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Michael Nugent Atheism, Reason, Skepticism, Happiness

Posted on June 20, 2017 by Danzig

by Michael Nugent on June 7, 2017

For the first time ever, Irish Atheists, Evangelicals and Ahmadiyya Muslims are jointly challenging human rights abuses in Pakistan at the United Nations.

Yesterday we made a written submission to the UN, which is now on the UN website, and in July we will be addressing the UN Human Rights Committee in Geneva.

The UN Human Rights Committee will be questioning Pakistan about its human rights record under the International Covenant on Civil and Political Rights.

Atheist Ireland, the Evangelical Alliance of Ireland, and the Ahmadiyya Muslim Community of Ireland will be raising human rights abuses against our communities and other minorities in Pakistan.

Here is the text of our written submission.

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by Michael Nugent on June 6, 2017

The attack on our friends in the Ahmadi Muslim mosque in Galway yesterday evening was both immoral and senseless.

It was immoral because it was an attack on innocent people, and on the principle of freedom of religion and belief. And it was senseless because the Ahmadi Muslim community are at the forefront of promoting peace and tolerance.

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by Michael Nugent on May 25, 2017

Professor Brian Cox and Robin Ince gave an entertaining, educational and inspirational performance about the origins of the universe and life, at the 3 Arena in Dublin tonight. If you get a chance to see them live, dont miss it!

by Michael Nugent on May 17, 2017

Tomorrow, Thursday 18 May, the Dail will vote on the Equal Participation in Schools Bill that it debated yesterday. Please contact your TDs today and ask them to vote for this.

It is proposed by Solidarity and People Before Profit, and it incorporates proposals from Atheist Ireland and the Irish Human Rights and Equality Commission.

It is an an important step towards secular State-funded schools that respect everybody equally, and the eventual separation of Church and State.

It recognises that Irish schools breach human rights by evangelising religion throughout the whole school day, and not merely by discriminating in access.

[click to continue]

Michael Nugent Atheism, Reason, Skepticism, Happiness

NATO Allies Press Trump To Stop Steel Crackdown – Foreign Policy (blog)

Posted on June 20, 2017 by Danzig

Foreign Policy (blog)

NATO Allies Press Trump To Stop Steel Crackdown
Foreign Policy (blog)
According to a report in the Financial Times, German and Dutch military officials have been pressing Defense Secretary James Mattis to make the case that steel imports from NATO members like Germany and Belgium don't pose a threat to American national ...
European Nato members lobby against Trump steel crackdownFinancial Times

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NATO Allies Press Trump To Stop Steel Crackdown - Foreign Policy (blog)

NATO’s Stronger Baltic Force Riles Russia – WSJ – Wall Street Journal – Wall Street Journal (subscription)

Posted on June 20, 2017 by Danzig

Wall Street Journal (subscription)

NATO's Stronger Baltic Force Riles Russia - WSJ - Wall Street Journal
Wall Street Journal (subscription)
NATO declared that its deterrent force is fully in place in the Baltic area with the addition of a Canadian-led battle group in Latvia, enhancing deployments ...
Latvia welcomes NATO troops - Xinhua | English.news.cnXinhua
President Vejonis calls NATO Enhanced Forward Presence a ...Baltic Times
Canadian-Led NATO Battle Group Begins Operations in Latvia - Defense MinistrySputnik International

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NATO's Stronger Baltic Force Riles Russia - WSJ - Wall Street Journal - Wall Street Journal (subscription)

State Department warns Hungary: Anti-Soros law ‘another step away’ from NATO – Washington Examiner

Posted on June 20, 2017 by Danzig

An international controversy over nonprofits funded by progressive Hungarian-American billionaire George Soros has created a vulnerability in the NATO alliance, the State Department warned.

Secretary of State Rex Tillerson's spokesperson urged Hungarian leaders to scrap legislation mandating that Hungarian nonprofits supported by foreign contributors identify their donors. The bill is the latest development in nationalist Prime Minister Viktor Orban's ongoing campaign against Soros, but his domestic and international critics regard it also as a step toward Russian President Vladimir Putin.

"If signed into law, this would be another step away from Hungary's commitments to uphold the principles and values that are central to the [European Union] and NATO," State Department spokeswoman Heather Nauert said Monday.

Hungary joined NATO in 1999, when Orban was in the midst of a four-year run as prime minister. Since returning to the post in 2010 the midst of an economic crisis that required an international bailout, Orban has had a fraught relationship with the European Union. The 2015 refugee crisis created additional strain, and human rights groups criticized his efforts to constrict the flow of asylum-seekers into Hungary.

Orban responded by attacking Soros, a campaign that hasn't ended. "There is an important element in public life in Hungary which is not transparent and not open and that is the Soros network, with its mafia-style operation and its agentlike organizations," he said in June.

The State Department contradicted that assessment and suggested that Orban is enabling corruption. "The United States is concerned by the Hungarian parliament's passage of legislation that unfairly burdens and targets Hungarian civil society, which is working to fight corruption and protect civil liberties," Nauert said.

The Hungarian leader's skepticism of the EU and "globalist" refugee policies, perhaps aided by Soros' status as a prominent progressive donor, has endeared him to some American conservatives who see a likeness to Trump.

But Orban's domestic opponents see shades of Putin. Orban criticized Western sanctions imposed on Russia in response to Putin's annexation of Crimea and destabilization of eastern Ukraine. And Putin has implemented legislation requiring international nonprofits to register as "foreign agents" and giving him the authority to shut down foreign nonprofits.

"We should not be afraid of the NGOs but rather of the members of Parliament who represent Russian interests," said an opposition lawmaker, per The New York Times.

Hungary also passed legislation designed to shutter Central European University, one of the most prominent institutions in the country, due to funding from Soros. But, though Orban has praised Trump, the new president's administration opposed that bill and continued to criticize his hostility to the nonprofits.

"By portraying groups supported with foreign funding as acting against the interests of Hungarian society, this legislation would weaken the ability of Hungarians to organize and address concerns in a legitimate and democratic manner," Nauert said.

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State Department warns Hungary: Anti-Soros law 'another step away' from NATO - Washington Examiner

Putin Could ‘Crack’ NATO Under Trump, Warns Former U.S. … – Newsweek

Posted on June 20, 2017 by Danzig

Russian President Vladimir Putin sees an opportunity under President Donald Trump's administration to crack Americas NATO military pact with its main Western allies, says a former top U.S. diplomat.

"I suspect [Putin] sees an opportunity to do what military force alone could never do, and that is crack the NATO alliance,Doug Lute, the former U.S. ambassador to NATO in the Obama administration, said on Sunday.

If he can crack it politically, or if he can provoke internal fissures inside the alliance, Lute said during an interview on ABC News show This Weekon Sunday, then Putin sees an enormous opportunity to achieve a long-standing Russian goal.

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Lute said that for the first time in 70 years, what was once a rock-solid commitment to the alliance is in question underTrump, and that possibly opens potential opportunities for opponents.

Trump has been unpredictable in his commitment to the 70-year military alliance during his months as president.

Before his inauguration, then President-elect Trump called NATO obsolete, only to reverse his stance months later after meeting with NATOs leaders.

Read more: White House and Putin among biggest critics of Russia sanctions bill

Despite advice from his generals, Trump hesitated to affirm NATOs Article 5which says an attack on one member is an attack on allduring a speech at the alliances new headquarters at the end of May.

National security adviser H.R. McMaster, Defense Secretary James Mattisand Secretary of State Rex Tillerson had all worked to include a statement supporting Article 5 in Trumps speech, according to five sources that spoke with Politico. Trump reportedly took it out.

In thatsame speech,Trump chastisedcertain member countries for owing "massive amounts of money" to the United States and NATO. All NATO countries have committed to spend about 2 percent of their GDP in their individual military budgets to support the alliance. Last year, only five of all 28 nations met that goal.

Weeks later, during a press conference with Romanian President Klaus Iohannis, however, Trump said he was "committing the United States to Article 5."

All this has been very disorienting to our NATO allies, said Lute. After Trumps speech in May, one senior diplomat told Reuters the presidents remarks were not made in the right place or time" and that they were left with nothing else but trying to put a brave face on it.

Trumps statements prompted German Chancellor Angela Merkel to say, just days after the meeting, that the times in which we can fully count on others are somewhat over.

