Intel Chief Says He Cannot Reveal How Many Americans the NSA … – Gizmodo

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Americas top intelligence official is reneging on a promise made under the Obama administration to estimate how many Americans have been spied on using a warrant-less surveillance law intended to target foreigners. The decision to abandon that commitment isnt sitting well with civil liberties advocates who formed a coalition this week in protest.

Director of National Intelligence Dan Coats told a Senate panel last week that it was infeasible to generate an exact, accurate, meaningful, and responsive methodology to show how many Americans have been spied on under Section 702 of the Foreign Intelligence Surveillance Actthe law which enables intelligence agencies to spy on the communications of foreigners with the help of American companies such as AT&T.

Coats said the National Security Agency had already undergone a Herculean effort to determine the number, but somehow failed miserably.

Given that the NSA claims to be the largest employer of mathematicians in the country (the exact number is classified), Coatss explanation that counting is really hard seemed fairly absurd. One can only conclude that the number of Americans being spied on incidentally under 702 is so shockingly high that announcing it would endanger any chance of renewing 702's authority before it expires on January 1, 2018.

Either way, the official President Trump appointed to lead the Intelligence Community seems to have thrown his hands in the air with regard to this simple accountability request. Its astonishing, really, that the White House was able to find someone who is less inclined to be straightforward with the American public than James Clapper, the former director, whose New York Times obituary will undoubtedly contain an accusation of perjury.

Late Monday, the American Civil Liberties Unionalong with more than two dozen other digital and civil rights groupssigned a letter [PDF] criticizing Coats decision to leave the public in the dark, and with justifiable and significant concerns about the effect of Section 702 surveillance on Americans privacy and civil liberties. The letter was sent to Office of the Director of National Intelligence and then forwarded [PDF] to the chairman and ranking member of the House Judiciary CommitteeRepresentatives Bob Goodlatte and John Conyers, respectively.

Members of Congress should be outraged that the NSA has reneged on its commitment to provide an estimate of the number of Americans that the NSA spies on under Section 702, and should use every tool at their disposal to demand that this information be provided, Neema Singh Guliani, ACLU legislative counsel, said in a statement.

The executive branch has provided no credible explanation for their abrupt reversal in position, which comes after months of discussions with Congressional staff on methodologies to obtain the exact information that they now claim is impossible to determine, Guliani continued. This decision is not rooted in practicalities, but rather part of an overall effort to withhold key information about Section 702 while the program is being debated in Congress.

Aside from the ACLU, 32 other groups signed on to the letter, including the Brennan Center for Justice, the Electronic Frontier Foundation, Demand Progress, and the Sunlight Foundation. The groups charge Coats with backtracking specifically for political reasons (as opposed to practical ones). It is critical to allow the American people and their representatives to fully understand the impact Section 702 has on their privacy and civil liberties as Congress considers reauthorization of the law, they said.

Rep. Conyers did not immediately respond to a request for comment. An aide to Rep. Goodlatte referred questions to a Judiciary Committee spokesperson, who likewise did not return a request for comment.

Update, 1:56pm: A Republican House Judiciary Committee aide provided Gizmodo the following comment:

As the House Judiciary Committee seeks to reauthorize and reform FISA Section 702, it is imperative that Members of Congress understand the impact of this intelligence-gathering program on U.S. persons. While Director Coats has indicated that it is not feasible to provide this information, the Committee will continue to explore with the agencies various options for obtaining the desired information. Chairman Goodlatte looks forward to working with Director Coats and others on efforts to reauthorize this critical intelligence-gathering program and to ensure it protects Americans civil liberties.

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Intel Chief Says He Cannot Reveal How Many Americans the NSA ... - Gizmodo

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Rare XP Patches Fix Three Remaining Leaked NSA Exploits – Threatpost

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The unusual decision Microsoft made to release patches on Tuesday for unsupported versions of Windows was prompted by three NSA exploits that remained unaddressed from Aprils ShadowBrokers leak.

The worst of the bunch, an attack called ExplodingCan (CVE-2017-7269), targets older versions of Microsofts Internet Information Services (IIS) webserver, version 6.0 in particular, and enables an attacker to gain remote code execution on a Windows 2003 server.

All three attacks allow an adversary to gain remote code execution; one is EsteemAudit, a vulnerability in the Windows Remote Desktop Protocol (RDP) (CVE-2017-0176), while the other is EnglishmanDentist (CVE-2017-8487), a bug in OLE (Object Linking and Embedding). Microsoft said the patches are available for manual download.

ExplodingCan merits a closer look because of the wide deployment of IIS 6.0.

Generally, when you put a Windows machine on the internet, its going to be a server and its going to run a webserver, so there are production machines on the internet running IIS 6.0 right now, said Sean Dillon, senior analyst at RiskSense and one of the first to analyze the NSAs EternalBlue exploit that spread WannaCry ransomware on May 12.

Its probably already been exploited for months now, Dillon said. At least now theres a fix thats publicly available.

Microsoft released a hefty load of patches for supported products and services on Tuesday as part of its normal Patch Tuesday update cycle. Normally, patches for unsupported versions of Windows are available only for Microsoft customers on an expensive extended support contract. The companys decision to make all of those fixes public on Tuesday, it said, was prompted by an elevated risk for destructive cyber attacks.

Due to the elevated risk for destructive cyber attacks at this time, we made the decision to take this action because applying these updates provides further protection against potential attacks with characteristics similar to WannaCrypt, said Adrienne Hall, general manager of Microsofts Cyber Defense Operations Center.

In reviewing the updates for this month, some vulnerabilities were identified that pose elevated risk of cyber attacks by government organizations, sometimes referred to as nation-state actors or other copycat organizations, Hall said. To address this risk, today we are providing additional security updates along with our regular Update Tuesday service. These security updates are being made available toallcustomers, including those using older versions of Windows.

The ShadowBrokers leak in April unleashed a number of powerful Windows attacks into the public, allegedly belonging to the Equation Group, which is widely believed to the U.S. National Security Agency. Criminals and other nation states have already been leveraging the attacks to spread not only WannaCry ransomware, but also crytpocurrency mining utilities and other types of malware.

Microsoft said customers should not expect this type of patch release for unsupported products to become the norm. Some experts have been critical of Microsot, which also made a similar update available for unsupported products hours after the WannaCry outbreak.

I wish MS would stop releasing patches for xp/2003 it really harms efforts to get rid of legacy in the corporates

Quentyn Taylor (@quentynblog) June 13, 2017

Oh no. Take Windows XP off life support. Though it cannot die with dignity, it must be allowed to die. It will be messy. But this is cruel. https://t.co/euZVdTLC0z

Katie Moussouris (@k8em0) June 13, 2017

It was the right move by Microsoft, Dillon said. We saw the damage it can cause with WannaCry. Some of the most-used infrastructure, like SCADA systems, still run on XP whether theyre getting patches or not. When you have critical things [running on XP], its a good thing they released, but it should only be looked at as a temporary solution and people should look to upgrade off of legacy versions.

Some third-party services such as 0patch have provided micro-patches for some of these vulnerabilities on legacy versions, even before the ShadowBrokers leak, Dillon said. Hopefully people who are running legacy systems have looked into other means of patching beside official fixes, he said. Although, this is great that theres an official fix.

The remaining two vulnerabilities are a lesser severity but should be patched nonetheless on legacy systems.

EsteemAudit affects RDP, but only on XP and did not require a patch for modern versions of Windows. According to Microsoft, the vulnerability exists if the RDP server has smart card authentication enabled.

EnglishmanDentist, meanwhile, is triggered because Windows OLE fails to properly validate user input, Microsoft said.

Theres a whole wide assortment of exploits that were leaked, and weve only seen a few of them actively used at a mass scale. This is just plugging a hole before it becomes a bigger problem, Dillon said.

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Rare XP Patches Fix Three Remaining Leaked NSA Exploits - Threatpost

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Tew: NSA site troubling for personal freedom – Daily Herald

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Fridays, when driving home from the airport, I sometimes drive by the seven NSA concrete fortress abominations in Draper, Utah.

Are the employees inside utilizing supercomputers to vacuum up billions of e-mails, social media posts and phone calls from American heroes or deplorable violators of our rights? Without oaths and warrants based on probable cause that a crime has been committed to justify their vacuuming of our private information dont they continuously and daily violate the 4th Amendment prohibitions against such a vast collection of private data from Americans?

