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Monday, January 09, 2006

Congress passes unconstitutional restriction against free speech

Update: 12 Jan 2006

Things like this will become criminal cases.

Judge Alito at his confirmation hearings discussed three forums for speech, each having different standards: Public forum [the street], semi-private forum [town hall meeting with rules], and private [a private office].

When we speak of communications on the internet, it appears the problem is that the existing principles -- the three forums above -- have not been dovetailed with the internet.

As the statute is broadly applied -- anonymous public speakers using the air waves -- such as actors who anonymous voice audience-focused political speech or attack ads -- could be subject to prosecution: For anonymously making annoying comments.

The similarity between blogging and anonymous political ads is striking. Both forums allow anonymous content providers -- bloggers, voice over actors -- to make comments about specific individuals.

It remains to be understood how many US attorneys plan to specifically target Screen Actor Guild voice over actors for their political attack ads. Political attack ads are designed to annoy people -- to make them think, cause them to vote, and tear down specific individuals.

We would hope that with time the principles of the three existing forums are applied to the internet. Namely --

  • 1. A blog is public forum, where bloggers can say what they like -- just as someone would speak in the street;

  • 2. E-mail sent to a specific individual is like a semi-public forum -- the content and sender can be regulated in that they cannot send spam, but they are allowed to present their message as if they were a door-to-door salesman;

  • 3. Websites and blogs that specifically advocate violence against a specific individual are not allowed;

  • 4. It is permissible to aggregate on a website or blug public information from open sources, just as any newspaper or law enforcement officer would collect information and present it in a report or summary list;

  • 5. The current statute is not designed to regulate content or require speakers, voice over actors, or bloggers to identify themselves;

  • 6. The statute is designed to recognize the three levels of public forums also apply to the internet: Some content and authorship is not required; some content is not allowed; and some contact is not permissible.

    It is our view that anonymous blogging on matters of public interest, or commentary about open source information is permissible, cannot be criminalized, and there exists no requirement for individuals to identify themselves when engaging in either private or public speech. The same rules should apply to voice over actors and the Screen Actor Guild Contracts.

    * * *

    Update 10 Jan 2006: The effort to overturn this statute is well underway [More . . .]. Here's what's been done in the past -- [Case documents] [Site]

    Key reason for permitting anonymous public speech about issues: It preserve the Constitution and the Checks and Balances in America, and will help stamp out government corruption and abuse of power [Rendition, abuse, unlawful wars, warrantless domestic spying] -- The Goal of the Magna Charta:
    "I saw the extent to which a system like apartheid was able to flourish thanks to censorship."

    -- Clinton Fein, Sept 15, 2000 -- San Francisco, CA Ref [Writings]

    * * *

    The new statute -- if applied in 1776 and 2006 -- would make the Federalist Papers illegal: They are anonymous, and designed to annoy the RNC.

  • Accountability is annoying to the RNC.

  • Criticism is annoying to the RNC.

    Reality is annoying to the RNC.

  • The Constitution is annoying to the RNC.

  • The rule of law is annoying to the RNC.

  • The talk of impeachment and war crimes is annoying to the RNC.

  • The talk of fabricated claims over Iraq WMD is annoying to the RNC.

  • Accurate budget forecasts are annoying to the RNC.

  • Reliable CIA estimates that there are no WMD in Iraq are annoying to the RNC.

  • Credible costs estimates of the most likely funding impacts required to sustain combat operations and provide body armor to troops in Iraq are annoying to the RNC.

  • Discussion that the military needed over 600,000 troops to do the job in Iraq, include a draft, and increase total troop strength to 1M draftees is annoying to the RNC.

    What other anonymous documents and writings will the RNC deem "offensive" because they choose to not assent to the rule of law?

    Not only does the America stifle needed-annoying speech -- by denying the public access to discussions between the Vice President and oil interests -- but now criminalizes anonymous discussion of that alleged corruption -- because it "might annoy" someone who deserves to be impeached for war crimes, high crimes, misdemeanors, fraud, and engaging in warrantless domestic surveillance.

    * * *

    Original Comments

    America likes to talk about freedom, but it's illegal if you exercise the freedom to speak: What a load of non-sense.

    * * *

    There are two broad principles involved. First, the issue of the reliability of information we receive. Second, the ability to publicly discuss conclusions related to that information.

