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So You Think You Know the Second Amendment? – The New Yorker

 Second Amendment  Comments Off on So You Think You Know the Second Amendment? – The New Yorker
Jul 222015

Does the Second Amendment prevent Congress from passing gun-control laws? The question, which is suddenly pressing, in light of the reaction to the school massacre in Newtown, is rooted in politics as much as law.

For more than a hundred years, the answer was clear, even if the words of the amendment itself were not. The text of the amendment is divided into two clauses and is, as a whole, ungrammatical: A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed. The courts had found that the first part, the militia clause, trumped the second part, the bear arms clause. In other words, according to the Supreme Court, and the lower courts as well, the amendment conferred on state militias a right to bear armsbut did not give individuals a right to own or carry a weapon.

Enter the modern National Rifle Association. Before the nineteen-seventies, the N.R.A. had been devoted mostly to non-political issues, like gun safety. But a coup dtat at the groups annual convention in 1977 brought a group of committed political conservatives to poweras part of the leading edge of the new, more rightward-leaning Republican Party. (Jill Lepore recounted this history in a recent piece for The New Yorker.) The new group pushed for a novel interpretation of the Second Amendment, one that gave individuals, not just militias, the right to bear arms. It was an uphill struggle. At first, their views were widely scorned. Chief Justice Warren E. Burger, who was no liberal, mocked the individual-rights theory of the amendment as a fraud.

But the N.R.A. kept pushingand theres a lesson here. Conservatives often embrace originalism, the idea that the meaning of the Constitution was fixed when it was ratified, in 1787. They mock the so-called liberal idea of a living constitution, whose meaning changes with the values of the country at large. But there is no better example of the living Constitution than the conservative re-casting of the Second Amendment in the last few decades of the twentieth century. (Reva Siegel, of Yale Law School, elaborates on this point in a brilliant article.)

The re-interpretation of the Second Amendment was an elaborate and brilliantly executed political operation, inside and outside of government. Ronald Reagans election in 1980 brought a gun-rights enthusiast to the White House. At the same time, Orrin Hatch, the Utah Republican, became chairman of an important subcommittee of the Senate Judiciary Committee, and he commissioned a report that claimed to find clearand long lostproof that the second amendment to our Constitution was intended as an individual right of the American citizen to keep and carry arms in a peaceful manner, for protection of himself, his family, and his freedoms. The N.R.A. began commissioning academic studies aimed at proving the same conclusion. An outr constitutional theory, rejected even by the establishment of the Republican Party, evolved, through brute political force, into the conservative conventional wisdom.

And so, eventually, this theory became the law of the land. In District of Columbia v. Heller, decided in 2008, the Supreme Court embraced the individual-rights view of the Second Amendment. It was a triumph above all for Justice Antonin Scalia, the author of the opinion, but it required him to craft a thoroughly political compromise. In the eighteenth century, militias were proto-military operations, and their members had to obtain the best military hardware of the day. But Scalia could not create, in the twenty-first century, an individual right to contemporary military weaponslike tanks and Stinger missiles. In light of this, Scalia conjured a rule that said D.C. could not ban handguns because handguns are the most popular weapon chosen by Americans for self-defense in the home, and a complete prohibition of their use is invalid.

So the government cannot ban handguns, but it can ban other weaponslike, say, an assault rifleor so it appears. The full meaning of the courts Heller opinion is still up for grabs. But it is clear that the scope of the Second Amendment will be determined as much by politics as by the law. The courts will respond to public pressureas they did by moving to the right on gun control in the last thirty years. And if legislators, responding to their constituents, sense a mandate for new restrictions on guns, the courts will find a way to uphold them. The battle over gun control is not just one of individual votes in Congress, but of a continuing clash of ideas, backed by political power. In other words, the law of the Second Amendment is not settled; no law, not even the Constitution, ever is.

Photograph by Mario Tama/Getty.

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So You Think You Know the Second Amendment? – The New Yorker

First Amendment to the United States Constitution …

 First Amendment  Comments Off on First Amendment to the United States Constitution …
Jul 022015

Thomas Jefferson wrote with respect to the First Amendment and its restriction on the legislative branch of the federal government in an 1802 letter to the Danbury Baptists (a religious minority concerned about the dominant position of the Congregationalist church in Connecticut):

Believing with you that religion is a matter which lies solely between Man & his God, that he owes account to none other for his faith or his worship, that the legitimate powers of government reach actions only, & not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should “make no law respecting an establishment of religion, or prohibiting the free exercise thereof,” thus building a wall of separation between Church & State. Adhering to this expression of the supreme will of the nation in behalf of the rights of conscience, I shall see with sincere satisfaction the progress of those sentiments which tend to restore to man all his natural rights, convinced he has no natural right in opposition to his social duties.[9]

In Reynolds v. United States (1878) the Supreme Court used these words to declare that “it may be accepted almost as an authoritative declaration of the scope and effect of the amendment thus secured. Congress was deprived of all legislative power over mere [religious] opinion, but was left free to reach [only those religious] actions which were in violation of social duties or subversive of good order.” Quoting from Jefferson’s Virginia Statute for Religious Freedom the court stated further in Reynolds:

In the preamble of this act […] religious freedom is defined; and after a recital ‘that to suffer the civil magistrate to intrude his powers into the field of opinion, and to restrain the profession or propagation of principles on supposition of their ill tendency, is a dangerous fallacy which at once destroys all religious liberty,’ it is declared ‘that it is time enough for the rightful purposes of civil government for its officers to interfere [only] when [religious] principles break out into overt acts against peace and good order.’ In these two sentences is found the true distinction between what properly belongs to the church and what to the State.

