Schneier on Security

F McGowan • September 19, 2005 1:45 PM

You guys really scare me, but nowhere near as much as our courts do these days.

1. The first comment calls full dislcosure and the right to encrypt “quaint and outmoded concepts.” What rights do I have to protect my own data from tampering, in this brave new world?
2. No one responded to the remark about talk show hosts Limbaugh and Liddy except to agree. Have you listened to what they say or only what is said about them? I have listened to Limbaugh as often as possible since he went national in 1988 and I cannot recall him ever advocating breaking the law. I don’t recall Liddy doing so, either, though his show is no longer availble in my area and I was never able to catch him reliably.
   If you can cite a verifiable case where eiher did advocate breaking the law, please do so.
3. @G. Poole – Professor Kolokh says the First Amendment exception will be triggered when “one of these three conditions is satisfied.” In that case, a court willing to interpret his guidelines as broadly as Congress has interpreted the “Interstate Commerce Clause” of the U.S. Constitution, any speech that can be seen as facilitating crime in any sort of way will be forbidden. Indeed, the Roe v. Wade decision cites “an emanation of the penumbra” of a specified right as the underpinning of a new “Constitutional right,” if I recall correctly. For that reason, Professor Kolokh’s modest proposal absolutely terrifies me.
4. Can we find some example for non-protected speech other than “yeling ‘Fire!’ in a crowded theater,” please? Here’s one – a political ad placed by a “special interest group” within 60 days of a federal general election is prohibited. From what I’ve observed in our legal system successful challenges to prohibitions on pornography, lewd song lyrics and Nazis (among others) being able to spew forth in public, as “protected speech,” I can’t see that much else is currently forbidden other than threatening the U.S. president.

5. @Jammit – As far as ordering someone else to carry out a murder, that is what Charles Manson was convicted of doing. He is still in jail.

Given the recent extremely artful re-interpretation of “public use” as “public good” that enabled that Connecticut town to exercise eminent domain over private property so it could be given to a private entity for redevelopment (and be subject to higher taxation), I don’t think you should rule out willful misinterpretation of the guidelines.

IANAL, but I can see this getting completely out of hand given the increasing willingness of our courts to make it up as they go along.

F McGowan • September 21, 2005 2:08 PM

@Fred Page: Thanks for the responses.
I admit not reading the entire article, but I did read a large part. I knew there were other limits on speech, but everyone seems to quote Justice Holmes (I think…) with the theater thing rather than finding anything else to say.

Though IANAL, I am aware that the Constitution and case law constitute the only real constraints on federal judges. However, I reiterate that our judges seem to want to make it up as they go along and overstep themselves rather frequently these days. The majority of the U.S. Supreme Court appear to have willfully mistinterpreted “public use” in Amendment 5 to mean “public good” in the recent eminent domain case.

The Constitution says that “The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior…” Surely usurpation of Congress’s legislative authority would be other than “good Behavior” for a jurist, justifying impeachment and removal from office. Congress has the duty to keep the courts within their rightful sphere and the authority, as well. The process was made difficult to keep it from being used to destroy the intended judicial independence but we seem to have forgotten that it was made possible to provide the intended balance.

Short of Congress actually removing federal judges at all levels for overstepping their authority, there is no limit on judicial authority.

I will not hold my breath waiting for Congress to do its duty in taking such steps and the resulting heat.