable coverage. A reporter from the Washington Times was thrown out after the meeting began.

Is there more to this story that’s not being reported? Or do reporter ejections from National Press Club events occur frequently enough to make this a non-event?

Either way, banning reporters sure doesn’t seem to be consistent with the National Press Club’s stated mission…

The Club shall provide people who gather and disseminate news a center for the advancement of their professional standards and skills, the promotion of free expression, mutual support and social fellowship.

Reverend Barry Lynn Defends the Censorship of Religious Newspapers

In a letter to the editor in Saturday’s Projo, Reverend Barry Lynn, Executive Director of Americans United for Separation of Church and State, defended his organization’s position in favor of government censorship of print media. Americans United has filed an IRS complaint against the Diocese of Providence for publishing Bishop Thomas Tobin's criticism of Rudolph Giuliani’s public stance on abortion in its weekly newspaper, the Rhode Island Catholic. Writing that “free speech is not a plausible defense” (of course, to censors, it never is), Rev. Lynn cited a 1992 court case that he believes set a precedent limiting the content that religious newspapers are allowed to publish…

In 1992, a church in New York ran newspaper ads advising people not to vote for Bill Clinton. The IRS revoked the church’s tax-exempt status, and the church sued to get it back. A federal appeals court ruled unanimously against the church, rejecting its free-speech argument.

However, for this precedent to apply, you have to accept the view that newspaper op-eds are forms of paid political advertising, implying -- if you really believe in treating religious and non-religious organizations without bias -- that secular, corporate-owned media should also be prohibited from editorializing on political candidates since campaign finance laws expressly prohibit corporations from making expenditures “expressly advocating the election or defeat of one or more clearly identified candidate(s) or the candidates of a clearly identified political party”.

In other words, if Rev. Lynn believes that the IRS should crack down on the Rhode Island Catholic for using Mayor Giuliani’s name in an op-ed, shouldn’t he also believe that the FEC should crack down on the Belo Corporation for doing the same?

The only way to apply the 1992 precedent to Bishop Tobin's op-ed without making a case that all political discourse on American op-ed pages needs to be shut down is to assert that diocesan newspapers like the Rhode Island Catholic are not entitled to the full range of First Amendment protections enjoyed by "real" newspapers, i.e. that religious newspapers are second-class media organizations entitled to fewer first-amendment protections than non-religious ones. Does advocating for restrictions on the free-press rights of religious newspapers sound like a reasonable interpretation of the “separation of church and state” to you, or does it sound more like Americans United for Separation of Church and State represents a fringe that believes not so much that government should be neutral towards religion, but that government should actively discourage the expression of religious belief in public?

Americans United for Suppressing Religious Speech

According to a Mike McKinney entry on yesterday’s 7-to-7 blog, a group called Americans United for Separation of Church and State has called for an Internal Revenue Service investigation of the Diocese of Providence because of Bishop Thomas Tobin’s letter published in the Rhode Island Catholic criticizing Republican Presidential candidate Rudolph Giuliani's position on the issue of abortion. From the Americans United press release…

The Internal Revenue Service should investigate the Roman Catholic Diocese of Providence, R.I., for opposing Republican presidential candidate Rudolph W. Giuliani, says Americans United for Separation of Church and State.

In a June 13 complaint to the IRS, Americans United Executive Director Barry W. Lynn said Bishop Thomas J. Tobin, writing in the diocesan newspaper, Rhode Island Catholic, appears to have violated federal tax law by attacking Giuliani and stating that he “would never support a candidate who supports legalized abortion”....

Americans United’s letter to the IRS noted that federal tax law forbids non-profits to use organizational resources to support or oppose candidates for public office. In a revenue ruling scheduled for issuance June 18, for example, the IRS states that leaders of non-profits endanger their organization’s tax-exempt status by making “partisan comments in official organization publications"....