Originally, the First Amendment applied only to the federal government, and some states continued official state religions after ratification. Massachusetts, for example, was officially Congregationalist until the 1830s.[10] In Everson v. Board of Education (1947), the U.S. Supreme Court incorporated the Establishment Clause (i.e., made it apply against the states). In the majority decision, Justice Hugo Black wrote:

The “establishment of religion” clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion to another … in the words of Jefferson, the [First Amendment] clause against establishment of religion by law was intended to erect ‘a wall of separation between church and State’ … That wall must be kept high and impregnable. We could not approve the slightest breach.[11]

In Torcaso v. Watkins (1961), the Supreme Court ruled that the Constitution prohibits states and the federal government from requiring any kind of religious test for public office. In the Board of Education of Kiryas Joel Village School District v. Grumet (1994),[12] Justice David Souter, writing for the majority, concluded that “government should not prefer one religion to another, or religion to irreligion.”[13] In a series of cases in the first decade of the 2000sVan Orden v. Perry (2005), McCreary County v. ACLU (2005), and Salazar v. Buono (2010)the Court considered the issue of religious monuments on federal lands without reaching a majority reasoning on the subject.[14]

Everson used the metaphor of a wall of separation between church and state, derived from the correspondence of President Thomas Jefferson. It had been long established in the decisions of the Supreme Court, beginning with Reynolds v. United States in 1879, when the Court reviewed the history of the early Republic in deciding the extent of the liberties of Mormons. Chief Justice Morrison Waite, who consulted the historian George Bancroft, also discussed at some length the Memorial and Remonstrance against Religious Assessments by James Madison, who drafted the First Amendment; Madison used the metaphor of a “great barrier.”[15]

Justice Hugo Black adopted Jefferson’s words in the voice of the Court.[16] The Court has affirmed it often, with majority, but not unanimous, support. Warren Nord, in Does God Make a Difference?, characterized the general tendency of the dissents as a weaker reading of the First Amendment; the dissents tend to be “less concerned about the dangers of establishment and less concerned to protect free exercise rights, particularly of religious minorities.”[17]

Beginning with Everson, which permitted New Jersey school boards to pay for transportation to parochial schools, the Court has used various tests to determine when the wall of separation has been breached. Everson laid down the test that establishment existed when aid was given to religion, but that the transportation was justifiable because the benefit to the children was more important. In the school prayer cases of the early 1960s, (Engel v. Vitale and Abington School District v. Schempp), aid seemed irrelevant; the Court ruled on the basis that a legitimate action both served a secular purpose and did not primarily assist religion. In Walz v. Tax Commission (1970), the Court ruled that a legitimate action could not entangle government with religion; in Lemon v. Kurtzman (1971), these points were combined into the Lemon test, declaring that an action was an establishment if:[18]

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First Amendment to the United States Constitution …

Fifth Amendment | United States Constitution |

 Fifth Amendment  Comments Off on Fifth Amendment | United States Constitution |
Jun 222015

Fifth Amendment,amendment (1791) to the Constitution of the United States, part of the Bill of Rights, that articulates procedural safeguards designed to protect the rights of the criminally accused and to secure life, liberty, and property. For the text of the Fifth Amendment, see below.

Similar to the First Amendment, the Fifth Amendment is divided into five clauses, representing five distinct, yet related, rights. The first clause specifies that [n]o person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces or in the Militia, when in actual service in time of War or public danger. This grand jury provision requires a body to make a formal presentment or indictment of a person accused of committing a crime against the laws of the federal government. The proceeding is not a trial but rather an ex parte hearing (i.e., one in which only one party, the prosecution, presents evidence) to determine if the government has enough evidence to carry a case to trial. If the grand jury finds sufficient evidence that an offense was committed, it issues an indictment, which then permits a trial. The portion of the clause pertaining to exceptions in cases arising in the land or naval forces, or in the Militia is a corollary to Article I, Section 8, which grants Congress the power [t]o make Rules for the Government and Regulation of the land and naval Forces. Combined, they justify the use of military courts for the armed forces, thus denying military personnel the same procedural rights afforded civilians.

The second section is commonly referred to as the double jeopardy clause, and it protects citizens against a second prosecution after an acquittal or a conviction, as well as against multiple punishments for the same offense. Caveats to this provision include permissions to try persons for civil and criminal aspects of an offense, conspiring to commit as well as to commit an offense, and separate trials for acts that violate laws of both the federal and state governments, although federal laws generally suppress prosecution by the national government if a person is convicted of the same crime in a state proceeding.

The third section is commonly referred to as the self-incrimination clause, and it protects persons accused of committing a crime from being forced to testify against themselves. In the U.S. judicial system a person is presumed innocent, and it is the responsibility of the state (or national government) to prove guilt. Like other pieces of evidence, once presented, words can be used powerfully against a person; however, words can be manipulated in a way that many other objects cannot. Consequently, information gained from sobriety tests, police lineups, voice samples, and the like is constitutionally permissible while evidence gained from compelled testimony is not. As such, persons accused of committing crimes are protected against themselves or, more accurately, how their words may be used against them. The clause, therefore, protects a key aspect of the system as well as the rights of the criminally accused.

The fourth section is commonly referred to as the due process clause. It protects life, liberty, and property from impairment by the federal government. (The Fourteenth Amendment, ratified in 1868, protects the same rights from infringement by the states.) Chiefly concerned with fairness and justice, the due process clause seeks to preserve and protect fundamental rights and ensure that any deprivation of life, liberty, or property occurs in accordance with procedural safeguards. As such, there are both substantive and procedural considerations associated with the due process clause, and this has influenced the development of two separate tracks of due process jurisprudence: procedural and substantive. Procedural due process pertains to the rules, elements, or methods of enforcementthat is, its procedural aspects. Consider the elements of a fair trial and related Sixth Amendment protections. As long as all relevant rights of the accused are adequately protectedas long as the rules of the game, so to speak, are followedthen the government may, in fact, deprive a person of his life, liberty, or property. But what if the rules are not fair? What if the law itselfregardless of how it is enforcedseemingly deprives rights? This raises the controversial spectre of substantive due process rights. It is not inconceivable that the content of the law, regardless of how it is enforced, is itself repugnant to the Constitution because it violates fundamental rights. Over time, the Supreme Court has had an on-again, off-again relationship with liberty-based due process challenges, but it has generally abided by the principle that certain rights are implicit in the concept of ordered liberty (Palko v. Connecticut [1937]), and as such they are afforded constitutional protection. This, in turn, has led to the expansion of the meaning of the term liberty. What arguably began as freedom from restraint has transformed into a virtual cornucopia of rights reasonably related to enumerated rights, without which neither liberty nor justice would exist. For example, the right to an abortion, established in Roe v. Wade (1973), grew from privacy rights, which emerged from the penumbras of the constitution.