Russian President Vladimir Putin attends a signing ceremony following talks with his Slovenian counterpart Borut Pahor at the Kremlin in Moscow on February 10. Alexander Zemlianichenko/Pool/Reuters

Many Eastern European nations who are NATO members have been wary of a Russian military buildup on their frontiers. NATO forces have been deployed in response, but they fear a weakening NATO alliance.

If that was not enough, Russia is already drawing a wedge between America and its closest NATO allies in other ways. Germany and the European Union have been disturbed by new congressional sanctions against Russia for interfering in the 2016 election, according to Jonathan Fenby, managing director of European political researchat the investment research firm TS Lombard.

A bill that passed the U.S. Senate last week seeks to impose stricter sanctions on Russia in response to its campaign to influence the 2016 American election. The bill has moved forward on distrust in Congress of Trumps willingness to punish Russia. The presidents election campaign is currently the subject of an FBI investigation into whether its officials or associates colluded withRussia tointerferein the election.

Russian energy companies building the Nord Stream 2 gas export pipeline to Europe, however, are targeted in the new sanctions bill.

This is the latest of a series of developments that augur ill for trans-Atlantic relations, wrote Fenby in a research letter to investors Sunday.

Germany and Austria, whose companies are investing in the pipeline, criticized the Senate vote for adding a new and very negative quality in European-American relations. Fenby said. Trumps withdrawal from the Paris climate change agreement was also condemned by EU members who are NATO allies.

The new sanctions are just another brick in the wall of European reaction to Trumps criticism of European defence spending, Fenby wrote.

Considering the presidents rhetoric and growing divisions, Lute said, Americas allies are sort of whipsawed between key advisers and the president himself, and wonder, I think, Who actually speaks for this administration?

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Putin Could 'Crack' NATO Under Trump, Warns Former U.S. ... - Newsweek

EU ministers report progress in cooperation with NATO on countering hybrid threats – EURACTIV

Posted on June 20, 2017 by Danzig

EU foreign ministers meeting in Luxembourg on Monday (19 June) have adopted a report on the implementation of a recently agreed NATO-EU strategic partnership, highlighting progress in joint actions countering hybrid threats.

EU and NATO have often been described as two strangers living in the same city. Brussels hosts NATO headquarters and is home to the main EU institutions but the two organisations agreed the first ever Joint Declaration during the July 2016 NATO summit in Warsaw.

The Joint Declaration outlined seven concrete areas where cooperation between the two should be enhanced. Additionally, in December 2016, 42 proposals for implementation were agreed, as well as bi-annual reporting.

Today ministers state that this new cooperation has delivered substantial results, in particular in countering hybrid threats. A European Centre for countering hybrid threats has been set up in Helsinki. Finland has a 1,300-km border with Russia, which has been accused of mounting hybrid campaigns in the Ukraine conflict combining conventional and unofficial military means with cyberwarfare, propaganda and other indirect tactics.

The first ever Joint Intelligence Assessment on a hybrid topic between EU and NATO will soon be made available, ministers state, adding that support has been provided to Eastern partners (EUs neighbours Moldova, Georgia and Ukraine), as well as to the Western Balkans. Russia makes no secret that it considers some of the Western Balkans countries its own backyard.

Vladimir Chizhov, Russias ambassador to the EU, told a group of journalists yesterday (3 May) that his country could offer an alternative to Macedonia, to the Western Balkans and to any countries, as, in his view, there is always an alternative to Euro-Atlantic integration.

Closer interaction in countering cyber-attacks is reportedly progressing. For the first time, NATO and EU staff are expected to conduct joint exercises in response to a hybrid scenario.

An EU diplomat told EURACTIV that some EU countries were pushing to go beyond the 42 agreed measures while others said lets stick to the 42. But the diplomat called this a side show; the essential being, in his words, that the cooperation between EU and NATO was widening and deepening.

The most important thing, in his view, was the increasingly routine nature of the EU-NATO staff-to-staff contacts at formal and informal level.

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EU ministers report progress in cooperation with NATO on countering hybrid threats - EURACTIV

The NSA (yes, that NSA) has a Github account now – The Next Web – TNW

Posted on June 20, 2017 by Danzig

The National Security Agency is amongst the most secretive of the US intelligence agencies. It employs genius-level coders and mathematicians in order to break codes, gather information on adversaries, and defend the country against digital threats.

Unsurprisingly, the NSA has always to preferred to work in the dark. But ever since the Snowden leaks in 2013, the organization has gradually increased its public presence. A few years ago, it opened a Twitter account (in fact, it was the first profile Edward Snowden followed when he joined in 2015).

And now, its opened a Github account, and has shared several interesting code repositories under the NSA Technology Transfer Program (TTP). So far, it lists 32 different projects, although some of these are coming soon. Many arent new, either, and have been available for some time. SELinux (Security-Enhanced Linux) for example, has been part of the Linux kernel for years.

Im not surprised the NSAs taken this move. For starters, theres a long and proud tradition of technologies making their way from defense and intelligence environments to the general public. The internet is a brilliant example of that. And engaging with techies via Github is a great way to sanitize its image, and potentially recruit talent.

You can check out the NSAs page here.

Read next: Gillette launches online blade delivery service to take on Dollar Shave Club

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The NSA (yes, that NSA) has a Github account now - The Next Web - TNW

Secure the Net initiative found to be an overall failure for NSA – Federal Times

Posted on June 20, 2017 by Danzig

A declassified report from the Defense Department Inspector General has been released, according to the New York Times.

The 60-page report commissioned by Congress assesses 7 of the 40 components that the National Security Agency outlined for their Secure the Net initiative. This initiative was put forth to help improve the security of sensitive systems after the Snowden disclosures in 2013.

The NSA, according to the inspector generals report, had some successes, but the overall initiative did not fully meet the intent of decreasing the risk of insider threats to NSA operations and the ability of insiders to exfiltrate data.

According to the Times, the report details how their efforts fell short, including the failure to reduce the number of privileged users who can access sensitive computer systems; their failure to consistently keep data center machine rooms secure, as well as failing to lock the server racks containing highly classified data; and the failure to fully implement software that would monitor users.

The report also noted the agencys failure to declare an exact number of people with abilities to transfer data. The lists containing this information were kept on spreadsheets that were corrupted and are no longer available.

The inspector generals report noted that NSA CIO Gregory Smithberger told the inspector general that the elimination of all insider risks and threats is not feasible. He told the Times, While the media leak events that led to Secure the Net (STN) were both unforeseen and serious, we consider the extensive progress we made in a short time to be a good news story.

The importance of securing classified information, as the report warns, was underscored the same month the inspector generals report was produced, according to the Times. In August 2016, a group called the Shadow Brokers obtained and auctioned off classified hacking tools allegedly from the NSA some of which were dumped online. Those tools were later seen as part of the global WannaCry ransomware attack.

We welcome the observations and opportunities for improvement offered by the U.S. Defense Departments Inspector General, Vanee Vines, spokesperson for the NSA told the Times. NSA has never stopped seeking and implementing ways to strengthen both security policies and internal controls.

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Secure the Net initiative found to be an overall failure for NSA - Federal Times

Watchdog: NSA needs to boost insider-threat protocols – FCW.com

Posted on June 20, 2017 by Danzig

Oversight

The National Security Agency is still not fully implementing all necessary security protocols to minimize the potential of another Edward Snowden-like data breach, according to a newly declassified 2016 Pentagon watchdog report.

In the wake of the Snowden breach, the NSA outlined 40 privileged-access Secure-the-Net initiatives designed to guard against insider threats by tightening controls over data and monitoring of user access.

The Defense Department's Office of the Inspector General audited seven of the STN protocols and found that the NSA implemented or partially implemented four of the audit sample. Those related to developing a new system administration model, assessing the number of systems administrators, implementing two-stage authentication controls and deploying two-person access controls.

According to the heavily redacted report, the NSA culled the number of systems administrators and implemented a tiered system to take away privileged access from those who do not require it.

The report states the NSA only partially implemented two-stage authentication and two-person access controls and did not consistently secure server racks and other sensitive equipment in data centers and machine rooms.

The three audit initiatives where the NSA missed the mark were in reducing the number of privileged users and data transfer agents as well as fully implementing technology to oversee privileged-user activities.

