Cyborg | Designer-Babies | Futurism | Futurist | Immortality | Longevity | Nanotechnology | Post-Human | Singularity | Transhuman

The Fourth Amendment – Privacilla

 Fourth Amendment  Comments Off on The Fourth Amendment – Privacilla
Apr 222016
 

Home > Privacy and Government > Privacy Law Governing the Public Sector > The Fourth Amendment

The Fourth Amendment

The Fourth Amendment is the primary, essential limit on the power of governments in the U.S. to inquire into people’s lives, arrest them, and take their property. It is also what prevents governments and their agents from invading citizens’ privacy.

The Fourth Amendment says:

The Fourth Amendment requires a search to be based on probable cause. That is, government investigators must have a rational belief that a crime has been committed and that evidence or fruits of the crime can be found. The question courts will ask when a citizen claims to have been unconstitutionally searched is whether that person had a reasonable expectation of privacy in the place, papers, or information that government agents have examined or taken.

In a society that both deplores crime and values liberty, there will always be a tension between law enforcement interests and the privacy of individuals. The modern age has increased the ability of criminals to hide crime and its proceeds, and law enforcement sometimes struggles to keep up. This sometimes inspires investigative methods that trample on the privacy expectations and Fourth Amendment rights of innocent citizens. The U.S. Supreme Court has not been a powerful guardian of the Fourth Amendment in recent years, further eroding some Fourth Amendment protections.

In addition, the growth of both the U.S. and state governments during the 20th century vastly increased the amount of information that governments collect. When information is collected for “administrative” purposes, like issuing licenses and benefits or collecting taxes, the government does not have to satisfy the Fourth Amendment. Unfortunately, sometimes this information is used by investigators, released or sold by government agencies, or just misused by rogue government employees. This invades citizens’ expectations of privacy and violates their Fourth Amendment rights.

Links:

Rescuing Search and Seizure by Stephen Budiansky, The Atlantic Monthly (October 2000)

Comments? comments@privacilla.org (Subject: FourthAmendment)

[updated 10/30/00]

Read more from the original source:
The Fourth Amendment – Privacilla

 Posted by at 2:44 pm  Tagged with:

Lynchburg, Virginia – Wikipedia, the free encyclopedia

 Eugenics  Comments Off on Lynchburg, Virginia – Wikipedia, the free encyclopedia
Apr 192016
 

Lynchburg is an independent city in the Commonwealth of Virginia. As of the 2010 census, the population was 75,568. The 2014 census estimates an increase to 79,047.[2] Located in the foothills of the Blue Ridge Mountains along the banks of the James River, Lynchburg is known as the “City of Seven Hills” or the “Hill City”.[3] Lynchburg was the only major city in Virginia that was not captured by the Union before the end of the American Civil War.[4]

Lynchburg is the principal city of the Metropolitan Statistical Area of Lynchburg, near the geographic center of Virginia. It is the fifth largest MSA in Virginia with a population of 254,171[5] and hosts several institutions of higher education. Other nearby cities include Roanoke, Charlottesville, and Danville. Lynchburg’s sister cities are Rueil-Malmaison, France and Glauchau, Germany.

A part of Monacan country upon the arrival of English settlers in Virginia, the region had traditionally been occupied by them and other Siouan Tutelo-speaking tribes since ca. 1270, driving Virginia Algonquians eastward. Explorer John Lederer visited one of the Siouan villages (Saponi) in 1670, on the Staunton River at Otter Creek, southwest of the present-day city, as did Batts and Fallam in 1671. The Siouans occupied the area until c. 1702, when it was taken in conquest by the Seneca Iroquois. The Iroquois ceded control to the Colony of Virginia beginning in 1718, and formally at the Treaty of Albany in 1721.

First settled in 1757, Lynchburg was named for its founder, John Lynch, who at the age of 17 started a ferry service at a ford across the James River to carry traffic to and from New London. He was also responsible for Lynchburg’s first bridge across the river, which replaced the ferry in 1812. He and his mother are buried in the graveyard at the South River Friends Meetinghouse. The “City of Seven Hills” quickly developed along the hills surrounding Lynch’s Ferry. Thomas Jefferson maintained a home near Lynchburg, called Poplar Forest. Jefferson frequented Lynchburg and remarked “Nothing would give me greater pleasure than to be useful to the town of Lynchburg. I consider it as the most interesting spot in the state.”

Lynchburg was established by charter in 1786 at the site of Lynch’s Ferry on the James River. These new easy means of transportation routed traffic through Lynchburg, and allowed it to become the new center of commerce for tobacco trading. In 1810, Jefferson wrote, “Lynchburg is perhaps the most rising place in the U.S…. It ranks now next to Richmond in importance…” Lynchburg became a center of commerce and manufacture in the 19th century, and by the 1850s, Lynchburg (along with New Bedford, Mass.) was one of the richest towns per capita in the U.S.[6] Chief industries were tobacco, iron and steel. Transportation facilities included the James River Bateau on the James River, and later, the James River and Kanawha Canal and, still later, four railroads, including the Virginia and Tennessee Railroad and the Norfolk and Petersburg Railroad.

Early on, Lynchburg was not known for its religiosity. In 1804, evangelist Lorenzo Dow wrote of Lynchburg “… where I spoke in the open air in what I conceived to be the seat of Satan’s Kingdom. Lynchburg was a deadly place for the worship of God.” This was in reference to the lack of churches in Lynchburg. As the wealth of Lynchburg grew, prostitution and other “rowdy” activities became quite common and, in many cases, ignored, if not accepted, by the “powers that be” of the time. Much of this activity took place in an area of downtown referred to as the “Buzzard’s Roost[citation needed].”

During the American Civil War, Lynchburg, which served as a Confederate supply base, was approached within 1-mile (1.6km) by the Union forces of General David Hunter as he drove south from the Shenandoah Valley. Under the false impression that the Confederate forces stationed in Lynchburg were much larger than anticipated, Hunter was repelled by the forces of Confederate General Jubal Early on June 18, 1864, in the Battle of Lynchburg. To create the false impression, a train was continuously run up and down the tracks while the citizens of Lynchburg cheered as if reinforcements were unloading. Local prostitutes took part in the deception, misinforming their Union clients of the large number of Confederate reinforcements.

From April 610, 1865, Lynchburg served as the Capital of Virginia. Under Governor William Smith, the executive and legislative branches of the commonwealth escaped to Lynchburg with the fall of Richmond. Then Gen. Robert E. Lee surrendered to Gen. Ulysses S. Grant at Appomattox Courthouse, roughly 20 miles east of Lynchburg, ending the Civil War.

In the latter 19th century, Lynchburg’s economy evolved into manufacturing (sometimes referred to as the “Pittsburgh of the South”) and, per capita, made the city one of the wealthiest in the United States. In 1880, Lynchburg resident James Albert Bonsack invented the first cigarette rolling machine. Shortly thereafter Dr. Charles Browne Fleet, a physician and pharmacological tinkerer, introduced the first mass marketed over-the-counter enema. About this time, Lynchburg was also the preferred site for the Norfolk & Western junction with the Shenandoah Valley Railroad. However, the citizens of Lynchburg did not want the junction due to the noise and pollution it would create. Therefore, it was located in what would become the City of Roanoke.

In the late 1950s, a number of interested citizens, including Virginia Senator Mosby G. Perrow, Jr., requested the federal government to change its long-planned route for the interstate highway now known as I-64 between Clifton Forge and Richmond.[7] Since the 1940s, maps of the federal interstate highway system depicted that highway taking a northern route, with no interstate highway running through Lynchburg, but the federal government assured Virginia that the highway’s route would be decided by the state.[8] A proposed southern route called for the Interstate to follow from Richmond via US-360 and US-460, via Lynchburg to Roanoke and US-220 from Roanoke to Clifton Forge, then west following US-60 into West Virginia. Although the State Highway Commission’s minutes reflected its initial approval of the northern route, the issue remained in play,[9] proponents of the southern route ultimately succeeded in persuading a majority of Virginia Highway Commissioners to support the change after a study championed by Perrow demonstrated that it would serve a greater percentage of the state’s manufacturing and textile centers. But in July 1961 Governor Lindsay Almond and U.S. Secretary of Commerce Luther Hodges announced that the route would not be changed.[10] This left Lynchburg as the only city with a population in excess of 50,000 (at the time) not served by an interstate.[11]

For several decades throughout the mid-20th century, the state of Virginia authorized compulsory sterilization of the mentally retarded for the purpose of eugenics. The operations were carried out at the Virginia State Colony for Epileptics and Feebleminded, now known as the Central Virginia Training School, located just outside Lynchburg in Madison Heights. An estimated 8,300 Virginians were sterilized and relocated to Lynchburg, known as a “dumping ground” of sorts for the feeble-minded, poor, blind, epileptic, and those otherwise seen as genetically “unfit”.[12]

Sterilizations were carried out for 35 years until 1972, when operations were finally halted. Later in the late 1970s, the American Civil Liberties Union filed a class-action lawsuit against the state of Virginia on behalf of the sterilization victims. As a result of this suit, the victims received formal apologies and counseling if they chose. Requests to grant the victims reverse sterilization operations were denied.

Carrie Buck, the plaintiff in the United States Supreme Court case Buck v. Bell, was sterilized after being classified as “feeble-minded”, as part of the state’s eugenics program while she was a patient at the Lynchburg Colony for Epileptics and Feebleminded.

The story of Carrie Buck’s sterilization and the court case was made into a television drama in 1994, Against Her Will: The Carrie Buck Story.

“Virginia State Epileptic Colony,” a song by the Manic Street Preachers on their 2009 album ‘Journal For Plague Lovers,’ addresses the state’s program of eugenics.

Downtown Lynchburg has seen a significant amount of revitalization since 2002 with hundreds of new loft apartments created through adaptive reuse of historic warehouses and mills. Since 2000, there has been more than $110 million in private investment in downtown and business activity increased by 205% from 2004 – 2014.[13] In 2014, 75 new apartments were added to downtown with 155 further units under construction increasing the number of housing units downtown by 48% from 2010 – 2014.[14] In 2015, the $5.8 million Lower Bluffwalk pedestrian street zone opened to the public in downtown which has seen a significant amount of residential and commercial development around the zone in recent years.[15] Notable projects underway in downtown by the end of 2015 include the $25 million Hilton Curio branded Virginian Hotel restoration project, $16.6 million restoration of the Academy Center of the Arts, and $4.6 million expansion of Amazement Square Children’s Museum. [16][17][18][19]

Over 40 sites in Lynchburg are listed on the National Register of Historic Places.[20]

Lynchburg is located at 372413N 791012W / 37.40361N 79.17000W / 37.40361; -79.17000 (37.403672, 79.170205).

According to the United States Census Bureau, the city has a total area of 49.6 square miles (128.5km2), of which 49.2 square miles (127.4km2) is land and 0.5 square miles (1.3km2) (1.0%) is water.[21]

Lynchburg has a four-season humid subtropical climate (Kppen Cfa), with cool winters and hot, humid summers. The monthly daily average temperature ranges from 35.1F (1.7C) in January to 75.3F (24.1C) in July. Nights tend to be significantly cooler than days throughout much of the year due in part to the moderate elevation. In a typical year, there are 26 days with a high temperature 90F (32C) or above, and 7.5 days with a high of 32F (0C) or below.[22] Snowfall averages 12.9 inches (33cm) per season but this amount varies highly with each winter; the snowiest winter is 199596 with 56.8in (144cm) of snow, but the following winter recorded only trace amounts, the least on record.[23]

Temperature extremes range from 106F (41C), recorded on July 10, 1936, down to 11F (24C), recorded on February 20, 2015.[22] However, several decades may pass between 100F (38C) and 0F (18C) readings, with the last such occurrences being July 8, 2012 and February 20, 2015, respectively.[22]

As of the 2010 census,[31] there were 75,568 people, 25,477 households, and 31,992 families residing in the city. The population density was 1,321.5 people per square mile (510.2/km). There were 27,640 housing units at an average density of 559.6 per square mile (216.1/km). The racial makeup of the city was 63.0% White, 29.3% African American, 0.2% Native American, 2.5% Asian, 0.04% Pacific Islander, 0.63% from other races, and 1.7% from two or more races. Hispanic or Latino of any race were 3.0% of the population.

There were 25,477 households out of which 27.8% had children under the age of 18 living with them, 41.6% were married couples living together, 16.0% had a female householder with no husband present, and 38.8% were non-families. 32.7% of all households were made up of individuals and 12.9% had someone living alone who was 65 years of age or older. The average household size was 2.30 and the average family size was 2.92.

The age distribution of the city had: 22.1% under the age of 18, 15.5% from 18 to 24, 25.3% from 25 to 44, 20.8% from 45 to 64, and 16.3% who were 65 years of age or older. The median age was 35 years. For every 100 females there were 84.2 males. For every 100 females age 18 and over, there were 79.1 males.

The median income for a household in the city was $32,234, and the median income for a family was $40,844. Males had a median income of $31,390 versus $22,431 for females. The per capita income for the city was $18,263. About 12.3% of families and 15.9% of the population were below the poverty line, including 22.4% of those under age 18 and 10.7% of those age 65 or over.

Lynchburg ranks below the 2006 median annual household income for the U.S. as a whole, which was $48,200, according to the US Census Bureau.[32]

The city’s population was stable for 25+ years: in 2006, it was 67,720; in 2000, it was 65,269; in 1990, it was 66,049; in 1980, it was 66,743.[33]

In 2009 almost 27% of Lynchburg children lived in poverty. The state average that year was 14 percent.[34]

Lynchburg features a skilled labor force, low unemployment rate,[35] and below average cost of living. Of Virginia’s larger metro areas, Forbes Magazine ranked Lynchburg the 5th best place in Virginia for business in 2006, with Virginia being the best state in the country for business.[36] Only 6 places in Virginia were surveyed and most of Virginia’s cities were grouped together by Forbes as “Northern Virginia”. Lynchburg achieved the rank 109 in the whole nation in the same survey.

Industries within the Lynchburg MSA include nuclear technology, pharmaceuticals and material handling. A diversity of small businesses with the region has helped maintain a stable economy and minimized the downturns of the national economy.[37][38] Reaching as high as 1st place (tied) in 2007, Lynchburg has been within the Top 10 Digital Cities survey for its population since the survey’s inception in 2004.

The Lynchburg News & Advance reports that while more people are working than ever in greater Lynchburg, wages since 1990 have not kept up with inflation. Central Virginia Labor Council President Walter Fore believes this is due to lack of white-collar jobs. According to the Census Bureau, adjusted for inflation, 1990 median household income was about $39,000 compared to 2009 median household income of $42,740. As of 2009 Forbes has named Lynchburg as the 70th best metro area for business and careers, ahead of Chicago and behind Baton Rouge. The reason for the decent ranking was due to the low cost of living and low wages in Lynchburg. In other areas, the region didn’t come in as strong. It ranked at 189 for cultural and leisure and at 164 for educational attainment.[39]

Virginia Business Magazine reports that Young Professionals in Lynchburg recently conducted a study that clearly showed how much of its young workforce has been lost.[40]

According to Lynchburg’s 2012 Comprehensive Annual Financial Report,[41] the top private employers in the city are:

The city is served by the Lynchburg City Public Schools. The school board is appointed by the Lynchburg City Council.

The city is also home to a number of mostly religious private schools, including Holy Cross Regional Catholic School, James River Day School, Liberty Christian Academy, New Covenant Classical Christian School, Appomattox Christian Academy, Temple Christian School, and Virginia Episcopal School.

Lynchburg is also home to the Central Virginia Governor’s School for Science and Technology located in Heritage High School. This magnet school consists of juniors and seniors selected from each of the Lynchburg area high schools. As one of eighteen Governor’s Schools in Virginia, the Central Virginia Governor’s School focuses on infusing technology into both the math and science curriculum.

Further education options include a number of surrounding county public school systems.

Colleges and universities in Lynchburg include Central Virginia Community College, Liberty University, Lynchburg College, Randolph College, Sweet Briar College, and Virginia University of Lynchburg.

The Greater Lynchburg Transit Company (GLTC) operates the local public transport bus service within the city. The GLTC additionally provides the shuttle bus service on the Liberty University campus.

The GLTC has selected a property directly across from Lynchburg-Kemper Street Station as its top choice of sites upon which to build the new transfer center for their network of public buses. They are interested in facilitating intermodal connections between GLTC buses and the intercity bus and rail services which operate from that location. The project is awaiting final government approval and funding, and is expected to be completed around 2013.[42]

Intercity passenger rail and bus services are based out of Kemper Street Station, a historic, three-story train station recently restored and converted by the city of Lynchburg to serve as an intermodal hub for the community. The station is located at 825 Kemper Street.[43]

Greyhound Lines located their bus terminal in the main floor of Kemper Street Station following its 2002 restoration.[43] Greyhound offers transport to other cities throughout Virginia, the US, Canada, and Mexico.

Amtrak’s long distance Crescent and a Northeast Regional connect Lynchburg with Boston, New York, Philadelphia, Baltimore, Washington, Charlotte, Atlanta, Birmingham, New Orleans and intermediate points.

In October 2009, Lynchburg became the southern terminus for a Northeast Regional that previously had overnighted in Washington. The forecast ridership was 51,000 for the 180-mile extension’s first year, but the actual count was triple that estimate, and the train paid for itself without any subsidy.[44] By FY 2015, the Regional had 190,000 riders. The Lynchburg station alone served a total of 85,000 riders in 2015. It is located in the track level ground floor of Kemper Street Station.[45]

Lynchburg has two major freight railroads. It is the crossroads of two Norfolk Southern lines. One is the former mainline of the Southern Railway, upon which Kemper Street Station is situated. NS has a classification yard located next to the shopping mall. Various yard jobs can be seen. Railfans who wish to visit the NS Lynchburg yard are advised to inquire with an NS official. CSX Transportation also has a line through the city and a small yard.

Lynchburg Regional Airport is solely served by American Eagle to Charlotte. American Eagle, a subsidiary of American Airlines, is the only current scheduled airline service provider, with seven daily arrivals and departures. In recent years air travel has increased with 157,517 passengers flying in and out of the airport in 2012, representing 78% of the total aircraft load factor for that time period.

Primary roadways include U.S. Route 29, U.S. Route 501, U.S. Route 221, running north-south, and U.S. Highway 460, running east-west. While not served by an interstate, much of Route 29 has been upgraded to interstate standards and significant improvements have been made to Highway 460.

In a Forbes magazine survey, Lynchburg ranked 189 for cultural and leisure out of 200 cities surveyed.[39]

The following attractions are located within the Lynchburg MSA:

Lynchburg is home to sporting events and organizations including:

The first neighborhoods of Lynchburg developed upon seven hills adjacent to the original ferry landing. These neighborhoods include:

Other major neighborhoods include Boonsboro, Rivermont, Fairview Heights, Fort Hill, Forest Hill (Old Forest Rd. Area), Timberlake, Windsor Hills, Sandusky, Linkhorne, and Wyndhurst.

Notable residents of Lynchburg include:

Follow this link:
Lynchburg, Virginia – Wikipedia, the free encyclopedia

 Posted by at 7:44 am  Tagged with:

First Amendment (U.S. Constitution) – The New York Times

 Misc  Comments Off on First Amendment (U.S. Constitution) – The New York Times
Mar 192016
 

Latest Articles

Arguments in the jury trial start Monday in a case the celebrity wrestler says is about privacy, but the defendant, Gawker, argues is about the First Amendment.

By ERIK ECKHOLM

The state is one of eight that are considering blanket legal protection for discrimination on religious grounds. Its bill is one of the most alarming.

By THE EDITORIAL BOARD

The company, in its fight with the F.B.I., is defending its phones on grounds that its code represents free speech, and there is some precedent.

By STEVE LOHR

Crisis pregnancy centers in California are in a battle with the state over a new law requiring them to post a notice that free or low-cost abortion care is available.

By ERIK ECKHOLM

A judges order to release secret documents raises questions about how much involvement courts should have over settlements related to corporate wrongdoing.

By PETER J. HENNING

Mr. Kennedy defended John Gotti Sr., Huey P. Newton and Timothy Leary and won freedom for Jean S. Harris, who killed the Scarsdale Diet doctor.

By SAM ROBERTS

In recent years, the Supreme Court has waved the First Amendment banner ever higher to undermine long-accepted governmental regulatory authority.

By LINDA GREENHOUSE

In a California case, the justices are considering whether government workers who choose not to join a union may still be required to pay for collective bargaining.

By ADAM LIPTAK

A federal judge has warned that prosecutors may be going too far when they ask witnesses to keep quiet about receiving a subpoena.

By STEPHANIE CLIFFORD

Some legal scholars are asking whether it is time to reconsider the clear and present danger standard for curbing the freedom of speech.

By ERIK ECKHOLM

A federal appeals court, in a case involving an Asian-American dance-rock band, struck down part of a law that let the government reject trademarks it deemed offensive or disparaging to others.

By RICHARD SANDOMIR

An array of leading hip-hop artists, including T.I., Big Boi and Killer Mike, filed a Supreme Court brief in support of a high school student punished for posting a rap song that drew attention to complaints about sexual harassment.

The Alabama lawyer opposed The New York Times in a case that resulted in a Supreme Court decision establishing greater leeway for criticism of government officials and other public figures.

By BRUCE WEBER

On university campuses, First Amendment rights are colliding with inclusivity.

By NICHOLAS KRISTOF

Religious Arbitration Used for Secular Disputes | Soros Withdraws $490 Million From Janus Capital

A University of Michigan professor writes that many see this as yet another way the First Amendment is being hijacked.

A new class-action lawsuit says that New York City has a policy and a history of violating protesters constitutional rights.

Congressional Republicans are pushing a bill that would deliberately warp the bedrock principle of religious freedom under the Constitution.

By THE EDITORIAL BOARD

As a county clerk, Kim Davis is required to issue marriage licenses to anyone who may legally get married, which includes same-sex couples.

By JESSE WEGMAN

An appeals court upheld restrictions on protesters First Amendment rights to gather and wave signs on the plaza in front of the Supreme Court.

By JACKIE CALMES

Arguments in the jury trial start Monday in a case the celebrity wrestler says is about privacy, but the defendant, Gawker, argues is about the First Amendment.

By ERIK ECKHOLM

The state is one of eight that are considering blanket legal protection for discrimination on religious grounds. Its bill is one of the most alarming.

By THE EDITORIAL BOARD

The company, in its fight with the F.B.I., is defending its phones on grounds that its code represents free speech, and there is some precedent.

By STEVE LOHR

Crisis pregnancy centers in California are in a battle with the state over a new law requiring them to post a notice that free or low-cost abortion care is available.

By ERIK ECKHOLM

A judges order to release secret documents raises questions about how much involvement courts should have over settlements related to corporate wrongdoing.

By PETER J. HENNING

Mr. Kennedy defended John Gotti Sr., Huey P. Newton and Timothy Leary and won freedom for Jean S. Harris, who killed the Scarsdale Diet doctor.

By SAM ROBERTS

In recent years, the Supreme Court has waved the First Amendment banner ever higher to undermine long-accepted governmental regulatory authority.

By LINDA GREENHOUSE

In a California case, the justices are considering whether government workers who choose not to join a union may still be required to pay for collective bargaining.

By ADAM LIPTAK

A federal judge has warned that prosecutors may be going too far when they ask witnesses to keep quiet about receiving a subpoena.

By STEPHANIE CLIFFORD

Some legal scholars are asking whether it is time to reconsider the clear and present danger standard for curbing the freedom of speech.

By ERIK ECKHOLM

A federal appeals court, in a case involving an Asian-American dance-rock band, struck down part of a law that let the government reject trademarks it deemed offensive or disparaging to others.

By RICHARD SANDOMIR

An array of leading hip-hop artists, including T.I., Big Boi and Killer Mike, filed a Supreme Court brief in support of a high school student punished for posting a rap song that drew attention to complaints about sexual harassment.

The Alabama lawyer opposed The New York Times in a case that resulted in a Supreme Court decision establishing greater leeway for criticism of government officials and other public figures.

By BRUCE WEBER

On university campuses, First Amendment rights are colliding with inclusivity.

By NICHOLAS KRISTOF

Religious Arbitration Used for Secular Disputes | Soros Withdraws $490 Million From Janus Capital

A University of Michigan professor writes that many see this as yet another way the First Amendment is being hijacked.

A new class-action lawsuit says that New York City has a policy and a history of violating protesters constitutional rights.

Congressional Republicans are pushing a bill that would deliberately warp the bedrock principle of religious freedom under the Constitution.

By THE EDITORIAL BOARD

As a county clerk, Kim Davis is required to issue marriage licenses to anyone who may legally get married, which includes same-sex couples.

By JESSE WEGMAN

An appeals court upheld restrictions on protesters First Amendment rights to gather and wave signs on the plaza in front of the Supreme Court.

By JACKIE CALMES

See more here:
First Amendment (U.S. Constitution) – The New York Times

The Rutherford Institute :: Free Speech

 Free Speech  Comments Off on The Rutherford Institute :: Free Speech
Feb 212016
 

Defending this fundamental right of free expression is a central theme of The Rutherford Institutes work because we believe that all other liberties spring forth from this right.

The First Amendment guarantees all Americans the opportunity to freely express themselves. This fundamental freedom includes the right to distribute literature and discuss a multitude of viewseven views distasteful to most people. It also protects the right of the people to engage in lawful picketing and the right to peaceably assemble. It is critical that a free society value and honor a free marketplace of ideas, a diversity of opinion, and free expression. Without free expression, no democratic society would be possible.

It is for these reasons that The Rutherford Institute is dedicated to preserving these fundamental rights for all Americans. The Institute responds to hundreds of complaints of free speech violations each year. From environmental activists peaceably protesting on public property to preachers relaying their message in a public forum, The Rutherford Institute believes that all people, regardless of their personal beliefs, are entitled to speak freely.

Free Speech Double Standard: Rutherford Institute Asks U.S. Supreme Court to Declare Unconstitutional Its Own Ban on Expressive Activity on Plaza

First Amendment Victory: Appeals Court Rejects Government Attempt to Deny Trademarks for Names That Might Cause Offense, e.g., ‘The Slants’

Rutherford Responds: City Officials, Police Ask Federal Court to Dismiss First Amendment Lawsuit Over Violation of Street Preachers Free Speech Rights

‘Government Cannot Discriminate Against Offensive Speech’: Rutherford Institute Argues for First Amendment Protection for Redskins’ Name

Federal Appeals Court Refuses to Reconsider Decision Upholding 60-Year-Old Ban on Expressive Activity on U.S. Supreme Court Plaza

The Rutherford Institutes petition for review in Clary v. Virginia DMV

Rutherford Institute Challenges Virginia Over Its Cancellation, Revocation and Recall of License Plates Displaying the Confederate Flag

The Right to Tell the Government to Go to Hell: Free Speech in an Age of Government Bullies, Corporate Censors and Compliant Citizens

Fear of the Walking Dead: The American Police State Takes Aim

Sheep Led to the Slaughter: The Muzzling of Free Speech in America

The Emergence of Orwellian Newspeak and the Death of Free Speech

Free Speech, Facebook and the NSA: The Good, the Bad and the Ugly

An Unbearable and Choking Hell: The Loss of Our Freedoms in the Wake of 9/11

Free Speech, RIP: A Relic of the American Past

Voter ID Laws: Silencing the American People

Criminalizing Free Speech: Is This What Democracy Looks Like?

Read more here:
The Rutherford Institute :: Free Speech

Internet Free Speech – American Civil Liberties Union

 Free Speech  Comments Off on Internet Free Speech – American Civil Liberties Union
Feb 212016
 

The digital revolution has produced the most diverse, participatory, and amplified communications medium humans have ever had: the Internet. The ACLU believes in an uncensored Internet, a vast free-speech zone deserving at least as much First Amendment protection as that afforded to traditional media such as books, newspapers, and magazines.

The ACLU has been at the forefront of protecting online freedom of expression in its myriad forms. We brought the first case in which the U.S. Supreme Court declared speech on the Internet equally worthy of the First Amendments historical protections. In that case, Reno v. American Civil Liberties Union, the Supreme Court held that the government can no more restrict a persons access to words or images on the Internet than it can snatch a book out of someones hands or cover up a nude statue in a museum.

But that principle has not prevented constant new threats to Internet free speech. The ACLU remains vigilant against laws or policies that create new decency restrictions for online content, limit minors access to information, or allow the unmasking of anonymous speakers without careful court scrutiny.

See original here:
Internet Free Speech – American Civil Liberties Union

Free Speech v. – Federal Election Commission

 Free Speech  Comments Off on Free Speech v. – Federal Election Commission
Feb 212016
 

On June 14, 2012, Free Speech filed suit in the U.S. District Court for the District of Wyoming challenging the constitutionality of the Commissions regulations, policies and practices regarding the determination of when a communication constitutes express advocacy, whether a communication is a solicitation, and whether a group is a political committee. The group sought injunctive relief and a declaratory judgment that the rules are unconstitutional, on their face and as applied.

Free Speech is a Wyoming-based, unincorporated association with a stated purpose of promoting and protecting free speech, limited government, and constitutional accountability.” The political organization plans to use individual donations to finance $10,000 in Internet, newspaper, TV, and radio ads during the months leading up to the 2012 election. Free Speech states that it will not coordinate any of its advertising expenditures and will not accept donations from foreign nationals and federal contractors. Nor will it contribute to federal candidates, political parties, or political committees.

The lawsuit follows the Commissions May 8, 2012, response to the groups advisory opinion request. In AO 2012-11, the Commission concluded that two of the 11 ads Free Speech planned to run expressly advocate the election or defeat of a federal candidate under the Act; four of the proposed advertisements do not; and two of the four proposed donation requests are not solicitations. The Commission could not approve a response by the required four votes with respect to the five remaining ads and the two remaining donation requests, nor could it approve a response as to whether Free Speech would have to register and report as a political committee. 11 CFR 100.22 and 100.5(a).

Free Speechs suit focuses primarily on the regulatory definition of express advocacy at 11 CFR 100.22(b). The suit argues that this regulation and related FEC rules, policies and practices abridge Free Speechs First Amendment freedoms. It also questions the Commissions interpretation and enforcement process regarding political committee status, solicitation tests, the major purpose test, and express advocacy determinations. See 2 U.S.C. 431(4), 431(8), 441d; 11 CFR 100.5(a), 100.52(a), 110.11(a).

The groups main argument consists of three parts. First, it states that the Commissions definition of express advocacy is put forth in unclear terms leaving those who guess wrong [to be] subject to criminal or civil penalties. Secondly, it argues the Commissions political committee registration and reporting requirements are burdensome for all groups whose expenditures aggregate more than $1,000 in a calendar year. See 2 U.S.C. 431; 11 CFR 100.5. Lastly, Free Speech disputes whether independent expenditures must include disclaimers and be reported to the Commission. See 2 U.S.C. 434; 11 CFR 104.4.

On March 19, 2013, the U.S. District Court for the District of Wyoming dismissed Free Speech’s case. The court denied the plaintiffs motion for a preliminary injunction in a telephonic ruling on October 3, 2012.

Express Advocacy

Commission regulations define express advocacy communications as those that: (a) use explicit words of advocacy; or (b) in context, can only be interpreted by a reasonable person as advocating a candidates election or defeat. 11 CFR 100.22(a) and (b). Communications that meet either of the regulatory definitions and are not coordinated with a candidate or party are independent expenditures and must be disclosed. See 2 U.S.C. 434(c) and 11 CFR 109.10.

Free Speech argued that the Commissions interpretation of express advocacy at 11 CFR 100.22(b) is vague and offers no clear guidelines for speakers to tailor their constitutionally protected conduct and speech, and that the regulation fails to limit its application to expenditures for communications that in express terms advocate the election or defeat of a clearly identified candidate (i.e., through use of the so-called magic words such as vote for, elect, support, etc.).

The district court noted that the Supreme Court has ruled in several cases that the definition of express advocacy may also include, in addition to use of the magic words, communications that are the functional equivalent of express advocacy. See McConnell v. FEC, 540 U.S. at 193 (2003) and FEC v. Wisconsin Right to Life, Inc. (WRTL), 551 U.S. 449 (2007).

In WRTL, the Supreme Court stated that other courts should find that a communication is the functional equivalent of express advocacy only if the ad is susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate. WRTL, 551 U.S. at 460-470. The district court noted that the functional equivalent test is closely correlated to the Commissions regulation at 100.22(b), which provides that a communication is express advocacy if it could only be interpreted by a reasonable person as containing advocacy of the election or defeat of one or more clearly identified candidate(s).

The Supreme Court also addressed the issue of express advocacy in Citizens United v. FEC (2010). The court found that a communication at issue in that case was the functional equivalent of express advocacy and further upheld the disclosure requirements as they applied to all electioneering communications.

As a result, the district court held that the Supreme Courts ruling in Citizens United directly contradicts the plaintiffs argument that the definition of 100.22(b) is overly broad with respect to disclosure requirements: if mandatory disclosure requirements are permissible when applied to ads that merely mention a federal candidate, then applying the same burden to ads that go further and are the functional equivalent of express advocacy cannot automatically be impermissible.

Solicitation Standard

Commission regulations require any person who solicits a contribution through any broadcasting station, newspaper, magazine, outdoor advertising facility, mailing or any other type of general public political advertising to include an explicit disclaimer on the solicitation. 2 U.S.C. 441d(a).

The Commission determines whether a request for funds amounts to a solicitation based on whether the request indicates that the contributions will be targeted to the election or defeat of a clearly identified federal candidate. See FEC v. Survival Education Fund, Inc., 65 F.3d 285, 293 (2d Cir. 1995). The plaintiff challenged this approach, arguing that it is unconstitutionally vague and overbroad.

The court disagreed with the plaintiff and noted that the plaintiff is free to spend unlimited funds on its solicitations and to solicit unlimited funds for its express advocacy activities. Communications that amount to solicitations merely trigger disclosure requirements; they do not prevent the plaintiff from speaking. Since disclosure serves an important governmental interest in insuring that the voters are fully informed about the person or the group who is speaking, the court held that the plaintiff had failed to establish any constitutional deficiency in the Commissions approach to determining whether a communication is a solicitation for contributions.

Political Committee Status

The plaintiff also challenged the Commissions method of determining when an organization meets the definition of political committee. The Act and Commission regulations define a political committee as any committee, club, association or other group of persons that makes more than $1,000 in expenditures or receives more than $1,000 in contributions during a calendar year. 2 U.S.C. 431(4)(A). In Buckley v. Valeo (1976), the Supreme Court concluded that defining a political committee only in terms of contributions and expenditures could be interpreted to reach groups engaged purely in issue discussion. As such, the Court limited application of the Commissions political committee requirement to organizations either controlled by a candidate or those groups whose major purpose is the nomination or election of candidates.

The Commission has adopted a case-by-case analysis of an organizations conduct and activities for evaluating whether an organizations major purpose is the nomination or election of federal candidates. See Political Committee Status, 72 Fed. Reg. 5595, 5601 (Feb. 7, 2007).

The district court held that the Commissions method of determining political committee status is a permissible approach that is consistent with Supreme Court precedent and does not unlawfully hinder protected speech. The district court granted the Commissions motion to dismiss. On March 25, 2013, Free Speech appealed the district courts dismissal of the case to the United States Court of Appeals for the Tenth Circuit.

On June 25, 2013, the Court of Appeals affirmed the district courts dismissal, holding that the district court correctly resolved each of Free Speechs constitutional challenges. The Court of Appeals adopted the district courts opinion in its entirety.

On May 19, 2014, the Supreme Court declined to hear Free Speechs constitutional challenge to the FECs process for determining whether an organization qualifies as a “political committee.” The Courts denial of certiorari lets stand the June 2013 decision by the U.S. Court of Appeals for the Tenth Circuit to affirm the U.S. District Court for the District of Wyomings dismissal of the suit.