The rather casual assumption that publishing a newspaper equals partisan political activity raises a number of significant questions…

1. If the form of Bishop Tobin’s missive had been a Projo op-ed instead of a Rhode Island Catholic op-ed, would the organization still believe an IRS investigation was necessary, or does Americans United take the position that religious newspapers are second-class media organizations with fewer rights than secular newspapers?
2. The Belo Corporation, though not a non-profit, is also not a political action committee, and therefore not allowed to use organizational resources to support or oppose political candidates. Does this mean that Americans United also believes that mentions of political candidates on the editorial pages of Belo newspapers (such as the Providence Journal) should be treated as partisan political activity, or, does AU believe, again, that religious organizations have fewer rights than non-religious organizations to express themselves through the free press?
3. One of the most controversial provisions of the McCain-Feingold campaign finance reform package is the ban on any organization, save for certain types of PACs, from engaging in political advertising that mentions the names of political candidates 60 days or less before an election. Since Americans United for Separation of Church and State believes that the publishing of a religious newspaper should be treated as political activity subject to campaign finance laws, do they also believe that Diocesan Newspapers should be banned from making any mention of political candidates' names in the 60 days before an election? Or do they believe that getting some form of prior government approval of the content of their newspaper before publishing would be enough to satisfy the law?

Finally, let me offer a crass political note to Mayor Giuliani and his supporters: There is a potential mini-sister Souljah moment forming here, if Mayor Giuliani takes a stand against Americans United for Separation of Church and State's pro-censorship position towards religious organizations, even as he continues to disagree with the content of the speech that AU would like to suppress.

Americans United for Suppressing Religious Speech

According to a Mike McKinney entry on yesterday’s 7-to-7 blog, a group called Americans United for Separation of Church and State has called for an Internal Revenue Service investigation of the Diocese of Providence because of Bishop Thomas Tobin’s letter published in the Rhode Island Catholic criticizing Republican Presidential candidate Rudolph Giuliani's position on the issue of abortion. From the Americans United press release…

The Internal Revenue Service should investigate the Roman Catholic Diocese of Providence, R.I., for opposing Republican presidential candidate Rudolph W. Giuliani, says Americans United for Separation of Church and State.

In a June 13 complaint to the IRS, Americans United Executive Director Barry W. Lynn said Bishop Thomas J. Tobin, writing in the diocesan newspaper, Rhode Island Catholic, appears to have violated federal tax law by attacking Giuliani and stating that he “would never support a candidate who supports legalized abortion”....

Americans United’s letter to the IRS noted that federal tax law forbids non-profits to use organizational resources to support or oppose candidates for public office. In a revenue ruling scheduled for issuance June 18, for example, the IRS states that leaders of non-profits endanger their organization’s tax-exempt status by making “partisan comments in official organization publications"....

The rather casual assumption that publishing a newspaper equals partisan political activity raises a number of significant questions…

1. If the form of Bishop Tobin’s missive had been a Projo op-ed instead of a Rhode Island Catholic op-ed, would the organization still believe an IRS investigation was necessary, or does Americans United take the position that religious newspapers are second-class media organizations with fewer rights than secular newspapers?
2. The Belo Corporation, though not a non-profit, is also not a political action committee, and therefore not allowed to use organizational resources to support or oppose political candidates. Does this mean that Americans United also believes that mentions of political candidates on the editorial pages of Belo newspapers (such as the Providence Journal) should be treated as partisan political activity, or, does AU believe, again, that religious organizations have fewer rights than non-religious organizations to express themselves through the free press?
3. One of the most controversial provisions of the McCain-Feingold campaign finance reform package is the ban on any organization, save for certain types of PACs, from engaging in political advertising that mentions the names of political candidates 60 days or less before an election. Since Americans United for Separation of Church and State believes that the publishing of a religious newspaper should be treated as political activity subject to campaign finance laws, do they also believe that Diocesan Newspapers should be banned from making any mention of political candidates' names in the 60 days before an election? Or do they believe that getting some form of prior government approval of the content of their newspaper before publishing would be enough to satisfy the law?

