Tagged: strict scrutiny

Law 40 Wawkeism

Sep 2023-Mar 2024

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Wawkeism

“China Blasts German Foreign Minister Over ‘Dictator Xi’ Jibe” (Hindustan Times, Sep 2023)

Why are woke politicians such bellicose hawks? I am coining the word wawk for them. But no matter how wawk is a hen, it can only peck small chicken.

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Taliban’s Heinous Surveillance Cams

“Taliban Plan Mass Surveillance Network in Afghanistan Using U.S. “Security Map,” China’s Huawei” (Crux, Sep 2023)

Cameras are law enforcement tools. Taliban, like other governments, will enforce legislation with the help of cameras. When human rights organizations express concerns about a mere tool with which laws will be enforced but these organizations in fact consider that the laws themselves do not abide by human rights and are the problem, it is idle talk as far as their speech focuses on a universal tool rather than specific and allegedly problematic laws. These organizations show themselves as mere anti-Taliban pecking hens. Tomorrow, if they can find nothing else, they will express concern that the Taliban have a police force. When you express concern that the government of a country uses the same police measures as other countries, you are pecking like a hen.

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The right to advocate and incite unlawful conduct

“Influencer ‘Meatball’ appears to be arrested while livestreaming looting rampage in Philadelphia” (New York Post, Sep 2023)

Streaming is not looting. The influencer has First Amendment rights. The First Amendment allows advocacy of unlawful conduct and the influencer’s arrest was unjustified.

She has a First Amendment right to incite riot or looting or any other unlawful act one can think of, provided it is not inciting (1) an imminent act (2) likely to occur: Brandenburg v. Ohio. As she was livestreaming on her blog, she was not even addressing the crowds around her, which is the only way in which her speech could have resulted in imminent unlawful action likely to occur. There is no incitement relationship between the looting and her gloating over it.

But even if she had livestreamed herself addressing the looters, “Well done, guys!,” this is not incitement either because congratulations cannot be incitement, as the former follow the act while the latter precedes it. Furthermore, even if she had said “Well done! There is another store next door,” the looting started before her speech, and if this speech (“go to another store after this one”) could be incitement in this context, then congratulations would be incitement as well, as a warmup, but congratulations cannot be incitement by definition. As one has a right to advocate wrongful conduct, one obviously has a right to cheer over wrongful conduct, even if this could be said to warm up wrongdoers.

To be sure, congratulations may also occur during, rather than after, the act, but during the act is still not before the act, and one needs precedence to talk about incitement. If there were incitement in the present case, it would be incitement to keep looting and not to start looting, but if it could be said that such a thing exists as incitement to continue doing something that people had already started doing, then there is obviously no possibility that cheering could be protected by the First Amendment as it is in a free country where advocacy of unlawful acts is protected.

Even if addressing looters in one store with such words as “Loot the next store too” has some formal characteristics of incitement, it is not incitement, here, because for speech to be incitement it must incite, again, an imminent act likely to occur, and if the imminent act was likely to occur already before the speech, the speech is not inciting, it is only cheering, rejoicing, reveling, gloating… Looting has material interests attached to it, people loot for goods and merchandises; this motive is self-sufficient without the need to add cheering as a likely cause of continuation. As an individual caught in the middle of a rampage, and liking it, some of the influencer’s words had a few characteristics of incitement but her speech lacked other characteristics and they are all needed together to characterize unlawful speech.

The arrest follows a typical pattern of police frustration, where, most of the wrongdoers escaping arrest, police turn against a person for her speech. This is not acceptable under a Constitution with First Amendment. Besides, the arrest psychologically relies on an outdated notion that people on the street have a legally enforceable duty to make citizen’s arrests (called hue and cry): when, in the past, such a duty existed, a person running with the crowd after, say, a thief on the street while cheering for the theft at the same time was obviously unlikely.

To sum up, “keep going,” in whatever form, is not incitement. The looters were not triggered by the person’s speech. Gloating over wrongful acts is protected speech, as a form of advocacy.

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While Western governments and media were stressing that some Russians tried to emigrate to escape the draft, and this was described as a blow to the Russian regime, they asked European populations to welcome and accommodate millions of Ukrainian refugees who were fleeing not only the war zone in their country but also their country itself. In other words, while these governments and media asked European people to fund the Ukrainian army, they also asked them to welcome Ukrainian men escaping military service for the country we were supposed to root for. Ukrainian refugees had a duty to take refuge in their own country in order to enlist in the Ukrainian army; their coming to Europe has been opportunistic, to the best of a rational agent’s understanding.

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On the “hypocrisy of the international community” regarding the treatment of civil casualties in Ukraine and Palestine. The parallel between Ukraine and Palestine would be more adequate if Western nations held Ukraine accountable for Russian civilians’ deaths, which they are not doing, whether it be because there are no Russian civilian casualties (but there are: see below) or for the same reason they keep largely silent on Palestinian casualties, namely because they support Ukraine’s goals as they support Israel’s ones. They only see civilian casualties when the “bad guys” are responsible.