Source: FEC Record — June 2014; August 2013; April 2013; August 2012

(Top of Page)

See the article here:
Free Speech v. – Federal Election Commission

 Posted by at 11:41 pm  Tagged with:

Harv.L.Rev.: Digital Duplications and the Fourth Amendment

 Fourth Amendment  Comments Off on Harv.L.Rev.: Digital Duplications and the Fourth Amendment
Feb 152016
 

ABA Journal’s Blawg 100 (2015)

by John Wesley Hall Criminal Defense Lawyer and Search and seizure law consultant Little Rock, Arkansas Contact / The Book http://www.johnwesleyhall.com

2003-16, online since Feb. 24, 2003 real non-robot URL hits since 2010; approx. 18k posts since 2003

~~~~~~~~~~~~~~~~~~~~~~~~~~

Fourth Amendment cases, citations, and links

Latest Slip Opinions: U.S. Supreme Court (Home) Federal Appellate Courts Opinions First Circuit Second Circuit Third Circuit Fourth Circuit Fifth Circuit Sixth Circuit Seventh Circuit Eighth Circuit Ninth Circuit Tenth Circuit Eleventh Circuit D.C. Circuit Federal Circuit Foreign Intell.Surv.Ct. FDsys, many district courts, other federal courts, other Military Courts: C.A.A.F., Army, AF, N-M, CG State courts (and some USDC opinions)

Google Scholar Advanced Google Scholar Google search tips LexisWeb LII State Appellate Courts LexisONE free caselaw Findlaw Free Opinions To search Search and Seizure on Lexis.com $

Research Links: Supreme Court: SCOTUSBlog S. Ct. Docket Solicitor General’s site SCOTUSreport Briefs online (but no amicus briefs) Curiae (Yale Law) Oyez Project (NWU) “On the Docket”Medill S.Ct. Monitor: Law.com S.Ct. Com’t’ry: Law.com

General (many free): LexisWeb Google Scholar | Google LexisOne Legal Website Directory Crimelynx Lexis.com $ Lexis.com (criminal law/ 4th Amd) $ Findlaw.com Findlaw.com (4th Amd) Westlaw.com $ F.R.Crim.P. 41 http://www.fd.org FBI Domestic Investigations and Operations Guide (2008) (pdf) DEA Agents Manual (2002) (download) DOJ Computer Search Manual (2009) (pdf) Stringrays (ACLU No. Cal.) (pdf)

Congressional Research Service: –Electronic Communications Privacy Act (2012) –Overview of the Electronic Communications Privacy Act (2012) –Outline of Federal Statutes Governing Wiretapping and Electronic Eavesdropping (2012) –Federal Statutes Governing Wiretapping and Electronic Eavesdropping (2012) –Federal Laws Relating to Cybersecurity: Discussion of Proposed Revisions (2012) ACLU on privacy Privacy Foundation Electronic Frontier Foundation NACDLs Domestic Drone Information Center Electronic Privacy Information Center Criminal Appeal (post-conviction) (9th Cir.) Section 1983 Blog

“If it was easy, everybody would be doing it. It isn’t, and they don’t.” Me

I still learn something new every day. Pete Townshend, The Who 50th Anniversary Tour, “The Who Live at Hyde Park” (Showtime 2015)

“I can’t talk about my singing. I’m inside it. How can you describe something you’re inside of?” Janis Joplin

“Love work; hate mastery over others; and avoid intimacy with the government.” Shemaya, in the Thalmud

“A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one’s attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced.” Williams v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold, J.), rev’d Nix v. Williams, 467 US. 431 (1984).

“The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence.” Mapp v. Ohio, 367 U.S. 643, 659 (1961).

Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment. Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).

“There have been powerful hydraulic pressures throughout our history that bear heavily on the Court to water down constitutional guarantees and give the police the upper hand. That hydraulic pressure has probably never been greater than it is today.” Terry v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).

“The great end, for which men entered into society, was to secure their property.” Entick v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)

“It is a fair summary of history to say that the safeguards of liberty have frequently been forged in controversies involving not very nice people. And so, while we are concerned here with a shabby defrauder, we must deal with his case in the context of what are really the great themes expressed by the Fourth Amendment.” United States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)

“The course of true law pertaining to searches and seizures, as enunciated here, has notto put it mildlyrun smooth.” Chapman v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).

“A search is a search, even if it happens to disclose nothing but the bottom of a turntable.” Arizona v. Hicks, 480 U.S. 321, 325 (1987)

“For the Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. … But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.” Katz v. United States, 389 U.S. 347, 351 (1967)

Experience should teach us to be most on guard to protect liberty when the Governments purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding. United States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)

Libertythe freedom from unwarranted intrusion by governmentis as easily lost through insistent nibbles by government officials who seek to do their jobs too well as by those whose purpose it is to oppress; the piranha can be as deadly as the shark. United States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)

“You can’t always get what you want / But if you try sometimes / You just might find / You get what you need.” Mick Jagger & Keith Richards

“In Germany, they first came for the communists, and I didn’t speak up because I wasn’t a communist. Then they came for the Jews, and I didn’t speak up because I wasn’t a Jew. Then they came for the trade unionists, and I didn’t speak up because I wasn’t a trade unionist. Then they came for the Catholics and I didn’t speak up because I wasn’t a Catholic. Then they came for meand by that time there was nobody left to speak up.” Martin Niemller (1945) [he served seven years in a concentration camp]

You know, most men would get discouraged by now. Fortunately for you, I am not most men! “The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime.” Johnson v. United States, 333 U.S. 10, 13-14 (1948)

More:
Harv.L.Rev.: Digital Duplications and the Fourth Amendment

 Posted by at 5:45 pm  Tagged with:

Digital Duplications and the Fourth Amendment – Digital …

 Fourth Amendment  Comments Off on Digital Duplications and the Fourth Amendment – Digital …
Feb 152016
 

Introduction

The explosive growth of digital data in the twenty-first century has been both a boon and a curse for law enforcement. On one hand this growth has heralded a golden age of surveillance owing to the massive amount of information that is available about actual and potential lawbreakers,1E.g., Peter Swire, The Golden Age of Surveillance, Slate (July 15, 2015, 4:12 PM), http://www.slate.com/articles/technology/future_tense/2015/07/encryption_back_doors_aren_t_necessary_we_re_already_in_a_golden_age_of.html [http://perma.cc/957N-QFL4]. but on the other hand the government now has that much more data to sort through. To search this ever-expanding haystack, the government has adopted various techniques, including algorithmic queries. But in order to apply these queries to search for the needle the government must first collect the hay. One technique that law enforcement has adopted is to take mirror images of digital data for later off-site review.

A persistent question, though, is how the Fourth Amendment applies to both the initial act of duplicating digital data and the continued retention of that data. It goes without saying that the drafters of the Fourth Amendment did not contemplate its application to the digital era. And Fourth Amendment jurisprudence, accordingly, has long since departed from a strict originalist understanding. Beginning with Katz v. United States,2 389 U.S. 347 (1967). the Supreme Court adapted [t]he right of the people to be secure …against unreasonable searches and seizures3U.S. Const. amend. IV. to cover modern technological developments by finding such a violation when the government surreptitiously recorded a phone conversation in a public phone booth.4See Katz, 389 U.S. at 359.

Since then, the Court has considered the Fourth Amendments application to a variety of new technologies ranging from airplane surveillance to thermal imaging.5 See, e.g., United States v. Karo, 468 U.S. 705 (1984) (radio tracking); California v. Ciraolo, 476 U.S. 207 (1986) (airplane surveillance); Florida v. Riley, 488 U.S. 445 (1989) (helicopter surveillance); Kyllo v. United States, 533 U.S. 27 (2001) (thermal imaging); United States v. Jones, 132 S. Ct. 945 (2012) (GPS tracking); Maryland v. King, 133 S. Ct. 1958 (2013) (DNA swabs); Riley v. California, 134 S. Ct. 2473 (2014) (cell phones). In Riley v. California,6 134 S. Ct. 2473. for example, the Supreme Court analyzed the application of the Fourth Amendment to searches of a cell phone seized incident to arrest. Noting that modern cell phones contain vast troves of personal information, far beyond what one historically could keep in ones pocket, the Court found that the rationale for the search-incident-to-arrest exception to the warrant requirement did not extend to a cell phones digital contents.7Id. at 249495.

This Note attempts to address a narrow question in modern Fourth Amendment jurisprudence: should government duplication and retention of electronically stored information be characterized under the Fourth Amendment as a search, as a seizure, as both, or as neither?8 Although this Note does explore Fourth Amendment reasonableness balancing as applied to duplication and retention in Part IV, its primary focus is on the predicate question of whether a search or seizure has even occurred. Duplication and retention arise in many contexts.9 For example, many warrants include temporary seizure provisions that require the government to return seized items after a certain period of time. The government could potentially make a copy of any hard drives seized and retain the copy beyond the warrant period. See, e.g., United States v. Ganias, 755 F.3d 125 (2d Cir. 2014) (finding such conduct a seizure of the data and applying the exclusionary rule), rehg en banc granted, 791 F.3d 290 (2d Cir. 2015); cf. United States v. Cote, 72 M.J. 41 (C.A.A.F. 2013) (applying exclusionary rule to exclude evidence obtained from an original hard drive retained beyond the authorized period). Additionally, the technology certainly exists to enable the government to remotely access computers connected to the Internet, potentially allowing remote copying without requiring a physical trespass. Cf. United States v. Gorshkov, No. CR00-550C, 2001 WL 1024026 (W.D. Wash. May 23, 2001). But somewhat shockingly, it is not entirely settled that the government conducts either a search or a seizure when it makes a copy of locally stored data,10 Under current law, information shared with third parties (such as with cloud storage) may lose the veneer of privacy and thus is no longer protected by the Fourth Amendment. See Smith v. Maryland, 442 U.S. 735, 743 (1979). This Note focuses on locally stored data for simplicity, but the Court in Riley suggested that the Fourth Amendment protections would apply equally to data stored in the cloud, see 134 S. Ct. at 2491; see also Jones, 132 S. Ct. at 957 (Sotomayor, J., concurring) (noting that the third-party doctrine is ill suited to the digital age); Daniel J. Solove, Digital Dossiers and the Dissipation of Fourth Amendment Privacy, 75 S. Cal. L. Rev. 1083 (2002) (warning against rigid application of this rule in the digital era). and then retains that data without further reviewing it.11 Later review by a government agent would most likely constitute a search. However, because the items being searched are duplicates in government possession, not originals, even this issue may not be fully settled. See Orin S. Kerr, Searches and Seizures in a Digital World, 119 Harv. L. Rev. 531, 56265 (2005). As Justice Sotomayor worries, [t]he Government can store such records and efficiently mine them for information years into the future.12Jones, 132 S. Ct. at 95556 (Sotomayor, J., concurring).

One technique the government has adopted to address the growth of relevant data, a technique which some courts have blessed, is to take a mirror image of a hard drive (or other data repository) on site, leave the original with the owner, and then perform the search off-site at a later time.13 See, e.g., Ganias, 755 F.3d at 135 ([T]he creation of mirror images for offsite review is constitutionally permissible in most instances ….); United States v. Veloz, No. 12-10264, 2015 WL 3540808, at *5 (D. Mass. June 4, 2015); cf. United States v. Tamura, 694 F.2d 591, 59596 (9th Cir. 1982) (noting that off-site review may be appropriate subject to prior approval by a magistrate when on-site review is infeasible). A mirror image is an exact duplicate of the original data, which investigators can then access in a read-only state to avoid altering the data in even the smallest way.14See Scott Carlson, New Challenges for Digital Forensics Experts and the Attorneys Who Work with Them, in Understanding the Legal Issues of Computer Forensics 17, 1920 (2013), 2013 WL 3759817, at *2 (discussing digital forensics procedures). This approach allows the search to proceed with minimal interference in the data owners work or life, since the owner retains the originals. The investigators, for their part, are able to work in their own offices, under their own time constraints. And, because the data was copied exactly and remains unaltered, it is easily authenticated and used as evidence.15See Recent Case, 128 Harv. L. Rev. 743, 74849 (2014) (describing authentication process).

At first blush, it is unclear how mirror-imaging fits into the constitutional landscape. The Fourth Amendment prohibits unreasonable searches and seizures.16U.S. Const. amend. IV. As the Court recently reiterated in Riley, the ultimate touchstone of the Fourth Amendment is reasonableness.17 Riley v. California, 134 S. Ct. 2473, 2482 (2014) (quoting Brigham City v. Stuart, 547 U.S. 398, 403 (2006)). However, the government can avoid even that standard if its actions constitute neither a search nor a seizure a prerequisite to Fourth Amendment scrutiny.18 For example, using a trained canine to sniff the exterior of a bag for drugs is not subject to any reasonableness analysis because the Supreme Court has held that such an action is neither a search nor a seizure. See United States v. Place, 462 U.S. 696, 707 (1983); see also Illinois v. Caballes, 543 U.S. 405, 409 (2005) (finding that a canine sniff of car stopped for a traffic violation was not a search). But see Florida v. Jardines, 133 S. Ct. 1409, 141718 (2013) (finding a canine sniff on the front porch of home was a search). The mirror-image approach thus raises the question of whether duplication and retention constitutes a search or seizure subject to Fourth Amendment reasonableness requirements.

Answering that question requires determining whether duplication either (a) violates the individuals reasonable expectation of privacy, or (b) interferes with the individuals possessory interest in the information.19See United States v. Jacobsen, 466 U.S. 109, 113 (1984). This Note assumes that the individual has an actual (subjective) expectation of privacy without which no search occurs. The caselaw offers no conclusive answers. Indeed, until very recently, it tended to suggest that the Fourth Amendment had no application to duplication because it is neither a search nor a seizure. If the government just copies the data, without looking at it, then there is no invasion of privacy. If the data owner retains the original, then there is no intrusion on possessory interests. These answers, though, seem both unsatisfying and instinctively wrong.

Some courts and commentators have suggested that such duplication should be considered a seizure because it interferes with the individuals right to delete data20See Paul Ohm, The Fourth Amendment Right to Delete, 119 Harv. L. Rev. F. 10 (2005). or right to exclude others from data.21See United States v. Ganias, 755 F.3d 125, 137 (2d Cir. 2014), rehg en banc granted, 791 F.3d 290 (2d Cir. 2015); Mark Taticchi, Note, Redefining Possessory Interests: Perfect Copies of Information as Fourth Amendment Seizures, 78 Geo. Wash. L. Rev. 476 (2010). Others have argued that it is a seizure if it freezes evidence for later review rather than as a memory aid.22See Orin S. Kerr, Fourth Amendment Seizures of Computer Data, 119 Yale L.J. 700, 71415 (2010). While such conceptions subject duplication of electronic data to Fourth Amendment scrutiny, they do so by shoehorning the process into existing precedent on seizures. But the problem with government duplication is not easily conceived of as interference with possessory interests, since the data owner not only retains unfettered rights to the original, but also may not have exclusive rights over much of the data in the first instance. Accordingly, it makes little sense to label such conduct as a seizure.

Instead, this Note proposes, courts should focus on the privacy interests at stake in duplication of that information, and whether government duplication and retention of an individuals private data violates that expectation, and is therefore a search. Privacy, often defined as control over personal information,23See infra section III.A, pp. 105963. is clearly infringed when the government duplicates that information, thus depriving the data owner of control. Viewing duplication as a search would avoid some of the complications that arise from characterizing it as a seizure, such as whether the data owner does in fact have a right to exclusive possession of the particular data.

Part I explores the doctrine surrounding searches and seizures in general terms and examines some background cases analogous to the digital duplication context. Part II considers the arguments advanced by some courts and commentators that digital duplication is properly conceived as a seizure. In Part III, the Note shows why the doctrine supports viewing duplication as a search. Part IV examines some of the consequences that arise from the proposed recharacterization.

Fourth Amendment jurisprudence has been adapted to new technology many times throughout its history.24 See generally Orin S. Kerr, The Fourth Amendment and New Technologies: Constitutional Myths and the Case for Caution, 102 Mich. L. Rev. 801 (2004) (discussing the shifts in the jurisprudence in response to new technologies). As the government has acquired new methods for collecting evidence, courts have adjusted the test for what constitutes a violation.25 Professor Orin Kerr calls this the equilibrium approach to the Fourth Amendment, wherein the Court tries to maintain the status quo between cops and robbers. See Orin S. Kerr, An Equilibrium-Adjustment Theory of the Fourth Amendment, 125 Harv. L. Rev. 476, 486 (2011). Most significantly, in Katz, the Court moved beyond its prior trespass inquiry to bring a listening device on a public phone booth within the Fourth Amendments ambit.26 Katz v. United States, 389 U.S. 347, 353 (1967). In several recent cases, the Court, led by Justice Scalia, has revived the trespass inquiry as an additional test for Fourth Amendment violations. See, e.g., United States v. Jones, 132 S. Ct. 945, 953 (2012). Kerr has suggested that, contra Jones, there was no trespass test before Katz. See Orin S. Kerr, The Curious History of Fourth Amendment Searches, 2012 Sup. Ct. Rev. 67, 68. In Kyllo v. United States,27 533 U.S. 27 (2001). the Court ruled that the government searched a home when, from a car on a public way, it used thermal imaging to measure the heat given off from the roof of a home.28Id. at 30, 40. In Riley, the Court imposed strict limitations on the circumstances under which a police officer could search a cell phone incident to arrest.29 Riley v. California, 134 S. Ct. 2473, 2495 (2014). But there is little Supreme Court guidance on applying the Fourth Amendment to duplications, and lower courts have had to analogize from old caselaw of questionable relevance in the modern context. Consequently, earlier cases tended to find that duplication constituted neither a search nor a seizure. More recently, however, that trend has reversed itself, and courts have begun to apply Fourth Amendment scrutiny to duplications of digital data.

A. Search or Seizure

The Fourth Amendment regulates both searches and seizures. These are two discrete government actions, each of which is independently subjected to the Constitutions reasonableness requirement. In United States v. Jacobsen,30 466 U.S. 109 (1984). the Court defined a seizure as some meaningful interference with an individuals possessory interests in the property.31Id. at 113. A seizure threatens the individuals interest in retaining possession of property32 Texas v. Brown, 460 U.S. 730, 747 (1983) (Stevens, J., concurring in the judgment); see also United States v. Place, 462 U.S. 696, 716 (1983) (Brennan, J., concurring in the result). and contemplates a forcible dispossession of the owner.33 Hale v. Henkel, 201 U.S. 43, 76 (1906), overruled in part by Murphy v. Waterfront Commn, 378 U.S. 52 (1964).

Jacobsen also defined a search: a search occurs when an expectation of privacy that society is prepared to consider reasonable is infringed.34 466 U.S. at 113. This definition builds on Justice Harlans concurrence in Katz.35See 389 U.S. 347, 361 (1967) (Harlan, J., concurring). Katz unquestionably elevated the importance of privacy to the Fourth Amendment inquiry, and indeed, until United States v. Jones,36 132 S. Ct. 945 (2012). privacy seemed to have attained status as not only the primary but perhaps the exclusive focus of Fourth Amendment search analysis.37Jones renewed the focus on property rights, but as that case illustrates, the property-driven analysis had never been entirely displaced. See, e.g., Soldal v. Cook County, 506 U.S. 56, 62 (1992) ([O]ur cases unmistakably hold that the [Fourth] Amendment protects property as well as privacy.). Although this primacy has been criticized by commentators, there are strong reasons for maintaining a focus on privacy.38 See generally Christopher Slobogin, A Defense of Privacy as the Central Value Protected by the Fourth Amendments Prohibition on Unreasonable Searches, 48 Tex. Tech L. Rev. (forthcoming 2016) (rebutting criticisms of the significance of privacy in Fourth Amendment analysis). In any event, even after Jones, privacy is plainly a part of the search inquiry. If the government has infringed a reasonable expectation of privacy, then it has conducted a search.

But privacy defies easy definition.39 See, e.g., Daniel J. Solove, Understanding Privacy 1011 (2008) (proposing sixteen categories of privacy); see also David Alan Sklansky, Too Much Information: How Not to Think About Privacy and the Fourth Amendment, 102 Calif. L. Rev. 1069, 1113 (2014) (defining privacy as a type of refuge from the government). In general, though, courts and commentators have come to view privacy as determining for oneself when, how and to whom personal information will be disclosed.40 Natl Cable & Telecomms. Assn v. FCC, 555 F.3d 996, 1001 (D.C. Cir. 2009). Privacy is an individuals control of information concerning his or her person.41 U.S. Dept of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 763 (1989). This definition dates back at least to Professor Alan Westins seminal work, published the same year Katz was decided.42See Alan F. Westin, Privacy and Freedom 7 (1967) (defining privacy as the claim of individuals, groups, or institutions to determine for themselves when, how, and to what extent information about them is communicated to others). Westins definition has gained traction in Fourth Amendment scholarship.43See Sklansky, supra note 39, at 108384 (describing the dominance of Westins definition in modern academic discourse); see also Harold J. Krent, Of Diaries and Data Banks: Use Restrictions Under the Fourth Amendment, 74 Tex. L. Rev. 49, 51 (1995). Left to debate, of course, is what information is personal and thus private. But so defined, it seems natural to say that an individual has an expectation that she will retain control over the information contained in her data storage device. Whether the expectation is reasonable is illuminated by reference to real and personal property law and societal understandings.44See Rakas v. Illinois, 439 U.S. 128, 144 n.12 (1978).

A few examples serve to illustrate the dichotomy between searches and seizures. As noted, a seizure occurs when the government meaningfully interferes with an individuals possessory interests.45See United States v. Jacobsen, 466 U.S. 109, 113 (1984). If a police officer takes your phone away from you, then that officer has seized your phone. A court reviewing that action would then ask whether that seizure was reasonable within the meaning of the Fourth Amendment.46 See, e.g., United States v. Place, 462 U.S. 696, 70910 (1983). A search, on the other hand, occurs when the government violates an individuals actual and reasonable expectation of privacy.47See Jacobsen, 466 U.S. at 113; Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring); see also Smith v. Maryland, 442 U.S. 735, 740 (1979) (adopting Justice Harlans approach from Katz). Thus, if a police officer looks at your phones contents, such as your contacts list or stored videos, that officer has searched your phone because he has interfered with your control over the personal information contained within. The reviewing court would ask whether that search was reasonable which, as Riley emphasized, generally means pursuant to a warrant.48 Riley v. California, 134 S. Ct. 2473, 2495 (2014). If an officer takes your phone from you and then looks at the photos on it, that officer has seized and then searched your phone. By contrast, when the police officer watches you talking on your phone as you walk down Main Street, he has conducted neither a search nor a seizure.49See United States v. Knotts, 460 U.S. 276, 28182 (1983). No reasonable expectation of privacy has been invaded by the officers observations of you in public, and the officers action in no way interferes with your possession of your phone. That action, then, is never subjected to Fourth Amendment reasonableness analysis.50 See, e.g., Illinois v. Caballes, 543 U.S. 405, 40810 (2005) (declining to consider the reasonableness of a dog sniff after concluding that the dog sniff was not itself a search).

B. Early Duplication Cases

Arizona v. Hicks51 480 U.S. 321 (1987). concerned duplication but is far removed from the digital context: While searching an apartment for the source of an errant gunshot, a police officer noticed some high-end stereo equipment that he suspected might be stolen and recorded the serial number to check against a police database of stolen equipment.52Id. at 323. The Court quickly discarded the argument that recording the serial number constituted a seizure. The recording did not meaningfully interfere with the defendants possessory interest in the information; because the officer did not confiscate the stereo, he had not interfered with the defendants possession of either the stereo or the serial number.53Id. at 324. The Court nonetheless affirmed the exclusion of the evidence, holding that moving the stereo to reveal the serial number constituted a search, which was unreasonable given the lack of probable cause. Id. at 328.

Some lower courts have also considered duplication in other nondigital contexts, such as photocopies and photographs. Several cases, for example, suggest that photocopying is not a seizure.54See, e.g., United States v. Thomas, 613 F.2d 787, 793 (10th Cir. 1980) (The agents act of photocopying …was not a seizure. A seizure is a taking of property.). But in 2001, in United States v. Gorshkov,55 No. CR00-550C, 2001 WL 1024026 (W.D. Wash. May 23, 2001). the U.S. District Court for the Western District of Washington addressed head-on the issue of copying digital information. The FBI had obtained the defendants password through a sting operation, and then used the password to remotely access the defendants server.56Id. at *1. Because they feared that the defendants accomplices might delete the information on the server, the FBI remotely copied the information without reviewing it before applying for or obtaining a warrant.57Id. The court ruled that this did not constitute a seizure, noting that the remote copying had absolutely no impact on possessory interests because it did not prevent others from accessing the data.58Id. at *3. The Gorshkov court further noted that the Fourth Amendment did not apply because the defendant was a foreign national whose server was located overseas, id., and that, even if the copying did constitute a search or seizure, it was a reasonable one, id. at *4. In the context of copying the contents of a cell phone temporarily seized incident to arrest, or of imaging a hard drive pursuant to a warrant authorizing seizure of the original, the question may be even clearer59 The Gorshkov court held an evidentiary hearing to determine whether the copying had prevented access by other users. See id. at *3 n.1; see also In re United States, 665 F. Supp. 2d 1210, 1222 (D. Or. 2009) ([T]here was no …meaningful interference due to the nature of electronic information, which can be accessed from multiple locations, by multiple people, simultaneously.). because the original has already been legitimately seized and the owners possession is already precluded.

Gorshkov was not without its detractors, as commentators recognized the potential scope of the Hicks rule if applied to digital duplications. If the government can make duplicates without implicating the Fourth Amendment, it could copy all of our files, which might contain a cache of sensitive personal information,60 Riley v. California, 134 S. Ct. 2473, 2490 (2014). and then efficiently mine them for information years into the future.61United States v. Jones, 132 S. Ct. 945, 956 (2012) (Sotomayor, J., concurring).

To fit digital duplications into the Fourth Amendment, some have suggested characterizing duplication and retention as a seizure, relying on property notions of exclusive ownership. Several courts that considered the matter subsequently were similarly unpersuaded by Gorshkovs reasoning, and have considered duplication to be a seizure.

A. The Possessory Rights Argument

Given that there are seemingly greater privacy implications than possessory implications to duplication, it seems strange that the prevailing view is to consider duplications as seizures. But several academic commentators have convincingly focused the arguments on possessory interests by emphasizing application of traditional property concepts to information. Some have looked at how the act of copying interferes with use of the information, and others at how the government might use the information.

Professor Orin Kerr who initially argued that the faithful application of the Hicks rule precluded classifying data duplication generally as a seizure62See Kerr, supra note 11, at 56061. has distinguished between copying-as-freezing (a seizure) and copying-as-an-aid-to-memory (not a seizure).63See Kerr, supra note 22, at 71418. Kerr focuses on the purpose of a seizure to secure evidence for later use to distinguish between copies made for different purposes.64Id. at 710. If data had already been exposed to an agent, then a duplicate of it was just made to aid that agents memory, and was therefore not a seizure.65See id. at 71415. This understanding preserves the rule of Hicks because the officer there had already seen the serial number when he wrote it down.66Id. at 716.

Professors Susan Brenner and Barbara Frederiksen have made two arguments in favor of characterizing duplication as a seizure.67See Susan W. Brenner & Barbara A. Frederiksen, Computer Searches and Seizures: Some Unresolved Issues, 8 Mich. Telecomm. & Tech. L. Rev. 39, 11113 (2002). First, as Kerr later argued, they note that copying data on a computer, unlike duplications of other mediums, interferes with the access and functioning of the computer, however briefly, during that process.68Id. at 112. Second, they argue that the majority opinion in Katz recognized that information can be seized when it characterized the recording of the conversation as a seizure.69Id. at 111 (citing Katz v. United States, 389 U.S. 347 (1967)). Note, however, that the majority opinion is not so clear: although the Court referred to the recording as a search and seizure, it was using the conjunctive term, explicitly quoting the Fourth Amendment itself, to express generally that it fell within the ambit of the Fourth Amendment. See Katz, 389 U.S. at 353. Copying data, even though it leaves the original intact, deprives the owner of something of value and interferes with exclusive use and possession, just as the theft of data does.70 Brenner & Frederiksen, supra note 67, at 112 n.236.

Brenner and Frederiksens first point hasnt gained much traction,71 Ohm has criticized such a limited understanding because, as technology advances, this interference will become less and less. See Ohm, supra note 20, at 17. but several commentators have elaborated on the second. Professor Paul Ohm offers a narrower possessory interest that is infringed by duplication: the right to delete.72See id. As Ohm later elaborated, this right to delete derives from the traditional property right to destroy. See Paul Ohm, The Olmsteadian Seizure Clause: The Fourth Amendment and the Seizure of Intangible Property, 2008 Stan. Tech. L. Rev. 2, 6263, https://journals.law.stanford.edu/sites/default/files/stanford-technology-law-review/online/ohm-olmsteadian-seizure-clause.pdf [http://perma.cc/Q3VN-ZWM6]. Ohm argues that this right attaches to digital data, but that it did not apply in Hicks because that right evaporated once the serial number was in plain view.73 Ohm, supra note 20, at 16. Mark Taticchi argues that the concept of exclusive possession renders exact duplicates a seizure.74See Taticchi, supra note 21, at 496. Taticchi notes that the right to exclude others from data should be limited to exact duplicates, and not extend to summaries or memories, because the degree of interference with exclusive possession is smaller, and a rule applying to notes and memories would be too socially costly and difficult to administer.75Id. at 497.

Although several courts have concluded that duplication is a seizure, few have relied on any explicit possessory-interest analysis. In United States v. Jefferson,76 571 F. Supp. 2d 696 (E.D. Va. 2008). the court found that taking high-resolution photographs of the defendants documents outside the scope of the initial warrant constituted a seizure of the information in those documents.77Id. at 704. The court emphasized that the defendants interests extended to the data contained within the documents, not just the physical documents themselves, and that the photographs interfered with sole possession of that information.78Id. at 70203. In United States v. Metter,79 860 F. Supp. 2d 205 (E.D.N.Y. 2012). the court noted that government possession of an imaged hard drive presents the same privacy concerns as would the governments retention of the original communications,80Id. at 212. and found that the fifteen-month retention of the duplicate was an unreasonable seizure.81Id. In United States v. Comprehensive Drug Testing, Inc.,82 621 F.3d 1162 (9th Cir. 2010) (en banc). the Ninth Circuit affirmed three lower-court orders requiring the United States to return duplicates of information that were made during the execution of a search warrant but that were outside the scope of the original warrant.83See id. at 116667, 1178 (per curiam). The court referred to the information as seized data84E.g., id. at 1168. and seized materials.85E.g., id. at 1169. Although it did not offer any real analysis for why the duplication amounted to a seizure, the court plainly thought it did.86 Federal Rule of Criminal Procedure 41, the provision at issue, treats seizing and copying as separate concepts. See Fed. R. Crim. P. 41(e)(2)(B) (A warrant …may authorize …seizure or copying of electronically stored information. (emphasis added)).

Recently, in United States v. Ganias,87 755 F.3d 125 (2d Cir. 2014), rehg en banc granted, 791 F.3d 290 (2d Cir. 2015). In its brief for the en banc hearing, the government conceded, [f]or purposes of this appeal, that the mirror-imaging constituted a seizure. Brief on Rehearing En Banc for the United States at 17 n.7, Ganias, No. 12-240 (2d Cir. Aug. 28, 2015), 2015 WL 5112418, at *17 n.7. a panel of the Second Circuit adopted the right to exclusive possession argument. In executing a warrant to search an accountants computer for evidence of his clients potential fraud, investigators imaged three hard drives, which also contained the accountants private files.88Ganias, 755 F.3d at 128. Two-and-a-half years later, the investigators obtained a second warrant to search those same files for evidence of the accountants own wrongdoing in a wholly separate crime.89Id. at 130. The accountant, now a defendant, argued that the lengthy retention of his files that were not responsive to the initial warrant constituted an unreasonable seizure even though he retained (and had since destroyed) the originals.90Id. at 13031. The Second Circuit agreed, finding that the defendants possessory interests included the exclusive control over [his] files and that the governments retention of the duplicate meaningfully interfered with that interest and was thus a seizure.91Id. at 137. Because the government retained that data for so long without adequate justification, the seizure was unreasonable.92Id. at 13738. The court did not specify at what point it became unreasonable and noted (with skepticism) that the government might have had legitimate interests in retaining the data, such as for authentication of the hard drive.93Id. at 139. And although the court seemed to emphasize the prolonged period for which the government retained the data, its holding narrowed the importance of that factor by focusing on the use of the retained data for evidence in a future criminal investigation.94Id. at 138. One might expect the legitimate governmental interest in accessing evidence to prosecute a crime to be categorically greater than the interest in authenticating a hard drive in another case. See infra section IV.A, pp. 106466.

B. Why This Might Be Wrong

While this possessory-interest analysis does subject duplication and retention to Fourth Amendment scrutiny, it is a curious way to do it. After all, a seizure does not occur based on every interference with possessory interests, but only upon a meaningful interference.95 United States v. Jacobsen, 466 U.S. 109, 113 (1984). If the individual retains the original copy, unaltered, and is free to use (or destroy) that copy as he sees fit, is the impingement on possessory interests (assuming there is one) meaningful? Given the multitude of cases where courts have found either no seizure or else a de minimis seizure when interference with possessory interests was marginal,96 See, e.g., id. at 125 (holding that permanent destruction of small portion of property for drug testing a de minimis intrusion on possessory interest and thus a reasonable seizure); cf. United States v. Mendenhall, 446 U.S. 544, 554 (1980) (suggesting that some limited physical contact might not constitute a seizure); Pennsylvania v. Mimms, 434 U.S. 106, 111 (1977) (per curiam) (concluding that intrusion on liberty in asking lawfully stopped driver to get out of car is de minimis). it seems tenuous to argue that this infringement which has no impact on the users own experience with his data is a sufficient interference either to implicate the Fourth Amendment in the first place or ever to be found unreasonable.

Perhaps one reason duplication nonetheless seems to be a seizure is that, after duplication, the government itself now possesses something that it did not possess before. That is, if the government exerts dominion and control97Jacobsen, 466 U.S. at 120. over something, it must have seized it. But this focus on the government is divorced from the doctrine as laid out in Jacobsen, which teaches to assess the infringement on the individuals possession, not the governments gain. Therefore, in order to classify duplication as a seizure, the focus must be on the individuals right to exclusive possession of that which has been duplicated.

With tangible property, duplication would rarely amount to a seizure. If the government makes a duplicate of a coffee mug, one would be hard pressed to say that it infringed on anyones possession of the coffee mug. After all, youre still able to look at it, drink from it, or even destroy it as you see fit.98 Paul Ohm believes otherwise. He suggests that if the government used a Star Trek replicator on steroids to duplicate an entire house and all of its contents, but locked the resulting duplicate in a warehouse without examining it, a court would hold that it was a seizure but not a search. Ohm, supra note 20, at 17; see also id. at 1718. Perhaps this characteristic would be different in the context of intangible property. But except for certain trade secrets or other intangible commercial property, digital data is a nonrivalrous good.99See Adam D. Moore, A Lockean Theory of Intellectual Property Revisited, 49 San Diego L. Rev. 1069, 1091 (2012). A nonrivalrous good is one whose use by others does not reduce the value of the good. See, e.g., Brett M. Frischmann, An Economic Theory of Infrastructure and Commons Management, 89 Minn. L. Rev. 917, 942 (2005). In most instances, the possession of data by another will not undermine the original owners use or enjoyment. Of still more concern is that a data owner might not even have a right to exclusive possession of all the information on her hard drive, such as digital copies of movies, books, and music. If you have a copy of Ayn Rands Atlas Shrugged on your hard drive, you have no right to exclusive possession of that books contents. If the government buys its own copy, its ownership in no way infringes on your possession. And if instead it just duplicates your copy, your possession is similarly uninfringed.

If there is no right to exclusive possession, then there is no infringement, and accordingly no seizure, at least as to that information. The right to delete or exclude would not extend to this type of data because it doesnt really belong to the individual. The government should not be able to duplicate an individuals home library to see what books she is reading just because she has no right to exclusive possession of the contents of those books. But the seizure analysis that courts are starting to adopt seems to suggest just such a result.

Focusing on the right to exclude also suggests that individuals might retain that right even after sharing their data publicly. The right to destroy and the right to exclude do not evaporate just because an owner grants temporary access to his property.100Recall Ohms argument that Hicks was rightly decided because the defendants right to delete evaporated upon exposure to the officer. See supra p. 105455. Conceptualizing data retention as a seizure, then, might mean that the government could not retain copies of publicly released information, such as blog posts. Thus, because a blogger often retains ownership over his posts, he presumably could choose to delete the post, and could similarly request that the government delete its copies as well. The owner of the data would assert his right to exclusive possession, and the government intrusion on that right would accordingly render the duplication a seizure.101Though, the seizure might be reasonable: a court might consider the possessory interest weakened by the fact that the data had previously been widely shared. Such an understanding might well mean that the government could not collect and retain data posted publicly unless it first obtained a warrant. But such a rule, however sensible, is inconsistent with the understanding that the police can observe and record what takes place in public without implicating the Fourth Amendment.102 United States v. Knotts, 460 U.S. 276, 28182 (1983). This rule would apply similarly to a conversation in a public place: if recording that conversation counts as seizing it because the speaker has a right to exclude others from the information relayed, then the government presumptively needs a warrant to record it, even though the speaker has no reasonable expectation of privacy.

This analysis is not conclusive: a court might say that an individual gives up the right to exclude once he shares the data publicly, just as a court would say that the individual has given up any reasonable expectation of privacy by sharing his information.103See infra section IV.C, p. 1067. But property law questions of these types might arise over and over again,104 One district court found that an individual had no possessory interest in metadata held by a third party, and accordingly found the data was not seized when the government copied it. See Klayman v. Obama, 957 F. Supp. 2d 1, 30 n.41 (D.D.C. 2013), vacated and remanded, 880 F.3d 559 (D.C. Cir. 2015). As another example, the government argued in Kyllo v. United States that the defendant had abandoned the heat emanating from the home. See Transcript of Oral Argument at 47, Kyllo v. United States, 533 U.S. 27 (2001) (No. 99-8508), http://www.supremecourt.gov/oral_arguments/argument_transcripts/99-8508.pdf [http://perma.cc/52MA-NKP5]; Sarilyn E. Hardee, Note, Why the United States Supreme Courts Ruling in Kyllo v. United States Is Not the Final Word on the Constitutionality of Thermal Imaging, 24 Campbell L. Rev. 53, 61 (2001). and a court would have to consider whether, as to the particular information at issue, the individual actually has a right to exclusive possession.

It may well be that duplications of certain data are seizures, but because the greater concern with duplications is the privacy violation, and because the seizure analysis might not cover all data, it makes more sense to identify duplication as a search. But duplication without actual review is not obviously a search after all, if no person reviews the documents then perhaps there has been no invasion.105 See, e.g., Susan Brenner, Copying as a Seizure (Again), CYB3RCRIM3 (July 15, 2009, 6:31 AM), http://cyb3rcrim3.blogspot.com/2009/07/copying-as-seizure-again.html [http://perma.cc/8YJS-PPGD] (arguing that while defensible arguments support conceptualizing duplication as a search, they stretch the word search too far). The Second Circuit, in the metadata context, adopted a similar view without elaboration. See ACLU v. Clapper, 785 F.3d 787, 801 (2d Cir. 2015) (suggesting that metadata collection should be characterized as a seizure of data, rather than a search). As Ohm argues, the government has a reasonable argument that when it seals the collected data [after duplication], it stops short of invading or intruding on the data owners privacy.106 Ohm, supra note 72, 53. True enough, but the government also has a reasonable argument that when it leaves the original intact and in the owners possession, it stops short of interfering with the owners possessory interests. This is not to discard the critique entirely, but merely to emphasize that courts are in uncharted waters here and can draw the lines where they make the most sense.

A. Privacy and Duplications

Courts clearly recognize that it is privacy that is at stake in duplication,107 Even the courts that conclude that duplication is a seizure emphasize the privacy interests at stake. For example, in Ganias, the Second Circuit panel characterized its challenge as adapt[ing] traditional Fourth Amendment concepts to the modern era [b]ecause the degree of privacy secured to citizens by the Fourth Amendment has been impacted by the advance of technology. United States v. Ganias, 755 F.3d 125, 134 (2d Cir. 2014), rehg en banc granted, 791 F.3d 290 (2d Cir. 2015). In Metter, the court emphasized that a data owner has identical privacy concerns with the governments retention of the imaged document. United States v. Metter, 860 F. Supp. 2d 205, 212 (E.D.N.Y. 2012). And in Jefferson, the court noted that the Fourth Amendment privacy interest extends…to the information itself, United States v. Jefferson, 571 F. Supp. 2d 696, 702 (E.D. Va. 2008), and that taking notes or photographs necessarily diminishes the privacy value of information once privately-held, id. at 703. which probably follows most peoples intuition: we dont want the government to have copies of our files because we dont trust it not to read them. It therefore seems more natural to conceptualize duplication as an invasion of privacy and therefore a search than as an invasion of possessory interests. And, despite some lower courts characterization of duplication as a seizure, the Courts doctrine strongly suggests that duplication is indeed a search. Recall that, under Katz (as filtered through the years), a search is an action that violates an individuals reasonable expectation of privacy.108 Katz v. United States, 389 U.S. 347, 360 (1967) (Harlan, J., concurring); see also United States v. Jacobsen, 466 U.S. 109, 113 (1984). Accepting Westins definition of privacy as control over information,109Westin, supra note 42, at 7. it is an easy step to say that duplication interferes with an individuals reasonable expectation of control over personal information.

Given the focus in Jefferson, Metter, and Ganias on privacy, the conclusion in those cases that duplication was a seizure is somewhat surprising. Indeed, the Ganias panel, for example, parroted Westins definition of privacy when it proclaimed that the retention was an interference with the owners control over [his] files.110Ganias, 755 F.3d at 137. These cases nonetheless found an infringement on property rights, and then concluded that a seizure had occurred. But searches are often defined in relation to property law. And as the Court elaborated in Rakas v. Illinois,111 439 U.S. 128 (1978). the fact that an individual can exclude others strongly suggests that the individual has a reasonable expectation of privacy.112See id. at 149; see also id. at 143 n.12. This conception is consistent with Justice Harlans discussion in Katz, which recognized that although the decision departed from the original trespass inquiry, it ultimately concluded by reference to places.113Katz, 389 U.S. at 361 (Harlan, J., concurring); see also Peter Winn, Katz and the Origins of the Reasonable Expectation of Privacy Test, 40 McGeorge L. Rev. 1, 8 (2009). Thus, a court having recognized the privacy interests at stake then might, and indeed should, consider whether tenets of property law suggest that an individual would have a reasonable expectation of privacy in that context.114 See, e.g., Oliver v. United States, 466 U.S. 170, 183 (1984) (The existence of a property right is but one element in determining whether expectations of privacy are legitimate.). The Courts second test for whether or not a search has occurred, advanced in United States v. Jones115 132 S. Ct. 945 (2012). and Florida v. Jardines,116 133 S. Ct. 1409 (2013). asks whether the Government obtain[ed] information by physically intruding on persons, houses, papers, or effects.117Id. at 1414 (quoting Jones, 132 S. Ct. at 950 n.3). In Jones, Justice Scalia applied founding-era trespass principles to the governments placement of a GPS device on a defendants car to classify it as a search.118Jones, 132 S. Ct. at 94950, 953. This reasoning promotes the underlying purpose of the Fourth Amendment search restrictions, to protect the right of the people to be secure, to protect, that is, individual privacy. Property law principles, then, can operate as a shortcut for determining whether an invasion of privacy a search has occurred.

In Ganias, for example, the panel focused on the infringement of the individuals right to exclude others from his property. But this infringement does not necessarily result in the action being a seizure. In Jones, the Court did not find that the government had seized the defendants car by placing a GPS tracker on it even though this interfered with the defendants right to exclude others from his property.119See id. at 949; id. at 958 (Alito, J., concurring in the judgment) (The Court does not contend that there was a seizure.). Instead, the Court viewed violation of the right to exclude as evidence to support its conclusion that a search had occurred.120Id. at 949 (majority opinion). In the digital context, then, the property law analogues are useful in determining whether a search occurred, either under the trespass test121See Jardines, 133 S. Ct. at 1414 (noting that a search occurs when government obtains information by invading a constitutionally protected place (quoting Jones, 132 S. Ct. at 950 n.3)). or because they illuminate the reasonableness of expectation of privacy.122See Rakas v. Illinois, 439 U.S. 128, 149 (1978).

There are two complications to this conception, however. First, in United States v. Karo,123 468 U.S. 705 (1984). the Supreme Court explicitly rejected the notion that potential, as opposed to actual, invasions of privacy constitute searches for purposes of the Fourth Amendment.124Id. at 712. Second, if duplication of data is an invasion of privacy because of the potential that the government will read it, then many actions currently classified as seizures also become searches. If the government seizes a filing cabinet without opening it, for example, then risks to the privacy of the cabinets contents still attach. These hurdles should be cleared, though, by recognition that duplication does not just risk violation, but is in fact itself a violation of privacy, because duplication inherently reduces ones ability to control her information.

In Karo, the police had given to the defendant a can of ether containing a hidden tracking device.125Id. at 708. The Court ruled that this delivery did not constitute a search because the beeper was unmonitored at that time.126Id. at 712. Kerr argues that this holding indicates that a search has not occurred until the data is observed by an actual person.127See Kerr, supra note 11, at 554. But additional language in Karo calls this conclusion into question: It is the exploitation of technological advances that implicates the Fourth Amendment, not their mere existence.128Karo, 468 U.S. at 712. Indeed, what the Court meant by unmonitored was not that no one was actually reviewing the data at that time, but rather that the device was not passing any information to the police.129Id. (noting that the beeper conveyed no information that Karo wished to keep private, for it conveyed no information at all). The Court did not address, for example, the governments recording location data and then viewing it later. In that situation, the government would have been exploiting the technology immediately, even if an actual person did not immediately review it. As soon as the data personal information about movements is recorded, the individual has lost control over that information.

Similarly, in Kyllo, the Court ruled that a police officer who had used a thermal imager to measure heat radiating from a house had performed a search.130 Kyllo v. United States, 533 U.S. 27, 40 (2001). But if the technology had not immediately relayed that information to the officer if the officer had needed to return to the station to analyze the data collected the search would still have occurred upon collection rather than review. Once the data is recorded, the information is beyond the control of the data owner.

These situations are analogous to digital duplication in that the invasion of privacy happens at the time of collection or duplication, not only upon later review. Duplication of private information is an active though often automated process, done at the direction of the government agent. A duplication is itself an exploitation of [a] technological advance[].131Karo, 468 U.S. at 712. Relying on the analogy of the government digitally rooting around illustrates some of the problems with extending nondigital concepts to the digital world. See Brenner, supra note 105. Although the idea is appealing, the results are less so. Cf. Tron (Walt Disney Productions 1982).

By contrast, when the government seizes a filing cabinet,132Cf. United States v. Chadwick, 433 U.S. 1 (1977) (finding that police needed a warrant to open search a lawfully seized footlocker). it has not yet directed anything at the information within. This may mean that seizing a filing cabinet is not also a search of its contents. Only when the government directs its technology at an individuals private information does it invade that individuals reasonable expectation of privacy and accordingly perform a search. On the other hand, perhaps we should consider the seizure of a filing cabinet as also a search of its contents this action plainly should be subject to Fourth Amendment review, and there is no pressing reason to reject a belt and suspenders approach when both privacy and possessory interests are infringed. Thus, neither the Courts seemingly limiting language in Karo that potential invasions do not implicate the Fourth Amendment nor the implication that certain seizures may also be searches undermines the classification of duplications as searches.

B. Retention

One might, then, view the act of duplication as a search, and duplication and subsequent retention as a search and seizure.133Cf. Katz v. United States, 389 U.S. 347, 354 (1967) (characterizing the recording and listening to of private conversations as a search and seizure (emphasis added)); Berger v. New York, 388 U.S. 41, 54 (1967) (same). This approach seems natural because, if the government possesses something, it must have seized it. But, as mentioned above, such logic reverses the Fourth Amendment seizure inquiry, which focuses not on whether the government possesses something, but rather on whether the governments action was a meaningful interference with an individuals possessory interests.134 United States v. Jacobsen, 466 U.S. 109, 113 (1984). Thus, it is at least ambiguous whether retention constitutes a seizure.135See supra section II.B, pp. 105659.

But retention likely is a search. In Klayman v. Obama,136 957 F. Supp. 2d 1 (D.D.C. 2013), vacated and remanded, 800 F.3d 559 (D.C. Cir. 2015). for example, the district court held that bulk metadata collection efforts constituted a search.137Id. at 32. While several factors contributed to the courts conclusion, the retention of data was itself considered a part of the Fourth Amendment search.138 The court found that the plaintiffs had no possessory interest in metadata held by a third party, and accordingly found no seizure. See id. at 30 n.41. This result illustrates the limits of the possessory interest framework discussed above in section II.B. The court ordered the government not to stop its analysis of the data, but rather to destroy any such metadata in its possession.139Id. at 43. The retention is itself an ongoing violation of privacy in fact, copying without retention is not much of a violation of privacy at all.140 Though it may still be a search, duplication without retention is probably de minimis or otherwise reasonable. See infra, section IV.B, pp. 106667.

One feature of Fourth Amendment search jurisprudence is the inability, once a search is completed, to revoke consent.141See, e.g., United States v. Lattimore, 87 F.3d 647, 65152 (4th Cir. 1996). Thus, if an individual consents to duplication of his data, he may not be able to revoke that consent once the copying is complete.142 The same would result if the initial copying were authorized by warrant or a warrant exception: if the search ends when the copying is complete, the government would need no further justification for retaining the data. This anomaly makes viewing data retention as a seizure appealing to civil libertarians because such a conception would allow the data owner to rescind consent and recover sole possession of her data at any time.143See Taticchi, supra note 21, at 48384. But because copying and continued retention of the data each interfere with control over personal information, each is a search. When consent is revoked, therefore, the ongoing retention must end.

On the other hand, if duplication is a seizure because it interferes with the right to delete144See Ohm, supra note 20, at 1112; Ohm, supra note 72, 6167. or exclusive possession,145See United States v. Ganias, 755 F.3d 125, 137 (2d Cir. 2014), rehg en banc granted, 791 F.3d 290 (2d Cir. 2015); see also Taticchi, supra note 21, at 496. then the protection would not extend to information the individual doesnt own. Movies, for example, to which the hard drive owner has no right to exclusive possession, might be excluded from any seizure analysis.146See supra pp. 105758. Yet even if an individual has no claim to exclusive ownership, she does have a privacy interest in her files including keeping private the information that reveals what movies, music, or books she owns. By viewing data retention as a search instead of a seizure, the individual can demand deletion because she retains a reasonable expectation of privacy in that information, whether or not she owns it.

Because privacy refers to an individuals control over information, and retention interferes with that control, retention is an invasion of privacy, and thus a search. The consequence of the government possessing a copy is exactly the same: a loss of control over the data.

Several consequences flow from identifying duplication and retention as a search, rather than a seizure. For example, as discussed above, consent, and more particularly the right to revoke consent, plays a different role in searches than in seizures. In addition, the different nature of government intrusion affects both the reasonableness analysis and the de minimis analysis. Finally, classifying duplication as a search has different implications for data that has been shared publicly. This Part examines these additional consequences in turn.

A. Duplications and Reasonableness

The Fourth Amendment prohibits only unreasonable searches and seizures. Duplicating information might be a search, but that conclusion does not necessarily render the action a violation of the Fourth Amendment. Rather, it merely subjects the action to Fourth Amendment reasonableness analysis. The reasonableness of a search is determined by weighing the degree to which it intrudes upon an individuals privacy against the degree to which it is needed for the promotion of legitimate governmental interests.147 Wyoming v. Houghton, 526 U.S. 295, 300 (1999).

Because the privacy interest violated can vary with the governments use of the data, courts can more easily conduct reasonableness balancing when the government asserts a need for the data for some purpose other than as evidence. Recall that in Ganias the government argued it might need to retain nonresponsive data for authentication purposes.148See Ganias, 755 F.3d at 139. If retention of data is a seizure, then the individuals interest is binary: her right to delete or exclude is fully infringed regardless of the purpose for which the government retains her data. The individual-interest side of the balance varies only with the length of time of the infringement.149See United States v. LaFrance, 879 F.2d 1, 6 (1st Cir. 1989). As that court noted, the nature and extent of the intrusion matter as well. Id. (quoting United States v. Place, 462 U.S. 696, 705 (1983)). But in the duplication-as-seizure context, that nature is already defined as the infringement on the right to exclude or delete, and thus the intrusiveness of the duplication, conceived as a seizure, varies only with the length of time of the infringement. Thus, in Ganias, for example, the individuals side of the balance contained only the right to exclusive possession infringed by ongoing retention, regardless of what the government did with the data: whether the government used the data for authentication, as evidence in the initial contract fraud prosecution, or as evidence in the subsequent tax fraud prosecution, the infringement on Ganiass possessory interests was the same.

If the retention is a search, however, then the individuals interest more naturally varies with the governments use of the data. Thus, a court could recognize the data retention as a search, but find that it is reasonable so long as it is for the limited purpose of authentication. Retention for any other purpose might be unreasonable because of the correspondingly greater infringement on privacy interests, and thus any evidence obtained from an unreasonable use of the duplicated data could be subject to the exclusionary rule.150Cf. Ganias, 755 F.3d at 14041 (applying exclusionary rule to unreasonable seizure of data).

In Riley, the government argued that it might need to search a cell phone immediately out of concern that the data could be remotely deleted.151 Riley v. California, 134 S. Ct. 2473, 2486 (2014). The Court was unconvinced, citing the availability of technology that could stop remote deletion.152Id. at 2487. Another approach to the deletion concern might be digital duplication of the phones contents. Under the analysis laid out in this Note, this duplication would plainly be a search. But the flexibility of the search reasonableness analysis applies with equal force here. Merely copying a phone to preserve it from remote wiping, pursuant to the exigent circumstance of imminent deletion, might be a reasonable search. Because the invasion of privacy is less than when the officer actually examines the phones contents, the governments countervailing interest in preserving the data might render the action reasonable. But the extent of the interference with privacy also varies, like a seizure, with the length of time of the interference. The longer the information is out of the individuals control, the greater the interference. Thus, at a certain point, the warrantless retention of the copy would become unreasonable.

Of course, classifying duplication as a search, rather than as a seizure, may not affect the ultimate outcome of the reasonableness analysis in this context. If duplication is a seizure because it interferes with the right to exclusive possession, it may still be reasonable to make a seizure to prevent remote wiping. The key difference, though, is that the infringement on exclusive possession varies only with the length of the infringement. In a close case, what the government does with the duplicated data that it has reasonably seized does not affect the reasonableness of the seizure. Once the government interests overcome the invasion of the right to exclusive possession, any subsequent action doesnt alter this fundamental balancing.153 Orin Kerr presents a slightly different take, at least in the context of subsequent searches of nonresponsive data, as occurred in both Ganias and CDT. See Orin S. Kerr, Executing Warrants for Digital Evidence: The Case for Use Restrictions on Nonresponsive Data, 48 Tex. Tech L. Rev. 2932 (forthcoming 2016). Kerr argues that the subsequent use of nonresponsive data obtained in the execution of an initial warrant converts that first warrant into a general warrant. Id. at 31. He does not apply the traditional reasonableness balancing test, but instead relies on the Warrant Clause. See U.S. Const. amend. IV ([N]o Warrants shall issue, but …particularly describing the …things to be seized.).

B. De Minimis Searches

As Kerr explains, a computer, in the course of its normal function, must make copies for internal use. If this internal duplication is a search, it would presumptively require a warrant.154See Kerr, supra note 11, at 551. But preexisting concepts in search jurisprudence mitigate this concern. The copying that is intrinsic to computer use could be conceived of as a de minimis violation that is either no intrusion at all, or such a minor violation that it is presumptively reasonable.155Cf. Jeffrey Brown, How Much Is Too Much? The Application of the De Minimis Doctrine to the Fourth Amendment, 82 Miss. L.J. 1097, 1109 (2012). Because such internal copying is temporary, never subject to the computer users control, and never even at risk of exposure, it can easily be considered de minimis. If it interferes with the data owners control over his information, this interference is small and temporary. This type of copying, even if it should be considered a search insofar as it is directed at private information, is a reasonable search given the low level of violation and its necessity to the operation of a computer. The same analysis might also apply, of course, in the seizure context: the impingement on the right to exclude is so temporary that it may be a de minimis seizure.

C. Publicized Information

As discussed above in section II.B, classifying duplication and retention as a seizure might mean that the government could not retain copies of publicly released information, such as blog posts. By viewing data duplication and retention as searches, though, the government could retain publicly posted information without a warrant. This is so because, by posting them in a public forum, the blogger loses any reasonable expectation of privacy.156Cf. Katz v. United States, 389 U.S. 347, 351 (1967) (What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.). That is, by sharing the information with the world, the individual gave up control. To obtain this information from the Internet, the government need not commit any violations of property law, such as trespass, which might otherwise suggest that the data owner retained a reasonable expectation of privacy. Thus, collection of such data would not constitute a search at all and would not be subject to the requirements of the Fourth Amendment. While there might be reasons to limit broad electronic trawling of the public Internet, they cannot be located in the Fourth Amendment.

The Fourth Amendment protects people from two things: unreasonable seizures and unreasonable searches. It is important to recognize these as distinct protections lest the value of the protections deteriorate. A seizure is best viewed as a dispossession of property, and a search as an invasion of privacy. There may well be times when these two overlap, and often a seizure will include risks to privacy. Viewing collection of data only as a seizure would dramatically reduce the Fourth Amendments protections over vast amounts of personal, private information in which the individual may have no cognizable property interests. The government could conceivably collect private information that does not have a property component such as the heat signatures in Kyllo or the titles of the books in private libraries with impunity as long as it doesnt review the data. Instead, we should recognize these invasions of privacy, reviewed by a government agent or not, for what they are: Fourth Amendment searches.

Link:
Digital Duplications and the Fourth Amendment – Digital …

First Amendment Activities | United States Courts

 Misc  Comments Off on First Amendment Activities | United States Courts
Jan 312016
 

Apply landmark Supreme Court cases to contemporary scenarios related to the five pillars of the First Amendment and your rights to freedom of religion, speech, press, assembly, and petition.

“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 redress of grievances.”First Amendment, U.S. Constitution

Cox v. New Hampshire Protests and freedom to assemble

Elonis v. U.S. Facebook and free speech

Engel v. Vitale Prayer in schools and freedom of religion

Hazelwood v. Kuhlmeier Student newspapers and free speech

Morse v. Frederick School-sponsored events and free speech

Snyder v. Phelps Public concerns, private matters, and free speech

Texas v. Johnson Flag burning and free speech

U.S. v. Alvarez Lies and free speech

Read this article:
First Amendment Activities | United States Courts

 Posted by at 8:41 pm  Tagged with:

N.D.Ill.: Withheld video of CPD shooting revealed during …

 Fourth Amendment  Comments Off on N.D.Ill.: Withheld video of CPD shooting revealed during …
Jan 292016
 

ABA Journal’s Blawg 100 (2015)

by John Wesley Hall Criminal Defense Lawyer and Search and seizure law consultant Little Rock, Arkansas Contact / The Book http://www.johnwesleyhall.com

2003-16, online since Feb. 24, 2003 real non-robot URL hits since 2010; approx. 18k posts since 2003

