The Freedom To Sing

“In the beginning, God gave birds the freedom to sing their own songs.
No government on Earth has the power to pass laws to take away that freedom.

- The Catbird


Sightings from The Catbird Seat

~ o ~

"Our safety, our liberty, depends upon preserving the Constitution of the United States as our Fathers made it inviolate. The people of the United States are the rightful masters of both Congress and the Courts, not to overthrow the Constitution, but to overthrow the men who pervert the Constitution."

-- Abraham Lincoln

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The Conventions of a number of the States having, at the time of adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added, and as extending the ground of public confidence in the Government will best insure the beneficent ends of its institution...

~ ~ ~

Amendment I

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

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Barack Obama and Joe Biden's Plan

Ensure the Full and Free Exchange of Ideas through an Open Internet and Diverse Media Outlets

Protect the Openness of the Internet: A key reason the Internet has been such a success is because it is the most open network in history. It needs to stay that way. Barack Obama strongly supports the principle of network neutrality to preserve the benefits of open competition on the Internet.

Encourage Diversity in Media Ownership: Barack Obama believes that the nation’s rules ensuring diversity of media ownership are critical to the public interest. Unfortunately, over the past several years, the Federal Communications Commission has promoted the concept of consolidation over diversity. As president, Obama will encourage diversity in the ownership of broadcast media, promote the development of new media outlets for expression of diverse viewpoints, and clarify the public interest obligations of broadcasters who occupy the nation’s spectrum.

Protect Our Children While Preserving the First Amendment: We live in the most information-abundant age in history and the people who develop the skills to utilize its benefits are the people who will succeed in the 21st century. Obama values our First Amendment freedoms and our right to artistic expression and does not view regulation as the answer to these concerns. An Obama administration will give parents the tools and information they need to control what their children see on television and the Internet in ways fully consistent with the First Amendment. To further protect children online, Obama and Biden support tough penalties, increased enforcement resources and forensic tools for law enforcement, and collaboration between law enforcement and the private sector to identify and prosecute people who abuse the Internet to try to exploit children.

Safeguard our Right to Privacy: The open information platforms of the 21st century can also tempt institutions to violate the privacy of citizens. As president, Barack Obama will strengthen privacy protections for the digital age and will harness the power of technology to hold government and business accountable for violations of personal privacy.

Create a Transparent and Connected Democracy

Open Up Government to its Citizens: The Bush Administration has been one of the most secretive, closed administrations in American history. Our nation’s progress has been stifled by a system corrupted by millions of lobbying dollars contributed to political campaigns, the revolving door between government and industry, and privileged access to inside information-all of which have led to policies that favor the few against the public interest. An Obama presidency will use cutting-edge technologies to reverse this dynamic, creating a new level of transparency, accountability and participation for America's citizens.

Bring Government into the 21st Century: Barack Obama and Joe Biden will use technology to reform government and improve the exchange of information between the federal government and citizens while ensuring the security of our networks. Obama and Biden believe in the American people and in their intelligence, expertise, and ability and willingness to give and to give back to make government work better. Obama will appoint the nation's first Chief Technology Officer (CTO) to ensure that our government and all its agencies have the right infrastructure, policies and services for the 21st century. The CTO will ensure the safety of our networks and will lead an interagency effort, working with chief technology and chief information officers of each of the federal agencies, to ensure that they use best-in-class technologies and share best practices....

* * * * *

The First Amendment Handbook

Prior Restraints

A prior restraint is an official restriction of speech prior to publication. Prior restraints are viewed by the U.S. Supreme Court as "the most serious and the least tolerable infringement on First Amendment rights." Since 1931, the Court repeatedly has found that such attempts to censor the media are presumed unconstitutional.

In the 1976 landmark case Nebraska Press Association v. Stuart, the Court addressed the constitutionality of an order prohibiting the media from publishing or broadcasting certain information about Erwin Charles Simants, who was accused of murdering the Henry Kellie family in a small town in Nebraska. This case pitted the First Amendment rights of a free press against the defendant's Sixth Amendment right to a fair trial.

To ensure that Simants received a fair trial, the Nebraska Supreme Court modified the district court's order to prohibit reporting of confessions or admissions made by Simants or facts "strongly implicative" of Simants.

On appeal, the U.S. Supreme Court struck down the prior restraint order. The Court emphasized that the use of prior restraint is an "immediate and irreversible sanction" that greatly restricts the First Amendment rights of the press. "If it can be said that a threat of criminal or civil sanctions after publication `chills' speech, prior restraint `freezes' it at least for the time," Chief Justice Warren Burger wrote for the Court.

To determine whether the prior restraint order was justified, the Court applied a form of the "clear and present danger" test, examining whether "the gravity of the `evil,' discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger."

In applying this test, the Court articulated a three-part analytical framework, which imposed a heavy burden on the party seeking to restrain the press. First, the Court examined "the nature and extent of the pretrial news coverage." Second, the Court considered whether other less restrictive measures would have alleviated the effects of pretrial publicity. Finally, the Court considered the effectiveness of a restraining order in preventing the threatened danger.

The Court found that the trial judge reasonably concluded that the "intense and pervasive pretrial publicity" in the Simants case "might reasonably impair the defendant's right to a fair trial." However, the trial judge did not consider whether other measures short of a prior restraint order would protect the defendant's rights. The trial judge should have considered changing the location of the trial, postponing the trial, intensifying screening of prospective jurors, providing emphatic and clear instructions to jurors about judging the case only on the evidence presented in the courtroom or sequestering the jury.

The Court also found that the effectiveness of the trial judge's prior restraint order to protect Simants' right to a fair trial was questionable. Because the prior restraint order is limited to the court's territorial jurisdiction, it could not effectively restrain national publications as opposed to publications within the court's jurisdiction.

Moreover, it is difficult for trial judges to draft effective prior restraint orders when it is hard "to predict what information will in fact undermine the impartiality of jurors." Finally, because this trial took place in a town of 850 people, rumors traveling by word of mouth may be more damaging to the defendant's fair-trial rights than printed or broadcasted news accounts. In short, the probability that the defendant's fair-trial rights would be impaired by pretrial publicity was not shown with "the degree of certainty" needed to justify a prior restraint order.

