GaneshaFish.com » civil liberties

Silly Redneck

jfischer1975 — Thu, 01 Jul 2010 13:36:57 +0000

Anyone with a law school education knows that state action is required before anyone can whine about having their free speech rights taken away. Well, okay — you can whine about it, but that’s about it. You can’t get a court to step in and fix your problem, unless some government entity is involved. Not to go too far off track here, but this is the whole idea behind the Constitution. It’s a big long list of the things that government isn’t supposed to do, and a really short list of what it *may* do.

Enough 1790′s background; let’s talk 2010. If you’re a redneck (this is not necessarily a requirement, but it helps), and you decide to publish a “newspaper” (not sure what else to call it) that describes your political ideas, don’t get all uppity if the local KFC won’t let you put it on the take-one-free rack, between the Auto Trader and the Keels and Wheels. It’s not a constitutional issue.

The scary part of this story is that you have to wade two thirds of the way into this Fox News article before they reveal that little tid bit to the reader who isn’t in the know. How many of those readers have the kind of attention span necessary to make it that far? More than likely, the majority start seeing red after reading the headline, and three sentences in, they’re sputtering some nonsense about “they’re ruinin’ are country” and clicking over to something more soothing. Gold star for journalistic integrity to Fox News on this one!

This article was originally posted on The Legal Satyricon

From the “Thank God Congress Has Nothing Better to Do” Desk: Four U.S. Senators Write Stern Letter to Facebook

jfischer1975 — Thu, 29 Apr 2010 19:02:36 +0000

Plenty of whiny types are up in arms over Facebook’s recent “personalization” improvements, which automatically link fan pages for companies, bands, television shows, etc. to users’ profiles, based on their self-proclaimed favorites. Also, when a user specifies their favorite music, movies, books, and the like, that information may now be accessed more readily by parties not in that users’ friend list.

Critics complain that this gives unwanted access to evil corporations, who will use gathered information to exploit their consumers. This week four U.S. Senators, including asshat Al Franken, have put their displeasure with the social networking giant onto paper and mailed it to Facebook founder Mark Zuckerberg.

No doubt these idiots are only responding to angry phone calls from their constituents, but how many votes would they really lose by explaining that this really isn’t the kind of thing the federal government should be getting involved in? Not everything that someone can gripe about should be the subject of a congressional investigation. If you don’t like the way Facebook treats its users, you don’t have to be a member.

This article was originally published on The Legal Satyricon.

3d Circuit: “No child porn charges in sexting case”

jfischer1975 — Fri, 19 Mar 2010 17:41:23 +0000

The Court of Appeals for the Third Circuit handed down its decision this week in the Pennsylvania “sexting” case, in which a prosecutor threatened to press child porn charges against a group of teenage girls for sending cell phone pictures of themselves in bras and underwear. You can read the infamous J. DeVoy’s anti-gender-bias coverage of the oral arguments here. In upholding the preliminary injunction requested by the girls’ parents, the Third has declared that District Attorney George P. Skumanick, Jr., cannot use the threat of prosecution to bully them into a court-ordered “re-education” program. (source)

While education may be the right medicine (if you believe that there’s some disease), that decision is for the teens and their parents to make — not some jackass, let’s-think-outside-the-box DA who thinks he somehow knows what’s best. As much as I hate the ACLU for politically motivated meddling in the other direction, for once I’m glad they’re helping these families file a civil rights claim against Mr. Skumanick. (Read that complaint here.)

This article was originally posted on The Legal Satyricon

An Open Letter to Television Writers and Producers re:Civilian Consultants

jfischer1975 — Thu, 04 Mar 2010 22:50:09 +0000

Dear Television Writers and Producers:

Let me start off by saying that I am a huge fan of television and that I particularly enjoy the pervasive one-hour episodic drama genre. Cop and lawyer shows are my absolute favorite, despite the fact that they often present embellishments and minor procedural inaccuracies. One of the only things that a legal education is guaranteed to do is suck all of the enjoyment out of watching courtroom shows that play it fast and loose with the formalities of litigation, but I’ve learned to ignore most of the discomfort that comes from watching a make-believe prosecutor present character evidence in his case-in-chief. I hardly cringe anymore when I hear scripted dialog about “robbing” a house or “murdering” an animal. I am writing today, however, to tell you of a related faux pas that I haven’t been able to ignore.

“Are you saying that our show is unoriginal?”

