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Religious Freedom Debates Make Evangelicals More Tolerant, Study Finds

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

April 10, 2015|4:46 pm

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

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

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

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

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

(Photo: The Christian Post/Sonny Hong)

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

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

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

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Religious Freedom Debates Make Evangelicals More Tolerant, Study Finds

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Then it lists a series of Supreme Court precedents.

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

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

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

Supreme Court Rules Government GPS Trackers Can Break Fourth Amendment

 Fourth Amendment  Comments Off on Supreme Court Rules Government GPS Trackers Can Break Fourth Amendment
Mar 312015
 

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

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

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

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

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

Image by Canned Muffins under Creative Commons license

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Supreme Court Rules Government GPS Trackers Can Break Fourth Amendment

Supreme Court scraps section 66A of IT Act – Video

 Free Speech  Comments Off on Supreme Court scraps section 66A of IT Act – Video
Mar 282015
 



Supreme Court scraps section 66A of IT Act
With the Supreme Court scrapping Section 66A of the Information Technology Act, haters of free speech come together for group therapy. Watch more videos: http://www.ndtv.com/video?yt.

By: NDTV

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Supreme Court scraps section 66A of IT Act – Video

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

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



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

By: NewsClickin

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

Religious Freedom Bill Might Rile 2016 Race

 Freedom  Comments Off on Religious Freedom Bill Might Rile 2016 Race
Mar 272015
 

World News Videos | US News VideosCopy

Indiana Gov. Mike Pence stirred fierce backlash from critics by signing a “religious freedom” law on Thursday, and he might have also shaken up the 2016 presidential race in the process.

The former congressman and potential 2016 presidential candidate signed into law a controversial state Senate bill that simply states the government can’t interfere with people and businesses exercising their religious beliefs. Religious freedom is already protected under the U.S. Constitution, and Pence posed the new law as an innocuous affirmation of the Supreme Court’s Hobby Lobby ruling, against the mandate for employer-provided birth-control coverage under Obamacare.

Known as a social conservative, Pence has said he’s considering a White House run and will reportedly decide sometime this spring.

The bill has sparked intense backlash online, but it’s won a very important fan for Pence: Bob Vander Plaats, the noted Iowa-caucus kingmaker who heads up the FAMiLY Leader, a socially conservative group that exercises notable political influence in the critical primary-campaign state.

“I think it definitely boosts his credibility, not just with a group like ours, but for any freedom-loving American who wants to have a full-spectrum conservative in the White House,” Vander Plaats told ABC News.

Since Pence signed the bill, critics have lashed out at the governor online. Miley Cyrus posted a photo of Pence on Instagram, calling the governor an “a**hole.” Businesses reportedly lobbied against the bill, and Yelp’s CEO said it sets a “terrible precedent.”

Pence defended the law at a press conference on Friday after he signed it, saying it is “not about discrimination” and pointing to similar laws in other states, and to the federal Religious Freedom Restoration Act signed into law by president Bill Clinton. Pence said he thinks there has been a lot of “misunderstanding” surrounding the bill.

Critics see it differently. The bill “absolutely does” give a green light to discrimination, according to Jenny Pizer, national director of law and policy at Lambda Legal, an LGBT legal-defense and advocacy group.

“Many people take these bills as a message that the usual rules to not apply, and that other people should endure mistreatment if that is based on a religious motive,” Pizer said.

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Religious Freedom Bill Might Rile 2016 Race

Sec 66A: Satirist Kunal Vijaykar Proclaims Victory For Free Speech – Video

 Free Speech  Comments Off on Sec 66A: Satirist Kunal Vijaykar Proclaims Victory For Free Speech – Video
Mar 272015
 



Sec 66A: Satirist Kunal Vijaykar Proclaims Victory For Free Speech
Satirist Kunal Vijaykar welcomes Supreme Court decision on 66A.