Are we all comfortable with their vast fishing expedition seeking information that could be used against any one of us by a federal government that has long ago escaped its Constitutional cage?

The collected data, stored in the 702 database (Section 702, 2008 Amendment Act of the 1978 Foreign Intelligence Surveillance Act) awaits the mining and use of bureaucrats who make up their own rules, doesnt it?

Your political observations, financial information, or complaints about politicians made in your e-mail, phone call, or on social media are there awaiting some future use you cant predict arent they?

Bliss W. Tew, Orem

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Tew: NSA site troubling for personal freedom - Daily Herald

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Judges: ‘Coach Bart’ can’t use old sex talk testimony in new trial – Asbury Park Press

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A panel of appellate judges listen to arguments in the appeal of the conviction of former St. Rose High School baseball coach Bart McInerney. Doug Hood

Former St. Rose baseball coach Bartholomew McInerney testifies during his trial in the courtroom of Hon. Anthony J. Mellaci Jr. at the Monmouth County Courthouse in Freehold. Photo by BRADLEY J. PENNER/staff photographer. Freehold -- 01/19/10 -- ## MCINERNEY ##(Photo: BRADLEY J. PENNER/Asbury Park Press)Buy Photo

FREEHOLD -Bartholomew McInerney wants a jury to hear that he didnt derive any sexual thrills from the sex talks he had with the teenage boys he coached in baseball for St. Rose High School in Belmar.

But appellate judges have ruled that if Coach Bart wants jurors to hear that, hell have to tell them himself.

Judges Carmen H. Alvarez, Thomas V. Manahan and Allison E. Accurso of the Appellate Division of Superior Court ruled last week that McInerney will not be allowed to introduce his own testimony at a prior trial in 2010 when he is retried on 10 counts of child endangerment.

The allegations against McInerney, known as Coach Bart, include that he told his players on the baseball team to pleasure themselves and offered them money to send him text messages with details of their sex acts.

More: Lawyer: Coach Bart got "no sexual thrill''

McInerney testified at the 2010 trial that he had the sex talks with his players in an attempt to keep them from getting their girlfriends pregnant, his attorney, Edward C. Bertucio, said at a prior hearing.

Bertucio told the appellate judges in February he wanted to introduce the prior testimony at McInerneys new trial to show there was no sexual purpose or no sexual thrill to what he was doing.

Since the appellate panel shot that down, Bertucio, of the Eatontown law firm Hobbie, Corrigan and Bertucio, said he plans to ask the state Supreme Court to hear an appeal of the ruling.

The allegations against McInerney, 50, of Spring Lake, emerged in 2007 after he took some of the St. Rose baseball players to Alaska and Hawaii for tournaments. The following year, one of his former players, Andrew M. Clark, died when he stepped in front of an oncoming train. Clarks family later received a $900,000 settlement in a wrongful death lawsuit against McInerney, St. Rose and the Diocese of Trenton.

More: Coach, school settle suit over player's suicide

At McInerneys trial in Superior Court in Monmouth County in 2010, he was convicted of 10 counts of child endangerment and sentenced to 18 years in prison. An appellate panel in 2012 overturned his conviction and sentence, saying the trial judge gave confusing instructions to the jury.

McInerney was set to be retried on the charges in Middlesex County last year when the Monmouth County Prosecutors Office filed an appeal with the Appellate Division of Superior Court of a pretrial ruling by Judge Pedro Jimenez. Jimenez ruled that McInerney would be allowed to introduce his 2010 trial testimony.

More: Suspect in Brick man's murder claims self-defense

At the February appellate hearing, Monica do Outeiro, an assistant Monmouth County prosecutor, argued that prior testimony should be excluded from the new trial because it is hearsay.

Bertucio argued the prior testimony should be allowed because it falls under an exception that allows hearsay evidence if a witness isnt available to testify. He argued that his client wont be available to testify at the retrial because he plans to invoke his Fifth Amendment right to remain silent.

Watch the oral arguments at the appellate hearing in the video above.

The appellate panel, in a published opinion that other judges can reference in their own decisions, ruled otherwise and said McInerneys prior testimony cant be used at the new trial if he is the person who is making himself unavailable to testify.

The appellate judges, in an opinion written by Alvarez, said a defendants Fifth Amendment right does not take precedence over the basic rule of our adversary system that a defendant who seeks to testify and offer exculpatory statements must face cross-examination.

Bertucio said he disagrees.

We believe Judge Jimenez was correct under the law,"the defense attorney said. This was an evidentiary ruling, which gives Judge Jimenez broad discretion, and he was well within his discretion. We will file an appeal very shortly."

Kathleen Hopkins: 732-643-4202; Khopkins@app.com

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Judges: 'Coach Bart' can't use old sex talk testimony in new trial - Asbury Park Press

Coordinated traffic stops and the Fourth Amendment – Washington Post

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A new decision from the U.S. Court of Appeals for the 9th Circuit, United States v. Gorman, touches on an interesting question: If an officer pulls over a car for a traffic violation and suspects the car has drugs, but he cant get the drug-sniffing dog to come in time to sniff it, can the officer end the traffic stop and call ahead to another police officer to get a dog and watch for the car to pull it over for a second violation? Specifically, if the second officer gets a dog and spots a second traffic violation, can the second officer pull over the car and use the drug-sniffing dog to get probable cause to search the car?

In Gorman, there was a twist: The first officer held the driver for too long. The officer pulled over Straughn Gormans motor home for a traffic offense and then he held Gorman for almost a half-hour. He called for a drug-sniffing dog but was told there werent any available. Twenty minutes into the stop, the officer gave Gorman his documents back and told him he was not issuing a ticket. The officer continued to question Gorman, however, based on suspicion that Gorman was carrying drug money in the motor home. The stop went on for too long under the time-limiting doctrine articulated by the Supreme Court in Rodriguez v. United States, 135 S.Ct. 1609 (2015).

The officer became convinced that there was drug money in the motor home, but he did not have sufficient probable cause to search the car. He let the driver go, and he then called ahead to a second officer in the next county to get a dog and watch the vehicle. The second officer did so, later pulling over the motor home for a second traffic violation. The dog alerted, and a warrant was obtained to search the motor home. The search revealed $167,070 in cash in various interior compartments. The government brought a civil forfeiture action seeking to keep the cash as the proceeds of illegal drug activity, and Gorman moved to suppress the fruits of the search so it could not be used in the civil forfeiture action.

Held, per Judge Reinhardt: The evidence found following the second stop was a fruit of the unconstitutionally prolonged first stop. As a result, the money was suppressed.

From the opinion:

Here, there is an indisputable causal connection between Gormans concededly unlawful detention and the dog sniff and its fruits. See id. at 245. The detention unquestionably served as the impetus for the chain of events leading to the discovery of the currency. See id. It is clear, moreover, that [the first officer]s suspicions from the first stop significantly directed [the second officers] actions in making the second stop and conducting the sniff and search. See id. The close connection between the constitutional violation (the first detention) and the seizure of the currency is apparent.

On the basis of suspicions that accrued during the course of Gormans unlawful detention, [the first officer] alerted a separate law enforcement agency, informed [the second officer] of the basis for his suspicions, and requested that he attempt to stop Gorman for a second time, this time with a drug-sniffing dog. [The second officer] promptly estimated Gormans location and made a special trip to the highway for the purpose of apprehending him and conducting the dog sniff the sniff which led to the discovery of the currency. To repeat, there was a direct connection between the Fourth Amendment violation and its fruits. Thus, any evidence obtained from the sniff and search is inadmissible under the fruit of the poisonous tree doctrine.

The government does not contend that the fruit of the poisonous tree doctrine is applicable only if the impetus for the second stop came from the unlawful portion of Gormans detention. Even if it did, however, our conclusion would be the same, because the facts here show clearly that part of the impetus for the second stop did come from the unlawful portion of Gormans detention. It was only after the stops mission had been completed that [the first officer developed suspicion that the car motorhome was being used to carry drug money. . . . ] Given that sequence, we need not determine whether it would be appropriate to divide an unlawful detention into lawful and unlawful parts for purposes of fruit of the poisonous tree analysis

Reinhardt adds:

The coordinated action at issue in Gormans case offers a prime illustration of the value of the fruit of the poisonous tree analysis. The analysis allows us to see the officers conduct in Gormans case as what it is: a single integrated effort by police to circumvent the Constitution by making two coordinated stops. When the result of one stop is communicated and, on that basis, another stop is planned and implemented, the coordinated stops become, in effect, one integrated stop that must as a whole satisfy the Constitutions requirements. An illegal police venture cannot be made legal simply by dividing it into two coordinated stops. . . . The Constitution guards against this kind of gamesmanship because the Fourth Amendments protections extend beyond the margins of one particular police stop and can extend to the integrated and purposeful conduct of the state.