    If the statutes is widely held/interpreted by the general public as something that prohibits them from speaking on contentious issues, then we have to presume the statute will have a chilling effect on the information flow. This does several things:

  • Makes open information less reliable;

  • Reduces the chances that a bonafide concern or risk is discussed;

  • Increases the chance that an underlying risk, trend, or problem is not addressed;

  • Increases the likelihood that a risk will not have been mitigated and generate a worst case failure;

  • Increases the risk that unlawful, unethical, and abusive conduct in corporations will go unreported through the open media.

    At the same time, the proponents of the statutes argue it is designed to do the opposite: Ensure there are sanctions for stalking.

    We judge the opposite: That the existing unresponsive legal system is more likely to come up with excuses not to investigate or review the matters; and conversely, fairly innocuous speech will be propelled into the courtroom as a deterrent against unfavorable views on controversial public matters and government programs.

    We fully expect the net effect of this statute will be to:

  • Stifle speech on matter of public interest;

  • Dissuade public discussion of government misconduct;

  • Afford a private right of action to government employees -- giving them another tool to retaliate against those who hold other views -- while denying the public a reasonable expectation that the law be stable, predictable;

  • Increase legal costs and confusion.

    In other words, a system that is already unresponsive to open public concerns has another tool to target those who not only identify themselves while participating in public protests -- as evidenced by the RNC fabricated videos -- but create a cause of action on the basis of failing to identify oneself, just as with the ID requirement.

    In America if you assert your right to be "left alone" and deny the government the opportunity to mess with you, "your reasonable reaction to that intrusion" -- discussion, commentary, warnings -- can be construed as the basis to impose additional retaliation: Criminal sanctions.

    It is likely the enforcement of this statute will be arbitrary, and likely targeted at high profile cases as a warning to others.

    Americans no longer have to wonder what it's like to live in a military dictatorship: You've got one -- a system that creates confusions, spies on you, and then holds itself above the law. If you dare speak of the truth, or by-name identify those who are involved -- you could be subject to prosecution.

    America is the land of the fraud -- and it should be no surprise why the frauds and criminal acts spread -- the potential consequences and public awareness of that misconduct is falling -- at the very time the American government asserts it has the right to violate the laws.

    Why aren't these restrictions and potential adverse consequences first applied to the leadership -- to let them enjoy the oversight, intrusions, and potential real risks of lawful retaliation for daring to notice reality?

    Some American pigs are more stupid than others.

    * * *

    Other comments here -- then again, the lawyers are saying, it's meaningless: See, e.g., ACLU v. Reno, 929 F. Supp. 824, 829 n.5 (E.D. Pa. 1996) (text here), aff'd, 521 U.S. 824 (1997).

    Here's one that's a bit more reassuring
    the statute can only be used when prohibiting the speech would not violate the First Amendment.Ref

    * * *

    What is to be said of the American Congress? Ref

    ..-. ..- -.-. -.- .. -. --. .-.. .- --.. -.-- .. -.. .. --- - ...

    * * *

    What's most annoying is that here we are in 2005 -- the land of the free -- and this statute essentially "throws everything into the air" as to whether we are or are not allowed to comment on issues.

    That is absurd. In theory, law is designed to guide, not create ambiguity; in practice, it's merely a convenient excuse to sew confusion, thereby ensuring the lawyers have another mess to sort out.

    And America claims it is providing "freedom" to the Iraqis -- get real! America is merely spewing forth non-sense to justify creating more non-sense.

    * * *

    Let's bite, and pretend [a] the law prohibits anonymous speech on the internet; and [b] the "vague annoying standard" is irrelevant -- namely the court finds that the speech, however lawful it might be, is deemed to be annoying, and the "vagueness" defense in re the constitution is ignored [See: 135 N.J. 517, 641 A.2d 257, 63 USLW 2015]. . .

    Part of the method by which the Founders communicated their views on the Constitution was anonymously. Does this mean that the Federalist Papers are, because they are annoying to terrorists, the basis for Enemies of the Constitution to bring a suit?

    Of course, if the US Attorney decides "it's in the interests" of the US to bring criminal charges against those who cite the Constitution or Federalist papers, I'm sure they'll do it.

    Oh, but we can't say what their names are, because we might get into trouble for making a specific person annoyed.

