Daily Archives: August 5, 2017

ACLU Sounds Alarm Over Trump Administration’s ‘Threat’ To Free … – HuffPost

Posted: August 5, 2017 at 6:06 am

Attorney General Jeff Sessionsplan to crack down on leaksfrom the Justice Department and intelligence community by subpoenaing reporters would constitute a serious threat to free speech, the American Civil Liberties Union warned Friday.

Sessions announced earlier in the day that the DOJ would be reviewing its policy on issuing subpoenas to members of the press as part of an effort to prevent such disclosures.

We respect the important role the press plays and will give them respect, but they cannot place lives at risk with impunity, Sessions said. We must balance their role with protecting our national security and the lives of those who serve in the intelligence community, the armed forces and all law-abiding Americans.

The ACLU, which has frequently criticized the Trump administration for encroachments on the First Amendment, said Sessions crackdown constitutes a threat to journalists and whistleblowers.

President Donald Trump has frequently spoken out against leaks he sees as damaging to his presidency, and has threatened to come down hard on government officials speaking to the press. He also previouslycriticized Sessions in public for not being tough enough on leaks, and reportedly asked former FBI Director James Comey to consider jailing reporters who publish classified information.

The presidents war on leaks reportedly led him to hire Anthony Scaramucci, an outspoken former Wall Street financier, as his communications director. Scaramucci immediately set out to find and fire White House staffers who had leaked to the press, even accusing then-chief of staff Reince Priebus of leaking. (Priebus ultimately resigned one week after Scaramuccis hire.) Scaramucci, however, was immediately fired by Priebusreplacement, Gen. John Kelly.

Trump has also frequently attacked the media as fake news, and has fiercely criticized reporters for covering the FBIs investigation into whether members of his campaign team colluded with Russian officials to influence the election, a probe he has called a witch hunt.

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Campus free speech politics settles in North Carolina – Greenville Daily Reflector

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After a controversial year at ECU in which strong public expressions at both ends of the spectrum drew protests, the university and every other in the North Carolina system received clear instructions this week from the state Legislature on their responsibilities to protect free speech and expression on public campuses.

The N.C. General Assembly enacted into law the Restore Campus Free Speech Act, also known as House Bill 527,written by Republican Lt. Gov. Dan Forest. The bill had been returned July 31 unsigned by Democratic Gov. Roy Cooper.

LaQuon Rogers, ECU Student Government Association president, said the university had been acknowledging everyones right to free speech before HB 527 became law.

We recently have looked at our procedures and policies in terms of how we handle free speech (on campus), Rogers said. We made some adjustments in those areas that resulted in the campus being green-lighted as a free-speech campus. This legislation is coming at a time when we see differences of opinions in academic settings and people are expressing themselves.

Rogers was referring to the Green Light rating ECU received from the Foundation for Individual Rights in Education (FIRE) after changing four campus policies to meet the groups First Amendment standards. That recognition was given the same week that the Legislature sent HB 527 to Cooper.

Essential portions of the new state law require the Board of Governors of The University of North Carolina develop and adopt apolicy on free expression that states, at least, the following:

The primary function of each constituent institution is the discovery,improvement, transmission and dissemination of knowledge by means ofresearch, teaching, discussion, and debate.To fulfill this function, theconstituent institution must strive to ensure the fullest degree of intellectualfreedom and free expression. It is not the proper role of any constituent institution to shield individualsfrom speech protected by the First Amendment, including, withoutlimitation, ideas and opinions they find unwelcome, disagreeable, or evendeeply offensive.

The law also states that colleges and universities may not require its students and faculty to express any given view of social policy; must provide access to campuses for free speech purposes, consistent with First Amendment law, including invited speakers; must provide a range of disciplinary sanctions for anyone who substantially disrupts its functioning or interferes with others protected free expressions; and enforce a clearly defined set of procedures for disciplinary actions and appeals related to free speech and protected conduct.

The new law also requires the UNC Board of Governors to establish from among its members an 11-member Committee on Free Expression that will report annually to the full board and the General Assembly on barriers or disruptions to free expression, handling of disciplinary cases, difficulties, controversies and successes relating to administrative neutrality on political and social issues.

The session law also protects institutional leaders and board members from personal liability for acts taken pursuant to their duties related to the law.

One thing I can say about ECU is that most of the time were ahead of the ballgame, Rogers said. We want to be sure all students feel welcome, and even the speakers we invite. We invite speakers with different views, and I think thats important for an academic institution.

The Daily Reflector also received a news release Tuesday from the Phoenix, Ariz.-based Barry Goldwater Institute. The staunchly conservative organization said the Legislature crafted HB 527 on its model bill.

The Goldwater Institute model legislation affirms a commitment to free speech on public college campuses, prohibits universities from disinviting speakers, and creates a system of sanctions for those who interfere with the free speech rights of others, the release said.