Putting aside whether this fruit of the poisonous tree analysis is correct under Utah v. Strieff, Im more interested in whether the second stop would be allowed if the first stop had not been prolonged. That is, can officers coordinate stops, watching for new traffic violations to stop a car to make sure a drug-sniffing dog will be present?

Reinhardt drops the following footnote on this issue:

Because we conclude that the seized currency is inadmissible as the fruit of the poisonous tree, we do not consider the argument that the second stop, taken independently, was itself unconstitutional. It could well be argued, for example, that performing the routine records checks during the second stop (which in Gormans case took significantly longer than usual because the central dispatch was delayed in responding to [the second officer]s inquiry) unreasonably prolonged Gormans roadside detention because [the second officer] knew in advance what the results of those redundant checks would be, as he correctly assumed [the first officer] already had done them and knew [the first officer] had found no probable cause to search the vehicle. [The second officers] checks therefore served no purpose other than to prolong the traffic stop.

Im not sure what I think of this, but it seemed like an interesting question worth flagging for the Fourth Amendment nerds among our readership.

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Coordinated traffic stops and the Fourth Amendment - Washington Post

How should an originalist rule in the Fourth Amendment cell-site … – Washington Post

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The Supreme Court recently agreed to hear Carpenter v. United States, a case on whether the Fourth Amendment protects historical cell-site records. In this post, I want to focus on a small but potentially important part of the Carpenter litigation: How should an originalist Justice vote in the case? There are many different flavors of originalism, of course, and originalist arguments often can be used to argue for different outcomes. But in this post I want to discuss one originalist argument that I think is significant. Ill then ask readers to weigh in on it.

Lets start with the obvious: The Framers could not have imagined a world of cell-site records. And the original public meaning of the Fourth Amendment is open to a wide range of interpretations at different levels of generality. With that said, the text of the Fourth Amendment does have an important clue about what the Fourth Amendment was originally understood to mean that might be important to the Carpenter case.

Heres the opening text of the Fourth Amendment:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated[.]

As Justice Antonin Scalia emphasized in his concurrence in Minnesota v. Carter, the word their can be understood as important in historical context. It signals that to assert a Fourth Amendment violation, a persons own self, houses, papers or effects must be unreasonably searched or seized.

Heres what Scalia wrote in Carter, with emphasis in the original:

The Fourth Amendment protects [t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures . . . . U. S. Const., Amdt. 4 (emphasis added). It must be acknowledged that the phrase their . . . houses in this provision is, in isolation, ambiguous. It could mean their respective houses, so that the protection extends to each person only in his own house. But it could also mean their respective and each others houses, so that each person would be protected even when visiting the house of someone else. As todays opinion for the Court suggests, however, ante, at 88-90, it is not linguistically possible to give the provision the latter, expansive interpretation with respect to houses without giving it the same interpretation with respect to the nouns that are parallel to housespersons, . . . papers, and effectswhich would give me a constitutional right not to have your person unreasonably searched. This is so absurd that it has to my knowledge never been contemplated. The obvious meaning of the provision is that each person has the right to be secure against unreasonable searches and seizures in his own person, house, papers, and effects.

The founding-era materials that I have examined confirm that this was the understood meaning. . . . Like most of the provisions of the Bill of Rights, the Fourth Amendment was derived from provisions already existing in state constitutions. Of the four of those provisions that contained language similar to that of the Fourth Amendment, two used the same ambiguous their terminology. See Pa. Const., Art. X (1776) (That the people have a right to hold themselves, their houses, papers, and possessions free from search and seizure . . .); Vt. Const., ch. I, XI (1777) (That the people have a right to hold themselves, their houses, papers, and possessions free from search or seizure. . .). The other two, however, avoided the ambiguity by using the singular instead of the plural. See Mass. Const., pt. I, Art. XIV (1780) (Every subject has a right to be secure from all unreasonable searches, and seizures of his person, his houses, his papers, and all his possessions); N. H. Const., XIX (1784) (Every subject hath a right to be secure from all unreasonable searches and seizures of his person, his houses, his papers, and all his possessions).

The New York Convention that ratified the Constitution proposed an amendment that would have given every freeman a right to be secure from all unreasonable searches and seizures of his person his papers or his property, 4 B. Schwartz, The Roots of the Bill of Rights 913 (1980) (reproducing New York proposed amendments, 1778) (emphases added), and the Declaration of Rights that the North Carolina Convention demanded prior to its ratification contained a similar provision protecting a freemans right against unreasonable searches and seizures of his person, his papers and property, id., at 968 (reproducing North Carolina proposed Declaration of Rights, 1778) (emphases added). There is no indication anyone believed that the Massachusetts, New Hampshire, New York, and North Carolina texts, by using the word his rather than their, narrowed the protections contained in the Pennsylvania and Vermont Constitutions.

That their . . . houses was understood to mean their respective houses would have been clear to anyone who knew the English and early American law of arrest and trespass that underlay the Fourth Amendment. The peoples protection against unreasonable search and seizure in their houses was drawn from the English common-law maxim, A mans home is his castle. As far back as Semaynes Case of 1604, the leading English case for that proposition (and a case cited by Coke in his discussion of the proposition that Magna Carta outlawed general warrants based on mere surmise, 4 E. Coke, Institutes 176-177 (1797)), the Kings Bench proclaimed that the house of any one is not a castle or privilege but for himself, and shall not extend to protect any person who flies to his house. 5 Co. Rep. 91a, 93a, 77 Eng. Rep. 194, 198 (K. B.).

Thus Cooley, in discussing Blackstones statement that a bailiff could not break into a house to conduct an arrest because every mans house is looked upon by the law to be his castle, 3 W. Blackstone, Commentaries on the Laws of England 288 (1768), added the explanation: [I]t is the defendants own dwelling which by law is said to be his castle; for if he be in the house of another, the bailiff or sheriff may break and enter it to effect his purpose. . . . 3 W. Blackstone, Commentaries on the Laws of England 287, n. 5 (T. Cooley 2d rev. ed. 1872). See also Johnson v. Leigh, 6 Taunt. 246, 248, 128 Eng. Rep. 1029, 1030 (C. P. 1815) ([I]n many cases the door of a third person may be broken where that of the Defendant himself cannot; for though every mans house is his own castle, it is not the castle of another man).

Of course this is not to say that the Fourth Amendment protects only the Lord of the Manor who holds his estate in fee simple. People call a house their home when legal title is in the bank, when they rent it, and even when they merely occupy it rent freeso long as they actually live there. That this is the criterion of the peoples protection against government intrusion into their houses is established by the leading American case of Oystead v. Shed, 13 Mass. 520 (1816), which held it a trespass for the sheriff to break into a dwelling to capture a boarder who lived there. The court reasoned that the inviolability of dwelling-houses described by Foster, Hale, and Coke extends to the occupier or any of his family . . . who have their domicile or ordinary residence there, including a boarder or a servant who have made the house their home. Id., at 523 (emphasis added). But, it added, the house shall not be made a sanctuary for one such as a stranger, or perhaps a visitor, who upon a pursuit, take[s] refuge in the house of another, for the house is not his castle; and the officer may break open the doors or windows in order to execute his process. Ibid. (emphasis in original).

Thus, in deciding the question presented today we write upon a slate that is far from clean. The text of the Fourth Amendment, the common-law background against which it was adopted, and the understandings consistently displayed after its adoption make the answer clear. We were right to hold in Chapman v. United States, 365 U. S. 610 (1961), that the Fourth Amendment protects an apartment tenant against an unreasonable search of his dwelling, even though he is only a leaseholder. And we were right to hold in Bumper v. North Carolina, 391 U. S. 543 (1968), that an unreasonable search of a grandmothers house violated her resident grandsons Fourth Amendment rights because the area searched was his home, id., at 548, n. 11 (emphasis added). We went to the absolute limit of what text and tradition permit in Minnesota v. Olson, 495 U. S. 91 (1990), when we protected a mere overnight guest against an unreasonable search of his hosts apartment.

