:: The Boys Weekend Journal ::

Interesting commentary: The Christian Science Monitor has an interesting editorial on reforming class actions, for those interested (I found this on "How Appealing," a blog devoted to legal issues.)

:: Barry 4:21 PM [+] ::
...

Discussion: International Plea Bargaining

There's an interesting diplomatic, legal, and ethical question raised in this CS Monitor editorial regarding Charles Taylor. The editorial advocates for Taylor's prosecution for war crimes, primarily on the grounds that not doing so sets a bad precedent and that his continued presence in the region will hinder rebuilding in Liberia. Personally, I feel that pursuing prosecution against Taylor would itself set a bad precedent. Taylor's exile in Nigeria was, after all, arranged at the urging of the US, the UN, the African Union, and ECOWAS. I see it as a form of international plea bargaining. It was critical to foreign intervention that outside forces come in as peace keepers and not as agents of regime change as the US was in Afghanistan and Iraq. The support did not exist to mount that sort of aggressive operation. In order to create the necessary environment to end the conflict, this offer of safe haven was extended to Taylor, with full knowledge of the charges against him. This strikes me as an important tool in the arsenal of the international institutions in their efforts to make and enforce peace. Prosecuting Taylor after he agreed to the terms set out would effectively remove this option for future interventions. It is clear that the exact details of the offer were never hammered out, nor does it appear the deal ever given any legal force. There is still room to negotiate exactly what the terms are, with regards to Taylor's freedom of movement and his contact with former associates. I think there are steps that can and should be taken to make the conditions of his stay in Nigeria more restrictive. But to my mind it is more important that the basic terms of the deal are upheld than it is that Taylor is brought to justice.

:: Joe 1:12 PM [+] ::
...

News: A (Mixed) Blow to the Digital Rights Movement

As Findlaw reports here, the California Supreme Court reversed the state Court of Appeals decision that lifted an injunction against posting the DeCSS software because it clashed with the First Amendment. The California Supreme Court decision, which may be found here, isn't quite as bad as the Findlaw article makes it sound. The court found that, assuming the injunction was properly issued, it would not violate the free speech protections in the Constitution, but remanded to the Court of Appeals to conduct a more rigorous inquiry.

:: Barry 2:57 PM [+] ::
...

Commentary: God Bless the U.S. of A.

Boys,
I thought you might enjoy this commentary by Roy Moore, Chief Justice of the Alabama Supreme Court. It appeared in today's Wall Street Journal. I fail to see how Thompson's ruling bans the acknowledgment of God in the public sector. It simply calls for neutrality, neither acknowledging nor disavowing God. Would Mr. Moore like it if he walked into a public building with a monument stating that God is a big fat hoax?

COMMENTARY

In God I Trust

By ROY S. MOORE

MONTGOMERY, Ala. -- The battle over the Ten Commandments monument I brought into Alabama's Supreme Court is not about a monument and not about politics. (The battle is not even about religion, a term defined by our Founders as "the duty we owe to our creator and the manner for discharging it.") Federal Judge Myron Thompson, who ordered the monument's removal, and I are in perfect agreement on the fact that the issue in this case is: "Can the state acknowledge God?"

Those were the precise words used by Judge Thompson in his closing remarks in open court. Today, I argue for the rule of law, and against any unilateral declaration of a judge to ban the acknowledgment of God in the public sector.

We must acknowledge God in the public sector because the state constitution explicitly requires us to do so. The Alabama Constitution specifically invokes "the favor and guidance of Almighty God" as the basis for our laws and justice system. As the chief justice of the state's supreme court I am entrusted with the sacred duty to uphold the state's constitution. I have taken an oath before God and man to do such, and I will not waver from that commitment.

By telling the state of Alabama that it may not acknowledge God, Judge Thompson effectively dismantled the justice system of the state. Judge Thompson never declared the Alabama Constitution unconstitutional, but the essence of his ruling was to prohibit judicial officers from obeying the very constitution they are sworn to uphold. In so doing, Judge Thompson and all who supported his order, violated the rule of law.

Alabama Attorney General Bill Pryor and my fellow justices have argued that they must act to remove the monument to preserve the rule of law. But the precise opposite is true: Article VI of the Constitution makes explicitly clear that the Constitution, and the laws made pursuant to it, are "the supreme Law of the Land." Judge Thompson and the judges of the 11th U.S. Circuit Court of Appeals have all sworn oaths which bind them to support the Constitution as it is written -- not as they would personally prefer it to be written.

By subjugating the people of Alabama to the unconstitutional edict by Judge Thompson, that public officials may not acknowledge God, the attorney general and my colleagues have made the fiat opinion of a judge supreme over the text of the Constitution. While agreeing with me that the Constitution is supreme, and that the opinion of Judge Thompson was contrary to the Constitution, the attorney general has argued that he must follow an order he himself believes to be in direct violation of the supreme law of the land.

