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India’s government handed over the names of more than 600 Indians with foreign bank accounts to the Supreme Court on Wednesday after public outrage over rampant tax evasion.

The court, which ordered the government to release the list, has given the names to an investigative team that the government set up in June to find the illegal funds that tax dodgers have parked overseas.

The court set a deadline of March 31 next year for the team to complete its probe and begin legal action against tax evaders.

Prime Minister Narendra Modi says he wants to prosecute tax dodgers and bring money stashed in tax havens back into the country but little progress has been made since his landslide election victory earlier this year.

Attorney General Mukul Rohatgi said 627 people are named on the list. They all had accounts with a Geneva branch of HSBC, information that was disclosed in 2011 by an employee of the bank and passed to India but not acted on by the previous government. They are likely a tiny fraction of Indians with foreign bank accounts.

The Central Bureau of Investigation, India’s equivalent of the FBI, said in 2012 that $500 billion was held by Indians in tax havens overseas. Funds are stashed in tax havens such as Liechtenstein, British Virgin Islands, Switzerland, Mauritius, Jersey and the Isle of Man.

India has a flourishing “black money” economy that functions parallel to the legal economy. Undeclared income is used to fund election campaigns and buy land or real estate in order to avoid paying property taxes.

On Monday, the government disclosed the names of seven people who it said had illegal accounts abroad. That led to widespread outrage, prompting the court to step in and order the government to reveal all the names that it had.

The government told the court that it was committed to disclosing the names of people holding money abroad illegally. In an affidavit, the government said that since every account held by an Indian in a foreign country may not be illegal, it would investigate the accounts before disclosing the names of account holders.

India’s anti-corruption crusader Arvind Kejriwal said the special investigative team should carry out its probe in a rigorous and timely manner and that government action against tax evaders must be uniform.

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Govt to Probe Indians With Foreign Bank Accounts

Google, Facebook and Twitter are warning that giving companies the power to unmask anonymous Yelp reviewers would strike a blow to Internet free speech.

The right to speak anonymously would be greatly diminished if those who objected to anonymous speech could readily employ civil discovery to unmask a speaker, the companies said in a court brief backing Yelps effort to shield the anonymity of its users, even ones who post critical reviews that may be fraudulent.

The closely watched dispute before Virginias highest court centers on a complaint brought by the owner of Hadeed Carpet Cleaning Inc. in Springfield, Va., Joe Hadeed, who claims his suburban business was besieged by a rash of harsh Yelp reviews in 2012. That summer, as WSJs Angus Loten earlier recounted, Mr. Hadeed sued the seven reviewers for defamation and demanded that Yelp disclose their true identities.

He claims at least seven of the bad reviews about his business were fraudulent possibly posted by competitors including one review that came from Haddonfield, N.J., where the company doesnt do business. He says his sales plummeted after the comments were posted.

A state trial court and the Virginia Court of Appeals sided with Mr. Hadeed, holding Yelp in contempt for not turning over the names. Yelp then took its case to the state Supreme Court, arguing that the reviews are protected under the First Amendment.

The ruling fails to give adequate respect to the First Amendment right to anonymous speech, Google, Facebook, Twitter and three other web companies wrote in a friend-of-the-court brief filed Monday. The brief said Yelp has transformed and elevated this countrys long tradition of town halls, private assemblies, robust debate, and anonymous complaints by bringing it online and making it more accessible to people everywhere.

The document was filed Monday, a day before lawyers representing the two sides argued their case before Virginias high court.

Mr. Hadeeds attorney, Raighne C. Delaney, said the free-speech concerns were overblown, according to an Associated Press report on Tuesdays hearing. These businesses are not looking to go out and sue people for no reason, he said.

He told the judges, according to AP, that his client had first made a good faith effort to determine whether the reviewers were Hadeed customers before demanding that Yelp disclose their identities.

