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By: Dony Linson

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Beginning in the 1930s, shortly after the Supreme Court had incorporated the First Amendment into the due process clause (thereby making it an enforceable constraint not only on the federal government ["Congress shall make no law . . ."] but on State and municipal governments as well) the Jehovahs Witnesses went on a campaign to attack, in court, restrictions on their ability to proselytize door-to-door and to give voice to unpopular views. During one particular 8 year period (1938 to 1946) they brought no fewer than 23 separate First Amendment actions to the Supreme Court (prompting Justice Stone to quip that they ought to have an endowment in view of the aid they give in solving the legal problems of civil liberties). They won some spectacularly important victories West Virginia Board of Ed. v Barnette (1943) (children cannot be forced to recite the Pledge of Allegiance or salute the flag), Chaplinsky v New Hampshire (19420 (establishing the fighting words doctrine, and overturning conviction of a Jehovahs Witness who called a local official a damned racketeer and a fascist), Watchtower Society v. Village of Stratton (2002) (overturning municipal ordinance requiring government permits for all door-to-door advocacy).***

They were widely reviled especially during World War II and the Korean War, their position asconscientious objectors to military service and their refusal to salute the flag made them the object of great hostility but in retrospect, we all owe them a great debt of gratitude. It took (and it takes) real courage to stand up to the combined forces of public opinion and the state to voice opinions that others find highly objectionable and even inflammatory, and we all enjoy, in a much stronger First Amendment than we might otherwise have, the benefits of their having had the courage to have done so.

Yesterday the 9th Circuit issued its decision striking down Californias CASE (Californians Against Sexual Exploitation) Act as violative of the First Amendment. The Actrequired previously-convicted sex offenders to provide [a] list of any and all Internet identifiers established or used, a list of any and all Internet service providers used, and to sendwritten notice to law enforcement within 24 hours of adding or changing an Internet identifier or an account with an Internet service provider; it also provided for fairly severe criminal penalties for non-compliance.

This is the latest in what is becoming a large series of cases involving First Amendment challenges to state sex offender registration statutes. There have been cases like this one in Nebraska, Indiana, Louisiana, Pennsylvania, to name a few. Ive blogged about some of them before e.g.,hereand here and (full disclosure) Ive been involved in several of them (including this California case) as an expert testifying on behalf of the challengers.

The courts opinion here at least to someone on the side of the fence that Im on has a terrific analysis of the First Amendment issues at stake, and some strong First-Amendment-protective language that will, I promise you, come in very, very handy in future battles the ones that are coming that will not involve just convicted sex offenders. The court struck down the statute on the grounds that it unnecessarily chills protected speech in three ways: the Act does not make clear what it is that sex offenders are required to report, there are insufficient safeguards preventing the public release of the information sex offenders do report, and the 24-hour reporting requirement is onerous and overbroad. There is, in particular, some very forceful language about the right, under the First Amendment, to speak anonymously an issue that, as I keep harping on, is going to be a major First Amendment battleground duringthe the next decade or so. The court wrote:

Although this is not what some might call the classic anonymous-speech case, where speakers allege they are required to disclose their identities directly to their audience, we conclude that the Act nevertheless chills anonymous speech because it too freely allows law enforcement to disclose sex offenders Internet identifying information to the public. . . .We agree with the district court that the standards for releasing Internet identifying information to the public are inadequate to constrain the discretion of law enforcement agencies and that, as a result, registered sex offenders are unnecessarily deterred from engaging in anonymous online speech.

[S]ex offenders fear of disclosure in and of itself chills their speech. If their identity is exposed, their speech, even on topics of public importance, could subject them to harassment, retaliation, and intimidation. See McIntyre, 514 U.S. at 34142 (The decision in favor of anonymity may be motivated by fear of economic or official retaliation, by concern about social ostracism, or merely by a desire to preserve as much of ones privacy as possible.); Brown v. Socialist Workers 74 Campaign Comm. (Ohio), 459 U.S. 87, 100 (1982) (holding that disclosure requirements may subject unpopular minority groups to threats, harassment, and reprisals). Anonymity may also be important to sex offenders engaged in protected speech because it provides a way for a writer who may be personally unpopular to ensure that readers will not prejudge her message simply because they do not like its proponent.

Pretty strong stuff. It has made me think about the Jehovahs Witnesses. Convicted sex offenders are probably one of a very small number of groups that are even more despised than the Jehovahs Witnesses were in the Thirties and Forties, and they have consequently been singled out for very harsh treatment in the law. Fighting back, theyre helping to make some good First Amendment precedent, and when the government starts cracking down on other speech by other speakers, or attempting to restrict our ability to use anonymizing tools in our Internet communications as itwill well be grateful to them for having done so.