One of the great influences on the Founding Fathers, common law sage William Blackstone, once pointed out that judges do not make laws, they interpret them. No judge has the authority to impose his will on the people of a state, and no judge has the constitutional authority to forbid public officials from acknowledging the same God specifically mentioned in the charter documents of our nation, the Declaration of Independence and the United States Constitution.

My decision to disregard the unlawful order of the federal judge was not civil disobedience, but the lawful response of the highest judicial officer of the state to his oath of office. Had the judge declared the 13th Amendment prohibition on involuntary slavery to be illegal, or ordered the churches of my state burned to the ground, there would be little question in the minds of the people of Alabama and the U.S. that such actions should be ignored as unconstitutional and beyond the legitimate scope of a judge's authority. Judge Thompson's decision to unilaterally void the duties of elected officials under the state constitution and to prohibit judges from acknowledging God is equally unlawful.

For half a century the fanciful tailors of revisionist jurisprudence have been working to strip the public sector naked of every vestige of God and morality. They have done so based on fake readings and inconsistent applications of the First Amendment. They have said it is all right for the U.S. Supreme Court to publicly place the Ten Commandments on its walls, for Congress to open in prayer and for state capitols to have chaplains -- as long as the words and ideas communicated by such do not really mean what they purport to communicate. They have trotted out before the public using words never mentioned in the U.S. Constitution, like "separation of church and state," to advocate, not the legitimate jurisdictional separation between the church and state, but the illegitimate separation of God and state.

The First Amendment says that "Congress shall make no law respecting the establishment of religion, or prohibiting the free exercise thereof." It does not take a constitutional scholar to recognize that I am not Congress, and no law has been passed. Nevertheless, Judge Thompson's order states that the acknowledgment of God crosses the line between the permissible and the impermissible and that to acknowledge God is to violate the Constitution.

Not only does Judge Thompson put himself above the law, but above God, as well. I say enough is enough. We must "dare defend our rights" as Alabama's state motto declares. No judge or man can dictate what we believe or in whom we believe. The Ninth and 10th Amendments are not a part of the Constitution simply to make the Bill of Rights a round number. The Ninth Amendment secured our right as a people. The 10th guaranteed our right as a sovereign state. Those are the rules of law.


Mr. Moore is the chief justice of the Supreme Court of Alabama.

:: Ryan 9:28 PM [+] ::
...

Discussion: International Plea Bargaining

I had similar thoughts when I heard about the push to prosecute Mr. Taylor after getting him out of Liberia. I worry, however, that letting him go free could also set a bad precedent. If the punishment does not fit the crime, are we in danger of partially condoning Taylor's past actions? Furthermore, might this send a message to other would-be dictators and tyrants that detestable actions on their part are not likely to be checked by the international community? I can clearly see the argument both ways and confess that I am undecided on the issue.

:: Ryan 9:35 PM [+] ::
...

::Commercial solicitation -- Win one, lose one::

The New York Times had this article yesterday about California's new anti-spam law (the text of the bill, which is SB 186, may be found here). It affords a private right of action and $1000 recovery per unsolicited commercial email, as well as government enforcement. This is going to make a huge difference in email because it is particularly difficult for a spammer to know who is or is not a California resident by an email address. Score one for the good guys.

Today, according to this Reuters article, a district court in the Western District of Oklahoma found that the FTC exceeded its delegated authority by setting up the national do not call registry. The FTC claims it had authority under the 1991 Telephone Consumer Protection Act and the Telemarketing and Consumer Fraud and Abuse Prevention Act to issue its order (rather long--164 pages) creating the registry.

As the opinion describes, the FCC had an opportunity (and in the court's view, has the authority--not the FTC) to create a national do not call registry but decided not to because it claimed it was not economical and efficient for those who "by and large would like to maintain their ability to choose among those telemarketers from whom they do and do not want to hear." In short, the FCC failed to do its job, and the court found that the FTC could not do the job instead.

This is just another issue that raises suspicion that the FCC has not remained sufficiently independent from corporate interests to avoid agency capture. I am still looking for a good rebuttal on this point, but two sites are worth visiting that advocate this position--Common Cause's page on the FCC and MediaReform.Network (the group putting on a conference in Madison where all the cool people will be).

:: Barry 11:31 AM [+] ::
...

::Update: Commercial solicitation::

According to this New York Times article, the House of Representatives voted today on this bill (this has to be one of the shortest in history) to ratify the FTC's authority to create the national do-not-call registry by a vote of 412 to 8.

:: Barry 4:20 PM [+] ::
...

::Update: Commercial solicitation -- it's in, it's out, no wait!::

First, the good--the Senate approved the ratification of the FTC's authority to create the do-not-call registry by a vote of 95-0 (see this New York Times article). It's amazing how quickly Congress can act when it wants to.