Nota Bene. 1) Since the beginning of the war, there have been Ukrainian attacks on Russian territory. 2) There is a significant Russian minority in Ukraine. If you refuse to call them ethnic Russians, you will count them as Ukrainian casualties rather than Ukraine’s victims; how convenient.

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Aerial invasion and mass bombardments have become the number one modus operandi of technological war, and this type of warfare is highly indiscriminate and lethal to civilians and civilian infrastructures, especially when faced with guerrilla warfare. This, among other things, is the reason why Western nations are reluctant (to say the least) to condemn the bombardments on Gaza, because they know they would do the same, namely indiscriminate mass bombardments, in the same situation, regardless of international law. The existence of Palestinian enclaves (the relics of Palestinian territories) surrounded by Israeli territories allows this to happen, and the so-called “human shields” in these enclaves are all the present and living Palestinian Arabs.

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[British] Police ‘treading a very fine line’ | Pro-Palestine protesters provided with leaflets on antisemitism” (GBNews, Nov 2023)

These leaflets are police provocation. Police target law-abiding citizens, namely pro-Palestine demonstrators, telling them through leaflets: “We are confident that you may be criminals.” Of course, this serves to dissuade people from joining the movement, as individuals who decide to join know they would be under police surveillance as suspected criminals. These leaflets are blatant discrimination.

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“Algerian footballer Youcef Atal convicted by French court over Gaza post” (Islam Channel, Jan 2024)

The fact it took less than three months for a French court to pronounce a condemnation (for a post dated Oct 12) is unusually swift for a so-called speech crime. So much so that a political spin may be suspected in the procedure, in relation with the current atrocities taking place in Palestine. Besides, if Youcef Atal has no criminal record, his sentence is unusually harsh, even taking into account the suspended part of prison time. (He probably doesn’t have a record; I only say “if” to avoid making believe I know his file personally.) The sentence is unusually harsh and the trial unusually swift, which hints at political pressure to speed it up and at a political sentence. This was a political trial, not a fair trial.

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Of Salutes and Flags

“Hundreds Perform Nazi Salute in Italy. (…) Banning the Nazi salute opens the Pandora’s box.” (FirstPost, Jan 2024)

The Pandora’s box has been open for decades in France and I confirm politics is a joke here.

Contrary to wearing uniforms and displaying paraphernalia, the salute per se is not an offense in the French books (as such it is forbidden in stadiums only) but the courts condemn it nevertheless as incitement to racial hatred. Thus, where the law actually forbids, say, the display of Nazi flags, the guilty may have to pay a 1,500€ fine, but where the law says nothing but courts nevertheless filled in the gap, then one may incur one year in prison and a 45,000€ fine. The legislator said nothing on the salute but the salute is punished as racial hatred, whose penalties are substantially heavier than for Nazi uniforms and objects that are statutorily punished by a much smaller fine, even though the obvious display of objects, if the salute is racial hatred, is racial hatred by the same token. So much so for consistency.

Finally, neither the law nor the courts limit the scope of the law to the Nazi and Italian Fascist parties; their phrasing targets organizations condemned by the Nuremberg and other trials in 1945 and other organizations condemned for crimes against humanity. Which means displaying the Israeli flag should be punished by French courts when the International Court of Justice (ICJ) rules that Israel has committed or is committing a genocide.

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Defamation and the Fair Trial Principle

(For those reading French, see Droit 39 “Diffamation et Droits de la défence.”)

a) Speech during a trial
b) Speech after a trial

a) In Trump’s defamation case, what has been condemned is basically Trump’s defense in his sexual offence trial. When you defend yourself in a trial, what in other circumstances might be called defamation is protected speech, because otherwise no one could defend themselves in a trial and no one could have a fair trial. Trump’s defense was protected from defamation suits in the context of his trial. The federal prosecutor talks about Trump’s tweets, interviews, after this or that audience, at this or that time, but she fails to tell us how the points she stresses are outside the protection that Trump’s speech, like any other accused person’s speech, was afforded for his defense. Think about it, now when one is brought to court and wants to dismiss their accuser’s allegations, that is, when one defends themselves, if they lose the trial, they will also lose a defamation trial because they dare defend themselves?

In this particular trial, protected speech was not limited to the precinct of the court, because both parties were public figures and the trial was in the mass media as much as in the court. Therefore, it is obvious that Trump had a right to express himself on the trial in the media, that is, he had a right to carry elements of his defense to the public via the media, which were dealing with the trial. Consequently, his speech was protected as defense speech in a trial, and at the very least, if it could not be protected because in some similar cases this had been previously ruled out, Trump may have been in good faith about his rights, about the extremely important rights of speech protection in a fair trial. This condemnation conveys the suggestion that the court treats protection of speech quite lightly, even to the point of ignoring it. What citizens will remember of this trial is that by defending oneself in a trial one may incur another trial for defamation.