***Shawn Peters excellent Judging Jehovahs Witnessess tells this story in great detail, if youre interested.

David Post taught intellectual property and Internet law at Georgetown Law Center and Temple University Law School until his recent retirement. He is the author of “In Search of Jeffersons Moose: Notes on the State of Cyberspace” (Oxford, 2009), a Fellow at the Center for Democracy and Technology, and an Adjunct Scholar at the Cato Institute.

See the original post here:
Volokh Conspiracy: Convicted sex offenders, Jehovahs Witnesses, and the First Amendment

Last week, there was a lot of press coverage about a Virginia court ruling on how the Fifth Amendment applies to bypassing a smart phone passcode. The ruling hasnt been available before today, but here it is: Commonwealth v. Baust, via Marcia Hofmann. Its a short opinion, just five pages, so its a quick read. Unfortunately, though, the opinion doesnt address the really important issue raised by compelled decryption: Whether the government can force the defendant to enter in the passcode. Its not the courts fault that the opinion didnt reach that, to be clear. The government never asked for an order compelling the defendant to do that, so the court didnt decide it. Heres a quick rundown of the facts, the law, and my reaction.

The defendant has been charged with assaulting a woman. There is reason to believe that the defendant videotaped the assault and that there is a copy of the video on the defendants passcode-protected smart phone. The state wants the defendant to be ordered either to disclose his passcode so the police can enter in the passcode to unlock the phone themselves, or else to give up his fingerprint to unlock the phone directly using the phones fingerprint sensor.

The court reaches a split ruling. First, there is no Fifth Amendment problem with forcing the defendant to provide his fingerprint. Second, the defendant cannot be forced to tell the government his passcode because that would be forcing the defendant to disclose the contents of his own mind. Most importantly, the court rules that the foregone conclusion doctrine doesnt apply because the police dont know the passcode:

Contrary to the Commonwealths assertion, the password is not a foregone conclusion because it is not known outside of Defendants mind. Unlike a document or tangible thing, such as an unencrypted copy of the footage itself, if the password was a foregone conclusion, the Commonwealth would not need to compel Defendant to produce it because they would already know it.

In dicta, the Court adds that the defendant could not be compelled to hand over a decrypted version of the video believed to be on his phone. Thats true because it is not a foregone conclusion that the video exists or is on the phone. The defendant cant be forced to effectively testify as to that by producing a decrypted version of the video.

This is just a state court trial ruling, not an appellate decision. So its interesting more for its reasoning than its precedential value. With that said, here are some thoughts on the reasoning of the case.

First, the courts ruling on divulging a fingerprint is easy. Theres obviously no Fifth Amendment problem with that. On the governments request for the passcode, the opinion is frustrating because the governments request was poorly framed. In this case, the government doesnt need to know the defendants passcode. It only needs to bypass the passcode gate, either through the fingerprint or by having the passcode entered in by the defendant. If the government couldnt get into the phone with the fingerprint, then, the sensible request would be for an order to have the defendant enter in the code rather than an order disclosing it to the government. But the government didnt ask for that: Instead it asked for an order that the defendant tell them his passcode.

Whats the difference? Having the defendant enter in his passcode would minimize the Fifth Amendment implications of the compelled compliance, as it would not involve disclosing the potentially incriminating evidence of the passcode itself. The passcode itself could be independently incriminating, at least in some cases. Imagine a conspiracy case in which members of the conspiracy use a common passcode. Proof that a suspect used that exact passcode on his own phone would be incriminating evidence, as it could help to show membership in the conspiracy.

Because the passcode itself could be incriminating, the smart way to limit the Fifth Amendment problem is for the government to ask for an order compelling the target to enter in the passcode rather than to divulge it to the police. That way, the government gets the unlocked phone but never gets the passcode. If the defendant has to enter in the passcode rather than tell it to the police, the testimonial aspect of complying would only be admitting knowledge of the passcode, which would very likely be a foregone conclusion in a case where the phone is used heavily by that person. But the government didnt ask for that here, so the court didnt consider how the Fifth Amendment would apply in such circumstances.

Notably, the court does address in dicta whether it would be incriminating for the defendant to hand over the unencrypted video believed to be on the phone. But forcing the defendant to hand over the unencrypted video is quite different from having him enter in the passcode to unlock the phone. Being forced to enter in the passcode to unlock the phone amounts to being forced to say, I know the passcode for this phone. On the other hand, as the court recognized, being forced to produce the unencrypted video amounts to being forced to say much more, such as I admit that the video exists; I admit that this is the video; I know where that video is; and I admit that I know what video youre talking about. Being forced to produce the video raises a host of Fifth Amendment issues that merely entering in the passcode does not.