I think we can all agree that the cellphone companys records of which of its cell towers were associated with its customers phone at some point in the past are, in the abstract, papers or effects. I would think that an originalist would then want to ask the Carter question: Whose papers or effects are they? Presumably they are the papers or effects of the phone company. But are they also the papers or effects of the customer?

The idea of papers and effects presumably was understood to include situations such asEntick v. Carrington (1765), the case that helped inspire the Fourth Amendments enactment, in which the kings officials broke into Enticks home. Inside the home, the officials removed all the private papers, books, etc. of the plaintiff there found, . . . and took and carried away 100 printed charts, 100 printed pamphlets, etc. etc. of the plaintiff there found, and other 100 charts etc etc took and carried away. In that setting, papers and effects likely meant something like a persons private property. Indeed, the first draft of the Fourth Amendment used property instead of effects.

The question is, can cell-site records be the users own papers or effects? It seems like an uphill battle. Cell-site records are a phone companys internally generated records ofhow its network connected a communicationbetween a customer and someone else. Cellphone customers dont know what cell towers their phones are connecting to, or where the towers are located. They dont know what the phone companys records say. Thats information that the phone company generates describing how its own network service operated that the phone company keeps in the ordinary course of its business. Whether those records are retained, and for how long, is up to the phone company. Its the phone companys business and its network, and users wouldnt see or access the records that the phone company creates and stores.

Given that, to say that cell-site records belong to the user that they are the users papers or effects you would need some kind of theory by which a person has some kind of property or property-like rights in another persons records of what they did on your behalf.

There are ways to get there, but Im not aware of any of those theories being recognized in the past much less the late 18th century. For example, one option would be to look to contract law or agency law. Perhaps signing the agreement makes the phone company the agent of the user, such that the phone company is working for the user and its company records belong, at least in some sense, to the user. This is creative, but at least at this point I dont see support for this theory in the historical caselaw or other materials.

Id be happy to be corrected, but Im not aware of an early court or even just a litigant suggesting that the contractual or agency relationship made the providers records in some sense the customers own, triggering the Fourth Amendment, its state equivalents, or common law search and seizure principles. There presumably were situations in the 18th or 19th century in which two parties would enter into a contractual agreement and the government would want records or testimony from the provider of those goods or services concerning what the recipient of the goods or service had done. A possibly interesting example is hotel guest lists, which are at least somewhat analogous to cell-site records records by a business of who was using a particular service and when. My understanding is that hotel guest lists were traditionally left open to inspection by anyone. See Jefferson Williamson, The American Hotel: An Anecdotal History 181 (1930). The records apparently werent considered the guests own papers, even though they were created in the course of providing a service to the guest.

It would be a different case, I think, with the contents of communications. In the case of contents, the network provider is merely holding the private communications of the user on the users behalf. The communications are still the users communications. The user wrote them, or, on receipt, received them. If I decide to store my emails on Gmails servers, for example, they are still my emails, just as my letters are still my letters when I send them through the postal mail. See Ex Parte Jackson, 96 US 727, 733 (1877) (Letters and sealed packages of this kind in the mail are as fully guarded from examination and inspection, except as to their outward form and weight, as if they were retained by the parties forwarding them in their own domiciles.).

If Im right, an originalist might plausibly conclude that the contents of communications are protected by the Fourth Amendment as the users papers or effects but that the business records of the company as to how those papers or effects were delivered would be the companys records, not the users.

Anyway, thats my tentative thinking. Im very interested to know whether readers who are interested in originalism find this thinking persuasive. And my apologies in advance if I have offered a wrong or naive view of originalism. It sometimes seems that one must be a sophisticated theorist of originalism to truly understand what originalism means, and I admit I am only a simple country Fourth Amendment lawyer.

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How should an originalist rule in the Fourth Amendment cell-site ... - Washington Post

With Cell Phone Record Case on SCOTUS Horizon, Originalist Analysis on IV Amendment Is Helpful – CNSNews.com

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With Cell Phone Record Case on SCOTUS Horizon, Originalist Analysis on IV Amendment Is Helpful
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On June 5, the Supreme Court agreed to hear a case involving Fourth Amendment protections for cell phone records, Carpenter v. U.S. This case features a much-criticized judicial creation called the third-party doctrine and how it applies to an ...

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With Cell Phone Record Case on SCOTUS Horizon, Originalist Analysis on IV Amendment Is Helpful - CNSNews.com

Brooks Affirms Second Amendment Support After Being Asked if Scalise Shooting Changed His Gun Views – Washington Free Beacon

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BY: David Rutz June 14, 2017 10:43 am

Rep. Mo Brooks (R., Ala.) was asked hours after witnessing the shooting of one of his colleagues if the incident had changed his views on gun rights, but he said he remained supportive of the Second Amendment.

Brooks was present when House Majority Whip Steve Scalise (R., La.) and four others were wounded Wednesday by a gunman in Alexandria, Va., during a baseball practice for Republican congressmen.

A reporter at a press conference asked Brooks if the shooting changed his view on the "gun situation" in America.

"Not with respect to the Second Amendment," Brooks said. "The Second Amendment right to bear arms is to help ensure that we always have a republic. And as with any constitutional provision in the Bill of Rights, there are adverse aspects to each of those rights that we enjoy as people, and what we just saw here is one of the bad side effects of someone not exercising those rights properly."

He added, "We are not going to get rid of freedom of speech" simply because some people say ugly things, or get rid of the Fourth Amendment's search and seizure rights because some criminals could go free on technicalities.

"These rights are there to protect Americans, and while each of them has a negative aspect to them, they are fundamental to our being the greatest nation in world history. So no, I'm not changing my position on any of the rights we enjoy as Americans," he said.

Brooks said he would like to know more about the background of the suspected shooter before passing judgment on him.

UPDATE: 12:34 P.M.:This article was updated to correct that the gunman wounded five people, not four.

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Brooks Affirms Second Amendment Support After Being Asked if Scalise Shooting Changed His Gun Views - Washington Free Beacon

No, the Second Amendment Is Not Given Special Treatment – National Review

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In the course of yet another dull, straw-clutching broadside against the right to keep and bear arms, the Atlantics David Frum repeats a commonly asserted myth:

That kind of supposedly defensive, actually aggressive, violence has become an even graver risk after today, in an American society that regards personal arsenals to be at least as much of a human right as the rights of free speech and peaceful assemblyand in actual practice, often amorefundamental right.

This is a popular talking point based upon a popular premise: That the Second Amendment is accorded a latitude that is no other. The trouble for Frum is that its nonsense. As it should be, the First Amendment is extremely broadly interpreted,to the point at which even sedition is legal unless it is accompanied by incitement to imminent violence. In recent years, the courts have prohibitedthe government from banning crushvideos in which kittens are killed with stilettos; it has protected the rights of bigots to protest military funerals; and it has gutted the countrys campaign-finance laws on the (correct) grounds that they cant be enforced without undermining core political expression. Before that, in Brandenburg v. Ohio, it had outlined speech protections that have no parallel in the history of the world.

Has the same thing happened for the Second, as Frum suggests? Not on your life. Indeed, Second Amendment advocates such as myself could only dream of such a trend. As is clear from his cringeworthy displayson Twitter, Frum does not have even a basic grasp of Americas gun laws, forif he did hed understand just how ridiculous is his claim. ASecond Amendment jurisprudence that echoed or exceeded the First would yield the voiding of almost every one of the thousands upon thousands of gun laws that obtain; itwould put an end to all licensing, requests for cause, andbackground checks; it would nix the prior restraint rules that areimposed in many states; it would open up the right to felons, to children, and to those in institutions; and, crucially, it would meanthat the courts had to usestrict scrutiny when evaluating claims, rather than the thumb-on-the-scales intermediate level that they tend to opt for in cases to do with guns. In practice, the First Amendment is as close to an unalienable right as has ever existed; one can do very little to lose ones shot at enjoying it. The Second, by contrast, is heavily locked down. One can argue that thats good or that, in practice, its inevitable and one can complain that America is far more liberal on the matter of arms than every other free country. But one cannot pretend that, culturally or legally, the Second Amendment is accorded special treatment.

Unless, that is, one doesnt care whats true and whats not.