Defending oneself in a trial, if it is libel, is protected libel. Trump lost a libel case after he was sued for commenting his own trial on the internet and in interviews. His comments were merely to tell what his defense is in the case, namely that his accuser is a liar. These people mean he was the only person on earth compelled to keep silent about his own trial? There can be no fair trial at all if your defense is liable to be treated as libel because a judicial trial is basically, for starters and some dubious characters here involved, reciprocal aspersions.

b) Besides, you can’t defame someone whose reputation is not at risk. Since the court said a party to a trial did not lie, this party is reputed to not be a liar, and when the accused keeps calling her a liar this cannot taint her reputation. The whole libel suit is flawed on principle. An American citizen has the right to keep claiming he is innocent (and his accuser is a liar) after he was found guilty by a court of law. You can’t sue for libel a man who claims his innocence. He claims his innocence but the accuser has been vindicated by the court, the court’s judgment therefore precludes that the person the court found guilty, when he keeps claiming his innocence, commits libel, because there can be no damage to the vindicated accuser’s reputation in such a claim.

Conclusion

When I say “I am innocent,” I am saying (unless I believe my accuser is making a mistake, a precision I would then be well-advised to articulate) that my accuser is lying. Someone wanted to object to me that, had Trump said he is innocent, he would not be sued for libel (quote: “He’s not being sued for claiming he’s innocent”), but, as this person claims, as Trump said his accuser is a liar he is being sued. I call everyone’s attention to the fact that had Trump said he is innocent, these very words (“I am innocent”) would accuse his accuser of lying, which my detractor says is deservedly sued for libel. His viewpoint is therefore inconsistent and unfamiliar with libel law.

Annex

“The Adult Survivors Act (ASA) is New York State legislation enacted in May 2022 which amends state law to allow alleged victims of sexual offenses for which the statute of limitations has lapsed to file civil suits for a one-year period, from November 24, 2022, to November 24, 2023.” (Wikipedia)

There are statutes of limitations for a reason, the bill is tailor-made and unconstitutional. The laws of the state have statutes of limitations but the lawmaker of the day, although acknowledging the relevance and goodness of said statutes, suddenly finds it expedient to cancel them for a short, limited period. Expediency considerations do not belong to the legislative power, lawmakers must make good laws and repeal bad laws. If statutes of limitations are good, they must leave them alone, if they are bad, they must repeal them. This temporary cancellation of statutes was an unconstitutional infringement on the judicial power, to which the laws of the state say that statutes of limitations are good legislation they must abide by. This legislative self-contradiction is constitutional insanity, that is, unconstitutional remissness.

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Corporate Speech and the First Amendment

There is no such thing as corporate speech, as speech is protected as a political right, that is, speech protection is the result of a connection to the electoral process and ballot. The right to vote is the condition for protected speech. The Supreme Court of the United States must reverse Citizens United v. Federal Election Commission and allow the legislator to regulate and limit so-called corporate speech.

Commercial speech is not fully protected (in contrast to hate speech for instance). The U.S. constitution does not want advertising to flood the “marketplace of ideas,” so the notion that websites have a constitutionally protected freedom to censor content for the sake of advertisers is fanciful. The lawyer we heard in Moody v. Netchoice talks of “users and advertisers,” but he really thinks “advertisers” only because advertisers are the platforms’ source of income, not users. Besides, users and advertisers shouldn’t be thrown in the same bag as far as the First Amendment is concerned, because commercial speech is protected from state regulation only partially, while the user is an agent on the marketplace of ideas and has the right to vote, that is, the right to determine the states and nation’s policies.

When you’re watching a political debate to make a choice on who you’re going to vote for, you’re in a speech environment. When the broadcast is cut for commercials, you’re leaving this environment. Next thing you know, they’ll tell you a football game is “speech.” The Founding Fathers did not fight tyranny for this.

Furthermore, private censorship by platforms is infliction of emotional distress, a tort. When a platform user makes a speech that the U.S. constitution protects and he is censored by the platform because of his speech, the platform is a platform for speech but acts as a private club, or a church, or a private property. However, the platform attracts users to expose them to commercial speech, advertisers being their source of income. The platform has a minimal duty to the user in the circumstance, which is that, as long as they abide by the law, users must be free on the platform. Anything else is ruthless exploitation by platforms exposing gagged masses to advertising and mind manipulation.