By: The Quint

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Sec 66A: Satirist Kunal Vijaykar Proclaims Victory For Free Speech – Video

The SACEUR responds as NATO readiness and speed of response is being questioned. – Video

 NATO  Comments Off on The SACEUR responds as NATO readiness and speed of response is being questioned. – Video
Mar 262015
 



The SACEUR responds as NATO readiness and speed of response is being questioned.
Gen. Phil Breedlove, NATO Supreme Allied Commander Europe, answers two questions about what NATO does to speed up its decision making processand to adapt to new forms of future conflicts, …

By: SHAPE ACO

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The SACEUR responds as NATO readiness and speed of response is being questioned. – Video

Supreme Court upholds free speech on the net – Video

 Free Speech  Comments Off on Supreme Court upholds free speech on the net – Video
Mar 262015
 



Supreme Court upholds free speech on the net
In a landmark judgement, the Supreme Court strikes down the draconian Section 66(A) of the IT Act. It is a huge win for free speech in India, but ironically, the political parties that supported…

By: NDTV

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Supreme Court upholds free speech on the net – Video

Yugoslav Army going to war against US/NATO imperialists, 1999. – Video

 NATO  Comments Off on Yugoslav Army going to war against US/NATO imperialists, 1999. – Video
Mar 252015
 



Yugoslav Army going to war against US/NATO imperialists, 1999.
In 23rd March of 1999, one day before US/NATO aggression against FR Yugoslavia (Serbia and Montenegro), after the order of Supreme Commander Slobodan Miloevi, Yugoslav Army started …

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Yugoslav Army going to war against US/NATO imperialists, 1999. – Video

Volokh Conspiracy: Federal court rejects Third Amendment claim against police officers

 Fifth Amendment  Comments Off on Volokh Conspiracy: Federal court rejects Third Amendment claim against police officers
Mar 242015
 

Back in 2013, a lot of attention focused on a Third Amendment claim against Henderson, Nevada police officers. I wrote about the case here. The Third Amendment, which forbids the quartering of soldiers in private homes without the owners consent, is often the butt of jokes because it is so rarely litigated. But in this case, a Nevada family claimed that local police had violated the Amendment by forcibly occupying their home in order to gain a tactical advantage against suspected criminals in the neighboring house.

In this recent ruling, federal district court Judge Andrew Gordon dismissed the Third Amendment claim [HT: VC reader Sean Flaim]. Although it occurred several weeks ago, the ruling seems to have gotten very little attention from either the media or legal commentators outside Nevada. That is unfortunate, because the ruling raises important issues about the scope of the Third Amendment, and its applicability against state and local governments. A Here are the key passages from the opinion:

In the present case, various officers of the HPD and NLVPD entered into and occupied Lindas and Michaels home for an unspecified amount of time (seemingly nine hours), but certainly for less than twenty-four hours. The relevant questions are thus whether municipal police should be considered soldiers, and whether the time they spent in the house could be considered quartering. To both questions, the answer must be no.

I hold that a municipal police officer is not a soldier for purposes of the Third Amendment. This squares with the purpose of the Third Amendment because this was not a military intrusion into a private home, and thus the intrusion is more effectively protected by the Fourth Amendment. Because I hold that municipal officers are not soldiers for the purposes of this question, I need not reach the question of whether the occupation at issue in this case constitutes quartering, though I suspect it would not.

This reasoning is very plausible and quite possibly correct. But it may too readily conclude that municipal police can never be considered soldiers for purposes of the Amendment. When the Amendment was enacted in 1791, there were virtually no professional police of the sort we have today. The distinction between military and law enforcement officials was far less clear than in the world of 2015. Moreover, many parts of the Bill of Rights were in part of inspired by abuses committed by British troops attempting to enforce various unpopular laws enacted by Parliament.

A second complicating factor is the increasing militarization of police forces in many parts of the country, which has resulted in cops using weapons and tactics normally associated with military forces. If a state or local government decides to quarter a SWAT team in a private home, it is not clear whether that is meaningfully different from placing a National Guard unit there.

In sum, Judge Gordon may well be right that the officers involved in this case are not plausibly considered soldiers under the Third Amendment. But he is too quick to conclude that no municipal police officer could ever qualify as such.

The issue of how long the soldiers (or militarized police) have to stay in a private home before their occupation of it qualifies as quartering is also a tough question. Without actually resolving the issue, Judge Gordon suspects that a 9 to 24 hour period is too short. I am not convinced. It seems to me that spending one night in the house does qualify as quartering, albeit for only a brief period. Just as the First Amendment covers even brief restrictions on freedom of speech and the Fifth Amendment requires compensation for the taking of even small amounts of private property, so the Third Amendment forbids even brief involuntary quartering of troops in private homes.