Paul Alan Levy, an attorney for Yelp, argued in court that the mere suspicion that the critical comments werent coming from real customers doesnt justify unmasking the reviewers, according to AP.

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Unmasking Yelp Users Would Hurt Free Speech, Warn Google and Facebook

FILE – In this file image made from video released by WikiLeaks on Oct. 11, 2013, former National Security Agency systems analyst Edward Snowden speaks in Moscow. Faced with congressional inaction to curtail the NSA?s bulk collection of Americans? telephone records, civil liberties groups are looking to cases already in the courts as a quicker way to clarify just what surveillance powers the government should have. Three appeals courts are hearing challenges to the National Security Agency phone records program, creating the potential for an eventual Supreme Court review. Judges in lower courts are grappling with the admissibility of evidence gained through the NSA?s warrantless surveillance. The flurry of activity follows revelations last year by former contractor Edward Snowden of once-secret intelligence collection programs. (AP Photo, File)(The Associated Press)

WASHINGTON While Congress mulls how to curtail the NSA’s collection of Americans’ telephone records, impatient civil liberties groups are looking to legal challenges already underway in the courts to limit government surveillance powers.

Three appeals courts are hearing lawsuits against the bulk phone records program, creating the potential for an eventual Supreme Court review. Judges in lower courts, meanwhile, are grappling with the admissibility of evidence gained through the NSA’s warrantless surveillance.

Advocates say the flurry of activity, which follows revelations last year by former NSA contractor Edward Snowden of once-secret intelligence programs, show how a post-9/11 surveillance debate once primarily hashed out among lawmakers in secret is being increasingly aired in open court not only in New York and Washington but in places like Idaho and Colorado.

“The thing that is different about the debate right now is that the courts are much more of a factor in it,” said Jameel Jaffer, deputy legal director at the American Civil Liberties Union. Before the Snowden disclosures, he said, courts were generally relegated to the sidelines of the discussion. Now, judges are poised to make major decisions on at least some of the matters in coming months.

Though it’s unclear whether the Supreme Court will weigh in, the cases are proceeding at a time when the justices appear increasingly comfortable with digital privacy matters including GPS tracking of cars and police searches of cellphones.

The cases “come at a critical turning point for the Supreme Court when it comes to expectations of privacy and digital information,” said American University law professor Stephen Vladeck.

Revelations that the government was collecting phone records of millions of Americans who were not suspected of crimes forced a rethinking of the practice, and President Barack Obama has called for it to end.

Since then, the House has passed legislation that civil libertarians say did not go far enough. In the Senate, Vermont Democrat Patrick Leahy, the Judiciary Committee chairman, is seeking a vote on a stricter measure to ban bulk collection, and it has bipartisan backing and support from the White House.

As Congress considers the matter, the federal judiciary has produced divided opinions.

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As Congress mulls reining in NSA phone records collection, attention turns to court challenges

Sometimes the First Amendment guarantees access to public records (generally limited to court records). Often Freedom of Information Acts and Public Records Acts are seen as fulfilling broader First Amendment values, by facilitating speech about how the government operates. But in Thursdays Roe v. Anderson (W.D. Wash. Oct. 23, 2014), a federal district judge relied on the First Amendment to block a state public records request.

Washington law requires erotic dancers to get licenses, and the Washington Public Records Act apparently mandates the release of licenses generally, including these licenses. But the dancers, the district judge held, have raised serious questions regarding whether this violates their First Amendment rights, because revealing their names and other personal information can expose them to harassment and threats to their physical safety. (Compare Doe v. Reed (2010), which applied First Amendment scrutiny to disclosure of the names of petition signers, though held that, given the government interests supporting such disclosure, the disclosure was indeed constitutional.) According to the Steve Maynard (Tacoma News Tribune), the man who requested the names said he was curious and he wants to pray for the strippers. I would pray for those dancers by name, David Van Vleet said after the hearing. Im a Christian. We have a right to pray for people.