Finally, let me offer a crass political note to Mayor Giuliani and his supporters: There is a potential mini-sister Souljah moment forming here, if Mayor Giuliani takes a stand against Americans United for Separation of Church and State's pro-censorship position towards religious organizations, even as he continues to disagree with the content of the speech that AU would like to suppress.

URI Student Senate to College Republicans: You Are Free to Express Any Opinion (That We Approve Of), In Any Manner (That We Approve Of)

One of these things is not like the others…

1647: Rhode Island adopts its first code of laws. In stark contrast to codes enacted in colonies like Maryland or Massachusetts around the same time, the code imposes no penalties for “blasphemy” or uttering “any reproachful words or speeches”.

One of these things just doesn’t belong…

1842: Rhode Island adopts its first state constitution by popular referendum. The constitution includes guarantees of freedom of speech and freedom of the press. Here’s the freedom of the press clause…

The liberty of the press being essential to the security of freedom in a state, any person may publish sentiments on any subject…

Can you tell which thing is not like the others…

1920: Rhode Island native (and Harvard Law professor) Zechariah Chafee publicly criticizes the Sedition Act of 1918, an attempt to limit criticism of the government of the US…

One of the most important purposes of society and government is the discovery and spread of truth on subjects of general concern. This is possible only through absolutely unlimited discussion…

Before I finish my song…

2007: The Organizations Advisory and Review Committee of the University of Rhode Island Student Senate votes to derecognize the URI College Republicans, because of their staging of a satire questioning whether any race or gender limited scholarship can be consistent with an anti-discrimination policy. The Student Senate’s position is that is has the right to treat URI Republicans differently from other organizations, because of an opinion they have expressed, unless they offer a public apology.

Randal Edgar of the Projo has some details…

The College Republicans at the University of Rhode Island say their ad for a “White Heterosexual American Male” scholarship was just a satirical prank, intended to voice the group’s opposition to affirmative action….

The scholarship has drawn attention from more than the three dozen students who applied for it.

Among them is the Student Senate, which told the College Republicans last month to apologize for the ad and for handing out scholarship applications. Also interested is URI President Robert L. Carothers, who recently told the Senate to back off. Forcing the Republicans to apologize, or make statements that “are not their own,” could deny them their constitutional rights, he wrote in a recent memo to the student body.

As of yesterday, the Student Senate was standing its ground....

Student Senate President Neil Leston said the student government got involved after a letter to the editor in the college paper suggested the ad was discriminatory and had violated the Senate’s bylaws. He said the number of students who applied for the scholarship — about 40 according to the Republican club — suggests that some people took the ad seriously.

“The big issue is they did not identify it as satire and that becomes problematic,” he said.

When Neil Leston and the rest of URI’s student Senators are deciding how to vote, will they also be considering a resolution of protest against the many other scholarships sanctioned by the University of Rhode Island that are limited by race or gender? Here are two examples from the official URI webpage…

• Robert L. Carothers and Patricia Ruane Scholarship: Income from endowment for scholarships to minority students.

• Mary Braga Scholarship: Income from endowment for a scholarship to a female undergraduate in the College of Arts and Sciences of Portuguese descent. Preference will be given to a Rhode Island resident and to the older student. The dean of the College of Arts and Sciences will determine the recipient.

If the question never crosses the minds of URI's student solons, that could explain why the URI Republicans thought they needed a satire to bring their point home. Whether the URI Student Senate likes it or not, some people believe that non-discrimination policies should be truly race and gender neutral. And in the United States, those people have the right to express that opinion.

The Foundation for Individual Rights in Education has more detail on the case here.
"One of these Things" written by Joe Raposo and Jon Stone.

Post Office Sides with Time Warner Against Free Speech

Whether you're left, right or independent, PAY ATTENTION:

Earlier this year, the Postal Regulatory Commission (PRC) rejected a postal rate increase plan offered by the U.S. Postal Service. Instead they opted to implement a complicated plan submitted by media giant Time Warner. (Click here for a timeline)

Under the original plan, all publishers would have a mostly equal increase (approx. 12 percent) in the cost for mailing their publications. The Time Warner plan overturned this level playing field to favor large, ad-heavy maga