NSA did not effectively implement the three initiatives because it did not develop an STN strategy that detailed a structured framework and methodology to implement the initiatives and measure completeness, states the audit. As a result, NSAs actions to implement STN did not fully meet the intent of decreasing the risk of insider threats to NSA operations and the ability of insiders to exfiltrate data.

The report states that prior to 2013, the NSA did not know how many privileged users and data transfer agents it had, and that throughout 2014 the number of DTAs actually increased.

The report acknowledges that it is not possible to protect against all insider threats, but stresses that NSA must at least implement all of its own stated protocols.

Although the NSA worked in a fluid situation, NSA should have developed a strategy that detailed a structured framework and methodology for implementing STN to ensure its actions were effective in mitigated vulnerabilities exploited during the security breach, the report states.

The NSAs woes did not end with the Snowden breach. In August 2016, a cryptic group or individual going by the name TheShadowBrokers announced it had acquired a trove of NSA hacking tools and has since been leaking some of the data in an attempt to seduce buyers to pay for the remaining stash.

It is still not clear whether the so-called ShadowBrokers obtained the data through an insider.

The DOD OIG report made three recommendations -- all of which were fully redacted -- and according to the document, the NSA agreed with the recommendations.

The NSA responded to questions about the audit from FCW with an email statement.

The National Security Agency operates in one of the most complicated IT environments in the world, the NSA stated. Over the past several years, we have continued to build on internal security improvements while carrying out the mission to defend the nation and our allies around the clock.

According to the statement, the NSA has undertaken a comprehensive and layered set of enterprise defensive measures to further safeguard operations and advance best practices across the Intelligence Community.

NSA has never stopped seeking and implementing ways to strengthen both security policies and internal controls, the statement concluded.

About the Author

Sean Carberry is an FCW staff writer covering defense, cybersecurity and intelligence. Prior to joining FCW, he was Kabul Correspondent for NPR, and also served as an international producer for NPR covering the war in Libya and the Arab Spring. He has reported from more than two-dozen countries including Iraq, Yemen, DRC, and South Sudan. In addition to numerous public radio programs, he has reported for Reuters, PBS NewsHour, The Diplomat, and The Atlantic.

Carberry earned a Master of Public Administration from the Harvard Kennedy School, and has a B.A. in Urban Studies from Lehigh University.

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Watchdog: NSA needs to boost insider-threat protocols - FCW.com

NSA’s GitHub Account Has 32 Open Source Projects For People – Fossbytes

Posted on June 20, 2017 by Danzig

The American security agency NSA was very secretive in its operations in the past. But with time, and unwanted revelations coming to the surface, the agency started to open up more front of the common population.

NSA already started their Twitter handle after Snowdens revelation and now theyre all set to make their footprint in the open source community. Their GitHub site now contains 32 open source projects, written by the NSA developers, distributed across two accounts. Some of them are coming soon repositories.

However, the NSAs account isnt brand new. It first appeared in 2015, when the agency open sourced a tool called SIMP (System Integrity Management Platform).

These projects have been shared as a part of the NSA Technology Transfer Program (TTP) which acts as a bridge between patented NSA-developed tech and industry, academic institutions, and other research bodies.

The NSA opening up their treasure will help the general public in many ways. In fact, many of the technologies we are currently using, be it the internet, GPS or your Rayban; various defensebodies have been a wellspring for such things.

Check out NSAs new Github site using this link.

Got something to add? Drop your thoughts and feedback.

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NSA's GitHub Account Has 32 Open Source Projects For People - Fossbytes

Big Cases Still Waiting for Supreme Court Decisions in 2017 – Breitbart News

Posted on June 20, 2017 by Danzig

Some notable cases include:

In Jennings v. Rodriguez, the Supreme Court is considering whether the Fifth Amendment Due Process Clause entitles aliens being held in federal facilities to a bond hearing, such that if they post bond they could be released into the U.S. civilian population. Justices asked hard questions of both sides during oral argument in November.

In Sessions v. Dimaya, another case involving aliens, the Court will decide whether a key provision in the Immigration and Nationality Act (INA) governing the deportation of certain aliens is so vague that it violates the Due Process Clause.

In Lee v. Tam, the justices will decide whether the provision of federal law that authorizes denying trademark protection because of content some consider disparaging violates the First Amendment. The Federal Circuit invalidated the restriction, which has direct application to the Washington Redskins and billboards expressing views critical of militant Islam.

In Ziglar v. Abbasi, the High Court will determine whether a plaintiff can directly sue individual FBI agents for detaining illegal aliens after the 9/11 attacks.

In Hernandez v. Mesa, the Court will decide whether Fourth Amendment protections apply to a cross-border shooting involving U.S. agents on the American side and a Mexican across the border, where the Mexican died and his family is suing the American agents. During oral argument, the justices focused heavily on the foreign-affairs aspect of this situation and whether the U.S. State Department should be in the lead, rather than courts.

In Packingham v. North Carolina, the justices will consider whether registered sex offenders can be banned from social network platforms like Facebook, given the number of children the offender could have contact with.

In Murr v. Wisconsin, the Supreme Court will consider aspects of when government so completely regulates a piece of property that the land becomes unusable by the owner, such that this triggers the Fifth Amendments Takings Clause requiring the government topay the owner. The question here is how much of the land the government must compensate the owner for.

In Lee v. United States, a legal alien allowed to stay permanently in the United States pleaded guilty to a nonviolent drug crime involving ecstasy, not knowing that his plea deal would automatically result in his deportation. The case is about whether his rejecting the deal was irrational, such that it was ineffective counsel for his lawyer to fail to explain the deportation consequences of the deal. Judge Alice Batchelder of the Sixth Circuit wrotefor her appeals court that his rejection was rational. However, after explaining that binding precedent required her to do so, she flagged several problematic aspects of those precedents so persuasively that the Supreme Court decided to reconsider them.

In Trinity Lutheran Church v. Comer, the Supreme Court is considering whether Blaine Amendments which forbid state funds from going to providers of public service programs only when those providers have a religious mission violates the First Amendment Free Exercise Clause and the Fourteenth Amendment Equal ProtectionClause.

In Bristol-Myers Squibb v. Superior Court of San Francisco County, the justices are exploring how far the Fourteenth Amendment permits state courts to have jurisdiction over out-of-state businesses.

The justices are currently scheduled to hand down all remaining decisions this year on the next two Mondays, June 19 and June 26. However, the Thursday in between, June 22, is often converted into another daily session for handing down decisions. If there are still undecided cases after June 26, the Court could also announce one final session later that week.

One uncommon wild card in play this year is that, for most of the term, there was a vacant seat on the Supreme Court. Now that Justice Neil Gorsuch has been confirmed to the seat formerly held by the iconic Justice Antonin Scalia, cases that were originally 4-4 tie votes might be rescheduled for a new hearing next year, with Gorsuch as the tiebreaking vote.

Ken Klukowski is senior legal editor for Breitbart News. Follow him on Twitter @kenklukowski.

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Big Cases Still Waiting for Supreme Court Decisions in 2017 - Breitbart News

After Congressional Baseball Shooting, We Need To Talk About Gun Control – WBUR

Posted on June 20, 2017 by Danzig

wbur Commentary A Capitol Hill Police officer stands watch in Alexandria, Va., Wednesday, June 14, 2017, after a shooting involving House Majority Whip Steve Scalise of La., and others, during a Congressional baseball practice. (Cliff Owen/AP)

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James T. Hodgkinson, who died in a shootout with police Wednesday after wounding Congressman Steve Scalise and four others, apparently had a valid gun license. Whether or not he came by his weapons legally, the tragedy is bound to reopen our gun control debate and the assertion by Second Amendment fundamentalists, contrary to the view of most firearms owners, that gun control is unconstitutional.

They're wrong. I have this on good authority from two expert sources the late Justice Antonin Scalia, and the Founders who wrote the Constitution.

Gun-rights advocates may quote the Second Amendment robotically, but ... they apparently skip over its insistence that any militia be well regulated.

Before his death last year, Scalia was the Supreme Courts conservative brain, devoted to interpreting the founding document with what he saw as the intent of its drafters. Those founding fathersfamously quill-penned the Second Amendment: 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. So it will pop the bubble wrap in extremists minds to hear that in not allowingrestrictions on firearms, theyve been genuflecting to a myth.

Thats because theyve skated over inconvenient words from both the men who wrote the Constitution and Scalia, their medium.