Groups like FIRE and the Goldwater Institute have been lauded and scrutinized because of their support from strongly conservative backers, including the Bradley Foundation, the Claude R. Lambe Foundation and several organizations supported by the activist Koch Brothers and Grover Norquist, who sits on the board of the Goldwater Institute.

Cooper opposed forcing the legislation on universities, but allowed it to become law, a spokesman from his office told The Daily Reflector.

While Gov. Cooper would prefer the state trust university leaders to handle these issues rather than for the legislature to dictate terms, he felt it was best to allow this legislation to become law given the overwhelming majority that supported it, the spokesman said.

The law is a solution in search of a problem, but free speech always should be a priority for public universities, Sarah Gillooly, policy director at the American Civil Liberties Union of North Carolina, told the Carolina Journal after HB 527 was sent to Cooper.

In the rare circumstances where there is an issue with the stifling of free speech on campus, appropriate remedies exist and are working, Gillooly said.

Virginia Hardy, ECU Vice Chancellor for Student Affairs, issued a statement following the changes that led to ECUs green light designation.

We are committed to free speech and freedom of expression on our campus, Hardy said. We want our students, faculty, staff and guests to feel comfortable exercising their rights and exploring their ideas. Allowing the opportunity for freedom of expression and civil discourse around differing views has always been, and continues to be, a mainstay of institutions of higher learning.

Contact Michael Abramowitz at 329-9507 and mabramowitz@reflector.com.

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University of Toledo raises free-speech grade – Toledo Blade

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The University of Toledo became freer this year, according to a free-speech advocacy group.

The Foundation for Individual Rights in Education FIRE produces an annual ranking of speech codes at national universities.

It ranks these policies on a scale from red to green, with yellow in between. In FIREs 2017 report, UT went from red to yellow.

Bowling Green State University was yellow both years.

We strongly encourage freedom of expression and ideas in order to educate global citizens who are prepared for the real world, said Phillip Flapp Cockrell, the universitys interim vice president for student affairs.

In 2015, the University of Toledo landed on the radar of FIRE after complaints about how campus police handled protesters who came to a 2014 speech by Republican strategist Karl Rove.

Students said they tried to enter the room but were stopped by police. Students contended it was because they held signs.

That year, UT created a new policy to address free speech. The new policy permits petition and assembly anywhere on campus. The only caveat: Demonstrations may not disrupt teaching or operations. Notice is requested but not mandatory.

At the time, then-university spokesman Jon Strunk told the Blade only that the university had considered input from FIRE and the Arab-American Anti Discrimination Committee.

Charlie Moore, president of the University of Toledo College Democrats, said the administration had been accommodating of demonstrations and free speech on campus. He noted that two major recent protests one against President Trumps travel ban and another led by the Communications Workers of America chapter went on unimpeded.

They dont really touch it, he said. They just want to be hands-off.

In March, UT and BGSU removed flyers posted on or around their campuses by Identity Evropa, a white separatist group.

David Kielmeyer, a BGSU spokesman, said the schools speech regulations were not why they the flyers were taken down, but rather their illegal placement.

It wasnt about the type of speech, he said. It was where they were posted.

Christine Billau, a spokesman for UT, said the content of the flyers was a consideration.

We dont tolerate hate, racism, or intolerance.

When speech infringes on the rights of others, Mr. Cockrell said, it ceases to be protected.

Vanessa McCray contributed to this report.

Contact Victorio Cabrera atvcabrera@theblade.com,419-724-6050 or onTwitter @vomcabrera.

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Star Wars’ religious imagery is more than just coincidence – Catholic Herald Online (blog)

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Darth Vader and Stormtroopers at a Star Wars display during the Disney D23 EXPO 2015 held at the Anaheim Convention Center (Getty Images)

The franchise is a tale of love, sacrifice and fatherhood against hate, domination and tyranny

In our look at prominent anniversaries in 2017, the 40th anniversary of Star Wars bears noting as a significant cultural moment. The series is the most commercially successful movie franchise ever. Later this year, four decades after the first film was released in May 1977, the ninth major motion picture will be released. Its called Star Wars Episode VIII: The Last Jedi. In any case, it wont be the last film, not by a long shot.

Why has it lasted so long, this series which for generations of children has provided the fantastical architecture of their imaginary play? Despite mediocre writing, it has hosted enduring stars James Earl Jones, Sir Alec Guinness and launched others, such as Harrison Ford.