Thus, the reasoning is along two lines. 1) Private censorship by platforms might be liable to tort actions. 1a) It could be for invasive moderation, invasion of others’ rights. It would be absurd to claim a platform owner can shield a manic staff who harasses targeted users, like an ex-girlfriend, through flagging their posts manically. Not admitting that a platform can be sued for moderation is like saying they can staff their moderation offices with maniacs and that would be just as good. Absurd. 1b) Then, a notice on posts could well be libel, depending on the notice, but even a removal could have the same effect on one’s reputation. Even though platforms cannot be liable for users’ content (Section 230), they are liable for moderation. Moderation is speech and not all speech is protected; moderation can be unprotected speech where libel laws obtain. Section 230(2) provides “Good Samaritan protection” for bona fide moderation, it isn’t a blanket protection.

2) A law curbing platforms’ speech regardless of the First Amendment could pass the strict scrutiny test because of the so-called preferred position doctrine that applies in case of conflicts of rights. As currently the First Amendment cannot ensure for free, voting citizens the free flow of information and ideas against encroachments by platforms, a statute is needed. That statute will be upheld against the private companies’ claim that it violates their, the companies’ First Amendment right. Indeed, corporate speech has not as strong a status as citizens’ speech, all this ultimately deriving from the common law, where property is not a source of absolute discretionary power. Corporate speech is twofold: commercial and political. Admitting that corporations’ political speech is equally protected under current precedents (since Citizens United), that’s not the case of their commercial speech. This enables one to say that, according to the existing positive legislation, corporations have fewer First Amendment rights than individuals.

The envisioned statute can specify the kind of companies concerned, same as there exist statutes regarding “common carriers.” Some time ago, Justice Clarence Thomas floated the idea that internet platforms are common carriers. If this is what they are, the platforms will realize that a statute can impose duties on companies, on private property. Malls are a good example in the discussion. See Logan Valley Plaza (1968): “Logan dealt with the right to use private property as equivalent of public space”; “A business in a privately owned shopping center cannot prevent labor picketing in its surroundings.”

– Wouldn’t narrowing the scope of 230 potentially incentivize U.S. companies to register abroad? Of course internet companies have to comply with each country’s local laws and ICCPR but that concerns, to my knowledge, widely what should and must be censored – not what cannot be censored, as long as the terms are enforced without prejudice. (G. Muller)

These American companies operate in foreign countries where they are under obligation to censor content (see for instance the European DSA–Digital Services Act). Why would they register abroad if tomorrow these companies come under an obligation not to censor content in the U.S.? Registering abroad, they would face the same compulsions as if registering in the U.S., namely: to censor abroad, not to censor in the U.S.

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Firepower and the Second Amendment

Whether a legislator wants to ban machine guns or bump stocks (see Garland v. Cargill about the constitutionality of a Trump-era ban on bump stocks, currently examined by the U.S. Supreme Court), this is a vicious wish because enactment is unconstitutional. The Second Amendment means that the state cannot tamper with the gun function of guns. If you can ban bump stocks, nothing can stop you from banning anything except toy guns shooting soft rubber bullets while claiming the U.S. constitution has a Second Amendment. “Militias” that are “necessary to the security of a free State” need more than toy guns, they need the deadliest weapons on the market.

A militia being necessary to the security of a free State, it needs the deadliest weapons. We all know you don’t need a machine gun to go hunting, but this amendment wasn’t written for hunting. It was written for the security of a free State. We also know that whether a “well regulated militia” is something of the irretrievable past or not, it is not what the Court is asked to consider, because this is only the premise of the amendment, and it is the amendment’s prescription that is the standing and binding rule, namely that the state don’t infringe on the people’s right to bear arms for the security of a free State.

In other words, whether well regulated militias have been existing or not these last decades, it still obtains that the people’s right to bear arms is necessary for the security of a free State according to the constitution. You can’t deny it without hollowing out the amendment. The constitution is not concerned about what rifle or what firepower a hunter needs to shoot a deer, so that lawmakers could put a limit on the firepower legally available to citizens. The firepower constitutionally available to U.S. citizens is the firepower necessary to the security and existence of a free State, that is to say, the deadliest weapons available. All restrictions on this account are unconstitutional.

The Second Amendment forbids the state to consider that its standing army has made “well regulated militias” unnecessary to the security of a free State. But the right to bear arms is a people’s individual right, not a militia’s collective right. The authors of the amendment made this obvious and they made it so lest, through devious statutes, militias became annexes to the standing army and/or the states’ administrations (which is actually the case with the existing militia statutes and militias). The people’s right to bear arms entails the unrestricted freedom to achieve maximum firepower, because the security of a free State entails the ongoing validity of the constitution itself, that is, there can be no higher duty for a U.S. citizen than the security of a free State, and therefore, as this highest duty requires arms, lawmakers cannot impose limits on the firepower available to citizens.