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No, the Second Amendment Is Not Given Special Treatment - National Review

Scalise shot: What the Virginia attack should teach us – the Second Amendment is not the problem, in fact it can … – Fox News

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Within the whirlwind of the news cycle the anti-Second Amendment refrain has already begun. CNN hosts and the editorial boards at many big newspapers are muttering the gun, the gun, as if the gun is responsible, as if the gun had an evil spirit that convinced this mannot a shooter as so many in the media will call him, but a killer, a would-be murdererto shoot members of Congress and their staff. As if an American freedom is causing some to do evil.

It is too early in this attempt at mass murder to know much about this murderer now confirmed dead, and identified as James T. Hodgkinson his mental state or why he chose to do evil. But it is not too early to see the heroism from Capitol Hill Police and others. It is not too early to see American goodness and even innocence for what it is.

At 7:15 a.m. Rep. Brad Wenstrup and Rep. Chuck Fleischmann, Sen. Rand Paul and Sen. Jeff Flake, and about two dozen others were at Simpson Field in Virginia just outside of Washington, D.C., to practice for the Congressional Baseball Game thats scheduled for June 15 at Nationals Park, a game that has been a tradition since 1909. They were getting ready to put politics aside and to come together again within an American pastime.

Early reports indicate that, from behind a dugout, shots began to shatter the early bright June morning. House Majority Whip Steve Scalise went down, shot in the hip, according to early reports. A congressional aide and two Capitol Police officers were also hit.

Many are already blaming the gun used or gun-rights in general, as if a long-held American freedom is to blame.

None of the congressmen or their staff members were armed. Sen. Rand Paul said that if Capitol Police werent there it would have been a massacre. This killer could have walked around unhindered if that were the case, as has happened too many times before in gun-free zones.

Police investigate a shooting scene after a gunman opened fire on Republican members of Congress during a baseball practice near Washington in Alexandria, Virginia, June 14, 2017. (REUTERS/Joshua Roberts)

The police were there because Rep. Scalise, being a member in congressional leadership, had a security detail.

The gunfight went on reportedly for a mad 10 minutes. The murderer had taken cover and the officers were likely, at least at first, only armed with their sidearms. Witnesses say Rep. Scalise dragged himself as far as he could away from the killer and toward people taking cover.

The police kept the killer pinned down and eventually took him out its not clear exactly how he was taken down.

Police man a shooting scene after a gunman opened fire on Republican members of Congress during a baseball practice near Washington in Alexandria, Virginia, June 14, 2017. (REUTERS/Joshua Roberts)

As soon as the police got the killer, Rep. Flake says he and Rep. Wenstrup, who is also a physician, ran onto the field to help Scalise, to apply pressure to his wound. Other physicians were soon on the scene as first-responders heroically rushed to the scene.

Now the analysis and the speculation has already turned political. Many are already blaming the gun used or gun-rights in general, as if a long-held American freedom is to blame.

Many in the media wont acknowledge that over 100 million Americans now legally own guns for sport or self-defense and that these people are largely safe and responsible.

They also arent likely to report that homicides are more likely to occur in areas with the strictest gun controls in place and they are unlikely to interview the women and others who have unfortunately had to rely on their right to bear arms to fend off attackers.

Police investigate a shooting scene after a gunman opened fire on Republican members of Congress during a baseball practice near Washington in Alexandria, Virginia, June 14, 2017. (REUTERS/Joshua Roberts)

Right now, about 15 million Americans have concealed-carry permits to carry handgunsthis number has been rising fast. Studies show that these people rarely commit violent crimes.

In the aftermath of evil visited upon us like this, it is also easy to forget how good and safe America really is. Any foreigner who has visited Capitol Hill must have been surprised with just how open the city isWashington, D.C., is still often thought of as a big, small town. Congressmen largely walk the sidewalks without security details. If someone wants to meet their representative it can often be arranged. A visitor must simply pass through one security checkpoint in the congressional buildings.

Maybe some of that needs to change, especially in view of recent terrorist attacks, but American freedom is not the problem, but rather it is what we are fighting for.

Frank Miniter is author of "The Future of the Gun" & "The Ultimate Mans Survival Guide". His latest book is,is "Kill Big Brother", a cyber-thriller that shows how to balance freedom with security without diminishing the U.S. Bill of Rights.

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Scalise shot: What the Virginia attack should teach us - the Second Amendment is not the problem, in fact it can ... - Fox News

Second Amendment Foundation: Alexandria Shooting the Result of ‘Democratic Hate Speech’ – Breitbart News

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Breitbart News reported that five persons were injured when66-year-oldJames T. Hodgkinson opened fire on Republican House and Senate members who were practicing baseball. Rep.Steve Scalise (R-LA) and four others were injured in the attack. Hodgkinson was shot and killed by police.

SAF sent Breitbart News a statement on the attack:

Todays shooting of Congressman Steve Scalise (R-LA), and others including an aide and two Capitol Police officers is the result of Democratic hate speech toward President Donald Trump and majority Republicans, the Second Amendment Foundation said today.

This hate speech that has been going on since Donald Trump was elected, said SAF founder and Executive Vice President Alan M. Gottlieb. It gets their voter base agitated and this is what happens as a result. Is this just a coincidence this happened on the presidents birthday?

The gunman has been identified as James Hodgkinson of Illinois. A Facebook page belonging to the fatally-wounded suspect suggests that he was a socialist Democrat, and was a follower of Sen. Bernie Sanders. Sanders confirmed that Hodgkinson was apparently a volunteer in his 2016 presidential campaign.

When liberal leftists support the assassination of President Trump on stage what do you expect to happen, Gottlieb stated. Hate speech and actions incite this kind of violence. It is time for Democrats like Reps. Maxine Waters and Nancy Pelosi, Sen. Chuck Schumer, Barrack Obama and Hillary Clinton and many of the talking heads at CNN and MSNBC to shut up.

SAF also observed:

Congressman Scalise and others at the field this morning were lucky to have the protection of courageous Capitol police officers, the good guys with guns who took down a bad guy with a gun, he continued. But what if they hadnt been present?

Congressman Mike Bishop of Michigan, who was at the baseball field, told a reporter, The only reason why any of us walked out of this thing, by the grace of God, one of the folks here had a weapon to fire back and give us a moment to find cover.

Maybe now the anti-gun rights Democrats will support everyones right to carry a firearm for self-defense, Gottlieb said. We are the first line of defense when it comes to personal protection from crazed individuals.

Breitbart News spoke with SAFs Alan Gottlieb about the calls for more gun control that have already been made in reaction to the shooting. He responded, Democrats should ban their hate speech, not our guns for self-defense.

AWR Hawkins is the Second Amendment columnist for Breitbart News and host of Bullets with AWR Hawkins, a Breitbart News podcast. He is also the political analyst for Armed American Radio. Follow him on Twitter: @AWRHawkins. Reach him directly at awrhawkins@breitbart.com.

P.S. DO YOU WANT MORE ARTICLES LIKE THIS ONE DELIVERED RIGHT TO YOUR INBOX?SIGN UP FOR THE DAILY BREITBART NEWSLETTER.

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Vox Founder Notes GOP Supports 2nd Amendment To Overthrow Gov’t While Blood Is Still On The Field – The Daily Caller

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Liberal writer Matthew Yglesias brought up Senator Rand Pauls support for the second amendment as a way to check tyrannical governments mere hours after the Kentucky Republican and others were shot at while practicing baseball.

A shooter opened fire on Republican lawmakers and staff Wednesday morning as they practiced for an annual charity baseball game. House Majority WhipSteve Scalise and others were shot.

In response to the news, Yglesias tweeted out a June 2016 comment from Paul where he said that the purpose of the Second Amendment was to shoot at the government when it becomes tyrannical. Ygelsias is a co-founder of the liberal news site Vox.

The tweet Ygelsiasreferenced was part ofPaul live tweeting of someone elses speech. One of the Senators staffers confirmed to The Daily Caller News Foundation that the tweet wasntPauls words.

The shooter hit Scalise, congressional staffer Zack Barth, two Capitol Police officers, and lobbyist Matt Mika. The Capitol Police officers, who were part of Scalises security detail, returned fire.

Yglesias did not return requests for comment to TheDCNF.

A self-proclaimed Black Activist tweeted out Pauls old comment as well, indicating Yglesias wasnt alone in his opinion.

Paul was in the outfield when the gunman started firing at GOP lawmakers, hitting Scalise and several others. Paul said the shooter turned the baseball field into a killing field.