It is also worth noting that the Third Amendment is (along with the Seventh Amendment) one of the few parts of the Bill of Rights that has not yet been incorporated against state governments by the Supreme Court. Judge Gordon follows a 1982 Second Circuit decision in concluding that the Amendment does apply to state governments. I think that is almost certainly the right conclusion. Over the last few decades, leading scholars on different sides of the political spectrum have converged on the conclusion that the Fourteenth Amendment was originally understood to incorporate all of the individual rights protected by the Bill of Rights. It would be anomalous for courts to refuse to apply the Third Amendment to the states when almost all of the rest of the Bill of Rights does apply to them. A future Supreme Court decision on the subject would need to address the issue in more detail than Judge Gordon gives it here.

The difficult issues raised by the militarization of police forces suggest that it may be time to stop treating the Third Amendment as just a punchline for clever legal humor. Contrary to popular belief, there have been some egregious violations of the Amendment in the past, and we should not be too quick to assume such things wont recur.

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Volokh Conspiracy: Federal court rejects Third Amendment claim against police officers

Madison’s Music – Video

 Misc  Comments Off on Madison’s Music – Video
Mar 242015
 



Madison's Music
What if most of what we think we know about reading the text of the First Amendment is just wrong? For years, the Supreme Court has treated the First Amendment like a laundry list of isolated…

By: Tom McIntyre

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Madison’s Music – Video

How the First Amendment affects your specialty license plate

 Misc  Comments Off on How the First Amendment affects your specialty license plate
Mar 242015
 

GWEN IFILL: It was a busy day at the Supreme Court. The justices decided not to take up a voter I.D. case out of Wisconsin, and they heard arguments over the right to issue license plates in Texas that feature a Confederate Flag.

NewsHour contributor Marcia Coyle of The National Law Journal was there again and joins me now.

Lets start by talking about this Wisconsin case. In 2011, it was a big deal, this idea that voters had to present photo I.D.s at the polls. And this was considered by Democrats to be voter suppression and by Republicans a chance to beat back voter fraud.

So now this gets to the Supreme Court, and they decided to end it?

MARCIA COYLE, The National Law Journal: Not really.

They decided not to hear the Wisconsin case, so that leaves in place the lower court decision upholding Wisconsins law. But the court said nothing about the merits of the challenge to Wisconsins law. And, Gwen, right now, there are a number of other cases pending and moving up the pipeline that challenge other states voter I.D. laws, and, in particular, Texas and North Carolina.

Texas, there was a full-blown trial and the judge in that case found intentional racial discrimination by the state of Texas, unlike in Wisconsin. That case is now on appeal in the Fifth Circuit, and it is expected whoever loses will take it to the Supreme Court. So as of today, we really dont know how the justices think about some of these laws.

GWEN IFILL: But we know that, originally, this was put on hold not because of the merits of the case, but because it was too close to an election.

MARCIA COYLE: Exactly. Theres a court doctrine. The court doesnt like to see changes to election law shortly before elections.

The Wisconsin law was going to go in effect right before midterm elections. Now, today, the ACLU and other groups that have challenged Wisconsins law immediately went to the lower court to ask again that it be put on hold temporarily, because there is an April 6, I believe, election. And, again, they havent had time to implement the changes.

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How the First Amendment affects your specialty license plate

Justices struggle with free speech case over license plates

 Free Speech  Comments Off on Justices struggle with free speech case over license plates
Mar 242015
 

By MARK SHERMAN Associated Press

WASHINGTON (AP) – In a dispute over a proposed Confederate battle flag license plate, the Supreme Court struggled Monday to balance worries about government censorship and concerns that offensive messages could, at worst, incite violence.

Nearly 150 years after the end of the Civil War, the justices heard arguments in a case over Texas’ refusal to issue a license plate bearing the battle flag. Nine other states allow drivers to display plates with the flag, which remains both a potent image of heritage and a racially charged symbol of repression.

Specialty license plates are big business in Texas. They brought in $17.6 million last year and state officials said there are now nearly 450 messages to choose from, from “Choose Life” to the Boy Scouts and hamburger chains.

The state rarely rejects a specialty plate, but it did turn down a request by the Texas division of the Sons of Confederate Veterans for a license plate with its logo bearing the battle flag. The group’s lawsuit led to Monday’s hearing.

The justices seemed uncomfortable with arguments advanced by both sides – the state in defense of its actions, and the Sons of Confederate Veterans in their appeal for the symbol.

If the court finds the state must permit the battle flag on license plates, Justice Ruth Bader Ginsburg asked in a series of questions, would it be forced also to allow plates with a swastika, the word “jihad,” and a call to make marijuana legal?

