“We don’t burn no draft cards down on Main Street …”

Each time I read about United States v. O’Brien, 391 U.S. 367 (1968), whether in my notes, outline or Constitutional Law book, the tune Okie from Muskogee starts playing in my head.

We don’t smoke marijuana in Muskogee;
We don’t take no trips on LSD
We don’t burn no draft cards down on Main Street;
We like livin’ right, and bein’ free.

more lyrics

I can blame the third line of the song. O’Brien upheld a Federal law banning any person from knowingly destroying or mutilating their draft cards. O’Brien, the person, burned his draft card on the steps of the South Boston Courthouse in March 1966 to protest the Vietnam war. The court held that the law banning draft card destruction was content-neutral. It then provided a rule that is still used to today to determine if content-neutral laws violate the First Amendment protection of speech.

Content-neutral government regulation is sufficiently justified if it:

  1. is within the constitutional power of the government;
  2. furthers an important or substantial governmental interest;
  3. if the government’s interest is unrelated to the suppression of free expression; and
  4. if the incidental restriction on alleged 1st Amendment freedoms is no greater than is essential to the furtherance of that interest.

I personally think O’Brien was a BS ruling because the Congressional history shows Congress passed the law in reaction to draft card burning, a form of political speech. Thus, the law was content-specific which would require a higher level of review. In which case, its goal would need to accomplish a compelling government interest and be narrowly tailored to have no less restrictive alternatives. Even under the less rigid test provided in the case, the regulation should fail because it was passed to suppress expression, namely draft card burning. The Supreme Court is made up of humans and is liable to make mistakes from time-to-time.

BTW: I hear the Grateful Dead (with the Beach Boys) version, rather than the original Merle Haggard song. The Grateful Dead/Beach Boys version comes from a live set played in April 1971 at Fillmore East. Give me a holler if you’d like a copy of the MP3 (free, of course). I love the Grateful Dead policy of allowing audience members to tape their shows and freely distribute. More bands should follow it to increase the scope of their audience.

Science, houses, stones, and creation …

We had a lively debate today in Constitutional Law regarding a series of cases regarding creationism in school science curriculum. The primary case is Edwards v. Aguillard, 482 U.S. 578, (1987), a U.S. Supreme Court case from 1987. In it, the Court struck down a Louisiana law that required ‘creation science’ to be taught whenever evolution was taught as part of science curriculum, and vice versa. The Court held the law was a violation of the Establishment Clause, part of the First Amendment. “Congress shall make no law respecting an establishment of religion …” It held that the law was passed specifically to require teaching of creation science in public schools with the purpose of advancing and endorsing a particular religious doctrine.

Also mentioned was a more recent case from Pennsylvania in which a school district required ‘intelligent design’ to be taught in science classes. That law was struck down as a violation of the Establishment Clause by the local Federal district court because, among other reasons, evidence existed that the textbook publisher cut ‘creation science’ and pasted ‘intelligent design’ in its textbook after Edwards. One typo, as relayed in class, was “crintelligent designce.”

The point of my post is this: Creationism is not science and does not belong in a science curriculum. I’m glad courts have been able to see past the smoke and excise creationism from public school science curriculum. Even my Catholic high school taught evolution in science classes without any need to add disclaimers or to limit the scope of the subject. Then again, it was college preparatory with an eye towards building young men who were ready for college.

Here is a good quote I just ran across that I think sums the whole debate of creationism versus evolution in school:

“Science is facts; just as houses are made of stones, so is science made of facts; but a pile of stones is not a house and a collection of facts is not necessarily science.” – Henri Poincare

Seeing that quote is actually what prompted me to make this post.

I’d like to make an additional note regarding this case. Justice Scalia, in his dissent, showed he really doesn’t care as much for original intent as he claims he does in other cases and his public speeches. He says in several places that determining original intent is nearly impossible.

  • “discerning the subjective motivation of those enacting the statute is, to be honest, almost always and impossible task.”
  • “legislative histories can be contrived and sanitized, favorable media coverage orchestrated, and postenactment recollections conveniently distorted.”
  • “determining the subjective intent of the legislators is a perilous enterprise.”

Fun stuff. 😉

“The greatest menace to freedom is an inert people” — Brandeis

The following passage from Justice Brandeis, part of his concurrence in Whitney v. California (1927), is still relevant today. I love the passion the passage exudes.

Those who won our independence believed that the final end of the state was to make men free to develop their faculties, and that in its government the deliberative forces should prevail over the arbitrary. They valued liberty both as an end and as a means. They believed liberty to the secret of happiness and courage to be the secret of liberty. They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that without free speech and assembly discussion would be futile; that with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty; and that this should be a fundamental principle of the American government. They recognized the risks to which all human institutions are subject. But they knew that order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and that the fitting remedy for evil counsels is good ones. Believing in the power of reason as applied through public discussion, they eschewed silence coerced by law-the argument of force in its worst form. Recognizing the occasional tyrannies of governing majorities, they amended the Constitution so that free speech and assembly should be guaranteed. Whitney v. California, 274 U.S. 357, 376 (1927).

Comcast to FCC: Network neutrality is DEAD

Comcast has decided to make its case against network neutrality by hindering bit torrent downloads. The problem with its policy is that the debate is far from over and this move will anger customers who are likely to have other options for broadband.

Comcast blocks some Internet traffic – Yahoo News

NEW YORK – Comcast Corp. actively interferes with attempts by some of its high-speed Internet subscribers to share files online, a move that runs counter to the tradition of treating all types of Net traffic equally.