~~~~~~~~~~~~~~~~~~~~~~~~~~

Fourth Amendment cases, citations, and links

Latest Slip Opinions: U.S. Supreme Court (Home) Federal Appellate Courts Opinions First Circuit Second Circuit Third Circuit Fourth Circuit Fifth Circuit Sixth Circuit Seventh Circuit Eighth Circuit Ninth Circuit Tenth Circuit Eleventh Circuit D.C. Circuit Federal Circuit Foreign Intell.Surv.Ct. FDsys, many district courts, other federal courts, other Military Courts: C.A.A.F., Army, AF, N-M, CG State courts (and some USDC opinions)

Google Scholar Advanced Google Scholar Google search tips LexisWeb LII State Appellate Courts LexisONE free caselaw Findlaw Free Opinions To search Search and Seizure on Lexis.com $

Research Links: Supreme Court: SCOTUSBlog S. Ct. Docket Solicitor General’s site SCOTUSreport Briefs online (but no amicus briefs) Curiae (Yale Law) Oyez Project (NWU) “On the Docket”Medill S.Ct. Monitor: Law.com S.Ct. Com’t’ry: Law.com

General (many free): LexisWeb Google Scholar | Google LexisOne Legal Website Directory Crimelynx Lexis.com $ Lexis.com (criminal law/ 4th Amd) $ Findlaw.com Findlaw.com (4th Amd) Westlaw.com $ F.R.Crim.P. 41 http://www.fd.org FBI Domestic Investigations and Operations Guide (2008) (pdf) DEA Agents Manual (2002) (download) DOJ Computer Search Manual (2009) (pdf) Stringrays (ACLU No. Cal.) (pdf)

Congressional Research Service: –Electronic Communications Privacy Act (2012) –Overview of the Electronic Communications Privacy Act (2012) –Outline of Federal Statutes Governing Wiretapping and Electronic Eavesdropping (2012) –Federal Statutes Governing Wiretapping and Electronic Eavesdropping (2012) –Federal Laws Relating to Cybersecurity: Discussion of Proposed Revisions (2012) ACLU on privacy Privacy Foundation Electronic Frontier Foundation NACDLs Domestic Drone Information Center Electronic Privacy Information Center Criminal Appeal (post-conviction) (9th Cir.) Section 1983 Blog

“If it was easy, everybody would be doing it. It isn’t, and they don’t.” Me

I still learn something new every day. Pete Townshend, The Who 50th Anniversary Tour, “The Who Live at Hyde Park” (Showtime 2015)

“I can’t talk about my singing. I’m inside it. How can you describe something you’re inside of?” Janis Joplin

“Love work; hate mastery over others; and avoid intimacy with the government.” Shemaya, in the Thalmud

“A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one’s attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced.” Williams v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold, J.), rev’d Nix v. Williams, 467 US. 431 (1984).

“The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence.” Mapp v. Ohio, 367 U.S. 643, 659 (1961).

Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment. Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).

“There have been powerful hydraulic pressures throughout our history that bear heavily on the Court to water down constitutional guarantees and give the police the upper hand. That hydraulic pressure has probably never been greater than it is today.” Terry v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).

“The great end, for which men entered into society, was to secure their property.” Entick v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)

“It is a fair summary of history to say that the safeguards of liberty have frequently been forged in controversies involving not very nice people. And so, while we are concerned here with a shabby defrauder, we must deal with his case in the context of what are really the great themes expressed by the Fourth Amendment.” United States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)

“The course of true law pertaining to searches and seizures, as enunciated here, has notto put it mildlyrun smooth.” Chapman v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).

“A search is a search, even if it happens to disclose nothing but the bottom of a turntable.” Arizona v. Hicks, 480 U.S. 321, 325 (1987)

“For the Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. … But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.” Katz v. United States, 389 U.S. 347, 351 (1967)

Experience should teach us to be most on guard to protect liberty when the Governments purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding. United States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)

Libertythe freedom from unwarranted intrusion by governmentis as easily lost through insistent nibbles by government officials who seek to do their jobs too well as by those whose purpose it is to oppress; the piranha can be as deadly as the shark. United States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)

“You can’t always get what you want / But if you try sometimes / You just might find / You get what you need.” Mick Jagger & Keith Richards

“In Germany, they first came for the communists, and I didn’t speak up because I wasn’t a communist. Then they came for the Jews, and I didn’t speak up because I wasn’t a Jew. Then they came for the trade unionists, and I didn’t speak up because I wasn’t a trade unionist. Then they came for the Catholics and I didn’t speak up because I wasn’t a Catholic. Then they came for meand by that time there was nobody left to speak up.” Martin Niemller (1945) [he served seven years in a concentration camp]

You know, most men would get discouraged by now. Fortunately for you, I am not most men! “The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime.” Johnson v. United States, 333 U.S. 10, 13-14 (1948)

See the original post:
N.D.Ill.: Withheld video of CPD shooting revealed during …

NSA warrantless surveillance (200107) – Wikipedia, the free …

 NSA  Comments Off on NSA warrantless surveillance (200107) – Wikipedia, the free …
Jan 252016
 

The NSA warrantless surveillance controversy (“warrantless wiretapping”) concerns surveillance of persons within the United States during the collection of allegedly foreign intelligence by the U.S. National Security Agency (NSA) as part of the touted war on terror. Under this program, referred to by the Bush administration as the terrorist surveillance program,[1] part of the broader President’s Surveillance Program, the NSA was authorized by executive order to monitor, without search warrants, the phone calls, Internet activity (Web, e-mail, etc.), text messaging, and other communication involving any party believed by the NSA to be outside the U.S., even if the other end of the communication lies within the U.S. However, it has been discovered that all U.S. communications have been digitally cloned by government agencies, in apparent violation of unreasonable search and seizure.

Critics claim that the program was in an effort to attempt to silence critics of the Bush Administration and its handling of several controversial issues during its tenure. Under public pressure, the Bush administration allegedly ceased the warrantless wiretapping program in January 2007 and returned review of surveillance to the FISA court.[2] Subsequently, in 2008 Congress passed the FISA Amendments Act of 2008, which relaxed some of the original FISA court requirements.

During the Obama Administration, the NSA has allegedly continued operating under the new FISA guidelines despite campaign promises to end warrantless wiretapping.[3] However, in April 2009 officials at the United States Department of Justice acknowledged that the NSA had engaged in “overcollection” of domestic communications in excess of the FISA court’s authority, but claimed that the acts were unintentional and had since been rectified.[4]

All wiretapping of American citizens by the National Security Agency requires a warrant from a three-judge court set up under the Foreign Intelligence Surveillance Act. After the 9/11 attacks, Congress passed the Patriot Act, which granted the President broad powers to fight a war against terrorism. The George W. Bush administration used these powers to bypass the FISA court and directed the NSA to spy directly on al-Qaeda in a new NSA electronic surveillance program. Reports at the time indicate that an “apparently accidental” “glitch” resulted in the interception of communications that were purely domestic in nature.[5] This action was challenged by a number of groups, including Congress, as unconstitutional.

The exact scope of the program remains secret, but the NSA was provided total, unsupervised access to all fiber-optic communications going between some of the nation’s largest telecommunication companies’ major interconnected locations, including phone conversations, email, web browsing, and corporate private network traffic.[6] Critics said that such “domestic” intercepts required FISC authorization under the Foreign Intelligence Surveillance Act.[7] The Bush administration maintained that the authorized intercepts were not domestic but rather foreign intelligence integral to the conduct of war and that the warrant requirements of FISA were implicitly superseded by the subsequent passage of the Authorization for Use of Military Force Against Terrorists (AUMF).[8] FISA makes it illegal to intentionally engage in electronic surveillance under appearance of an official act or to disclose or use information obtained by electronic surveillance under appearance of an official act knowing that it was not authorized by statute; this is punishable with a fine of up to $10,000 or up to five years in prison, or both.[9] In addition, the Wiretap Act prohibits any person from illegally intercepting, disclosing, using or divulging phone calls or electronic communications; this is punishable with a fine or up to five years in prison, or both.[10]

After an article about the program, (which had been code-named Stellar Wind), was published in The New York Times on December 16, 2005, Attorney General Alberto Gonzales confirmed its existence.[11][12][13]The Times had posted the exclusive story on their website the night before, after learning that the Bush administration was considering seeking a Pentagon-Papers-style court injunction to block its publication.[14]Bill Keller, the newspaper’s former executive editor, had withheld the story from publication since before the 2004 Presidential Election, and the story that was ultimately published was essentially the same as reporters James Risen and Eric Lichtblau had submitted in 2004. The delay drew criticism from some in the press, arguing that an earlier publication could have changed the election’s outcome.[15] In a December 2008 interview with Newsweek, former Justice Department employee Thomas Tamm revealed himself to be the initial whistle-blower to The Times.[16] The FBI began investigating leaks about the program in 2005, with 25 agents and 5 prosecutors on the case.[17]

Gonzales said the program authorized warrantless intercepts where the government had “a reasonable basis to conclude that one party to the communication is a member of al Qaeda, affiliated with al Qaeda, or a member of an organization affiliated with al Qaeda, or working in support of al Qaeda” and that one party to the conversation was “outside of the United States.”[18] The revelation raised immediate concern among elected officials, civil right activists, legal scholars and the public at large about the legality and constitutionality of the program and the potential for abuse. Since then, the controversy has expanded to include the press’ role in exposing a classified program, the role and responsibility of the US Congress in its executive oversight function and the scope and extent of presidential powers under Article II of the Constitution.[19]

In mid-August 2007, a three-judge panel of the United States Court of Appeals for the Ninth Circuit heard arguments in two lawsuits challenging the surveillance program. The appeals were the first to reach the court after dozens of civil suits against the government and telecommunications companies over NSA surveillance were consolidated last year before the chief judge of the Northern District of California, Vaughn R. Walker. One of the cases is a class-action lawsuit against AT&T, focusing on allegations that the company provided the NSA with its customers’ phone and Internet communications for a vast data-mining operation. Plaintiffs in the second case are the al-Haramain Foundation Islamic charity and two of its lawyers.[20][21]

On November 16, 2007, the three judgesM. Margaret McKeown, Michael Daly Hawkins, and Harry Pregersonissued a 27-page ruling that the charity, the Al-Haramain Islamic Foundation, could not introduce a key piece of evidence in its case because it fell under the government’s claim of state secrets, although the judges said that “In light of extensive government disclosures, the government is hard-pressed to sustain its claim that the very subject matter of the litigation is a state secret.”[22][23]

In an August 14, 2007, question-and-answer session with the El Paso Times which was published on August 22, Director of National Intelligence Mike McConnell confirmed for the first time that the private sector helped the warrantless surveillance program. McConnell argued that the companies deserved immunity for their help: “Now if you play out the suits at the value they’re claimed, it would bankrupt these companies”.[24] Plaintiffs in the AT&T suit subsequently filed a motion with the court to have McConnell’s acknowledgement admitted as evidence in their case.[25]

The program may face an additional legal challenge in the appeal of two Albany, New York, men convicted of criminal charges in an FBI anti-terror sting operation. Their lawyers say they have evidence the men were the subjects of NSA electronic surveillance, which was used to obtain their convictions but not made public at trial or made available in response to discovery requests by defense counsel at that time.[26]

In an unusual related legal development, on October 13, 2007, The Washington Post reported that Joseph P. Nacchio, the former CEO of Qwest Communications, is appealing an April 2007 conviction on 19 counts of insider trading by alleging that the government withdrew opportunities for contracts worth hundreds of millions of dollars after Qwest refused to participate in an unidentified National Security Agency program that the company thought might be illegal. According to court documents unsealed in Denver in early October as part of Nacchio’s appeal, the NSA approached Qwest about participating in a warrantless surveillance program more than six months before the Sep 11, 2001, attacks which have been cited by the government as the main impetus for its efforts. Nacchio is using the allegation to try to show why his stock sale should not have been considered improper.[27] According to a lawsuit filed against other telecommunications companies for violating customer privacy, AT&T began preparing facilities for the NSA to monitor “phone call information and Internet traffic” seven months before 9/11.[28]

On August 17, 2007, the Foreign Intelligence Surveillance Court said it would consider a request filed by the American Civil Liberties Union which asked the intelligence court to make public its recent, classified rulings on the scope of the government’s wiretapping powers. Judge Colleen Kollar-Kotelly, presiding judge of the FISC, signed an order calling the ACLU’s motion “an unprecedented request that warrants further briefing.”[29] The FISC ordered the government to respond on the issue by August 31, saying that anything involving classified material could be filed under court seal.[30][31] On the August 31 deadline, the National Security Division of the Justice Department filed a response in opposition to the ACLU’s motion with the court.[32]

In previous developments, the case ACLU v. NSA was dismissed on July 6, 2007 by the United States Court of Appeals for the Sixth Circuit.[33] The court did not rule on the spying program’s legality. Instead, its 65-page opinion declared that the American Civil Liberties Union and the others who brought the case including academics, lawyers and journalists did not have the legal standing to sue because they could not demonstrate that they had been direct targets of the clandestine surveillance.[34] Detroit District Court judge Anna Diggs Taylor had originally ruled on August 17, 2006 that the program is illegal under FISA as well as unconstitutional under the First and Fourth amendments of the United States Constitution.[35][36][37]Judicial Watch, a watchdog group, discovered that at the time of the ruling Taylor “serves as a secretary and trustee for a foundation that donated funds to the ACLU of Michigan, a plaintiff in the case.”[38] On February 19, 2008, the U.S. Supreme Court, without comment, turned down an appeal from the American Civil Liberties Union, letting stand the earlier decision dismissing the case.[39]

On September 28, 2006 the U.S. House of Representatives passed the Electronic Surveillance Modernization Act (H.R. 5825).[40] That bill now has been passed to the U.S. Senate, where three competing, mutually exclusive, billsthe Terrorist Surveillance Act of 2006 (S.2455) (the DeWine bill), the National Security Surveillance Act of 2006 (S.2455) (the Specter bill), and the Foreign Intelligence Surveillance Improvement and Enhancement Act of 2006 (S.3001) (the Specter-Feinstein bill) were themselves referred for debate to the full Senate by the Senate Judiciary Committee on September 13, 2006.[41] Each of these bills would in some form broaden the statutory authorization for electronic surveillance, while still subjecting it to some restrictions. The Specter-Feinstein bill would extend the peacetime period for obtaining retroactive warrants to seven days and implement other changes to facilitate eavesdropping while maintaining FISA court oversight. The DeWine bill, the Specter bill, and the Electronic Surveillance Modernization Act (passed by the House) would all authorize some limited forms or periods of warrantless electronic surveillance subject to additional programmatic oversight by either the FISC (Specter bill) or Congress (DeWine and Wilson bills).