From the beginning, many fans noted the religious imagery in Star Wars, far too abundant to be accidental. Sir Alec Guinness wore the garb of a monk in his turn as the elderly Obi-Wan Kenobi; Luke Skywalker, when he finally makes it as a Jedi, dresses like a young priest. Darth Vaders helmet is a stylised mitre, all the better to evoke the corrupt bishop he has become. The wicked emperor carries a staff and is attended by a court that includes attendants decked head-to-toe in cardinalatial red. The Jedi temple is a mosque-and-minaret construction. The Force itself is pantheism made palatable for a secular generation that likes to pretend that it is spiritual but not religious. Now, as the saga nears its (supposed) end, the physical setting is actually Skellig Michael, the redoubt of the Irish monks who saved civilisation.

Star Wars endures because it is an ancient story about the deepest human dramas a tale of love, sacrifice and fatherhood on the one hand, and the tragedy of hate, domination and tyranny on the other. It tests which account is a more authentic description of the path to human flourishing.

The central character is Anakin Skywalker, a young boy of preternatural abilities who has no father. The mystery of fatherhood, natural and spiritual, therefore marks the entire saga. The Jedi present the boy with the ideals of honour and duty and sacrifice in which those who have been given much are required to serve the good of all.

As a young man, Anakin rejects his Jedi masters, and the evil Emperor Palpatine offers a different vision to Anakin: those who have been given much have the power to seize more even the ultimate power to create life and cheat death. It is the way of domination, not sacrifice.

Star Wars thus poses a Hegelian question: is the primordial reality the one of the master and the slave? Does man have to choose between being dominant or dominated, in which case the purpose of life and the engine of history is the struggle between those who would be masters and those who would be slaves?

That is the way of the Dark Side, in which the desire to avenge ones own pain fuels the lust for power. Power is the only remedy for pain to hurt others before they can hurt you. In Episode VI: Return of the Jedi, the Emperor attempts to seduce Luke Skywalker, Anakins secret son, to the Dark Side. Luke is invited to kill Vader and take his place at the side of the all-powerful Emperor. It is the Hegelian dynamic of master and slave again. The slave either remains a slave to be destroyed at the masters command, or he kills the master and takes his place. It is the way of the gun or, if you will, the lightsaber.

Show no mercy is the first lesson the Emperor teaches Anakin-cum-Vader in Episode III: Revenge of the Sith. There is no room for mercy in the Hegelian master-slave telling of the human story. Kill or be killed it is: the new Lord Vader massacres the innocent younglings in a slaughter that echoes the biblical figures of the Pharaoh and King Herod. Eventually the Emperor makes the same offer to Luke: kill Vader and take his place or be killed. But Vader is Lukes father, so the master-slave dynamic meets the father-son relationship.

It is striking that for a saga saturated with violence, Luke Skywalker survives into this third trilogy because of mercy and the witness of suffering. It is the suffering of the son that inspires the conversion of the father, and Vader turns against the Emperor and destroys him, at the cost of his own life. The show no mercy domination of the tyrant is finally defeated only by the medicine of mercy and the power of filial suffering to move the paternal heart.

St John Paul II observed in Crossing the Threshold of Hope that the only alternative in human relations to the Hegelian master-slave dynamic is the father-son relationship. Either the powerful oppress the weak, as tyrants oppress slaves, or the powerful one sacrifices himself for the weaker, as a father will give his life for his son. This clash of archetypes is at the heart of the Star Wars mythology.

The revelation of the Trinity teaches us that the father-son relationship is more powerful for it lies at the heart of reality. Thus the radiation of fatherhood in St John Pauls words touches all creation, even a long time ago in a galaxy far, far away.

Fr Raymond J de Souza is a priest of the Archdiocese of Kingston, Ontario, and editor-in-chief of Convivium.ca

This article first appeared in the August 4 2017 issue of the Catholic Herald. To read the magazine in full, from anywhere in the world, go here

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What can Al-Azhar do to smooth path to Islam for prudent atheists? – Egypt Independent

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Typically, atheists in Muslim countries prefer to keep their beliefs secret, fearing their lack of faith will lead to their death.

In Egypt, the situation is different; young Egyptians have been touting atheist and agnostic ideologieson social media, which raisesquestions regarding thereal number of atheists in Egypt, and how government and religious institutions are dealing with them.

Recently, massive controversy surfaced on social media outlets when Al-Azhar Egypts largest Muslim beacon released a statement that Egypt has the highest amount of atheists in the Arab world. The statement came froma member of Al-Azhars Technical Office, Ahmed al-Malkai, in aninterview onprivately-run news channel Al-Nahar.

It is not only the role of Al-Azhar and the government to combat atheism, but families are also responsible for thephenomenon, Malkai said during the interview. All questions that have been raised by atheists were met with proper answers from Al-Azhar.

Egypt Independent investigated the relations between the institution of Al-Azhar and atheists in Egypt, and how they are responding to clerics repeated calls for dialogue.

According to a report issued in 2014 by the state-run Dar al-Ifta, the number of Egyptian atheists reached 866.