But another district judge found it unlawful, this time for First Amendment violations. The opinion from the District Court of Colorado may be found here. The court held that it was impermissible to distinguish between commercial and noncommercial speech for eliminating telephone calls to the home. The judge argued that the fundamental problem with the registry is that "the mechanism purportedly created by the FTC to effectuate consumer choice instead influences consumer choice, thereby entangling the government in deciding which speech consumers should here. This entanglement creates a regulatory burden on commercial speech." (p. 18)

The court recognized that there was a substantial public interest in limiting calls into one's castle, but found that the registry would only eliminate 40-60% of all solicitation calls, and is therefore under-inclusive. The under-inclusiveness, according to the court, is content restriction. The court rejected the FTC's justification for drawing a line between commercial and noncommercial calls, writing that "there is no doubt that unwanted calls seeking charitable contributions are as invasive to the privacy of someone sitting down to dinner at home as unwanted calls from commercial telemarketers." (p.24). While recognizing that noncommercial speech is generally afforded more protection under the First Amendment, the court held that "any attempt to distinguish between cmomercial and noncommercial speech solely because of commercial speech's lesser protected status under the Constitution attaches more importance to the distinction between commercial and noncommercial speech than cases warrant and seriously underestimates the value of commercial speech." (p. 25)

This opinion merely strengthens my belief that we should not be affording individual rights to corporations. I recognize that there will be some fuzzy lines that need to be drawn on occasion, but this is rediculous. I imagine that the Colorado judge can expect to receive a flurry of noncommercial solicitations to reconsider this ruling, as happened with the judge in Oklahoma according to this story in the Washington Post.

As a matter of public record, Judge Nottingham's number is (303) 844-5018.

:: Barry 9:51 PM [+] ::
...

::Re: Commercial Solicitation::

I think the weakness of the Colorado ruling lies in its determination on whether the DNC list is a "government restriction" on speech (pages 16-18). It compares this case with Rowan v US Post Office where the Supreme Court ruled that since the government was simply facilitating an action that the addressee could take on their own (refusing to accept the mailing) the government was not itself restricting the speech contained in the mailing. Quoting the Colorado ruling's interpretation of that case: "The court categorically rejected the argument that a vendor has the right to send unwanted material into the home of another and found that the statute did not operate as a government restriction on speech."

The ruling finds that this is not the case with the DNC list. They argue that with the Rowan case the citizen has complete autonomy to select which mailings are blocked, whereas with the DNC list the government is making the distinction as to what is blocked (most commercial speech) and what is not (charitable speech, political speech, and specific types of commercial speech). By implication, if the DNC list had been all-inclusive then it would have passed this measure and not been considered a government restriction on speech.

This strikes me as an odd interpretation. I might understand if there was a substantial difficulty in determining the boundary between commercial and non-commercial speech. This would leave considerable regulatory power in the hands of the government to decide who could and could not make calls, and would create the sort of entanglement that the ruling worries about. However, that does not seem to be the case here. The distinctions appear to be clearly drawn out and interpretation should be trivial. The court recognized that in a number of cases distinctions have been drawn between commercial and non-commercial speech (p.14). These rulings should lay out solid ground for interpreting which is which. Certainly nothing discussed in the ruling touches on this issue or demonstrates reason to be concerned. They apparently are satisfied to note that the regulation does not regard all types of speech in the exact same manner, and that this by itself denotes government interference with speech.

I do not believe that this element of the decision will hold up. The Supreme Court's statement on Rowan appears to be directly applicable here. Vendors do not have the right to force their speech into someone's home. If it is fine for the government to help a citizen restrict vendors from commercial speech on a case by case basis, it seems it should also be fine for the government to assist citizens in the same manner while grouping multiple vendors under the protection, as long as the decision as to which vendors are included is clearly laid out for the citizen and interpretation of such is trivial. If the court had considered this issue and found that the interpretation of which calls to block left room for government discrimination against free speech that would be one thing. But the fact that they did not even consider the matter leads me to believe this is a definite angle for attacking the decision. If this element of determining that the government is itself regulating speech fails, then the rest of the First Amendment arguments collapse.

I believe there is a second line of attack in regards to the court's ruling that the FTC does not adequately advance its purpose of safeguarding privacy because it still allows charitable solicitations (and other protected calls) to go through (p. 21-24). The ruling references Cincinnati v Discovery Network, Inc in stating that it even if your cause for restricting speech is good enough to pass muster, if you are only making a partial improvement, then that is not good enough reason to restrict speech, particularly if any content discrimination is involved in that partial improvement. Here the ruling recognizes that the DNC list is far more effective than the actions taken with Cincinnati, but feels that because they use content discrimination in doing so, it should not be allowed.