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Government Explains Away Fourth Amendment Protection for …

 Fourth Amendment  Comments Off on Government Explains Away Fourth Amendment Protection for …
Jun 092015

People have a reasonable expectation of privacy in their private digital communications such as email, and therefore the Fourth Amendment protects those communications. It’s a simple extension of the Supreme Courts seminal 1967 ruling in Katz v. United States that the Fourth Amendment protected a telephone conversation held in a closed phone booth. But in a brief recently filed in a criminal terrorism case arising from surveillance of a United States citizen, the government needs only a few sentences to argue this basic protection doesnt apply, with potentially dramatic consequences for the rest of us.

United States v. Mohamud

Mohamed Mohamud is a Somalia-born naturalized U.S. citizen who was convicted in 2012 of plotting to detonate a car bomb at a Christmas tree lighting ceremony in Oregon. Shortly after he was arrested, he was given notice by the government that it had used evidence obtained under the Foreign Intelligence Surveillance Act (FISA) against him.

But it wasnt until after Mohamud was convicted and just a few weeks before he was to be sentenced that the government belatedly gave him notice for the first time that it had also used evidence derived under Section 702 of the FISA Amendments Act (FAA). The government continues to withhold the details of the FAA surveillance, forcing Mohamud (and other defendants receiving delayed FAA notice) to raise generalized challenges to the constitutionality of the FAA based only on what is publicly known about Section 702 surveillance. Mohamud did exactly that in April, raising several legal challenges to the FAA and arguing he should receive a new trial.

The Governments Talking to a Foreigner Exception to the Fourth Amendment

While theres a lot unknown about Section 702 surveillance, we do know it authorizes the targeting of foreigners even when this targeting results in the incidental collection of constitutionally protected Americans communications. As a result, the government can acquire the contents of Americans e-mails, VOIP calls, chat sessions, and more when they communicate with people outside the US.

In its recently filed response to Mohamuds motion to suppress and for new trial, the government concedes for the sake of argument that an American whose communications are incidentally collected as part of Section 702 surveillance has constitutional interests at stake. So far so good; these constitutional interests are in fact at the core of what the Supreme Court describes as the Fourth Amendments protection of the privacy and security of individuals against arbitrary invasions by governmental officials. But then the government dismisses this fundamental protection with one staggeringly broad passage:

The Supreme Court has long held that when one person voluntarily discloses information to another, the first person loses any cognizable interest under the Fourth Amendment in what the second person does with the information. . . . For Fourth Amendment purposes, the same principle applies whether the recipient intentionally makes the information public or stores it in a place subject to a government search. Thus, once a non-U.S. person located outside the United States receives information, the sender loses any cognizable Fourth Amendment rights with respect to that information. That is true even if the sender is a U.S. person protected by the Fourth Amendment, because he assumes the risk that the foreign recipient will give the information to others, leave the information freely accessible to others, or that the U.S. government (or a foreign government) will obtain the information.

It is true that individuals assume the risk that the people they communicate with will turn over a recording to the government. So, for example, in the cases the government cites in the passage above, United States v. White and Hoffa v. United States, the Supreme Court found there is no Fourth Amendment violation if you have a private conversation with someone who happens to be a government informant and repeats what you said to the government or even surreptitiously records it. In those instances, individuals misplaced confidence that people they are communicating with wont divulge their secrets is not enough to create a Fourth Amendment interest.

But the government stretches these cases far beyond their limits, arguing that its own incidental collection of an Americans communications while targeting a foreigner is the same as having that person repeat what the American said to the government directly, even though it is the government that is eavesdropping on the conversation. In essence, when you communicate with someone whose communications are being targeted under the FAA, you have no Fourth Amendment rights. Under this reasoning, any time you send an email to someone in another country, you assume the risk that your intended recipient may be a foreigner and that the government can obtain the contents of the email without a warrant.

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Decision to throw out suit affirmed

 Fourth Amendment  Comments Off on Decision to throw out suit affirmed
Apr 112015

A panel of appellate judges disagreed Thursday about whether an Arkansas prison inmate was entitled to a hearing on his complaint that a visual body-cavity inspection by prison guards violated his Fourth Amendment rights.

Two members of the three-judge panel agreed with U.S. District Judge D. Price Marshall Jr.’s decision to dismiss the handwritten, pro-se lawsuit on the grounds that the allegations “failed to rise to a constitutional violation.”

But Judge Kermit Bye of Fargo, N.D., disagreed with his fellow panelists at the 8th U.S. Circuit Court of Appeals in St. Louis, writing in a partial dissent that he thinks Marshall should have conducted a “balancing test” to weigh the need for the search against an invasion of inmate Kendrick C. Story’s personal rights.

“Despite broad rights of correctional officers to search prisoners, there are limits on when strip searches are appropriate,” Bye wrote, citing previous 8th Circuit rulings. In those rulings, the appellate court said district judges may consider less-invasive techniques in deciding whether a strip search was reasonable, found it relevant that a strip search was conducted in a private bathroom, and held that strip searches should be conducted as far from public view as possible without compromising security concerns, in a manner that isn’t degrading or humiliating.

In his lawsuit, Story said he was returning to the Williams Correctional Facility from a school at the Pine Bluff unit on April 16, 2013, when officers at the gate told him to remove his clothes, lift his genitals, and bend over and spread his buttocks for a visual body-cavity search. He complained that the search took place in front of other inmates and in view of two security cameras, and that female guards watched through a video feed from cameras in the master control room.

Marshall dismissed the case on July 30, 2013.

U.S. Circuit Judges Steven M. Colloton of Des Moines, Iowa, and Raymond W. Gruender of St. Louis said in their majority ruling affirming the dismissal that the prison guards were entitled to qualified immunity, making it “unnecessary and inefficient” to even consider whether there was a constitutional violation.

“Qualified immunity gives government officials breathing room to make reasonable but mistaken judgments, and protects all but the plainly incompetent or those who knowingly violate the law,” the majority opinion said, citing a 2013 ruling.

The majority also said that the U.S. Supreme Court “never has resolved whether convicted inmates retain a Fourth Amendment right against unreasonable searches while in custody,” although it has said it didn’t apply to a search of a prison cell because of “the close and continual surveillance of inmates and their cells required to ensure institutional security and internal order.”