Because the "barriers to prior restraint remain high and the presumption against its use continues intact," prior restraint orders are rarely upheld. As a result, editorial decisions about publication of information the government deems sensitive are generally left solely to the discretion of news organizations. Nevertheless, government officials and private individuals occasionally attempt to stop publication....

The Reporters Committee for Freedom of the Press
© 2003 RCFP. 1815 N. Fort Myer Dr., Suite 900, Arlington VA 22209 (703) 807-2100


November 14, 2008

Court Must Vacate Kentucky Court's Baseless Domain Name Seizure

The Electronic Frontier Foundation (EFF), the Center for Democracy and Technology (CDT), and the American Civil Liberties Union (ACLU) urged a Kentucky Court of Appeals Wednesday to vacate a lower court's order authorizing the seizure of more than 100 Internet domain names associated with websites operating around the globe.

The seizure, and the lower court's exercise of jurisdiction over global domain names, threatens free speech across the Internet. In a move to combat what it viewed as illegal online gambling, the Commonwealth of Kentucky convinced a state court to "seize" 141 domain names because the names allegedly constituted "gambling devices" that are banned under Kentucky law -- even though the sites were owned and operated by individuals outside of the state, and in many cases even outside of the country. Unless the sites screened out Kentucky users, the court held, the seizure order was proper.

(To read the Amicus brief click here: )

In its amicus brief filed with the Court of Appeals on Wednesday in support of a writ vacating the judge's order, EFF, CDT, and the ACLU argue that the First Amendment, the Commerce Clause, and the Due Process Clause of the Constitution prohibit state courts from interfering with Internet domain names that were registered and maintained outside the state. The brief argues that the seizure order was invalid because it threatened to impede access to a broad range of materials protected by the First Amendment.

"The court's theory -- that a state court can order the seizure of Internet domain names regardless of where the site was registered -- is not only wrong but dangerous," said EFF Senior Staff Attorney Matt Zimmerman. "If the mere ability to access a website gives every court on the planet the authority to seize a domain name if a site's content is in some way inconsistent with local law, the laws of the most world's most repressive regimes will effectively control cyberspace."

As part of his ruling, the judge in Kentucky held that the domain names could be seized if they refused to implement "geographic blocks" to prevent Kentucky users from accessing the material. However, no such reliable filters exist, and even poor ones cost thousands of dollars. Any order requiring their use would unconstitutionally burden First Amendment rights.

"If the Kentucky order is upheld, no speech that conflicts with any law, anywhere in the world, would be safe from censorship," said John Morris, general counsel for CDT. "Just as Kentucky is trying to take down sites located around the world, any government seeking to stifle free expression could try to interfere with lawful speech hosted in the United States."

"A key free speech principle that has emerged from Internet litigation is this: Governments may not prohibit all access to websites as a remedy for unlawful behavior," said David Friedman, ACLU of Kentucky General Counsel.


January 22, 2008

Study: False statements preceded war

By DOUGLASS K. DANIEL, Associated Press Writer

WASHINGTON - A study by two nonprofit journalism organizations found that President Bush and top administration officials issued hundreds of false statements about the national security threat from Iraq in the two years following the 2001 terrorist attacks.

The study concluded that the statements "were part of an orchestrated campaign that effectively galvanized public opinion and, in the process, led the nation to war under decidedly false pretenses."

The study was posted Tuesday on the Web site of the Center for Public Integrity, which worked with the Fund for Independence in Journalism.

White House spokesman Scott Stanzel did not comment on the merits of the study Tuesday night but reiterated the administration's position that the world community viewed Iraq's leader, Saddam Hussein, as a threat.

"The actions taken in 2003 were based on the collective judgment of intelligence agencies around the world," Stanzel said.

The study counted 935 false statements in the two-year period. It found that in speeches, briefings, interviews and other venues, Bush and administration officials stated unequivocally on at least 532 occasions that Iraq had weapons of mass destruction or was trying to produce or obtain them or had links to al-Qaida or both.

"It is now beyond dispute that Iraq did not possess any weapons of mass destruction or have meaningful ties to al-Qaida," according to Charles Lewis and Mark Reading-Smith of the Fund for Independence in Journalism staff members, writing an overview of the study. "In short, the Bush administration led the nation to war on the basis of erroneous information that it methodically propagated and that culminated in military action against Iraq on March 19, 2003."

Named in the study along with Bush were top officials of the administration during the period studied: Vice President Dick Cheney, national security adviser Condoleezza Rice, Defense Secretary Donald H. Rumsfeld, Secretary of State Colin Powell, Deputy Defense Secretary Paul Wolfowitz and White House press secretaries Ari Fleischer and Scott McClellan.

Bush led with 259 false statements, 231 about weapons of mass destruction in Iraq and 28 about Iraq's links to al-Qaida, the study found. That was second only to Powell's 244 false statements about weapons of mass destruction in Iraq and 10 about Iraq and al-Qaida.

The center said the study was based on a database created with public statements over the two years beginning on Sept. 11, 2001, and information from more than 25 government reports, books, articles, speeches and interviews.

The cumulative effect of these false statements — amplified by thousands of news stories and broadcasts — was massive, with the media coverage creating an almost impenetrable din for several critical months in the run-up to war," the study concluded.

"Some journalists — indeed, even some entire news organizations — have since acknowledged that their coverage during those prewar months was far too deferential and uncritical. These mea culpas notwithstanding, much of the wall-to-wall media coverage provided additional, 'independent' validation of the Bush administration's false statements about Iraq," it said.