Start with the latter. Gun control advocates cite his words in District of Columbia v. Heller, which at first blush is odd, since that 2008 case saw the high court uphold an individuals right to bear arms without serving in a state militia. Yet Scalia, writing the majority opinion, declared, Like most rights, the right secured by the Second Amendment is not unlimited, adding that it is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.

Nothing in our opinion should be taken to cast doubt on legislated conditions and qualifications on the commercial sale of arms, he wrote. Scalia also OKd restrictions in sensitive places such as schools and government buildings and on felons and the mentally ill.

These categories capture the vast majority of gun laws in America, says UCLA constitutional law professor Adam Winkler. In short, theres plenty of room under the Second Amendment for gun control.

Unnerving as those words will be to people who support fewer restrictions, they might suggest Scalia was an apostate from the Founders views. Uh-uh. Gun-rights advocates may quote the Second Amendment robotically, but, Winkler notes, they apparently skip over its insistence that any militia be well regulated.

Early America lived by that modifier, Fordham University historian Saul Cornell says: For instance, starting in the colonial period, states enacted a variety of safe-storage measures to deal with the danger posed by stored gunpowder. A 1786 law went as far as prohibiting the storage of a loaded gun in any building in Boston. Such laws, including early versions of gun registration, Winkler says, were so restrictive that todays NRA leaders would never support them.

Gun advocates will point out that Hodgkinsons rampage was itself stopped by guns, when police killed him-- glossing over the fact, as they gloss over the Second Amendments inconvenient words and history, that no one objects to trained police with guns.

Of course, the Founders permitted any number of things that would make moderns cringe slavery comes to mind so rights advocates are free to argue that the drafters views on guns were wrong. But they can't cloak extremism with phony Second Amendment protections, and anyway, its hard to come up with a defense for such extremism that passes the giggle test, as Scalias writing attests.

Beyond the restrictions permitted by the Heller opinion, judges spanning the ideological spectrum have upheld other gun controls, such as assault weapon bans. Even legal scholars who disagree with these rulings concede there are a lot of them. Its true that in a culture steeped in gun ownership, laws alone will never be enough to end Americas firearms carnage. Other measures that account for the resilience of that culture will be necessary as well.

But as this weeks atrocity recycles our endless gun control debate, its worth remembering a less familiar point. Those who think the Constitution permits unfettered gun possession should read it first.

Follow Cognoscenti on Facebook and Twitter, and sign up for our twice-weekly newsletter.

Rich Barlow Cognoscenti contributor Rich Barlow writes for BU Today, Boston University's news website.

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After Congressional Baseball Shooting, We Need To Talk About Gun Control - WBUR

Supreme Court: Rejecting trademarks that ‘disparage’ others violates the First Amendment – Washington Post

Posted on June 20, 2017 by Danzig

The federal government has violated the First Amendment by refusing to register trademarks that officials consider disparaging, the Supreme Court ruled unanimously Monday in a decision that provides a boost to the Washington Redskins efforts to hang on to the teams controversial name.

The ruling came in a case that involved an Asian American rock group called the Slants, which tried to register the bands name in 2011. The band was turned down by the U.S. Patent and Trademark Office because of a law against registering trademarks that are likely to disparage people or groups.

In a ruling against the government, the court said the disparagement clause of the federal trademark law was not constitutional, even though it was written evenhandedly, prohibiting trademarks that insult any group.

This provision violates the Free Speech Clause of the First Amendment, Justice Samuel A. Alito Jr. wrote in a section of the opinion supported by all participating justices. It offends a bedrock First Amendment principle: Speech may not be banned on the ground that it expresses ideas that offend.

[Will bands First Amendment argument resonate with Supreme Court?]

The ruling and a second one Monday that struck down a North Carolina law restricting registered sex offenders from social-media sites bolsters the reputation of the Supreme Court as protector of First Amendment rights.

At a time when some have claimed that speech may and should be regulated or censored if it is offensive, hurtful, or dangerous, the justices firm insistence that governments may not silence messages they dislike is noteworthy and important, Notre Dame law professor Richard W. Garnett said in a statement.

Redskins owner Daniel Snyder was more succinct in a statement: I am THRILLED. Hail to the Redskins. The team was not involved in the case at hand, although the court several times mentioned an amicus brief filed by the Redskins.

The case centered on the 1946 Lanham Act, which in part prohibits registration of a trademark that may disparage ... persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.

But the founder of the Slants, Simon Tam, said the point of the bands name is just the opposite an attempt to reclaim a slur and use it as a badge of pride.

In a Facebook post after the decision, Tam wrote: After an excruciating legal battle that has spanned nearly eight years, were beyond humbled and thrilled to have won this case at the Supreme Court. This journey has always been much bigger than our band: its been about the rights of all marginalized communities to determine whats best for ourselves.

Tam lost in the first legal rounds. But then a majority of the U.S. Court of Appeals for the Federal Circuit said the law violates the First Amendments guarantee of free speech. The government may not penalize private speech merely because it disapproves of the message it conveys, a majority of that court found.

(Jorge Ribas/The Washington Post)

Free-speech advocates had supported the Slants, and the courts decision seemed likely from the oral arguments.

But some ethnic and minority groups worried about what kinds of trademarks the government would now be forced to register. It seems this decision will indeed open the floodgates to applications for all sorts of potentially offensive and hateful marks, said Lisa Simpson, an intellectual-property lawyer in New York.

While unified on the bottom line, the two groups of justices wrote separate opinions in support of the ruling.

Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express the thought we hate, Alito wrote in part of the opinion, joined by Chief Justice John G. Roberts Jr. and Justices Clarence Thomas and Stephen G. Breyer.

Justice Anthony M. Kennedy wrote a concurring opinion that was joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan.

A law that can be directed against speech found offensive to some portion of the public can be turned against minority and dissenting views to the detriment of all, Kennedy wrote.

The Slants were not happy to be associated with the Redskins band members oppose the team mascot but the band and the team have argued that the law was unevenly applied and gave too much control to the government.

The Supreme Court vindicated the teams position that the First Amendment blocks the government from denying or cancelling a trademark registration based on the governments opinion, Lisa Blatt, a lawyer representing the Redskins, said in a statement.

The teams trademark registration was canceled in 2014 after decades of use. The team asked a district judge in Virginia to overturn the cancellation and was refused. The case is now in the U.S. Court of Appeals for the 4th Circuit in Richmond, awaiting the Slants decision.

The Native Americans challenging the team were disappointed, said their attorney Jesse Witten.

Nothing in the opinion undermines the decision of the [Patent and Trademark Office appeal board] or the District Court that the term redskin disparages Native Americans, Wittens statement read.

Justice Neil M. Gorsuch did not take part in Matal v. Tam.

The court showed no hesitation in striking down the North Carolina law, which was meant to keep registered sex offenders off social networks and websites that could bring them into contact with potential targets.

Kennedy said the law was far too broad, enacting a prohibition unprecedented in the scope of First Amendment speech it burdens.

By prohibiting sex offenders from using those websites, with one broad stroke North Carolina bars access to what for many are the principal sources for knowing current events, checking ads for employment, speaking and listening in the modern public square, and otherwise exploring the vast realms of human thought and knowledge, Kennedy wrote.

Lester Gerard Packingham is one of about 1,000 people prosecuted under the law. As a 21-year-old in 2002, he had sex with a 13-year-old girl and pleaded guilty to taking indecent liberties with a child. As a registered sex offender, he was prohibited from gaining access to commercial social-networking sites.

But in 2010, he celebrated the dismissal of a traffic ticket on his Facebook profile:

No fine, no court cost, no nothing spent. ... Praise be to GOD, WOW! Thanks JESUS.

One North Carolina court struck down the law and his conviction, but the state Supreme Court reversed, saying the law was carefully tailored to meet the states goals.

None of the justices agreed with that. A fundamental principle of the First Amendment is that all persons have access to places where they can speak and listen, and then, after reflection, speak and listen once more, Kennedy wrote. He was joined fully in his opinion by the courts liberals: Ginsburg, Breyer, Sotomayor and Kagan.

Gorsuch did not take part in the case.

The rest of the court agreed North Carolinas law could not stand. But Alito said Kennedy had gone too far in his musings and risked sending the message that states are largely powerless to restrict even the most dangerous sexual predators from visiting any internet sites.

He was joined by Roberts and Thomas in that concurring opinion.

