Tag Archives: Barack Obama

Should We Police Threats On Social Media?

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The United States has a well-developed jurisprudence for dealing with people who make threats. The default presumption, thanks to the First Amendment, is that any speech, even speech that is frightening, prejudiced or factually wrong, is legal. Even a generic desire for the President to die has First Amendment protection. The key precedents here are Watts v. United States and Brandenburg v. Ohio, both from 1969. In Watts, an 18-year-old remarked during a rally against the draft that:

“They always holler at us to get an education. And now I have already received my draft classification as 1-A and I have got to report for my physical this Monday coming. I am not going. If they ever make me carry a rifle the first man I want to get in my sights is L. B. J.”

The ruling suggested that this was protected as merely ‘a kind of very crude offensive method of stating a political opposition to the President’, of a kind still very familiar to us today. Those prosecuted for threatening the President over the last few years have typically had additional evidence of actual conspiracy to commit murder.

In Brandenburg, a KKK leader’s advocacy of ethnic violence was ruled to be protected by the First Amendment, because it was not “directed to inciting” or “likely to incite, imminent lawless action.” There must be some specificity as to the time that the lawless action is to occur; it cannot simply be a generalized articulation of the need for violence at some future time. It must be, in other words, a so-called “true threat.”

These rulings have stood essentially unmodified for nearly half a century. They are also a lot more protective of threatening speech than most people, including surveillance state employees, casually assume. One result of that assumption is that surveillance agencies pro-actively monitor social media, and open investigations on the basis of First Amendment-protected threats they encounter, when the constitutionality of doing so is at best highly suspect.

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Midterms & Mass Surveillance, Part II: CIA and Elite Torturers Win, The Rule of Law Loses

DilbertCorporateCulture2002

We lack in this country a major party that offers wholehearted and universal support for the protections embodied in the Bill of Rights, and the choices offered are often highly constrained. To take the last two presidential elections as an example, the more pro-civil-liberties of the major-party candidates has launched more Espionage Act prosecutions than all previous presidents combined; indefinitely detains legally innocent people, for fear of what they might do if released; allows agencies to gin up fake terror plots; calls the idea of actually prosecuting torturers “sanctimonious“; and would prefer a cosmetic surveillance reform that legitimates most of what the deep state is doing and that, of course, wouldn’t punish anyone. The less pro-civil-liberties candidates argued for unending war in the Middle East, invited warmongers and torturers to introduce them at campaign stops, and argued that affording due process to prisoners of war would be a kind of treason.

There’s a reason for this constrained choice set: The elites of both parties no longer, if they ever did, believe that laws apply to them, their colleagues, their funders, or the intelligence agencies. As a result of this culture of lawlessness, no candidate that genuinely seeks to have laws apply universally will garner the insider support needed to advance their candidacies.

We will see the effects of this constrained choice set in the new Congress most clearly in the field of prosecutions for US government acts of torture.

Let’s review the history.

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