On the Net:

Center For Public Integrity:

Fund For Independence in Journalism:



On March 13, 2007, United States District Judge David Alan Ezra
signed an Order Directing Yahoo! Small Business Hosting
to Terminate and Close Down this Website:

You can read the entire order at:

You can read more about this case at:

You can read more about censorship on the internet at: *

* Documents sealed by court order

On January 4, 2007, U.S. District Court Judge Jack Weinstein issued a temporary restraining order forbidding a number of activists and their organizations in the psychiatric survivors movement, including MindFreedom International and the Alliance for Human Research Protection from disseminating ostensibly leaked documents purporting to show that Eli Lilly and Company knowingly concealed information on potentially lethal side-effects of Zyprexa for years [1]. The "Zyprexa documents" had been sealed by an earlier court order in a mass tort case; they were widely disseminated after Alaska attorney James Gottstein issued a subpoena for them in an unrelated case. The Electronic Frontier Foundation came to the defense of one of the parties silenced by the restraining order to defend the First Amendment right of internet journalists to post links to relevant documents on wikis, blogs, and other web pages [2]. While Eli Lilly maintains that the documents were illegally obtained and should not be part of the public domain, critics cite the leaked Pentagon Papers as precedent for the right of individuals to report on the existence and contents of such documents, and in this particular case, maintain that court sealing of documents should never be allowed to protect individuals or corporations from criminal liability [3].

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The Good News About God!

By Lorraine Day, MD

A dense darkness is falling over America and the World. Truth-tellers are becoming an extinct breed. Many Americans are afraid to speak the truth or even to hear the truth, fearful of intimidation by the government, and ridicule and ostracism by their friends and family.

Some on the internet, who are willing to post “all points of view,” are becoming increasingly squeamish about taking a hard stand for truth on sensitive issues. They exercise their “Freedom of Speech” (sort of) while still trying to remain politically correct, attempting to dance delicately through the political minefields while trying to remain “acceptable” to all sides.

All too frequently these days, when one boldly speaks truth, the listener begins to get nervous and fidgety, furtively glancing over his or her shoulder, and often responds, “You better be careful what you say.”

Whatever happened to REAL Freedom of Speech in America?

On this web site, you will find an in-depth analysis of the story behind the news, the real truth - from the political, social, religious and medical perspectives - and where each story fits into the bigger picture of the diabolical plan of the Illuminati and the Zionist Jews to destroy America and to rule the World....


* * * * *

I am a firm believer in the people. If given the truth they can be depended upon to meet any national crisis.

The great point is to bring them the real facts.

-- Abraham Lincoln

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Fighting for Bloggers’ Rights

Electronic Frontier Foundation

You Have the Right to Blog Anonymously. EFF has fought for your right to speak anonymously on the Internet, establishing legal protections in several states and federal jurisdictions, and developing technologies to help you protect your identity....

You Have the Right to Keep Sources Confidential. In Apple v. Does, EFF is fighting to establish the reporter's privilege for online journalists before the California courts....

You Have the Right to Make Fair Use of Intellectual Property. In OPG v. Diebold, Diebold, Inc., a manufacturer of electronic voting machines, had sent out copyright cease-and-desist letters to ISPs after internal documents indicating flaws in their systems were published on the Internet. EFF established the publication was a fair use....

You have the Right to Allow Reader's Comments Without Fear. In Barrett v. Rosenthal, EFF is working to establish that Section 230, a strong federal immunity for online publishers, applies to bloggers....

You Have the Right to Protect Your Server from Government Seizure. In In re Subpoena to Rackspace. EFF successfully fought to unveil a secret government subpoena that had resulted in more than 20 Independent Media Center (Indymedia) news websites and other Internet services being taken offline....

You Have the Right to Freely Blog about Elections. EFF has advocated for the sensible application of Federal Election Commission rules to blogs that comment on political campaigns....

You Have the Right to Blog about Your Workplace. EFF has educated bloggers on their rights to blog about their workplace and developed technologies to help anonymous whistle bloggers....

You Have the Right to Access as Media. EFF has educated bloggers on their right to access public information, attend public events with the same rights as mainstream media, and how to blog from public events....

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August 21, 2006


Attorneys at Law
A Law Corporation

220 South King Street, 19th Floor
Honolulu, Hawaii 96813

United States District Court

For the District of Hawaii


vs. BOBBY N. HARMON, Defendant

- - - - -

JUDGE: The Honorable David Alan Ezra


... Judgment is hereby entered under which Defendant HARMON shall within ten (10 days) from the date of entry of this Final Judgment permanently and forever remove and/or delete from any web-site owned, managed or operated by Defendant HARMON all offensive materials which contains any reference to “Protected Subject Matters”, as that term is described and defined in the Arbitration Award dated October 6, 2004. Defendant HARMON is also ordered to provide the Court with written confirmation, a copy of which shall be served on Plaintiff, that all offensive materials have been removed and/or deleted from any web-site owned, managed or operated by Defendant HARMON.

Post-judgment interest runs on the total Judgment amount of FOUR HUNDRED TWENTY-TWO THOUSAND NINE HUNDRED SEVENTY DOLLARS AND 54/100 ($422,970.54) at the legal rate of ten percent (10%) per annum on the unpaid principal balance, or $115.88 per day, from the date of entry of this judgment until the judgment is fully satisfied....”

~ ~ ~

The website that was found to contain such outrageously “offensive materials” to warrant such drastic punishment is THIS WEBSITE:

Since this website was closed down by the United States Department of Justice, Office of the United States Trustee, another nest is being built in another tree which you will find at:

You’re cordially invited to fly there now for a birds-eye view of the vampires and vultures who are taking over the United States of America.

Now is the time for action, my friends!

A good place to start is by contacting your senators and representatives and demanding that they act now to IMPEACH GEORGE W. BUSH - before it’s too late!

God Bless and Protect Us All,

The Catbird

~ ~ ~

For more, GO TO

Confessions of a Whistleblower


January 17, 2008

Internet Free Speech Trumps Vainglorious Bid To Unmask Anonymous Critic in Country Club Spat

Numerous Legal Precedents Apparently No Deterrent to Wounded Ego

WASHINGTON, D.C. – A blogger’s First Amendment right to anonymously criticize the wealthy owner of a California country club on the Web was reaffirmed by a Texas court earlier this month as a result of a joint brief filed by Public Citizen and the American Civil Liberties Union Foundation of Texas (ACLU).

The friend-of-the-court brief involved the John Doe defendant’s blog, “Del Mar Country Club Sucks,” which was highly critical of the new club owner’s recent policy changes that made the tony club more available to non-members. The slighted club owner had petitioned the court to expose not just the identity of the blogger but of everyone who commented on the site, hosted by Google. The blog has since been taken down.

The club owner, identified only as MP, filed the petition in the 160th District Court in Dallas in an ironic attempt to remain anonymous while trying to deny anonymity to the critic.