On January 17, 2007, Attorney General Alberto Gonzales informed U.S. Senate leaders by letter that the program would not be reauthorized by the President.[2] “Any electronic surveillance that was occurring as part of the Terrorist Surveillance Program will now be conducted subject to the approval of the Foreign Intelligence Surveillance Court,” according to his letter.[42]

On September 18, 2008, the Electronic Frontier Foundation (EFF), an Internet-privacy advocacy group, filed a new lawsuit against the NSA, President George W. Bush, Vice President Dick Cheney, Cheney’s chief of staff David Addington, former Attorney General and White House Counsel Alberto Gonzales and other government agencies and individuals who ordered or participated in the warrantless surveillance. They sued on behalf of AT&T customers to seek redress for what the EFF alleges to be an illegal, unconstitutional, and ongoing dragnet surveillance of their communications and communications records. An earlier, ongoing suit by the EFF may be bogged down by the recent changes to FISA provisions, but these are not expected to impact this new case.[43][44]

On January 23, 2009, the administration of President Barack Obama adopted the same position as his predecessor when it urged U.S. District Judge Vaughn Walker to set aside a ruling in Al-Haramain Islamic Foundation et al. v. Obama, et al.[45] The Obama administration also sided with the former administration in its legal defense of July 2008 legislation that immunized the nation’s telecommunications companies from lawsuits accusing them of complicity in the eavesdropping program, according to testimony by Attorney General Eric Holder.[46]

On March 31, 2010, Judge Vaughn R. Walker, chief judge of the Federal District Court in San Francisco, ruled that the National Security Agency’s program of surveillance without warrants was illegal when it intercepted phone calls of Al Haramain. Declaring that the plaintiffs had been “subjected to unlawful surveillance”, the judge said the government was liable to pay them damages.[47]

In 2012, the Ninth Circuit vacated the judgment against the United States and affirmed the district court’s dismissal of the claim against Mueller.[48]

The Trailblazer Project, an NSA IT project that began in 2000, has also been linked to warrantless surveillance. It was chosen over ThinThread, which had included some privacy protections. Three ex-NSA staffers, William Binney, J. Kirke Wiebe, and Ed Loomis, all of whom had quit NSA over concerns about the legality of the agency’s activities, teamed with Diane Roark, a staffer on the House Intelligence Committee, to ask the Inspector General to investigate. A major source for the IG report was Thomas Andrews Drake, an ex-Air Force senior NSA official with an expertise in computers. Siobhan Gorman of The Baltimore Sun published a series of articles about Trailblazer in 20062007.

The FBI agents investigating the 2005 The New York Times story eventually made their way to The Baltimore Sun story, and then to Binney, Wiebe, Loomis, Roark, and Drake. In 2007 armed FBI agents raided the houses of Roark, Binney, and Wiebe. Binney claimed they pointed guns at his head. Wiebe said it reminded him of the Soviet Union. None were charged with crimes except for Drake. In 2010 he was indicted under the Espionage Act of 1917, as part of Obama’s unprecedented crackdown on leakers.[49][50] The charges against him were dropped in 2011 and he pled to a single misdemeanor.

The 1978 Foreign Intelligence Surveillance Act (FISA) regulates U.S. government agencies’ carrying out of physical searches, and electronic surveillance, wherein a significant purpose is the gathering of foreign intelligence information. “Foreign intelligence information” is defined in 50 U.S.C.1801 as information necessary to protect the U.S. or its allies against actual or potential attack from a foreign power, sabotage or international terrorism. FISA defines a “foreign power” as a foreign government or any faction(s) of a foreign government not substantially composed of US persons, or any entity directed or controlled by a foreign government. FISA provides for both criminal and civil liability for intentional electronic surveillance under color of law except as authorized by statute.

FISA provides two documents for the authorization of surveillance. First, FISA allows the Justice Department to obtain warrants from the Foreign Intelligence Surveillance Court (FISC) before or up to 72 hours after the beginning of the surveillance. FISA authorizes a FISC judge to issue a warrant for the electronic cameras if “there is probable cause to believe that the target of the electronic surveillance is a foreign power or an agent of a foreign power.” 50 U.S.C. 1805(a)(3). Second, FISA permits the President or his delegate to authorize warrantless surveillance for the collection of foreign intelligence if “there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party”. 50 U.S.C. 1802(a)(1).[51]

Soon after the September 11, 2001 attacks U.S. President George W. Bush issued an executive order that authorized the National Security Agency (NSA) to conduct surveillance of certain telephone calls without obtaining a warrant from the FISC as stipulated by FISA (see 50 U.S.C.1802 50 U.S.C.1809 ). The complete details of the executive order are not known, but according to statements by the administration,[52] the authorization covers telephone calls originating overseas from or to a person suspected of having links to terrorist organizations such as al-Qaeda or its affiliates even when the other party to the call is within the US. The legality of surveillance involving US persons and extent of this authorization is at the core of this controversy which has steadily grown to include:

About a week after the 9/11 attacks, Congress passed the Authorization for Use of Military Force Against Terrorists (AUMF) which authorized the President to “use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.”

The administration has argued that the language used in the AUMF implicitly authorized the President to exercise those powers “incident to the waging of war”, including the collection of enemy intelligence, FISA provisions notwithstanding.[8]

On January 20, 2006, Senator Patrick Leahy (D-VT), the ranking Democrat on the Senate Judiciary Committee along with lone co-sponsor Senator Ted Kennedy (D-MA) introduced S. Res. 350, a resolution “expressing the sense of the Senate that Senate Joint Resolution 23 (107th Congress), as adopted by the Senate on September 14, 2001, and subsequently enacted as the Authorization for Use of Military Force does not authorize warrantless domestic surveillance of United States citizens.”[55][56] This non-binding resolution died in the Senate without being brought up for debate or being voted upon.[57]

Because of its highly classified status, little is publicly known about the actual implementation of the NSA domestic electronic surveillance program. Mark Klein, a retired AT&T communications technician, submitted an affidavit including limited technical details known to him personally in support of a class-action lawsuit filed by the Electronic Frontier Foundation in federal district court in San Francisco in January 2006 on behalf of AT&T customers who alleged that they had been damaged by the telecommunications corporation’s cooperation with the NSA. The lawsuit is called Hepting v. AT&T.[60][61]

A January 16, 2004 statement by Mr. Klein includes additional technical details regarding the secret 2003 construction of an NSA-operated monitoring facility in Room 641A of 611 Folsom Street in San Francisco, the site of a large SBC phone building, three floors of which are occupied by AT&T.[62][63]

According to Klein’s affidavit, the NSA-equipped room uses equipment built by Narus Corporation to intercept and analyze communications traffic, as well as perform data-mining functions.[64]

In an article appearing in the January/February 2008 issue of the Institute of Electrical and Electronics Engineers journal of Security and Privacy, noted technology experts from academia and the computing industry analyzed potential security risks posed by the NSA program, based on information contained in Klein’s affidavits as well as those of expert witness J. Scott Marcus, a designer of large-scale IP-based data networks, former CTO at GTE Internetworking and at Genuity, and former senior advisor for Internet Technology at the US Federal Communications Commission.[65] They concluded that the likely architecture of the system created serious security risks, including the danger that such a surveillance system could be exploited by unauthorized users, criminally misused by trusted insiders, or abused by government agents.[66]

Journalist Barton Gellman reported in the Washington Post that David Addington who was at that time legal counsel to former Vice President Dick Cheney was the author of the controlling legal and technical documents for the NSA surveillance program, typing the documents on a TEMPEST-shielded computer across from his desk in room 268 of the Eisenhower Executive Office Building and storing them in a vault in his office.[67][68][69]

The NSA surveillance controversy involves legal issues that fall into two broad disciplines: statutory interpretation and Constitutional law. Statutory interpretation is the process of interpreting and applying legislation to the facts of a given case. Constitutional law is the body of law that governs the interpretation of the United States Constitution and covers areas of law such as the relationship between the federal government and state governments, the rights of individuals, and other fundamental aspects of the application of government authority in the United States.[70]

However, there are analogies between the NSA Spying Scandal (20012007) and Hewlett-Packard spying scandal (2006)[71] that may ease to predict the court outcomes. HP, in order to find the leak source of its board strategic minutes revealed to press, employed several contractors to investigate the leak issue but without engaging any external legal firm and supervisory stakeholder. Contractors, under supervision of the HP’s internal investigation team, confidentially used false pretense and social security numbers a spying technique namely Pretexting for obtaining phone records of suspicious board members and several journalists. Later on, the HP’s surveillance extended beyond the board of directors leaking issue and became a conspiracy for interest of the probe initiators; through which it was claimed that the informational privacy rights of even innocent employees and directors of the board, who had nothing to do with the board leaks, were violated.

In October 2006, HP’s chairwoman Patricia Dunn and HP’s former chief ethics officer Kevin Hunsaker and several private investigators were charged for criminal cases under California Penal Code such as

All of these charges were dismissed.[72]

18 U.S.C.2511(2)(f) provides in relevant part that “the Foreign Intelligence Surveillance Act of 1978 shall be the exclusive means by which electronic surveillance, as defined in 50 U.S.C.1801(f) … and the intercept of domestic [communications] may be conducted.” The interpretation of this clause is central to the controversy because both sides agree that the NSA program operates outside of the procedural framework provided by FISA. The interpretive conflict arises because other provisions of FISA, including the criminal sanctions subpart 50 U.S.C.1809 include an “unless authorized by statute” provision, raising the issue of statutory ambiguity. The administration’s position is that the AUMF is an authorizing statute which satisfies the FISA criteria.

The U.S. Supreme Court faced a similar issue in Hamdi v. Rumsfeld where the government claimed that the AUMF authorized the President to detain U.S. citizens designated as an enemy combatant despite its lack of specific language to that intent and notwithstanding the provisions of 18 U.S.C.4001(a) which requires that the United States government cannot detain an American citizen except by an act of Congress. In that case, the Court ruled:

[B]ecause we conclude that the Government’s second assertion [“that 4001(a) is satisfied, because Hamdi is being detained “pursuant to an Act of Congress” [the AUMF] is correct, we do not address the first. In other words, for the reasons that follow, we conclude that the AUMF is explicit congressional authorization for the detention of individuals … and that the AUMF satisfied 4001(a)’s requirement that a detention be “pursuant to an Act of Congress”

In Hamdan v. Rumsfeld however, the court rejected the government’s argument that the AUMF implicitly authorized the President to establish military commissions in violation of the UCMJ. The opinion of the Court held:

Neither of these congressional Acts, [AUMF or ATC] however, expands the President’s authority to convene military commissions. First, while we assume that the AUMF activated the President’s war powers, see Hamdi v. Rumsfeld, 542 U.S. 507 (2004)) (plurality opinion), and that those powers include the authority to convene military commissions in appropriate circumstances, see id., at 518; Quirin, 317 U. S., at 2829; see also Yamashita, 327 U. S., at 11, there is nothing in the text or legislative history of the AUMF even hinting that Congress intended to expand or alter the authorization set forth in Article 21 of the UCMJ. Cf. Yerger, 8 Wall., at 105 (“Repeals by implication are not favored”)

Determining when explicit congressional authorization is and is not required appears by this decision to require a court to first determine whether an implicit authorization would amount to a “repeal by implication” of the governing Act.

The exclusivity clause also raises a separation of powers issue. (See Constitutional law issues below)

The arguments against the legality of the NSA fall into two broad categories, those who argue that FISA raises no Constitutional issues and therefore the NSA program is illegal on its face

Common to both of these views is the argument that the participation of “US persons” as defined in FISA 50 U.S.C.1801 renders the objectional intercepts “domestic” in nature.[73] Those advocating the “no constitutional issue” position, argue that Congress has the authority it needs to legislate in this area under Article I and the Fourth Amendment[74] while those who see a constitutional conflict[75] acknowledge that the existing delineation between Congressional and Executive authority in this area is not clear[76] but that Congress, in including the exclusivity clause in FISA, meant to carve out a legitimate role for itself in this arena.

The administration holds that an exception to the normal warrant requirements exists when the purpose of the surveillance is to prevent attack from a foreign threat. Such an exception has been upheld at the Circuit Court level when the target was a foreign agent residing abroad,[77][78] a foreign agent residing in the US,[79][80][81][82] and a US citizen abroad.[83] The warrantless exception was struck down when both the target and the threat was deemed domestic.[84] The legality of targeting US persons acting as agents of a foreign power and residing in this country has not been addressed by the US Supreme Court, but has occurred at least once, in the case of Aldrich Ames.[85]

The Administration’s position with regard to statutory interpretation, as outlined in the DOJ whitepaper, is to avoid what it has termed the “difficult Constitutional questions” by

This argument, as outlined in the DOJ whitepaper, is based on the language of the AUMF, specifically, the acknowledgment of the President’s Constitutional authority contained in the preamble; “Whereas, the President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States”, and the language in the resolution itself;

[Be it resolved] [t]hat the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

The administration also adds that the program is legal under Title II of the USA PATRIOT Act entitled Enhanced Surveillance Procedures,[citation needed] although it is not relying upon the domestic law enforcement provisions of the PATRIOT Act for authorization of any of the NSA program activities.[citation needed] The President had said prior to this, that Americans’ civil liberties were being protected and that purely domestic wiretapping was being conducted pursuant to warrants under applicable law, including the Patriot Act.[87]

These arguments must be compared to the language of the FISA itself, which states:

Notwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for a period not to exceed fifteen calendar days following a declaration of war by the Congress.[88]

Because the law only authorizes the President to bypass the FISA court during the first 15 days of a war declared by Congress (see “Declaration of war”), the administration’s argument rests on the assumption that the AUMF gave the President more power than was understood as absolutely implicit in any Congressional “declaration of war” at the time of the statute’s enactment. However, as a “declaration of war by the Congress” encompasses all military actions so declared, no matter how small, brief or otherwise constrained by Congress, the above citation could be seen as setting not a default or typical level of Presidential wartime authority, but instead a presumptive minimum, which might more often than not be extended (explicitly or implicitly) by Congress’s war declaration.

According to Peter J. Wallison, former White House Counsel to President Ronald Reagan: “It is true, of course, that a president’s failure to report to Congress when he is required to do so by law is a serious matter, but in reality the reporting requirement was a technicality that a President could not be expected to know about.”[89] In regard to this program, a Gang of Eight (eight key members of Congress, thirteen in this case between the 107th and 109th Congressional Sessions) have been kept informed to some degree:

Under the National Security Act of 1947, 501503, codified as 50 USC 413-413b,[90] the President is required to keep Congressional intelligence committees “fully and currently” informed of U.S. intelligence activities, “consistent with … protection from unauthorized disclosure of classified information relating to sensitive intelligence sources and methods or other exceptionally sensitive matters.” For covert actions, from which intelligence gathering activities are specifically excluded in 413b(e)(1), the President is specifically permitted to limit reporting to the so-called “Gang of Eight”.[91]

The administration contends that with regard to the NSA surveillance program, the administration fulfilled its notification obligations by briefing key members of Congress (thirteen individuals in this case between the 107th and 109th Congressional sessions) have been briefed on the NSA program more than a dozen times[citation needed] but they were forbidden from sharing information about the program with other members or staff.[citation needed]

On January 18, 2006 the Congressional Research Service released a report, “Statutory Procedures Under Which Congress Is To Be Informed of U.S. Intelligence Activities, Including Covert Actions”.[92][93] That report found that “[b]ased upon publicly reported descriptions of the program, the NSA surveillance program would appear to fall more closely under the definition of an intelligence collection program, rather than qualify as a covert action program as defined by statute”, and, therefore, concluded there was no specific statutory basis for limiting briefings on the terrorist surveillance program to the Gang of Eight.[94] However, the report goes on to note in its concluding paragraph that limited disclosure is also permitted under the statute “in order to protect intelligence sources and methods”.[95]

Thus, although the specific statutory “Gang of Eight” notification procedure for covert action would not seem to apply to the NSA program, it is not clear if a limited notification procedure intended to protect sources and methods is expressly prohibited. Additionally, should the sources and methods exception apply it will require a factual determination as to whether it should apply to disclosure of the program itself or only to specific sensitive aspects.

The constitutional debate surrounding executive authorization of warrantless surveillance is principally about separation of powers (“checks and balances”). If, as discussed above, no “fair reading” of FISA can be found in satisfaction of the canon of avoidance, these issues will have to be decided at the appellate level, by United States courts of appeals. It should be noted that in such a separation of powers dispute, the burden of proof is placed upon the Congress to establish its supremacy in the matter: the Executive branch enjoys the presumption of authority until an Appellate Court rules against it.[citation needed]

Article I vests Congress with the sole authority “To make Rules for the Government and Regulation of the land and naval Forces” and “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” The U.S. Supreme Court has used the “necessary and proper” clause of Article I to affirm broad Congressional authority to legislate as it sees fit in the domestic arena[citation needed] but has limited its application in the arena of foreign affairs. In the landmark Curtiss-Wright decision, Justice Sutherland writes in his opinion of the Court:

The [“powers of the federal government in respect of foreign or external affairs and those in respect of domestic or internal affairs”] are different, both in respect of their origin and their nature. The broad statement that the federal government can exercise no powers except those specifically enumerated in the Constitution, and such implied powers as are necessary and proper to carry into effect the enumerated powers, is categorically true only in respect of our internal affairs.

Article II vests the President with power as “Commander in Chief of the Army and Navy of the United States,” and requires that he “shall take Care that the Laws be faithfully executed”.

The U.S. Supreme Court has historically used Article II to justify wide deference to the President in the arena of foreign affairs.[citation needed] Two historical and recent Supreme Court cases define the secret wiretapping by the NSA. Quoting again from the Curtiss-Wright decision:

It is important to bear in mind that we are here dealing not alone with an authority vested in the President by an exertion of legislative power, but with such an authority plus the very delicate, plenary and exclusive power of the President as the sole organ of the federal government in the field of international relationsa power which does not require as a basis for its exercise an act of Congress, but which, of course, like every other governmental power, must be exercised in subordination to the applicable provisions of the Constitution.

The extent of the President’s power as Commander-in-Chief has never been fully defined, but two U.S. Supreme Court cases are considered seminal in this area:[96][97]Youngstown Sheet and Tube Co. v. Sawyer and Curtiss-Wright.

In addition, two relatively new cases, Hamdi v. Rumsfeld and Hamdan v. Rumsfeld, have clarified, and in the case of Hamdan limited, the scope of executive power to detain and try suspected terrorists as enemy combatants.

In Hamdan, the Court’s opinion in footnote 23, rejected the notion that Congress is impotent to regulate the exercise of executive war powers:

Whether or not the President has independent power, absent congressional authorization, to convene military commissions, he may not disregard limitations that Congress has, in proper exercise of its own war powers, placed on his powers. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 637 (1952) (Jackson, J., concurring). The Government does not argue otherwise.

Whether “proper exercise” of Congressional war powers includes authority to regulate the gathering of foreign intelligence, which in other rulings[citation needed] has been recognized as “fundamentally incident to the waging of war”, is a historical point of contention between the Executive and Legislative branches.[8][98]

As noted in “Presidential Authority to Conduct Warrantless Electronic Surveillance to Gather Foreign Intelligence Information”, published by The Congressional Research Service:

A review of the history of intelligence collection and its regulation by Congress suggests that the two political branches have never quite achieved a meeting of the minds regarding their respective powers. Presidents have long contended that the ability to conduct surveillance for intelligence purposes is a purely executive function, and have tended to make broad assertions of authority while resisting efforts on the part of Congress or the courts to impose restrictions. Congress has asserted itself with respect to domestic surveillance, but has largely left matters involving overseas surveillance to executive self-regulation, subject to congressional oversight and willingness to provide funds.

The same report makes clear the Congressional view that intelligence gathered within the U.S. and where “one party is a U.S. person” qualifies as domestic in nature and as such completely within their purview to regulate, and further that Congress may “tailor the President’s use of an inherent constitutional power”:

The passage of FISA and the inclusion of such exclusivity language reflects Congress’s view of its authority to cabin the President’s use of any inherent constitutional authority with respect to warrantless electronic surveillance to gather foreign intelligence.

The Senate Judiciary Committee articulated its view with respect to congressional power to tailor the President’s use of an inherent constitutional power:

The Fourth Amendment to the United States Constitution is part of the Bill of Rights and helps guard against “unreasonable” searches and seizures by agents of the government. It is solely a right of the people that neither the Executive nor Legislative branch can lawfully abrogate, not even if acting in concert: no statute can make an unreasonable search reasonable, nor a reasonable search unreasonable.

The term “unreasonable” is deliberately imprecise but connotes the sense that there is a rational basis for the search and that it is not an excessive imposition upon the individual given the motivation for and circumstances of the search, and is in accordance with customary societal norms. It is conceived that a judge will be sufficiently distanced from the authorities seeking a warrant that they can render an impartial decision unaffected by any prejudices or improper motivations they (or the legislators who enacted a law they are seeking to enforce) may harbor.

An individual who believes their Fourth Amendment rights have been violated by an unreasonable search or seizure may file a civil suit for monetary compensation and seek a court-ordered end to a pattern or practice of such unlawful activities by government authorities, although the plaintiff will need to have evidence that such a wiretap is taking place in order to show standing (Amnesty International v. Clapper). Such civil rights violations are sometimes punishable by state or federal law. Evidence obtained in an unlawful search or seizure is generally inadmissible in a criminal trial.

The law countenances searches without warrant as “reasonable” in numerous circumstances, among them (see below): the persons, property, and papers of individuals crossing the border of the United States and those of paroled felons; in prisons, public schools and government offices; and of international mail. Although these are undertaken as a result of statute or Executive order, they should not be seen as deriving their legitimacy from these, rather, the Fourth Amendment explicitly allows reasonable searches, and the government has instituted some of these as public policy.

The Supreme Court held in Katz v. United States (1967), that the monitoring and recording of private conversations within the United States constitutes a “search” for Fourth Amendment purposes, and therefore the government must generally obtain a warrant before undertaking such domestic recordings.

The Supreme Court has also held in Smith v Maryland (1979) that citizens have no Fourth Amendment expectation of privacy in the business records (sometimes termed metadata) of their communications. This means that the court can subpoena data such as the numbers that an individual has phoned, when and, to a limited degree, where (subject to Jones v. United States) the phone conversation occurred, although a full judicial warrant would be required for the government to acquire or admit audio content from the telephone call. Under Section 215 of the PATRIOT act, the FBI can subpoena some or all such records from a business record holder using a warrant applied for in the Foreign Intelligence Surveillance Court.

The protection of “private conversations” has been held to apply only to conversations where the participants have not only manifested a desire but also a reasonable expectation that their conversation is indeed private and that no other party is listening in. In the absence of such a reasonable expectation, the Fourth Amendment does not apply, and surveillance without warrant does not violate it. Privacy is clearly not a reasonable expectation in communications to persons in the many countries whose governments openly intercept electronic communications, and is of dubious reasonability in countries against which the United States is waging war.

The law also recognizes a distinction between domestic surveillance taking place within U.S. borders and foreign surveillance of non-U.S. persons either in the U.S. or abroad.[99] In United States v. Verdugo-Urquidez, the Supreme Court reaffirmed the principle that the Constitution does not extend protection to non-U.S. persons located outside of the United States, so no warrant would be required to engage in even physical searches of non-U.S. citizens abroad.

The U.S. Supreme Court has never ruled on the constitutionality of warrantless searches targeting foreign powers or their agents within the US. There have been, however, a number of Circuit Court rulings upholding the constitutionality of such warrantless searches.[100] In United States v. Bin Laden, the Second Circuit noted that “no court, prior to FISA, that was faced with the choice, imposed a warrant requirement for foreign intelligence searches undertaken within the United States.”[101] Assistant Attorney General William Moschella in his written response to questions from the House Judiciary Committee explained that in the administration’s view, this unanimity of pre-FISA Circuit Court decisions vindicates their argument that warrantless foreign-intelligence surveillance authority existed prior to FISA and since, as these ruling indicate, that authority derives from the Executive’s inherent Article II powers, they may not be encroached by statute.[102] In 2002, the United States Foreign Intelligence Surveillance Court of Review (Court of Review) met for the first time and issued an opinion (In re: Sealed Case No. 02-001) which seems to echo that view. They too noted all the Federal courts of appeal having looked at the issue had concluded that there was constitutional power for the president to conduct warrantless foreign intelligence surveillance. Furthermore, based on these rulings it “took for granted such power exits” and ruled that under this presumption, “FISA could not encroach on the president’s constitutional power.” Professor Orin Kerr argues in rebuttal that the part of In re: Sealed Case No. 02-001 that dealt with FISA (rather than the Fourth Amendment) was nonbinding obiter dicta and that the argument does not restrict Congress’s power to regulate the executive in general.[103]

Harold Koh, dean of Yale Law School, Suzanne Spaulding, former general counsel for the Intelligence Committees of the House and Senate, and former Counsel to the President John Dean, contend that FISA clearly makes the wiretapping illegal and subject to the criminal penalties of FISA,[104] (in seeming disagreement with the FISA Court of Review finding above) and that the president’s own admissions already constitute sufficient evidence of a violation of the Fourth Amendment, without requiring further factual evidence. Professor John C. Eastman, in his analysis, prepared at the behest of the House Judiciary Committee, comparing the CRS and DOJ reports, concluded instead that under the Constitution and ratified by both historical and Supreme Court precedent, “the President clearly has the authority to conduct surveillance of enemy communications in time of war and of the communications to and from those he reasonably believes are affiliated with our enemies. Moreover, it should go without saying that such activities are a fundamental incident of war.”[105]

Orin S. Kerr, associate professor of law at The George Washington University Law School[106] and a leading scholar in the subjects of computer crime law and internet surveillance,[107] points to an analogy between the NSA intercepts and searches allowed by the Fourth Amendment under the border search exception.

The border search exception permits searches at the border of the United States “or its functional equivalent.” (United States v. Montoya De Hernandez, 473 U.S. 531, 538 (1985)). The idea here is that the United States as a sovereign nation has a right to inspect stuff entering or exiting the country as a way of protecting its sovereign interests, and that the Fourth Amendment permits such searches. Courts have applied the border search exception in cases of PCs and computer hard drives; if you bring a computer into or out of the United States, the government can search your computer for contraband or other prohibited items at the airport or wherever you are entering or leaving the country. See, e.g., United States v. Ickes, 393 F.3d 501 (4th Cir. 2005) (Wilkinson, J.)…At the same time, I don’t know of a rationale in the case law for treating data differently than physical storage devices. The case law on the border search exception is phrased in pretty broad language, so it seems at least plausible that a border search exception could apply to monitoring at an ISP or telephone provider as the “functional equivalent of the border,” much like airports are the functional equivalent of the border in the case of international airline travel…the most persuasive case on point: United States v. Ramsey, [held] that the border search exception applies to all international postal mail, permitting all international postal mail to be searched.

Evidence gathered without warrant may raise significant Fourth Amendment issues which could preclude its use in a criminal trial. As a general rule of law, evidence obtained improperly without lawful authority, may not be used in a criminal prosecution.[citation needed] The U.S. Supreme Court has never addressed the constitutionality of warrantless searches (which has been broadly defined by the court to include surveillance) targeting foreign powers or their agents, the admissibility of such evidence in a criminal trial nor whether it is permissible to obtain or use evidence gathered without warrant against US persons acting as agents of a foreign power.[citation needed]

The National Security Act of 1947[108] requires Presidential findings for covert acts. SEC. 503. [50 U.S.C. 413b] (a) (5) of that act states: “A finding may not authorize any action that would violate the Constitution or any statute of the United States.”

On August 17, 2006, Judge Anna Diggs Taylor of the United States District Court for the Eastern District of Michigan ruled in ACLU v. NSA that the Terrorist Surveillance Program was unconstitutional under the Fourth and First Amendments and enjoined the NSA from using the program to conduct electronic surveillance “in contravention of [FISA or Title III]”.[36] In her ruling,[109] she wrote:

The President of the United States, a creature of the same Constitution which gave us these Amendments, has indisputably violated the Fourth in failing to procure judicial orders as required by FISA, and accordingly has violated the First Amendment Rights of these Plaintiffs as well.

Even some legal experts who agreed with the outcome have criticized the reasoning set forth in the opinion.[110] Others have argued that the perceived flaws in the opinion in fact reflect the Department of Justice’s refusal to argue the legal merits of the program (they chose to focus solely on arguments about standing and state secrets grounds).[111]

On October 4, 2006, a panel of the United States Court of Appeals for the Sixth Circuit unanimously ruled that the government can continue the program while it appeals the lower court decision.[112][113]

On July 6, 2007 the Sixth Circuit dismissed the case, finding that the plaintiffs had no standing.

The Court found that:[114]

[T]he plaintiffs do not and because of the State Secrets Doctrine cannot produce any evidence that any of their own communications have ever been intercepted by the NSA, under the TSP, or without warrants. Instead, they assert a mere belief, which they contend is reasonable and which they label a well founded belief,…

Implicit in each of the plaintiffs’ alleged injuries is the underlying possibility which the plaintiffs label a “well founded belief” and seek to treat as a probability or even a certainty that the NSA is presently intercepting, or will eventually intercept, communications to or from one or more of these particular plaintiffs, and that such interception would be detrimental to the plaintiffs’ clients, sources, or overseas contacts. This is the premise upon which the plaintiffs’ entire theory is built.

But even though the plaintiffs’ beliefs based on their superior knowledge of their contacts’ activities may be reasonable, the alternative possibility remains that the NSA might not be intercepting, and might never actually intercept, any communication by any of the plaintiffs named in this lawsuit.

Corporate secrecy is also an issue. Wired reported: In a letter to the EFF, AT&T objected to the filing of the documents in any manner, saying that they contain sensitive trade secrets and could be “used to ‘hack’ into the AT&T network, compromising its integrity.”[115] However, Chief Judge Vaughn Walker stated, during the September 12, 2008 hearing in the class-action lawsuit filed by the EFF, that the Klein evidence could be presented in court, effectively ruling that AT&T’s trade secret and security claims were unfounded.

The majority of legal arguments supporting the NSA warrantless surveillance program have been based on the War Powers Resolution. There have not been any other noteworthy types of supporting legal arguments. The War Powers Resolution has been questioned as unconstitutional since its creation, and its adaptation to the NSA warrantless surveillance program has been questionable.

More:
NSA warrantless surveillance (200107) – Wikipedia, the free …

 Posted by at 3:44 pm  Tagged with:

1st Amendment – Revolutionary War and Beyond!

 First Amendment  Comments Off on 1st Amendment – Revolutionary War and Beyond!
Jan 232016
 

We are considering offers for the sale of this website. Use the contact form in the left column to contact us for more information.

The 1st Amendment is the most well known to Americans of all the amendments in the Bill of Rights. It contains some of the most familiar phrases in political discussion, such as freedom of religion, freedom of speech and freedom of the press. The 1st Amendment reads like this:

“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.”

The 1st Amendment protects your right to believe and practice whatever religious principles you choose and your right to say what you believe, even if it is unpopular or against the will of elected officials.

It also protects your right to publish any information you want, join together with whomever you want and ask the government to correct its own errors.

What exactly does the 1st Amendment mean and how does it apply to people today? Does it have relevance to you today? It sure does. In fact, it affects just about everything you do.

The 1st Amendment has seven clauses. This page has a brief description of each clause with links to more detailed information about the history and purpose of each section.

The Opening Phrase of the 1st Amendment says “Congress shall make no law.” This opening phrase immediately tells exactly who this amendment is aimed at… and that entity is Congress. So the 1st Amendment specifically prohibits Congress from making laws interfering with the rights mentioned in the amendment.

It does not however, prohibit the states from making such laws, nor does it prohibit individuals from restricting these rights to those who may be under their authority, such as a parent and child or an employer and an employee.

For one hundred years the 1st Amendment was understood to only apply to the federal government, but after the Civil War and the 14th Amendment was added to the Constitution, courts began to forbid the states to interfere with these rights as well due to an idea called “due process of law.”

Learn more about the Opening Phrase of the 1st Amendment here.

The Establishment Clause is the part of the 1st Amendment that says Congress shall make no law “respecting an establishment of religion.” This is a very crucial part of the American Constitution. It prohibits the government from establishing a state religion or denomination and from directing people in what they must believe.

Without the Establishment Clause, the government could choose a state religion and force everyone to participate in it. It could also punish anyone who didn’t adhere to its chosen faith.

This clause has been the focus of much debate in the last half century. Some Americans believe that whenever the government is involved, absolutely all religious expression must be forbidden in order to comply with the Establishment Clause.

For example, they might say a public school football team should not pray at a football game because the school is a government funded school.

Other Americans believe the government must make certain allowances for religious expressions in public events and buildings because Americans are a very religious people. They belive a high school football team prayer or a government employee displaying a cross at work does not violate the Establishment Clause because it is simply a personal expression and not an expression endorsed by the state.

Indeed, in the minds of some, banning expressions of religious faith like this is a violation of another clause of the 1st Amendment – the Free Exercise Clause, because it seeks to control the religious expressions of citizens.

Learn more about the history and purpose of the Establishment Clause here.

The Free Exercise Clause is the part of the 1st Amendment that says Congress shall make no law respecting the establishment of religion or “the free exercise thereof.” This phrase deals with the restriction on Congress to regulate anyone’s religious practices.

In general, Congress cannot tell people how they can or cannot express their religious beliefs. Such things as telling people when or how to pray, when they should go to church or to whom they should pray, are off limits to lawmakers.

In general, this is the case, but sometimes, minority religious groups may want to practice something that is not generally accepted or that the state has a very strong interest in regulating. For example, polygamy, ritual sacrifice and drug usage have been banned at times, because there is a compelling public interest in eliminating these behaviors.

In such cases, the Supreme Court has often ruled that the Free Exercise Clause does not apply. In other words, the Free Exercise Clause does not give free license to any behavior that someone says is their religious belief.