I do believe without the Capitol Hill police, it would have been a massacre, Paul said in a television interview after the shooting. We had no defense, no defense at all. We are lucky Scalise was there. This was his security detail. Without them, it would have been a massacre. There was no stopping this guy. We were like sitting ducks. It was a wide open field, its a killing field.

The suspected shooter died from his wounds after being taken to the hospital. Scalise is in stable condition, and Capitol Police officers who were shot defending lawmakers are expected to survive, according to NBC.

Vox falselyclaimed that the U.S. had 11.6 times more mass shootings than actually occurred, according to an analysis previously by The Daily Caller News Foundation.

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Content created by The Daily Caller News Foundation is available without charge to any eligible news publisher that can provide a large audience. For licensing opportunities of our original content, please contact [emailprotected].

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Vox Founder Notes GOP Supports 2nd Amendment To Overthrow Gov't While Blood Is Still On The Field - The Daily Caller

Sen. Rand Paul’s year-old Second Amendment tweet resurfaces after shooting – The Daily Dot

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After a gunman opened fire on several Republican congressmen and their staffers at a baseball field in Virginia on Wednesday morning, Senator Rand Paul (R-Ky.) told reporters that the attack could have ended in a massacre had it not been for the Capitol Police.

Sen. Paul was sitting in the batting cage when he heard the gunshots; he had been practicing with the GOP congressional baseball team. Rep. Steve Scalise (R-La.) and four others who were also in attendance were injured, but Capitol Police officers quickly engaged with and apprehended the perpetrator, whom police later identified as 66-year-old James T. Hodgkinson from Illinois.

Everybody probably would have died except for the fact that the Capitol Hill police were there, Paul told MSNBC. Unfortunately, [Rep. Scalise] was hit and I hope he does well, but also by him being there it probably saved everyone elses lives because if you dont have a leadership person there, there would have been no security there.

Paul also released a statement echoing his praise and appreciation for the Capitol Police officers who stopped the shooter.

The incident quickly ignited a gun control debate online where the shooting was utilized by those who advocate for stricter gun laws, on one hand, as well as those believe looser gun laws could have prevented such an attack and helped stopped the one that occurred.

Meanwhile, in the House of Representatives, a debate on the availability of gun silencers scheduled Wednesday afternoon was delayed after the shooting.

As the heated debated centered on Second Amendment rights intensifies once again, one of Sen. Pauls own tweets resurfacedone that some suggest smacks of hypocrisy, given his press statements.

In June last year, the Republican appeared to quote Fox News contributor Judge Napolitano on Twitter, which said: [We] have a Second Amendment to shoot at the government when it becomes tyrannical!

Paul has presenteda pro-gun stance throughout his political career, with a voting record to show it. He has opposed legislation he believed impinged on the constitutional right to ownership, which maintains the right to bear arms as necessary to the security of a free State.

However, on Wednesday, critics claim, Paul found himself at the wrong end of his own argument when he was targeted himself.

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Sen. Rand Paul's year-old Second Amendment tweet resurfaces after shooting - The Daily Dot

Chadwick Moore: LGBTQ People Don’t Know What The Second Amendment Is – Peacock Panache

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The former Out Magazine writerwho once interviewed hate speech promulgator Milo Yiannopoulos for a controversial cover story just argued LGBTQ peopleprobably dont know what the Second Amendment is. The statement came as part of a discussion about the Pulse Orlando anniversary memorial held in New York City.

At issue, LGBTQ-centric Gays Against Guns organized and held a memorial rally at Stonewall Inn to simultaneously remember the 49 people killed at Pulse while calling for more robust gun regulations to reduce and eventually end mass gun violence.

Gays Against Guns Pulse Memorial Rally at the Stonewall Inn

In the events invitation, the memorial rally was described as a solemn and joyfully defiant experience as we remember the tragedy that brought the fight for gun violence prevention directly into our LGBTQ nightlife community.

The event itself much like evolving pride parades-turned-resist marches nationwide demonstrates a change in the way the LGBTQ community engages with the rest of the nation regarding their rights, their lives, and their safety. Suffice to say, even memorials are now becoming occasions to fight back against a regime that refuses to acknowledge the need for let alone discuss sensible gun regulations.

(Those in the LGBTQ community who were around at the height of the AIDS crisis can attest to the fact that this is not the first time memorials for LGBTQ people have taken on an explicit resistance-themed political tone.) That said

Cue former Out writer and homocon Chadwick Moore to insert his opinion on the memorial and its political tone in a discussion with Foxs Tucker Carlson.

Well, yesterday was theone year anniversary of the Pulse nightclub massacre, inwhich Islamic radical Omar Mateen murdered 49 people at a gay nightclub in Orlando, Florida, Tucker Carlson said. To commemorate the shoot a vigil was held in New York City outside the Stonewall Inn, siteof a 60s gay rights demonstration. But instead of just remembering the victim, thevigil becamean anti-gun rally.

He added, Journalist Chadwick Moore was there at the vigil and he joins us now to tell uswhat happened next. So Chadwick, this was supposed to be a vigilfor the people who die, almost 50 who died in thatmassacre, but it becamesomething else?

Thats right.I think mostpeople showed up, the Stonewall is sort of gay, its a gay holy site, right. Its the equivalent ofMecca for Muslims, Moore began. Its where everyone goes whentheres a large event that hasaffected the community, whetherthats tragic or celebratory.Its where people would haveinstinctively shown up tocommemorate the one-yearanniversary.

What happened was is this farleft anti-gun group essentiallygot the permit, Im assuming, tohold a rally that day, outside, yesterday outside of Stonewall, he continued. They were the sponsors of this event. So people who were coming to mourn, who were coming to be together to reflect, who wanted to give politics a break instead were beingsubjected to this sort ofanti-gun propaganda, all of these signs, all of this anti-Trumpism.

Later, he added, Most gay people arent political. Most gay people, you know, they care about pop music and going to the beach. They probably dont know what the Second Amendment is. And so they show up to be together, to celebrate the community, to mourn together and instead they are fed this anti-gun nonsense.

To listen to the way Moore and Carlson portrayed the event, Gays Against Guns tricked mourning non-political LGBTQ people into attending an anti-gun rally disguised as a vigil. In reality, nearly 1,500 people RSVPed to the event on Facebook knowing what it would be, and approximately three thousand attended and stayed even if they found out after the fact that it was organized by a group aimed at passing sensible gun regulations.

These people were not bamboozled; they came, they mourned, and they resisted, just as LGBTQ people and their allies across the nation are doing throughout the month of June.

Photos of the event back that point.

But Moores broader point also misses the mark. He paints the LGBTQ community as a group of people disconnected from the horrors of the current administration. His broad strokes accuse LGBTQ people of going to the beach and listening to music at clubs rather than knowing or understanding their constitutional civil rights. For being an LGBTQ writer, Moore doesnt seem to be able to take an accurate pulse of his own community.

In Los Angeles, for example, the annual pride march morphed into a resistance march. Concurrent with pride celebrations, cities across the nation held Equality rallies and marches to coincide with the national Equality March in DC on Sunday, June 11, 2017. The political resistance to Trump and the LGBTQ communitys vocal acknowledgement that their rights are at stake is no secret.

For Moore to portray LGBTQ people as nave party-goers unaware of their own civil rights isnt just disingenuous, its simply fake news.

Heres video of the exchange courtesy of Media Matters:

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Chadwick Moore: LGBTQ People Don't Know What The Second Amendment Is - Peacock Panache

Violating the First Amendment, High School Punishes Student for Satirical Campaign Speech – National Review

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Honors student J.P. Krause won the election for senior class president at Vero Beach High School in Vero Beach, Fla. And then, all of a sudden, his victory was stripped from him.

Summarily, the high schools administrators stripped him of his new position, and, to add insult to injury, gave him detention. Why? Because Krause delivered a satirical campaign speech that channeled Donald Trumps presidential campaign rhetoric and, in jest, claimed his opponent was a Communist. It was harassment, the principal concluded.

After Krauses classmates chanted speech, speech, he gave an impromptu speech that kept his fellow classmates laughing for well over a minute. I am for freedom, equality, and liberty, he said. His opponent? Well, she wants to advance Communist ideals, he smirked. She will raise taxes to 80 percent!

Krause also suggested in jest that his opponent supports their rivals at the nearby high school, whereas he would build a wall between the two schools and make their rival pay for it.