Petition of MP alleged that the postings about her were derogatory and defamatory, although nothing in her petition showed that the comments were false or caused any damages – a requirement to prove defamation. Numerous free speech cases over the past decade have resulted in rulings that protect the anonymous expression of public opinion on the Internet. That protection does not apply when free speech is abused but, in this case, Public Citizen and the ACLU contended that MP never presented any evidence of a legitimate grievance.

In an initial ruling, District Judge Jim Jordan gave the club owner an opportunity to support her claims with admissible evidence. When the club owner filed a new petition but did not provide an affidavit proving her case, the judge rejected her subpoena to identify the anonymous blogger and commenters.

“Allegations of defamatory comments were not supported by evidence,” said Public Citizen attorney Paul Alan Levy, who specializes in Internet free speech issues. The court agreed with him and tossed out the motion on Jan. 4.

Co-counsel David Broiles of the ACLU in Texas said, “Several courts have specifically upheld the right to communicate anonymously over the Internet in recognition of the serious chilling effect the revelation of anonymous speakers can have on First Amendment interests.”

READ the brief and the court’s order quashing the subpoena.


September 12, 2007

That pesky First Amendment

The feds seek tight restrictions on religious readings in prison


While we have no doubt that there are Republicans out there willing to give it a shot, it’s going to be really tough topping the Bush Administration’s efforts to trash the US Constitution.

The Bushies have been suspending and distorting civil liberties and disgusting the world with their “defining torture down” tactics and their total disdain for international law. It becomes tiresome even just to list the insults, but here’s a good one — from a front-page story in Monday’s New York Times — that is just one more brick in the wall.

The US Bureau of Prisons recently directed prison chaplains to remove tens of thousands of volumes, books, tapes, CDs, videos, etc., collected over the decades (many were bought or donated by churches or religious groups), which deal with religion or spirituality.

We’re sure you’ve already figured out the “justification.” Why, it’s 9/11, the justification for everything even (especially) when it doesn’t make sense. To keep prisons from being more likely recruiting grounds for militant religious fanatic-types, the Bureau of Prisons is removing all but approximately 150 books for each particular religion. Think about that for a minute.

Rather than removing texts with passages that could perhaps instigate or promote violence, the Bureau of Prisons has decided to impose a blanket fatwa against all but a few religious texts.

Like most matters having to do with civil liberties, it’s very difficult and tiresome to make a specific argument about a specific thing. Instead, the BOP is saying, “Let’s just ban everything.” How many tens of thousands of books of a religious nature do you think there are? The BOP wants to pick a few that “they” think are okay. And who, is “they”?

Who knows? The Bureau of Prisons says only that it “relied on experts” to supply the names of the acceptable books, but as the Times’ article helpfully pointed out, “the identities of the bureau’s experts [have] not been made public.”

This is yet another typical story from the Land of Bush — where up is down, wrong is right, torture is not torture, and the First Amendment is just another pesky obstacle to be swept under the rug.


December 12, 2006

The Government's Assault
on Press Freedom

By William Bennett Turner, San Francisco Chronicle

The United States government consistently undermines democracy
by eroding the media's ability to report.

Vladimir Posner, the former Soviet journalist, used to claim the press was freer in the Soviet Union than it was in the United States. This was during Glasnost, as the Soviet empire was disintegrating. Posner explained that the government was dysfunctional, so journalists did not have to worry about the official censors, and the media had not been privatized, so journalists were not accountable to commercial sponsors and advertisers. The result was a kind of anarchic freedom. The press was free, but only for a brief window in time.

The window in America once was open wide and, I thought, permanently so. I used to tell my students on the first day of class that we had the freest speech and press in the world. I can't do that anymore.

In recent years American press freedom has eroded. Many other countries are now ranked freer than the United States -- all of the Scandinavian countries, Belgium, the Netherlands, New Zealand and many others. In the most recent survey by Freedom House, an independent American-based organization that assesses liberties around the world, the United States tied for 17th place, with the Bahamas, Estonia, Germany and others.

The international free-press advocates Reporters Without Borders ranked us 53rd, tied with Botswana, Croatia and Tonga. These rankings may not be scientifically valid, for a lot of subjective judgment is involved. But it is sobering to see the consensus that the United States is no longer anywhere near the top.

By virtue of Supreme Court decisions, the U.S. press remains freer than the press elsewhere in a few respects.

First, our law provides significantly greater protection for the press against libel suits, especially by government officials. In many countries, libel is a bullying tool for officials and the powerful to silence dissent. Under the 1964 decision in New York Times vs. Sullivan, insults, parodies and vicious criticism of officials are protected by the First Amendment.

Second, our law protects the press against almost any attempt by government to impose a "prior restraint" on what can be published. That is, the government is not allowed to censor, in advance, information the press may wish to publish. The famous "Pentagon Papers" case in 1971 allowed the New York Times and the Washington Post to publish information about a classified Defense Department study on American involvement in Vietnam, despite the government's contention that publication would impair national security.

Third, perhaps unique in the world, our law protects the advocacy of dangerous, potentially divisive ideas. One can preach overthrow of the government -- domestic "regime change" -- religious hatred, racial discrimination and even criminal activity. Under the Supreme Court's 1969 decision in Brandenburg vs. Ohio, government may not suppress ideas, however repugnant to most, unless their expression amounts to incitement to imminent unlawful acts....

But U.S. press freedom has been slipping away since Sept. 11, 2001. Now that we are in a seemingly permanent "war" on terrorism, the government claims wartime powers that result in restricting press freedom.

The Bush administration has multiplied exponentially the number of documents it classifies as secret, shielding them from public view. It has classified literally millions of documents "top secret," according to reports filed with the National Archives; and the office of Vice President Dick Cheney claims to be exempt from reporting even the numbers of records it brands with the "classified" stamp. (The administration has also tried to retrieve antique classified documents from columnist Jack Anderson's estate, contending that only the government may possess such documents, however old.) Within weeks after 9/11, President Bush issued Executive Order 13233, allowing him to veto public release not only of his own presidential papers but those of former President Ronald Reagan, Bush's father and former President Bill Clinton.