I should note that this case might be relied on by analogy in Second Amendment cases, in situations where people try to use public records laws to get the names of registered gun owners, or of registered holders of gun carry licenses. (The Supreme Court said, in D.C. v. Heller (2008), that there is no constitutional right to concealed carry, but some courts the Seventh and Ninth Circuit and the Illinois Supreme Court have held that there is a constitutional right to some form of carry, and in some states a license is required for any sort of carrying.) Its always uncertain, of course, how much courts will accept such analogies.

In any event, here are some excerpts from the opinion:


10. Under PCC 5.14.100 and 5.14.110, managers and dancers at an erotic dance studio are required to apply for and maintain managers and dancers licenses that are issued by the Auditor. Under PCC 5.14.080 and 5.14.090, these licenses expire and are renewed on an annual basis.

11. Dancers at Dreamgirls at Foxs identify themselves to patrons by a pseudonym commonly known as a stage name. The purpose of the stage name is to maintain the dancers privacy and to protect them from stalking, harassment, discrimination, public embarrassment, and violence when they are outside the club.

15. Defendants Anderson and Pierce County are subject to the requirements of the Washington Public Records Act, (hereinafter PRA) .

16. The manager and dancer licenses issued and maintained by Defendant Anderson are public records as defined RCW 42.17.020, subsections (36) and (42).

17. Agencies such as the Auditors Office and Defendant Pierce County are required by the PRA to disclose public records upon request to anyone making the request and disclosure of the records is mandatory. The only public records protected from disclosure are those specifically mentioned in a statutory exemption.

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Volokh Conspiracy: First Amendment vs. freedom of information law

The Liberty Threat: Attack on Religious Freedom in America
The struggle for religious liberty has been present since the time of the Roman Empire. By looking at how the Ancient Christian world relates to the failures of our own Supreme Court, it is…

By: Family Research Council

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The Liberty Threat: Attack on Religious Freedom in America – Video

Philadelphia, PA (PRWEB) October 22, 2014

The Third Circuit in U.S. v. Katzin, 2014 U.S. Dist. WL 4851779 (3d Cir. Oct. 1, 2014), reversed its prior decision of the split three-judge panel and ruled that “…when the agents acted, they did so upon an objectively reasonable good-faith belief in the legality of their conduct, and that the good-faith exception to the exclusionary rule therefore applies.”

In the Katzin case, suspecting the defendants of committing various burglaries, police, without a warrant, installed a GPS onto their van, leading to their apprehension. Almost two years later, the Supreme Court in U.S. v. Jones, 463 U.S. 354 (2012) ruled that this exact conduct needed a warrant. A three judge panel of the Third Circuit then held that the Fourth Amendment requires a warrant to install a GPS device on a suspects car. U.S. v. Katzin,732 F. 3d 187 (3d Cir. 2013). Prior to Jones, the Supreme Court had ruled that installing surveillance devices was not necessarily a Fourth Amendment violation. See U.S. v. Karo, 468 U.S. 705 (1984) and U.S. v. Knotts, 460 U.S. 276 (1983). The question before the en banc panel, therefore, was whether the police in Katzin were reasonably relying on these precedents to justify the legality of attaching the GPS device. The en banc panel in Katzin relied upon the U.S. Supreme Court’s decision in Davis v. U.S., 131 S.Ct. 2419 (2011), which held that the good faith exception applies when the police were reasonably relying on binding precedent. Prior to Jones, the Supreme Court had ruled that installing surveillance devices was not necessarily a Fourth Amendment violation.

Ms. Lefeber explains that the Katzin decision effectively eviscerates any Fourth Amendment protection because it creates a good-faith exception to the suppression of ill-gotten evidence.

Judge D. Brooks Smith, similarly, wrote in his dissent:

“The majority’s good-faith analysis is flawed because it finds that, where the law is unsettled, law enforcement may engage in constitutionally reckless conduct and still reap the benefits of the good-faith exception. Fourth Amendment jurisprudence dictates a different outcome. When the law is unsettled, law enforcement should not travel the road of speculation, but rather they should demonstrate respect for the constitutional mandateobtain a warrant. Anything less would require suppression.” Katzin, Ibid.