The case is Packingham v. North Carolina.

Ian Shapira contributed to this report.

The rest is here:

Supreme Court: Rejecting trademarks that 'disparage' others violates the First Amendment - Washington Post

Does partisan gerrymandering violate the First Amendment? – Slate Magazine

Posted on June 20, 2017 by Danzig

Mondays decision indicates that Justice Anthony Kennedy, pictured above, is moving in the right direction on the issues at the heart of partisan gerrymandering.

Jonathan Ernst/Reuters

On Monday morning, the Supreme Court agreed to hear Gill v. Whitford, a blockbuster case that could curb partisan gerrymandering throughout the United States. Shortly thereafter, the justices handed down two excellent decisions bolstering the First Amendments free speech protections for sex offenders and derogatory trademarks. While the link between these two rulings and Whitford isnt obvious at first glance, it seems possible that both decisions could strengthen the gerrymandering plaintiffs central argumentand help to end extreme partisan redistricting for good.

Mark Joseph Stern is a writer for Slate. He covers the law and LGBTQ issues.

The first ruling, Matal v. Tam, involves a dance-rock band called the Slants that sought to trademark its name. Simon Tam, the founding member, chose the name precisely because of its offensive history, hoping to reclaim the term. (He and his fellow band members are Asian American.) But the Patent and Trademark Office refused to register the name, citing a federal law that bars the registration of trademarks that could disparage or bring into contemp[t] or disrepute any persons, living or dead, institutions, beliefs, or national symbols. (The same rule spurred the revocation of the Redskins trademark.)

Every justice agreed that the anti-disparagement law ran afoul of the First Amendment. They split, however, on the question of why, exactly, the rule violates the freedom of speech. Justice Samuel Alito, joined by Chief Justice John Roberts as well as Justices Clarence Thomas and Stephen Breyer, applied the somewhat lenient test for commercial speech, which requires that a law be narrowly drawn to further a substantial interest. The trademark rule, Alito wrote, is ridiculously broad: It could apply to such theoretical trademarks as Down with homophobes (disparaging beliefs) and James Buchanan was a disastrous president (disparaging a person, living or dead). The law, then, is not an anti-discrimination clause, Alito concluded. It is a happy-talk clause, one that is far too sweeping to survive constitutional scrutiny.

Justice Anthony Kennedy perceived even more insidious censorship at play. In a concurrence joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan, Kennedy wrote that the measure in question constitutes viewpoint discriminationan egregious form of speech suppression that is presumptively unconstitutional. Under the First Amendment, Kennedy explained, the government may not singl[e]out a subset of messages for disfavor based on the views expressed, even when the message is conveyed in the commercial context. The anti-disparagement rule does exactly that, punishing an individual who wishes to trademark a name that the government finds offensive. This is the essence of viewpoint discrimination, Kennedy declared, and it cannot comport with the First Amendment.

A similar rift opened up between the justices in the second free speech case of the day, Packingham v. North Carolinaanother unanimous ruling with split opinions. (Justice Neil Gorsuch did not participate in either case, as oral arguments came before he was confirmed.) Packingham involved a North Carolina law that prohibited registered sex offenders from accessing any social media website, including Facebook, LinkedIn, and Twitter. The language of the statute is so sweeping that it also barred access to websites with commenting features such as Amazon and even the Washington Post. In essence, the law excludes sex offenders from the internet. North Carolina has used it to prosecute more than 1,000 people.

Kennedy, joined by all four liberals, subjected the law to intermediate scrutiny, asking whether it burden[s] substantially more speech than is necessary to further the governments legitimate interests. He easily found that it did. The Cyber Age is a revolution of historic proportions, Kennedy wrote, and social media users engage in a wide array of protected First Amendment activity on topics as diverse as human thought. Our interactions on the internet alter how we think, express ourselves, and define who we want to be; to foreclose access to social media altogether is to prevent the user from engaging in the legitimate exercise of First Amendment rights. The North Carolina law therefore suppresses too much expression and is thus in contravention of the Constitution.

In his ode to social media, Kennedy proclaimed that the internet has become the modern public square, the 21st-century equivalent to those public streets and parks where the Framers hoped Americans would speak and listen, and then, after reflection, speak and listen once more. (Kennedys prose remains distinctive as ever.) In a concurrence, Alito, joined by Roberts and Thomas, rejected Kennedys public square theory as loose, undisciplined, and unnecessary rhetoric that elides differences between cyberspace and the physical world. The three conservatives agreed that the North Carolina law swept too far but insisted that Kennedys opinion granted sex offenders a dangerous amount of freedom on the web.

So: What do these casesboth correctly decided, in my viewhave to do with gerrymandering?

To start, its important to view gerrymandering through a free speech lens, one developed by Kennedy himself in 2004. When the government draws districts designed to dilute votes cast on behalf of the minority party, it punishes voters on the basis of expression and association. To create an effective gerrymander, the state classifies individuals by their affiliation with political partiesa fundamental free speech activitythen diminishes their ability to elect their preferred representatives. Supporters of the minority party can still cast ballots. But because of their political views, their votes are essentially meaningless.

Districts designed to dilute votes for the minority party punish voters on the basis of expression and association.

Kennedy has called this a burden on representational rights. Its also something much simpler: viewpoint discrimination. In performing a partisan gerrymander, the government penalizes people who express support for a disfavored partymuch like, in Tam, the government penalizes those who wish to trademark a disfavored phrase. Both state actions punish individuals on the basis of their viewpoints: If you back the minority party, your vote wont matter; if you give your band an offensive name, you cant trademark it. And even though neither action qualifies as outright censorship, both restrict the public expression of ideas that the First Amendment is meant to protect.

Packingham also includes a subtler gift to the Whitford plaintiffs. In an aside, Kennedy compared the North Carolina law unfavorably to a Tennessee measure that bars campaigning within 100 feet of a polling place. Unlike the North Carolina law, Kennedy explained, the Tennessee statute was enacted to protect another fundamental rightthe right to vote.

Perhaps this passage is just more loose rhetoricbut I doubt it. Fundamental rights receive heightened protection under the Constitution. And although most Americans would probably agree that voting is a fundamental right, the Supreme Court has been cagey about saying so and inconsistent in safeguarding it. When the court upheld a voter ID law in 2008, for example, six justices paid lip service to the right to vote even as they shredded it; only the dissenting justices noted that the right is fundamental under the Constitution. Similarly, when the courts conservatives gutted the Voting Rights Act in 2013, they did not call the right to vote fundamental. Instead, they celebrated the fundamental principle of equal sovereignty, an archaic and discredited states rights doctrine. The upshot of that decision seemed to be that states rights are fundamental but voting rights are not.

Kennedy voted to uphold the voter ID law and kneecap the Voting Rights Act. But the justice is always evolving, and his aside in Packingham reads to me like a renewed commitment to the franchise set in the free speech context. If so, thats terrific news for opponents of partisan gerrymandering. Such gerrymandering limits an individuals fundamental right to vote (by making her vote useless) on the basis of her viewpoint (that is, her support for a political party). In effect, the practice attaches unconstitutional conditions to both voting rights and free speech, putting many voters in a quandary: They can either muffle their political viewpoints and cast meaningful ballots or express their political viewpoints and cast meaningless ballots. The Constitution does not permit states to punish individuals for exercising their rights in this manner.

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America remains the world champion of free speech, an honorific I would not grant America in any other realm other than $$$$. More...

Unfortunately, these tea leaves do not indicate inevitable doom for partisan gerrymandering. Kennedy recently indicated concern about judicial intervention into the redistricting process, and in the past he has questioned whether courts can accurately gauge which gerrymanders go too far. The Whitford challengers believe they have the right tool to measure partisan gerrymanders, a mathematical formula called the efficiency gap. Nobody yet knows if Kennedy will agree, and the justice has sent mixed signalsits worth noting that he joined the courts conservatives in voting to stay the lower court decision in Whitford while the justices consider the case. (The court had ordered Wisconsin to redraw its maps.)

Still, Mondays decision indicates that Kennedy and the court are, at the very least, moving in the right direction on the issues at the heart of partisan gerrymandering. Free expression and association arent really free if the government can punish you for your viewpoint by ensuring your ballot doesnt matter; the right to vote isnt fundamental if it can be diluted on the basis of political affiliation. The basic First Amendment principles Kennedy espoused on Monday explain why the court may well curtail partisan gerrymandering next term. In fact, they explain why the Constitution demands nothing less.