Read the original:
Virginia state trial court ruling on the Fifth Amendment …

A Virginia judge has ruled that a criminal suspect can be compelled to give up a fingerprint to unlock a device but passwords are protected by the Fifth Amendment. Mobile passwords passcodes fingerprints iphone iPad Fifth Amendment

Read more here:
Judge rules passcodes are protected, fingerprints not so much



New ruling may affect police access to smartphones
A federal judge in Virginia ruled that fingerprints are not protected by the Fifth Amendment, which could affect police access to fingerprint-protected devic…

By: CBS This Morning

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New ruling may affect police access to smartphones – Video

A person suspected of a crime cannot be compelled to divulge to authorities the passcode that would unlock his smartphone. To allow this would be a clear violation of the Fifth Amendment to the Constitution.

But a fingerprint doesn’t share those same protections. At least according to a recent ruling from a Circuit Court judge in Virginia, who found that compelling a suspect to unlock his fingerprint-protected smartphone is just fine and dandy.

There’s some logic here, but it’s pretty badly flawed. The thinking behind the decision: The Fifth Amendment to the Constitution states that an individual cannot be forced to testify against himself. As such, compelling someone to fork over a smartphone’s passcode — which would amount to testimony — would violate the Fifth Amendment.

But a fingerprint, the judge said, is another story. It’s more like a key, which the law has long allowed authorities to obtain from a criminal suspect.

While one can understand the legal distinction that forms the basis for the ruling, it doesn’t long hold up under scrutiny.

The Fifth Amendment states, in part: “No person shall be … compelled in any criminal case to be a witness against himself.” This is the right that people are invoking when they refuse to testify on the grounds that they may incriminate themselves.

So legally, a passcode is a kind of testimony, but a key isn’t.

Which is fine as far as it goes. But this is exactly where the judge went wrong.

A fingerprint can be akin to a key — or not. In the matter at hand, what it is, in effect, is a replacement for a passcode, which is information that used to be inside the user’s head. If we’d once unlocked our phones with physical keys — like those that open a door or start the car — the reasoning would make sense, as the fingerprint would be a replacement for same.

But that’s simply not the case. We used to unlock our phones with information in our heads. And that information was protected by the Fifth Amendment. One’s fingerprint, simply a replacement for the old memorized pass code, ought reasonably be afforded that same protection.

Read the original post:
Editorial: Applying the Fifth Amendment in the era of smartphones

schwit1 writes with news of a Circuit Court decision from Virginia where a judge has ruled that a criminal defendant cannot use Fifth Amendment protections to safeguard a phone that is locked using his or her fingerprint. According to Judge Steven C. Fucci, while a criminal defendant can’t be compelled to hand over a passcode to police officers for the purpose of unlocking a cellular device, law enforcement officials can compel a defendant to give up a fingerprint. The Fifth Amendment states that “no person shall be compelled in any criminal case to be a witness against himself,” which protects memorized information like passwords and passcodes, but it does not extend to fingerprints in the eyes of the law, as speculated by Wired last year. Frucci said that “giving police a fingerprint is akin to providing a DNA or handwriting sample or an actual key, which the law permits. A passcode, though, requires the defendant to divulge knowledge, which the law protects against, according to Frucci’s written opinion.”

Read this article:
Virginia Court: LEOs Can Force You To Provide Fingerprint To Unlock Your Phone

DULLES, Va. (PRWEB) October 30, 2014

In recognition of Veterans Day, Freedom Alliance will present Corporal Jeramie Green with a custom-made, all-terrain wheelchair; also known as an Action Trackchair. This Trackchair will be awarded to Green in honor of his bravery and sacrifices while deployed. The donation will take place at Freedom Alliance headquarters at 22570 Markey Court Suite 240, Dulles, Virginia 20166.

At age 25, Green joined the U.S. Army where he specialized in welding. During his last mission in Afghanistan in 2012, he was injured during a motor vehicle accident and suffered injuries to his legs which led to an amputation. The horrific accident happened just two days before Greens nine-month mission was coming to an end.

Corporal Jeramie Green showed true courage when he risked his life for our nation. Jeramies injuries are the result of a deliberate decision to risk his own safety for that of his fellow soldier. He is selfless and courageous, said Freedom Alliance President, Tom Kilgannon. This chair will help Jeramie participate in the activities he enjoys and continue his rehabilitation, said Kilgannon. It is our honor to provide it to him. It is the least we can do for an American hero.