No one thought Krause was serious. The room, full of honors students in U.S. History, seemed to be well aware of the parallels Krause was making between his campaign speech and Donald Trumps presidential campaign speeches. The teacher allowed the off-the-cuff speech to continue, and there wasnt any reaction by students inside the classroom but laughter.

Nevertheless, the speech not only disqualified Krause from taking up the reins as class president, it also added harassment to his school record. The administration took my speech out of context and said I was harassing a student, Krause tells National Review.

It was a joke the whole way through.

Pacific Legal Foundation, a conservative public-interest law firm, is representing Krause in an attempt to remove the harassment claims from his school record. It also seeks to reinstate Krause as class president. It was pure political speech and obviously humorous, explains Mark Miller, Krauses attorney at Pacific Legal Foundation, to National Review. Its clearly protected in First Amendment speech.

In a letter sent to Mark Rendell, the superintendent of the school district, Miller argued that if a student gives a speech that is lewd, vulgar, or profane, then the school can sanction him.

But that is not remotely the case here, Miller retorted. Satirically claiming that an opponent in a class election wants to raise taxes, advance Communism, and implement a dress code is certainly not lewd, vulgar, or profane its a joke.

Because the high school applied the same speech code that it would use to punish students who say lewd, vulgar, or profane comments to that of a satirical speech, Miller contests that it is violating the First Amendment. J.P.s speech in no way singled out his fellow student candidate for her appearance, abilities, gender, race, creed, religious beliefs, or sexual orientation, Miller wrote. Nor was it deeply offensive.

Schools such as Vero Beach High School are sending the message to students that only some political statements are tolerable. Thats exactly the wrong message to tell a young man like J.P, Miller says.

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Female Genital Mutilation As a First Amendment Right? Five Lawyers Weigh In – Glamour

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A Michigan doctor was arrested in April for allegedly performing female genital mutilation on two seven-year-old girls who traveled from Minnesota with their families. The arrestthe first time a U.S. doctor has been arrested for the practicecame after the FBI got a tip that Jumana Nagarwala, M.D.,was performing the procedure. In addition to Dr. Nagarwala, Fakhruddin Attar, M.D., and his wife, Farida Attar, were also arrested. According to authorities, the Attars were present during the procedures, which were performed at Dr. Attars clinic.

Now these defendants will claim in U.S. federal court that performing female genital mutilation, which is widely condemned by doctors and human rights advocates around the world, is their religious right, protected under the First Amendment of the U.S. Constitution. We asked five lawyers what they think of this argument and whether they see any chance of a successful claim to the constitutionally protected right to mutilate young girls.

None of them expressed any confidence in the defenses ability to stand up in court, and they each provided some insight into why, exactly, the argument is doomed to failand why the defendants lawyers are presenting it anyway:

Visiting criminal law scholar at the University of Houston Law Center Melissa Hamilton explains the central problem with the argument that female genital mutilation should be protected by the First Amendment:

The defendant is unlikely to win on First Amendment grounds. Like other constitutional rights, there are limits to them. Winning a religious freedom case as against criminal laws that apply to all is also very difficult. In this case, causing physical injury to young girls who cannot consent to it is of greater importance. It is also of note that it is harder for the doctor to claim protection for her religious beliefs when she is carrying out a practice on others, i.e., the girls.

This idea of religious freedoms having their limits in certain cases when they go against the law of the land is well established. Family law and criminal defense attorney Jef Henninger provided a historical example of the limits of the First Amendments protection for the free exercise of religion, putting this current argument in context:

While many questions in law are not that easy to answer, this one is. Most people know that Constitutional rights are not absolute. The most common example cited by lawyers and lay people alike is that you cannot shout "fire" in a crowded movie theater. To provide a more specific example, I would point people to Reynolds v. United States, which goes all the way back to 1878.

George Reynolds, a member of the LDS church turned himself in for bigamy so that the LDS church could challenge the antibigamy laws. He was charged and convicted, and he appealed his case up to the U.S. Supreme Court. Reynolds argued that his conviction for bigamy should be overturned on four issues: that it was his religious duty to marry multiple times and the First Amendment protected his practice of his religion.

The Court rejected his arguments and affirmed his conviction. Chief Justice Morrison Waite, writing for a unanimous court, investigated the history of religious freedom in the United States and quoted a letter from Thomas Jefferson in which indicated that there was a distinction between religious belief and action that flowed from religious belief. The former "lies solely between man and his God," therefore "the legislative powers of the government reach actions only, and not opinions." The Chief Justice found that if polygamy was allowed, someone might eventually argue that human sacrifice was a necessary part of their religion, and "to permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself." In conclusion, the First Amendment forbade Congress from legislating against opinion, but allowed it to legislate against action.

Thus, while its a creative argument, its not going to work.

So religious-expression arguments dont always work. But even if they did, this one has a fatal flaw that might exclude it from the discussion of First Amendment protections. As Neal Davis, another criminal defense attorney, explained, the argument may be moot, because FGM is more cultural than religious:

The issue is whether the First Amendment of the United States Constitutionspecifically, the Free Exercise of Religion Clause of the First Amendmentprohibits criminalizing FGM in the United States. Many have argued that, given the lack of Islamic or Christian scripture mandating the practice of FGM, the First Amendment does not apply. Rather, FGM is a tradition or custom that is not protected under the First Amendment. Given Supreme Court precedent on criminal laws that intersect with religious freedoms, it is highly unlikely that the defense will prevail in claiming FGM violates the First Amendment.

In general, the legal community doesnt seem to be taking this argument very seriously. Norm Pattis, criminal defense lawyer and author of Taking Back the Courts, summed up the general sentiment on this issue pretty neatly:

That is a ridiculous idea. Mutilation is mutilation. This defense is going nowhere. The lawyer wins an A for effort, but he is flunking this exam.

But, as criminal defense attorney Edward Griffin points out, its a defense attorneys job to try any and every tactic, even the really long-shot, doomed-to-fail tactics:

It is a defense attorney's job topursue every possible defense and advocate zealously on behalf of your clients.

Novel defenses can lead to changes in the law. For example, Miranda rights, which we now take for granted,are a direct result of the Miranda case and zealous advocacy by defense counsel on behalf of their client, Mr. Miranda. Mirandalead to a change in both police and criminal procedure, because of the defense developed and pursued by counsel in that case. Now everyoneis, or should be, familiar with their Miranda rights, and when those rights are violated, pretrial motions can often defeat a criminal prosecution.

Sometimes defense counsel use pretrial motions as a bargaining chipto try to negotiate a better deal.

Other times, such as this, weknow we have an issue in advance due to a client's political or religious beliefs, which tend to be the most difficult cases a defense attorney can encounter during their career. In the District of Columbia we get our fair share of protestor/political cases. When a client is fighting for political or religious beliefs, it is usually totalwar with no opportunity tonegotiate a deal.

And sometimes we have no choice but tothrow shit against the wall and see if any of it sticks.

Generally, the reaction from these lawyers is that this defense will never work and is more splashy than effective. When deciding whether a practice is religious expression protected under the First Amendment, the courts have a history of imposing limits when the purported religious expression causes harm to others. Its impossible to deny that harm here, with the global medical community decrying female genital mutilation as a barbaric, cruel practice. And the argument for protected religious expression here is weakened further when you take into account that the practice is not a religious requirement but a cultural one.

Fortunately, this argument isnt being treated as a real threat, because its such a long shot. But given the trend these days of valuing religious freedom over individual rights, who knows how this landmark case will play out?

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President Trump hates the First Amendment. He thinks it’s sad. – Washington Post

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If nothing else, President Trump is putting it in stark, clear terms for us. He is out to destroy the independent press in the United States and replace it with some sort of information system that is subservient to him personally and his version of reality.

Trump continued his deliberate, ongoing assault on the free press Tuesday in yet another early-morning tweet:The Fake News Media has never been so wrong or so dirty. Purposely incorrect stories and phony sources to meet their agenda of hate. Sad!

This nonstop campaign to convince people that the independent press is deliberately making up news puts things to a very simple test. Either:

His assertions that a substantial amount (or the entirety?) of normal, mainstream coverage is somehow deliberately fake is not the utterance of a healthy person. It does not represent a connection to reality and/or it represents an attempt to substitute propaganda for information. He cant make it any plainer. Dont scoff. There is apparently already an audience and appetite for Trumps version of events, whatever that version is on any given day. And Trump is using the presidency of the United States to undermine whats left of a fact-based reality.