The administration also is aggressively pursuing leaks, not with a Nixonian Plumbers unit but by threatening criminal prosecution. Some Republicans in Congress have called for Espionage Act prosecution of the New York Times for publishing revelations about the National Security Agency's monitoring of communications by U.S. citizens and tracking international financial transactions. Bush himself said it was "disgraceful" for the Times to reveal these government activities and publishing the security agency's leak was "helping the enemy."

Pursuing leaks inevitably means pursuing the reporters who received and published the leaks, forcing them to give up confidential sources or telephone records or go to jail. Whatever Judith Miller's motivation and however questionable her arrangement with "Scooter" Libby, she went to jail solely because she refused to reveal communications with her source to the federal grand jury....

So far, the courts have refused to protect subpoenaed reporters no matter how important the information they unearthed or how insignificant the alleged crime. It is true that reporters have never had strong protection against federal subpoenas, but they have hardly ever needed it. Until now.

One of former Attorney General John Ashcroft's first post-Sept. 11 acts was to issue a directive to federal agencies restricting access to government records under the Freedom of Information Act. Ashcroft's directive effectively reversed the presumption of openness and told agencies not to allow inspection of records if there was any arguable basis for withholding the records, assuring officials that Justice Department lawyers would defend them if sued.

Ashcroft's Justice Department also proceeded to round up mostly Muslim immigrants and conduct deportation hearings in secret, not allowing the press or public even to know that any hearing took place, which caused one federal judge to remark that "democracy dies behind closed doors." Ashcroft's moves toward greater secrecy were of a piece with Cheney's refusal when sued under the Freedom of Information Act to disclose even the identity of the corporate executives he met with to determine the administration's energy policy.

Unlike in Sweden, where the right of access to government documents is enshrined in the Constitution, our 1966 information act is solely a legislative creation. Unlike in South Korea, where the Supreme Court decided in 1989 that the right of access to government documents was an integral part of the constitutional freedom of the press, the U.S. Supreme Court held (in a case I lost, Houchins vs. KQED) that there is no such thing as a First Amendment right of access to government information or facilities. Consequently, Americans' right to know what their government is up to is not as well recognized as it is in some other countries.

Nor is government propaganda healthy for a free press or the citizenry. The Bush administration did not advance press freedom by producing and canning favorable "news" stories with fake reporters and peddling them to television stations, or by clandestinely paying friendly columnists for publishing opinions supporting administration policies....

The press is free in countries that trust the people to make wise decisions when they're fully informed, countries that remain willing to take the risks of dissent, rude discourse, instability and some insecurity, that tolerate eccentricity and unorthodox ideas. The erosion of press freedom in the United States, relative to other nations around the world, is disheartening. We have always had high expectations of freedom, which we now don't live up to.

It is hard to stomach the hypocrisy of claiming to spread democracy abroad while restricting at home the very freedoms that make democracy possible.


November 18, 2005

Sheehan, Waskow, & others convicted for White House protest

Sheehan Convicted In Antiwar Protest

29 Fined for Defiance Outside White House

By Henri E. Cauvin, Washington Post Staff Writer

Cindy Sheehan and 28 other antiwar activists [among them Rabbi Arthur Waskow, director of The Shalom Center] were convicted yesterday of staging an illegal protest outside the White House after they failed in their attempt to deliver petitions to President Bush.

Sheehan, whose son was killed in the Iraq war, and about 370 other protesters were arrested Sept. 26 and charged with demonstrating without a permit. They had marched to the White House to demand a meeting with Bush and to deliver their petitions. When they were turned away, the activists sat on the sidewalk in front of the White House and defied orders to leave.

They were not committing a crime, Sheehan insisted yesterday, a few minutes after she was convicted in the first trial stemming from the episode.

"We were guilty of nothing," she said outside the federal courthouse. "We were only exercising our First Amendment right."

The prosecutor, Assistant U.S. Attorney Catharine A. Hartzenbusch, said the Code of Federal Regulations requires a permit for a demonstration on the White House sidewalk by more than 25 people. U.S. Magistrate Judge Alan Kay concluded that Sheehan and the others were demonstrating.

"They violated the regulation, I think, knowingly, intentionally, as a means for obtaining a public forum," Kay told the packed courtroom early yesterday afternoon.

Sheehan, 48, of Vacaville, Calif., was part of the first group to challenge the misdemeanor charge in court. Except for Sheehan, all the defendants represented themselves, and at times the two-day proceeding seemed like a law school class, as Kay tried to accommodate the legal novices appearing before him.

Aided by veteran civil rights lawyer Mark Goldstone and by Sheehan's attorney, Jon W. Norris, the pro se defendants picked a few from among themselves to make an opening statement, question witnesses, deliver closing arguments and make a final, and fruitless, plea for leniency.

Some cases were dropped by prosecutors as the trial got underway. That was not necessarily a cause for celebration among those who were off the hook, including a woman who protested, "I don't want to be dismissed." The judge told her that it was entirely within the government's power to dismiss the charge, with or without explanation.

From start to finish, it was a trial unlike most that unfold in the courthouse, as one defendant after another pilloried Bush from the well of the courtroom and from the witness stand.

Delivering the opening statement for the pro se defendants, Virginia Rodino of Baltimore launched into a denunciation of the war in Iraq, only to be cut off by Kay. "You want to make a political statement, and I'm not going to allow it," he told her.

When defendants took the stand, Kay often was forced to step in, but usually not before the witness-defendant managed a choice comment or two.

"I believe that Bush is a war criminal and he should be on trial," said Joy First of Madison, Wis.

Sheehan, who rose to prominence with her vigil last summer outside the president's ranch in Texas, was the last of the activists to testify.

Sitting down on that sidewalk, she said, was the act of a citizen who had -- with speeches, faxes and e-mails -- exhausted her other options for gaining the ear of the president. "I have tried to petition my government for redress of wrong, and I have never been answered," she said.

In asserting their innocence, she and the other defendants argued that the right to petition was protected under the First Amendment.

But Kay said the activists' actions went beyond petitioning the government, and he rejected that defense and others that were put forward, including challenges to arrest procedures and the contention that a permit had been issued.

All 29 were guilty as charged, Kay said, before ordering each defendant to pay a fine and a court fee totaling $75.