The 7th U.S. Circuit Court of Appeals, based in Chicago, has said inmates retain no rights under the Fourth Amendment regarding visual inspections by guards, but the 8th Circuit has said inmates are entitled to Fourth Amendment protections against unreasonable searches of their bodies, the majority opinion noted.

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Supreme Court in India upholds free speech on internet, scraps Section 66A of IT Act – Video

 Free Speech  Comments Off on Supreme Court in India upholds free speech on internet, scraps Section 66A of IT Act – Video
Apr 112015

Supreme Court in India upholds free speech on internet, scraps Section 66A of IT Act
Supreme Court in India on March 24, 2015 upholds free speech on internet, scraps 'unconstitutional' Section 66A of IT Act. The controversial cyber law that gave police sweeping powers to arrest…

By: Ravi Pradhan

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Supreme Court in India upholds free speech on internet, scraps Section 66A of IT Act – Video

Religious Freedom Debates Make Evangelicals More Tolerant, Study Finds

 Free Speech  Comments Off on Religious Freedom Debates Make Evangelicals More Tolerant, Study Finds
Apr 112015

April 10, 2015|4:46 pm

Protesters against U.S. President Barack Obama’s health care overhaul gather outside the Supreme Court in Washington, June 28, 2012. The Supreme Court is set to deliver on Thursday its ruling on President Barack Obama’s 2010 healthcare overhaul, his signature domestic policy achievement, in a historic case that could hand him a huge triumph or a stinging rebuke just over four months before he seeks re-election.

When Evangelicals are exposed to arguments defending their own free speech and religious freedom, they become more accepting of extending similar rights to their political foes, a new study found.

“Rights, Reflection, and Reciprocity: How Rights Talk Affects the Political Process,” by political scientists Paul Djupe, Denison University; Andrew Lewis, University of Cincinnati; and Ted Jelen, University of Nevada-Las Vegas, will be presented this month at the Midwest Political Science Association’s annual meeting in Chicago.

The researchers sought to understand if the recent culture war battles between sexual freedom and religious freedom (see, for example, here, hereand here) would lead to greater or lesser division and intolerance among the combatants. (This paper focuses on the conservative side but they suggest they will also be studying the liberal side.)

In an article for the political science blog The Monkey Cage, the authors explain that their research “has identified a fascinating silver lining [to those culture war battles]. We find that evangelical Christians who are exposed to claims about religious rights actually become more willing to extend First Amendment rights to their ideological opponents. That is, the campaign to reinforce religious liberty might actually increase political tolerance in the long run.”

(Photo: The Christian Post/Sonny Hong)

Paul Djupe, associate professor of political science at Denison University, presenting “The Choice That Matters: Politics in the Role of Leaving Congregations,” at the American Political Science Association Annual Meeting, Washington, D.C., Aug. 30, 2014.

The study used a survey experiment. A sample of 2,141 respondents, including 274 Evangelicals and 1,867 non-Evangelicals, were divided into groups exposed to different messages from hypothetical political candidates and clergy. These messages were about pro-life protestors, the Obama administration’s birth control mandate, teaching creationism, and a photographer declining to work at a same-sex wedding. Each group had messages based upon either morality, free speech, religious liberty, and a less specific message that was used as the control group. The study also used a number of control measures that are common in studies of tolerance education, ideology, political interest, gender, age, and democratic norms.

The respondents were also asked to identify which groups they either “like the least” or “disagree with the most” from among these options: immigrants, Tea Party members, Muslims, homosexuals, Christian fundamentalists, or atheists. For the full sample, the non-Evangelicals chose Christian fundamentalists as their least liked group, followed by the Tea Party. Evangelicals chose atheists as their least liked group, followed by Muslims and the Tea Party.

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Religious Freedom Debates Make Evangelicals More Tolerant, Study Finds

Free speech advocate addresses Bentonville students

 Free Speech  Comments Off on Free speech advocate addresses Bentonville students
Apr 112015

BENTONVILLE — Mary Beth Tinker told Bentonville High School students she was “really scared and nervous” when she wore a black armband to her school nearly 50 years ago, touching off a controversy leading to a landmark Supreme Court case.

More than 1,000 students filled the school’s Arend Arts Center on Wednesday to hear Tinker speak about her experience and her passion for free-speech rights. Haven Brown, a senior, interviewed Tinker on stage before the audience was allowed to ask her questions.

Tinker was 13 years old in December 1965 when her brother and their friend decided to wear black armbands to school to mourn those killed in the Vietnam War and to support Robert F. Kennedy’s call for a Christmas truce. They lived in Iowa at the time.

“I was kind of shy and I wasn’t sure I was going to do it because I didn’t want to get in trouble,” Tinker said.

A vice principal told her to remove her armband, and Tinker did. She was suspended anyway, as was a small group of other students who wore armbands.

The U.S. Supreme Court eventually heard the students’ case, and in 1969 ruled 7-2 in the students’ favor, saying their form of protest was protected by the U.S. Constitution’s First Amendment. That ruling is officially known as Tinker v. Independent Community School District No. 21.

Tinker told students she didn’t realize what a big case it was until she saw it cited years later in one of her nursing school textbooks.

Tinker said she and her family were the target of hate when news spread about the suspensions.

“People were calling us Communists,” Tinker said. “And my mother said, ‘We’re not Communists, we’re Methodists.'”

The School District’s argument for suspending the students was they were causing a disruption with their armbands, Tinker said.

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Senate gives preliminary OK to call for constitutional convention

 Misc  Comments Off on Senate gives preliminary OK to call for constitutional convention
Apr 082015

After a vigorous debate over the scope of the First Amendment and whether corporations should have the same rights as people, the Maryland Senate gave preliminary approval Tuesday to ajoint resolution calling for a national constitutional convention to deal with the issueof money in politics.

Senators moved the joint resolution toward a final vote after rejecting several Republican amendmentson votes that showed the measure likely has more than enough votes to pass. It would still have to get through the House by next Monday to go into effect.

According to the liberal group Progressive Maryland, Maryland would join four other Democratic-leaning states that have issued a call for the a convention to deal with such Supreme Court rulings as the Citizens United decision in which justices extended the same political contribution rights to corporations as held by individuals.