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Removing Names from the Ballot

Trump has not been convicted for insurrection. Statutorily removing his name from the ballot for insurrection (January 6 events) amounted, therefore, to removing his name because “somebody” is saying Trump is an insurrectionist. This “somebody” could be my grandma or your grandpa or the current President of the United States, it doesn’t matter, this somebody is nobody. Coloradan authorities lacked a legal basis for their action. The only possible legal basis would have to be an actual conviction for insurrection, and not only an indictment because from indictment to conviction the indictee is presumed innocent (Coffin v. U.S., 1895). You cannot remove a person from the ballot for sedition when this person is presumed innocent of sedition. That the Colorado supreme court thought otherwise is baffling. Coloradan authorities misused their authority.

“Colorado should be able to bar oath-breaking insurrections from our ballot,” a Coloradan official declared after Trump v. Anderson. Well, you can do that, Colorado state, only you don’t have the power to say who is an insurrectionist and who is not, it has to be a court of law, with an actual conviction, which is the small detail missing in your operation. You are a government, not a court, and although you would like to convict Trump for insurrection, you don’t have this power and you removed from the ballot a person as innocent of insurrection as your own officials until proven guilty by a court. Colorado state intended to gather in its hands the powers both of an executive and the judiciary, and these people don’t even seem to realize how spiteful this is to fundamental principles.

Detractors of SCOTUS’s Trump v. Anderson (2024) are now considering a federal bill, which is the obvious option given the angle in the court’s decision. In my humble opinion, however, this was not so much a state versus union issue as an executive power versus judicial power, a checks and balances issue. To remove an “insurrectionist” from the ballot is not allowed to a government absent a judicial sentence about said person. As a commentator already put it, the bill smelled a lot like a bill of attainder, and by floating the idea this commentator made it clear that in his opinion the issue was not whether states (as opposed to the federal state) could take such a step but whether the authorities of a state and/or federal authorities could pass a bill targeting people who have not been convicted by a court and at most are indicted and still presumed innocent. And the answer to the latter question is an obvious no.

If the ballot removal act is a bill, it is a bill of attainder, forbidden by the attainder clause of the U.S. constitution. If it is an executive act, it lacks legal ground, which could only be an actual conviction for insurrection or a bill. An executive act depriving a citizen of his rights (the right to participate in an election) without legal ground is misuse of power. It seems these people have been taking the partisan Jan 6 house committee for some kind of court of law because they’re always talking of insurrection as if guilt has been proven by a court. However, a claim of insurrection is at this stage a mere fancy and cannot serve as legal ground, the Jan 6 committee notwithstanding.

The issue is people’s right to be candidates for elections when there is no charge of insurrection against them and all other conditions are met for their being candidates (age, nationality, and so on). This right is constitutionally protected. Neither a state nor a federal act can deprive an American citizen of this right on a mere fancy of insurrection. And for a claim of insurrection to serve as legal ground, guilt must be proven by a court of law, by a final conviction in a court. Indictment is to no avail in this regard because indictment is an executive act, and a legal ground could only be a judicial act by an independent court after a fair trial.

What, then, would such a federal statute aiming at removing Trump from the ballot be? Absent a conviction by a court of law, it would be a bill of attainder, forbidden by the attainder clause of the constitution. The bill would be both a judicial, individual judgment (“Trump is an insurrectionist”) and a legislative act (“Therefore he must be booted from the ballot”). Bills of attainder are unconstitutional because of the fundamental principle of separation of powers. To rule that “Trump shall be booted from the ballot” you need a prior judicial, individual judgment stating that “Trump is an insurrectionist.” This judgment is missing. To remove Trump from the ballot, a law could be passed without being attainder if it were so worded: “Any person indicted (not convicted yet) for insurrectionary acts shall not be accepted as candidate.” However, how could this be congruent with the presumption of innocence? The government could indict any person and these people would be deprived of their right to be candidates for elections without judgments by independent courts. That would be unconstitutional too, a misuse of power.

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Porn being legal in the U.S., a platform needs to moderate its content to bar porn. No one can object to such moderation, but then, using the argument, the platforms become willing witch hunters for the administration. The solution is to make porn illegal. Filmed pornography being based on meretricious contracts, its very making is illegal to begin with (see Law 22 “Pacta turpia cannot be speech”).

Platforms need to moderate content because porn is legal in the U.S., with the valid argument: “We need to moderate content because we’ve got to bar porn from flooding our platforms since it is not police job but ours.” Therefore, ban porn again. Porn is no more speech than a football game (and much more damaging). Stop the nonsense, the only reason they – mafia lawyers – say porn is speech is because in the U.S. speech is protected. How can filmed pornography be legal in states where prostitution is illegal (all states except Nevada), when the making of filmed pornography requires the same meretricious contracts as prostitution? Filmed pornography is filmed prostitution, and if there is such a thing as crime prevention the making of filmed pornography should be prevented in said states. You’ve got to be consistent.