As the judge left the bench, the activists erupted into the song "We Shall Overcome."


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What Part of "No Law" Don't You Understand?

By William Bennett Turner

A primer on the First Amendment and its interpretation for the digital age, by constitutional scholar and attorney William Bennett Turner.

It's hard to imagine that our antique First Amendment, written in 1789, is up to the task of dealing with 21st-century digital communication. James Madison would have had a hard time getting his mind around instant worldwide electronic communication. The Supreme Court has said, ominously, that "differences in the characteristics of new media justify differences in the First Amendment standards applied to them."

In light of this, some thoughtful observers of new technology have proposed constitutional amendments to ensure that government does not censor, manage, or restrict electronic communications.

The truth, however, is that we don't need a new First Amendment for digital communication. All we need is adherence to the bedrock principles of First Amendment interpretation that have grown up with us over the first two centuries of the republic. Madison's 18th-century framework is flexible enough to protect our freedoms in any century.

Reality check: free speech is not absolute

The First Amendment speaks in seemingly absolute terms: "Congress shall make no law ... abridging the freedom of speech or of the press." This has never meant, however, that people can say whatever they want wherever they want. Freedom of speech does not mean speech totally uninhibited by any legal restraint.

It has always been true that some forms of speech can be outlawed or penalized - and many have been. Common examples include fraudulent advertising, child pornography, obscenity, "fighting words," help-wanted ads that discriminate on the basis of race, words used in a criminal transaction ("I'll kill your husband for US$10,000"), unkept promises, unlicensed broadcasts, libel, speech that infringes a copyright, and unauthorized disclosure of data used to make atomic weapons.

Correctly interpreted, the First Amendment does not prohibit all restrictions on speech. It doesn't prohibit private restrictions at all. Our constitution is a series of constraints on government, not on individuals or even powerful corporations.

It is not a violation of the First Amendment for the Microsoft Network, if it so desired, to forbid postings that criticize Bill Gates. Microsoft is not the government, at least not yet. Similarly, CompuServe's censorship of sex newsgroups may offend freedom lovers but does not violate the First Amendment.

The amendment prohibits government restrictions on "the freedom of speech," not on all speech, and it's a mistake to argue that no speech can be restricted. In every case, the question is whether the particular "speech" is within the "freedom" comprehended by the amendment.

No fine print

The First Amendment means what the courts say it means. Since the amendment's words themselves don't tell us what falls within its "freedom," it is up to the courts, faced with the necessity of deciding particular cases, to spell out the rules for deciding exactly what speech is free, in the sense that it cannot legally be prohibited or penalized. While the courts sometimes go astray, it remains true that Americans have freer speech than any other people because our freedoms have been forthrightly defined and enforced by the courts.

In every case in which government tries to restrict speech, some high-minded - or at least plausible - reason is offered. When the Nixon Administration tried to suppress publication of the Pentagon Papers, it was argued that their publication would undermine national security. When Congress acted to prohibit phone sex, it said that such action was necessary to protect children from exposure to indecent material. When state governments forbid publication of the names of rape victims, they say it is necessary to protect privacy and encourage the reporting of sex crimes. And so on. In each new case, a court has to decide whether the government's justification prevails over the interest in free speech.

Fundamental free speech principles

In deciding free speech cases, the courts have elaborated some bedrock principles that inform First Amendment decision-making. What the First Amendment "freedom" means, in fact, is basically this set of principles. We should remind ourselves of them and ask whether they need adjustment for the 21st century.

Here are some of them:

        Government may not restrict or penalize speech because of its content or its viewpoint. It must remain neutral in the marketplace of ideas.

        There is no such thing as a "false idea." This principle rests on the belief that bad ideas will be driven out not by censorship but by good ideas, that the remedy for offensive speech is not suppression, but more speech.

        Restrictions on speech must not be vague or uncertain but sufficiently precise so that everyone understands exactly what is unlawful. No overly broad meat-axe regulation is allowed - any restriction must be a sensitive tool that cuts no more than is necessary to serve the precise government interest involved.

        "Journalism" is not a licensed, credentialed profession. Under our legal system, the "lonely pamphleteer" has the same First Amendment rights as the publisher of The New York Times.

        The press cannot be ordered to print statements it does not wish to print.

        "Prior restraints" on speech - government orders that certain information not be published - are prohibited.

        Penalties (like damages in libel suits) may not be imposed for innocent mistakes that happen to defame someone.

        Advocacy - including advocacy of the overthrow of the government - cannot be outlawed, so long as it does not amount to inciting people to imminent lawless action. Speech short of incitement cannot be banned because of the anticipated adverse reaction of the audience.

        Punishment for "seditious libel" - scathng criticism of government - is not tolerated under the First Amendment.

        No one can own or control facts or ideas (though a person can copyright the unique way he or she expresses those facts or ideas).

These are all great protections that allow us to call ourselves free people. And these principles apply regardless of the means of communication: via big newspapers, small magazines, telephones, television, radio, or the street-corner orator. There is no reason to fear that these principles will not apply with full force to all forms of digital communication.

On the other hand, one must recognize that some of these principles - like the First Amendment itself - are not absolute. There can be exceptions. For example, government can restrict certain speech because of its content, if it proves that there's a "compelling" government interest (like protecting national security or shielding children from sexual exploitation) and there's no less onerous means of protecting the government interest. Even a "prior restraint" on certain speech may be warranted if the government proves, say, that disclosure of the locations of strategic missiles in wartime would sabotage the war effort or endanger troops.

The question, then, is whether anything about the nature of digital communication would justify exceptions to the basic principles of our longstanding First Amendment freedom.

New media, new rules?

The Supreme Court spoke too loosely when it said that differences in new media justify different First Amendment standards. The notion first surfaced in a 1949 case (Kovacs v. Cooper) involving restrictions on the use of sound trucks in congested cities. The court not surprisingly ruled that cities could keep the "new medium" from disrupting sleep and drowning out all conversation by blaring slogans at all hours and decibel levels. Such a regulation is a reasonable "time, place, and manner" restriction that does not forbid any speech based on its content. Government can more easily justify regulating the way the message is delivered rather than the message itself.