While the U.S. Constitution provides a mechanism for convening a convention, it requires two-thirds of the state legislatures to issue such a call for the same purpose. With the bar set that high, there has been no constitutional convention since 1787.

Proponents said such a resolutionis needed to pressureCongress to deal with the growing influence of money in politics before it stifles democracy. But opponents warned against calling a convention that could narrow the First Amendment and rewrite the Constitutionin ways that couldn’t be predicted.

Fred Wertheimer, a veteran advocate of campaign finance reform, weighed in late Tuesday with a warning that Maryland lawmakers were heading in the wrong direction. Wertheimer, a former president of Common Cause who now heads the group Democracy 21, pointed to comments by Supreme Court justices that nothing could restrict what a convention might do once one was convened.

“The call of a convention would place all of the constitutional rights of individuals up for grabs: protections for civil rights, freedom of religion, freedom of speech, voting, privacy and many others,” he said. “Also up for grabs would be the role of the courts in protecting the rights of individuals and minority interests.”

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Senate gives preliminary OK to call for constitutional convention

Indiana, Arkansas, and other 'religious freedom' laws: Trouble for the GOP

 Freedom  Comments Off on Indiana, Arkansas, and other 'religious freedom' laws: Trouble for the GOP
Apr 052015

The governors of Indiana and Arkansas Republicans Mike Pence and Asa Hutchinson likely are spending Easter weekend wondering what they might have done to avert the adverse political wave that rolled them over this past week.

It was worse for Indianas Gov. Pence, who had to backtrack on the Religious Freedom Restoration Act hed just signed, calling on state legislators to clarify the law so that it no longer so obviously allowed for discrimination of gays and lesbians.

Arkansas Gov. Hutchinson, learning from Pences experience, quickly said hed veto that states RFRA bill unless lawmakers wrote in that same clarification. That his own son had signed a petition against the bill no doubt got his attention.

“The issue has become divisive because our nation remains split on how to balance the diversity of our culture with the traditions and firmly held religious convictions,” Hutchison said at a press conference. “It has divided families, and there is clearly a generational gap on this issue. My son Seth signed the petition asking me, Dad, the governor, to veto this bill.”

That generational gap was a clear point former California governor Arnold Schwarzenegger made Friday in a Washington Post op-ed column excoriating his own Republican Party on the issue.

“As an American, Im incredibly concerned aboutwhat happened in Indiana this weekand thethreat of similar lawsbeing passed in other states, Mr. Schwarzenegger wrote. As a Republican, Im furious.

I know plenty of Republicans who are sensible and driven to solve problems for America. They believe in Reagans vision of a big tent where everyone is welcome. This message isnt for them, he wrote. It is for Republicans who choose the politics of division over policies that improve the lives of all of us. It is for Republicans who have decided to neglect the next generation of voters. It is for Republicans who are fighting for laws that fly in the face of equality and freedom.

“There are so many real problems that need solving. But distracting, divisive laws like the one Indiana initially passed arent just bad for the country, theyre also bad for our party, Schwarzenegger continued.In California, the GOP has seen the danger of focusing on the wrong issues. In 2007, Republicans made up nearly 35 percent of our registered voters. By 2009, ourshare droppedto 31 percent, andtoday, it is a measly 28 percent. That sharp drop started just after the divisive battle over Proposition 8 [which banned same-sex marriage]. Maybe thats a coincidence, but there is no question that our party is losing touch with our voters, especially with the younger ones who are growing the registration rolls.

(In 2013, the United States Supreme Court effectively killed Prop. 8.)

The struggle to balance religious freedoms with civil and personal rights continues in other states, where local and national businesses have become major players.

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Backlash against religious freedom laws helps gay rights in Indiana, Arkansas

 Freedom  Comments Off on Backlash against religious freedom laws helps gay rights in Indiana, Arkansas
Apr 052015

What began 20 years ago as a bipartisan drive to protect the rights of people to follow their faith against an overbearing government erupted this week into a divisive dispute over gay rights and religious freedom.

And the fracture can be traced back to two recent moves by the Supreme Court that set up an unusual legal crosscurrent between liberals and conservatives.

By overturning a key provision of the federal Defense of Marriage Act in 2013, the court set in motion a string of rulings across the nation that voided state laws banning same-sex marriage. By this June, a majority of justices is widely expected to legalize gay marriage nationwide.

At the same time, the Supreme Court ruled in another case last year that the family owners of the Hobby Lobby craft-store chain had a religious-liberty right to refuse to offer contraception coverage for its employees.

So while the marriage ruling opened the door for expanded protections for gays and lesbians, the Hobby Lobby decision offered new tools for those opposed to such moves.

Conservatives applauded the 5-4 Hobby Lobby ruling, which was based on the Religious Freedom Restoration Act signed by President Clinton in 1993. The law originally aimed to protect the Amish, Native Americans and others whose religious practices ran afoul of local or state laws says the “government shall not substantially burden a person’s exercise of religion.”

But the court’s conservative majority defined “person” to include profit-making companies. Justice Ruth Bader Ginsburg, speaking for the liberal dissenters, called it a “decision of startling breadth” that gives “commercial enterprises, including corporations” a right to ignore laws that conflict with their owners’ religious views.

Armed with the Hobby Lobby ruling and concerned that their statewide bans against same-sex marriage were in danger, conservative lawmakers in Indiana, Arkansas and other states adopted their own versions of the federal religious-freedom law.

Some conservatives hoped the 1993 law would protect religious-minded individuals and businesses from legal mandates on gay marriage that they said would violate their faith. The most commonly cited example was a religious baker who did not want to be forced to make a cake for a gay wedding.

Using the Hobby Lobby precedent, some states broadened the scope of the federal religious-liberty law which dealt with conflicts between the government and individuals and defined a protected person to include a business, company or corporation. That small change created a large concern.

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Backlash against religious freedom laws helps gay rights in Indiana, Arkansas

The Skanner News – Commentary: Free Speech Hypocrisy

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Apr 052015

Details Written by Lee A Daniels, NNPA Columnist Published: 03 April 2015

This winter the medias been ablaze with stories about racist, homophobic and sexist slurs being hurled this way and that by college students and other adults.