About Hope Lefeber:

In practice since 1979, Lefeber is an experienced and aggressive criminal defense attorney in Philadelphia. As a former Enforcement Attorney for the U.S. Securities & Exchange Commission, Lefeber uses the knowledge she gained while working for the government to best defend her clients facing serious state and federal charges related to drug offenses and white collar crime, including business and corporate fraud, mail and wire fraud, money laundering, financial and securities fraud, and tax fraud. A member of the invitation-only National Trial Lawyers Top 100, Lefeber has been recognized by Thomson Reuters as a 2014 Super Lawyer. She has represented high-profile clients, published numerous articles, lectured on federal criminal law issues, taught Continuing Legal Education classes to other Philadelphia criminal defense attorneys and has been quoted by various media outlets, from TV news to print publications.

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Third Circuit Allows Evidence from Warrantless GPS Device

The Supreme Court is weighing in on another Fourth Amendment privacy case, this one concerning a Los Angeles ordinance requiring hotels to surrender guest registries to the police upon request without a warrant.

Thejustices agreed(PDF) Monday to hear Los Angeles’ appeal of a lower court that ruled7-4 that the lawmeant to combat prostitution, gambling, and even terrorismwas unconstitutional. The law(PDF) requires hotels to provide the informationincluding guests’ credit card number, home address, driver’s license information, and vehicle license numberat a moment’s notice. Several dozen cities, from Atlanta to Seattle, have similar ordinances.

“The Supreme Court will consider both the scope of privacy protections for hotel guests and also whether the Fourth Amendment prohibits laws that allow unlawful searches,” EPIC wrote. “The second issue has far-reaching consequences because many recent laws authorize the police searches without judicial review. Thus far, courts have only considered “as applied” challenges on a case-by-case basis.”

The appeal is the third high-profile Fourth Amendment case the justices have taken in three years.

In 2012, the justices ruled that authorities generally need search warrants when they affix GPS devices to a vehicle. And earlier this year, the Supreme Court said that the authorities need warrants to peek into the mobile phones of suspects they arrest.

In the latest case,Los Angeles motel owners sued, claiming that the law was a violation of their rights. The 9th US Circuit Court of Appeals agreed with the motel owners in December and said the only documentsthey must disclose include a hotel’s proprietary pricing and occupancy information.

Businesses do not ordinarily disclose, and are not expected to disclose, the kind of commercially sensitive information contained in the records, Judge Paul Watford wrote for the majority. He said a hotel has “the right to exclude others from prying into the contents of its records.”

In dissent, Judge Richard Clifton wrote that neither the hotel nor the guest has an expectation of privacy.”A guest’s information is even less personal to the hotel than it is to the guest,” Clifton said.

In arguing to the justices that they should review the majority’s conclusion, Los Angeles city officials wrote(PDF), “These laws expressly help police investigate crimes such as prostitution and gambling, capture dangerous fugitives and even authorize federal law enforcement to examine these registers, an authorization which can be vital in the immediate aftermath of a homeland terrorist attack.”

Thehigh court did not set a hearing date.

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Supreme Court to decide if cops can access hotel registries without warrants

PITTSBURGH — An evidence suppression hearing for Pennsylvania Cyber Charter School founder Nick Trombetta will stretch into November after another day of arguments Monday was more notable for who did not testify than for who did.

Beaver County solicitor Joe Askar, who also represents the Rochester-based National Network of Digital Schools, invoked his Fifth Amendment rights against self-incrimination and refused to testify. Askar was subpoenaed by Trombettas defense team in their effort to get recorded conversations with attorneys, including him, tossed out by U.S. District Court Chief Judge Joy Flowers Conti.