Unfortunately, the Supreme Court retrieved the thought about new media years later, reformulated it, and unthinkingly applied it to a case in which the issue was government regulation of content. In 1969, the court handed down Red Lion, the most important decision ever on broadcasting.

The Court upheld the FCC's "Fairness Doctrine," which required licensed broadcasters to cover important public issues and to give voice to contrasting views on the issues. In other words, broadcasters were required to air information they would otherwise have chosen not to air, including views with which they vehemently disagreed. For example, a broadcaster strongly in favor of constructing a nuclear power plant would have to air the anti-nuke point of view as well as his or her own.

The Court's rationale in Red Lion was that the airwaves were a public resource, and those licensed to monopolize one of the scarce frequencies could be required to use this government-bestowed benefit in the public interest. Scarcity of frequencies justified both government allocation of frequencies and regulation of content. The court said that requiring broadcasters to air diverse views enhanced rather than hobbled our First Amendment marketplace of ideas.

Just five years later, people concerned about the increasing concentration of media power in large corporations owning newspapers tried to get a similar concept applied to the world of print. They asked the Supreme Court to uphold a Florida law giving political candidates a "right of reply" to newspaper attacks against them during campaigns. The law was a lot like the FCC's "personal attack" rule (part of the Fairness Doctrine), one that the court had enforced against broadcasters in Red Lion. But in the Miami Herald case, the Court rejected the argument as completely inconsistent with the First Amendment right of newspapers to exercise editorial discretion in deciding what to publish and what not to publish. The result left one rule for print and another for broadcast - the most prominent illustration to date of the different-media, different-standards rule.

Now that print is becoming electronic, will it lose its preferred status? Certainly not. There is far less need for a government-enforced right of reply regarding digital communication than there is for print. There is no "scarcity" problem. You can reply instantly without permission, and you don't have to worry about economic or license barriers to entry. Your ability to respond, virtually free of charge, makes it silly to think that government should strive for some kind of "fairness" or balance in digital communication.

Whatever the merits of the Fairness Doctrine (it was abandoned by the FCC in 1987, though the Red Lion precedent stands), the Supreme Court should not extend the broad statement that new media justify different First Amendment rules. Former Justice Robert Jackson's original statement in the sound-truck case was that "the moving picture screen, the radio, the newspaper, the handbill, the sound truck, and the street-corner orator have differing natures, values, abuses, and dangers. Each, in my view, is a law unto itself." In Red Lion, the Court gave too much emphasis to the "law unto itself" part. If all the Court meant to say is that the law must reflect the "differing natures, values, abuses, and dangers" of each medium, that's fine - the unique characteristics of computer-mediated communication favor greater freedom.

Not broadcast, not print

Computer-mediated communication should have much greater freedom than, for example, broadcast. Instead of being one-way - from a broadcaster with a government license to a captive audience - it's interactive and from many to many. Its decentralization and user control are vastly different from the monopolistic control of scarce frequencies by powerful broadcasters.

Nor is the medium "intrusive" in the sense that your kids might be surprised and "assaulted" by hearing dirty words, such as when they scan radio stations. (This is what led the Court, in the 1978 Pacifica decision, to uphold the FCC prohibition of "indecency" on the radio.) User control means you need to work at it in a fairly sophisticated way to participate, and you have an incredible range of choice about exposing yourself to communication. Parental control should not be a thing of the past.

Of course, the fact that digital communication is cheap means anybody can become a publisher. There's no built-in preference for speech by the rich and powerful - those who own printing presses, tons of newsprint, or broadcast licenses - or for speech whose main appeal is to generate paid advertisements. It's far more democratic even than print.

Unfortunately, the Supreme Court has repeated the new-media new-rules statement in recent cases. In 1994, for example, the Court quoted the line from the Red Lion decision in deciding a case (Turner Broadcasting v. FCC) on whether cable television operators could be required to carry local broadcast and public television channels. I hope the court, when it gets its first digital communication case, does not woodenly recite the same slogan.

The idea that there should be special First Amendment rules for new media makes little sense. The basic principles of First Amendment jurisprudence apply to all media. And, to the extent that digital communication is different - because it is fast, cheap, interactive, and controlled by decentralized users - the differences call for less regulation than traditional media, not more. The application of the basic principles should reflect these characteristics of the new technology....

Fourth Amendment turf

Do you have a First Amendment right to speak anonymously on the Internet or to encrypt your communications? Many bits have already zoomed through cyberspace discussing these questions, but there have been no definitive rulings by the courts. In 1995, the Supreme Court decided that government may not insist that the author of political speech identify herself in election leaflets. The court reminded us that the authors of the Federalist Papers themselves used pseudonyms, and that much great literature was written under noms de plume.

But what if some state legislature decided that anonymous digital communication allowed wrongdoers to escape responsibility for unlawful speech too easily - and so enacted a law requiring that every communication be "signed" by the person making it? This would be an interesting case, but there's no doubt that the law would have to be evaluated in light of the same old bedrock principles, especially the one prohibiting overly broad regulation. A law that merely required the system operator to be able to trace unlawful communications to their makers would be a less restrictive means of serving the state interest, if there is a valid one.

As for encryption, I will duck the question, not simply because I don't begin to understand the technological issues, but because it seems that this is primarily a Fourth Amendment issue. The controversy is mostly about whether the government should have the means of intercepting or retrieving digital communications, or whether people should be allowed to encrypt them so that the government remains clueless.

The controversy, in Fourth Amendment terms, involves the circumstances in which government may "search" or "seize" such communications. I realize that encryption advocates say they have a First Amendment right to code their speech so that government can't hear it or find it. I would only say that the issue should be resolved once again by applying the old tried and true principles.

No new constitutional amendment needed

Harvard Law School professor Laurence Tribe has proposed a new constitutional amendment to ensure cyberspace freedom. His amendment would supplement the First and Fourth amendments to say: "This Constitution's protections for freedoms of speech, press, petition, and assembly, and its protections against unreasonable searches and seizures and the deprivation of life, liberty, or property without due process of law, shall be construed as fully applicable without regard to the technological method or medium through which information content is generated, stored, altered, transmitted, or controlled."

Tribe's intent is to protect digital communication against constitutional assault because it is a new and unruly medium. Tribe believes, as I do, that there should be no general rule that new media demand different First Amendment standards. His main concern seems to involve incursions on Fourth Amendment liberties.