    * * *

    Part of the problem with this statute is that it attempts to regulate existing contractual agreements which did not include this provision.

    In other words, an agreement between a publisher and a writer to permit content distribution on the basis of anonymity needs to be considered.

    It remains unclear why an Act of Congress -- essentially overturning that agreement to allow anonymity -- would affect an ongoing relationship. Indeed, Congress may choose to regulate something -- the issue, however we might construe the statute, whether Congress has the original power to regulate content, speech, and communication.

    We argue Congress has no power to mandate a person specifically identify themselves before they can communicate; nor does the State have a role in determining whether an individual is "annoyed" by someone's free exercise of their right to express their personal views on public matters. Clearly, there is no protection against an individual making specific threats of violence against individuals by name or vague reference.

    Once an individual engages in public speech -- whether it be on a public matter or they engage in official acts [campaign contributions, official government acts] -- no longer do they enjoy a superior right to speech; nor do they have the power to threaten others to remain silent about their conduct.

    Moreover, there is a real threat of retaliation for speaking out about public conduct/misconduct/malfeasance/allegations of corruption.

    If those who claim they have been harmed -- merely because someone has stated something which others might not prefer to be aggregated, noticed, or commented on -- then the standard to measure a wrong shifts from whether the speech is protected, to whether the speech is offensive.

    This is not the role of Congress. Now we have unequal protection of the laws -- those who wish to anonymously publish or use pseudonyms to publish or engage in pornography have a protected right to freely engage in that commerce.

    Now, under the convoluted interpretation of the speech-identification clause, we suddenly have a specific requirement to provide identifying information as a barrier to avoid criminal sanctions. But the record in America is clear -- once someone identifies themselves, this is not a shield to prosecution, but a subsequent excuse to engage in retaliation for commenting on matters of public concern.

    There should be no requirement that someone provide identifying information; the audience is free to make up their own mind whether they want to agree or disagree with the message. The issue is not slander, defamation, or libel -- civil law, matters related to offensive speech that is false or harms the reputation of another based on a misrepresentation -- but of criminal law -- matters between the state and the person engaging in the expression.

    This tips the balance in how free speech is regulated.

    I agree there are situations where stalkers cause a problem for people who attempt to remove themselves from a relationship. At the same time, there is also the public right to use public information to make judgments, form opinions, and raise questions about public speech, acts, and conduct.

    It is absurd that "providing an identification" will make one immune to prosecution -- for this does not mean that the misconduct will stop, only that the alleged annoyance will be quickly squashed.

    For one to "intend" to annoy -- the courts generally link the conduct and whether the "reasonable man" would be annoyed. Yet, this is a very loose standard.

    Some have suggested this statute -- however interpreted by a prosecutor -- will never be enacted. They said the same of the Patriot Act.

    The length of time for an infraction is curious -- two years confinement -- while other conduct -- such as malfeasance -- may never be investigated, much less sanctioned.

    * * *

    Then again, why not rant about this . . . America sure likes to clamp down on free speech.

    * * *

    Let's consider an example. The national call in numbers to report crimes.

    People who man those are stupid, one of them whining, "Oh, nobody cares . . . " [wah , wah ]

    What happens if 'someone actually cares' and calls in to report misconduct?

    They do what the government typically does: They complain that there are "too many calls"; that the calls are "harassing"; that the "many calls about the problems" are just wasting their time.

    Get real!

    In America, if you actually notice what is going on, and attempt to do what you've been instructed -- "please let us know if you have a concern" -- they don’t really mean it.

    If you're visiting America, don't trust Americans. They don't really mean what they say. They just say what sounds nice.

    But their financial information, their statements, and their public comments are not reliable.

    You have to find out things on your own; but if you talk about it, or call them on their non-sense, they could sue you for "making them upset" at realizing they're looking in the mirror and seeing someone stupid.

    * * *

    What's up with that?

    Which precedents will they ask the world to ignore?

    It's possible to anonymously make a comment about a public act.

    Is Congress intending to over-turn the "Anti-Slapp" statutes allowing people to speak out on public issues, simply because the "person who was targeted" is annoyed?

    America is a shit hole.

    It's not worth calling yourself "The Land of the Free" -- just as long as everyone plays nice, and makes no comments about reality.

    * * *

    This is a completely ridiculous land. Who/what is America to call itself the "grand liberator" when we have to walk around worrying that we might offend someone?