As I’m sure you are aware, a subclass of the traditional police show has been popping up with greater frequency in recent years. The basic premise for these shows is this: A civilian “consultant” is brought in by a law enforcement agency, based on some enhanced knowledge or skill possessed by said civilian, thereby magically improving the agency’s crime solving abilities. Amongst this subclass, I am a religious viewer of Psych, The Mentalist, Castle, White Collar, Fringe, and Bones (I can’t stand this one, to be honest, but it’s my wife’s favorite), to name a few. With varying degrees of success, each of these programs attempts to present a compelling dynamic between straight-laced cops and one or more outside-the-box thinkers, who presumably aren’t bound by the paradigm that you’re typical “G-man” occupies. It’s a classic odd couple arrangement – rambunctious corner cutter plays off of an endearing straight man. My issue lies with one particular outside-the-box solution that is floated again and again on these shows.

Invariably, twenty-five minutes or so into an episode, after the murder victim’s body has been found, after the initial “gimme” suspect has been cleared of guilt, the investigation hits a snag, wherein the good guys’ quest for truth is thwarted. They could bust the whole case wide open, if only it weren’t for that new suspect’s pesky constitutional rights.

Ah! – but now the *civilian* consultant has an idea. He or she will swoop in and do that which the government can’t… because he or she isn’t a cop. They can enter that guy’s house without a warrant (violating his Fourth Amendment rights). They can continue to question that suspect, after she has asserted her right to remain silent (violating her Fifth Amendment rights). Sure, you can beat a confession out of that stubborn criminal (Fifth again). His lawyer isn’t there after formal charges have been filed? No problem; just have the consultant talk to him (Sixth Amendment violation). Through it all, our hero boldly proclaims with an “aw shucks” grin, “I’m not employed by law enforcement, so I don’t have to worry about all of that nonsense.” Are you KIDDING ME?!?!? Who is it in TV land that thinks that is true?

“It’s okay; I’ll just let Blondie ask the questions.”

As far as I’m aware, the current state of the law indicates that civilians who are acting on behalf of law enforcement, whether formally employed by the government or not, are bound by the same standards as law enforcement officials. This means that when Patrick Jane coerces a confession out of a suspect, it’s no less of a constitutional violation than if Agent Rigsby did it.

I can hear your response clear as day: “So, what’s the big deal? It’s fiction, right?” True. But criminal procedure is a rapidly changing and delicate area of the law – one that’s based in large part on perception. Courts of Appeal and the United States Supreme Court make decisions all the time that affect how the Bill of Rights governs the conduct of law enforcement officials. There is a nearly constant ebb and flow of restriction and permission, based on judicial precedent, that dictates what conduct is kosher and which investigative procedures violate the Constitution. As an example, almost no one in the general public fifty years ago had any idea that they had the right to remain silent when the cops questioned them. Now, in large part thanks to television, nearly every American can recite verbatim the warnings that the U.S. Supreme Court ordered police officers to give in its Miranda v. Arizona opinion.

The more distressing scenario involves the circumstances under which the police need to obtain a warrant before searching. The current jurisprudence dictates that a police officer is only “searching” an area, within the meaning of the Fourth Amendment (meaning they need a warrant, in the absence of extenuating circumstances), if you have an expectation of privacy in that area. Guess who gets to decide whether you have an expectation of privacy in a particular area or thing. At the end of the day, its a majority of the unelected Justices who sit on the United States Supreme Court – i.e., five out of nine people who you didn’t vote for and can’t vote out if you don’t like their conclusions. How do they decide whether you have an expectation of privacy? Your guess is as good as mine, but the written opinions seem to indicate that its based on what they think the public opinion is. If the prevailing conventional wisdom is that there’s no expectation of privacy in a some situation, presto chango, there isn’t one.

“I’m changing the scope of the Fourth Amendment, using only the power of my mind.”

I know it may seem like a stretch that television would dictate what the Constitution means, but it also doesn’t look like these types of shows are going away any time soon either. Thanks to the popularity of CSI: Crime Scene Investigation, everyone now believes that i) there’s blood and/or semen on every single surface you see; ii) it takes a couple of hours to analyze said DNA and determine whodunit; and iii) if the DA doesn’t present that evidence in court, he must be hiding something or the police screwed up. Ironically, the cure IMHO is the same as the disease: Hire a legal consultant to give input on issues of criminal procedure. It doesn’t have to be a fancy, expensive one. A first-year associate, fresh off of studying for the Bar Exam is likely just as good – and I have it on good authority that there are plenty of those out there looking for a job. Now get back to work, and develop that next pilot, with Adam Sandler on a desert island, falling in love with a coconut.

Sincerely,
Jason A. Fischer
Concerned Attorney Blogger

The People’s Republic of Brooklyn

jfischer1975 — Thu, 26 Nov 2009 18:27:33 +0000

“All your property rights are belong to us!”