Many Egyptians opposing the lack of religious faith are promoting a dialogue-based persuasion strategy to deal with the phenomenon, instead of marginalization.

There are, however, those whoconsider it a personal freedom that no one has the right tointerfere with, and argue that Egypt will only achieve progress if people focus theirattention on the workforce and production instead of citizens personal matters.

There is no clear acknowledgement of atheism in the Egyptian constitution, as only Islam, Christianity and Judaism are officially listed.

The undersecretary of the parliaments religious committee, Amr Hamrowsh, considers the recent declaration that Egypt is the Arab country with the highest rate of atheism to be incorrect information.

Atheism in Egypt is only present in individual cases, not a phenomenon as promoted through dmedia outlets, says Hamrowsh. The Egyptian constitution does not mention atheism as an official belief system, so it is hard for the parliament to issue legislation that will grant atheists freedom of belief, he explained.

In 2014, Endowments Minister Mohamed Mokhtar launched a national campaign in co-operation with the Youth Ministry to combat the spread of atheism, claiming it represents a danger to national security.

Similarly, Malkai believes that atheism is a phenomenon that should be combated, and said that Al-Azhar is holding seminars to discuss ways to eradicate it.

In any developed country, there is a principle that is followed citizenship; no one can ask you about your religion or beliefs, and all laws are applied without religious discrimination, Mohamed Ismail, an Egyptian atheist, told Egypt Independent on Thursday.

Ismailstressed that the citizenship principle is not likely to be applied in Egypt any time, maintaining that Egyptians are obsessed with religion and refuse to acknowledge any faith that is not Abrahamic.

Ismail has adopted atheism as his personal ideology since 2012. He notes that it is not easy for an Egyptian to declare themselves atheist in front of others, as it could put them at fatal risk.

An Egyptian agnostic, who spoke to Egypt Independent on condition of anonymity, agrees that being open about dissident beliefs can incite danger.

I started to be agnostic after intensively studying science, which made me realize religion is a man-made concept, she says.

She rejects the call for dialogue with Al-Azhar and anystatesponsored religious institution, claimingthat engaging in dialogue with clerics would not be productive, as their ideology is different; she believes that Islam promotes terrorism.

However,Ismail says that the recent representation of Islam on the part of the clerics is a good step, as in the past there were only people from Salafist and Muslim Brotherhood political currents that acted as spokespersons of Islam, and they contributed to the religions distortion.

Nevertheless, he personally does not believe thatengaging in discussion with them would be beneficial, saying, I can read what they have to say in books.

According to former undersecretary of Al-Azhar Mahmoud Ashour, there is no justification for reluctant refusal from atheists to engage in open dialogue with Al-Azhar, as it is not like IS or any extremist groups that kill atheists.

Ashournoted that it is important for all state institutions to encourage atheists in Egypt to engage in dialogue with Al-Azhar or churches, as he considers atheism a psychological disease that should be addressed.

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Three dead in second attack on NATO convoy – Santa Fe New Mexican

Posted: at 6:03 am

KABUL, Afghanistan A Taliban suicide bomber disguised as a woman rammed his motorcycle into an international convoy, killing a NATO soldier and two Afghan civilians in an attack north of the Afghan capital, the U.S. military said Friday. It was the second deadly assault this week on a NATO convoy.

Stepped up Taliban attacks this week have focused mostly on the countrys south, but there was also a deadly bombing in the western city of Herat, where 32 people died in a militant assault on a Shiite mosque.

Thursday evenings attack hit the NATO patrol near the town of Qarabagh, barely 18 miles north of Kabul, the Afghan capital, the U.S. military said.

The day before, a suicide attacker hit a convoy on the edge of the southern city of Kandahar, killing two U.S. soldiers and wounding another four. Both attacks were claimed by the Taliban.

According to the U.S. military, three other Georgian soldiers were wounded in Thursdays bombing, as well as two U.S. service members and an Afghan interpreter. The military said the wounded are in stable condition receiving treatment at the U.S. military hospital at Bagram Air Base, also north of Kabul.

The district governor in Qarabagh, Abdul Sami Sharifi, said the attacker concealed his explosives beneath the all-enveloping womens garment known as a burqa. He rammed his motorcycle into the NATO patrol, setting off his explosives, Sharifi said.

In a statement, U.S. Gen. John Nicholson, the top U.S. commander in Afghanistan, praised the contribution of the nearly 900 Georgian military personnel serving in Afghanistan.

The commitment of Georgia as our largest non-NATO contributor is vital to our mission and we are honored to stand beside them under these difficult circumstances, Nicholson said.

Taliban spokesman Zabihullah Mujahid told The Associated Press over the phone on Friday that one of its fighters from Takhar province carried out the attack at 8 p.m. in Qarabagh. He claimed 11 Americans were killed, but the insurgents routinely exaggerate their claims.