While I'm not versed on the arguments made in Cincinnati, I believe that the point mentioned in this ruling (p. 14), from Florida Bar v Went For It, Inc ought to apply here: "Commercial speech also receives lesser protection, because to require a parity of constitutional protection for commercial and noncommercial speech alike could invite dilution, simply by a leveling process, of the force of the First Amendment's guarantee with respect to the latter kind of speech." If we are considering the DNC list to be a restriction of speech (which must be the case in order for this element of the decision to be relevant), then this is clearly a situation whereby making no discrimination between commercial and noncommercial speech will lead to restrictions in noncommercial speech, as this will be required for the DNC list to move forward. I think a strong argument can be made that content discrimination in this situation does more to further the First Amendment protection of noncommercial speech than to hinder the First Amendment protection of commercial speech. While it may not be kosher to bring politics into the court, it should be recognized that there is a powerful political will behind the DNC list (as demonstrated by the quick action of our legislators) and that most likely a ruling disallowing content discrimination in the list will not result in the end of the DNC list, but in a reformulated list that covers commercial and noncommercial content alike. Given this scenario it seems that the First Amendment will be best satisfied by a DNC list that allows noncommercial calls.

ps. Just had a wisdom tooth pulled and am home from work today leaving me even more disposed to sitting around reading useless crap than usual. :)

:: Joe 2:24 PM [+] ::
...

::Re: Commercial solicitation::

Joe, I plan to take some time and respond to your comments, but in the meantime, I wanted to add a concern to the debate. This comment was filed with the FTC prior to its implementation of the rule creating the national do-not-call registry, on behalf of national direct marketers and publishers (although the comment does not specifically identify the group). I draw this to your attention because they argue that the registry violates the National Environmental Protection Act of 1969, which requires (among other things) that regulatory actions having potentially serious environmental consequences must produce an Environmental Impact Statement and evaluate the harms against its purported benefits. At first I though the comment would argue that reducing telephone solicitation would lead to an increase in junk mail, but no. They argue that "consumers have come to increasingly rely upon direct marketing for the purchase of goods and services. This increased reliance has dramatically reduced the need for physical storefronts, which themselves require more energy and impose greater environmental burdens than do telephone calls followed by the "carpooled" delivery of purchased products."

This reminds me of a bumber sticker I saw in Vermont that read: "If you don't like logging, then go ahead and wipe your ass with plastic toilet paper!"

:: Barry 8:39 PM [+] ::
...

::Re: Commercial solicitation::

Sorry for all these posts, but I think it would be helpful (for me, if noone else) to have links to relevant documents on this topic. Here is the brief filed by the FTC in response to a request by the plaintiffs for an expedited stay of the order by the FCC related to the do-not-call registry. I don't know if the 10th Circuit had an opportunity to rule before the district court's order.

:: Barry 8:53 PM [+] ::
...

::Re: Commercial Solicitation::

My response to the environmental harms claim is largely based on /. hearsay. There are a goodly number of /.'ers with experience in the telemarketting business who have posted with regards to the flurry of court cases and legislation. They claim that the real avenue for profit in that business is not facilitating purchases with consumers who would otherwise go to the store for these products, but getting on the line with people who have problems saying no to a hard sell. In other words, without the telemarketting these sales would not occur at all. Which would mean there is no need for the bricks and mortar stores and therefore no environmental damage. The existence of the internet would further blast this claim out of the water. If people really want to buy something without having to drive to the store, they're much better off buying it over the internet than sitting by the phone and waiting for a telemarketter to call.

:: Joe 12:30 AM [+] ::
...

::Re: Commercial solicitation -- 10th Circuit to the rescue!::

The 10th Circuit has denied the telemarketer's request for a stay of the FCC's order establishing the national do-not-call registry in conjunction with the FTC. The 10th Circuit's ruling does not directly affect the district court's order because it is a different case (but involving the same plaintiffs), but it does hint to the FTC that they could probably obtain immediate relief from the district court's order (meaning the list would go into effect on time) assuming that the arguments are largely the same (and I suspect, because the same plaintiffs are involved in both cases, that would hold true). As to the Tenth Circuit's opinion, nine times out of ten, a failure to show a substantial likelihood of success in a motion for a stay means you're doomed when the full appeal gets decided. This means unless the Supreme Court grants certiori, the registry should be in the clear. Of course, another circuit could definitely muddy the waters by going the opposite way and the Supreme Court would feel compelled to review the issue.

As a point of clarification, I stated earlier that the FCC dropped the ball when it refused to create the do-not-call registry back in 1992. But it appears the current effort to create the registry was really a joint effort between the FTC and the FCC, which makes the Oklahoma decision especially flawed (the court did not discuss the FCC's change of position at all but used language from the FCC's 1992 decision). No matter--the Oklahoma decision will be dead once GWB signs the law that flew through Cognress.

Unfortunately, the 10th Circuit, in its per curiam opinion (meaining a unanimous opinion without a designated author), did not give any hints as to its reasoning. Interestingly, though, it did consider that millions of Americans have registered on the list as demonstrating that there was a "strong expectation interest" in allowing the DNC list to go forward.

Response to Joe's Points

I disagree that this case should be evaluated the same as Rowen (a copy of which may be found at Cornell's Legal Information Institute), but in the end we arrive at the same place. The DNC list does distinguish between commercial and noncommercial speech, and by doing so the government favors noncommercial speech by restricting commercial speech. This necessarily intertwines the government with the speech, as the district court correctly held (p. 18: "The mechanism purportedly created by the FTC to effectuate consumer choice instead influences consumer choice, thereby entangling the govenrment in deciding what speech consumers should hear).