The interference, which The Associated Press confirmed through nationwide tests, is the most drastic example yet of data discrimination by a U.S. Internet service provider. It involves company computers masquerading as those of its users.

Not to mention, Comcast’s moves are underhanded and deceitful.

Comcast’s technology kicks in, though not consistently, when one BitTorrent user attempts to share a complete file with another user.

Each PC gets a message invisible to the user that looks like it comes from the other computer, telling it to stop communicating. But neither message originated from the other computer â?? it comes from Comcast. If it were a telephone conversation, it would be like the operator breaking into the conversation, telling each talker in the voice of the other: “Sorry, I have to hang up. Good bye.”

By spoofing (pretending to be another computer), Comcast is undermining the credibility of its network. Its behavior resembles that of a Chinese ISP, doing its part to maintain the Great Firewall of China, rather than an American ISP (or am I giving Comcast too much credit?). Comcast is also strengthening arguments for the FCC to label it a common carrier so it doesn’t interfere with the network traffic of its customers. Ultimately, the FCC needs to step up and slap Comcast for its spoofing, which is absolutely not in the public interest.

If Comcast wishes to limit the amount of bandwidth used by its customers, it should cap download speed and total bandwidth available for X time period. It then needs to appropriately set expectations by communicating such limits with customers and providing tools for customers to monitor their usage. The last thing it should be doing is filtering or interfering with traffic based on application type, destination, recipient, etc.

A note about Bit Torrent. It is a file sharing tool that, although used for illicit purposes, does have legitimate uses. For example, Silkroad Online, a free massively-multiplayer online role-playing game (MMORPG), is distributed using BitTorrent. To get the game, you download a 865 MB file. Normally, you would download the game from a single server. That server would be limited by the number of simultaneous connections it has available. For sake of argument, let’s say it has 100 available connections. If 200 people try to download the same file, the first 100 will take all those connection slots. The other 100 users attempting to connect will get an error message to that effect. Each person will need to wait for a slot to free up before they can download the game. Because it takes a long time (one or two hours) for each person to completely download such a large file, those second 100 people will be waiting for quite a long time before they can begin their downloads. Making the game available as a BitTorrent distributes the game more efficiently and limits those error messages game users receive. Instead of setting up several servers to handle traffic for those few people, the company can set up a few seed computers and distribute its game to many more (theoretically, at least).

U.S. Senate slams free speech

It seems to me that some elected representatives to the Federal government don’t respect the free speech rights of citizens to criticize government officials. Sadly, one of those is my elected representative, Dianne Feinstein.

Senate Approves Resolution Denouncing MoveOn.org Ad – New York Times

WASHINGTON, Sept. 20 â?? The Senate approved a resolution on Thursday denouncing the liberal antiwar group MoveOn.org over an advertisement that questioned the credibility of Gen. David H. Petraeus, the American commander in Iraq.

At a White House news conference, President Bush called the advertisement disgusting and said it was an attack not only on General Petraeus but also on the entire American military.

General Petraeus is a government official. As such, he is valid subject of criticism. Here, MoveOn felt it necessary to pay for an advertisement pointing out that the General has not been forthcoming to the American people in his evaluations of the war and, as policy, waters down essential statistics used to evaluate the war so things appear more rosy.

I disagree with President Bush that this is an attack on the American military. First, he’s overused and abused the “attack on the military” rhetoric. It seems that the Bush Administration categorizes every criticism of the war as an attack on the military and each soldier. Time to turn off the broken record that cries wolf. Second, criticism of the war itself and the officials leading the war does not equal an attack on the soldiers fighting the war. The attack here is levied at the policies of the military brass, particularly its leader General Petraeus, who make the decisions about how to wage this unpopular war. The ad brings up several good points regarding statements the General has made, his role in the war, and his policies that understate how many people have died. Nothing in the ad appears to criticize the ground troops. Third, the only reason the President finds the ad disgusting is because he’s directly responsible for the policies the ad criticizes the General for.

With that in mind, the Senate resolution is a travesty and violates the spirit of our Constitution, if not the actual text. It is irresponsible for the Senate to consider rebuking any critique of how the government operates, no matter how crude, rude, indecent, or obnoxious it gets. The First Amendment was enacted specifically to give citizens the freedom to criticize the government. The Founding Fathers themselves had a nasty habit of criticizing the English Crown when it was their government and felt it prudent to explicitly provide free speech rights to all when creating their fledgling government.

I am not a member of MoveOn, have never given it money, and don’t really like its tactics. That said, it is the right of the MoveOn membership to criticize our military leaders for their policies and statements.

Also covered in: The Washington Post and The Los Angeles Times.

Suggested reading: Animal Farm

An indecent Fox in the hen house

By now, you’ve probably heard that Fox’s censors were kept busy during the Emmy awards, though they were a little too trigger happy. It appears to me that Fox making a big fat statement that it intends to over-censor if the indecency laws aren’t changed. I’ll bet Fox conveniently chose to take its stand during a show without an audience since Family Guy and The Simpsons have each undoubtedly made similar statements in the past.

First is Sally Field who said: “Let’s face it, if mothers ruled the world there would be no goddamn wars in the first place.”
Here is the censored version from Fox – Watch at 1:50.

Here is the uncensored version from elsewhere – watch at: 1:25

Second is Ray Romano who said: “Frasier is screwing my wife.” I could only find a copy of the censored video. The quote is found in quite a few places including SF Gate.