Meanwhile, in southern Helmand province, the Taliban stormed a market on Friday in the Gareshk district and fired at a nearby police station, according to district police chief Ismail Khan Khopalwaq. The market was closed because of the Muslim weekend and no casualties were reported in the attack.

On Thursday, a suicide bomber rammed his explosives-laden car into a police outpost in Gareshk, killing two policemen and wounding another two.

The district has been the scene of heavy fighting in recent weeks between Afghan security forces, backed by U.S. air support, and the Taliban, who now control roughly 80 percent of Helmand province.

Gareshk district is also where the Pentagon confirmed that an errant U.S. bomb last month destroyed a police outpost, killing 12 officers and wounding another 11. The incident is still under investigation and a joint U.S. and Afghan delegation earlier visited the area.

In recent days, the Taliban have stepped up their attacks on Afghan security forces across the countrys south.

A Taliban attack early on Friday on a police outpost in southern Zabul province, on the border with Pakistan, killed four policemen. And three policemen were killed on Thursday when the Taliban attacked an outpost in southern Kandahar province, police spokesman Zia Durrani said.

In a separate attack near Lashkar Gah, the capital of Helmand province, the Taliban killed another five policemen in an attack on a checkpoint outside the city on Thursday, according to Zahir Gull Maqbol, an Afghan army commander.

And earlier this week, a suicide bomber and gunman attacked a Shiite mosque in the western city of Herat left 32 people were dead and 66 wounded.

The audacity of Tuesday evenings attack, barely 150 feet from a police station, set off protests the following day. The suicide bomber first sprayed gunfire at the private guards who were protecting the mosque, before running inside firing until his rifle jammed, according to witnesses. He then detonated the explosives strapped to his body.

The Islamic State affiliate in Afghanistan took responsibility for that attack, saying they had deployed two suicide bombers. Witnesses reported a second explosion 10 minutes after the first bomber blew himself up.

The Islamic State considers Shiite Muslims as apostates and frequently targets them in attacks.

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Why Robert Mueller’s Grand Jury Isn’t Really a Big Deal – Fortune

Posted: at 6:01 am

Special counsel Robert Mueller (L) arrives at the U.S. Capitol for closed meeting with members of the Senate Judiciary Committee June 21, 2017 in Washington, DC. Alex Wong Getty Images

Washington is all abuzz that Special Counsel Robert Mueller has empaneled a grand jury in furtherance of his investigation into whether or not Donald Trump's campaign colluded with Russia. In spite of the inevitable speculation this creates, its worth remembering that a grand jury is a powerful investigative tool, but not a criminal charge. So what is the significance of a grand jury convening?

A grand jury has the power to subpoena both witnesses and documents, such as bank records and phone records. Refusal to comply with a subpoena, which has the force of a court order, without a legal basis creates the risk of the subpoena recipient being held in contempt of court and subject to criminal or civil penalties.

Legal privileges, such as the Fifth Amendment privilege against self-incrimination, are a basis for a witness to refuse to testify. The only way to get around a legally applicable privilege would be to seek an order of immunity, which would protect the witness from criminal exposure and therefore render the Fifth Amendment inapplicable. Perhaps the most famous immunized witness in past independent counsel investigations is Monica Lewinsky; its easy to forget that former national security advisor Michael Flynns lawyer offered his testimony to the Senate Intelligence Committee if he received immunity, where anything said could not be used against him in a criminal proceeding. The Committee, perhaps anticipating a prosecutors eventual interest in Flynn, declined.

Moreover, certain evidence, such asyes, Mr. Presidenttax returns, are considered more private than others, and cannot be obtained via subpoena. Rather, Mueller would need to seek an order from a judge to obtain Trumps tax returns, a wiretap, or a pen register, for instance.

Unlike Congressional hearings, in which sworn testimony is public, grand jury investigations are secret by law. This secrecy rule is demonstrated by the fact that Muellers grand jury has apparently been working for several weeks, but was only reported in the media yesterday. Prosecutors, law enforcement, and grand jury members themselves are barred from discussing grand jury proceedings. The reasons for this are twofold: First, publicity can cripple an ongoing covert investigation; second, grand jury investigations are secret to protect subjects of an investigation who may or may not ultimately be charged.

Grand jury witnesses, however, are not subject to the secrecy rules. So any legal reports from the grand jury room will come from the witnesses.

Grand juries, like Congress, can issue subpoenas. Unlike Congress, they can vote to criminally indict the subjects of their investigations. The purpose of empaneling a grand jury is to gather and assess the weight of the evidence. It does not mean that there exists enough evidence to amount to proof beyond a reasonable doubt, which is the standard for a conviction, or probable cause, which is the standard the grand jury must find in order to vote to indict. Given the grand jury secrecy rules described above, there is no way for the public to know with certainty how much evidence Mueller has amassed, or its value in a criminal case. So the smart money wont bet on criminal charges by the mere fact of empanelment alone.