Green is rehabilitating at the Military Advanced Training Center (MATC) at Walter Reed Army Medical Center in Bethesda, Maryland. He is motivated by the impending birth of his daughter in March. The first anniversary of his Alive Day is approaching and is a reminder of how grateful he is for life and his family and the opportunity to enjoy the outdoors again. Some of his favorite actives include mud running and fishing.

The ceremony will take place:

Monday, November 10, 2014 Freedom Alliance Headquarters 22570 Markey Court, Suite 240 Dulles, Virginia 20166 10:30 a.m.

In addition to Trackchair donations, Freedom Alliance has provided over $8 million in college scholarships for the children of military heroes who were killed or disabled in military service, and millions more to help wounded troops and military families with outdoor recreational therapy such as hunting and fishing trips, Heroes Vacations, care packages for deployed troops, home donations and much more.

For more information about Freedom Alliance visit http://www.FreedomAlliance.org.

Media should RSVP to Kendra Cummings of Vistra Communications at 813.321.3312 or Kendra(at)ConsultVistra(dot)com.

Link:
Freedom Alliance to Honor Military Veteran with Customized Wheelchair Donation



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Virginia Video SEO (703) 997-4800 Best Video SEO in Virginia – Video



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West Virginia Triangle UFO Sighting Oct 12 2014 . Rapture. Illuminati Freemason Symbolism.
http://www.inquisitr.com/1550246/west-virginia-ufos-3-football-field-sized-crafts-cruise-over-coal-mining-operation-followed-by-a-fourth-smaller-craft/ The 10 people seeing the UFO represent…

By: TheGroxt1

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West Virginia Triangle UFO Sighting Oct 12 2014 . Rapture. Illuminati Freemason Symbolism. – Video



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By: Virginia Hangouts

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Video Production Virginia Beach – Video SEO – Video

By Elisabeth Hulette The Virginian-Pilot October 12, 2014

VIRGINIA BEACH

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



NATO Leaders Meet in Virginia
2014 – NATO leaders meet in Virginia to discuss new rapid deployment plans. http://www.dvidshub.net/video/365246/nato-leaders-meet-virginia.

By: DoD News

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NATO Leaders Meet in Virginia – Video

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The National Rifle Association and their fellow gun enthusiasts continue to misconstrue the founders original intent in creating the Second Amendment to the Constitution. A recently published NRA comment states that Guns save lives, stop crime and protect you. This is why we arm police, why people arm themselves and why the Founders put the Second Amendment in the Constitution.

The amendment reads as follows: A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed. A total of 27 words.

The NRAs comment in the first paragraph would be accurate if these first 13 words of the Second Amendment concerning the role of a militia had not been included in this simple statement. The first 13 words have meaning. The founders were much concerned about the power of a standing army and the possibility of overt military control of the fledgling country.

In 1791 the members of the Virginia legislature elaborated on the importance of a militia in a letter accompanying their ratification of the first 10 amendments (1791). They stated that, a well regulated Militia composed of the body of the people trained to arms is the proper, natural and safe defence of a free State. That armies in the time of peace are dangerous to liberty: and that in all cases the military should be under strict subordination to and governed by the Civil power. 1791 was a time when less than 15 percent of the white male population, mostly untrained in the military use of weapons, possessed guns.

The requirement for a well trained militia rather than a standing army was further emphasized in several issues of the Federalist Papers authored by Alexander Hamilton, James Madison and John Jay. In fact, Federalist No. 29 was exclusively dedicated to the need for a militia.

Of course, the issue of no standing army was short-lived. The War of 1812 proved that a standing army and navy were essential to our survival as an independent nation. The concern, however, about undue influence of the military remains today.

Over the years Supreme Court rulings have essentially ignored the first half of the Second Amendment, opting instead for easy access to weapons. A major question: How did the founders intent to provide for a militia evolve into a nation with over 300 million guns in circulation?

Retired Supreme Court Justice John Paul Stevens, in his recent book, Six Amendments: How and Why We Should Change the Constitution, proposes the addition of five words to the Second Amendment. As so amended, it would read: A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms when serving in the Militia shall not be infringed.

There is no Second Amendment right to own guns! So intended the founders!

Link:
Founders intended limits on gun rights

By Brock Vergakis The Associated Press October 7, 2014

NORFOLK

Members of NATO’s military committee began meeting in Virginia on Tuesday to get an update from the alliance’s only command in North America and discuss the creation of a quick-reaction force in Europe.