Yes, lawyer R. James George Jr., a law clerk to Supreme Court Justice Thurgood Marshall 45 years ago, responded each time on behalf of the veterans group.

“That’s okay? And ‘Bong hits for Jesus?'” Ginsburg said, reaching back to an earlier case involving students’ speech rights.

Again, George said yes, and remained firm even when Justice Elena Kagan added in “the most offensive racial epithet you can imagine.”

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Justices struggle with free speech case over license plates

Justices hear free speech dispute over Confederate flag license plate

 Free Speech  Comments Off on Justices hear free speech dispute over Confederate flag license plate
Mar 242015
 

The U.S. Supreme Court takes up a free speech case on whether Texas was wrong in rejecting a specialty vehicle license plate displaying the Confederate flag to some an emblem of Southern pride and to others a symbol of racism. Photo by Texas Department of Motor Vehicles/Handout via Reuters

WASHINGTON The Supreme Court is weighing a free-speech challenge to Texas refusal to issue a license plate bearing the Confederate battle flag.

Specialty plates are big business in Texas, where drivers spent $17.6 million last year to choose from among more than 350 messages the state allows. The Texas Department of Motor Vehicles says nearly 877,000 vehicles among more than 19 million cars, pickup trucks and motorcycles registered in Texas carry a specialty plate.

But a state motor vehicle board turned down a request by the Texas division of the Sons of Confederate Veterans for a license plate with its logo bearing the battle flag, similar to plates issued by eight other states that were members of the Confederacy, as well as Maryland.

The justices are hearing arguments Monday over whether the state violated the groups First Amendment rights.

Texas commemorates the Confederacy in many ways, but it says that putting the battle flag on license plates would offend many Texans who believe the flag is a racially charged symbol of repression. The same image is etched on a century-old Civil War monument on the grounds of the state Capitol in Austin.

The First Amendment dispute has brought together some unlikely allies, including the American Civil Liberties Union, anti-abortion groups, Americans United for Separation of Church and State, civil libertarian Nat Hentoff and conservative satirist P.J. ORourke.

In a free society, offensive speech should not just be tolerated, its regular presence should be celebrated as a symbol of democratic health however odorous the products of a democracy may be, Hentoff, ORourke and others said in a brief backing the group.

The case could be important for how the Supreme Court determines whether the speech at issue belongs to private individuals or the government.

Texas main argument to the Supreme Court is that the license plate is not like a bumper sticker slapped on the car by its driver. Instead, the state said license plates are government property, and so what appears on them is not private individuals speech but the governments. The First Amendment applies when governments try to regulate the speech of others, but not when governments are doing the talking.

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Justices hear free speech dispute over Confederate flag license plate

Rule 41 Change Could Allow FBI To Get Warrants To Remotely Search Suspects' Computers Without Notice

 Fourth Amendment  Comments Off on Rule 41 Change Could Allow FBI To Get Warrants To Remotely Search Suspects' Computers Without Notice
Mar 222015
 

The Department of Justice recently edged closer to a rule change that would allow the FBI to track suspected criminals’ computer activity more easily. The Judicial Conference Advisory Committee on Criminal Rules voted last week in favor of an update to Rule 41, which dictates how judges can issue search warrants on electronic devices, Government Executive reported. The new rule 41 would let judges OK warrants to examine computers remotely anywhere as opposed to only those in their districts. The FBI would also no longer would be required to give users notice ahead of its searches.

“The rule itself would be an acknowledgement that remote access searches are valid without notice, without special justification,” Electronic Privacy Information Center general counsel Alan Butler told Gizmodo. “Notice is one of the essential procedural protections of the Fourth Amendment. Validating a rule that implies that notice will never happen does not comport with the Fourth Amendment.”

The Fourth Amendment forbids unreasonable searches and seizures.

The FBI has requested the rule change to better function in the 21st-century world of technology, DefenseOnereported. The agency would have more options, like the authority to secretly install tracking software on the computers of alleged criminals.

Privacy groups are opposed to this. Google came out against the Rule 41 change last week, arguing it raises a number of monumental and highly complex constitutional, legal and geopolitical concerns that should be left to Congress to decide. The Department of Justice fired back, saying the amendment had been misread and would not authorize the government to undertake any search or seizure or use any remote search technique not already permitted under current law.

In any event, the proposal will next go before the Standing Committee on Rules of Practice and Procedure, then the Supreme Court. If approved, Gizmodo reported, Rule 41 could be updated by December 2016.