In summary, empaneling a grand jury is consistent with Muellers reputation as a lawyer and investigator: a meticulous and thorough officer of the court who is committed to accuracy and the rule of law. But the grand jurys existence doesnt amount to a criminal charge, and it definitely doesnt equate a criminal conviction. As were whipsawed by Washington, its worth taking a page from Muellers book, and following the evidence where it leads.

Juliet S. Sorensen is a clinical associate professor of law at Northwestern Pritzker School of Law. She is the co-author of Public Corruption and the Law: Cases and Materials (West Academic 2017).

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Symposium: Carpenter and the eyewitness rule – SCOTUSblog – SCOTUSblog (blog)

Posted: at 6:01 am

Posted Fri, August 4th, 2017 1:39 pm by Orin Kerr

Orin Kerr is the Fred C. Stevenson Research Professor of Law at The George Washington University Law School.

One of the most basic ideas in Fourth Amendment law is what you might call the eyewitness rule: The government can always talk to eyewitnesses. If the police find out a bank was robbed, they can go to the bank and interview those who saw the crime occur. They can talk to the bank clerk about what he observed. They can talk to the security guard about what she experienced. They can talk to bank customers about what happened. These interviews, whether voluntary or compelled, dont trigger the Fourth Amendment. Theres just no Fourth Amendment right to prevent people from talking about what they saw you do.

If the Supreme Court sticks with the eyewitness rule, Carpenter v. United States is an easy case. Cellphone companies are eyewitnesses. Customers use their services and hire the companies to place calls for them. The companies generate records of what they did for their customers. If the police find out a phone was used in the commission of a crime, they can go to the phone company and get its records about how the phone was used. The phone company can be forced to tell the government what it did for its users. Because theres no Fourth Amendment right to prevent people from telling the police about what they saw you do, getting those records does not trigger the customers Fourth Amendment rights.

The challenge for Timothy Carpenters lawyers is to get the Supreme Court to carve out an exception to the eyewitness rule. They need to persuade the court that sometimes the law shouldnt let people talk about what they saw you do without a warrant. The strategy will be to say that the eyewitness rule shouldnt apply because Carpenter had a reasonable expectation of privacy in his location. Because he had a reasonable expectation of privacy, theyll say, the government should need a warrant to find out what the phone company knows about him.

But this framing is based on a conceptual error. Properly understood, this case has nothing to do with reasonable expectations of privacy. To see why, we need to understand the origins of the reasonable-expectation-of-privacy test.

In 1967, when Katz v. United States was decided, two kinds of cases dominated Fourth Amendment law defining what is a search. The first kind of case identified the spaces that merited Fourth Amendment protection. Homes received protection, but open fields didnt. Katz was one of these cases, because it asked whether public phone booths were protected, like homes, or unprotected, like open fields.

The second kind of case considered when disclosure from inside a protected space eliminated privacy. The Supreme Court decided a long string of those cases in the decade before Katz. And it consistently adopted a simple rule: A person who knowingly exposed private information from a private space to outside observation waived Fourth Amendment protection. Hoffa v. United States, decided the year before Katz, is a helpful example. The Supreme Court held that James Hoffa had no Fourth Amendment rights in what he told his friend Edward Partin even though the conversation occurred inside the protected space of Hoffas hotel room.

This background is necessary because it explains Justice John Marshall Harlans two-part Katz test that the Supreme Court later adopted. Harlan explained the test as his understanding of the rule that has emerged from prior decisions, so he was simply trying to summarize what the cases had held. And Harlans summary nicely (if briefly) encapsulated the two lines of cases. First, a space had to be protected, which was the case if society was willing to recognize an expectation of privacy as reasonable there. Second, the person had to exhibit an actual expectation of privacy, an intention to keep the protected space to himself, by not exposing the space to the plain view of outsiders.

In other words, the Katz two-part test just restated the two requirements of then-existing Fourth Amendment doctrine. To establish Fourth Amendment protection, a person needed to have a place that society would recognize as justifying privacy and had to take steps to shield that space from outside observation.

Why does this history matter for Carpenter? It matters because this case, like all eyewitness cases, involves the second aspect of Fourth Amendment protection: the requirement that a person must shield his information from observation to get Fourth Amendment protection. Even assuming a cellphone users location should count as a protected space, the user has revealed his location to the phone company. Whether Carpenter had a reasonable expectation of privacy should be irrelevant. Carpenter shouldnt win because he didnt shield his location from his phone provider. Carpenters relationship with the phone company is like Hoffas relationship with Partin. Carpenter cant both share his information with the phone company and demand a warrant before the phone company gives that information to the government.