I don't think what decides the issue is whether a lot of discretion is left in the hands of the government to determine what kind of speech survives and what does not. I agree that it would be more problematic if the government were given discretion, but the lack of discretion does not remove the constitutional concerns by itself. If the government passed a prohibition on receiving calls regarding abortion at home, it would not be difficult to decide which telephone calls fit within the restriction and which fell outside it, but there would be grave constitutional concerns all the same. But unlike this hypothetical, the courts have drawn a distinction between commercial and noncommercial speech by giving commercial speech less protection. The real inquiry, it seems to me, is just a question of how much or how little protection commercial speech is entitled to.

I think the court went wrong when it held that "any attempt to distinguish between commercial and noncommercial speech solely because of commercial speech's lesser protected status under the Constitution attaches more importance to the distinction ... than cases warrant and seriously underestimates the value of commercial speech." (p. 25.) The district court claimed this was the position the Supreme Court took in Cincinnati v. Discovery Network, but I disagree. In that case, the Court rejected the city's contention that its regulation accomplished its stated purpose because commercial use of newsracks in parks "had only a minimal impact on the overall number of newsracks on the city's sidewalks." (507 U.S. 410, 419 (1993).) The city's argument was premised on the idea that commercial speech had such low value that it had a very small burden to show that its regulation served some public good. But at the same time the Court refused to impose a tougher standard on the city just because its reason for regulating commercial speech was not "based on the content of the speech or the particular adverse effects stemming from that content." (507 U.S. at 417 n.11).

The district court's opinion seems to be doing just that--imposing a greater burden on the government to show why commercial telephone solicitation as commercial speech is somehow more harmful than noncommercial telephone solicitation. It seems entirely plausible that the privacy interest involved here justifies restricting commercial speech but the same privacy interest does not justify the same regulation on noncommercial speech--even though they both impose the same level of intrusion or harm.

To summarize, I think that the DNC list does involve government regulation of speech because it favors noncommercial speech over commercial speech. The government is therefore required to come forward with some substantial interest that is served by the regulation and demonstrate a reasonable fit between the regulation and its goal. In my opinion, the government has met this burden--a 40-60% reduction in unwanted calls seems to me to be a substantial fit with the government's stated goals (compared to 3% in Cincinnati).

On Telemarketing and the Environment

Honestly, I posted the comment for comic relief, not because I thought it had any real merit. If it had merit, the marketing association would undoubtedly have raised the point in its legal challenges, but it smartly chose not to. I have to give some credit to its authors for creativity, but that's all I will give them.

:: Barry 4:37 PM [+] ::
...

::Re: Commercial Solicitation::

I still believe that the critical statement in the decision is the reference to Rowen: "The court categorically rejected the argument that a vendor has the right to send unwanted material into the home of another and found that the statute did not operate as a government restriction on speech." I believe that fundamentally citizens should have complete discretion as to who can connect a phone call to them. I think our general perceptions of how the phone network operates are colored by the technological limitations of the system to date. If we were to sit down and draw up specifications for an ideal phone system I would have a system that includes a caller-ID on steroids that would identify the number, name, originating location, and business/organization accurately for every caller, with no opt-out. It would include the ability for the consumer to block calls from individual numbers, by business/organization, by geography, and to arbitrarily block groups of numbers based on those or other factors. It would include optional white-listing and a multi-tiered voice-mail system, such that white-listed calls go directly through, calls from black-listed or unlisted calls go directly to separate voice mail buckets from which the user can opt (based on caller-ID info) to listen to them or not and to add them to the white-list if desired. Essentially I believe that no citizen is required to have a phone, and as such if they do have a phone should hold no obligation to receive any calls they don't care to receive.

All of the things mentioned in my list were not technologically feasible at the time our present network was established and so we have a system that contains little to no safeguards or tools to allow users to exercise much control over their incoming calls. This has established a sort of mind-set where people generally regard the phone network as a system where callers deserve this status of being able to connect calls with impunity. This certainly will not be the case as time progresses. Technologically all of the things I mentioned above can be accomplished today. However, given the morass of interconnected legacy systems and sluggish operating companies that are our phone network those things will only become commonplace after a substantial expenditure of time and money.

The government has stepped in here to offer some stopgap measure to give back some element of control to users of the phone networks. They certainly have nowhere near the funding or capability to offer all of the things I mentioned. In fact, even the extremely limited measure they've announced through the DNC list presents substantial overhead and management costs for them. I don't believe it is feasible for them to offer a highly specific system giving a high degree of control to users as to which types of calls are to be blocked. Essentially, based on their capabilities they have decided to offer a single standard leaving to users the simple choice of opt in or don't. Now, given that they can only (by their apparent judgment) offer a single standard, they are obligated to try and make that standard match the general sentiments of their citizenry. I believe they've done a pretty strong job of that, and if put to a poll an overwhelming percentage of citizens would support the lines they've drawn. So I see this as the government simply trying to step in and assist citizens in actions which they have every right to implement on their own, as was the case with Rowen, but for which the current state of technology makes it very challenging for citizens to do. I believe the discrimination between different speech falls most accurately on the head of the citizens rather than the government.