You can learn all about the Free Exercise Clause here.

The Freedom of Speech Clause is the part of the 1st Amendment that says, “Congress shall make no law… abridging the freedom of speech.”

British history contained a long string of suppression by those in authority of those with whom they disagreed. Many British subjects had been thrown in prison for voicing their religious and political beliefs. The Americans intended to prevent this from ever happening in their newly formed republic.

This is one of the protections in the Constitution that Americans hold most dear. They value it because it allows them to speak out against government policies they don’t like. It also allows them to express the religious beliefs of their choosing.

Negatively speaking, many people abuse this right by slandering people they disagree with, or using ugly and offensive language, racial epithets or hateful language about people who are different than they are.

Generally, freedom of speech is considered to be not only the words people speak, but any type of expression that is used to convey an idea. Such things as picketing, wearing symbols or burning the flag are considered protected forms of speech because they are expressing the ideas of the people participating in them.

You can learn more about the Freedom of Speech Clause by clicking here.

The Freedom of the Press Clause states that “Congress shall make no law… abridging the freedom… of the press.”

This was a very important principle to the Founding Fathers of America because of the importance the press played during the Revolutionary War.

Without the press, the Founding Fathers would have found it very difficult to distribute their views to people in other parts of the country. The press turned out to be a very important instigation in getting Americans to consolidate their views against England and in spreading the concepts that would justify a break with England.

English history contained no freedoms for the press whatsoever. All publications were subject to governmental review before publication. Criticisms of the government were strictly prosecuted as sedition. All Americans wanted the right to criticize their government freely as well as to discuss other topics whenever they chose.

If you would like to learn more about the Freedom of the Press Clause, please click here.

The Freedom of Assembly Clause is the part of the First Amendment that reads like this: “Congress shall make no law… abridging… the right of the people peaceably to assemble…” This clause is also sometimes referred to as the Freedom of Association Clause. This clause protects the right to assemble in peace to all Americans.

The Freedom of Assembly was very important to early Americans because without the right to assemble, they could not coordinate their opposition to the British government. The Freedom of Assembly was recognized to be of utmost importance if the Americans were to be successful in establishing a government of the people.

The Freedom of Assembly Clause has been relied upon by many groups in American history, such as civil rights groups, women’s suffrage groups and labor unions. Government officials in each case tried to restrict the speech of these groups and prevent them from meeting, organizing and getting their message out. The Freedom of Assembly proved to be an important factor that allowed these groups to prosper and see their visions fulfilled.

You can learn more about the history and importance of the Freedom of Assembly Clause here.

Click to enlarge

King George III

by Allan Ramsay

The Freedom of Petition Clause of the 1st Amendment reads like this:

“Congress shall make no law… abridging the freedom… of the people… to petition the Government for a redress of grievances.”

The freedom to petition the government was very important to early Americans because of their experience with trying to get King George III and Parliament to respond to their grievances. The colonists were so angry about the Monarchy’s refusal to acknowledge their grievances that they mentioned this fact in the Declaration of Independence.

The freedom to petition the government for redress of grievances has come to include the right to do such things as picketing, protesting, conducting peaceful sitins or boycotts and addressing government officials through any media available.

You can read more about the history and meaning of the Freedom of Petition Clause here.

Preamble to the Bill of Rights Learn about the 1st Amendment here. Learn about the 2nd Amendment here. Learn about the 3rd Amendment here. Learn about the 4th Amendment here. Learn about the 5th Amendment here. Learn about the 6th Amendment here. Learn about the 7th Amendment here. Learn about the 8th Amendment here. Learn about the 9th Amendment here. Learn about the 10th Amendment here.

Read the Bill of Rights here.

Learn more about the Bill of Rights with the following articles:

Last updated 8/7/12

Return to top of 1st Amendment

Revolutionary War and Beyond Home

See more here:
1st Amendment – Revolutionary War and Beyond!

Atheism – Wikipedia, the free encyclopedia

 Atheism  Comments Off on Atheism – Wikipedia, the free encyclopedia
Jan 202016
 

Atheism is, in a broad sense, the rejection of belief in the existence of deities.[1][2] In a narrower sense, atheism is specifically the position that there are no deities.[3][4][5] Most inclusively, atheism is the absence of belief that any deities exist.[4][5][6][7] Atheism is contrasted with theism,[8][9] which, in its most general form, is the belief that at least one deity exists.[9][10][11]

The term “atheism” originated from the Greek (atheos), meaning “without god(s)”, used as a pejorative term applied to those thought to reject the gods worshiped by the larger society.[12] With the spread of freethought, skeptical inquiry, and subsequent increase in criticism of religion, application of the term narrowed in scope. The first individuals to identify themselves using the word “atheist” lived in the 18th century during the Age of Enlightenment. The French Revolution, noted for its “unprecedented atheism,” witnessed the first major political movement in history to advocate for the supremacy of human reason.[14]

Arguments for atheism range from the philosophical to social and historical approaches. Rationales for not believing in deities include arguments that there is a lack of empirical evidence;[15][16] the problem of evil; the argument from inconsistent revelations; the rejection of concepts that cannot be falsified; and the argument from nonbelief.[15][17] Although some atheists have adopted secular philosophies (eg. humanism and skepticism),[18][19] there is no one ideology or set of behaviors to which all atheists adhere.[20] Many atheists hold that atheism is a more parsimonious worldview than theism and therefore that the burden of proof lies not on the atheist to disprove the existence of God but on the theist to provide a rationale for theism.[21]

Since conceptions of atheism vary, accurate estimations of current numbers of atheists are difficult.[22] Several comprehensive global polls on the subject have been conducted by Gallup International: their 2015 poll featured over 64,000 respondents and indicated that 11% were “convinced atheists” whereas an earlier 2012 poll found that 13% of respondents were “convinced atheists.”[23][24] An older survey by the BBC, in 2004, recorded atheists as comprising 8% of the world’s population.[25] Other older estimates have indicated that atheists comprise 2% of the world’s population, while the irreligious add a further 12%.[26] According to these polls, Europe and East Asia are the regions with the highest rates of atheism. In 2015, 61% of people in China reported that they were atheists.[27] The figures for a 2010 Eurobarometer survey in the European Union (EU) reported that 20% of the EU population claimed not to believe in “any sort of spirit, God or life force”.[28]

Writers disagree on how best to define and classify atheism,[29] contesting what supernatural entities it applies to, whether it is a philosophic position in its own right or merely the absence of one, and whether it requires a conscious, explicit rejection. Atheism has been regarded as compatible with agnosticism,[30][31][32][33][34][35][36] and has also been contrasted with it.[37][38][39] A variety of categories have been used to distinguish the different forms of atheism.

Some of the ambiguity and controversy involved in defining atheism arises from difficulty in reaching a consensus for the definitions of words like deity and god. The plurality of wildly different conceptions of God and deities leads to differing ideas regarding atheism’s applicability. The ancient Romans accused Christians of being atheists for not worshiping the pagan deities. Gradually, this view fell into disfavor as theism came to be understood as encompassing belief in any divinity.

With respect to the range of phenomena being rejected, atheism may counter anything from the existence of a deity, to the existence of any spiritual, supernatural, or transcendental concepts, such as those of Buddhism, Hinduism, Jainism, and Taoism.[41]

Definitions of atheism also vary in the degree of consideration a person must put to the idea of gods to be considered an atheist. Atheism has sometimes been defined to include the simple absence of belief that any deities exist. This broad definition would include newborns and other people who have not been exposed to theistic ideas. As far back as 1772, Baron d’Holbach said that “All children are born Atheists; they have no idea of God.”[42] Similarly, George H. Smith (1979) suggested that: “The man who is unacquainted with theism is an atheist because he does not believe in a god. This category would also include the child with the conceptual capacity to grasp the issues involved, but who is still unaware of those issues. The fact that this child does not believe in god qualifies him as an atheist.”[43] Smith coined the term implicit atheism to refer to “the absence of theistic belief without a conscious rejection of it” and explicit atheism to refer to the more common definition of conscious disbelief. Ernest Nagel contradicts Smith’s definition of atheism as merely “absence of theism”, acknowledging only explicit atheism as true “atheism”.[44]

Philosophers such as Antony Flew[45] and Michael Martin have contrasted positive (strong/hard) atheism with negative (weak/soft) atheism. Positive atheism is the explicit affirmation that gods do not exist. Negative atheism includes all other forms of non-theism. According to this categorization, anyone who is not a theist is either a negative or a positive atheist. The terms weak and strong are relatively recent, while the terms negative and positive atheism are of older origin, having been used (in slightly different ways) in the philosophical literature[45] and in Catholic apologetics.[46] Under this demarcation of atheism, most agnostics qualify as negative atheists.

While Martin, for example, asserts that agnosticism entails negative atheism,[33] many agnostics see their view as distinct from atheism,[47][48] which they may consider no more justified than theism or requiring an equal conviction.[47] The assertion of unattainability of knowledge for or against the existence of gods is sometimes seen as indication that atheism requires a leap of faith.[49][50] Common atheist responses to this argument include that unproven religious propositions deserve as much disbelief as all other unproven propositions,[51] and that the unprovability of a god’s existence does not imply equal probability of either possibility.[52] Scottish philosopher J. J. C. Smart even argues that “sometimes a person who is really an atheist may describe herself, even passionately, as an agnostic because of unreasonable generalised philosophical skepticism which would preclude us from saying that we know anything whatever, except perhaps the truths of mathematics and formal logic.”[53] Consequently, some atheist authors such as Richard Dawkins prefer distinguishing theist, agnostic and atheist positions along a spectrum of theistic probabilitythe likelihood that each assigns to the statement “God exists”.

Before the 18th century, the existence of God was so accepted in the western world that even the possibility of true atheism was questioned. This is called theistic innatismthe notion that all people believe in God from birth; within this view was the connotation that atheists are simply in denial.[55]

There is also a position claiming that atheists are quick to believe in God in times of crisis, that atheists make deathbed conversions, or that “there are no atheists in foxholes”.[56] There have however been examples to the contrary, among them examples of literal “atheists in foxholes”.[57]

Some atheists have doubted the very need for the term “atheism”. In his book Letter to a Christian Nation, Sam Harris wrote:

In fact, “atheism” is a term that should not even exist. No one ever needs to identify himself as a “non-astrologer” or a “non-alchemist”. We do not have words for people who doubt that Elvis is still alive or that aliens have traversed the galaxy only to molest ranchers and their cattle. Atheism is nothing more than the noises reasonable people make in the presence of unjustified religious beliefs.

The source of man’s unhappiness is his ignorance of Nature. The pertinacity with which he clings to blind opinions imbibed in his infancy, which interweave themselves with his existence, the consequent prejudice that warps his mind, that prevents its expansion, that renders him the slave of fiction, appears to doom him to continual error.

The broadest demarcation of atheistic rationale is between practical and theoretical atheism.

In practical or pragmatic atheism, also known as apatheism, individuals live as if there are no gods and explain natural phenomena without reference to any deities. The existence of gods is not rejected, but may be designated unnecessary or useless; gods neither provide purpose to life, nor influence everyday life, according to this view.[60] A form of practical atheism with implications for the scientific community is methodological naturalismthe “tacit adoption or assumption of philosophical naturalism within scientific method with or without fully accepting or believing it.”[61]

Practical atheism can take various forms:

Theoretical (or theoric) atheism explicitly posits arguments against the existence of gods, responding to common theistic arguments such as the argument from design or Pascal’s Wager. Theoretical atheism is mainly an ontology; more precisely, a physical ontology.

Epistemological atheism argues that people cannot know a God or determine the existence of a God. The foundation of epistemological atheism is agnosticism, which takes a variety of forms. In the philosophy of immanence, divinity is inseparable from the world itself, including a person’s mind, and each person’s consciousness is locked in the subject. According to this form of agnosticism, this limitation in perspective prevents any objective inference from belief in a god to assertions of its existence. The rationalistic agnosticism of Kant and the Enlightenment only accepts knowledge deduced with human rationality; this form of atheism holds that gods are not discernible as a matter of principle, and therefore cannot be known to exist. Skepticism, based on the ideas of Hume, asserts that certainty about anything is impossible, so one can never know for sure whether or not a god exists. Hume, however, held that such unobservable metaphysical concepts should be rejected as “sophistry and illusion”.[63] The allocation of agnosticism to atheism is disputed; it can also be regarded as an independent, basic worldview.[60]

Other arguments for atheism that can be classified as epistemological or ontological, including logical positivism and ignosticism, assert the meaninglessness or unintelligibility of basic terms such as “God” and statements such as “God is all-powerful.” Theological noncognitivism holds that the statement “God exists” does not express a proposition, but is nonsensical or cognitively meaningless. It has been argued both ways as to whether such individuals can be classified into some form of atheism or agnosticism. Philosophers A. J. Ayer and Theodore M. Drange reject both categories, stating that both camps accept “God exists” as a proposition; they instead place noncognitivism in its own category.[64][65]

One author writes:

“Metaphysical atheism… includes all doctrines that hold to metaphysical monism (the homogeneity of reality). Metaphysical atheism may be either: a) absolute an explicit denial of God’s existence associated with materialistic monism (all materialistic trends, both in ancient and modern times); b) relative the implicit denial of God in all philosophies that, while they accept the existence of an absolute, conceive of the absolute as not possessing any of the attributes proper to God: transcendence, a personal character or unity. Relative atheism is associated with idealistic monism (pantheism, panentheism, deism).”[66]

Logical atheism holds that the various conceptions of gods, such as the personal god of Christianity, are ascribed logically inconsistent qualities. Such atheists present deductive arguments against the existence of God, which assert the incompatibility between certain traits, such as perfection, creator-status, immutability, omniscience, omnipresence, omnipotence, omnibenevolence, transcendence, personhood (a personal being), nonphysicality, justice, and mercy.[15]

Theodicean atheists believe that the world as they experience it cannot be reconciled with the qualities commonly ascribed to God and gods by theologians. They argue that an omniscient, omnipotent, and omnibenevolent God is not compatible with a world where there is evil and suffering, and where divine love is hidden from many people.[17] A similar argument is attributed to Siddhartha Gautama, the founder of Buddhism.[68]

Philosopher Ludwig Feuerbach[69] and psychoanalyst Sigmund Freud have argued that God and other religious beliefs are human inventions, created to fulfill various psychological and emotional wants or needs. This is also a view of many Buddhists.[70]Karl Marx and Friedrich Engels, influenced by the work of Feuerbach, argued that belief in God and religion are social functions, used by those in power to oppress the working class. According to Mikhail Bakunin, “the idea of God implies the abdication of human reason and justice; it is the most decisive negation of human liberty, and necessarily ends in the enslavement of mankind, in theory and practice.” He reversed Voltaire’s famous aphorism that if God did not exist, it would be necessary to invent him, writing instead that “if God really existed, it would be necessary to abolish him.”[71]

Atheism is acceptable within some religious and spiritual belief systems, including Hinduism, Jainism, Buddhism, Syntheism, Ralism,[72] and Neopagan movements[73] such as Wicca.[74]stika schools in Hinduism hold atheism to be a valid path to moksha, but extremely difficult, for the atheist can not expect any help from the divine on their journey.[75] Jainism believes the universe is eternal and has no need for a creator deity, however Tirthankaras are revered that can transcend space and time [76] and have more power than the god Indra.[77]Secular Buddhism does not advocate belief in gods. Early Buddhism was atheistic as Gautama Buddha’s path involved no mention of gods. Later conceptions of Buddhism consider Buddha himself a god, suggest adherents can attain godhood, and revere Bodhisattvas[78] and Eternal Buddha.

Axiological, or constructive, atheism rejects the existence of gods in favor of a “higher absolute”, such as humanity. This form of atheism favors humanity as the absolute source of ethics and values, and permits individuals to resolve moral problems without resorting to God. Marx and Freud used this argument to convey messages of liberation, full-development, and unfettered happiness.[60] One of the most common criticisms of atheism has been to the contrarythat denying the existence of a god leads to moral relativism, leaving one with no moral or ethical foundation,[79] or renders life meaningless and miserable.[80]Blaise Pascal argued this view in his Penses.[81]

French philosopher Jean-Paul Sartre identified himself as a representative of an “atheist existentialism” concerned less with denying the existence of God than with establishing that “man needs… to find himself again and to understand that nothing can save him from himself, not even a valid proof of the existence of God.” Sartre said a corollary of his atheism was that “if God does not exist, there is at least one being in whom existence precedes essence, a being who exists before he can be defined by any concept, and… this being is man.” The practical consequence of this atheism was described by Sartre as meaning that there are no a priori rules or absolute values that can be invoked to govern human conduct, and that humans are “condemned” to invent these for themselves, making “man” absolutely “responsible for everything he does”.

Sociologist Phil Zuckerman analyzed previous social science research on secularity and non-belief, and concluded that societal well-being is positively correlated with irreligion. He found that there are much lower concentrations of atheism and secularity in poorer, less developed nations (particularly in Africa and South America) than in the richer industrialized democracies.[85][86] His findings relating specifically to atheism in the US were that compared to religious people in the US, “atheists and secular people” are less nationalistic, prejudiced, antisemitic, racist, dogmatic, ethnocentric, closed-minded, and authoritarian, and in US states with the highest percentages of atheists, the murder rate is lower than average. In the most religious states, the murder rate is higher than average.[87][88]

People who self-identify as atheists are often assumed to be irreligious, but some sects within major religions reject the existence of a personal, creator deity.[90] In recent years, certain religious denominations have accumulated a number of openly atheistic followers, such as atheistic or humanistic Judaism[91][92] and Christian atheists.[93][94][95]

The strictest sense of positive atheism does not entail any specific beliefs outside of disbelief in any deity; as such, atheists can hold any number of spiritual beliefs. For the same reason, atheists can hold a wide variety of ethical beliefs, ranging from the moral universalism of humanism, which holds that a moral code should be applied consistently to all humans, to moral nihilism, which holds that morality is meaningless.[96]

Philosophers such as Slavoj iek,[97]Alain de Botton,[98] and Alexander Bard and Jan Sderqvist,[99] have all argued that atheists should reclaim religion as an act of defiance against theism, precisely not to leave religion as an unwarranted monopoly to theists.

According to Plato’s Euthyphro dilemma, the role of the gods in determining right from wrong is either unnecessary or arbitrary. The argument that morality must be derived from God, and cannot exist without a wise creator, has been a persistent feature of political if not so much philosophical debate.[100][101][102] Moral precepts such as “murder is wrong” are seen as divine laws, requiring a divine lawmaker and judge. However, many atheists argue that treating morality legalistically involves a false analogy, and that morality does not depend on a lawmaker in the same way that laws do.[103]Friedrich Nietzsche believed in a morality independent of theistic belief, and stated that morality based upon God “has truth only if God is truthit stands or falls with faith in God.”[104][105][106]

There exist normative ethical systems that do not require principles and rules to be given by a deity. Some include virtue ethics, social contract, Kantian ethics, utilitarianism, and Objectivism. Sam Harris has proposed that moral prescription (ethical rule making) is not just an issue to be explored by philosophy, but that we can meaningfully practice a science of morality. Any such scientific system must, nevertheless, respond to the criticism embodied in the naturalistic fallacy.[107]

Philosophers Susan Neiman[108] and Julian Baggini[109] (among others) assert that behaving ethically only because of divine mandate is not true ethical behavior but merely blind obedience. Baggini argues that atheism is a superior basis for ethics, claiming that a moral basis external to religious imperatives is necessary to evaluate the morality of the imperatives themselvesto be able to discern, for example, that “thou shalt steal” is immoral even if one’s religion instructs itand that atheists, therefore, have the advantage of being more inclined to make such evaluations.[110] The contemporary British political philosopher Martin Cohen has offered the more historically telling example of Biblical injunctions in favour of torture and slavery as evidence of how religious injunctions follow political and social customs, rather than vice versa, but also noted that the same tendency seems to be true of supposedly dispassionate and objective philosophers.[111] Cohen extends this argument in more detail in Political Philosophy from Plato to Mao, where he argues that the Qur’an played a role in perpetuating social codes from the early 7th century despite changes in secular society.[112]

Some prominent atheistsmost recently Christopher Hitchens, Daniel Dennett, Sam Harris and Richard Dawkins, and following such thinkers as Bertrand Russell, Robert G. Ingersoll, Voltaire, and novelist Jos Saramagohave criticized religions, citing harmful aspects of religious practices and doctrines.[113]

The 19th-century German political theorist and sociologist Karl Marx called religion “the sigh of the oppressed creature, the heart of a heartless world, and the soul of soulless conditions. It is the opium of the people”. He goes on to say, “The abolition of religion as the illusory happiness of the people is the demand for their real happiness. To call on them to give up their illusions about their condition is to call on them to give up a condition that requires illusions. The criticism of religion is, therefore, in embryo, the criticism of that vale of tears of which religion is the halo.[114]Lenin said that “every religious idea and every idea of God “is unutterable vileness… of the most dangerous kind, ‘contagion’ of the most abominable kind. Millions of sins, filthy deeds, acts of violence and physical contagions… are far less dangerous than the subtle, spiritual idea of God decked out in the smartest ideological constumes…”[115]

Sam Harris criticises Western religion’s reliance on divine authority as lending itself to authoritarianism and dogmatism. There is a correlation between religious fundamentalism and extrinsic religion (when religion is held because it serves ulterior interests)[117] and authoritarianism, dogmatism, and prejudice.[118] These argumentscombined with historical events that are argued to demonstrate the dangers of religion, such as the Crusades, inquisitions, witch trials, and terrorist attackshave been used in response to claims of beneficial effects of belief in religion.[119] Believers counter-argue that some regimes that espouse atheism, such as in Soviet Russia, have also been guilty of mass murder.[120][121] In response to those claims, atheists such as Sam Harris and Richard Dawkins have stated that Stalin’s atrocities were influenced not by atheism but by dogmatic Marxism, and that while Stalin and Mao happened to be atheists, they did not do their deeds in the name of atheism.[123]

In early ancient Greek, the adjective theos (, from the privative – + “god”) meant “godless”. It was first used as a term of censure roughly meaning “ungodly” or “impious”. In the 5th century BCE, the word began to indicate more deliberate and active godlessness in the sense of “severing relations with the gods” or “denying the gods”. The term (asebs) then came to be applied against those who impiously denied or disrespected the local gods, even if they believed in other gods. Modern translations of classical texts sometimes render theos as “atheistic”. As an abstract noun, there was also (atheots), “atheism”. Cicero transliterated the Greek word into the Latin theos. The term found frequent use in the debate between early Christians and Hellenists, with each side attributing it, in the pejorative sense, to the other.[12]

The term atheist (from Fr. athe), in the sense of “one who… denies the existence of God or gods”,[125] predates atheism in English, being first found as early as 1566,[126] and again in 1571.[127]Atheist as a label of practical godlessness was used at least as early as 1577.[128] The term atheism was derived from the French athisme,[129] and appears in English about 1587.[130] An earlier work, from about 1534, used the term atheonism.[131][132] Related words emerged later: deist in 1621,[133]theist in 1662,[134]deism in 1675,[135] and theism in 1678.[136] At that time “deist” and “deism” already carried their modern meaning. The term theism came to be contrasted with deism.

Karen Armstrong writes that “During the sixteenth and seventeenth centuries, the word ‘atheist’ was still reserved exclusively for polemic… The term ‘atheist’ was an insult. Nobody would have dreamed of calling himself an atheist.”

Atheism was first used to describe a self-avowed belief in late 18th-century Europe, specifically denoting disbelief in the monotheistic Abrahamic god.[137] In the 20th century, globalization contributed to the expansion of the term to refer to disbelief in all deities, though it remains common in Western society to describe atheism as simply “disbelief in God”.

While the earliest-found usage of the term atheism is in 16th-century France,[129][130] ideas that would be recognized today as atheistic are documented from the Vedic period and the classical antiquity.

Atheistic schools are found in early Indian thought and have existed from the times of the historical Vedic religion.[138] Among the six orthodox schools of Hindu philosophy, Samkhya, the oldest philosophical school of thought, does not accept God, and the early Mimamsa also rejected the notion of God.[139] The thoroughly materialistic and anti-theistic philosophical Crvka (also called Nastika or Lokaiata) school that originated in India around the 6th century BCE is probably the most explicitly atheistic school of philosophy in India, similar to the Greek Cyrenaic school. This branch of Indian philosophy is classified as heterodox due to its rejection of the authority of Vedas and hence is not considered part of the six orthodox schools of Hinduism, but it is noteworthy as evidence of a materialistic movement within Hinduism.[140] Chatterjee and Datta explain that our understanding of Crvka philosophy is fragmentary, based largely on criticism of the ideas by other schools, and that it is not a living tradition:

“Though materialism in some form or other has always been present in India, and occasional references are found in the Vedas, the Buddhistic literature, the Epics, as well as in the later philosophical works we do not find any systematic work on materialism, nor any organized school of followers as the other philosophical schools possess. But almost every work of the other schools states, for refutation, the materialistic views. Our knowledge of Indian materialism is chiefly based on these.”[141]

Other Indian philosophies generally regarded as atheistic include Classical Samkhya and Purva Mimamsa. The rejection of a personal creator God is also seen in Jainism and Buddhism in India.[142]

Western atheism has its roots in pre-Socratic Greek philosophy, but did not emerge as a distinct world-view until the late Enlightenment.[143] The 5th-century BCE Greek philosopher Diagoras is known as the “first atheist”,[144] and is cited as such by Cicero in his De Natura Deorum.[145]Atomists such as Democritus attempted to explain the world in a purely materialistic way, without reference to the spiritual or mystical. Critias viewed religion as a human invention used to frighten people into following moral order[146] and Prodicus also appears to have made clear atheistic statements in his work. Philodemus reports that Prodicus believed that “the gods of popular belief do not exist nor do they know, but primitive man, [out of admiration, deified] the fruits of the earth and virtually everything that contributed to his existence”. Protagoras has sometimes been taken to be an atheist but rather espoused agnostic views, commenting that “Concerning the gods I am unable to discover whether they exist or not, or what they are like in form; for there are many hindrances to knowledge, the obscurity of the subject and the brevity of human life.”[147] In the 3rd-century BCE the Greek philosophers Theodorus Cyrenaicus[145][148] and Strato of Lampsacus[149] did not believe gods exist.

Socrates (c. 470399 BCE) was associated in the Athenian public mind with the trends in pre-Socratic philosophy towards naturalistic inquiry and the rejection of divine explanations for phenomena. Although such an interpretation misrepresents his thought he was portrayed in such a way in Aristophanes’ comic play Clouds and was later to be tried and executed for impiety and corrupting the young. At his trial Socrates is reported as vehemently denying that he was an atheist and contemporary scholarship provides little reason to doubt this claim.[150][151]

Euhemerus (c. 300 BCE) published his view that the gods were only the deified rulers, conquerors and founders of the past, and that their cults and religions were in essence the continuation of vanished kingdoms and earlier political structures.[152] Although not strictly an atheist, Euhemerus was later criticized for having “spread atheism over the whole inhabited earth by obliterating the gods”.[153]

Also important in the history of atheism was Epicurus (c. 300 BCE). Drawing on the ideas of Democritus and the Atomists, he espoused a materialistic philosophy according to which the universe was governed by the laws of chance without the need for divine intervention (see scientific determinism). Although he stated that deities existed, he believed that they were uninterested in human existence. The aim of the Epicureans was to attain peace of mind and one important way of doing this was by exposing fear of divine wrath as irrational. The Epicureans also denied the existence of an afterlife and the need to fear divine punishment after death.[154]

The Roman philosopher Sextus Empiricus held that one should suspend judgment about virtually all beliefsa form of skepticism known as Pyrrhonismthat nothing was inherently evil, and that ataraxia (“peace of mind”) is attainable by withholding one’s judgment. His relatively large volume of surviving works had a lasting influence on later philosophers.[155]

The meaning of “atheist” changed over the course of classical antiquity. The early Christians were labeled atheists by non-Christians because of their disbelief in pagan gods.[156] During the Roman Empire, Christians were executed for their rejection of the Roman gods in general and Emperor-worship in particular. When Christianity became the state religion of Rome under Theodosius I in 381, heresy became a punishable offense.[157]

During the Early Middle Ages, the Islamic world underwent a Golden Age. With the associated advances in science and philosophy, Arab and Persian lands produced outspoken rationalists and atheists, including Muhammad al Warraq (fl. 7th century), Ibn al-Rawandi (827911), Al-Razi (854925), and Al-Maarri (9731058). Al-Ma’arri wrote and taught that religion itself was a “fable invented by the ancients”[158] and that humans were “of two sorts: those with brains, but no religion, and those with religion, but no brains.”[159] Despite being relatively prolific writers, nearly none of their writing survives to the modern day, most of what little remains being preserved through quotations and excerpts in later works by Muslim apologists attempting to refute them.[160] Other prominent Golden Age scholars have been associated with rationalist thought and atheism as well, although the current intellectual atmosphere in the Islamic world, and the scant evidence that survives from the era, make this point a contentious one today.

In Europe, the espousal of atheistic views was rare during the Early Middle Ages and Middle Ages (see Medieval Inquisition); metaphysics and theology were the dominant interests pertaining to religion.[161] There were, however, movements within this period that furthered heterodox conceptions of the Christian god, including differing views of the nature, transcendence, and knowability of God. Individuals and groups such as Johannes Scotus Eriugena, David of Dinant, Amalric of Bena, and the Brethren of the Free Spirit maintained Christian viewpoints with pantheistic tendencies. Nicholas of Cusa held to a form of fideism he called docta ignorantia (“learned ignorance”), asserting that God is beyond human categorization, and thus our knowledge of him is limited to conjecture. William of Ockham inspired anti-metaphysical tendencies with his nominalistic limitation of human knowledge to singular objects, and asserted that the divine essence could not be intuitively or rationally apprehended by human intellect. Followers of Ockham, such as John of Mirecourt and Nicholas of Autrecourt furthered this view. The resulting division between faith and reason influenced later radical and reformist theologians such as John Wycliffe, Jan Hus, and Martin Luther.[161]

The Renaissance did much to expand the scope of free thought and skeptical inquiry. Individuals such as Leonardo da Vinci sought experimentation as a means of explanation, and opposed arguments from religious authority. Other critics of religion and the Church during this time included Niccol Machiavelli, Bonaventure des Priers, Michel de Montaigne, and Franois Rabelais.[155]

Historian Geoffrey Blainey wrote that the Reformation had paved the way for atheists by attacking the authority of the Catholic Church, which in turn “quietly inspired other thinkers to attack the authority of the new Protestant churches”.[162]Deism gained influence in France, Prussia, and England. The philosopher Baruch Spinoza was “probably the first well known ‘semi-atheist’ to announce himself in a Christian land in the modern era”, according to Blainey. Spinoza believed that natural laws explained the workings of the universe. In 1661 he published his Short Treatise on God.[163]

Criticism of Christianity became increasingly frequent in the 17th and 18th centuries, especially in France and England, where there appears to have been a religious malaise, according to contemporary sources. Some Protestant thinkers, such as Thomas Hobbes, espoused a materialist philosophy and skepticism toward supernatural occurrences, while Spinoza rejected divine providence in favour of a panentheistic naturalism. By the late 17th century, deism came to be openly espoused by intellectuals such as John Toland who coined the term “pantheist”.[164]

The first known explicit atheist was the German critic of religion Matthias Knutzen in his three writings of 1674.[165] He was followed by two other explicit atheist writers, the Polish ex-Jesuit philosopher Kazimierz yszczyski and in the 1720s by the French priest Jean Meslier.[166] In the course of the 18th century, other openly atheistic thinkers followed, such as Baron d’Holbach, Jacques-Andr Naigeon, and other French materialists.[167]John Locke in contrast, though an advocate of tolerance, urged authorities not to tolerate atheism, believing that the denial of God’s existence would undermine the social order and lead to chaos.[168]

The philosopher David Hume developed a skeptical epistemology grounded in empiricism, and Immanuel Kant’s philosophy has strongly questioned the very possibility of a metaphysical knowledge. Both philosophers undermined the metaphysical basis of natural theology and criticized classical arguments for the existence of God.

Blainey notes that, although Voltaire is widely considered to have strongly contributed to atheistic thinking during the Revolution, he also considered fear of God to have discouraged further disorder, having said “If God did not exist, it would be necessary to invent him.”[169] In Reflections on the Revolution in France (1790), the philosopher Edmund Burke denounced atheism, writing of a “literary cabal” who had “some years ago formed something like a regular plan for the destruction of the Christian religion. This object they pursued with a degree of zeal which hitherto had been discovered only in the propagators of some system of piety… These atheistical fathers have a bigotry of their own…”. But, Burke asserted, “man is by his constitution a religious animal” and “atheism is against, not only our reason, but our instincts; and… it cannot prevail long”.[170]

Baron d’Holbach was a prominent figure in the French Enlightenment who is best known for his atheism and for his voluminous writings against religion, the most famous of them being The System of Nature (1770) but also Christianity Unveiled. One goal of the French Revolution was a restructuring and subordination of the clergy with respect to the state through the Civil Constitution of the Clergy. Attempts to enforce it led to anti-clerical violence and the expulsion of many clergy from France, lasting until the Thermidorian Reaction. The radical Jacobins seized power in 1793, ushering in the Reign of Terror. The Jacobins were deists and introduced the Cult of the Supreme Being as a new French state religion. Some atheists surrounding Jacques Hbert instead sought to establish a Cult of Reason, a form of atheistic pseudo-religion with a goddess personifying reason. The Napoleonic era further institutionalized the secularization of French society.

In the latter half of the 19th century, atheism rose to prominence under the influence of rationalistic and freethinking philosophers. Many prominent German philosophers of this era denied the existence of deities and were critical of religion, including Ludwig Feuerbach, Arthur Schopenhauer, Max Stirner, Karl Marx, and Friedrich Nietzsche.[171]

G.J. Holyoake was the last person (1842) imprisoned in Great Britain due to atheist beliefs.[172]Stephen Law states that Holyoake “first coined the term ‘secularism'”.[173]

Atheism in the 20th century, particularly in the form of practical atheism, advanced in many societies. Atheistic thought found recognition in a wide variety of other, broader philosophies, such as existentialism, objectivism, secular humanism, nihilism, anarchism, logical positivism, Marxism, feminism,[174] and the general scientific and rationalist movement.