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Does partisan gerrymandering violate the First Amendment? - Slate Magazine

Even sex offenders have First Amendment rights – Washington Examiner

Posted on June 20, 2017 by Danzig

Sex offenders are probably the most marginalized group in society (ahead only of cannibals?) so it must be the rare case indeed where the Supreme Court rules unanimously in their favor. No, this isn't a situation where some state decreed that anyone accused of a sex crime be chemically castrated without trial or any other kind of Eighth Amendment (cruel and unusual punishment) or due-process claim. Instead, a man who served his time and was released subject to the normal set of registration and living restrictions was sent back to prison because he accessed Facebook. Monday, all eight justices (Neil Gorsuch not having participated) held that this violated the First Amendment.

Let's dive into the bizarre facts of the case. Lester Packingham, who had served time for "taking liberties with a minor" when he was 21 and she was 13, beat a parking ticket and celebrated by proclaiming on his Facebook page that "God is good! . . . Praise be to GOD, WOW! Thanks JESUS!"

For this grave offense against humanity, he was returned to the big house under a North Carolina statute that bans such people from accessing a wide variety of websites.

The law is meant to prevent communications between sex offenders and minors, but it sweeps more broadly than any other such law in the country. It doesn't even require the state to prove that the accused had contact with (or gathered information about) a minor, or intended to do so, or accessed a website for any other illicit purpose.

Accordingly, the state court of appeals overturned Packingham's conviction, but the state supreme court, over vigorous dissent, reinstated the conviction and sentence. The U.S. Supreme Court has now had the final word, finding that the North Carolina law wasn't "narrowly tailored to serve a significant governmental interest."

Translating from the legalese, this means that the state legislature slapped down a broad law that didn't closely track the social problem it was supposed to target. As the Supreme Court explained, citing Cato's amicus brief, the law may well bar access not only to social media but to any site where someone creates a profile and interacts with peopleincluding the likes of Amazon, YouTube, and WebMD, or even the Washington Post and New York Times.

But even restrictions on social media alone would be troubling if not further tailored, the Supreme Court announced. Indeed, Justice Anthony Kennedy's opinion is an encomium to the importance of web-surfing: "By prohibiting sex offenders from using those websites, North Carolina with one broad stroke bars access to what for many are the principal sources for knowing current events, checking ads for employment, speaking and listening in the modern public square, and otherwise exploring the vast realms of human thought and knowledge." (The next time my wife tells me that I'm spending too much time on Facebook and Twitter, I'll reply that I'm simply enriching myself with the wealth of human knowledge.)

There are other problems with the statute, such as its vagueness. Someone subject to this law literally can't know what he can't do or say; the police themselves aren't sure!

Finally, the statute also fails constitutional scrutiny because it criminalizes speech based on the identity of the speaker. As Kennedy put it, "[e]ven convicted criminalsand in some instances especially convicted criminalsmight receive legitimate benefits from these means for access to the world of ideas, in particular if they seek to reform and to pursue lawful and rewarding lives."

The very purpose of the First Amendment is to protect the speech of disfavored minorities. Signaling out this speech for prosecutionwithout any allegation that it relates to conduct or even motivehas earned the Tar Heel State a big "dislike" from the Supreme Court.

Ilya Shapiro (@ishapiro) is a contributor to the Washington Examiner's Beltway Confidential blog. He is a senior fellow in constitutional studies at the Cato Institute and editor-in-chief of the Cato Supreme Court Review.

If you would like to write an op-ed for the Washington Examiner, please read ourguidelines on submissions here.

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Even sex offenders have First Amendment rights - Washington Examiner

Conservative talk-show host and First Amendment litigator is Trump’s newest lawyer – Washington Post

Posted on June 20, 2017 by Danzig

The combative lawyer who made the rounds defending President Trump on the Sunday talk shows is not well known to Washingtons criminal defense bar.

A new member of Trumps legal team, Jay Sekulow, 61, is, however, a fixture on conservative talk radio and a celebrity among conservative organizations for his high-profile First Amendment court battles over religious rights. He has argued a dozen cases before the Supreme Court.

Along with his own widely syndicated daily radio talk show, Jay Sekulow Live! broadcast on more than 850 radio stations, satellite radio and on his website Sekulow is also a regular guest on the Fox News Channel, The 700 Club and Sean Hannitys radio show, as well as provides commentary on the Christian Broadcasting Network.

In May, Sekulow dismissed the Russia scandal as a fraud on the American people.

On the Sunday shows, Sekulow repeatedly insisted that Trump is not under federal investigation. The Washington Post reported last week that the Russia investigation has widened to include an examination of whether Trump attempted to obstruct justice. But Sekulow said that Trump has not been notified of a probe by special counsel Robert S. Mueller III. He then conceded on Fox News Sunday that he doesnt know for sure if there is an investigation or not.

[Special counsel is investigation Trump for possible obstruction of justice]

Sekulow could not be reached for comment.

Nan Aron, president of Alliance for Justice, has often lined up against Sekulow on Supreme Court nominations and other legal issues. Seeing him on television defending Trump, she said, was totally in keeping with his career.

Hes often been the public face of the Republican establishment, Aron said. Hes been intimately involved in helping nominees like Samuel Alito and John Roberts get on the court, and its safe to say I would fundamentally disagree with his vision of justice, and his views on civil rights, womens rights and civil liberties.

A native of Brooklyn who grew up on Long Island, Sekulow is a self-described Messianic Jew and was a member of the board of the evangelical group Jews for Jesus. He earned his law degree from Mercer University School of Law in Georgia and a PhD from Regent University in Virginia Beach, where he wrote his dissertation on religious influence on Supreme Court justices.

Sekulow started his career as a tax litigator for the Internal Revenue Service. In 1987, Sekulow argued his first Supreme Court case when he represented Jews for Jesus and helped defeat a measure banning the distribution of religious literature at Los Angeles International Airport.

American Lawyer magazine wrote at the time that Sekulow was rude and aggressive and so nervous that at times he appeared nearly out of control. But for Sekulow, arguing before the Supreme Court was a formative moment, probably the most intense experience of my life.

I left the courtroom feeling like the Beatles must have felt leaving Shea Stadium, Sekulow wrote in an essay for Jews for Jesus. Or for those who might not know the Beatles, I felt like Rocky after the fight. Sekulow won the case in a unanimous decision that struck down the measure.

The victory turned Sekulow into a crusader for religious expressions and a celebrity on the Christian right.

He is very effective in the courtroom and a very effective advocate with the public, said Barry Lynn, the lawyer and pastor who leads Americans United for Separation of Church and State and has debated Sekulow more than 100 times in media appearances and on college campuses. I expect the president will use him frequently because he is a great deal more articulate than the other surrogates.

Several years after the Jews for Jesus decision, Sekulow became chief counsel for the American Center for Law and Justice (ACLJ), founded by televangelist Pat Robertson and dedicated to the ideal that religious freedom and freedom of speech are inalienable, God-given rights, according to the groups website.

The group has worked against same-sex marriage and in favor of banning abortion. But, ACLJ does not limit itself to religious legal issues. Late last year, ACLJ sued the Justice Department, seeking records of the June meeting at the Phoenix airport between then-Attorney General Loretta E. Lynch and former president Bill Clinton. That tarmac meeting happened about a week before then-FBI Director James B. Comey announced that no charges would be filed in the probe of Hillary Clintons use of a private email server.

Despite his lack of experience in criminal defense work, lawyers who know Sekulow hail him as a leader of the religious conservative legal and policy community.

You definitely should not underestimate his abilities, said Mat Staver, the former dean of Liberty University Law School who collaborated with Sekulow on several Supreme Court cases. He is an exceptionally capable and intelligent lawyer who really knows how to win a case, Staver said. He is a very rapid-fire thinker and talker. He can get out an argument in one minute that would take two to three minutes for others to make.

Trump lawyer insists there is no obstruction investigation --but then hedges

At height of Russia tensions, Manafort met with business associate from Ukraine

Trumps lawyers contradictory Sunday, annotated

Derek Hawkins contributed to this report.