Trombetta — who faces 11 federal charges — is claiming that the FBI violated his attorney-client privilege by recording discussions with Askar, former PA Cyber attorney Timothy Barry, and Ralph Monico and Leo Daly, attorneys who also represented NNDS. A Sept. 30 hearing was continued until Monday.

Mr. Askar has neither committed nor been charged with any crime. Nor will he be. As the U.S. Supreme Court has said, the privilege is available not only to protect the guilty, but also the innocent: We have emphasized that one of the Fifth Amendments basic functions is to protect innocent men, who otherwise might be ensnared by ambiguous circumstances, Bruce Teitelbaum, Askars attorney, said in a statement.

The ambiguities inherent in this complex matter and the possibility of misunderstanding compelled me, out of caution, to advise Mr. Askar to invoke his privilege, Teitelbaum said.

Barry was called to the stand by defense attorney Adam Hoffinger later in the day, but was excused after a lengthy off-the-record sidebar involving his attorney, Trombettas lawyers and prosecutors. Hoffinger said Barry would be recalled when the hearing continues next month.

Trombetta attorney Robert Salerno quizzed FBI agent Samantha Bell, the lead investigator, on synopses of calls monitored by agents, instructions to agents on recording calls and minimization, the FBIs name for when agents stop listening to calls that are irrelevant or might be protected by attorney-client privilege.

After Barry was excused, FBI agent Paul Allen took the stand and was questioned by Hoffinger on a June 2012 synopsis of a recorded call on which he noted that Trombetta would be talking to his attorney.

Hoffinger wondered how agents could know when to stop recording privileged communications if they truly did not know whether Trombetta had a personal attorney. Allen said he did not exactly remember, but testified that he might have simply written the note to be cautious.

Im not sure why I used the personal pronoun his, Allen said. I didnt mean anything by it.

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Agents questioned, Askar takes the Fifth in Trombetta hearing

Oct 202014

Gun Sense
It's time for gun control reform. Carrying guns into public restaurants and bars only lays ground work for potential trouble. The Supreme Court has ruled that the Second Amendment does not…

By: gmagic911X

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Gun Sense – Video

New Delhi, Oct 17 (IANS) The central government Friday told the Supreme Court that it could not disclose the names, received from foreign governments, of people who have allegedly stashed away their ill-gotten money to tax havens, as it was bound by the confidentiality clause under the double taxation avoidance agreement.

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Can't reveal names of account holders in tax havens, government to SC

New Delhi, Oct 17 (IANS) The Narendra Modi government's submission in the Supreme Court Friday that it cannot disclose names, received from foreign governments, of people who have allegedly stashed away their ill-gotten money in tax havens abroad triggered a war of words between the Congress and BJP.

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Political duel after government says can't name tax haven account holders

The central government Friday told the Supreme Court that it could not disclose the names, received from foreign governments, of people who have allegedly stashed away their ill-gotten money to tax havens, as it was bound by the confidentiality clause under the double taxation avoidance agreement.

Its stand was made in an application seeking modification of an earlier court order asking it to disclose the names all such people it had received from German government to the petitioner Ram Jethmalani.

Attorney General Mukul Rohatgi mentioned the application for an urgent hearing before the a bench of Chief Justice H.L.Dattu, Justice Madan B. Lokur and Justice A.K.Sikri.

The government has said that the names of such account holders against whom the prosecution has been launched could be disclosed as they are in public domain but in case of others, it was bound by the confidentiality clause.A

The government has said that such disclosures would be counter productive for get information on black money stashed away in tax havens as foreign governments would not share such information in future.

The court had Aug 20 directed the central government to give Jethmalani details of the account holders in banks of Liechtenstein that were submitted to the court on May 1. The court’s order came as senior counsel Anil Divan told the court that government had given him the names of 18 people against whom prosecution has been launched but held back the names of eight people.