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Rule 41 Change Could Allow FBI To Get Warrants To Remotely Search Suspects' Computers Without Notice

The Fourth Amendment Covers DNA Collection

 Fourth Amendment  Comments Off on The Fourth Amendment Covers DNA Collection
Mar 092015
 

San Francisco, CA – infoZine – EFF is asking the Supreme Court to hear arguments in Raynor v. State of Maryland, a case that examines whether police should be allowed to collect and analyze “inadvertently shed” DNA without a warrant or consent, such as swabbing cells from a drinking glass or a chair. EFF argues that genetic material contains a vast amount of personal information that should receive the full protection of the Constitution against unreasonable searches and seizures.

“As human beings, we shed hundreds of thousands of skin and hair cells daily, with each cell containing information about who we are, where we come from, and who we will be,” EFF Senior Staff Attorney Jennifer Lynch said. “The court must recognize that allowing police the limitless ability to collect and search genetic material will usher in a future where DNA may be collected from any person at any time, entered into and checked against DNA databases, and used to conduct pervasive surveillance.”

The sophistication and speed of DNA analysis technology is advancing exponentially as the costs of the technology drop. These advances, EFF argues, raise significant questions for privacy and civil liberties. DNA can reveal sensitive personal health information and can allow police to identify a person’s relatives, turning family members into inadvertent “genetic informants” on each other. Some researchers have also postulated that DNA can determine race, sexual orientation, intelligence, and even political predispositions.

“Law enforcement should not be able to amass giant databases of genetic material they find lying around,” EFF Senior Staff Attorney Hanni Fakhoury said. “The Supreme Court should review this case and consider it within the context of emerging technologies that could significantly affect the privacy rights of every American.”

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The Fourth Amendment Covers DNA Collection

Gun rights showdown: Sunnyvale restrictions upheld by appeals court

 Second Amendment  Comments Off on Gun rights showdown: Sunnyvale restrictions upheld by appeals court
Mar 062015
 

Adding fresh ammo to the gun rights debate, a federal appeals court on Wednesday upheld Sunnyvale’s law restricting high-capacity gun magazines, concluding local officials did not run afoul of the Second Amendment by trying to reduce gun violence.

The 9th U.S. Circuit Court of Appeals rejected the arguments of groups such as the National Rifle Association, which contended the restrictions are unconstitutional and undermine gun owners’ right to protect their homes with ample firepower.

“Sunnyvale’s interests in promoting public safety and reducing violent crime were substantial and important government interests,” 9th Circuit Judge Michael Daly Hawkins wrote for a unanimous three-judge panel.

The ordinance threatens criminal prosecution of anyone with a magazine that can hold more than 10 rounds of ammunition. (Bay Area News Group)

Gun rights advocates have to date failed in their legal challenge to the ordinance, which threatens criminal prosecution of anyone with a magazine that can hold more than 10 rounds of ammunition. A San Jose federal judge upheld the law last year, and the U.S. Supreme Court refused to put it on hold while the appeal unfolds.

Groups challenging the law can now ask the 9th Circuit to rehear the case with an 11-judge panel, or follow through with their plan to take the issue to the Supreme Court. Foes of the Sunnyvale law have already enlisted former U.S. Solicitor General Paul Clement, who has frequently argued in the high court, for their legal team.

Chuck Michel, a lawyer for the gun rights groups, pledged to appeal quickly, calling the ruling a “fundamental misapplication” of Supreme Court precedent. He also revealed that organizations plan to file a second legal challenge to the Sunnyvale law within the next week raising new legal arguments.

The gun lobby’s second case will rely on the argument that cities such as Sunnyvale are pre-empted from local firearms magazine regulation by California law.

California law since 2000 has banned making, selling, giving or lending magazines that can hold more than 10 rounds, but laws such as Sunnyvale’s go further by making it illegal to possess them in the home. It requires city residents to turn in illegal magazines or risk misdemeanor prosecution.

The stakes could be high, as other California cities, including Mountain View, San Francisco and Los Angeles, have moved to adopt similar regulations. And given that the 9th Circuit shapes law for nine western states, its Sunnyvale ruling is likely to have a much broader reach if it remains intact.

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Gun rights showdown: Sunnyvale restrictions upheld by appeals court

Volokh Conspiracy: Supreme Court review of cell-site cases?