    Many people who are stupid are easily annoyed by people who dare state what is obvious: They're idiots, unreliable, and are not worth the time.

    The public should be warned when there are potential issues with other people, especially when there are absurd and stupid comments.

    Are we saying that stupid people can make inane remarks; but the public is forced to remain silent, unable to:

  • comment on that stupidity; comment

  • unable to find out who these people are

  • Unable to aggregate publicly available information?

  • Unable to aggregate publicly available newspapers and provide fair comment on the person's position, access, and other public standing/

  • Unable to raise reasonable questions about the person who is providing funding to the RNC?

  • Unable to publicly discuss public information related to cell phones?

    Wow -- it looks like Google must be annoying to alot of people.

    * * *

    "Intent to annoy" is a very vague standard.

    Well, it looks like America -- once the land that enjoyed being the place where you could freely discuss issues -- is no longer.

    What a shit hole!

    * * *

    Wow, it sure looks like America isn't the place it's cracked up to be.

    America was founded on the idea of people who could speak their minds about public absurdity.

    Now we have to be "worried" that we might upset someone?

    Looks like I'll be departing America . . .

    Adios Americans.

    You have a shitty country, worthless laws, and an unreliable system of checks and balances.

    Who needs this crap?

    "Oh, we can't talk about the [ redacted ] -- we just have to silently pretend it is wonderful."

    You guys are robots!


    America is a [redacted] place. Ref.

    [Redacted] America. Your country is a Septic Tank.

    I am out of here!

    * * *

    This law will allow people -- who are stupid -- to convince others to be quiet about their stupidity. The law, if strictly enforced:

  • Allows no fair comment on others actions

  • Allows no public discussion about others stupid statements

  • Allows no public discussion of the specific-named-individuals in government who appear to support something that is unlawful

    Why the double standard on

  • Who can make stupid statements -- the world is not allowed to comment on that stupidity for fear of "annoying" them . . .?

  • Who can send money to arguably corrupt enterprises . . . but the public isn't allowed to anonymously comment on that alleged corruption . . .

    This statute essentially criminalizes matters the courts refused to recognize in civil court: Claims over defamation.

    But it is a defense to defamation to speak the truth.

    But now. . .in the [ redacted ] hole called America . . . if you dare speak the truth -- that someone is a moron, their comments [ redacted ], or their attitude is awful -- if you dare make an opinion about something that is a fair comment on their fair conduct . . the public is threatened with a lawsuit by the Federal Government.

    Not a civil case . . .but a criminal one.

    So, get this -- a moron, who makes a stupid comment -- can now argue that they are "offended" because someone makes a fair comment on their stupid statement.

    What a crock of [ redacted ]!

    How many more rights do you want flushed down your toilet America?

    You just lost your freedom of speech.

    The idiots are running your insane asylum -- and they want you to be quiet about -- threatening you with jail time if you say what is self evident:

  • Your country is [ redacted ]

  • Your leaders are criminals

  • You have specific-named individuals who deserve to be identified, and have their public comments ripped apart for spreading bullshit

    Is that the kind of country you want:

    Where people are not in fear of speaking out -- but you can be thrown in jail because some small minded moron -- who can't think, and is stupid -- is "offended" by being told what someone else can see:

  • They are an idiot

  • They work in a [ redacted ] hole country

  • They bow down to stupid religion

  • They do not think

    America, you have a screwed up place: One that commands you to "make nice" and "not call it like you see it".

    America, your government doesn't want you to express your ideas publicly; you are not allowed to call people idiots, morons, and jackasses for their stupidity.

    No longer can you say, "In my opinion this specific individual who has made an absurd comment is ridiculous because . . . [state your reasons] . . ."

    Why does America bother having an educational system?

    Why does America drill into people's heads rules about "precise thinking" . . .when the fruits of that education -- when applied -- might "offend" someone?

    Give me a break!

    America -- you want your fellow Americans to play nice -- well, now you have it, no longer can you be confident that people are going to speak out.

    You're going to have to learn everything the hard way -- because in the old days, when you might have been able to learn something by listening to others -- now all we can do is writing in metaphor, satires, and use humor.

    Why? Because we're not allowed to express our fair comments; now allowed to say the truth; not allowed to specifically say what is on our mind.