Thanks to the socialist wing of our highest court, the language of the Fifth Amendment has been perverted to include economic development as a justifiable reason for disregarding private property rights. In the latest episode of “how can the government make sex to me, without even buying me a drink first,” a developer in New York has convinced that state’s highest court that the New Jersey Nets need a new arena more than 146 people need to keep their homes (source).

In case you’re not familiar with United States property law, I’ll give a quick primer. Owning “real property,” here in the U.S., essentially amounts to having the privilege of using U.S. laws and U.S. courts to enforce your rights against others. If you don’t want your neighbor to build that fence 3 feet into your back yard, you can file a law suit and prevent him from doing that. Since property rights come from the government, the government can potentially refuse to recognize your rights. The Bill of Rights to our Constitution, recognizing this, includes a limitation on our government’s ability to just up and decide to turn you out of your house. The Fifth Amendment states, among other things, that “private property [shall not] be taken for public use, without just compensation.”

Seems fair. If your community needs a school or a road, and the only way that public utility can be built is to dispossess someone of their property, the government can do it, but they have to pay the fair value. It would be better if property rights were inviolate, but clearly it’s going to come up occasionally. The Founders came up with a plan, i.e., eminent domain, to make it reasonably just. That worked just fine for 200 years — until some limousine liberal Supreme Court Justices decided that they knew what’s best for all of us, in their infinite paternal benevolence.

In 2005, the Court ruled 5 to 4 that handing people’s homes over to private real estate developers could be considered “public use,” within the meaning of the Fifth Amendment. Luckily, most red states have reacted by providing state law protection for property rights (thanks be to his Noodly Goodness for the Tenth Amendment). But the Empire State (guess which way they typically vote) is apparently okay with assisting private real estate developers in perpetrating a land grab in Brooklyn. The following is a dramatization of what occurred:

So on this Thanksgiving, make sure you say thank you to Justice Stevens and his socialist, intellectual elitist colleges, Souter, Ginsburg, and Breyer, for taking a collective crap on the vision of our Founders — who gave King George the finger for, among other reasons, disrespecting property rights of non-royals. (To this day, Britons still have to rent property from the Crown, rather than own it.) It certainly is confidence inspiring to know that a real estate developer can march into a New York court, waving a page from Hugo Chávez’s playbook, and come away with an endorsement. Clearly, we’re moving in the right direction as a nation.

This article was originally posted on The Legal Satyricon.

DHS Issues New Border Search Rules for Electronic Media

jfischer1975 — Sat, 29 Aug 2009 14:44:07 +0000

The Fourth Amendment to the U.S. Constitution protects "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures . . . (source)." Since 9/11, a good number of feathers have been ruffled, debating what constitutes an "unreasonable search." Pundits a plenty have been ranting about "privacy this" and "warrantless that," but the simple truth is that there are many situations where it is not "unreasonable" for the government to conduct a "search," without first obtaining a warrant.

A classic example is when officials, employed by U.S. Immigration and Customs Enforcement (ICE) or U.S. Customs and Border Patrol (CBP), search your possessions upon entry into the United States from a foreign country. Mechanically, the presumption is raised that you consent to the search by entering the United States. If you don’t want to be searched, don’t come in. Ostensibly, the goal is to prevent certain items from being smuggled into the country — drugs, explosives, etc. — or, in the words of our Department of Homeland Security (DHS), "to combat transnational crime and terrorism . . . (source)." That all seems reasonable, but a hardcore civil libertarian would likely quote Benjamin Franklin in opposition: "Anyone who trades liberty for security deserves neither liberty nor security (source)."

Hang on there, Benji — an act of "terrorism" in your day was dumping some Lipton in the harbor. It’s pretty hard to uphold the standard of the Founders in the face of more modern concerns (e.g., dirty bombs, heroin, anthrax), but try we must. Unfortunately, it seems like our government doesn’t try very hard sometimes, as demonstrated recently by DHS, which is responsible for controlling ICE and CBP.

In the face of these more modern threats, coupled with advances in technology that make it possible to transport large amounts of data, ICE and CBP have in recent years begun detaining and searching digital media — e.g., laptops, portable hard drives, thumb drives, CDs, DVDs, iPods, yadda, yadda, yadda. What are they looking for, you ask? Answer:

Searches of electronic media, permitted by law and carried out at borders and ports of entry, are vital to detecting information that poses serious harm to the United States, including terrorist plans, or constitutes criminal activity—such as possession of child pornography and trademark or copyright infringement. (source)

Terrorist plans — I get it. IP infringement — I don’t. Child porn — really? Gotta throw that one in, so that anyone who makes a stink will look like a pedophile, I guess.