In addition, state atheism emerged in Eastern Europe and Asia during that period, particularly in the Soviet Union under Vladimir Lenin and Joseph Stalin, and in Communist China under Mao Zedong. Atheist and anti-religious policies in the Soviet Union included numerous legislative acts, the outlawing of religious instruction in the schools, and the emergence of the League of Militant Atheists.[175][176] After Mao, the Chinese Communist Party remains an atheist organization, and regulates, but does not completely forbid, the practice of religion in mainland China.[177][178][179]

While Geoffrey Blainey has written that “the most ruthless leaders in the Second World War were atheists and secularists who were intensely hostile to both Judaism and Christianity”,[180] Richard Madsen has pointed out that Hitler and Stalin each opened and closed churches as a matter of political expedience, and Stalin softened his opposition to Christianity in order to improve public acceptance of his regime during the war.[181] Blackford and Schklenk have written that “the Soviet Union was undeniably an atheist state, and the same applies to Maoist China and Pol Pot’s fanatical Khmer Rouge regime in Cambodia in the 1970s. That does not, however, show that the atrocities committed by these totalitarian dictatorships were the result of atheist beliefs, carried out in the name of atheism, or caused primarily by the atheistic aspects of the relevant forms of communism.”[182]

Logical positivism and scientism paved the way for neopositivism, analytical philosophy, structuralism, and naturalism. Neopositivism and analytical philosophy discarded classical rationalism and metaphysics in favor of strict empiricism and epistemological nominalism. Proponents such as Bertrand Russell emphatically rejected belief in God. In his early work, Ludwig Wittgenstein attempted to separate metaphysical and supernatural language from rational discourse. A. J. Ayer asserted the unverifiability and meaninglessness of religious statements, citing his adherence to the empirical sciences. Relatedly the applied structuralism of Lvi-Strauss sourced religious language to the human subconscious in denying its transcendental meaning. J. N. Findlay and J. J. C. Smart argued that the existence of God is not logically necessary. Naturalists and materialistic monists such as John Dewey considered the natural world to be the basis of everything, denying the existence of God or immortality.[53][183]

Other leaders like Periyar E. V. Ramasamy, a prominent atheist leader of India, fought against Hinduism and Brahmins for discriminating and dividing people in the name of caste and religion.[184] This was highlighted in 1956 when he arranged for the erection of a statue depicting a Hindu god in a humble representation and made antitheistic statements.[185]

Atheist Vashti McCollum was the plaintiff in a landmark 1948 Supreme Court case that struck down religious education in US public schools.[186]Madalyn Murray O’Hair was perhaps one of the most influential American atheists; she brought forth the 1963 Supreme Court case Murray v. Curlett which banned compulsory prayer in public schools.[187] In 1966, Time magazine asked “Is God Dead?”[188] in response to the Death of God theological movement, citing the estimation that nearly half of all people in the world lived under an anti-religious power, and millions more in Africa, Asia, and South America seemed to lack knowledge of the Christian view of theology.[189] The Freedom From Religion Foundation was co-founded by Anne Nicol Gaylor and her daughter, Annie Laurie Gaylor, in 1976 in the United States, and incorporated nationally in 1978. It promotes the separation of church and state.[190][191]

Since the fall of the Berlin Wall, the number of actively anti-religious regimes has reduced considerably. In 2006, Timothy Shah of the Pew Forum noted “a worldwide trend across all major religious groups, in which God-based and faith-based movements in general are experiencing increasing confidence and influence vis–vis secular movements and ideologies.”[192] However, Gregory S. Paul and Phil Zuckerman consider this a myth and suggest that the actual situation is much more complex and nuanced.[193]

A 2010 survey found that those identifying themselves as atheists or agnostics are on average more knowledgeable about religion than followers of major faiths. Nonbelievers scored better on questions about tenets central to Protestant and Catholic faiths. Only Mormon and Jewish faithful scored as well as atheists and agnostics.[194]

In 2012, the first “Women in Secularism” conference was held in Arlington, Virginia.[195] Secular Woman was organized in 2012 as a national organization focused on nonreligious women.[196] The atheist feminist movement has also become increasingly focused on fighting sexism and sexual harassment within the atheist movement itself.[197] In August 2012, Jennifer McCreight (the organizer of Boobquake) founded a movement within atheism known as Atheism Plus, or A+, that “applies skepticism to everything, including social issues like sexism, racism, politics, poverty, and crime”.[198][199][200]

In 2013 the first atheist monument on American government property was unveiled at the Bradford County Courthouse in Florida: a 1,500-pound granite bench and plinth inscribed with quotes by Thomas Jefferson, Benjamin Franklin, and Madalyn Murray O’Hair.[201][202]

New Atheism is the name given to a movement among some early-21st-century atheist writers who have advocated the view that “religion should not simply be tolerated but should be countered, criticized, and exposed by rational argument wherever its influence arises.”[203] The movement is commonly associated with Sam Harris, Daniel C. Dennett, Richard Dawkins, Victor J. Stenger, and Christopher Hitchens.[204] Several best-selling books by these authors, published between 2004 and 2007, form the basis for much of the discussion of New Atheism.

These atheists generally seek to disassociate themselves from the mass political atheism that gained ascendency in various nations in the 20th century. In best selling books, the religiously motivated terrorist events of 9/11 and the partially successful attempts of the Discovery Institute to change the American science curriculum to include creationist ideas, together with support for those ideas from George W. Bush in 2005, have been cited by authors such as Harris, Dennett, Dawkins, Stenger, and Hitchens as evidence of a need to move society towards atheism.[206]

It is difficult to quantify the number of atheists in the world. Respondents to religious-belief polls may define “atheism” differently or draw different distinctions between atheism, non-religious beliefs, and non-theistic religious and spiritual beliefs.[207] A Hindu atheist would declare oneself as a Hindu, although also being an atheist at the same time.[208] A 2010 survey published in Encyclopdia Britannica found that the non-religious made up about 9.6% of the world’s population, and atheists about 2.0%, with a very large majority based in Asia. This figure did not include those who follow atheistic religions, such as some Buddhists.[209] The average annual change for atheism from 2000 to 2010 was 0.17%.[209] A broad figure estimates the number of atheists and agnostics on Earth at 1.1 billion.[210]

According to global studies done by Gallup International, 13% of respondents were “convinced atheists” in 2012 and 11% were “convinced atheists” in 2015.[24][211] As of 2012, the top ten countries with people who viewed themselves as “convinced atheists” were China (47%), Japan (31%), the Czech Republic (30%), France (29%), South Korea (15%), Germany (15%), Netherlands (14%), Austria (10%), Iceland (10%), Australia (10%), and the Republic of Ireland (10%) [212]

According to the 2010 Eurobarometer Poll, the percentage of those polled who agreed with the statement “you don’t believe there is any sort of spirit, God or life force” varied from: France (40%), Czech Republic (37%), Sweden (34%), Netherlands (30%), and Estonia (29%), down to Poland (5%), Greece (4%), Cyprus (3%), Malta (2%), and Romania (1%), with the European Union as a whole at 20%.[28] In a 2012 Eurobarometer poll on discrimination in the European Union, 16% of those polled considered themselves non believers/agnostics and 7% considered themselves atheists.[214] According to the Australian Bureau of Statistics, 22% of Australians have “no religion”, a category that includes atheists.[215]

According to a Pew Research Center survey in 2012 religiously unaffiliated (including agnostics and atheists) make up about 18% of Europeans.[216] According to the same survey, the religiously unaffiliated are the majority of the population only in two European countries: Czech Republic (75%) and Estonia (60%).[216] There are another four countries where the unaffiliated make up a majority of the population: North Korea (71%), Japan (57%), Hong Kong (56%), and China (52%).[216]

In the US, there was a 1% to 5% increase in self-reported atheism from 2005 to 2012, and a larger drop in those who self-identified as “religious”, down by 13%, from 73% to 60%.[217] According to the World Values Survey, 4.4% of Americans self-identified as atheists in 2014.[218] However, the same survey showed that 11.1% of all respondents stated “no” when asked if they believed in God.[218] In 1984, these same figures were 1.1% and 2.2%, respectively. According to a 2015 report by the Pew Research Center, 3.1% of the US adult population identify as atheist, up from 1.6% in 2007, and within the religiously unaffiliated (or “no religion”) demographic, atheists made up 13.6%.[219] According to the 2015 General Sociological Survey the number of atheists and agnostics in the US has remained relatively flat in the past 23 years since in 1991 only 2% identified as atheist and 4% identified as agnostic and in 2014 only 3% identified as atheists and 5% identified as agnostics.[220]

A study noted positive correlations between levels of education and secularism, including atheism, in America.[87] According to evolutionary psychologist Nigel Barber, atheism blossoms in places where most people feel economically secure, particularly in the social democracies of Europe, as there is less uncertainty about the future with extensive social safety nets and better health care resulting in a greater quality of life and higher life expectancy. By contrast, in underdeveloped countries, there are virtually no atheists.[221] In a 2008 study, researchers found intelligence to be negatively related to religious belief in Europe and the United States. In a sample of 137 countries, the correlation between national IQ and disbelief in God was found to be 0.60.[222]

Links to related articles

Link:

Atheism – Wikipedia, the free encyclopedia

 Posted by at 10:44 am  Tagged with:

History of atheism – Wikipedia, the free encyclopedia

 Atheism  Comments Off on History of atheism – Wikipedia, the free encyclopedia
Jan 202016
 

Atheism (derived from the Ancient Greek atheos meaning “without gods; godless; secular; denying or disdaining the gods, especially officially sanctioned gods”[1]) is the absence or rejection of the belief that deities exist. The English term was used at least as early as the sixteenth century and atheistic ideas and their influence have a longer history. Over the centuries, atheists have supported their lack of belief in gods through a variety of avenues, including scientific, philosophical and ideological notions.

Philosophical atheist thought began to appear in Europe and Asia in the sixth or fifth century BCE. Will Durant explains that certain pygmy tribes found in Africa were observed to have no identifiable cults or rites. There were no totems, no deities, and no spirits. Their dead were buried without special ceremonies or accompanying items and received no further attention. They even appeared to lack simple superstitions, according to travelers’ reports.[citation needed] The Vedas of Ceylon[clarification needed] only admitted the possibility that deities might exist, but went no further. Neither prayers nor sacrifices were suggested in any way.[citation needed]

In the East, a contemplative life not centered on the idea of deities began in the sixth century BCE with the rise of Jainism, Buddhism, and certain sects of Hinduism in India, and of Taoism in China. These religions claim to offer a philosophic and salvific path not involving on deity worship. Deities are not seen as necessary to the salvific goal of the early Buddhist tradition, their reality is explicitly questioned and refuted there is a fundamental incompatibility between the notion of gods and basic Buddhist principles.[2]

Within the astika (“orthodox”) schools of Hindu philosophy, the Samkhya and the early Mimamsa school did not accept a creator-deity in their respective systems.

The principal text of the Samkhya school, the Samkhya Karika, was written by Ishvara Krishna in the fourth century CE, by which time it was already a dominant Hindu school. The origins of the school are much older and are lost in legend. The school was both dualistic and atheistic. They believed in a dual existence of Prakriti (“nature”) and Purusha (“spirit”) and had no place for an Ishvara (“God”) in its system, arguing that the existence of Ishvara cannot be proved and hence cannot be admitted to exist. The school dominated Hindu philosophy in its day, but declined after the tenth century, although commentaries were still being written as late as the sixteenth century.

The foundational text for the Mimamsa school is the Purva Mimamsa Sutras of Jaimini (c. third to first century BCE). The school reached its height c. 700 CE, and for some time in the Early Middle Ages exerted near-dominant influence on learned Hindu thought. The Mimamsa school saw their primary enquiry was into the nature of dharma based on close interpretation of the Vedas. Its core tenets were ritualism (orthopraxy), anti-asceticism and anti-mysticism. The early Mimamsakas believed in an adrishta (“unseen”) that is the result of performing karmas (“works”) and saw no need for an Ishvara (“God”) in their system. Mimamsa persists in some subschools of Hinduism today.

Jains see their tradition as eternal. Organized Jainism can be dated back to Parshva who lived in the ninth century BCE, and, more reliably, to Mahavira, a teacher of the sixth century BCE, and a contemporary of the Buddha. Jainism is a dualistic religion with the universe made up of matter and souls. The universe, and the matter and souls within it, is eternal and uncreated, and there is no omnipotent creator deity in Jainism. There are, however, “gods” and other spirits who exist within the universe and Jains believe that the soul can attain “godhood”, however none of these supernatural beings exercise any sort of creative activity or have the capacity or ability to intervene in answers to prayers.

The thoroughly materialistic and anti-religious philosophical Crvka school that originated in India with the Brhaspatya-stras (final centuries BCE) is probably the most explicitly atheist school of philosophy in the region. The school grew out of the generic skepticism in the Mauryan period. Already in the sixth century BCE, Ajita Kesakambalin, was quoted in Pali scriptures by the Buddhists with whom he was debating, teaching that “with the break-up of the body, the wise and the foolish alike are annihilated, destroyed. They do not exist after death.”[3] Crvkan philosophy is now known principally from its Astika and Buddhist opponents. The proper aim of a Crvkan, according to these sources, was to live a prosperous, happy, productive life in this world. The Tattvopaplavasimha of Jayarashi Bhatta (c. eighth century) is sometimes cited as a surviving Carvaka text. The school appears to have died out sometime around the fifteenth century.

The non-adherence[4] to the notion of a supreme deity or a prime mover is seen by many as a key distinction between Buddhism and other religions. While Buddhist traditions do not deny the existence of supernatural beings (many are discussed in Buddhist scripture), it does not ascribe powers, in the typical Western sense, for creation, salvation or judgement, to the “gods”, however, praying to enlightened deities is sometimes seen as leading to some degree of spiritual merit.

Buddhists accept the existence of beings in higher realms, known as devas, but they, like humans, are said to be suffering in samsara,[5] and not particularly wiser than we are. In fact the Buddha is often portrayed as a teacher of the deities,[6] and superior to them.[7] Despite this they do have some enlightened Devas in the path of buddhahood.

In later Mahayana literature, however, the idea of an eternal, all-pervading, all-knowing, immaculate, uncreated, and deathless Ground of Being (the dharmadhatu, inherently linked to the sattvadhatu, the realm of beings), which is the Awakened Mind (bodhicitta) or dharmakaya (“body of Truth”) of the Buddha himself, is attributed to the Buddha in a number of Mahayana sutras, and is found in various tantras as well. In some Mahayana texts, such a principle is occasionally presented as manifesting in a more personalised form as a primordial Buddha, such as Samantabhadra, Vajradhara, Vairochana, Amitabha, and Adi-Buddha, among others.

In western Classical antiquity, theism was the fundamental belief that supported the legitimacy of the state (Polis, later the Roman Empire). Historically, any person who did not believe in any deity supported by the state was fair game to accusations of atheism, a capital crime. For political reasons, Socrates in Athens (399 BCE) was accused of being atheos (“refusing to acknowledge the gods recognized by the state”). Christians in Rome were also considered subversive to the state religion and persecuted as atheists.[8] Thus, charges of atheism, meaning the subversion of religion, were often used similarly to charges of heresy and impiety as a political tool to eliminate enemies.

The roots of Western philosophy began in the Greek world in the sixth century BCE. The first Hellenic philosophers were not atheists, but they attempted to explain the world in terms of the processes of nature instead of by mythological accounts. Thus lightning was the result of “wind breaking out and parting the clouds”,[9] and earthquakes occurred when “the earth is considerably altered by heating and cooling”.[10] The early philosophers often criticised traditional religious notions. Xenophanes (sixth century BCE) famously said that if cows and horses had hands, “then horses would draw the forms of gods like horses, and cows like cows”.[11] Another philosopher, Anaxagoras (fifth century BCE), claimed that the Sun was “a fiery mass, larger than the Peloponnese”; a charge of impiety was brought against him, and he was forced to flee Athens.[12]

The first fully materialistic philosophy was produced by the atomists Leucippus and Democritus (fifth century BCE), who attempted to explain the formation and development of the world in terms of the chance movements of atoms moving in infinite space.

Euripides (480406 BCE), in his play Bellerophon, had the eponymous main character say:

Doth some one say that there be gods above? There are not; no, there are not. Let no fool, Led by the old false fable, thus deceive you.[13]

Aristophanes (ca. 448380 BCE), known for his satirical style, wrote in his play The Knights: “Shrines! Shrines! Surely you don’t believe in the gods. What’s your argument? Where’s your proof?”[14]

In the fifth century BCE the Sophists began to question many of the traditional assumptions of Greek culture. Prodicus of Ceos was said to have believed that “it was the things which were serviceable to human life that had been regarded as gods,”[15] and Protagoras stated at the beginning of a book that “With regard to the gods I am unable to say either that they exist or do not exist.”[16]

Diagoras of Melos (fifth century BCE) is known as the “first atheist”. He blasphemed by making public the Eleusinian Mysteries and discouraging people from being initiated.[17] Somewhat later (c. 300 BCE), the Cyrenaic philosopher Theodorus of Cyrene is supposed to have denied that gods exist, and wrote a book On the Gods expounding his views.

Euhemerus (c. 330260 BCE) published his view that the gods were only the deified rulers, conquerors, and founders of the past, and that their cults and religions were in essence the continuation of vanished kingdoms and earlier political structures.[18] Although Euhemerus was later criticized for having “spread atheism over the whole inhabited earth by obliterating the gods”,[19] his worldview was not atheist in a strict and theoretical sense, because he differentiated that the primordial deities were “eternal and imperishable”.[20] Some historians have argued that he merely aimed at reinventing the old religions in the light of the beginning of deification of political rulers such as Alexander the Great.[21] Euhemerus’ work was translated into Latin by Ennius, possibly to mythographically pave the way for the planned divinization of Scipio Africanus in Rome.[22]

Also important in the history of atheism was Epicurus (c. 300 BCE). Drawing on the ideas of Democritus and the Atomists, he espoused a materialistic philosophy where the universe was governed by the laws of chance without the need for divine intervention. Although he stated that deities existed, he believed that they were uninterested in human existence. The aim of the Epicureans was to attain peace of mind by exposing fear of divine wrath as irrational.

One of the most eloquent expressions of Epicurean thought is Lucretius’ On the Nature of Things (first century BCE) in which he held that gods exist but argued that religious fear was one of the chief causes of human unhappiness and that the gods did not involve themselves in the world.[23][24]

The Epicureans also denied the existence of an afterlife.[25]

Epicureans were not persecuted, but their teachings were controversial, and were harshly attacked by the mainstream schools of Stoicism and Neoplatonism. The movement remained marginal, and gradually died out at the end of the Roman Empire.

In medieval Islam, Muslim scholars recognized the idea of atheism, and frequently attacked unbelievers, although they were unable to name any atheists.[26] When individuals were accused of atheism, they were usually viewed as heretics rather than proponents of atheism.[27] However, outspoken rationalists and atheists existed, one notable figure being the ninth-century scholar Ibn al-Rawandi, who criticized the notion of religious prophecy, including that of Muhammad, and maintained that religious dogmas were not acceptable to reason and must be rejected.[28] Other critics of religion in the Islamic world include the physician and philosopher Abu Bakr al-Razi (865925), the poet Al-Maarri (9731057), and the scholar Abu Isa al-Warraq (fl. 7th century). Al-Maarri, for example, wrote and taught that religion itself was a “fable invented by the ancients”[29] and that humans were “of two sorts: those with brains, but no religion, and those with religion, but no brains.”[30]

In the European Middle Ages, no clear expression of atheism is known. The titular character of the Icelandic saga Hrafnkell, written in the late thirteenth century, says that I think it is folly to have faith in gods. After his temple to Freyr is burnt and he is enslaved, he vows never to perform another sacrifice, a position described in the sagas as golauss “godless”. Jacob Grimm in his Teutonic Mythology observes that

It is remarkable that Old Norse legend occasionally mentions certain men who, turning away in utter disgust and doubt from the heathen faith, placed their reliance on their own strength and virtue. Thus in the Slar lio 17 we read of Vbogi and Rdey sik au tru, “in themselves they trusted”,[31]

citing several other examples, including two kings.

In Christian Europe, people were persecuted for heresy, especially in countries where the Inquisition was active. Thomas Aquinas’ five proofs of God’s existence and Anselm’s ontological argument implicitly acknowledged the validity of the question about God’s existence.[original research?]Frederick Copleston, however, explains that Thomas laid out his proofs not to counter atheism, but to address certain early Christian writers such as John of Damascus, who asserted that knowledge of God’s existence was naturally innate in man, based on his natural desire for happiness.[32] Thomas stated that although there is desire for happiness which forms the basis for a proof of God’s existence in man, further reflection is required to understand that this desire is only fulfilled in God, not for example in wealth or sensual pleasure.[32]

The charge of atheism was used to attack political or religious opponents. Pope Boniface VIII, because he insisted on the political supremacy of the church, was accused by his enemies after his death of holding (unlikely) atheistic positions such as “neither believing in the immortality nor incorruptibility of the soul, nor in a life to come.”[33]

During the time of the Renaissance and the Reformation, criticism of the religious establishment became more frequent in predominantly Christian countries, but did not amount to atheism, per se.

The term athisme was coined in France in the sixteenth century. The word “atheist” appears in English books at least as early as 1566.[34] The concept of atheism re-emerged initially as a reaction to the intellectual and religious turmoil of the Age of Enlightenment and the Reformation as a charge used by those who saw the denial of god and godlessness in the controversial positions being put forward by others. During the sixteenth and seventeenth centuries, the word ‘atheist’ was used exclusively as an insult; nobody wanted to be regarded as an atheist.[35] Although one overtly atheistic compendium known as the Theophrastus redivivus was published by an anonymous author in the seventeenth century, atheism was an epithet implying a lack of moral restraint.[36]

According to Geoffrey Blainey, the Reformation in Europe had paved the way for atheists by attacking the authority of the Catholic Church, which in turn “quietly inspired other thinkers to attack the authority of the new Protestant churches”. Deism gained influence in France, Prussia and England, and proffered belief in a non-interventionist deity, but “while some deists were atheists in disguise, most were religious, and by today’s standards would be called true believers”. The scientific and mathematical discoveries of such as Copernicus, Newton and Descartes sketched a pattern of natural laws that lent weight to this new outlook[37] Blainey wrote that the Dutch philosopher Baruch Spinoza was “probably the first well known ‘semi-atheist’ to announce himself in a Christian land in the modern era”. Spinoza had been expelled from his synagogue for his protests against the teachings of its rabbis and for failing to attend Saturday services. He believed that God did not interfere in the running of the world, but rather that natural laws explained the workings of the universe. In 1661 he published his Short Treatise on God, but he was not a popular figure for the first century following his death: “An unbeliever was expected to be a rebel in almost everything and wicked in all his ways”, wrote Blainey, “but here was a virtuous one. He lived the good life and made his living in a useful way… It took courage to be a Spinoza or even one of his supporters. If a handful of scholars agreed with his writings, they did not so say in public.”[38]

How dangerous it was to be accused of being an atheist at this time is illustrated by the examples of tienne Dolet who was strangled and burned in 1546, and Giulio Cesare Vanini who received a similar fate in 1619. In 1689 the Polish nobleman Kazimierz yszczyski, who had denied the existence of God in his philosophical treatise De non existentia Dei, was imprisoned unlawfully; despite Warsaw Confederation tradition and king Sobieski’s intercession, yszczyski was condemned to death for atheism and beheaded in Warsaw after his tongue was pulled out with a burning iron and his hands slowly burned. Similarly in 1766, the French nobleman Franois-Jean de la Barre, was tortured, beheaded, and his body burned for alleged vandalism of a crucifix, a case that became a cause clbre because Voltaire tried unsuccessfully to have the judgment reversed.

The English philosopher Thomas Hobbes (15881679) was also accused of atheism, but he denied it. His theism was unusual, in that he held god to be material. Even earlier, the British playwright and poet Christopher Marlowe (15631593) was accused of atheism when a tract denying the divinity of Christ was found in his home. Before he could finish defending himself against the charge, Marlowe was murdered.

In early modern times, the first explicit atheist known by name was the German-languaged Danish critic of religion Matthias Knutzen (1646after 1674), who published three atheist writings in 1674.[39]

Kazimierz yszczyski, a Polish philosopher (executed in 1689, following a hasty and controversial trial pressed by the Catholic Church) demonstrated strong atheism in his work De non existentia Dei:

II – the Man is a creator of God, and God is a concept and creation of a Man. Hence the people are architects and engineers of God and God is not a true being, but a being existing only within mind, being chimaeric by its nature, because a God and a chimaera are the same.[40]

IV – simple folk are cheated by the more cunning with the fabrication of God for their own oppression; whereas the same oppression is shielded by the folk in a way, that if the wise attempted to free them by the truth, they would be quelled by the very people.[41][42]

While not gaining converts from large portions of the population, versions of deism became influential in certain intellectual circles. Jean Jacques Rousseau challenged the Christian notion that human beings had been tainted by sin since the Garden of Eden, and instead proposed that humans were originally good, only later to be corrupted by civilisation. The influential figure of Voltaire, spread deistic notions of to a wide audience. “After the French Revolution and its outbursts of atheism, Voltaire was widely condemned as one of the causes”, wrote Blainey, “Nonetheless, his writings did concede that fear of God was an essential policeman in a disorderly world: ‘If God did not exist, it would be necessary to invent him’, wrote Voltaire”.[43]

Arguably the first book in modern times solely dedicated to promoting atheism was written by French Catholic priest Jean Meslier (16641729), whose posthumously published lengthy philosophical essay (part of the original title: Thoughts and Feelings of Jean Meslier … Clear and Evident Demonstrations of the Vanity and Falsity of All the Religions of the World[44]) rejects the concept of god (both in the Christian and also in the Deistic sense), the soul, miracles and the discipline of theology.[45] Philosopher Michel Onfray states that Meslier’s work marks the beginning of “the history of true atheism”.[45]

By the 1770s, atheism in some predominantly Christian countries was ceasing to be a dangerous accusation that required denial, and was evolving into a position openly avowed by some. The first open denial of the existence of God and avowal of atheism since classical times may be that of Baron d’Holbach (17231789) in his 1770 work, The System of Nature. D’Holbach was a Parisian social figure who conducted a famous salon widely attended by many intellectual notables of the day, including Denis Diderot, Jean-Jacques Rousseau, David Hume, Adam Smith, and Benjamin Franklin. Nevertheless, his book was published under a pseudonym, and was banned and publicly burned by the Executioner.[citation needed] Diderot, one of the Enlightenment’s most prominent philosophes, and editor-in-chief of the Encyclopdie, which sought to challenge religious, particularly Catholic, dogma said, “Reason is to the estimation of the philosophe what grace is to the Christian”, he wrote. “Grace determines the Christian’s action; reason the philosophe’s”.[46] Diderot was briefly imprisoned for his writing, some of which was banned and burned.[citation needed]

In Scotland, David Hume produced a six volume history of England in 1754, which gave little attention to God. He implied that if God existed he was impotent in the face of European upheaval. Hume ridiculed miracles, but walked a careful line so as to avoid being too dismissive of Christianity. With Hume’s presence, Edinburgh gained a reputation as a “haven of atheism”, alarming many ordinary Britons.[47]

The culte de la Raison developed during the uncertain period 179294 (Years I and III of the Revolution), following the September Massacres, when Revolutionary France was ripe with fears of internal and foreign enemies. Several Parisian churches were transformed into Temples of Reason, notably the Church of Saint-Paul Saint-Louis in the Marais. The churches were closed in May 1793 and more securely, 24 November 1793, when the Catholic Mass was forbidden.

Blainey wrote that “atheism seized the pedestal in revolutionary France in the 1790s. The secular symbols replaced the cross. In the cathedral of Notre Dame the altar, the holy place, was converted into a monument to Reason…” During the Terror of 1792-93, France’s Christian calendar was abolished, monasteries, convents and church properties were seized and monks and nuns expelled. Historic churches were dismantled.[48] The Cult of Reason was a creed based on atheism devised during the French Revolution by Jacques Hbert, Pierre Gaspard Chaumette, and their supporters. It was stopped by Maximilien Robespierre, a Deist, who instituted the Cult of the Supreme Being.[49] Both cults were the outcome of the “de-Christianization” of French society during the Revolution and part of the Reign of Terror.

The Cult of Reason was celebrated in a carnival atmosphere of parades, ransacking of churches, ceremonious iconoclasm, in which religious and royal images were defaced, and ceremonies which substituted the “martyrs of the Revolution” for Christian martyrs. The earliest public demonstrations took place en province, outside Paris, notably by Hbertists in Lyon, but took a further radical turn with the Fte de la Libert (“Festival of Liberty”) at Notre Dame de Paris, 10 November (20 Brumaire) 1793, in ceremonies devised and organised by Pierre-Gaspard Chaumette.

The pamphlet Answer to Dr. Priestley’s Letters to a Philosophical Unbeliever (1782) is considered to be the first published declaration of atheism in Britain plausibly the first in English (as distinct from covert or cryptically atheist works). The otherwise unknown ‘William Hammon’ (possibly a pseudonym) signed the preface and postscript as editor of the work, and the anonymous main text is attributed to Matthew Turner (d. 1788?), a Liverpool physician who may have known Priestley. Historian of atheism David Berman has argued strongly for Turner’s authorship, but also suggested that there may have been two authors.[50]

The French Revolution of 1789 catapulted atheistic thought into political notability in some Western countries, and opened the way for the nineteenth century movements of Rationalism, Freethought, and Liberalism. Born in 1792, Romantic poet Percy Bysshe Shelley, a child of the Age of Enlightenment, was expelled from England’s Oxford University in 1811 for submitting to the Dean an anonymous pamphlet that he wrote entitled, The Necessity of Atheism. This pamphlet is considered by scholars as the first atheistic ideas published in the English language. An early atheistic influence in Germany was The Essence of Christianity by Ludwig Feuerbach (18041872). He influenced other German nineteenth century atheistic thinkers like Karl Marx, Max Stirner, Arthur Schopenhauer (17881860), and Friedrich Nietzsche (18441900).

The freethinker Charles Bradlaugh (18331891) was repeatedly elected to the British Parliament, but was not allowed to take his seat after his request to affirm rather than take the religious oath was turned down (he then offered to take the oath, but this too was denied him). After Bradlaugh was re-elected for the fourth time, a new Speaker allowed Bradlaugh to take the oath and permitted no objections.[51] He became the first outspoken atheist to sit in Parliament, where he participated in amending the Oaths Act.[52]

In 1844, Karl Marx (18181883), an atheistic political economist, wrote in his Contribution to the Critique of Hegel’s Philosophy of Right: “Religious suffering is, at one and the same time, the expression of real suffering and a protest against real suffering. Religion is the sigh of the oppressed creature, the heart of a heartless world, and the soul of soulless conditions. It is the opium of the people.” Marx believed that people turn to religion in order to dull the pain caused by the reality of social situations; that is, Marx suggests religion is an attempt at transcending the material state of affairs in a society the pain of class oppression by effectively creating a dream world, rendering the religious believer amenable to social control and exploitation in this world while they hope for relief and justice in life after death. In the same essay, Marx states, “…[m]an creates religion, religion does not create man…”[53]

Friedrich Nietzsche, a prominent nineteenth century philosopher, is well known for coining the aphorism “God is dead” (German: “Gott ist tot”); incidentally the phrase was not spoken by Nietzsche directly, but was used as a dialogue for the characters in his works. Nietzsche argued that Christian theism as a belief system had been a moral foundation of the Western world, and that the rejection and collapse of this foundation as a result of modern thinking (the death of God) would naturally cause a rise in nihilism or the lack of values. While Nietzsche was staunchly atheistic, he was also concerned about the negative effects of nihilism on humanity. As such, he called for a re-evaluation of old values and a creation of new ones, hoping that in doing so humans would achieve a higher state he labeled the Overman.

Atheist feminism also began in the nineteenth century. Atheist feminism is a movement that advocates feminism within atheism.[54] Atheist feminists also oppose religion as a main source of female oppression and inequality, believing that the majority of the religions are sexist and oppressive to women.[55]

Atheism in the twentieth century found recognition in a wide variety of other, broader philosophies in the Western tradition, such as existentialism, Objectivism,[56]secular humanism, nihilism, logical positivism, Marxism, anarchism, feminism,[57] and the general scientific and rationalist movement. Neopositivism and analytical philosophy discarded classical rationalism and metaphysics in favor of strict empiricism and epistemological nominalism. Proponents such as Bertrand Russell emphatically rejected belief in God. In his early work, Ludwig Wittgenstein attempted to separate metaphysical and supernatural language from rational discourse. H. L. Mencken sought to debunk both the idea that science and religion are compatible, and the idea that science is a dogmatic belief system just like any religion.[58]

A. J. Ayer asserted the unverifiability and meaninglessness of religious statements, citing his adherence to the empirical sciences. The structuralism of Lvi-Strauss sourced religious language to the human subconscious, denying its transcendental meaning. J. N. Findlay and J. J. C. Smart argued that the existence of God is not logically necessary. Naturalists and materialists such as John Dewey considered the natural world to be the basis of everything, denying the existence of God or immortality.[59][60]

The historian Geoffrey Blainey wrote that during the twentieth century, atheists in Western societies became more active and even militant, though they often “relied essentially on arguments used by numerous radical Christians since at least the eighteenth century”. They rejected the idea of an interventionist God, and said that Christianity promoted war and violence, though “the most ruthless leaders in the Second World War were atheists and secularists who were intensely hostile to both Judaism and Christianity” and “Later massive atrocities were committed in the East by those ardent atheists, Pol Pot and Mao Zedong”. Some scientists were meanwhile articulating a view that as the world becomes more educated, religion will be superseded.[61]

Often, the state’s opposition to religion took more violent forms; Aleksandr Solzhenitsyn documents widespread persecution, imprisonments and torture of believers, in his seminal work The Gulag Archipelago. Consequently, religious organizations, such as the Catholic Church, were among the most stringent opponents of communist regimes. In some cases, the initial strict measures of control and opposition to religious activity were gradually relaxed in communist states. Pope Pius XI followed his encyclicals challenging the new right-wing creeds of Italian Fascism, (Non abbiamo bisogno 1931); and Nazism (Mit brennender Sorge, 1937); with a denunciation of atheist Communism in Divini redemptoris (1937).[62]

The Russian Orthodox Church, for centuries the strongest of all Orthodox Churches, was suppressed by Russia’s atheists.[63] In 1922, the Soviet regime arrested the Patriarch of the Russian Orthodox Church.[64] The Soviet leaders Vladimir Lenin and Joseph Stalin energetically pursued the persecution of the Church through the 1920s and 1930s. Lenin wrote that every religious idea and every idea of God “is unutterable vileness… of the most dangerous kind, ‘contagion of the most abominable kind”.[65] Many priests were killed and imprisoned. Thousands of churches were closed, some turned into hospitals. In 1925 the government founded the League of Militant Atheists to intensify the persecution. The regime only relented in its persecution following the Nazi invasion of the Soviet Union in 1941.[63] Bullock wrote that “A Marxist regime was ‘godless’ by definition, and Stalin had mocked religious belief since his days in the Tiflis seminary”. His assault on the Russian peasantry, wrote Bullock, “had been as much an attack on their traditional religion as on their individual holdings, and the defence of it had played a major part in arousing peasant resistance… “.[66] In Divini Redemptoris, Pius XI said that atheistic Communism being led by Moscow was aimed at “upsetting the social order and at undermining the very foundations of Christian civilization”:[67]

The central figure in Italian Fascism was the atheist Benito Mussolini.[68] In his early career, Mussolini was a strident opponent of the Church, and the first Fascist programme, written in 1919, had called for the secularization of Church property in Italy.[69] More pragmatic than his German ally Adolf Hitler, Mussolini later moderated his stance, and in office, permitted the teaching of religion in schools and came to terms with the Papacy in the Lateran Treaty.[68] Nevertheless, Non abbiamo bisogno condemned his Fascist movement’s “pagan worship of the State” and “revolution which snatches the young from the Church and from Jesus Christ, and which inculcates in its own young people hatred, violence and irreverence.”[70]

As noted by Steigmann-Gall, in October 1928 Hitler had publicly declared: “We tolerate no one in our ranks who attacks the ideas of Christianity … in fact our movement is Christian.”[71] In contrast to that, Richard J. Evans wrote that “Hitler emphasised again and again his belief that Nazism was a secular ideology founded on modern science. Science, he declared, would easily destroy the last remaining vestiges of superstition [-] ‘In the long run’, [Hitler] concluded in July 1941, ‘National Socialism and religion will no longer be able to exist together’ […] The ideal solution would be to leave the religions to devour themselves, without persecutions.’ “[72][73] On Steigmann-Gall’s research, Evans says, “Far from being uniformly anti-Christian, Nazism contained a wide variety of religious beliefs, and Steigmann-Gall has performed a valuable service in providing a meticulously documented account of them in all their bizarre variety.”[71]

The majority of Nazis did not leave their churches. Evans wrote that, by 1939, 95% of Germans still called themselves Protestant or Catholic, while 3.5% were gottglubig and 1.5% atheist. Most in these latter categories were “convinced Nazis who had left their Church at the behest of the Party, which had been trying since the mid 1930s to reduce the influence of Christianity in society”.[74] The majority of the three million Nazi Party members continued to pay their church taxes and register as either Roman Catholic or Evangelical Protestant Christians.[75] “Gottglubig” (lit. “believers in god”) were a non-denominational nazified outlook on god beliefs, often described as predominantly based on creationist and deistic views.[76]Heinrich Himmler, who himself was fascinated with Germanic paganism[citation needed], was a strong promoter of the gottglubig movement and didn’t allow atheists into the SS, arguing that their “refusal to acknowledge higher powers” would be a “potential source of indiscipline”.[77]

Across Eastern Europe following World War Two, the parts of the Nazi Empire conquered by the Soviet Red Army, and Yugsolavia became one party Communist states, which, like the Soviet Union, were antipathetic to religion. Persecutions of religious leaders followed.[78][79] The Soviet Union ended its truce against the Russian Orthodox Church, and extended its persecutions to the newly Communist Eastern block: “In Poland, Hungary, Lithuania and other Eastern European countries, Catholic leaders who were unwilling to be silent were denounced, publicly humiliated or imprisoned by the Communists. Leaders of the national Orthodox Churches in Romania and Bulgaria had to be cautious and submissive”, wrote Blainey.[63] While the churches were generally not as severely treated at they had been in the USSR, nearly all their schools and many of their churches were closed, and they lost their formally prominent roles in public life. Children were taught atheism, and clergy were imprisoned by the thousands.[80]

Albania under Enver Hoxha became, in 1967, the first (and to date only) formally declared atheist state,[81] going far beyond what most other countries had attempted completely prohibiting religious observance, and systematically repressing and persecuting adherents. The right to religious practice was restored in the fall of communism in 1991.

