Lawsplainer: The Ninth Circuit and Compelled Speech

popehat.com/2016/10/17/lawsplainer-the-ninth-circuit-and-compelled-speech-about-abortion/

When a court applies scrutiny, it’s holding the government’s justification for a challenged law to a standard. How tough the standard is depends on the nature of the law and how the plaintiff says it’s defective. In some situations, courts apply strict scrutiny — for instance, laws that punish speech based on its content generally trigger strict scrutiny. If a court applies strict scrutiny, the government must show that the law in question serves a compelling government interest and is narrowly tailored to achieve that interest. Practically speaking, applying strict scrutiny almost always means that the court will strike down the law.

Don’t knee-jerk-react to the topic of the case (it’s about abortion). Instead, read this short piece as an explanation of one facet of the interation between our federal courts and our state legislatures. One of the beautiful aspects of our Republic is the way our founders envisioned a system to combine the states under a federal umbrella. I note particularly the concept of the federal courts NOT being able to just randomly intervene in the states’ affairs.

Hillary Clinton, the Sixth Amendment, and Legal Ethics

popehat.com/2016/10/10/hillary-clinton-the-sixth-amendment-and-legal-ethics/

I’m a criminal defense lawyer. I’ve represented people by appointment and voluntarily, and I’ve represented people accused of all sorts of things. I’ve made vigorous use of my client’s constitutional and procedural rights to attack the government’s case, even in cases were most observers believed it was clear that my clients “did it.” That’s my job. You’re free not to like it, and free to attack me for it. But I’m going to call you totalitarian and un-American if you do.

QUICK! ..what is the Sixth Amendment to the U.S. Constitution? I’ll accept knowing the general gist as being good enough for full credit. I couldn’t have told you if you put a gun to my head.

So I looked it up, and am going to proudly attempt to keep this loaded in my head, and — heads up — I’m likely to swing this idea around in the future as a ward against un-American Americans who spout nonsense about not “liking” defense attorneys, what they do, or how they did it in a specific case.

1789:

“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.”

I Stand, Despite

popehat.com/2016/08/30/i-stand-despite/

I stand loving America, aware that I often fall short of what that love should mean. When I say I love America I mean I love certain shared values and founding ideals like the rule of law and equality before it, liberty, and self-determination, and what people have done to achieve them. I love the values as lofty as the right to speak and worship and as humble as the right to raise a family and work and live as I see fit. I love it knowing that these ideals are more aspirational than descriptive, more a to-do list than a resume. They are what Lincoln called “unfinished work” and “the great task remaining before us.”

I happen to be that sort of middle-aged-softie who is deeply moved by our National Anthem.

…but, when I stand for the National Anthem, I do not judge those who do NOT stand (even if they are in the row behind me talking loudly). I love America all the more for its ensuring their right to a freedom of expression; An America where they should never be forced to declare their adoration for the State as a precursor to watching some random sporting event.

The individual and the herd

http://weeklysift.com/2015/02/09/the-individual-and-the-herd/

Here’s what it boils down to: Human beings are simultaneously individuals and members of society, not fundamentally one or the other. Some issues (like free speech) are easier to understand from the individual point of view, while others (like traffic) require a social point of view.

~ Doug Muder

This is a long read and it’s *gasp* “thinky.” It’s also about *swoon* vaccination, but it’s really about individual rights and social responsibility. Repeat this phrase over and over, “an intelligent person can consider an idea without accepting it,” and give this a read.

A new deal for copyright

http://www.locusmag.com/Perspectives/2015/01/cory-doctorow-a-new-deal-for-copyright/

If you have to understand the law to read a book, we have failed. If you have to enter into a contract – any contract, even a ‘‘good’’ contract – to read a book, we have failed.

These are cultural, not industrial activities. It’s insane to ask people to sign contracts to read books. Seriously, who actually thinks this is a good idea?

Maybe we do need rules for culture, and maybe we even need laws for culture, but they shouldn’t – and can’t – be the rules we designed for industry.

It’s not always easy to tell the difference be­tween culture and industry, but there are plenty of cases where it’s totally obvious. For those fuzzy cases in the middle, come up with some guidelines and let the courts apply them.

It’s a wildly imperfect system, but at the very least, it isn’t the grossly Kafkaesque idea that you should have to enter into a 22,000-word agreement with Apple, AT&T, and Random House audio in order to listen to a 15,000-word novella.

~ Cory Doctorow

The NSA Behemoth

Re the U.S. Nat. Sec. Agency:

The spate of new NSA disclosures substantially raises the stakes of this debate. We now know that the intelligence establishment systematically undermines oversight by lying to both Congress and the courts. We know that the NSA infiltrates internet standard-setting processes to security protocols that make surveillance harder. We know that the NSA uses persuasion, subterfuge, and legal coercion to distort software and hardware product design by commercial companies.

~ Yochai Benkler, from Time to tame the NSA behemoth trampling our rights

About the Aaron Swartz Case

As usual, Ken at Popehat is a shining beacon of sanity and reason. Here he is talking About the Aaron Swartz Case:

There are three things people get wrong about the prosecution and heartbreaking suicide of Aaron Swartz. Two of those things are about the criminal justice system. They’re disturbing, but not difficult to talk about. The third thing is about depression. It’s very difficult to talk about.

A Grain of Salt

If the FBI, and CNN, and NBC, and the New York Post, and the Atlanta Journal Constitution, and All Of Us, could get the Atlanta bombing so tragically wrong in 1996, they, and we, can do it today. In the days to come, it would behoove All Of Us to take what the FBI, and CNN, and NBC, and the New York Post, and their ilk, have to say about suspects and motives with a grain of salt.

~ Patrick, from Richard Jewell Cannot Accept Our Apology

Hear! Hear!

Nice. Attorney General Says President Can Kill Citizens

… Just to review, the Attorney General just said yes, the President does have “the power to authorize lethal force, such as a drone strike, against a U.S. citizen on U.S. soil, and without trial.” That’s funny, because I’m looking at some amendments here (I’m thinking IV, V, VI, and VIII) that say he doesn’t.
~ Lowering the Bar

…and before you get all, “Craig you’re splitting hairs!” on me: Reasoned and pragmatic analysis is exactly what our [U.S.] governmental system of checks and balances is about.

Why, it’s almost as if the founders thought the executive branch might get out of control and created the judicial branch on purpose. And then down the road some more smart people felt the Constitution should be amended to make things even more clear.