However, senior counsel Ram Jethmalani, the petitioner in the plea seeking steps to bring back the black money stashed away to tax havens, assailed the government position saying that it could be position of people involved in taking ill-gotten money to tax havens and not that of the government.

Jethmalani Friday told the court that he had written a letter to Prime Minister Narendra Modi on the issue.

The apex court by its July 4, 2011 order had set up the SIT which was mandated to undertake the investigations into the unaccounted money stashed away outside the country in tax havens and foreign banks and take steps to bring it back.

The SIT comprises the revenue secretary, the deputy governor of the Reserve Bank of India, the director of the Intelligence Bureau, the director, enforcement directorate, the director, of the Central Bureau of Investigation, the chairman of the Central Board of Direct Taxes, the director general of the Narcotics Control Bureau, director general, Revenue Intelligence, director, Financial Intelligence Unit, and Joint Secretary, (FT & TR-I) in the CBDT. The court had said that SIT would also include director, Research and Analysis Wing (RAW).

Can't reveal names of account holders in tax havens, government to Supreme Court

Fuck the Motherfucking Police Freedom of Speech Use it or Lose it
KNOW YOUR RIGHTS read – To the Police: You Are NOT the Enemy (Unless You Choose to Be.) The Supreme Court recommends you DON'T talk to police officers, …

By: policecrimecom

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Fuck the Motherfucking Police Freedom of Speech Use it or Lose it – Video

Speech: The First Amendment in the Spotlight
Elevator Repair Service created its show Arguendo from a Supreme Court transcript of oral arguments from a First Amendment case. Leading experts in First Amendment law and the Supreme Court…

By: Arts Ideas

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Speech: The First Amendment in the Spotlight – Video

Oct 162014

The draft sent more than 2 million Americans to Vietnam, many of them baby boomers. Millions more avoided the war through deferments. Draft dodgers burned their cards to protest the war. (Loan, Gary E. Stevens)

The First Amendment took center stage in anti-war demonstrations 49 years ago this week, as the first draft card was burned in public amid nationwide protests decrying U.S. involvement in the escalating Vietnam conflict.

In August 1965, Congress passed a law prohibiting the willful destruction of draft cards. Two months later, a young Catholic pacifist, David Miller, burned his draft card in front of a crowd a rally in New York part of the Vietnam Day Committees International Days of Protest Oct. 15-16. Miller was later arrested by the FBI and sentenced to 30 months in prison. Despite the law, draft card burning became a common form of anti-war protest, even though numerous court decisions including the 1968 U.S. Supreme Court caseUnited States v. OBrien ruled that the law did not violate protesters First Amendment rights to free speech.

When Newseum curators were collecting artifacts for The Boomer List exhibit, they wanted to include a draft card from the era as a defining symbol of the boomer generations story. But they were having a hard time finding one to display. On a hunch, director of collections Carrie Christoffersen called her father, who promptly unearthed his draft card and mailed it to the Newseum, still in its plastic wallet sleeve. Why did he have it after all these years? Christoffersen said her father told her, half-jokingly, Its a federal document! You cant get rid of that kind of thing.

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International Days of Protest

While some school districts have tried to prevent certain forms of offensive or vulgar speech in grade schools, Penn State spokeswoman Lisa Powers said free speech is important to protect at the college level.

In March, the Supreme Court ruled that Easton Area School District could not ban the I (Heart) Boobies! bracelets, said Molly Tack-Hooper, one of the attorneys who represented two students in the school district who were fighting for the right to wear the bracelets.

The issue revolved around whether the school district has the right to censor what it viewed to be vulgar speech or whether it violates the Constitution to simply enforce its own standard of what is lewd or vulgar, American Civil Liberties Union attorney Tack-Hooper said.

The I (Heart) Boobies! bracelets were made by the Keep A Breast Foundation to spread awareness for breast cancer.

Constitutional rights dont end at schoolhouse gates, Tack-Hooper said.

Free speech is something that concerns Penn State students as well.

There are a number of incidents in any university’s past that have called for protection of the First Amendment, Powers said via email.