 Fourth Amendment  Comments Off on Volokh Conspiracy: Supreme Court review of cell-site cases?
Feb 242015
 

On Tuesday of this week, the en banc Eleventh Circuit will hear oral argument in United States v. Davis, the case I blogged about here and here on whether the Fourth Amendment protects cell-site records. The en banc briefs are here, and an exhibit from the trial showing some of the cell-site records is here. The Eleventh Circuit doesnt post oral argument audio, so well likely be stuck relying on press accounts to find out what happened.

Whichever way the Eleventh Circuit rules, Supreme Court review is a possibility. It seems likely that Fourth Amendment protection for cell-site data will be the next big Fourth-Amendment-and-technology case at the Supreme Court, following the GPS case in 2012 and the searching-cellphones-on-arrest case in 2014. But when?

Lets recall the lower court cases so far. The Fifth Circuit has held that there is no Fourth Amendment protection for historical cell-site records, and the Florida Supreme Court has held that the Forth Amendment protects cell-site records at least in real time. The Fourth Circuit held argument in mid-December on a historical cell site case, and in Davis well get a ruling from the en banc Eleventh Circuit on the same issue. There may be some other cases working their way up to state Supreme Courts or even a federal circuit that I dont know about. (The Third Circuit offered some dicta on the issue in 2010 without reaching a decision, but that doesnt count.)

In light of these cases, decided and pending, theres likely to be a colorable case for Supreme Court review no matter how the Fourth and Eleventh Circuits rule. Supreme Court review focuses heavily on splits, that is, clear and outcome-determinative disagreement among federal circuits and state supreme courts about how the law applies. If the Fourth and Eleventh Circuits hold that the Fourth Amendment applies, it creates a plausible split with the Fifth. If they hold that the Fourth Amendment doesnt apply, they create a plausible split with the Florida Supreme Court especially pressing in the case of the Eleventh Circuit, as it would be within the same jurisdiction.

Maybe, but there are two important caveats. [UPDATE: Actually, only one caveat. See below.]

First, the Florida Supreme Court repeatedly tried to limit its holding to real-time cell-site monitoring as opposed to historical access. There are possible grounds to say that at least some kinds of real-time cell-site monitoring might raise some different issues. So if the Fourth and Eleventh hold that there is no protection, you could say that there is no split because the Florida Supreme Courts decision was only about real-time monitoring. Its a possible argument, although its worth noting that the Florida Supreme Court didnt actually offer a legal basis for limiting its holding to real-time monitoring. It announced the limitation, but it didnt actually develop a clear reason why it could make a difference.

Similarly, its possible to say that a Fourth and Eleventh Circuit finding cell site protection for historical cell site data wouldnt create a real split with the Fifth Circuit given the unusual procedure of the Fifth Circuit case. [BUT SEE UPDATE BELOW] Recall that the Fifth Circuit case arose when the government applied for an order for historical cell site data and the Magistrate Judge denied the application on Fourth Amendment grounds. In response to an academic amicus brief that raised ripeness problems with ruling in that context absent any facts, the Fifth Circuit limited its analysis to whether access to historical cell site records was per se unconstitutional. By answering only the issue of per se unconstitutionality, which I take to be kind of like asking whether a statute is facially unconstitutional, the Fifth Circuit arguably only answered whether access to historical cell site records always violated the Fourth Amendment, not whether it would in a particular case. If you take that reading of the case, then perhaps there would be no split with a decision finding a Fourth Amendment violation based on a specific set of facts. This is a possible argument, but not an obvious one, as the reasoning actually adopted by the Fifth Circuit applies more broadly than that limited reading would suggest.

Putting all these pieces together, its hard to know when the Supreme Court might be interested. We might get a clear split from the Fourth and/or Eleventh Circuit cases, but the Court might decide to wait a while given the possible arguments that there is not yet a super-clear split. As always, stay tuned.

UPDATE: A reader reminds me that in a subsequent case, United States v. Guerrero, 768 F.3d 351 (5th Cir. 2014), the Fifth Circuit applied the reasoning of its initial cell-site case to an as-applied set of facts involving historical cell site records. After Guerrero, the Fifth Circuit rule is clear: Historical cell-site data is not protected. So scratch that second caveat above.

Also, another reader points out in United States v. Skinner, where the Sixth Circuit also suggested that cell-site data is not protected. Maybe, although recall that Skinner involved pinging a phone, which raises some different issues.

More here:
Volokh Conspiracy: Supreme Court review of cell-site cases?




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