This point is hard to see because the Supreme Court veered off-course in the 1970s and 1980s with cases involving what it has called the third party doctrine. Those cases are normatively correct. But theyre in the wrong doctrinal box. As I detailed in a recent article, the court mistakenly moved the content of the subjective-expectation-of-privacy test over to the reasonable-expectation-of-privacy test and relabeled it the third-party doctrine. Students of the Fourth Amendment have been confused ever since. Isnt it sometimes reasonable, they ask, to expect privacy in information that a person knowingly disclosed? But thats not the right question. The right question is, should you have a right to stop others from telling the government about what they saw you do?

This understanding explains the maddening difficulty Carpenters side has articulating the limits of its argument. The Fourth Amendment calls for clear rules. The government needs to know what is a search and what isnt. But Carpenters side always struggles to explain when the Fourth Amendment should offer protection against government access to business records. If cell-site records are protected, how about credit-card records? Telephone records? Bank records? Should the amount of time covered by the governments request matter, and if so, how? Advocates for Fourth Amendment protection in cases like Carpenter generally decline to say where the lines should be.

The reason for this reluctance, I think, is that there is no obvious line to draw for when you should have a right to stop others from telling the government what they know about you. Carving out an exception to the eyewitness rule creates a puzzle: There are no pre-existing principles that explain which eyewitnesses can be forced to talk to the government and which ones cant. Legislatures can just draw arbitrary lines. But courts have no traditional tools to use to decide when a warrant is needed to make an eyewitness speak.

Posted in Carpenter v. U.S., Summer symposium on Carpenter v. United States, Featured, Merits Cases

Recommended Citation: Orin Kerr, Symposium: Carpenter and the eyewitness rule, SCOTUSblog (Aug. 4, 2017, 1:39 PM), http://www.scotusblog.com/2017/08/symposium-carpenter-eyewitness-rule/

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The Second Amendment Has Won (Again) In Washington. So Why … – Fox News

Posted: at 6:01 am

By Hans A. von Spakovsky, FOX NEWS

Washington, D.C. residents, you dont have to holster your Second Amendment rights anymore. Unfortunately, residents of many other states like California dont have the same ability that D.C. residents now do to protect themselves.

In a stirring victory for those who live in the nationals capital, a panel of the District of Columbia Circuit Court of Appeals recently threw out a D.C. ordinance that denied concealed-carry permits to anyone who could not show a special need for self-defense, what is referred to as a good reason requirement. The problem is that other courts of appeal have upheld such restrictive laws and the U.S. Supreme Court has turned down appeals of those decisions, refusing to take up the issue of the Second Amendments application to carrying a weapon outside of the home.

This happened most recently at the very end of the Supreme Courts 2017 term in June when it refused to take up Peruta v. California, an appeal of a decision of the Ninth Circuit upholding Californias good reason requirement.

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The Second Amendment Has Won (Again) In Washington. So Why ... - Fox News

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No Free Speech for You – Slate Magazine

Posted: at 6:00 am

Supreme Court Justice Anthony Kennedy is seen during a ceremony in the Rose Garden at the White House on April 10.

Eric Thayer/Getty Images

Last year, a police officer in New Mexico arrested an acquaintance of his own supervisor and reported another officers misconduct. In 2014, a city plumber and rental housing inspector in Illinois complained about his citys failure to enforce codes and a lack of accessibility for those with disabilities. In 2009, a port authority officer for New York and New Jersey reported that a tunnel and bridge agent interfered with her police activities and harmed public safety.

Ostensibly all three of these public employees are whistleblowers, who sought to rectify misconduct, code violations, or safety issues. Still, they all suffered the same fatethey were dismissed from their jobs. These employees faced retaliation for their salutary speech and efforts to improve the public good and, if their allegations are believed, should have had valid First Amendment free speech arguments to challenge their dismissals. But, the bleak reality of modern American law is that such employees often have no valid free speech claim at all. As such, these three employees lost their respective cases before the 3rd, 7th, and 10th U.S. Circuit Court of Appeals in recent decisions, one as recently as July.

They lost their retaliation claims under the First Amendment, because of one of the worst Supreme Court decisions in years. That case is Garcetti v. Ceballos. Its been on the books for more than a decade, wreaking havoc on employees and bastardizing free speech jurisprudence. Those representing employees who have suffered because of the Supreme Court decision have labeled such lower court rulings as being Garcettized.

Garcetti has effectively applauded official oppression, trimmed truth in the public workplace, and done so without moral or workplace-efficiency justification, longtime Texas-based civil rights attorney Larry Watts told me. Garcetti is the greatest, judicial enemy of clean government I have seen in my 50 years at the Bar.