She said issues include costumes of poor taste, suggestive displays, provocative speech on campus, sexually explicit events, distasteful and bloody posters [and] slogans on shirts.

These have all been part of Penn States past, Powers said.

But despite public outcry, these are all forms of free speech, she added.

Penn State reflects on free speech after Supreme Court ruling

Minneapolis officials are reportedly considering legal action to prevent the Washington Redskins name from being used at TCF Bank Stadium.

The Minnesota Daily reports that the city attorney is investigating whether the city has legal authority to ban the football teams name and logo.

I have my doubts, said Cam Gordon, who represents the University and surrounding areas on the City Council.

He said there might be issues with the ban violating freedom of speech. And at a council committee meeting late last month, the councilman called the issue a minefield.

You think?

Its the most horrific name in sports history, said Clyde Bellecourt, founder of the Minneapolis-based American Indian Movement.

Hes right, of course. It is.

And hate speech can be suppressed without violating the First Amendment if it causes the listener to react violently. But, the Supreme Court has made clear that people still have a right to hateful speech.

That officials in Minnesota are being pressed to challenge that right is not without some irony because Minnesota has had more than its share of assaults on the First Amendment.

A 1992 case before the Supreme Court defined the difference between hateful acts of hateful speech when it overturned the conviction of a teenager for burning a cross on the lawn of an African American St. Paul family.

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Racist names meet the First Amendment in Minneapolis

Three noted political scientists (Profs. Lee Epstein, Jeffrey Segal & Christopher Parker, whom Ill call Epstein et al.) recently posted a study (see also here) saying that many Supreme Court Justices votes in free speech cases are strongly correlated to the ideology of the speech or the speaker. [T]he votes of both liberal and conservative Justices tend to reflect their preferences toward the ideological grouping of the speaker, and not solely an underlying taste for (or against) the First Amendment.

We [report] the percentage of votes each Justice cast supporting free speech when the speaker is liberal and when the speaker is conservative. The probability of Scalia voting in favor of a liberal speaker is about .22; for conservative speakers, its .62. The Supreme Court (and its members) can appear more or less supportive of free expression depending on whether it decides cases with speakers left or right of center. (Note that the authors state that their coding of liberal vs. conservative speakers focuses on the ideological content of the specific speech, rather than the broader partisan or ideological beliefs of the speaker.)

The study got extensive coverage in various places, including in the New York Times. Unsurprisingly, the coverage characterized the study in similar ways. In cases raising First Amendment claims, a new study found, Justice Scalia voted to uphold the free speech rights of conservative speakers at more than triple the rate of liberal ones.

But looking closely at the study aided by a detailed response posted by Prof. Todd Pettys and a reply posted by Epstein et al. (including Appendix C) suggests that the study doesnt really support these assertions. Let me discuss this in a bit of detail.

1. To begin with, how can one measure whether speakers are left or right of center when the case involves speech and speakers that arent particularly ideological, or that are ideological in ways that are hard to see as liberal or conservative or involves a bipartisan (or multi-ideological) coalition of claimants?

One possible answer would be to exclude these cases from the analysis, by coding them as neither. (Indeed, when the study looks at the ideological valence of the government action being challenged, as opposed to the ideological valence of the speech, it has a no direction option.) But this is not the approach that the study took; instead, they labeled all cases as involving a conservative speaker or a liberal speaker. Thus, just to give some examples (and this isnt meant as an exhaustive list):

2. Now one possible response indeed, the one seemingly offered by Epstein et al. is that these cases were coded based on whether the law stemmed from a generally conservative or liberal ideological policy (or, relatedly, whether the legal challenge to the law was associated with a conservative or liberal view of free speech). Thus, for instance, Epstein et al.s explanation for the coding of Wisconsin v. Mitchell was, Hate crime laws are liberal laws, so speaking out against them is coded as conservative speech. (By speaking out here, I take it the authors mean litigating against, since Mitchell was prosecuted for violating the hate crime law, not for speaking out against it.) Likewise, for the rape victim name case, the authors write, [k]eeping [the identity of a victim of sexual assault] private is more of a liberal interest, so the speech is coded as conservative; Im not sure whether thats an accurate summary of political views now, or in 1989, but in any event it focuses on the ideology behind the law, not on the ideology of the speaker.