Further post-war communist victories in the East saw religion purged by atheist regimes across China, North Korea and much of Indo-China.[80] In 1949, China became a Communist state under the leadership of Mao Zedong’s Communist Party of China. China itself had been a cradle of religious thought since ancient times, being the birthplace of Confucianism and Daoism, and Buddhists having arrived in the first century AD. Under Mao, China became officially atheist, and though some religious practices were permitted to continue under State supervision, religious groups deemed a threat to order have been suppressed – as with Tibetan Buddhism from 1959 and Falun Gong in recent years. Today around two-fifths of the population claim to be nonreligious or atheist.[82] Religious schools and social institutions were closed, foreign missionaries expelled, and local religious practices discouraged.[80] During the Cultural Revolution, Mao instigated “struggles” against the Four Olds: “old ideas, customs, culture, and habits of mind”.[83] In 1999, the Communist Party launched a three-year drive to promote atheism in Tibet, saying intensifying propaganda on atheism is “especially important for Tibet because atheism plays an extremely important role in promoting economic construction, social advancement and socialist spiritual civilization in the region”.[84]

In India, E. V. Ramasami Naicker (Periyar), a prominent atheist leader, fought against Hinduism and the Brahmins for discriminating and dividing people in the name of caste and religion.[85] This was highlighted in 1956 when he made the Hindu god Rama wear a garland made of slippers and made antitheistic statements.[86]

During this period, Christianity in the United States retained its popular appeal, and, wrote Blainey, the country “was the guardian, militarily of the “free world” and the defender of its religion in the face of militant communism”.[87] During the Cold War, wrote Thomas Aiello the United States often characterized its opponents as “godless communists”, which tended to reinforce the view that atheists were unreliable and unpatriotic.[88] Against this background, the words “under God” were inserted into the pledge of allegiance in 1954,[89] and the national motto was changed from E Pluribus Unum to In God We Trust in 1956. However, there were some prominent atheist activists active at this time. Atheist Vashti McCollum was the plaintiff in a landmark 1948 Supreme Court case (McCollum v. Board of Education) that struck down religious education in U.S. public schools.[90][91]Madalyn Murray O’Hair was perhaps one of the most influential American atheists; she brought forth the 1963 Supreme Court case Murray v. Curlett which banned compulsory prayer in public schools.[92] Also in 1963 she founded American Atheists, an organization dedicated to defending the civil liberties of atheists and advocating for the complete separation of church and state.[93][94]

The early twenty-first century has continued to see secularism and atheism promoted in the Western world, with the general consensus being that the number of people not affiliated with any particular religion has increased.[95][96] This has been assisted by non-profit organizations such as the Freedom From Religion Foundation in the United States (co-founded by Anne Nicol Gaylor and her daughter, Annie Laurie Gaylor, in 1976 and incorporated nationally in 1978, it promotes the separation of church and state[97][98]), and the Brights movement, which aims to promote public understanding and acknowledgment of the naturalistic worldview.[99] In addition, a large number of accessible antitheist and secularist books, many of which have become bestsellers, have been published by authors such as Sam Harris, Richard Dawkins, Daniel Dennett, Christopher Hitchens, and Victor J. Stenger.[100][101] This period has seen the rise of the New Atheism movement, a label that has been applied, sometimes pejoratively, to outspoken critics of theism.[102] Richard Dawkins also propounds a more visible form of atheist activism which he light-heartedly describes as ‘militant atheism’.[103]

Atheist feminism has also become more prominent in the 2010s. In 2012 the first “Women in Secularism” conference was held.[104] Also, Secular Woman was founded on June 28, 2012 as the first national American organization focused on nonreligious women. The mission of Secular Woman is to amplify the voice, presence, and influence of non-religious women. The atheist feminist movement has also become increasingly focused on fighting sexism and sexual harassment within the atheist movement itself.

In 2013 the first atheist monument on American government property was unveiled at the Bradford County Courthouse in Florida; it is a 1,500-pound granite bench and plinth inscribed with quotes by Thomas Jefferson, Benjamin Franklin, and Madalyn Murray O’Hair.[105][106]

In 2015, Madison, Wisconsin’s common council amended their city’s equal opportunity ordinance, adding atheism as a protected class in the areas of employment, housing, and public accommodations.[107] This makes Madison the first city in America to pass an ordinance protecting atheists.[107]

See more here:

History of atheism – Wikipedia, the free encyclopedia

 Posted by at 10:44 am  Tagged with:

Twenty-fourth Amendment to the United States Constitution …

 Fourth Amendment  Comments Off on Twenty-fourth Amendment to the United States Constitution …
Jan 192016
 

The Twenty-fourth Amendment (Amendment XXIV) of the United States Constitution prohibits both Congress and the states from conditioning the right to vote in federal elections on payment of a poll tax or other types of tax. The amendment was proposed by Congress to the states on August 27, 1962, and was ratified by the states on January 23, 1964.

Southern states of the former Confederacy adopted poll taxes in laws of the late 19th century and new constitutions from 1890 to 1908, after the Democratic Party had generally regained control of state legislatures decades after the end of Reconstruction, as a measure to prevent African Americans and often poor whites from voting. Use of the poll taxes by states was held to be constitutional by the Supreme Court of the United States in the 1937 decision Breedlove v. Suttles.

When the 24th Amendment was ratified in 1964, five states still retained a poll tax: Virginia, Alabama, Texas, Arkansas, and Mississippi. The amendment prohibited requiring a poll tax for voters in federal elections. But it was not until 1966 that the U.S. Supreme Court ruled 63 in Harper v. Virginia Board of Elections that poll taxes for any level of elections were unconstitutional. It said these violated the Equal Protection Clause of the Fourteenth Amendment. Subsequent litigation related to potential discriminatory effects of voter registration requirements has generally been based on application of this clause.

Poll tax

Cumulative poll tax (missed poll taxes from prior years must also be paid to vote)

No poll tax

Southern states adopted the poll tax as a requirement for voting as part of a series of laws intended to marginalize black Americans from politics so far as practicable without violating the Fifteenth Amendment. This required that voting not be limited by “race, color, or previous condition of servitude.” All voters were required to pay the poll tax, but in practice it most affected the poor. Notably this impacted both African Americans and poor white voters, some of whom had voted with Populist and Fusionist candidates in the late 19th century, temporarily disturbing Democratic rule. Proponents of the poll tax downplayed this aspect and assured white voters they would not be affected. Passage of poll taxes began in earnest in the 1890s, as Democrats wanted to prevent another Populist-Republican coalition. Despite election violence and fraud, African Americans were still winning numerous local seats. By 1902, all eleven states of the former Confederacy had enacted a poll tax, many within new constitutions that contained other provisions to reduce voter lists, such as literacy or comprehension tests. The poll tax was used together with grandfather clauses and the “white primary”, and threats of violence. For example, potential voters had to be “assessed” in Arkansas, and blacks were utterly ignored in the assessment.[2]

From 19001937, such use of the poll tax was nearly ignored by the federal government. Some state-level initiatives repealed it. The poll tax survived a legal challenge in the 1937 Supreme Court case Breedlove v. Suttles, which ruled that “[The] privilege of voting is not derived from the United States, but is conferred by the state and, save as restrained by the Fifteenth and Nineteenth Amendments and other provisions of the Federal Constitution, the state may condition suffrage as it deems appropriate.”[3]

The issue remained prominent, as most African Americans in the South were disenfranchised. President Franklin D. Roosevelt spoke out against the tax. He publicly called it “a remnant of the Revolutionary period” that the country had moved past. However, Roosevelt’s favored liberal Democrats lost in the 1938 primaries to the reigning conservative Southern Democrats, and he backed off the issue. He felt that he needed Southern Democratic votes to pass New Deal programs and did not want to further antagonize them.[4] Still, efforts at the Congressional level to abolish the poll tax continued. A 1939 bill to abolish the poll tax in federal elections was tied up by the Southern Block, lawmakers whose long tenure in office from a one-party region gave them seniority and command of numerous important committee chairmanships. A discharge petition was able to force the bill to be considered, and the House passed the bill 25484.[5] However, the bill was unable to defeat a filibuster in the Senate by Southern senators and a few Northern allies who valued the support of the powerful and senior Southern seats. This bill would be re-proposed in the next several Congresses. It came closest to passage during World War II, when opponents framed abolition as a means to help overseas soldiers vote. However, after learning that the US Supreme Court decision Smith v. Allwright (1944) banned use of the “white primary,” the Southern block refused to approve abolition of the poll tax.[6]

In 1946, the Senate came close to passing the bill. 24 Democrats and 15 Republicans approved an end to debate, while 7 non-southern Democrats and 7 Republicans joined with the 19 Southern Democrats in opposition. The result was a 39-33 vote in favor of the bill, but the filibuster required a two-thirds supermajority to break at the time; a 48-24 vote was required to pass the bill.[clarification needed] Those in favor of abolition of the poll tax considered a constitutional amendment after the 1946 defeat, but that idea did not advance either.[7]

The tenor of the debate changed in the 1940s. Southern politicians tried to shift the debate to Constitutional issue, but private correspondence indicates that black disenfranchisement was still the true concern. For instance, Mississippi Senator Theodore Bilbo declared, “If the poll tax bill passes, the next step will be an effort to remove the registration qualification, the educational qualification of Negroes. If that is done we will have no way of preventing the Negroes from voting.”[8] This fear explains why even Southern Senators from states that had abolished the poll tax still opposed the bill; they did not want to set a precedent that the federal government could interfere in state elections.

President Harry S. Truman established the President’s Committee on Civil Rights, which among other issues investigated the poll tax. Considering that opposition to federal poll tax regulation in 1948 was claimed as based on the Constitution, the Committee noted that a constitutional amendment might be the best way to proceed. Still, little occurred during the 1950s. Members of the anti-poll tax movement laid low during the anti-Communist frenzy of the period; some of the main proponents of poll tax abolition, such as Joseph Gelders and Vito Marcantonio, had been committed Marxists.[9]

President John F. Kennedy returned to this issue. His administration urged Congress to adopt and send such an amendment to the states for ratification. He considered the constitutional amendment the best way to avoid a filibuster, as the claim that federal abolition of the poll tax was unconstitutional would be moot. Still, some liberals opposed Kennedy’s action, feeling that an amendment would be too slow compared to legislation.[10]Spessard Holland, a conservative Democrat from Florida, introduced the amendment to the Senate. Holland opposed most civil rights legislation during his career,[11] and Kennedy’s gaining of his support helped splinter monolithic Southern opposition to the Amendment. Ratification of the amendment was relatively quick, taking slightly more than a year; it was rapidly ratified by state legislatures across the country from August 1962 to January 1964.

President Lyndon B. Johnson called the amendment a “triumph of liberty over restriction” and “a verification of people’s rights.”[12] States that maintained the poll tax were more reserved. Mississippi’s Attorney General, Joe Patterson, complained about the complexity of two sets of voters – those who paid their poll tax and could vote in all elections, and those who had not and could only vote in federal elections.[12] Additionally, non-payers of the poll tax could still be deterred by requirements that they register far in advance of the election and retain records of such registration.[13] States such as Alabama also exercised discrimination in the application of literacy tests.

Ratified amendment, 196264

Ratified amendment post-enactment, 1977, 1989, 2002, 2009

Rejected amendment

Didn’t ratify amendment

Congress proposed the Twenty-fourth Amendment on August 27, 1962.[14][15] The amendment was submitted to the states on September 24, 1962, after it passed with the requisite two-thirds majorities in the House and Senate.[12] The following states ratified the amendment:

Ratification was completed on January 23, 1964. The Georgia legislature did make a last-second attempt to be the 38th state to ratify. This was a surprise as “no Southern help could be expected”[13] for the amendment. The Georgia Senate quickly and unanimously passed it, but the House did not act in time.[12] Georgia’s ratification was apparently dropped after South Dakota’s ratification.

The amendment was subsequently ratified by the following states:

The amendment was specifically rejected by the following state:

The following states have not ratified the amendment:

Arkansas effectively repealed its poll tax for all elections with Amendment 51 to the Arkansas Constitution at the November 1964 general election, several months after this amendment was ratified. The poll-tax language was not completely stricken from its Constitution until Amendment 85 in 2008.[16] Of the five states originally affected by this amendment, Arkansas was the only one to repeal its poll tax; the other four retained their taxes until they were struck down in 1966 by the US Supreme Court decision in Harper v. Virginia Board of Elections (1966), which ruled poll taxes unconstitutional even for state elections. Federal district courts in Alabama and Texas, respectively, struck down their poll taxes less than two months before the Harper ruling was issued.

The state of Virginia accommodated the amendment by providing an “escape clause” to the poll tax. In lieu of paying the poll tax, a prospective voter could file paperwork to gain a certificate establishing a place of residence in Virginia. The papers would have to be filed six months in advance of voting and the voter had to provide a copy of certificate at the time of voting. This measure was expected to decrease the number of legal voters.[17] In the 1965 Supreme Court decision Harman v. Forssenius, the Court unanimously found such measures unconstitutional. It declared that for federal elections, “the poll tax is abolished absolutely as a prerequisite to voting, and no equivalent or milder substitute may be imposed.”[18]

While not directly related to the Twenty-fourth Amendment, the Supreme Court case Harper v. Virginia Board of Elections (1966) ruled that the poll tax was unconstitutional at every level, not just for federal elections. The Harper decision relied upon the Equal Protection Clause of the Fourteenth Amendment, rather than the Twenty-Fourth Amendment. As such, issues related to whether burdens on voting are equivalent to poll taxes in discriminatory effect have usually been litigated on Equal Protection grounds since.

More here:
Twenty-fourth Amendment to the United States Constitution …

History of Eugenics – People at Creighton University

 Eugenics  Comments Off on History of Eugenics – People at Creighton University
Jan 112016
 

In the same era, the idea of Social Darwinism became popular and was used to explain these social inequalities. Social Darwinism utilizes the concept of natural selection from Charles Darwin and applies it to society. Social Darwinism explains survival of the fittest in terms of the capability of an individual to survive within a competitive environment. This explains social inequalities by explaining that the wealthy are better individuals and therefore better suited to survive in the uncertain economy. In terms of survival of the fittest the wealthy are more likely to survive and produce more offspring than the poor.

Early Eugenicists

Eugenicists believed genetics were the cause of problems for the human gene pool. Eugenics stated that society already had paid enough to support these degenerates and the use of sterilization would save money. The eugenicists used quantitative facts to produce scientific evidence. They believed that charity and welfare only treated the symptoms, eugenic sought to eliminate the disease. The following traits were seen as degenerative to the human gene pool to which the eugenicists were determined to eliminate: poverty, feeble-mindedness-including manic depression, schizophrenia, alcoholism, rebelliousness, criminality, nomadness, prostitution.

Before eugenics became internationally recognized in WWII, it was a very popular movement in the United States. In fact the American Eugenics Society set up pavilions and “Fitter Families Contest” to popularize eugenics at state fairs. The average family advocated for the utilization of eugenics while educational systems embraced eugenics, which was presented as science fact by the majority biology texts. In fact, eugenics became so popular that eighteen solutions were explored in a Carnegie-supported study in 1911, to report the best practical means for eliminating defective genes in the Human Population. Although the eighth of the 18 solutions was euthanasia, the researchers believed it was too early to implement this solution. The most commonly suggested method of eugenicide in America was a lethal chamber, or gas chamber. Instead, the main solution was the rapid expansion of forced segregation and sterilization, as well as increased marriage restrictions. However, not everybody was in favor of eugenics, Punnett at the first international congress for Eugenics in 1911 stated, Except in very few cases, our knowledge of heredity in man at present is far to slight and far too uncertain to base legislation upon.

Sterilization and Marriage Laws

Although in 1942 the Supreme Court made a law allowing the involuntary sterilization of criminals, it never reversed the general concept of eugenic sterilization. In 2001, the Virginia General Assembly acknowledged that the sterilization law was based on faulty science and expressed its “profound regret over the Commonwealth’s role in the eugenics movement in this country and over the damage done in the name of eugenics. On May 2, 2002 a marker was erected to honor Carrie Buck in her hometown of Charlottesville.

This information was taken from http://www.eugenicsarchive.org/

This information was taken from http://www.freerepublic.com/forum/a371ea64170ce.html and http://www.trueorigin.org/holocaust.asp

Visit link:
History of Eugenics – People at Creighton University

 Posted by at 7:46 am  Tagged with:

Eugenics – Rotten.com

 Eugenics  Comments Off on Eugenics – Rotten.com
Jan 112016
 

rotten > Library > Medicine > Eugenics Eugenics means selective breeding — not in the sense that you are individually selective regarding persons with whom you breed, but rather that someone else is pulling the strings in order to get a specific result. Eugenics techniques are used all over the world, every day, for all manner of God’s creatures, but if you try using them on humans, people get very upset.

The theory behind eugenics is simple: When good people bone good people, good babies with good genes result. The trouble comes when trying to apply eugenics in an organized way to society, with the biggest problem being that someone has to decide who the “good people” are. Anyone who concludes that he or she is qualified to make this determination is generally the last person in the world who should have such power.

Early human civilizations had no special qualms about killing children who were sick or deformed, although they were not likely thinking about the genetic repercussions of doing so. The concept of selective breeding to enhance certain traits reaches back to prehistoric times, about 10,000 years ago, at least as far as animals are concerned. “Eugenics” is the word for a social mandate to impose selective breeding on a human population for the presumed good of all mankind, with the operative word being “presumed.”

The idea appears to have first been extended to humans by Plato, of all people, who recommended in his Republic that the ruling class should be carefully maintained by a secret program of selective breeding in which seemingly random orgies would be staged in order to breed desirable qualities. Strangely, this program tends to be left out of high school history books.

The actual word “eugenics” was invented by Francis Galton, a British scientist who was distantly related to Charles Darwin. In addition to studying the weather and analyzing fingerprints, Galton was deeply interested in how intelligence and talent passed from generation to generation. He invented the word “eugenics” to describe how he believed his insights should be employed — a social program designed to engineer racial superiority through coerced optimized breeding.

Galton believed people should be bred for success just like cattle. That is not a rhetorical flourish — Galton literally argued that people should be bred in the same manner as cattle, racehorses and dogs.

Darwin himself did not endorse his cousin’s views, although he conceded that there was a certain logic in the view that natural selection was no longer working to improve the human species:

Although some of Galton’s observations on social mating and inheritance were scientifically inspired, the overall thrust of his musings on genetics tended toward an aggressive defense of colonial-style racism, with much discussion of Britons — and especially upper-crust British nobility — as the master race, best suited to govern the “lower races,” especially people of (any) color. (The fallacy of this view is painfully obvious.)

Building on Galton’s ideas, a small group of intellectuals seized on the idea of eugenics and began working to promote the idea to governments and other cultural institutions. They succeeded in winning support from such luminaries as a young Winston Churchill who served as vice president of the First International Congress of Eugenics in 1912, and the Catholic Church. The esteemed elders of the Church had no beef with using eugenics to stamp out “undesirable” traits and prevent race-mixing, although they did object to the use of contraception. The 1914 edition of the Catholic Encyclopedia explained their position:

In the wake of World War II and the Holocaust, Western civilization conveniently edited the history books to obscure the fact that the eugenics movement had been quite popular all around the world. Although the modern mind would love to lump the responsibility for the horrors of eugenics onto the Third Reich, the movement originally garnered substantial momentum in the United States in the early 20th century.

America had already had its fair share of racial troubles, from the genocide of the continent’s original inhabitants to longstanding laws against interracial marriage to the “single drop” rule. A number of factors fed racial discontent in the U.S. as the 20th century began — the emancipation of blacks, a flood of immigration, the resurgence of the Ku Klux Klan and an economic depression.

The American eugenics movement took on steam with the discovery of genetic coding and the rise of such revolutionary figures as Margaret Sanger, a nurse who has been lionized by history and the abortion rights movement as an early advocate of contraception education.

Sanger was a screaming racist and a founding member of the Eugenics Society of America. Among other things, she advocated the sterilization of the mentally and physically disabled and endorsed the use of birth control to suppress what she saw as the tendency of the lower classes and “inferior races” to breed like rabbits. Later, she apparently reformed her views (although a substantial amount of controversy endures on this topic).

Sanger was hardly alone in her views. During the first 40 years of the 20th century, Americans embarked on a eugenics program that was in many ways as ambitious in scope as any of Adolf Hitler’s wet dream. In 1921, then-vice president and future president Calvin Coolidge wrote an anti-immigration rant for Good Housekeeping Magazine in which he bemoaned the mix of good Nordic (i.e., white) stock with “inferior” races:

Later, as president, Coolidge signed the Immigration Restriction Act of 1924 — which targeted dirty Italians and those dirty, dirty Jews — declaring that “America must remain American!” The law clamped lid on the good old “melting pot”, but then that was mostly a myth to begin with.

Other prominent American supporters of eugenics included Alexander Graham Bell, inventor of the telephone, biologist Charles Davenport, steel magnate Andrew Carnegie, Henry Ford, Charles Lindbergh and coprologist Dr. John Harvey Kellogg. Several U.S. states instituted a variety of eugenics-inspired laws — including bans on mixed-race marriage and the first laws in history to compel the sterilization of the “unfit” or disabled.

Many of these laws remained on the books for decades. Virginia’s forced sterilization law was upheld by the U.S. Supreme Court in an opinion written by Oliver Wendell Holmes Jr., now remembered by history as one of the greatest legal minds of the 20th century. Holmes not only upheld the compulsory sterilization law; he complained that it was not broad enough.

But, it is said, however it might be if this reasoning were applied generally, it fails when it is confined to the small number who are in the institutions named and is not applied to the multitudes outside.

At least 60,000 people were involuntarily sterilized for the greater good of eugenics in the United States, and that number is almost certainly a whitewash of a substantially more depressing reality. The figure also fails to include the effects of a wide array of secretive medical experiments conducted under the auspices of the U.S. government, such as feeding radioactive mush to the mentally disabled.

The man perhaps most responsible for the success and influence of the American eugenics movement was also unintentionally responsible for its eventual fall from grace. Oil tycoon John D. Rockefeller financed hundreds of thousands of dollars of research through his “philanthropic” foundations, and the inflation-adjusted equivalent of millions of dollars given directly to Germany’s budding Nazi pursuit of a master race, including funds that indirectly helped underwrite the playscape of Josef Mengele.

Although America had incubated the eugenics movement, Germany mechanized it to levels of efficiency never seen before (and hopefully never to be seen again). The Germans decided that their nation had to restore its pure blonde, blue-eyed Aryan heritage by purging foreign bloodlines, particularly Jews.

Putting aside the ensuing carnage for the moment, this concept is hilariously, ludicrously wrong. The mythopoetic blue-eyed ideal human race that dominated the Nazi imagination was itself a bastardization of the genuine Aryan stock, brought about by race-mixing. The original Aryans were Semites from Iran, more closely related to Jews than to Scandanavians.

After absorbing the rhetoric of American eugenicists and the money of American “philanthropists,” the Germans began an institutionalized eugenics program after Hitler took power in 1933. Initially, the program was directly based on U.S. eugenics laws. First, they mandated sterilization for anyone with an inherited condition such as congenital blindness or deafness, most forms of mental illness and alcoholism. This program prompted the New England Medical Journal to gush: “Germany is perhaps the most progressive nation in restricting fecundity among the unfit.”

American eugenicists were proud of inspiring Germany’s program, while American government officials eyed Hitler’s progress with envy. Many wrote that Germany’s efforts would be the seed of a worldwide movement and looked forward to the day when America’s leaders would follow the Nazi example.

Although the earlier efforts had largely concerned themselves with overt “unfitness”, the subtext of Jewish inferiority and other racial hate had continued to play out at every level of German society. It didn’t take long for this aspect of the Nazi agenda became clearer.

In 1935, the Nazis passed a law requiring couples to receive “racial hygiene” counseling before marriage, including answering questions about whether they had any Jewish blood. The government cranked out propaganda films intended to discourage race mixing. Jews and Gypsies were the biggest targets, and blacks, Slavs and gays were all designated “unfit” by the Reich.

As we all know (well, most of us), the Germans quickly determined that sterilization was a slow process, and that genocide went much faster. Although the Holocaust was arguably carried out in the name of eugenics, the scope of what happened next far exceeded anything Galton probably envisioned and is best discussed elsewhere. By the end of World War II, suffice it to say, the excesses of the Nazi regime had crushed most of the momentum that the eugenicists had built during the preceding 40 years.

Amazingly, the world’s shock and horror at the depravities of the Nazi extermination machine failed to completely derail the eugenics movement. It lingered through the late 1960s and even into the ’70s, but in a much quieter mode. By the early 1980s, forced sterilizations and anti-miscegenation laws had become a thing of the past.

In part, the disenchantment with eugenics came about due to the fatal flaw with the concept, that of the self-appointed arbiter of what is a desirable trait and what is not. As civil rights and racial equality rose in prominence, the eugenicists began to slink off into the woodwork.

The word is still bandied about, often by religious conservatives who believe that abortion rights and family planning programs are camouflaged eugenics programs. However, nearly everyone advancing this argument is anti-abortion first, and anti-eugenics second.

As genetic science became more sophisticated in the 1990s, some scientists also began to tiptoe around the notion of controlled breeding again, although no one is suggesting such a plan be imposed by the government any more. Instead, researchers cautiously note that certain conditions — such as Autism and specifically Asperger’s Syndrome — are extremely heritable among certain types of parents, with the gentle hint that maybe engineers shouldn’t marry other engineers. (The fact that Asperger’s may be part of a forward step in human evolution is quietly underplayed in such discussions.)

Fortunately, perhaps, there is little foreseeable use for the concept of controlled breeding, sterilization of “undesirables” and anti-miscegenation laws. The idea of manipulating the human animal through selective breeding is obsolete.

Future zealots who wish to “improve” the human race according to their own master plan will use the tools of genetic engineering to accomplish their goals. Why mess around with people’s sex lives when you can just inject them with an RNA retrovirus and magically remove all the undesirable qualities from their DNA? No muss, no fuss, no Nuremberg Tribunal!

Continued here:
Eugenics – Rotten.com

 Posted by at 7:46 am  Tagged with:

University of Illinois Repeals the First Amendment for Its …

 Misc  Comments Off on University of Illinois Repeals the First Amendment for Its …
Dec 182015
 

Late Friday afternoon (August 22), the University of Illinois broke its three-week long silence on the controversy regarding the Chancellor’s revocation of a tenured offer to Steven Salaita, who had accepted a faculty position in the American Indian Studies Program at the flagship campus at Urbana-Champaign. Chancellor Phyllis Wise and Board of Trustees Chairman Christopher Kennedy both issued statements explaining the revocation, but in terms far more alarming than the original decision itself. It is not an exaggeration to say that the Chancellor and the Board of Trustees have now declared that the First Amendment does not apply to any tenured faculty at the University of Illinois.

A bit of background to Friday’s bombshell statements. Last October, Professor Salaita, then teaching at Virginia Tech, accepted a tenured offer from the Urbana-Champaign campus. He went through the regular appointments process at the University of Illinois, and received approval by the relevant departments and deans after a review of his scholarship and teaching. The offer, which he accepted, was conditional on approval by the Board of Trustees. Such approval clauses are typical in all teaching contracts and had, previously, been pro forma at Illinois, as they are at all serious universities: it is not the job of the Board of Trustees of a research institution to second-guess the judgment of academics and scholars. Well before the Board took the matter up, even University officials were describing Salaita as a faculty member, and he moved to Illinois and was scheduled to teach two classes this fall.

Salaita also has a Twitter account. “Tweets” are limited to 140 characters, so the medium is conducive primarily to spontaneous and superficial commentary. As a Palestinian-American and scholar of colonialism, Salaita tweeted extensively about the Israeli attack on Gaza. Contrary to the initial misrepresentations put into circulation by far right websites, none of the tweets were either anti-semitic or incitements to violence. Some were vulgar, some juvenile, some insulting, some banal. The First Amendment unequivocally protects Salaita’s right to express every one of those opinions on a matter of public concern, and to do so, if he wants, with vulgarity and insults. As a matter of American constitutional law, this is not a close case.

Part of the First Amendment’s protection of such speech is that government, including a state university, is prohibited from punishing the speaker for his expression or viewpoint. Revoking a job offer because of such speech would, again, be clearly unconstitutional. Salaita’s constitutional and contractual claims will no doubt be adjudicated in court, and the University should lose.

That now brings us to Friday’s shocking statements. Chancellor Wise declared that “we cannot… tolerate… personal and disrespectful words or actions that demean and abuse either viewpoints themselves or those who express them.” Yet as a matter of well-settled American constitutional law, the University of Illinois must tolerate “words… that demean and abuse either viewpoints themselves or those who express them.” The University has no choice, both as a matter of constitutional law and as a matter of its contractual commitment with its faculty to academic freedom. Scathing critiques of both viewpoints and authors abound in almost all scholarly fields; it would be the end of serious scholarly inquiry and debate were administrators to become the arbiters of “good manners.” More simply, it would be illegal for the University to start punishing its faculty for failure to live up to the Chancellor’s expectations for “civil” speech and disagreement.

The university, of course, need not and should not tolerate the mistreatment of students in the classroom, but there is no evidence of any such pedagogical misconduct in this case; indeed, the public evidence is that Salaita is a successful and popular teacher. No serious university evaluates pedagogical fitness based on speculative inferences from twitter accounts, yet the Chancellor’s statement implies that this is what Illinois has done in this instance. Faculty have pedagogical and professional obligations to their students, but that does not include the obligation to refrain from expressing views, whether about matters of public concern or matters within the purview of a faculty member’s scholarship, that some student somewhere might find upsetting, leading that student to conclude that that faculty member might not “value[] that student as a human being.” A student’s entitlement is to be treated seriously and professionally in the classroom; students have no entitlement to never find the views of their professors offensive or upsetting.

Chairman Kennedy’s statement is even worse than the Chancellor’s. While endorsing the Chancellor’s abrogation of the constitutional and contractual rights of the faculty, he goes even further, declaring that “there can be no place” for “disrespectful and demeaning speech” “in our democracy, and therefore, there will be no place for it in our university.” We may certainly hope for more civility in public life, but “disrespectful and demeaning speech” not only has an extensive presence in our democracy (as everyone knows), it has a constitutionally protected place as well, as the United States Supreme Court has repeatedly affirmed. Yet Chairman Kennedy says he believes only in “free speech tempered in respect for human rights.” But there is no doctrine of “free speech tempered in respect for human rights” in American constitutional law. It is a national embarrassment that a public official, the Chairman of the University of Illinois’s Board of Trustees, apparently does not know even the basic facts about the American constitutional system.

At moments like this, one wonders: Where are the lawyers? Chancellor Wise and Chairman Kennedy have made statements that commit the University of Illinois to illegal because unconstitutional courses of action. They should resign, or be removed from office, before doing further damage to one of the nation’s great research universities. Their public statements make clear they are unfit to lead academic institutions in which both freedom of speech and freedom of research and inquiry are upheld.

Read the original post:
University of Illinois Repeals the First Amendment for Its …

 Posted by at 2:42 pm  Tagged with:

First Amendment – National Constitution Center

 Misc  Comments Off on First Amendment – National Constitution Center
Oct 282015
 

Clauses of the First Amendment

The Establishment Clause

Americas early settlers came from a variety of religious backgrounds: Puritans predominated in New England; Anglicans predominated in the South; Quakers and Lutherans flocked especially to Pennsylvania; Roman Catholics settled mostly in Maryland; Presbyterians were most numerous in the middle colonies; and there were Jewish congregations in five cities.

During colonial times, the Church of England was established by law in all of the southern colonies, while localized Puritan (or Congregationalist) establishments held sway in most New England states. In those colonies, clergy were appointed and disciplined by colonial authorities and colonists were required to pay religious taxes and (often) to attend church services. Dissenters were often punished for preaching without a license or refusing to pay taxes to a church they disagreed with. Delaware, New Jersey, Pennsylvania, Rhode Island, and much of New York had no established church.

After Independence, there was widespread agreement that there should be no nationally established church. The Establishment Clause of the First Amendment, principally authored by James Madison, reflects this consensus. The language of the Establishment Clause itself applies only to the federal government (Congress shall pass no law respecting an establishment of religion). All states disestablished religion by 1833, and in the 1940s the Supreme Court held that disestablishment applies to state governments through the Fourteenth Amendment.

Virtually all jurists agree that it would violate the Establishment Clause for the government to compel attendance or financial support of a religious institution as such, for the government to interfere with a religious organizations selection of clergy or religious doctrine; for religious organizations or figures acting in a religious capacity to exercise governmental power; or for the government to extend benefits to some religious entities and not others without adequate secular justification. Beyond that, the meaning of the Amendment is often hotly contested, and Establishment cases in the Supreme Court often lead to 5-4 splits.

The Lemon Test

In 1971, the Supreme Court surveyed its previous Establishment Clause cases and identified three factors that identify when a government practice violates the Establishment Clause: First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, the statute must not foster an excessive entanglement with religion. Lemon v. Kurtzman (1971). In the years since Lemon, the test has been much criticized and the Court often decides Establishment Clause cases without reference to it. Yet the Justices have not overruled the Lemon test, meaning the lower courts remain obliged to use it. In some specific areas of controversy, however, the Court has adopted specific, more targeted tests to replace Lemon.

The vast majority of Establishment Clause cases have fallen in four areas: monetary aid to religious education or other social welfare activities conducted by religious institutions; government-sponsored prayer; accommodation of religious dissenters from generally-applicable laws; and government owned or sponsored religious symbols.

Aid to religious institutions

Scholars have long debated between two opposing interpretations of the Establishment Clause as it applies to government funding: (1) that the government must be neutral between religious and non-religious institutions that provide education or other social services; or (2) that no taxpayer funds should be given to religious institutions if they might be used to communicate religious doctrine. Initially, the Court tended toward the first interpretation, in the 1970s and 1980s the Court shifted to the second interpretation, and more recently the Court has decisively moved back to the first idea.

After two early decisions upholding state statutes allowing students who attend private religious schools to receive transportation, Everson v. Board of Education (1947), and textbook subsidies available to all elementary and secondary students, Board of Education v. Allen (1968), the Court attempted for about fifteen years to draw increasingly sharp lines against the use of tax-funded assistance for the religious aspects of education. At one point the Court even forbade public school teaching specialists from going on the premises of religious schools to provide remedial assistance. Aguilar v. Felton (1985). More recently, the Court has upheld programs that provide aid to educational or social programs on a neutral basis only as a result of the genuine and independent choices of private individuals. Zelman v. Simmons-Harris (2002). Indeed, the Court has held that it is unconstitutional under free speech or free exercise principles to exclude otherwise eligible recipients from government assistance solely because their activity is religious in nature. Rosenberger v. University of Virginia (1995).