The essential statement, again, in my mind is that citizens are under no obligation whatsoever to accept any calls they choose not to. I think this reality frees the government from a good deal of responsibility in terms of how they offer to assist citizens in this effort. It is a matter of evaluating where the agency for the decision lies. As long as the government is very clear on how their system works, and it works pretty much automagically (ie the rules are set and never changed, and the rules leave little room for interpretation), I see them in an assisting role, and the bulk of the agency for the decision lying on those people who opt in. If it is the case that the system leaves a great deal of discretion to the government in terms of categorizing different types of speech, then this would hand a substantial amount of agency back to the government, enough, I think, to hold the government responsible for curtailing speech.

I agree wholeheartedly that the issue of evaluating the relative protections of commercial and noncommercial speech was given short shrift in the decision (as was indicated by my second issue), but I really don't think this case should get that far. The implication of the ruling with regards to the government being the responsible agent due to the fact that they do not handle speech uniformly in this case is that if they put a total ban on telemarketing it would be in the clear. I just don't see that. What we're trying to determine here is whether or not the government is taking the role of assisting citizens in an action which the citizens have a right to take (as in Rowen) or whether the government is exercising its own judgment regarding restricting speech. It strikes me as perverse that the court would decide that implementing the system in a manner less representative of the will of the citizens would in fact be considered more of an assisting role and less a case of the government exercising judgment. I think it should be the opposite. By making the system as representative as possible of the will of the citizens being assisted, they place themselves most clearly in an assisting position and most clearly are not exercising independent judgment.

:: Joe 8:52 PM [+] ::
...

::Re: Commercial Solicitation, or State Action Redux::

It seems we have narrowed (or broadened) the scope to focus on the question: what constitutes government action? It is my position that government action in the constitutional sense reaches a wide range of conduct from doing nothing to active participation in shaping norms and values. It is impossible to separate the government from the choices an individual makes, because the government as an institution shapes the public and deems certain choices acceptable or not. The idea that a man's home is his castle (an idea that plays a central role in this debate) is dependent on the idea of property rights, which must be enforced by the government to survive. If the government enforces an individual's right to choose in some respects and not others, the government is acting as an institution in favoring some choices over others.

Let me offer an example. In 1948, the Supreme Court in Shelley v. Kraemer addressed questions relating to the validity of racial covenants, which are private agreements that essentially place restrictions on the use or transfer of land. Some property owners in a neighborhood brought suit against a black property owner who had received his property in violation of a restrictive covenant that had been placed on the land by its prior owner which forbeyed the land become the property of any person not of the Caucasian race. The neighbors claimed that "judicial enforcement of private agreements does not amount to state action; or, in any event, the participation of the State is so attenuated in character as not to amount to state action ...."

The Supreme Court rejected the neighbor's argument that they should be free to contract, because it recognized that enforcement of contracts requires the coercive power of the government. (The same principle exists in contract law--the government will not enforce a contract that involves illegal conduct.) There is one excerpt in particular that merits consideration here:

The problem of defining the scope of the restrictions which the Federal Constitution imposes upon exertions of power by the States has given rise to many of the most persistent and fundamental issues which this Court has been called upon to consider. That problem was foremost in the minds of the framers of the Constitution, and since that early day, has arisen in a multitude of forms. The task of determining whether the action of a State offends constitutional provisions is one which may not be undertaken lightly. Where, however, it is clear that the action of the State violates the terms of the fundamental charter, it is the obligation of this Court so to declare.

Now, returning to the context specific issues related to telephone solicitation, please do not misunderstand the position I stake out. I do not contend that the government cannot enforce an individual's right to refuse calls from a particular individual or class of individuals. I merely suggest that the government action (or nonaction, for that matter) has a pervasive influence on norms and values, and it does not satisfy me that governmental conduct is not subject to review merely because it affectuates individual choice. How it chooses to structure the regulation can have enormous influence on the choices that are available.

In this instance, the national do-not-call registry, in conjunction with the existing TCPA restrictions, permit an individual to refuse commercial telephone solicitations either on a company-by-company basis or by adding his or her telephone number to the registry. An individual does not have the choice, under either method, of restricting calls from a tax exempt nonprofit organization or calls that do not qualify as a solicitation. By enforcing the choice of individuals in some respects but not others, the government favors certain kinds of speech over others. That this is so can be seen if we change the scenario, and suppose that some individuals did not wish to receive calls placed by minorities. Surely you would agree that if the government had an opt-out list and inflicted a penalty on any minority who placed a call to someone on that list, the government's conduct could be called into question.

The government must always remain aware that its conduct or even inaction has potentially enormous impact, even if the conduct involves institutional structure that simply permits individuals to make their own choices. And where, as here, the government selects certain choices to be enforced and others not, and the distinction involves the content of speech, the government must provide some account for its conduct.