Revealingly, those that have captured the most attention all involve Black Americans as the targets of the racist speech or action: the members of the University of Oklahoma chapter of one prominent White fraternity singing a racist ditty that referenced lynching a Black man; the sexist slur hurled against adolescent baseball star MoNe Davis by a college baseball athlete, and the attempt by the Sons of Confederate Veterans of Texas to force that state to produce a license plate with their symbol, the Confederate battle flag, on it. This latest effort by Confederate sympathizers to obscure the racist rebellions ineradicable stain of treason in the defense of slavery, as one analyst wrote, has reached the U.S. Supreme Court, which heard oral arguments on the case last week.

The controversies have provoked a growing volume of commentary and opinion columns. Most of those Ive seen have declared that, while offensive speech and ideas are despicable, they must be tolerated in the name of freedom of expression so that society can benefit in the short- and long-term from the free flow of ideas.

Im a free-speech advocate myself. But in recent years, whenever these free-speech controversies have burst into the open, Ive increasingly noticed some important things missing from the general run of commentary and opinion columns. For one thing, I dont see them grappling with the question of why those who spout the slurs do so.

For example, shouldnt we be examining why a group of White college students, most of whom come from middle-class and upper-middle-class families, would gleefully traffick in expressions of racism?

And why a White college baseball player would feel the need to use a slur of sexual degeneracy against MoNe Davis, the 14-year-old Black American girl whose athletic prowess and off-the-field poise has won her well-deserved national attention?

Why should any public entity sanction the lies Confederate sympathizers continue to spout? The Confederacys own documents among them, the Confederate Constitution of 1861, and the individual ordinances of secession of each of the Confederate states make clear its driving force was the maintenance and expansion of its slave empire. If states that have these revenue-generating vanity-plate programs must open them to Confederate sympathizers, must they also accept the requests of drivers who want plates bearing the flags of other systems of extraordinary evil such as the Nazi flag, or the flag of ISIS too?

Part of whats bothering me is that when these controversies explode, I dont see the fierce condemnation of the values of the wrongdoers and their parents, neighborhoods and entire racial group thats standard procedure whenever some Black youth has done something wrong. Instead, I see many free speech advocates rush right past any consideration of the pain the offensive words cause to loftily order the individual and the group targets of the hate speech to ignore it or be better than the bigots.

In doing so, they deliberately ignore the reality that the old saying sticks and stones may break your bones but words can never hurt you has always been only partially true. Black American history is replete with many tragic episodes of racist slurs used to provoke and sustain racist violence. And now, the virulent online expressions of hatred against women whom misogynists feel are too assertive underscore the fact that sometimes offensive speech isnt just expression. Sometimes its used as a weapon to intimidate its target into silence.

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The Skanner News – Commentary: Free Speech Hypocrisy

U.S. Supreme Court: GPS Trackers Are a Form of Search and Seizure

 Fourth Amendment  Comments Off on U.S. Supreme Court: GPS Trackers Are a Form of Search and Seizure
Apr 022015

When the government places a location monitor on you or your stuff, it could be violating the Fourth Amendment.

If the government puts a GPS tracker on you, your car, or any of your personal effects, it counts as a searchand is therefore protected by the Fourth Amendment.

The Supreme Court clarified and affirmed that law on Monday, when it ruled on Torrey Dale Grady v. North Carolina, before sending the case back to that states high court. The Courts short but unanimous opinion helps make sense of how the Fourth Amendment, which protects against unreasonable search and seizure, interacts with the expanding technological powers of the U.S. government.

It doesnt matter what the context is, and it doesnt matter whether its a car or a person. Putting that tracking device on a car or a person is a search, said Jennifer Lynch, a senior staff attorney at the Electronic Freedom Foundation (EFF).

In this case, that context was punishment. Grady was twice convicted as a sex offender. In 2013, North Carolina ordered that, as a recidivist, he had to wear a GPS monitor at all times so that his location could be monitored. He challenged the court, saying that the tracking device qualified as an unreasonable search.

North Carolinas highest court at first ruled that the tracker was no search at all. Its that decision that the Supreme Court took aim at today, quoting the states rationale and snarking:

The only theory we discern [] is that the States system of nonconsensual satellite-based monitoring does not entail a search within the meaning of the Fourth Amendment. That theory is inconsistent with this Courts precedents.

Then it lists a series of Supreme Court precedents.

And there are a few, as the Court has considered the Fourth Amendment quite a bit recently. In 2012, it ruled that placing a GPS tracker on a suspects car, without a warrant, counted as an unreasonable search. The following year, it said that using drug-sniffing dogs around a suspects front porchwithout a warrant and without their consentwas also unreasonable, as it trespassed onto a persons property to gain information about them.

Both of those cases involved suspects, but the ruling Monday made clear that it extends to those convicted of crimes, too.

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U.S. Supreme Court: GPS Trackers Are a Form of Search and Seizure

Volokh Conspiracy: Can a city suppress speech protesting eminent domain?

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Apr 022015

The Institute for Justice had petitioned the Supreme Court to take an interesting case out of the Fourth Circuit involving the suppression of free speech protesting a taking of private property. Here is the press release:

Case Appealed to U.S. Supreme Court Shows How If We Lose One Right, We Can Lose Them All

First the Government Tried to Illegally Take Their Land, Then the Government Silenced Them So They Couldnt Hang a Protest Banner on Their Own Property

Key Facts This case started with government abusing its power of eminent domain. 10 years ago, the U.S. Supreme Court issued its infamousKeloruling eviscerating constitutional protections against eminent domain abuse. Company hung a protest banner; the government demanded they cover it up.

Arlington, Va.Ten years ago, in its infamousKelodecision, the U.S. Supreme Court adopted a radically broad interpretation of the governments power to take private property through eminent domain. But the Court recognized that the necessity and wisdom of using eminent domain are matters of legitimate public debate. Central Radio Company attempted to participate in that debate when the government tried to take its property through eminent domain. The city of Norfolk, Va., however, prevented it from doing so, barring the company from hanging a protest banner on the land in dispute. Now Central Radio is taking its fight to the U.S. Supreme Court,asking the Court to review a major case at the intersection of free speech and property rights.

This case demonstrates just how intertwined our constitutional rights arehow protecting free speech is essential to protecting our other fundamental liberties, including property rights, noted Michael Bindas, a senior attorney with the Institute for Justice, which represents Central Radio.