Dont think this matters? Then enjoy becoming the subject in the famous Asch Experiment. And heres another test for you: Have you tried recently having a productive conversation with a Trump supporter who is operating off a completely different fact set? How did that go?

When the propaganda model replaces the free press model, you can either go along, or it is you who will be judged insane.

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President Trump hates the First Amendment. He thinks it's sad. - Washington Post

First amendment lawyer Bob Corn-Revere talks comedy and free speech for Freedom Reads series – Frederick News Post (subscription)

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On June 20, First Amendment lawyer Bob Corn-Revere will lead a discussion of free speech and comedy as part of a First Amendment lecture series called Freedom Reads, in its second year. The series, created by a partnership with Flying Dog Brewery, the 1st Amendment Society and Frederick County Public Libraries, will discuss controversial moments in pop culture.

Corn-Revere has experience with free speech conflicts and petitioned for the posthumous pardon of comedian Lenny Bruce, who was found guilty during an obscenity trial in 1964.

Corn-Revere plans to assess todays politically contentious climate where comedians like The Late Show host Stephen Colbert take on President Donald Trump.

You can say its a great time for comedy except theres a lot of people who say comedians go too far, said Corn-Revere, a partner at D.C.-based Davis Wright Tremaine LLP.

During his Freedom Reads talk, Corn-Revere plans to show a clip of Colberts controversial joke that made a reference to President Trump and Russian President Vladimir Putin in an intimate moment. Some listeners were not pleased with Colberts language and contacted the Federal Communications Commission that regulates communications on media outlets. The actual words were bleeped they did not go on the air, Corn-Revere said. Some 6,000 complaints were filed to the FCC.

Corn-Revere cited that the FCC didnt issue a fine since The Late Show airs on late-night television after 10 p.m., during the safe harbor period where stations can air content that may be considered indecent or profane. The appropriate action was nothing, Corn-Revere added.

Conflict surrounding what is protected by free speech and what is not is also happening on college campuses. Corn-Revere is currently dealing with a case involving a tenured Louisiana State University professor who was fired for using a controversial word while training student teachers to handle antagonistic parents. In other cases, hes dealt with colleges enforcing free speech zones, where outside of a designated area, students are unable to do things like hand out copies of the Constitution.

You would think the free speech zone is from the Atlantic to the Pacific and above the Gulf of Mexico, Corn-Revere said.

With a myriad of free speech battles, Corn-Revere isnt lacking work.

Im told its a great time to be a First Amendment lawyer.

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First amendment lawyer Bob Corn-Revere talks comedy and free speech for Freedom Reads series - Frederick News Post (subscription)

Is It Unconstitutional for Trump to Block Twitter Users? – National Review

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Lawyers from Columbia Universitys Knight First Amendment Institute sent a letter last weekarguing that President Trumps blocking users on Twitter runs afoul of the First Amendment.

The presidents account recently blocked the two Twitter users being represented after they posted critical tweets in response to a couple of the presidents tweets.

Their lawyers argument is that the presidents blocking these users from seeing or responding to his tweets on Twitter impinges on their free-speech rights under the First Amendment; the idea is that Trump, in his capacity as a state actor, has violated the Constitution by blocking access to information in what should be considered a public forum.

Yet they fail to consider that (1) these citizens have other means of accessing his tweets, and (2) Trumps account (@real DonaldTrump) is hosted by a private company, which is free to set its own policies for how its users interact.

To the first point, the two people that were blocked can still access these tweets not only from the thousands of retweets they receive from countless other accounts or news publications, but by simply creating another account from which to follow Trump.

Secondly, Trumps Twitter account is not federally owned or operated and therefore should not be treated as a government-created forum obliged to provide access to all comers.

It should be obvious that, though blocking people on Twitter may seem beneath the presidents office or pointless considering the thousands of other tweets that are critical of him from accounts he didnt bother to block, it isnt unconstitutional. Whether a judge might hold otherwise in the current climate is less clear.

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Is It Unconstitutional for Trump to Block Twitter Users? - National Review

Ken White: Actually, hate speech is protected by First Amendment … – Allentown Morning Call

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Free speech and its limitations are on Americans' minds. In the past year we've seen Nazis and white supremacists rally in our cities, angry protesters chase provocateurs off of college campuses, a comedian wield a bloody effigy of the president's severed head, and slurs and overt racial animus made a staple of political discourse. Controversial speech has people talking about what restrictions, if any, society can enforce on words we despise.

That inquiry isn't inherently bad. It's good for citizens to want to learn more about the contours of our constitutional rights. The dilemma is that the public debate about free speech relies on useless cliches, not on accurate information about the law.

Here are some of the most popular misleading slogans:

"Not all speech is protected. There are limits to free speech."

This slogan is true, but rarely helpful. The Supreme Court has called the few exceptions to the First Amendment "well-defined and narrowly limited." They include obscenity, defamation, fraud, incitement, true threats and speech integral to already criminal conduct. First Amendment exceptions are not an open-ended category, and the Supreme Court has repeatedly declined to add to them, especially in the last generation. Merely observing that some exceptions exist does not help anyone determine whether particular speech falls into one of those exceptions. It's a non sequitur.

Imagine you're bitten by a snake on a hike, and you want to know rather urgently whether the snake is venomous. You describe the snake to your doctor. "Well, not all snakes are venomous," your doctor responds. Not very helpful, is it?

"You can't shout 'fire' in a crowded theater."

Almost 100 years ago, Supreme Court Justice Oliver Wendel Holmes Jr. coined a version of this now-familiar metaphor. Holmes used it to explain why the Supreme Court was upholding the criminal conviction of Charles Schenck, who was jailed merely for distributing materials urging peaceful resistance to the draft in World War I. Fortunately, the Supreme Court often led by Holmes himself retreated from this terrible precedent, eventually ruling that speech can't be punished as "incitement" unless it is intended and likely to provoke imminent lawless action. In other words, this favorite rhetorical apologia for censorship was used in the course of a decision now universally recognized as bad law.

Holmes' usually misquoted slogan (he said that the law allows us to punish someone for falsely shouting fire in a crowded theater) is really just another way to observe that not all speech is protected and there are limits to First Amendment protections. As I said before, that's not in dispute, but invoking the truism does nothing to resolve whether any particular speech falls within the well-defined and narrow exceptions to the First Amendment.

"Hate speech is not free speech."

This popular saying reflects our contempt for bigotry, but it's not a correct statement of law. There is no general First Amendment exception allowing the government to punish "hate speech" that denigrates people based on their identity. Things we call "hate speech" might occasionally fall into an existing First Amendment exception: A racist speech might seek to incite imminent violence against a group, or might be reasonably interpreted as an immediate threat to do harm. But "hate speech," like other ugly types of speech we despise, is broadly protected.

"We must balance free speech and other interests."

Censorship advocates often tell us we need to balance the freedom to speak with the harm that speech does. This is arguable philosophically, but it is wrong legally. American courts don't decide whether to protect speech by balancing its harm against its benefit; they ask only if it falls into a specific First Amendment exception. As the Supreme Court recently put it, "the First Amendment's guarantee of free speech does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits. The First Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs."

"'Fighting words' are not protected under the First Amendment."

Years ago the Supreme Court recognized a very narrow First Amendment exception for "fighting words." If the exception still survives, it's limited to in-person face-to-face insults directed at a particular person and likely to provoke a violent response from that person. It doesn't apply broadly to offensive speech, even though it's often invoked to justify censoring such speech.

"Maybe this speech is protected now, but the law is always changing."

The Supreme Court's approach to constitutional rights can change very quickly. For instance, it took less than a generation for the court to reverse course on whether the government could punish gay sex. But for decades the court has been moving toward more vigorous protection of free speech, not less. Some of the most controversial and unpopular speech to come before the court like videos of animals being tortured, or incendiary Westboro Baptist Church protests at funerals have yielded solid 8-to-1 majorities in favor of protecting speech. There's no sign of a growing appetite for censorship on the court.

Even as a free speech advocate and critic of censorship, I'm happy to see a public debate about the limits of free speech. Any debate that raises consciousness about our rights can be productive. But the free speech debate should proceed based on facts and well-established law, not empty rhetoric. Familiarity with our rights and how they work is a civic obligation.

Ken White is a First Amendment litigator and criminal defense attorney at Brown White & Osborn LLP in Los Angeles. He wrote this for the Los Angeles Times.

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Ken White: Actually, hate speech is protected by First Amendment ... - Allentown Morning Call