:: Barry 12:55 AM [+] ::
...

::A victory for liberty and freedom from tyranny::

No, I don't think the headline is too bold. United States District Judge Leonie M. Brinkema ordered today that Zacarias Moussaoui may not be sentenced to death or be charged with having any involvement in the September 11th attacks because the government refuses to produce certain detainees in Government custody who may be able to provide favorable testimony for Moussaoui's defense.

Judge Brinkema's opinion may be found here and stories from the Washington Post and New York Times may be found here and here, respectively. I take some issue with the New York Times headline, which reads: "In Setback to U.S., Judge Refuses to Drop Moussaoui Case." Far from a setback, this case vindicates the fundamental right to a fair trial, which necessarily includes the right to mount a meaningful defense to criminal charges.

:: Barry 7:07 PM [+] ::
...

::Re: Commercial Solicitation, or State Action Redux::

The Tenth Circuit Court of Appeals granted a stay of the District Court's order preventing the national do-not-call registry from taking effect. The ruling may be found here.

Good result, but the ruling was weak, in my opinion. The court focused on the fact that the restriction offers a choice to homeowners (see Joe's comments on this point earlier). I will let the arguments I raised on this topic stand and not rehash those same points, other than to emphasize that just because the government has not banned commercial solicitation altogether doesn't eliminate the First Amendment problem. Second, the court claimed that any distinction made between commercial and noncommercial speech "must bear a relationship to the legitimate interests the government seeks to achieve." (p.10) This makes no sense. There is undoubtedly different standards for commercial and noncommercial speech, and it is entirely plausible to imagine a scenario where both pose similar harms, but the value society places on noncommercial speech does not justify regulating all speech--only the commercial variety. Instead of recognizing this point, the court went to great length to argue that commercial calls are much more annoying and therefore the distinction is justifiable on this basis.

While this is only a preliminary ruling, it is highly likely that the final opinion will mirror the points they raised in today's order. I hope the Supreme Court picks it up and clarifies this mess.

:: Barry 9:02 PM [+] ::
...

::Update: A victory for liberty and freedom from tyranny::

According to this Washington Post article, the government has appealed the ruling of Judge Brinkema in the Moussaoui case. The notice of appeal may be found here. The government has asked for permission to file extra-long briefs and asked for an expedited ruling.

According to the Classified Information Procedures Act (section 7), the Fourth Circuit Court of Appeals would be required to hear oral arguments within four days of adjournment of trial and issue an opinion four days after that. However, because the appeal was not taken during trial, the court is not under the same time pressure but will probably act quickly all the same. I believe the trial court's decision was sound and should be upheld by the appellate court. I guess we'll find out soon enough.

The Washington Post seems to think that this appeal means the government has decided to forego a military tribunal, but I would not be surprised if the government changed its course after the Court of Appeals upholds the district court. Of course, if it succeeds, then there would be no reason to resort to a military tribunal. Again, we'll just have to wait and see.

:: Barry 9:26 PM [+] ::
...

::He fought the law and the law won ... again::

(Thanks to How Appealing for bringing this to light) A Palestinian activist who refused to provide a federal grand jury with any testimony he believed would harm his family and friends and bring retribution on himself ended up in jail again after being indicted on contempt charges, according to this Washington Post story.

Abdelhaleem Hasan Abdelraziq Ashqar, a former professor at Howard University, refused to provide any information but his name, his address, and his profession. I find this story interesting because Mr. Ashqar spent 180 days in jail 5 years ago on the same issue. Being held in prison on contempt charges are not meant to be punishment, but are meant to encourage compliance with government subpoenas. After remaining on a hunger strike the entire time he was in prison last time (the prison system force-fed him to keep him alive), you'd think they would learn he does not wish to speak. But according to the Seventh Circuit Court of Appeals in this opinion, this time they think it's different--he's older and wiser, they say.

Mr. Ashqar has been on a hunger strike since September 5, when the government took him in custody for failing to cooperate with their investigation. He may be held until the grand jury concludes its investigation, until the government (again) concludes that the imprisonment is ineffective, or until he complies. My heart is with you, Mr. Ashqar.

:: Barry 12:15 AM [+] ::
...

::Sometimes the law has something::

Ashqar is a key figure in the web of American organizations which funnel money to Hamas and ultimately bring about hundreds of civilian deaths through terrorist actions. Without getting into the relative merits of the Israel/Palestinian conflict, I don't think that I go very far out on a limb to say that Hamas is a destructive force and one of the major impediments to a lasting peace between the two sides. Hamas terrorizes both Israeli civilians and Palestinian leaders who wish to pursue a peace that does not include the obliteration of Israel. Basically, I would put people who actually belong to and work for Hamas on the legitimate list of evildoers.