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Some ethical remarks on police interrogation techniques

1) The right for a police officer to be deceptive during an interrogation

Ask yourself why it is not okay for a juvenile service officer to be deceptive, but it is for a police officer (these are interrogation regulations in the states, where the presence of a juvenile service officer is mandatory when juveniles are interrogated by police). There can be no good reason, for in the former case a moral commandment prevails while in the latter expediency does, but if it is a question where a moral commandment applies, expediency is not a legitimate concern. Criminals use deception to conceal their crimes. As the outcome of Alyssa Bustamante’s trial shows, the police officer’s occasional deception during the interrogation was not even decisive, since the whole interview was dismissed as evidence and yet Bustamante was convicted.

2) Sitting close to the suspect

In normal social interactions, especially in the U.S., one would not sit so close to a stranger as the detective to the suspect here (no need to specify the case) without an intention to intimidate or even assault the stranger. Why should a detective be allowed to intimidate a suspect? Truth requires dialectical skills and the state should not tolerate other, bullying, humiliating techniques. According to proxemics, imposing a spatial distance shorter than the socially accepted distance between two interacting strangers is indeed a form of humiliation and degradation.

3) Telling the suspect to look at you in the eyes

Telling someone to look at you in the eyes, as the detective does with the suspect (no need to specify), is outrageous in normal social interactions. It is a request that, between strangers, could easily start a so-called “trivial altercation” resulting in homicide (such trivial altercations between strangers are a cause of 37% of all homicides). In other words, for a detective to talk like this is a misuse of power.

Between two strangers, the reaction of a normally constituted man to an injunction to “look at me in the eyes when I’m talking to you” is some kind of  “f*** you.” As this is not an option for a suspect interrogated by a police officer, the suspect is degraded. To be sure, between strangers, there is no such thing as asking their ID to someone and other such things either; however, police are entitled by law to make such requests, whereas to our knowledge there is no legal ground formally allowing a detective to carry out an interrogation by asking the suspect to look at him in the eyes. An interrogation can be carried out without the suspect being forced to look at people in the eyes if it is not his habit.

Lessons in Law 6

Dec 2020.

Bolshevik Control

I must stay on the court in order to prevent the Bolsheviki from getting control.” Chief Justice William Howard Taft, 1929

It must have been no small peril as the Chief Justice could utter such words.

ii

On the other hand there are those who trivialize the matter using the phrase “red scare,” blaming people such as Chief Justice Taft for irrationality.

iii

The record of Communist parties’ participation in coalition governments in European countries (like France) remains unscrutinized. What you’ll find is their consistent voting for the curtailment of fundamental freedoms.

iv

In June 1919 the Overman Committee of the U.S. Senate concluded that Communism in Russia was “a reign of terror unparalleled in the history of modern civilization.

v

Since 2011, the United States National Aeronautics and Space Administration (NASA) has excluded the Chinese government and China-affiliated organisations from its activities, including using funds to host Chinese visitors at NASA facilities.” (Wkpd: China exclusion policy of NASA)

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In 1943 the Chinese Exclusion Repeal Act of 1943, or Magnuson Act, repealed the 1882 Chinese Exclusion Act, allowing for an annual quota of 105 Chinese immigrants, at the same time maintaining the ban against ownership of property and businesses by ethnic Chinese.

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For those who think hate speech is unprotected, please read Snyder v. Phelps, 562 U.S. 443 (2011). The Supreme Court held that the WBC [Westboro Baptist Church]’s hateful picketing was protected speech. And Wikipedia correctly cites me as the source of the protection. ([a Twitter user named] The First Amendment)

“Hate speech” is a name found by those willing to shield group lobbying from people’s scrutiny. To those who’d retort that using the n-word and other such words isn’t “scrutinizing group lobbying,” I have this to say: “One man’s vulgarity is another’s lyric” (Justice John Marshall Harlan).

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Les émissions littéraires et les écrivains qui se rendent sur ces plateaux sont à la littérature ce que la télé-réalité est à la réalité : de la « télé-littérature ».

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En France nous avons eu des ministres communistes et nous avons toujours des parlementaires communistes mais demander la même liberté d’expression qu’aux États-Unis est impensable.

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Invasive Moderation (Part 3)
The Corporate Frankenstein

For Part 1 read here, for Part 2 here.

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Twitter is going wild with their flags, trying hard to suppress even the truth. Just shows how dangerous they are, purposely stifling free speech. Very dangerous for our Country. Does Congress know that this is how Communism starts? Cancel Culture at its worst. (Pres. Donald Trump, Dec 24, 2020)

Twitter’s flags are Twitter’s free speech. But sure go with “free speech is how communism starts” and see how far that gets you. (The First Amendment)

As a few tech companies today have the power to stifle the “free flow of information and ideas” that the First Amendment’s aim is to ensure, to do nothing about it is to make fun of the Amendment rather than to pay it due respect.