Central Radio has been a Norfolk institution for more than 80 years, but in 2010 the Norfolk Redevelopment and Housing Authority moved to take its land and building through eminent domain and turn it over to nearby Old Dominion University (a land grab Central Radio would ultimately defeat). In response to the threat, Central Radio hunga 375-square foot protest banneron the very building the government was trying to take. It read: 50 years on this street/78 years in Norfolk/100 workers/Threatened by eminent domain!

Acting on a complaint made by an official at Old Dominionthe very entity that stood to acquire Central Radios propertythe city quickly cited Central Radio and ordered the banner be taken down. Yet, under Norfolks sign code, the banner would have been allowed if it had fallen into one of the various favored categories of signs that Norfolk exempts from regulation. For example, a banner of the same size, in the same location, would have been perfectly permissible if, rather than protesting city policy, it depicted the city flag or crest.

In the fall of 2013, the Virginia Supreme Court held that the citys attempted taking of Central Radios property was illegal, vindicating the companys property rights. Unfortunately, however, the federal courts refused to vindicate Central Radios free speech rights. When the company challenged the citys sign code under the First Amendment, the U.S. District Court for the Eastern District of Virginia upheld it. And in January 2015, a divided 2-1decision of the U.S. 4thCircuit Court of Appeals affirmed the district court.

According to the 4thCircuit majority opinion, it was irrelevant that the sign code drew distinctions between different types of banners based on their content so long as those distinctions were what the court deemed reasonable. Moreover, restricting Central Radios banner was warranted, according to the majority, because some passersby had reacted emphatically to the sign by waving, honking and shouting in support when they saw it. The majority claimed that these expressions of support were evidence that motorists [we]re distracted by [the] sign while driving.

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Volokh Conspiracy: Can a city suppress speech protesting eminent domain?

Supreme Court Rules Government GPS Trackers Can Break Fourth Amendment

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Mar 312015

The Supreme Court has confirmed in a ruling that if the government places a GPS tracker on someone’s person or their belongings, the act counts as a searchsomething that remains protected by the Fourth Amendment.

As part of a case referred to as Grady v. North Carolina, the Supreme Court heard about how Torrey Dale Gradytwice-convicted as a sex offenderwas made to wear a GPS monitor at all times by North Carolina officials. In court, Grady challenged this, claiming it qualified as an unreasonable search. The Supreme Court agreed, explaining:

The only theory we discern [] is that the State’s system of nonconsensual satellite-based monitoring does not entail a search within the meaning of the Fourth Amendment. That theory is inconsistent with this Court’s precedents.

It also listed some Supreme Court precedents to make its case, including a case where a tracker placed on a car without a warrant counted as unreasonable search. “It doesn’t matter what the context is, and it doesn’t matter whether it’s a car or a person,” Jennifer Lynch, a senior staff attorney at the Electronic Freedom Foundation, told The Atlantic. “Putting that tracking device on a car or a person is a search.”

Still, the Fourth Amendment takes poor account of digital technology generally, and courts have only ruled on a small number of cases involving GPS data. At some point, as Lynch points out to The Atlantic, the justice system will need to establish how geo-location datanow prolific in phones, cars, watches and moreis governed and protected. In the meantime, though, North Carolina better rethink its policy on issuing GPS trackers to sex offenders. [The Atlantic, Washington Post]

Image by Canned Muffins under Creative Commons license

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Supreme Court Rules Government GPS Trackers Can Break Fourth Amendment

Volokh Conspiracy: No drone surveillance of crime scene (even from 150 feet above), police say

 Misc  Comments Off on Volokh Conspiracy: No drone surveillance of crime scene (even from 150 feet above), police say
Mar 312015

Does the First Amendment include a right to gather information using flying drones? The federal trial court decision in Rivera v. Foley (D. Conn. Mar. 23) is to my knowledge the first court decision to consider the matter, and its largely skeptical of the First Amendment claim though of course it wont be the last word on the subject, both because it is just a trial court opinion, and because it mostly holds that any right to use drones wasnt clearly established at the time of the events.

Here are plaintiff Pedro Riveras factual allegations (keep in mind that they are just the allegations):

[Rivera] is employed as a photographer and editor at a local television station. [O]n February 1, 2014, he heard on a police scanner that there was a serious motor vehicle accident in the City of Hartford. [Rivera] responded to the accident site and began operating his personally owned drone, which [he] describes as a remote-controlled model aircraft outfitted for recording aerial digital images, to record visual images of the accident scene. [Rivera] was standing outside of the area denoted as the crime scene by officers responding to the accident in a public place, operating his device in public space, observing events that were in plain view. [F]rom his position, [Rivera] maneuvered his drone into the demarcated crime scene area by causing it to hover over the accident scene at an altitude of 150 feet.

Officer [Edward] Yergeau and other uniformed members of the Hartford Police Department at the scene of the accident surrounded [him], demanded his identification card, and asked him questions about what he was doing. [Rivera] informed Officer Yergeau and the other police officers that he was a photographer and editor at a local television station, but that he was not acting as an employee of the television station at the time. [Rivera] also acknowledged to Officer Yergeau and the other police officers that he does, from time to time, forward the video feed from his drone to the television station for which he works.

Officer Yergeau and the other police officers demanded that he cease operating the drone over the accident site and leave the area. [I]mmediately after he was ordered to leave the accident site, Officer [Brian] Foley contacted [Rivera]s employer and complained to [Rivera]s supervisor that [Rivera] had interfered with the Departments investigation at the accident site and compromised the crime scenes integrity. Officer Foley either requested that discipline be imposed upon the [Rivera] by his employer, or suggested that the employer could maintain its goodwill with the employer [sic] by disciplining the [Rivera]. [A]s a direct and proximate result of Officer Foleys contact with [Rivera]s employer, [Rivera] was suspended from work for a period of at least one week.

Because Rivera was suing for damages, and because he couldnt show any city policy of blocking drone overflights, he could prevail only if he could overcome the police officers qualified immunity he had to show that the officers conduct violate[d] a clearly established constitutional right, and any reasonable officer would have realized this. The court concluded that no right to gather information through videorecording had been recognized under Supreme Court and Second Circuit precedent. (Several decisions from other circuits have recognized such a right, but two others have held that no such right was clearly established at the time of those decisions, and in any event the Second Circuit, in which this particular case arose, hadnt spoken.)