I have no quarrel with Tribe's amendment. But I'm not at all convinced of its necessity for First Amendment purposes. I believe that any tinkering with the Bill of Rights is a perilous undertaking with an uncertain outcome. Since all foreseeable First Amendment issues can be resolved by resorting to the basic principles already developed, I would not open the door to the potential for mischief (such as an anti-flag-burning amendment) that could come from the amendment process. I would simply leave well enough alone.

Proponents of speech restrictions often have a plausible-sounding reason for the restrictions: We need to protect our children from learning bad values or seeing pornographic pictures; We need to protect our citizens' reputations or privacy; We need to protect national security; We want the press to behave responsibly and to give us the information we need to maintain a functioning democracy. And so on.

All of these contentions can and should be dealt with by using existing First Amendment principles. It does not matter that the speech in question is digital. Indeed, to the extent that digital communication is different - fast, cheap, interactive, and user-controlled - the differences point to less restriction on it than on more traditional media. Those who want to restrict digital communication should have, if anything, a much heavier burden of proof to justify restriction.

In the Miami Herald case on newspaper speech, former Chief Justice Burger wrote: "A responsible press is an undoubtedly desirable goal, but press responsibility is not mandated by the Constitution and, like many other virtues, it cannot be legislated."

In other words, speech that is required by government to be fair is not free. For my money, I'll take freedom over government-compelled responsibility in almost all cases, any time.

And because the Net is more democratic than even print, digital communication should point the way to still greater freedom.

William Bennett Turner ( is a San Francisco lawyer who teaches the First Amendment and the Press at the University of California at Berkeley.

 © 1993-2004 The Condé Nast Publications Inc. All rights reserved.


June 30, 2006

Rep. Harbin's lawsuit threat forces artist
to shut Web site

By Mark Niesse, Associated Press

Honolulu Star-Bulletin

When Jon Asato drew comics on his Web site portraying state Rep. Bev Harbin as the Incredible Hulk and the Joker, he did not expect to be threatened with a lawsuit.

But a sheriff's deputy showed up at his door recently with a letter from Harbin, who said she would take him to court unless he removed his parody site.

Asato gave up ownership of rather than hire an attorney to fight allegations that he illegally stole Harbin's identity and broke cybersquatting laws....


"It was clearly satire and parody," he said. "As much as I believe in the right to creative and critical speech of a public official ... it's not in my constitution right now to go to the trouble of having to defend my good humor."

Asato posted four comics on the site making fun of Harbin, who failed to disclose that she had $125,000 in state tax debts and misdemeanor criminal convictions for passing bad checks when she was appointed to the state Legislature by Republican Gov. Linda Lingle last fall.

Asato said he wanted to point out Harbin's criminal history and how Lingle's politics backfired when she appointed Harbin, who Democratic leaders consider to be a Democrat in name only. Lingle was required to appoint a Democrat to replace Rep. Kenneth Hiraki (D, Kakaako-Downtown), who resigned to become a lobbyist for Hawaiian Telcom.

Harbin says she understands that criticism comes with the turf, but she was offended that the Web site carried her name.

"I feel violated. ... You can't take someone's trademark or name and keep it as your own," Harbin said. "This whole political decision-making thing isn't a computer game. This is life. We're dealing with people's lives over here."

Federal laws prohibiting cybersquatting -- the practice of using a domain name with the bad-faith intent of profiting from someone else's trademark -- apply more frequently in commercial cases, said Danielle Conway-Jones, a law professor at the University of Hawaii who teaches Internet law and policy.

"Your name is your very being, and it's almost as if you are allowing another person to register another being to say what they want to say about them," she said. "The courts haven't really addressed it."

Asato took down the site June 18 after receiving a second letter from Harbin that said she would take legal action. Harbin said she paid sheriff's deputies to deliver both letters.

She said she has applied for the Web site name and plans to use it for her re-election campaign.

The comics have been republished on another one of Asato's Web sites at

Read the complete article (with pictures and ads) at...


July 18, 2003

Talking Back to the Ganglords

Free speech activist defeats computer industry

by Ted Nace, Gangs of America

Computer giant Intel lost a major lawsuit against a fired employee who sent email protest letter to thousands of his former colleagues in a court decision that experts say is a major victory for free speech and workers’ rights.

The California Supreme Court decision last month marks the end of a five-year battle between Intel, the world’s largest semiconductor manufacturer and Kourosh (Ken) Hamidi, a 56-year-old engineer, who was let go by the company after nine years of service.

“He no more invaded Intel’s property that does a protester holding a sign or shouting through a bullhorn outside corporate headquarters, posting a letter through the mail, or telephoning to complain of a corporate practice,” Justice Kathryn Werdegar wrote on behalf of the judges who ruled in his favor.

Hamidi, who immigrated to California from Iran in 1978, organized a group called Former and Current Employees, or FACE Intel (, soon after being fired in 1995. The organization claims that Intel’s demands on its employees created health problems, stress on families, and even suicide. Using a company email list that he had received from an anonymous source, Hamidi sent six emails to between 8,000 and 35,000 Intel employees, detailing what he claimed were Intel’s abusive practices.

Among the practices objected to by Hamidi and FACE Intel were: forced overtime, a ranking system used to routinely winnow the ranks of employees, discrimination against older workers, and unhealthy conditions in the company’s fabrication facilities.

In response, Intel first tried to block the emails, then sued Hamidi. Two lower courts ruled in favor of the company. But Hamidi, who now had been forced into bankruptcy and was struggling to support his family of four on odd jobs and disability payments, refused to abandon the case.

Said the chagrined Hamidi: “I worked extremely hard and achieved the ‘American Dream’. I was proud of being privileged with my constitutionally guaranteed freedoms as an American citizen ... such as freedom of speech. I lost all of the material side of my ‘American Dream’ only because I stood up and fought for rights that were taken away from me by Intel.

In its lawsuit, Intel claimed the letters to its employees constituted a “tresspass to chattels.” Hamidi’s lawyers countered that the emails were the equivalent of “peaceful pamphleteering,” a form of communication protected from court interference by the First Amendment....

Read the complete article at...

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