In Garcetti, the Supreme Court created a categorical rule: When public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline. Stated more simply, when public employees engage in official, job-duty speech, they are not speaking as citizens but public employees and have no free-speech rights at all. None. Zero.

For decades, the Supreme Court had a workable standard in such free speech cases.

The case involved an assistant district attorney named Richard Ceballos, who learned of perjured law enforcement statements in a search warrant affidavit. He wrote a memo to his superiors recommending dismissal of the criminal charges. Instead, he suffered a demotion and a transfer to a less desirable work location.

The case was argued twice before the Supreme Courtonce when Justice Sandra Day OConnor was still on the court and once after she had been replaced by Justice Samuel A. Alito Jr. The court ruled 54 against Ceballos, splitting along conservative-liberal lines. The more conservative jurists sided with the district attorney while the four more liberal jurists voted for the employee.

Justice Anthony Kennedy, who often writes passionately about the importance of freedom of speech and thought, authored the majority opinion in Garcetti. It is the black mark of his First Amendment record, a scarlet letter that he should attempt to finally shed.

For decades, the Supreme Court had a workable standard in such free speech cases. Under that framework, the court asked whether a public employee spoke on a matter of public concern or importance, something of larger interest to the community. In other words, was the employees speech on a matter of public concern or merely a private grievance?

If the speech was merely a private grievance, there was no First Amendment claim. But, if the speech touched on a matter of public concernsuch as speech about racism in the workforce, unsanitary conditions in a school, or brutality against inmatesthen courts had to balance the employees right to free speech against the employers efficiency interests in a disruption-free workforce.

This two-part framework was known as the Pickering-Connick test after two earlier Supreme Court decisions, the 1968 case Pickering v. Board of Education and the 1983 case Connick v. Myers.

But, decades later the Supreme Court imposed the categorical bar in Garcetti, denying any protection if an employee engages in job-duty speech or speaks as an employee instead of as a citizen.

To appreciate the impact of Garcetti, consider the plight of a public school teacher who might be disciplined for classroom speech. Perhaps the teacher speaks about a controversial political matter, offers a different lesson plan, or uses the N-word in an unplanned lecture to students about not using racial slurs.

Lincoln Brown, a sixth-grader teacher in Chicago, learned the power of Garcetti the hard way when the 7th Circuit ruled he had no First Amendment claim for using the N-word in a well-intentioned lecture against such slurs. Brown gave his impromptu [lecture] on racial epithets in the course of his regular grammar lesson to his sixth grade class, wrote the 7th Circuit in Brown v. Chicago Board of Education. His speech was therefore pursuant to his official duties.

Translation: Lincoln Brown, like so many other public school teachers, had zero free-speech protection for speech in the classroom because of Garcetti.

Its not just teachers who have lost their free speech rights from the overly broad, categorical rule of Garcetti. Police officers have faced its wrath arguably more than any other group while firefighters and university-level employees have also had to suffer retaliation without recourse due to the ruling.

There have been a few glimmers of hope in recent years. In the 2014 case Lane v. Franks, the Supreme Court refused to apply Garcetti against a university employee who was terminated after providing truthful testimony in a court case. Justice Sonia Sotomayor, in her opinion, emphasized the importance of employee speech for the public. Citizens, including public employees, are supposed to testify truthfully in court after all.

Furthermore, two federal circuit courtsthe 4th and the 9thhave ruled that Garcetti doesnt apply to professor speech, because of the additional protection of academic freedom. But, that is only two circuits. As I explained in April testimony to the House Judiciary Subcommittee on the Constitution and Civil Justice: Garcetti threatens the speech of college and university employees. Only two circuit courts of appeals have explicitly rejected Garcetti as applied to university professors.

Some lower courts will work around Garcetti, finding that it wasnt part of an employees joband thus not a part of his public roleto set policy or to criticize certain departmental practices. For example, the 2nd Circuit Court reinstated a police officers First Amendment lawsuit in the 2015 case Matthews v. City of New York, finding that the officer spoke more as a citizen when he criticized his departments arrest quota policy.

Join Dahlia Lithwick and her stable of standout guests for a discussion about the high court and the countrys most important cases.

But, these are the exceptions.

Top Comment

So let me get this straight. More...

It has been more than a decade since the Supreme Court dramatically reduced the level of free speech protection for public employees. Various statutory protections are not sufficient to guard against this type of retaliation against whistleblowers. The Constitution is the highest level of law and the first 45 words of the Bill of Rights should not be empty language when applied to public employees. The First Amendment must protect those public servants who have the courage to speak out against corruption, inefficiency, waste, and other problems.

Its time for the court to reconsider one of its biggest mistakes of recent years. In fact, its long overdue.

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No Free Speech for You - Slate Magazine

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