The coding of the violent video game case as involving a conservative speaker was justified on the grounds that restricting (the business of) violent video games in the name of protecting children is more frequently supported by liberals and derided by conservatives as an example of the nanny state. The various cases involving bipartisan challenges to election laws were often coded as conservative, Epstein et al. say, because a challenge motivated to bring about greater inclusion in the political process is liberal regardless of the challengers partisan label. And challenges to election laws by third-party speakers, such as Forbes, were coded as liberal because greater inclusion in the political process is coded as liberal regardless of the partisanship of the speaker.

3. But when the claim is that conservative Justices are more willing to vote to uphold laws that reflect conservative legal principles (or accept free speech challenges that conservatives tend to like), thats a very different claim from the claim that toward the ideological grouping of the speaker (emphasis added).

Indeed, this revised claim in part simply reflects what we mean by conservative and liberal. For instance and I speak here just of general tendencies, from which some on each side dissent historically pornography bans have been seen as part of a conservative policy agenda. Conservative Justice Scalia has long argued in favor of the constitutionality of such bans, and many conservatives (though not all) have agreed with him in some measure. Liberal Justice Douglas had long argued against the constitutionality of such bans, and many liberals (though not all) have agreed with him in some measure. But that simply reflects that, when we say a Justice is conservative, we generally mean that the Justice tends to endorse a conservative view of the law, of the Constitution, and of the judicial role, and similarly for liberals.

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Volokh Conspiracy: The Justices, the freedom of speech, and ideology

Posted: Monday, October 13, 2014 7:53 am

Love the outdoors and being Minnesotan The Pilot Independent

I received a mailing urging me to vote for Stewart Mills because he loves the outdoors and respects the Second Amendment. I, too, love the outdoors and respect the Second Amendment.

I have a conceal/carry permit. I hunt deer and small game. I manage our 260 acres of woodlands for healthy habitat for game animals and other wildlife, including the golden wing warbler. Fortunately, our private right to bear arms already has been secured by the decision of the US Supreme Court.

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Love the outdoors and being Minnesotan

By Elisabeth Hulette The Virginian-Pilot October 12, 2014


Picture this: You’re being prosecuted for a crime.

Police have a search warrant for your iPhone, but they can’t open it without your pass code. Now they’re asking a judge to order you to give it up. What do you do?

If you’re David Baust, you put up a fight. The Emergency Medical Services captain, who is charged with trying to strangle his girlfriend during a fight in February, argues the move raises a Fifth Amendment issue – that by opening his phone, he could incriminate himself.

A judge will decide Baust’s case, but it’s unlikely to settle the issue for good. Apple and Android recently announced plans to dramatically increase the amount of information on their phones that’s automatically encrypted – translated into code – making it far more difficult for law enforcement officials to get the access they say they need to convict criminals.

As that happens, attorneys and experts say, the courts are likely to see more cases pitting prosecutors and police against pass codes.

“It’s a bitterly disputed debate on all fronts,” said Sharon Nelson, immediate past president of the Virginia State Bar and the president of Sensei Enterprises, a digital forensics company in northern Virginia.

“You can see the need of law enforcement on the one hand,” she said. “On the other, the Fourth Amendment means nothing if you have to turn your life over to the government.” The Fourth Amendment prohibits unreasonable searches.

Police access to cellphones changed radically after a June ruling by the U.S. Supreme Court. Officers still can extract information from cellphones of people who are arrested but now need a court-issued search warrant.

The rest is here:
Code cases: Police want phone access, but some pass

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