Government-sponsored prayer

The Courts best-known Establishment Clause decisions held it unconstitutional for public schools to lead schoolchildren in prayer or Bible reading, even on an ostensibly voluntary basis. Engel v. Vitale (1962); Abington School District v. Schempp (1963). Although these decisions were highly controversial among the public (less so among scholars), the Court has not backed down. Instead it has extended the prohibition to prayers at graduation ceremonies, Lee v. Weisman (1992), and football games, Santa Fe Independent School District v. Doe (2000).

In less coercive settings involving adults, the Court has generally allowed government-sponsored prayer. In Marsh v. Chambers (1983), the Court upheld legislative prayer, specifically because it was steeped in history. More recently, the Court approved an opening prayer or statement at town council meetings, where the Town represented that it would accept any prayers of any faith. Town of Greece v. Galloway (2014).

Accommodation of religion

Hundreds of federal, state, and local laws exempt or accommodate religious believers or institutions from otherwise neutral, generally-applicable laws for whom compliance would conflict with religiously motivated conduct. Examples include military draft exemptions, kosher or halal meals for prisoners, medical neglect exemptions for parents who do not believe in medical treatment for their ill children, exemptions from some anti-discrimination laws for religious entities, military headgear requirements, and exemptions for the sacramental use of certain drugs. The Supreme Court has addressed very few of these exemptions. While the Court held that a state sales tax exemption limited to religious publications was unconstitutional in Texas Monthly, Inc. v. Bullock (1989), it unanimously upheld the exemption of religious organizations from prohibitions on employment discrimination for ministers. Hosanna-Tabor Evangelical Lutheran Church and School v. E.E.O.C. (2012).

Two federal laws, the Religious Freedom Restoration Act (RFRA) and the Religious Land Use and Institutionalized Persons Act (RLUIPA), provide broad-based statutory accommodations for religious practice when it conflicts with federal and certain state and local laws. A unanimous Court upheld this approach for prisoners against a claim that granting religious accommodations violates the Establishment Clause, reasoning that RLUIPA alleviates exceptional government-created burdens on private religious exercise in prisons. Cutter v. Wilkinson (2005).

The Court in Cutter left open the question whether such a regime applied to land use is constitutional and it also left open the possibility that even some applications in prisons may be unconstitutional if they are not even-handed among religions or impose too extreme a burden on non-believers. The Courts recent 5-4 decision in Burwell v. Hobby Lobby Stores, Inc. (2014), holding that RFRA exempts for-profit employers from paying for insurance coverage of contraceptive drugs that they believe are abortion-inducing, has reinvigorated the debate over such laws.

Government-sponsored religious symbols

The cases involving governmental displays of religious symbolssuch as Ten Commandment displays in public school classrooms, courthouses, or public parks; nativity scenes in courthouses and shopping districts; or crosses on public landhave generated much debate. The most prominent approach in more recent cases is called the endorsement test; it asks whether a reasonable observer acquainted with the full context would regard the display as the government endorsing religion and, therefore, sending a message of disenfranchisement to other believers and non-believers.

The Courts decisions in this arena are often closely divided. They also illustrate that the Court has declined to take a rigid, absolutist view of the separation of church and state. In Lynch v. Donnelly (1984), the Court allowed display of a nativity scene surrounded by other holiday decorations in the heart of a shopping district, stating that it engenders a friendly community spirit of good will in keeping with the season. But in County of Allegheny v. American Civil Liberties Union (1989), a different majority of Justices held that the display of a nativity scene by itself at the top of the grand stairway in a courthouse violated the Establishment Clause because it was indisputably religiousindeed sectarian. In McCreary County v. American Civil Liberties Union (2005), the Court held that a prominent display of the Ten Commandments at the county courthouse, which was preceded by an officials description of the Ten Commandments as the embodiment of ethics in Christ, was a religious display that was unconstitutional. The same day, it upheld a Ten Commandments monument, which was donated by a secular organization dedicated to reducing juvenile delinquency and surrounded by other monuments on the spacious statehouse grounds. Van Orden v. Perry (2005). Only one Justice was in the majority in both cases.

More broadly, the Establishment Clause provides a legal framework for resolving disagreements about the public role of religion in our increasingly pluralistic republic.

An accurate recounting of history is necessary to appreciate the need for disestablishment and a separation between church and state.

The Establishment Clause of the First Amendment Congress shall pass no law respecting an establishment of religion is one of the most misunderstood in the Constitution.

The Establishment Clause: A Check on Religious Tyranny by Marci A. Hamilton

An accurate recounting of history is necessary to appreciate the need for disestablishment and a separation between church and state. The religiosity of the generation that framed the Constitution and the Bill of Rights (of which the First Amendment is the first as a result of historical accident, not the preference for religious liberty over any other right) has been overstated. In reality, many of the Framers and the most influential men of that generation rarely attended church, were often Deist rather than Christian, and had a healthy understanding of the potential for religious tyranny. This latter concern is to be expected as European history was awash with executions of religious heretics: Protestant, Catholic, Jewish, and Muslim. Three of the most influential men in the Framing era provide valuable insights into the mindset at the time: Benjamin Franklin, James Madison, and John Adams. Franklin saw a pattern:

If we look back into history for the character of the present sects in Christianity, we shall find few that have not in their turns been persecutors, and complainers of persecution. The primitive Christians thought persecution extremely wrong in the Pagans, but practiced it on one another. The first Protestants of the Church of England blamed persecution in the Romish Church, but practiced it upon the Puritans. These found it wrong in the Bishops, but fell into the same practice themselves both here [England] and in New England.

Benjamin Franklin, Letter to the London Packet (June 3, 1772).

The father of the Constitution and primary drafter of the First Amendment, James Madison, in his most important document on the topic, Memorial and Remonstrance against Religious Assessments (1785), stated:

During almost fifteen centuries has the legal establishment of Christianity been on trial. What have been its fruits? More or less in all places, pride and indolence in the Clergy, ignorance and servility in the laity, in both, superstition, bigotry and persecution. . . . What influence, in fact, have ecclesiastical establishments had on society? In some instances they have been seen to erect a spiritual tyranny on the ruins of the Civil authority; in many instances they have been seen upholding the thrones of political tyranny; in no instance have they been the guardians of the liberties of the people.

Two years later, John Adams described the states as having been derived from reason, not religious belief:

It will never be pretended that any persons employed in that service had any interviews with the gods, or were in any degree under the influence of Heaven, any more than those at work upon ships or houses, or laboring in merchandise or agriculture; it will forever be acknowledged that these governments were contrived merely by the use of reason and the senses. . . .Thirteen governments [of the original states] thus founded on the natural authority of the people alone, without a pretence of miracle or mystery, which are destined to spread over the northern part of that whole quarter of the globe, are a great point gained in favor of the rights of mankind.

The Works of John Adams, Second President of the United States, Vol. 4, 292-93 (Charles C. Little & James Brown, eds., 1851).

Massachusetts and Pennsylvania are examples of early discord. In Massachusetts, the Congregationalist establishment enforced taxation on all believers and expelled or even put to death dissenters. Baptist clergy became the first in the United States to advocate for a separation of church and state and an absolute right to believe what one chooses. Baptist pastor John Leland was an eloquent and forceful proponent of the freedom of conscience and the separation of church and state. For him, America was not a Christian nation, but rather should recognize the equality of all believers, whether Jews, Turks, Pagans [or] Christians. Government should protect every man in thinking and speaking freely, and see that one does not abuse another. He proposed an amendment to the Massachusetts Constitution in 1794 because of the evils . . . occasioned in the world by religious establishments, and to keep up the proper distinction between religion and politics.”

Pennsylvania, dubbed the Holy Experiment by founder William Penn, was politically controlled by Quakers, who advocated tolerance of all believers and the mutual co-existence of differing faiths, but who made their Christianity a prerequisite for public office, only permitted Christians to vote, and forbade work on the Sabbath. Even so, the Quakers set in motion a principle that became a mainstay in religious liberty jurisprudence: the government may not coerce citizens to believe what they are unwilling to believe. If one looks carefully into the history of the United States religious experiment, one also uncovers a widely-shared view that too much liberty, or licentiousness, is as bad as no liberty. According to historian John Philip Reid, those in the eighteenth century had as great a duty to oppose licentiousness as to defend liberty.

Establishment Clause Doctrine

The Establishment Clause has yielded a wide array of doctrines (legal theories articulated by courts), each of which is largely distinct from the others, some of which are described in Professor McConnells and my joint contribution on the Establishment Clause. The reason for this proliferation of distinct doctrines is that the Establishment Clause is rooted in a concept of separating the power of church and state. These are the two most authoritative forces of human existence, and drawing a boundary line between them is not easy. The further complication is that the exercise of power is fluid, which leads both state and church to alter their positions to gain power either one over the other or as a union in opposition to the general public or particular minorities.

The separation of church and state does not mean that there is an impermeable wall between the two, but rather that the Framers fundamentally understood that the union of power between church and state would lead inevitably to tyranny. The established churches of Europe were well-known to the Founding era and the Framers and undoubtedly contributed to James Madisons inclusion of the Establishment Clause in the First Amendment, and its ratification. The following are some of the most important principles.

The Government May Not Delegate Governing Authority to Religious Entities

The Court has been sensitive to incipient establishments of religion. A Massachusetts law delegated authority to churches and schools to determine who could receive a liquor license within 500 feet of their buildings. The Supreme Court struck down the law, because it delegated to churches zoning power, which belongs to state and local government, not private entities. Larkin v. Grendels Den, Inc. (1982). According to the Court: The law substitutes the unilateral and absolute power of a church for the reasoned decision making of a public legislative body . . . on issues with significant economic and political implications. The challenged statute thus enmeshes churches in the processes of government and creates the danger of [p]olitical fragmentation and divisiveness along religious lines.

In another scenario, the Supreme Court rejected an attempt to define political boundaries solely according to religion. In Board of Education of Kiryas Joel Village School District v. Grumet (1994), the state of New York designated the neighborhood boundaries of Satmar Hasidim Orthodox Jews in Kiryas Joel Village as a public school district to itself. Thus, the boundary was determined solely by religious identity, in part because the community did not want their children to be exposed to children outside the faith. The Court invalidated the school district because political boundaries identified solely by reference to religion violate the Establishment Clause.

There Is No Such Thing as Church Autonomy Although There Is a Doctrine that Forbids the Courts from Determining What Religious Organizations Believe

In recent years, religious litigants have asserted a right to church autonomythat churches should not be subject to governmental regulationin a wide variety of cases, and in particular in cases involving the sexual abuse of children by clergy. The phrase, however, is misleading. The Supreme Court has never interpreted the First Amendment to confer on religious organizations a right to autonomy from the law. In fact, in the case in which they have most recently demanded such a right, arguing religious ministers should be exempt from laws prohibiting employment discrimination, the Court majority did not embrace the theory, not even using the term once. Hosanna-Tabor Evangelical Lutheran Church and School v. E.E.O.C. (2012).

The courts are forbidden, however, from getting involved in determining what a religious organization believes, how it organizes itself internally, or who it chooses to be ministers of the faith. Therefore, if the dispute brought to a court can only be resolved by a judge or jury settling an intra-church, ecclesiastical dispute, the dispute is beyond judicial consideration. This is a corollary to the absolute right to believe what one chooses; it is not a right to be above the laws that apply to everyone else. There is extraordinary slippage in legal briefs in numerous cases where the entity is arguing for autonomy, but what they really mean is freedom from the law, per se. For the Court and basic common sense, these are arguments for placing religion above the law, and in violation of the Establishment Clause. They are also fundamentally at odds with the common sense of the Framing generation that understood so well the evils of religious tyranny.

The Establishment Clause: Co-Guarantor of Religious Freedom by Michael McConnell

The Establishment Clause of the First Amendment Congress shall pass no law respecting an establishment of religion is one of the most misunderstood in the Constitution. Unlike most of the Constitution, it refers to a legal arrangement, the establishment of religion, which has not existed in the United States in almost two centuries. We understand what freedom of speech is, we know what private property” is, and we know what searches and seizures are, but most of us have no familiarity with what an establishment of religion would be.

The Church by Law Established in Britain was a church under control of the government. The monarch was (and is) the supreme head of the established church and chooses its leadership; Parliament enacted its Articles of Faith; the state composed or directed the content of its prayers and liturgy; clergy had to take an oath of allegiance to the king or queen; and not surprisingly, the established church was used to inculcate the idea that British subjects had a religious as well as a civic obligation to obey royal authority. The established church was a bit like a government-controlled press: it was a means by which the government could mold public opinion.

British subjects (including Americans in eight of the colonies) were legally required to attend and financially support the established church, ministers were licensed or selected by the government, and the content of church services was partially dictated by the state.

The establishment of religion was bad for liberty and it was bad for religion, too. It was opposed by a coalition of the most fervently evangelical religious sects in America (especially the Baptists), who thought the hand of government was poisonous to genuine religion, joined by the enlightenment and often deist elite (like Thomas Jefferson and Benjamin Franklin), who thought church and state should be separate, and by the leadership of minority religions, who worried that government involvement would disadvantage them. Accordingly, there was virtually no opposition to abolishing establishment of religion at the national level. Establishments survived for a while in a few states, but the last state (Massachusetts) ended its establishment in 1833.

The abolition of establishment of religion entails a number of obvious and uncontroversial elements. Individuals may not be required to contribute to, attend, or participate in religious activities. These must be voluntary. The government may not control the doctrine, liturgy, or personnel of religious organizations. These must be free of state control. Other issues are harder.

For a few decades between the late 1960s and the early 1990s, the Supreme Court attempted to forbid states to provide tax subsidies to schools that teach religious doctrine along with ordinary secular subjects. Most of these schools were Roman Catholic. This effort was largely based on a misinterpretation of history, egged on by residual anti-Catholicism. The Justices said that neutral aid to schools is just like a 1785 effort to force Virginians to contribute to the church of their choice. The analogy, however, made little sense: there is all the difference in the world between funding churches because they inculcate religion and funding schools because they provide education. In fact, the history of the early republic shows that states (and later the federal government, during Reconstruction) funded education by subsidizing all schools on a nondiscriminatory basis, and no one ever suggested this violated the non-establishment principle. By 2002, in Zelman v. Simmons-Harris, the Supreme Court returned to this original idea, allowing the government to fund schools on a neutral basis so long as the choice of religious schools was left to voluntary choice. Not only was ruling this true to history, it also best serves the ideal of religious freedom, making it possible for families to choose the type of education they want for their children.

It is sometimes suggested that laws making special accommodations for people whose religious beliefs are at odds with government policy violate the Establishment Clause, on the theory that these accommodations privilege or advance religion. This is a recently-minted idea, and not a sensible one. In all cases of accommodation, the religion involved is dissenting from prevailing policy, which means, by definition, that the religion is not dominating society. The idea that making exceptions for the benefit of people whose beliefs conflict with the majority somehow establishes religion is a plain distortion of the words. And the Supreme Court has unanimously held that religious accommodations are permissible so long as they lift a governmental obstacle to the exercise of religion, take account of costs to others, and do not favor one faith over another. Nonetheless, when religions take unpopular stances on hot-button issues (for example, regarding abortion-inducing contraceptives or same-sex marriage), critics are quick to assert that it violates the Constitution to accommodate their differences, no matter how little support that position has in history or Supreme Court precedent.

The fundamental error is to think that the Establishment Clause is designed to reduce the role of religion in American life. A better understanding is captured in this statement by Justice William O. Douglas of the Supreme Court: this country sponsor[s] an attitude on the part of government that shows no partiality to any one group and that lets each flourish according to the zeal of its adherents and the appeal of its dogma. Zorach v. Clauson (1952).

The Free Exercise Clause

Many settlers from Europe braved the hardships of immigration to the American colonies to escape religious persecution in their home countries and to secure the freedom to worship according to their own conscience and conviction. Although the colonists often understood freedom of religion more narrowly than we do today, support for protection of some conception of religious freedom was broad and deep. By the time of Independence and the construction of a new Constitution, freedom of religion was among the most widely recognized inalienable rights, protected in some fashion by state bills of rights and judicial decisions. James Madison, for example, the principal author of the First Amendment, eloquently expressed his support for such a provision in Virginia: It is the duty of every man to render to the Creator such homage, and such only, as he believes to be acceptable to him. This duty is precedent both in order of time and degree of obligation, to the claims of Civil Society.

Although the original Constitution contained only a prohibition of religious tests for federal office (Article VI, Clause 3), the Free Exercise Clause was added as part of the First Amendment in 1791. In drafting the Clause, Congress considered several formulations, but ultimately settled on protecting the free exercise of religion. This phrase makes plain the protection of actions as well as beliefs, but only those in some way connected to religion.

From the beginning, courts in the United States have struggled to find a balance between the religious liberty of believers, who often claim the right to be excused or exempted from laws that interfere with their religious practices, and the interests of society reflected in those very laws. Early state court decisions went both ways on this central question.

The Supreme Court first addressed the question in a series of cases involving nineteenth-century laws aimed at suppressing the practice of polygamy by members of the Church of Jesus Christ of Latter-day Saints (LDS), also known as Mormons. The Court unanimously rejected free exercise challenges to these laws, holding that the Free Exercise Clause protects beliefs but not conduct. Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices. Reynolds v. United States (1878). What followed was perhaps the most extreme government assault on religious freedom in American history. Hundreds of church leaders were jailed, rank-and-file Mormons were deprived of their right to vote, and Congress dissolved the LDS Church and expropriated most of its property, until the church finally agreed to abandon polygamy.

The belief-action distinction ignored the Free Exercise Clauses obvious protection of religious practice, but spoke to the concern that allowing believers to disobey laws that bind everyone else would undermine the value of a government of laws applied to all. Doing so, Reynolds warned, would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.

Reynolds influenced the meaning of the Free Exercise Clause well into the twentieth century. In 1940, for example, the Court extended the Clausewhich by its terms constrains only the federal governmentto limit state laws and other state actions that burden religious exercise. Cantwell v. Connecticut (1940). Though it recognized that governments may not unduly infringe religious exercise, the Court reiterated that [c]onduct remains subject to regulation for the protection of society, citing Reynolds as authority. Similarly, the Court held in 1961 that the Free Exercise Clause did not exempt an orthodox Jewish merchant from Sunday closing laws, again citing Reynolds.

In the 1960s and early 1970s, the Court shifted, strengthening protection for religious conduct by construing the Free Exercise Clause to protect a right of religious believers to exemption from generally applicable laws which burden religious exercise. The Court held that the government may not enforce even a religiously-neutral law that applies generally to all or most of society unless the public interest in enforcement is compelling. Wisconsin v. Yoder (1972). Yoder thus held that Amish families could not be punished for refusing to send their children to school beyond the age of 14.

Although the language of this compelling-interest test suggested powerful protections for religion, these were never fully realized. The cases in which the Supreme Court denied exemptions outnumbered those in which it granted them. Aside from Yoder, the Court exempted believers from availability for work requirements, which denied unemployment benefits to workers terminated for prioritizing religious practices over job requirements. But it denied exemptions to believers and religious organizations which found their religious practices burdened by conditions for federal tax exemption, military uniform regulations, federal minimum wage laws, state prison regulations, state sales taxes, federal administration of public lands, and mandatory taxation and other requirements of the Social Security system. In all of these cases the Court found, often controversially, either that the governments interest in enforcement was compelling, or that the law in question did not constitute a legally-recognizable burden on religious practice.

In 1990, the Supreme Court changed course yet again, holding that the Free Exercise Clause does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes). Employment Division v. Smith (1990). Though it did not return to the belief-action distinction, the Court echoed Reynolds concern that religious exemptions permit a person, by virtue of his beliefs, to become a law unto himself, contradicting both constitutional tradition and common sense. Any exceptions to religiously-neutral and generally-applicable laws, therefore, must come from the political process. Smith went on to hold that the Free Exercise Clause does not protect the sacramental use of peyote, a hallucinogenic drug, by members of the Native American Church.

Smith proved to be controversial. In 1993, overwhelming majorities in Congress voted to reinstate the pre-Smith compelling-interest test by statute with the Religious Freedom Restoration Act (RFRA). RFRA authorizes courts to exempt a person from any law that imposes a substantial burden on sincere religious beliefs or actions, unless the government can show that the law is the least restrictive means of furthering a compelling governmental interest. Almost half of the states have passed similar lawsstate RFRAsapplicable to their own laws. In 1997 the Supreme Court held that Congress had constitutional authority only to apply RFRA to federal laws, and not to state or local laws. Congress then enacted a narrower law, the Religious Land Use and Institutionalized Persons Act (RLUIPA), which applies the compelling-interest test to state laws affecting prisoners and land use. RFRA and RLUIPA have afforded exemptions in a wide range of federal and state contextsfrom kosher and halal diets for prisoners, to relief from zoning and landmark regulations on churches and ministries, to exemptions from jury service.

Although some exemption claims brought under these religious freedom statutes have been relatively uncontroversialthe Supreme Court unanimously protected the right of a tiny religious sect to use a hallucinogenic drug prohibited by federal law and the right of a Muslim prisoner to wear a half-inch beard prohibited by state prison rulessome touch on highly contested moral questions. For example, the Court by a 5-4 vote excused a commercial family-owned corporation from complying with the contraception mandate, a regulation which required the corporations health insurance plan to cover what its owners believe are abortion-inducing drugs. Burwell v. Hobby Lobby Stores Inc. (2014). In the wake of Hobby Lobby and the Courts subsequent determination that states may not deny gays and lesbians the right to civil marriage, state RFRAs have become a flashpoint in conflicts over whether commercial vendors with religious objections may refuse their products and services to same-sex weddings.

Besides RFRA and other exemption statutes, the Free Exercise Clause itself, even after Smith, continues to provide protection for believers against burdens on religious exercise from laws that target religious practices, or that disadvantage religion in discretionary, case-by-case decision making. In Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah (1993), for example, the Court unanimously struck down a local ordinance against the unnecessary killing of animals in a ritual or ceremonya law that was drawn to apply only to a small and unpopular religious sect whose worship includes animal sacrifice.

The Court recently recognized that the Free Exercise Clause (along with the Establishment Clause) required a religious exemption from a neutral and general federal antidiscrimination law that interfered with a churchs freedom to select its own ministers. The Court distinguished Smith on the ground that it involved government regulation of only outward physical acts, while this case concerns government interference with an internal church decision that affects the faith and mission of the church itself. Hosanna-Tabor Evangelical Lutheran Church & School v. E.E.O.C. (2012).

It remains unclear whether Lukumi and Hosanna-Tabor are narrow exceptions to Smiths general presumption against religious exemptions, or foreshadow yet another shift towards a more exemption-friendly free exercise doctrine.

At the time the United States adopted the First Amendment to the Constitution, other nations routinely imposed disabilities on religious minorities within their borders, depriving them of legal rights, making it difficult or impossible to practice their faith, and often enabling violent persecution.

One of this nations deepest commitments is to the full, equal, and free exercise of religion a right that protects not only believers, but unbelievers as well.

Religious Liberty Is Equal Liberty by Frederick Gedicks

At the time the United States adopted the First Amendment to the Constitution, other nations routinely imposed disabilities on religious minorities within their borders, depriving them of legal rights, making it difficult or impossible to practice their faith, and often enabling violent persecution. The Free Exercise Clause was thus an exceptional political achievement, imposing a constitutional norm of civic equality by prohibiting the federal government from interfering with all religious exerciseregardless of affiliation.

Only a few years before the First Amendment was ratified, James Madison wrote that all people naturally retain equal title to the free exercise of Religion according to the dictates of conscience without the governments subjecting some to peculiar burdens or granting to others peculiar exemptions. A Memorial and Remonstrance against Religious Assessments (1785). As Madison suggested, at the time the Constitution and Bill of Rights were ratified, the guarantee of religious free exercise was understood to protect against government discrimination or abuse on the basis of religion, but not to require favorable government treatment of believers. In particular, there is little evidence that the Founders understood the Free Exercise Clause to mandate religious exemptions that would excuse believers from complying with neutral and general laws that constrain the rest of society.

The Supreme Court has historically left the question of religious exemptions to Congress and the state legislatures. The first judicially-ordered exemptions arose in the 1960s and early 1970s, when the Supreme Court held the Free Exercise Clause required religious exemptions for Amish families who objected to sending their children to high school, and for employees who were denied unemployment benefits when they lost their jobs for refusing to work on their Sabbath. This doctrine of judicially-ordered exemptions, however, was an historical aberration. In Employment Division v. Smith (1990), the Court considered a claim by members of a Native American religion who lost their jobs as drug counselors for using an illegal drug in a religious ritual. The Court abandoned its new doctrine of religious exemptions, ruling that the Free Exercise Clause did not grant believers a right to exemptions from religiously neutral, generally applicable laws, though legislatures were free to grant such exemptions if they wished. This relegation of exemptions to the political process in most circumstances returned the Free Exercise Clause to its historical baseline. Notwithstanding the narrow ministerial exception recognized in Hosanna-Tabor Evangelical Church & School v. EEOC (2012), the Court has repeatedly affirmed Smith and the century of precedent cited in that case, and has shown no inclination to overturn its basic principle that neutral and general laws should apply equally to all, regardless of religious belief or unbelief.

The growth of social welfare entitlements and religious diversity in the United States has underscored the wisdom of the Smith rule. Exempting believers from social welfare laws may give them a competitive advantage, and also may harm those whom the law was designed to protect or benefit.

For example, the Court refused to exempt an Amish employer from paying Social Security taxes for his employees, reasoning that doing so would impose the employers religious faith on the employees by reducing their social security benefits regardless of whether they shared their employers religious objection to government entitlement programs. United States v. Lee (1982). Similarly, the Court refused to exempt a religious employer from federal minimum wage laws, because doing so would give the employer an advantage over competitors and depress the wages of all employees in local labor markets. Tony & Susan Alamo Foundation v. Secretary of Labor (1985).

Read the full discussion here.

The Court seems poised to adopt this third-party burden principle in decisions interpreting the 1993 Religious Freedom Restoration Act (RFRA) as well. Five Justices in Burwell v. Hobby Lobby Stores, Inc. (2014), expressly stated that RFRA exemptions imposing significant costs on others are not allowed. The majority opinion likewise acknowledged that courts must take adequate account of third-party burdens before ordering a RFRA exemption.

The growth of religious diversity makes a religious exemption regime doubly impractical. The vast range of religious beliefs and practices in the United States means that there is a potential religious objector to almost any law the government might enact. If religious objectors were presumptively entitled to exemption from any burdensome law, religious exemptions would threaten to swallow the rule of law, which presupposes its equal application to everyone. As the Court observed in Lee, a religiously diverse social welfare state cannot shield every person . . . from all the burdens incident to exercising every aspect of the right to practice religious beliefs.

Even under the equal-liberty regime contemplated by the Founders and restored by Smith, government remains subject to important constraints that protect religious liberty. Religious gerrymanders, or laws that single out particular religions for burdens not imposed on other religions or on comparable secular conduct, must satisfy strict scrutiny under the Free Exercise Clause. Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah (1993); Sherbert v. Verner (1963). Under RFRA and the related Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), the federal government and often the state governments are prohibited from burdening religious exercise without adequate justification. Holt v. Hobbs (2015); Gonzales v. O Centro Espirita Beneficiente Uniao Do Vegetal (2005). And, like judicially-ordered exemptions, legislative exemptions that impose material costs on others in order to protect believers free exercise interests may be invalid under the Establishment Clause, which protects believers and unbelievers alike from bearing the burdens of practicing someone elses religion. Estate of Thornton v. Caldor (1985).

If exemptions are to be afforded to those whose religious practices are burdened by neutral and general laws, they should generally not be granted by courts, but by the politically accountable branches of the federal and state governments. These branches are better situated to weigh and balance the competing interests of believers and others in a complex and religiously-diverse society.

Free Exercise: A Vital Protection for Diversity and Freedom by Michael McConnell

One of this nations deepest commitments is to the full, equal, and free exercise of religion a right that protects not only believers, but unbelievers as well. The government cannot use its authority to forbid Americans to conduct their lives in accordance with their religious beliefs or to require them to engage in actions contrary to religious conscience even when the vast majority of their countrymen regard those beliefs as backward, mistaken, or even immoral.

Unfortunately, in the last few years and especially since the Supreme Courts decision requiring states to recognize same-sex marriage this consensus in favor of tolerance has been slipping. All too often, we hear demands that religious people and religious institutions such as colleges or adoption agencies must join the state in recognizing same-sex marriages (or performing abortions or supplying contraceptives, or whatever the issues happen to be), or lose their right to operate.

That has not been the American way. When this country severed its ties with the British Empire, one thing that went with it was the established church. To an unprecedented degree, the young United States not only tolerated but actively welcomed people of all faiths. For example, despite his annoyance with the Quakers for their refusal to support the revolutionary war effort, Washington wrote to a Quaker Society to express his wish and desire, that the laws may always be as extensively accommodated to them, as a due regard for the protection and essential interests of the nation may justify and permit. Letter to the Annual Meeting of Quakers (1789).

What would it mean to have a regime of free exercise of religion? No one knew; there had been no such thing before. It quickly became clear that it was not enough just to cease persecution or discrimination against religious minorities. Just two years after the ink was dry on the First Amendment, the leader of the Jewish community in Philadelphia went to court and asked, under authority of his states free exercise clause, to be excused from complying with a subpoena to appear in court on his day of sabbath. He did not ask that the state cease to do official business on Saturday, but he did ask the court to make an exception an accommodation that would enable him to be faithful to the Jewish law.

This would become the central interpretive question under the Free Exercise Clause: Does it give Americans whose religions conflict with government practices the right to ask for special accommodation, assuming an accommodation can be made without great harm to the public interest or the rights of others?

Read the full discussion here.

In the early years, some religious claimants won and some lost. The Mormon Church lost in a big way, in the first such case to reach the United States Supreme Court. Reynolds v. United States (1878). In 1963, the Supreme Court held that the Free Exercise Clause of the First Amendment does require the government to make accommodations for religious exercise, subject as always to limitations based on the public interest and the rights of others. Sherbert v. Verner (1963). In 1990, the Court shifted to the opposite view, in a case involving the sacramental use of peyote by members of the Native American Church. Employment Division v. Smith (1990).

Today we have a patchwork of rules. When the federal government is involved, legislation called the Religious Freedom Restoration Act grants us the right to seek appropriate accommodation when our religious practices conflict with government policy. About half the states have similar rules, and a similar rule protects prisoners like the Muslim prisoner who recently won the right to wear a half-inch beard in accordance with Islamic law, by a 9-0 vote in the Supreme Court. Holt v. Hobbs (2015).

The range of claims has been as diverse as the religious demography of the country. A small Brazilian sect won the right to use a hallucinogenic drug in worship ceremonies; Amish farmers have won exceptions from traffic rules; Muslim soldiers have been given special accommodation when fasting for Ramadan; Orthodox Jewish boys won the right to wear their skullcaps when playing high school basketball; a Jehovahs Witness won the right to unemployment compensation after he quit rather than working to produce tank turrets; a Mormon acting student won the right to refuse roles involving nudity or profanity; and in the most controversial recent case, a family-owned business with religious objections to paying for abortion-inducing drugs persuaded the Supreme Court that the government should make those contraceptives available without forcing them to be involved.

In all these cases, courts or agencies came to the conclusion that religious exercise could be accommodated with little or no harm to the public interest or to others. As Justice Sandra Day OConnor (joined by liberal lions Brennan, Marshall, and Blackmun) wrote: courts have been quite capable of applying our free exercise jurisprudence to strike sensible balances between religious liberty and competing state interests. Employment Division v. Smith (1989) (concurring opinion).

At a time when the Supreme Courts same-sex marriage decision has allowed many millions of Americans to live their lives in accordance with their own identity, it would be tragic if we turned our backs on the right to live in accordance with our religious conviction, which is also part of who we are. A robust protection for free exercise of religion is not only part of the American tradition, it is vital to our protection for diversity and freedom.

Freedom of Speech and the Press

Congress shall make no law . . . abridging the freedom of speech, or of the press. What does this mean today? Generally speaking, it means that the government may not jail, fine, or impose civil liability on people or organizations based on what they say or write, except in exceptional circumstances.

Although the First Amendment says Congress, the Supreme Court has held that speakers are protected against all government agencies and officials: federal, state, and local, and legislative, executive, or judicial. The First Amendment does not protect speakers, however, against private individuals or organizations, such as private employers, private colleges, or private landowners. The First Amendment restrains only the government.

The Supreme Court has interpreted speech and press broadly as covering not only talking, writing, and printing, but also broadcasting, using the Internet, and other forms of expression. The freedom of speech also applies to symbolic expression, such as displaying flags, burning flags, wearing armbands, burning crosses, and the like.

The Supreme Court has held that restrictions on speech because of its contentthat is, when the government targets the speakers messagegenerally violate the First Amendment. Laws that prohibit people from criticizing a war, opposing abortion, or advocating high taxes are examples of unconstitutional content-based restrictions. Such laws are thought to be especially problematic because they distort public debate and contradict a basic principle of self-governance: that the government cannot be trusted to decide what ideas or information the people should be allowed to hear.

There are generally three situations in which the government can constitutionally restrict speech under a less demanding standard.

The rest is here:
First Amendment – National Constitution Center

 Posted by at 11:40 am  Tagged with:

First Amendment – constitution | Laws.com

 Misc  Comments Off on First Amendment – constitution | Laws.com
Oct 282015
 

The First Amendment of the United States Constitution is contained in the Bill of Rights. The First Amendment has proven to be one of the most fundamental and important in respects to the rights attributed to the populace of the United States. Originally, the First Amendment was implemented and applied solely to Congress. However, by the beginning of the twentieth century, it was upheld that the First Amendment is to apply to all forms of government, including state and local levels. The Supreme Court decided that the Fourteenth Amendment Due Process Clause would apply to the 1st Amendment, and thus rendering such a decision.

As stated in the United States Constitution, Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, of of the press; or the right of the people peaceably to assemble and to petition the Government for a redress of grievances. Though a relatively short and concise assertion, the text provides for quite an encompassing set of rights that protect the citizens of the United States, and some of the most important and basic human rights. The First Amendment has many clauses that relate to each of the concepts that it sets out to protect. Religion is discussed in two clauses, one regarding the establishment of religion, and the other the free exercise of religion.

This proves to be one of the most important rights to secure by the Fathers of the Constitution, for so many people of European descent immigrated to the American Colonies to avoid religious persecution, and to find a safe haven to practice their religion of choice without any dire consequences. The First Amendment prohibits the government to establish a formal or national religion for the nation. It also addresses that there will be no preference of any particular religion, including the practice of no religion, or non religion.

The 1st Amendment guarantees the people of the United States the free exercise of religion, without interference from governmental factions. This right would also extend to any organization or individual infringing on such right, and would be deemed as unconstitutional.

One of the most commonly referred to clauses under the 1st Amendment is the freedom of speech. This clause has proven to be of great importance, particularly in the twentieth century and continues on with such regard in our lifetime. Under the text of the First Amendment, many issues are addressed regarding Freedom of Speech, and restrictions to exist in which such a practice may prove to be harmful to the general population or public. An example is the concept of sedition, and how this conduct can lead to insurrection against the government.

Other concepts also addressed include commercial speech, political speech, obscenity, libel, slander, and symbolic speech, such as the desecration of the American Flag. Under the First Amendment, there have been important and key court cases that have established a form precedence in how to apply the Amendment to these kinds of circumstances. The Freedom of the press is also included, and subject to similar restrictions as the freedom of speech.

The rights to petition and assembly often seem to be overlooked, for freedom of religion and speech are most commonly associated with the 1st Amendment. The right to petition is important because it gives citizens the opportunity to address their government in issues that have relevance and importance to the commonwealth. The formulation of an assembly, under the First Amendment, can be interpreted as citizens gathering and unifying for the purpose of communicating views or opinions on national issues, and for the relaying of pertinent information. The right to assembly is often related to that of petition, in such a way where citizens may assemble in the process of petitioning the government.

comments

Originally posted here:
First Amendment – constitution | Laws.com




Pierre Teilhard De Chardin | Designer Children | Prometheism | Euvolution | Transhumanism