But the court went further, concluding that, even if a right to videorecord was recognized, it did not clearly extended to hovering above even 150 feet above the site of a major motor vehicle accident and the responding officers within it, effectively trespassing onto an active crime scene (paragraph break added):

[I]n cases where the right to record police activity has been recognized by our sister circuits, it appears that the protected conduct has typically involved using a handheld device to photograph or videotape at a certain distance from, and without interfering with, the police activity at issue. See, e.g., Glik v. Cunniffe, 655 F.3d 78, 84 (1st Cir. 2011) ([T]he complaint indicates that Glik filmed the officers from a comfortable remove and neither spoke to nor molested them in any way. Such peaceful recording of an arrest in a public space that does not interfere with the police officers performance of their duties is not reasonably subject to limitation.); Am. Civ. Liberties Union of Illinois v. Alvarez, 679 F.3d 583, 607 (7th Cir. 2012) (While an officer surely cannot issue a move on order to a person because he is recording, he police may order bystanders to disperse for reasons related to public safety and order and other legitimate law-enforcement needs. Nothing we have said here immunizes behavior that obstructs or interferes with effective law enforcement or the protection of public safety.).

By contrast, here [Rivera] directed a flying object into a police-restricted area, where it proceeded to hover over the site of a major motor vehicle accident and the responding officers within it, effectively trespassing onto an active crime scene. See, e.g., U.S. v. Causby, 328 U.S. 256, 266 (1946) (holding that invasions to airspace situated within the immediate reaches of land including airspace so close to the land that invasions of it affect the use and enjoyment of the surface of the land are in the same category as invasions to the land itself). Even if recording police activity were a clearly established right in the Second Circuit, [Rivera]s conduct is beyond the scope of that right as it has been articulated by other circuits.

This is probably the most First-Amendment-skeptical part of the courts analysis, and Im not sure its right. Practically, its not clear to me why videorecording a scene from 150 feet above is any more of an intrusion into a police investigation than videorecording it from 150 feet away horizontally or diagonally (if the drone had been off to the side but looking down at angle), at least unless a police helicopter was nearby or was likely to be nearby.

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Volokh Conspiracy: No drone surveillance of crime scene (even from 150 feet above), police say

Supreme Court turns away Bay Area students free-speech case

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Mar 312015

The U.S. Supreme Court denied an appeal Monday by high school students in Morgan Hill who were barred from wearing American flags on their T-shirts on Cinco de Mayo, a year after an angry confrontation between flag-waving Anglo and Mexican American students.

Heeding warnings in 2010 by students from both ethnic groups that clashes could erupt again, the principal at Live Oak High School told the students to either turn the U.S. flag shirts inside out or go home. Some reversed their shirts, others left, but three students and their parents sued the Morgan Hill Unified School District, claiming a violation of free speech. They cited a 1969 U.S. Supreme Court ruling that upheld students right to wear black armbands to class in a silent protest against the Vietnam War.

But the 1969 ruling also said school officials could limit student expression in order to prevent disruption of education or school activities. Federal courts said the Morgan Hill principal had taken reasonable steps to prevent possible violence, and the Supreme Court denied review of the students appeal Monday, without comment.

The Rutherford Institute, a libertarian organization representing the students, said the courts action was a blow to the First Amendment.

When public school students cant wear an American flag on a T-shirt because it might be disruptive, then free speech as weve known it is dead, the institutes president, John Whitehead, said in a statement.

The students also drew support from John and Mary Beth Tinker, the brother and sister whose Vietnam War protest in an Iowa high school led to the Supreme Courts 1969 ruling. In a brief that urged the court to take up the Morgan Hill case, the Tinkers said students speech on controversial subjects often provokes hostile and even potentially violent reactions and should nevertheless remain constitutionally protected.

But the court may have retreated somewhat from the First Amendment stance it took in the Tinker case. A later ruling upheld a school principals authority to censor a student newspaper to promote what the principal described as school values. Another ruling upheld an Alaska schools suspension of a student who unfurled a banner outside the campus reading Bong Hits 4 Jesus, a slogan that the court said could be interpreted as promoting drug use.

The Morgan Hill case arose in an ethnically charged atmosphere that dated from May 5, 2009, when a group of Mexican American students walked around with a Mexican flag to celebrate Cinco de Mayo, and a group of white students responded by hoisting a makeshift American flag up a tree, chanting USA and exchanging profanities and threats with the Latino youths.

A year later, after a confrontation between Latino students and three youths wearing U.S. flag shirts, school officials told the youths in the T-shirts to conceal the flags or go home. They issued no similar orders to students wearing Mexican flag colors to commemorate the holiday, saying there was no evidence that those youths were in danger.

In a 3-0 ruling in February 2014, the Ninth U.S. Circuit Court of Appeals rejected the students free-speech claims, saying the schools actions were tailored to avert violence and focused on student safety. Three conservative judges later argued unsuccessfully for a rehearing and accused their colleagues of catering to the will of the mob.

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Supreme Court turns away Bay Area students free-speech case

Supreme Court hears Confederate plate case – Video

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Mar 292015

Supreme Court hears Confederate plate case
Justices heard arguments about free speech involving Texas' denial of Confederate license plates.

By: FOX 4 News – Dallas-Fort Worth

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Supreme Court hears Confederate plate case – Video

Supreme Court scraps section 66A of IT Act – Video

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Mar 282015

Supreme Court scraps section 66A of IT Act
With the Supreme Court scrapping Section 66A of the Information Technology Act, haters of free speech come together for group therapy. Watch more videos:


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Supreme Court scraps section 66A of IT Act – Video

Supreme Court strikes down S. 66A of the Information Technology Act, 2000 – Video

 Free Speech  Comments Off on Supreme Court strikes down S. 66A of the Information Technology Act, 2000 – Video
Mar 282015

Supreme Court strikes down S. 66A of the Information Technology Act, 2000
In a landmark judgment delivered on March 24, 2015 the Supreme Court struck down section 66(a) of the IT Act holding that the same infringed on the rights of free speech protected by our Constituti…

By: NewsClickin

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Supreme Court strikes down S. 66A of the Information Technology Act, 2000 – Video

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