Continued here:

Conservative talk-show host and First Amendment litigator is Trump's newest lawyer - Washington Post

Utah Supreme Court reverses obscenity-as-to-minors conviction – Washington Post

Posted on June 20, 2017 by Danzig

Im delighted to report that the Utah Supreme Court has just handed down an opinion in Butt v. State, reversing an obscenity-as-to-minors conviction that Utah lawyers Troy Booher and Beth Kennedy (many thanks to them!) and I challenged.

The Utah Supreme Court had upheld the conviction when it was first appealed, and I challenged that in a petition for review to the U.S. Supreme Court. But the state argued that the First Amendment arguments werent properly made at trial and on initial appeal; and, after calling for a copy of the record, the U.S. Supreme Court denied our petition. We then filed a state post-conviction challenge, arguing that, if the First Amendment argument was indeed not properly made, that was ineffective assistance of counsel.

And today, the Utah Supreme Court agreed, holding that the material in the case was actually protected by the First Amendment. (In this case, the ineffective assistance of counsel issue ended up turning on this substantive First Amendment question.) First, the facts (you can see more details in our cert. petition):

Petitioner was convicted of two counts of dealing harmful materials to a minor. The counts relate to two letters Petitioner sent to his family from jail while awaiting sentencing for theft. While processing Petitioners first letter for mailing, a jail guard noticed a drawing that concerned him. And he held the letter for review by his jail commander.

The letter included handwritten notes to Petitioners wife and five-year-old daughter. Petitioner wrote to his daughter: Well I know you want me to draw my whole body, but I cant draw very good, so this will have to work. The drawing was an unskilled, hand drawn picture portraying Petitioner naked. While the drawing was rough, it depicted Petitioners nipples, chest hair, pubic hair, penis, and testicles.

Three days later, without knowledge that his first letter had been intercepted, Petitioner wrote a second letter. This letter was also intercepted. In this letter, Petitioner again wrote a short note to his daughter: Hi beautiful girl. I miss you so much. I cant wait to bite your butt cheek. This is what it will look like. I love you.

Below this note, Petitioner had again roughly sketched a picture of himself naked. This picture was even more rudimentary than the initial drawing. But it portrayed Petitioners nipples, penis, and testicles. This time, however, he was holding his daughter up with her bottom next to his mouth. A speech bubble from his mouth read: Oh your butt taste [sic] so good. And a second speech bubble from his daughters mouth read: Oouch! Daddy dont Bite so hard Giggle giggle.

At trial, Petitioner attempted to justify the contents of the first drawing. He testified that prior to his incarceration he had watched a documentary about cave dwellings with his daughter, with cave drawings depicting naked people. Petitioner testified that his daughter had laughed and asked him to draw a picture of himself naked like the cave drawings.

With respect to the second drawing, Petitioner testified that his daughter likes being tickled. So as part of her bedtime routine he holds his daughters hands up in the air and nibbles all over her stomach, while she laughs. To escape the tickling, his daughter rolls over from her back to her stomach. At this point, Petitioner teases her, saying roll back over or Im going to bite your butt cheek, to which his daughter responds by rolling back over. Petitioner testified that he does not remember ever actually biting his daughter during the routine. Rather, he makes an empty threat so that his daughter will roll back over. Despite Petitioners explanation, the jury returned a guilty verdict on both counts.

When we challenged the convictions in state court, the state agreed that the conviction related to the first drawing should be vacated; and it conceded that trial counsels performance was deficient in failing to raise an independent First Amendment defense, but argued that the defendant hadnt been harmed by this error as to the second drawing because the First Amendment defense would have in any event failed. Today, the court held that the First Amendment did protect the second drawing, because it did not appeal to a prurient interest in sex, and thus did not fall within the First Amendment exception for speech that is obscene as to minors:

[T]he drawing at issue is so rudimentary that taken as a whole including the context of Petitioners unrebutted testimony about his routine with his daughter it does not depict a sexual act. And we likewise conclude that the drawing is not sexually suggestive.

An appeal to the prurient interest in sex of a five-year-old is not a particularly high bar. A prurient interest in sex is one that is a shameful or morbid. And in the context of obscenity as to minors, this assessment is judged in light of the minors age. While a five-year-old likely does not experience sexual arousal, material can still generate a desire to engage in sexual relations. Whether that desire stems from curiosity, conditioning, or otherwise, it may cross the prurient interest line.

Perhaps it could be said that a five-year-olds present desire to engage in any form of sexual activity is prurient. At a minimum, however, it can be said that this standard is met with respect to material that is aimed at appealing to a young childs interest in engaging in sexual activity with a parent (or any adult); such activity is criminal, and thus easily deemed shameful or morbid.

If we viewed the drawing as depicting sexual conduct between Petitioner and his daughter we would have little difficulty agreeing with the State [that the drawing appealed to a prurient interest in sex]. But on balance, and in light of the context given to the drawing by the only testimony on the matter presented at trial, we view the drawing differently. We do not view the drawing as portraying a sexual act.

Although the drawing clearly depicts Petitioner naked, it is unclear whether it shows him biting his daughter or simply holding her in the air and joking about doing so. It is equally unclear whether his daughter is clothed or naked. Importantly, moreover, there is no context in the record to support the States inferences that sexual conduct is in fact being portrayed.

We likewise conclude that the intended audience, Petitioners daughter, would not have perceived the drawings as sexually suggestive. Context is particularly important in this area. And the only contextual evidence in the record is Petitioners own testimony regarding the cave drawing television program and his bedtime routine with his daughter. We have little way of knowing whether Petitioners testimony was truthful. Perhaps the State is right to be skeptical about the explanation offered by Petitioner. But the problem is that we have no contrary evidence before us no indication on the record to give a different context to the drawing, and no basis for the conclusion that Petitioners explanation was fabricated. We give little weight to Petitioners story. But we do give it some weight, which together with his daughters young age leads us to conclude that Petitioners daughter would not have seen the drawing as sexually suggestive.

We conclude that the drawing is not sexual or sexually suggestive, and accordingly does not appeal to a prurient interest in sex. [Footnote: We caution that this is a close case. We conclude that on the record before us, Petitioners drawing was so rudimentary that taken as a whole it would not have appealed to any sexual interest of Petitioners daughter. But context matters. And a contrary decision might be merited in a case involving additional facts evidencing double entendre, an older child more perceptive of sexual suggestion, a context where the intended recipient might perceive a sexual meaning, or a more explicit drawing.]

One important procedural takeaway: The same Utah Supreme Court unanimously upheld the conviction initially, and then unanimously reversed it on appeal, even though three of the five Justices on the court heard both cases.

The difference, I think, is that, in 2012, the court deferred to the jurys application of the obscenity-as-to-minors test, presumably because the court saw this as simply a state-law case rather than a First Amendment case. But now, when it applied the First Amendment analysis, it had to apply independent review of the record to judge the merits of a First Amendment defense in an obscenity action, yielding no deference to the jurys verdict or the district courts conclusions on underlying mixed questions of law and fact. (Such independent review is required by the U.S. Supreme Courts First Amendment caselaw.)

So, law students and lawyers: Remember how important such standards of review can be, and remember the procedural value of raising a substantive First Amendment defense in cases involving speech crimes or speech torts.

Thanks again to Troy Booher and Beth Kennedy for all their help with the case, and to John Hurst, Freyja Johnson, Clemens Landau and Michael Teter and my colleagues Iman Anabtawi, Jason Oh and Seana Shiffrin for sitting on my moot courts for the oral argument.

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Utah Supreme Court reverses obscenity-as-to-minors conviction - Washington Post

Chicago Bears Violated Fan’s 1st Amendment Rights: Suit – NBC Chicago

Posted on June 20, 2017 by Danzig

NBC Chicago

Chicago Bears Violated Fan's 1st Amendment Rights: Suit
NBC Chicago
A Green Bay Packers fan claims in a federal lawsuit filed Friday the Chicago Bears violated his First Amendment Rights. Russell Beckman, who is from Wisconsin, says he is a season tickets holder for the Packers and the Bearstwo teams he lovesbut a ...

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Chicago Bears Violated Fan's 1st Amendment Rights: Suit - NBC Chicago

The First Amendment Is in Increasing Danger Under a Trump Administration – Rewire

Posted on June 20, 2017 by Danzig

Analysis Law and Policy

Jun 19, 2017, 12:18pm Lisa Needham

One of the best ways to ensure people don't exercise their First Amendment rights is to make it far too hazardous and costly to do so. That is what is happening right now.