To compare Twitter’s policy with an individual’s speech is bogus. A company follows a predefined corporate purpose. At best its speech should be construed as “commercial speech,” with limited protection only.

(Nota Bene: As in the next tweets I speak of the political speech of corporations, it should be clear to you that the statement here is about what corporations are in essentia according to me, like the “End Corporate Personhood!” message on the placard there [Middle Tennessee State University’s First Amendment Encyclopedia: Corporate Speech].)

Commercial speech has only limited protection: “For commercial speech to come within that provision, it at least must concern lawful activity and not be misleading.” (Central Hudson Central Hudson Gas & Electric Corp. v. Public Service Commission [1980]). And in the earlier state of affairs commercial speech wasn’t protected by the First Amendment at all: see Valentine v. Chrestensen (1942). – An individual’s speech isn’t subject to these conditions.

As to corporations’ so-called “political speech,” since Citizens United v. Federal Election Commission (2010) it gets broad protection but the decision deals with “political speech in the form of contributions and expenditures on behalf of candidates and political issues,” not in the form of internet moderation affecting the free flow of information and ideas. Twitter Inc. has the First Amendment right to contribute financially to the campaign trail of a candidate, that’s all, there’s nothing about First Amendment protection for flagging other candidates’ tweets in the bargain.

Next time I’ll comment on Amalgamated Food Employees Union Local 590 v. Logan Valley Plaza (1968): “Logan dealt with right to use private property as ‘equivalent’ of public space.

ii

A corporation isn’t the government. The First Am. is applicable against the government or private entities acting under color of state law ONLY. And Twitter ain’t that. (Ava)

As the First Amendment cannot ensure the free flow of information and ideas against private encroachments, a statute is needed. I am arguing that that statute will be upheld against the private companies’ claim that it violates their First Amendment right.

Indeed, corporate speech has not as strong a status as citizens’ speech, all this ultimately deriving from the common law, where property is no source of absolute discretionary power.

The Supreme Court of the United States has to balance on one hand the free marketplace of ideas, which a statute will maintain, and on the other hand the rights of trustlike corporations, which a statute will regulate for the good of the commonwealth just as numerous statutes do already.

Corporate speech is twofold: commercial and political. Conceding that corporations’ political speech is equally protected (since Citizens United), that’s not the case of their commercial speech. This alone enables one to say that corporations have less First Amendment rights than individuals. => 1>.5+.2

But wait… how can you argue with… MATHEMATICS!??!?! (Allen)

Algebra is as good a form of logical thinking as another.

At least according to Bertrand Russell.

But a true algebraic formula here would be: 1>.5+x 0<x<.5 or 1>1/2+x 0<x<1/2

Given different >levels< of scrutiny by courts, one could easily translate the whole thing into algebraic formulae.

iii

Because of Citizens United, courts will apply strict scrutiny on the bill I envision (as moderation by internet platforms such as Twitter would be deemed corporate political rather than commercial speech, and so receive full rather than limited protection). Precisely! I’m arguing that in any case the compelling interest called for by strict scrutiny exists, as it is about guaranteeing the free flow of information and ideas.

The First Amendment is a means to an end: the free flow. When people complain about private platforms not respecting the First Amendment, technically they’re wrong –correct– because they mistake the means for the end but in fact they are complaining about impediments to the flow.

Those who complain about platform moderation invoking the First Amendment mistake the means for the end but those who deny them the right to complain make the same mistake. It’s 1A for the sake of it; that is called fetish worship.

iv

Commercial speech is speech that has a commercial purpose. Even an individual can produce commercial speech, and if so, is also subject to government regulations on commercial speech. i.e. commercial speech != [different from] speech by corporations. (Bob)

The difference is that there’s no corporation without commercial speech, without a part of it devoted to that sort of speech that was not even considered to be speech until the 1970s.

Think about it: “corporate-political-speech.” Where until Virginia State Pharmacy Board v. Virginia Citizens Consumer Council (1976) corporations’ commercial speech wasn’t even considered to be speech at all!

The McConnell decision [McConnell v. Federal Election Commission (2003)] largely rested on Austin v. Michigan Chamber of Commerce (1990), which permitted bans on corporate speech.” (From comment on Citizens United v. Federal Election Commission [2010] in John R. Vile, Essential Supreme Court Decisions, 2018).

For 20 years corporate political speech was no speech at all in the United States.

The Austin decision identified ‘an antidistortion interest’ in limiting political speech based on an attempt to prevent the effects of accumulated wealth.” That was the rationale.

Justice Stevens’s dissent on Citizens United is brilliant. Quotes (J. R. Vile 2018):

Restrictions on corporate expenditures date back to the Tillman Act of 1907. … The decision in Austin has not shown itself to be as flawed as the majority suggests.