Officials from the military committee are visiting NATO’s Allied Command Transformation through Wednesday.

The Norfolk-based command serves as a type of think tank for the alliance and looks for ways to address current and emerging threats impacting the 28-nation alliance. The committee’s visit to the command occurs once a year. While the discussions are classified, NATO officials said they would focus on developments from a recent NATO summit in Wales, an initiative that calls for interoperable forces as well as the planned quick-reaction force that’s intended to counter Russian aggression in eastern Europe.

“We must make sure that all the nations are aligned with those projects and this is a unique occasion we have to do that in a very open, very frank manner,” said French Air Force General Jean Paul-Palomeros, NATO ACT’s supreme commander.

Details of the quick-reaction force will be worked out in February at a NATO ministerial meeting, but it is expected to consist of 4,000 to 5,000 troops. Among other things, NATO officials are still working out where those troops will be located.

The military committee is made up of senior military officers from each NATO member and is the primary source of military advice to NATO’s civilian decision-making bodies – the North Atlantic Council and the Nuclear Planning Group.

Along with the spearhead force, the Readiness Action Plan approved by President Barack Obama and leaders of the 27 other allied nations includes stepped-up intelligence sharing, an upgrade of defense plans and more military exercises on short notice.

“This is an important event for the military committee because it ensures that the decisions taken by the heads of states and government taken at the Wales summit last month are properly operationalized and we stay focused on our work,” said Danish Army General Knud Bartels, chairman of the military committee, at a news conference at Allied Command Transformation headquarters.

Read more:
NATO military committee officials meet in Norfolk

6 hours 41 minutes ago by Dave Fields

West Virginia Sen. Joe Manchin is visiting Maurice, La., Tuesday to show support for Sen. Mary Landrieu’s re-election bid and to discuss with Acadiana officials what he said is Landrieu’s longtime support for Second Amendment gun rights for Louisianians.

According to the senators, the pair have worked closely together on protecting Second Amendment rights, increasing support to build the Keystone Pipeline, and fighting onerous regulations by the Environmental Protection Agency, among other issues.

Manchin took the opportunity to enjoy the GOL shooting range with area leaders while in Maurice.

Excerpt from:
W. Va. Sen. Manchin visits with Landrieu, local officials at Maurice shooting range

Sep 272014

Gay marriage advocates are counting on Supreme Court justices to be watching the Sunday shows ahead of their first private conference of the new term Monday.

Freedom to Marry, a group thats long pursued gay marriage legalization in courts, will air a new ad aimed at urging the Supreme Court to take up one or more of the five cases currently on its docket. Most expect the Court to take up a caseand ultimately legalize gay marriage across the countrythis term. The justices could decide to start a case moving as early as Monday, though they could also wait until a future conference in the coming months.

Currently, 19 states and Washington, D.C., have legalized gay marriage. The cases already up for consideration by the court are from Utah, Wisconsin, Oklahoma, Virginia and Indiana, with another from Ohio expected to follow soon.

(PHOTOS: Where same-sex couples can wed)

One nation, indivisibleexcept if youre gay, the narrator of the Freedom to Marry ad says, as a map appears on screen with all the states that have legalized marriage in bright blue, against the dull grey for all the rest.

Proponents and opponents alike are eager to see the Supreme Court establish one set ruling, a swift change from even just a few years ago. Thats not the only shift: now the wide expectation is that the court will rule in favor of legalization, likely with the courts four liberal justices joining Anthony Kennedy, whos spent years writing opinions that have eased restrictions on gays. Some even think Chief Justice John Roberts might join a legalization decision too.

(PHOTOS: 26 gay-rights milestones)

Over photos of gay couples, the narrator of the ad says, theyre taxed unfairly, denied Social Security and parenting rights, and can lose a family home when their loved one dies.

Our ad underscores the human costs of prolonging marriage discrimination. Every day of denial is a day of real and needless injury, indignity, and injustice to too many families across the countryand time matters, said Freedom to Marry found and president Evan Wolfson.

America is ready for the freedom to marry, 40 lower courts have affirmed the freedom to marry, even opponents are saying its time to bring the country to national resolution, Wolfson added. And it is, indeed, time.

See the rest here:
Freedom to Marry ad targets court

The Freedom Bank of Virginia announced that effective September 18, 2014 its common stock began trading on OTCQX. The Banks symbol will continue to be FDVA. The OTCQX

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Freedom Bank of Virginia Begins Trading on OTCQX



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