We live in an era of increasing crackdowns on public protests and whistleblowing: real, and increasingly effective, attacks on the First Amendment. The First Amendment, of course, promises us the right to free speech, but it also promises us the rights to assemble and to associate. In practical terms, this generally means that you can associate with whomever you choose to, assemble together in any fashion, and speak out against the government in whatever way you see fit.

One of the best ways to ensure people dont exercise their First Amendment rights is to make it far too dangerous and costly to do so. That is what is happening right now.

Attempts to brutalize protesters and criminalize protest are nothing new. The 2008 Republican National Convention (RNC), for example, saw police firing chemical agents and projectiles at peaceful crowds and mass arrests. The overcharging of arrestees that followed the convention only added to the feeling of dystopia. Prior to even engaging in any protests, eight individuals were arrested and eventually charged under an anti-terrorism statute. Why? Because they had some banal items like light bulbs, which police alleged could be filled with paint or chemicals and thrown, along with more obviously problematic things like U-locks (to chain themselves to things) and caltrops (steel points you put on the street to deflate tires). But the key point: They hadnt done a thing with those objects yet, so the anti-terrorism charge was more than a bit of a stretch. (Terrorism charges are more typically leveled when people are found with bomb-making material, or are found with innocuous material but have detailed how they plan to use that material to make an explosive.) Those charges were later dropped because the prosecutor felt that it would distract the jury.

As grim as the RNC charges were, theyve got nothing on the latest episode of overcharging protesters. More than 200 people were arrested for protesting during President Trumps inauguration in January. Most protesters were originally charged with only one count of felony rioting but, after very few of them pleaded guilty, a new grand jury indictment was returned that charges nearly all of them with eight felony counts, including inciting to riot, conspiracy to riot, and destruction of property.

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Make no mistake: Many of these individuals were first punished for exercising their right to protest, and are now being punished for exercising their right to demand a trial rather than a plea deal. The government is also attempting totry all the defendants together, which brings up serious questions of fairness.

As reported by BuzzFeed, Jason Flores-Williams, an attorney representing three of those defendants, has already asked District of Columbia Superior Court Judge Lynn Leibovitz, who is presiding over all of the Inauguration Day prosecutions, to require a separate trial for one his clients, rather than agree to the governments plan to try defendants together.

There is a spillover prejudicial effect where when evidence against one person as I said ends up in the jurys mind being evidence against everyone else who was there, regardless of whether that evidence was actually against them or proven against them in any direct or specific way, Flores-Williams toldBuzzFeed.

The Inauguration Day protesters face felony charges that carry up to ten years in prison. Thats far too high a price to pay.

Equally chilling, six journalists were also arrested during the inauguration and charged with felony rioting. (Charges have since been dropped for all but one of the journalists).

Another way to ensure that people arent able to speak truth to power is to restrict them from documenting abuses of that power. States keep trying to pass laws that criminalize the filming or photographing of police. Indeed, whether you can record police or not is still an open question for the courts. A divided U.S. Court of Appeals for the Fifth Circuitrecently ruled on the case of a Texas activist who was filming police activity outside a police station. The court held that individuals have a First Amendment right to film the police within the states of the Fifth Circuit: Louisiana, Mississippi, and Texas. The Fifth Circuit also noted that every circuit court that has ruled on the issue has found that the First Amendment does actually protect the right of people to film police officers while those officers are performing their duties. However, several circuits havent ruled on the matter, or have stated that the right isnt clearly established. Regardless of court rulings, police continue to push back: Just in the last year, the ACLU has had to go to court in Louisiana, Massachusetts, and Pennsylvania to defend the right of individuals to record the police. Being able to record the police and share those recordings is, of course, a key component of journalism in the modern digital and visual era.

Clamping down on whistleblowers and leakers is another way to ensure that people dont speak out. If the price of speaking out is too high, people will stop. The Obama administration aggressively prosecuted leakers at a much higher rate than during the administrations of his predecessors, even going so far as to oppose allowing leakers to mount a defense based on the First Amendment. In other words, the prosecutors filed motions to prohibit defendants from saying that they were performing a public service by leaking to the press. However, the defense should be allowed because the public has a First Amendment interest in knowing about the workings of government, and government employees are in the best position to share that information.

The Trump administration looks to be equally aggressive, if not more so, having undertaken its first leak prosecution by going after Reality Winner, who allegedly leaked information about Russian interference in the 2016 election. To be sure, what Winner allegedly leaked is information that the public absolutely does need to know about: the depth and breadth and persistence of Russian attempts to hack the 2016 U.S. election. However, she now faces a fine of up to $250,000, a prison sentence of up to 10 years, or both.

Trump has stated hed consider jailing journalists over leaks, while people like former Speaker of the House Newt Gingrich (R), and others,have stated that federal employeeleakers who talk to the press are committing treason. They arent, of course. In the United States, treason generally refers to U.S. citizens who use force to align with enemies of the country. Attorney General Jeff Sessions, of course, wants to actively pursue and prosecute leakers rather than address his own peculiar failure to remember when he talks to Russians.

At the same time as the threat of leak prosecutions looms, congressional Republicans are looking to lock down press access to their members, in large part because they dont want to talk about the nightmare that is their health care bill. Journalists were told they couldnt film interviews with senators without getting permission from the (Republican-led) Senate Rules Committee. Tim Scott (R-SC) bizarrely claimed that if journalists could roam the halls and talk to senatorssomething they have always been able to dothe cameras might capture his ATM PIN and he needed to keep that private. This effort, mercifully, failed relatively quickly, but theres no reason to think that congressional Republicans who have been dodging things like town halls left and right wouldnt welcome greater press restrictions.

Criminalize protest, veil the work of police, prosecute those who share vital information with the American people, and limit availability and accountability of elected officials. These are pages from an authoritarian playbook, not a democratic one, but it is the world we live in now. We need to be vigilant against further depredations where the right to speech is concerned by supporting protesters and whistleblowers in any way we can.

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The First Amendment Is in Increasing Danger Under a Trump Administration - Rewire

Bitcoin hits a bump – VICE News

Posted on June 20, 2017 by Danzig

More cryptomoney, more problems.

Technical glitches, competition, and Wall Street skepticism have walloped the value of bitcoins lately, a rare setback in the digital currencys otherwise steady rise.

The question now is whether the selloff will ultimately prove to be a temporary bout of growing pains or a more significant turning point in bitcoins evolution.

Bitcoin prices have approximately tripled this year, touching a monthly closing high above $3,000 on June 11. But theyve since fallen near $2,600, down more than 13 percent from the high, according to the cryptocurrency site CoinDesk.

Bitcoins woes started last week with a massive headache for traders as the popular bitcoin exchange Coinbase experienced an outage due to heavy volume. The incident highlighted how popular cryptocurrencies have become, with the global market now topping $100 billion. But it also renewed concerns about whether the ecosystem around bitcoin and its peers is mature and stable enough to truly challenge more traditional means of exchange issued by governments.

Coincidentally, the grandaddy of government-issued fiat currencies, the U.S. dollar, got a shot in the arm Wednesday when the Federal Reserves policy committee raised its key interest-rate target by a quarter percentage-point, to a range of 1 percent to 1.25 percent.

The Feds move was aimed at fighting inflation, but it will also effectively limit the supply of dollars moving through the global economy in the months ahead. That tends to support the greenbacks value against rivals, including digital upstarts like bitcoin.

The cryptocurrency market is also seeing an influx of new competitors, notably the Ethereum platform. Its currency, the ether, is already the second-most-popular cryptocurrency after bitcoin and is generally regarded as more flexible as a tool for building applications.

The ether also has taken a hit lately, off about 12 percent after hitting a monthly high over $400 last Monday. But that pullback has been slightly less than bitcoins, and the ethers rally for the year has been much steeper, up more than 40 times its 2016 year-end value.

In a note to clients last Monday, Goldman Sachs head of technical strategy Sheba Jafari warned that a number of signals in the bitcoin market are looking broadly heavy.

A few days later, Morgan Stanley analysts floated an idea thats perhaps even more unthinkable in the freewheeling cryptocurrency market that more regulation might be needed to help bitcoin and its peers realize their potential as actual transaction tools to conduct commerce.

For now, they still function more as playthings for speculative investors. And theyhave been selling.

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Bitcoin hits a bump - VICE News

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