The Court has long approved ‘the authority of legislatures to enact viewpoint-neutral regulations based on content and identity.’

The Framers had a much narrower view of the rights of corporations than the majority, and the original understanding has been substantiated by the history of regulation in this area.

The Constitution does, in fact, permit numerous ‘restrictions on the speech of some in order to prevent a few from drowning out the many.

The laws at issue are legitimate measures to prevent corruption and to protect shareholders from expenditures they do not support.

They [corporations] are not themselves members of ‘We the People’ by whom and for whom our Constitution was established.

Just like about 40 years ago commercial speech emerged as speech, 30 years later, that is ten years ago, corporate political speech became speech. For what purposes have these sinister Frankenstein creatures been invented?

II
Section 230

The (1) of Section 230 seems intended to prevent its (2), it protects providers from liability for content on their platforms, so providers have no reason to remove content –if they’re for free speech– as nothing can happen to them for content, 230(1) speaking.

I grant you immunity for any sort of content (1) and, whereas you should be content with that, I also grant you immunity for (bona fide) content removal (2). It’s called to have your cake and eat it too. Completely unbalanced. As they’re free to remove content, why can’t I hold them responsible for content they don’t remove?

You’re perfectly free to sue the person posting the offending tweet. (J_Rex)

Wouldn’t suing an anonymous user depend on Twitter’s will to disclose information about the user?

If you don’t like Twitter’s or Facebook’s rules you are perfectly free to create your own platform with whatever idiosyncratic rules you want. In fact, there are such platforms, notably Parler. (J_Rex)

I’m free to leave but at a cost (among other things in terms of audience) and Twitter, which, as one of the first movers, has an undue trustlike position on the market due to its millions of users, should partake in the cost. If such laissez-faire views were accepted, Twitter could staff its moderation office with lunatics and that would be just as good. It can and perhaps it does.

*

Advocacy of Illegal Conduct Is Lawful

In a previous lesson I told Diane, who had said “no speech is protected if it incites violence,” that she was wrong. She was wrong, but even competent persons make the same error: “These cases illustrate that the First Amendment applies to all groups so long as their intent is not to intimidate or incite violence.” (First Amendment Encyclopedia: American Nazi Party and Related Groups x)

When such conclusion isn’t from lack of knowledge, it’s lack of logical thinking. “Incite violence” isn’t the same as “incite imminent lawless action” (including violence) and therefore it is lawful to incite non-imminent violence.

In NAACP v. Claiborne Hardware Co. (1982), the Supreme Court ruled that an economic boycott constitutes a form of constitutionally protected expression akin to traditional means of communication, such as speaking and writing, even if violence is threatened as a means of achieving group goals.” (First Amendment Encyclopedia : Boycotts)

I think the courts have held (properly) that there is a tight rope to be walked between allowing someone who is simply pissed off to vent their anger and someone who is actually intending harm. (Diane)

I’m sorry to disagree again. People who “threaten violence,” like in the Clairborne decision, “actually intend harm” (at least conditionally: if… then) and yet it is protected speech.

But Diane is probably thinking of the “true threat” doctrine. So I add that except for the unusual 2003 decision on cross burning that can be a true threat, generally speaking in case law a threat has to be kind of very clear, present, imminent, lawless and all to be (a bit) “true.”

If the courts want to be consistent with Virginia v. Black (2003) on cross burning and the vague notion of intimidation, they will have to smash down the very doctrine of true threat, even Brandenburg v. Ohio (on lawless imminent action) and the whole edifice of First Amendment law. The Supreme Court made a mistake.

ii

The true meaning of the American First Amendement, its truly distinctive nature lie in the words “Advocacy of illegal conduct.” This distinctly American right is what makes all other peoples beside conscious Americans look like phantoms or trembling mice keeping close to the wall.

*

In Cleveland v. United States (1946), “Justice Francis W. Murphy dissented, largely based on anthropological analysis, arguing that polygamy differed from promiscuity.” #Mormon

*

Porn often promotes “plots” based on racism, incest, rape, sexism, or violence, and then says these themes are okay in porn because they’re “fantasy.” Why are we sexualizing scenarios that are never acceptable in reality? (FTND: Fight the New Drug)

On a First Amendment Encyclopedia I read of criticism of porn films… in the sense of literary criticism. So, as you talk of “plots,” that alone could be construed as “redeeming value” (which protects some explicit material from prosecution for obscenity). As there’s a plot, that’s a work of the mind, a work of art.

But let me ask, then. What if someone cuts up the sex scenes from the film and uploads them piecemeal? The public will inevitably miss the dialogues, the acting, the story, the plot, all the redeeming value, they will only be… watching porn.

*

On a marketplace there must be antitrust laws. What are the antitrust laws on the “marketplace of ideas”?

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The marketplace of ideas is about speech and counterspeech but some are defining it as speech and speech-canceling.