    Because some idiot, jackass, moron who loves to blindly obey orders and engage in lawful orders, may be upset that we have "dared use our mind" and dared to "point out" what is self evident:

  • Someone has made public comments that are inconstant with their actions;

  • someone who is a member of the RNC has paid money, and they work in a specific office . . .

    But we can't say the truth: Because we might "offend" someone . . .

    We can't complain about reality . . .because someone might be offended . . .

    We can't talk about the lying, corruption, and deception of government employees -- because, despite their malfeasance, they might get upset with having the truth thrust in their face:

  • They provide poor service

  • They do not respond to questions

  • They do not do their jobs

  • They provide worthless information

  • They do sham investigations

  • They are stupid Americans!

    Why would anyone want to have "their identification" known to those who are abusive, toxic, and willing to spew forth their non-sense?

    "Oh, but you can't exercise your freedoms unless you expose yourself to retaliation by those who violate the laws, and dare to retaliate against those who say what is self evident."

    America: How do you possibly hope to get any reliable feedback about:

  • Employee performance

  • Law school teachers

  • Neighborhoods

  • The reliability of local government

    "Oh, we can't talk about reality . . we might offend someone . . . "

    But to make it worse . . . .you can't name specific people because you might offend them. . .

    But the idiots can offend us with their stupidity . . . but we can't do anything -- because the morons are too stupid to realize what they're doing -- and can claim "we didn't intend to annoy them" -- when the real problem: They're fucking morons, do not belong near a computer, and are a clear and present danger to the American Constitution.

    You idiots! Your Congress just took away your right to speak out about:

  • Problems

  • Deviations

    Because the idiot you're talking about can claim, "Oh, woe is me -- they were trying to annoy me by speaking out about reality . . . "

    You wonder why your government is shitty? Because you have idiots for staffers, who are lazy, won't ask questions, are have no clue what they're doing.

    "Oh, whatever you say, DoJ . . . we don't want to offend you . . .we believe what you’re saying. . . "

    Who wants to live in a place where government can abuse -- but the public has to publicly identify themselves before they can talk about the truth?

    Is that what you want for a place?

    What a [ redacted ] hole!!

    You like groveling on the ground, "Oh, I don't mean to offend but . . ." That is so weak -- every time we have to start a statement and be polite to these morons.

    Well what about the rest of the world: The ones who have to put up with their bullshit:

  • Stupidity

  • Malfeasance

  • Lying

  • Stupid statements

    We're supposed to put up with their bullshit because "it might annoy them" if we say what is obvious!?!?!

    Give me a break -- why doesn't America just vote for morons for public office. "Hi, I'm a moron -- I have no clue what I'm doing -- I can't possibly offend anyone."

    What point is there educating people -- if, when they provide a comment, they have to "be concerned" that they're going to offend someone?

    And you thought "talking behind your back" is a problem . . .it's only going to get worse . . . but if you dare "talk about reality" you have to identify yourself.

    Just think, next time you're in a cyber cafe, and you want to simply say what is on your mind -- you can't really say what's on your mind -- because the plaintiff -- that asshole who is a moron, and may hire a lawyer -- may go to court, file papers . . .

    What a waste of time!

    Alert: This just increased the Director & Officer Liability insurance rates.

    Guess who has to pay for that? Rights -- you!

    Just so you can speak your mind, you have to pay more money.

    Same thing with auto insurance -- We all have to have it "just in case. . . "

    What a load of non-sense!

    [ Redacted: Many obscene, lewd, lascivious, filthy, and indecent comments related to personal outrage over this censorship ]

    That's what it is .....!

    How is identifying oneself going to contribute to the Constitutional goal of a "better society" -- I'm free to express my ideas, questions, as they are.

    If someone doesn't want to read them -- how can my words realistically offend them -- unless they choose to be offended.

    Why can't the fact that I speak as I do -- be what it is -- my expression -- why do I have to "be concerned" that I might offend someone.

    How will identifying myself contribute to my freedom?

    All it's going to do is give those -- I want to keep my distance from -- a method to retaliate.

    Why would I trust DoJ: They are abusive, unresponsive, and arrogant.

    And now America passes a law saying that "we must" identify ourselves -- those idiots in DoJ are why we are in this mess.

    "Oh, but we can't talk about the specific individuals in DoJ by name -- no, we have to talk in vague terms. . . "