Ashqar's organization, the Al-Aqsa Educational Fund was one of the two major U.S. organizations funneling money to Hamas. In 1994, he attended a planning meeting with representatives of the other organization, Holy Land Foundation For Relief and Development, and senior Hamas leaders, which was taped by the FBI. HLF was just declared a "terrorist organization" by Barry's future employer, the D.C. Circuit. The opinion can be found at Holy Land Foundation for Relief and Development v. Ashcroft, 333 F.3d 156 (D.C. Cir. 2003).

He has dodged several subpoenas, including one in the civil case that I am working on. While I agree that much of what the government is doing right now is beyond the pale, I don't have much of a problem with the contempt sanctions in general or their application to Al-Ashqar. He is in the predicament he is in because he refuses to cooperate with several legitimate legal proceedings. He has the option of asserting his Fifth Amendment rights in response to particular questions should the answers be incriminating. He refuses to even do this. I have no doubt that the man has fortitude, but there comes some point at which the legal system--especially that which existed pre-9/11--must be respected.

:: David 5:20 PM [+] ::
...

::Re: Contempt proceedings of Ashqar (or--"Sometimes the law has something")::

It is important for purposes of understanding my concern to distinguish between civil and criminal contempt. At the time the judge locked Ashqar up, he had not been charged with a crime and was not on trial (indeed--the government had no intention of prosecuting Mr. Ashqar--they offered him full immunity for his testimony). The judge decided, under the powers afforded him by the Recalcitrant Witness Statute (18 U.S.C. sec. 1826(b)), to imprison Ashqar as a means of coercing him to testify. The district court and the Seventh Circuit both decided that he might be susceptible to some arm-twisting into talking. I found this conclusion to be ludicrous.

Now, he is being prosecuted for criminal contempt (18 U.S.C. 401(3)). Criminal charges, of course, bring with them a host of procedural protections that are not involved with civil proceedings. I do not take issue with the District Attorney's decision to indict Mr. Ashqar for disobeying the court's orders (although I find its selective use of criminal contempt charges a little puzzling).

I don't know whether Mr. Ashqar is an evildoer. But it disturbs me that someone can be labeled with a scarlet T by the government and that suffices to throw the normal protections our system offers out the window.

:: Barry 9:02 PM [+] ::
...

::Hang 'Em High, FCC::

It looks like the FCC has found a sucker to test the new DNC on. Figures that it would be a long-distance company. I hope they set a good example of them.

:: Joe 12:18 AM [+] ::
...

::Hero for the Week: Eliot Spitzer::

New York state attorney-general Eliot Spitzer is my hero for the week. Spitzer appears to be taking over the job of the SEC since they have clearly proven themselves incompetent in enforcing regulations on Wall Street. His testimony before the Senate on Monday managed to shock the SEC into action. This is not the first time that Spitzer has stepped into this void. Last year he forced the major Wall Street firms to a class action settlement. And he's been chipping away ever since. These are issues that need to be dealt with, and since the federal government apparently has no interest in it, it's a damned good thing Spitzer is there to take up the task.

:: Joe 1:11 PM [+] ::
...

::Guantanamo Case::

The Supreme Court today granted cert on the question whether federal courts can hear petitions from detainees in Guantanamo. The Second and DC Circuits have held that there is no jurisdiction over these cases, and the Ninth Circuit has not yet decided the case in front of it.

:: Barry 11:24 AM [+] ::
...

::Transcript of Franken suit::

Here is the transcript of the hearing Franken talked about--it is a good read (and Franken was accurate in his description of the events, as best I can tell).

:: Barry 2:30 PM [+] ::
...

::Spitzer Op-Ed::

Check out this New York Times editorial in today's paper

:: Barry 3:31 PM [+] ::
...

::Holy Spam, Batman!::

Well this just takes all. Here and I thought the energy and medicare bills were both tilted a bit heavily in favor of commercial interest. But how about this, an anti-spam bill that leaves spammers celebrating! Not only is this bill completely broken and ineffective, but it will also preempt the non-broken anti-spam laws that have been passed in 35 states. Of course this thing passed the House in a landslide and its counterpart flew through the Senate on a 97-nil vote. And how could such a lousy piece of legislation be so popular with congress-people? It has a snappy name, the CAN-SPAM bill, and all congress-people know that a catchy name is the hallmark of quality legislation. Unfortunately they all seem to have misinterpreted the intended meaning of the word "CAN" in that name... Sometimes politics in this country are about enough to make me ill.

:: Joe 11:24 AM [+] ::
...

::Supreme Court Upholds Campaign Finance Law::

The 298-page opinion is available here, if anyone is interested (the first 19 pages provide a summary).

:: Barry 10:12 AM [+] ::
...

::Civil Rights Make a Comeback::

Thanks to our judiciary for slamming the brakes on the Guantanamo/Camp Xray/enemy combatant scheme to bypass Constitutional protections. The 2nd circuit decided that US citizen, Jose Padilla, cannot be held indefinitely without trial, which seems like a no-brainer, but I guess you never know these days... Meanwhile the 9th ruled that even the internationals held in Guantanamo must have access to lawyers and the courts. Hooray for the good guys!

:: Joe 7:42 PM [+] ::
...