Come on, people. Get mad. They’re insulting your intelligence here. DHS is charged with protecting the security of the homeland, not carrying out the marching orders of the MPAA or RIAA, all without the procedural protections of a warrant. We’re not just talking about rifling through my dirty underwear anymore, looking for that kilo of cocaine. You’re potentially reading my emails, skimming my privileged work product, or ogling the naughty pictures I took of my wife while we were having sexy time — all without a lick of probable cause that I’ve done anything illegal. Not Cool.

So the question remains: How do you authorize customs officials to look for the really bad stuff (e.g., shoe bomb schematics), and, at the same time, protect the stuff that they should need a warrant to view?

To quiet concerns about potential violations of privacy, DHS issued directives this week to ICE and CBP, supposedly ordering those agencies to behave. The new directives contain a number of "safeguards" that are designed "strike the balance between respecting the civil liberties and privacy of all travelers while ensuring DHS can take the lawful actions necessary to secure our borders (source)." They read like a bunch of false measures (to me, anyway). A few examples:

Providing a leaflet to travelers, whose digital media has been detained, explaining any available administrative recourse
Hanging signs around borders and ports of entry, informing that digital media is subject to search and potential detention
Requiring approval of a supervisor to extend a detention of digital media beyond thirty days
Allowing only a supervisor to copy information from detained digital media
Directing a customs officer to consult with local counsel or the U.S. Attorney’s Office, if a traveler asserts that the information contained in the digital media is subject to attorney-client privilege

You can read the entire "Privacy Impact Statement" here.

I don’t know what the right answer is to the question posed above, but I do know that I expect my government to respect the notion of freedom that this nation was founded upon. We left Britain, at least in part, because the police could stop anyone on the street at any time and demand to see their papers. The Fourth Amendment was carefully crafted to prevent this type of abuse in the United States. @DHS: ur doin’ it wrong.

This story was originally published on The Legal Satyricon.

In Lakeland, Florida, saying “Im’ma kill me a cop one day” will get you two years in prison

jfischer1975 — Sat, 01 Aug 2009 08:44:37 +0000

A Lakeland, FL man has been sentenced to two years in prison for recording a rap song entitled "Kill Me a Cop" (source). It seems that the local sheriff’s office considers the lyrics to be a credible threat of imminent violence — never mind the fact that the source of that "imminent" threat was in county jail on parole violation when "apprehended."

This story was originally published on The Legal Satyricon.

Freedom of the Press (or lack thereof) in Iran

jfischer1975 — Tue, 28 Apr 2009 18:00:55 +0000

Saberi is a former North Dakota beauty queen

Conservative blogger, Michelle Malkin, reports on something that both sides of the political aisle should be able to agree about:

U.S. journalist Roxana Saberi turns 32 today in an Iranian prison. After an hour-long trial, she was sentenced to eight years behind bars for “espionage.” She was initially told she was arrested for buying bootleg wine, and then because she was working as a journalist without a license. She’s now on day five of a hunger strike. Today, one of her defense lawyers was denied access to her.

This story is shocking and tragic — provided you feel strongly about the kind of personal liberty that we enjoy here in the U.S.

This story was originally published on The Legal Satyricon.

How Much is Your Virginity Worth?: Lessons in Economics and Federalism

jfischer1975 — Mon, 26 Jan 2009 14:35:42 +0000

A twenty-two year old Nevada woman has placed her virginity up for grabs in an online auction, where the bidding has reportedly reached over $3.7 million. The transaction has caught the attention of some religious groups, who would like the federal government to intervene. However, because prostitution is legal in the state of Nevada, this particular sale of personal services will not be stopped, even though it may be advertised on the Internet – which can be accessed in states where prostitution is illegal.

One astute legal scholar had this to say about the matter:

It’s a First Amendment issue. You can advertise goods or services that are illegal where they’re advertised but legal where they’re performed. What’s she’s advertising is as legal as toast with the crust cut off where she is. (source)

* * *

WARNING, RANT ALERT

(what follows is the individual opinion of the author)

Here again, we have the latest example of some whackjob in the Bible belt confusing legality with morality. In case you, the reader is confused, they are not always the same thing, and arguably never should be – at least at the federal level.

The idea here is that “morality” is another word for the standards of a particular community. Those standards are subjective, i.e., everyone has their own idea of what is moral and what isn’t, and no one is wrong for having a different idea than their next-door neighbor – with a couple of rare exceptions, like pedophiles. Generally, you can get a group of people together who agree on a particular moral standard, regarding a particular issue. However, the larger you make the group, the less likely it is that the group will agree, and there’s no really good reason why 51% of the people should be able to dictate their subjective idea of what is moral to the other 49%.

In the United States, our system of government was designed to reflect this reality. Local governments (e.g., state, county, city, homeowners association, etc.) are the ones in the best position to, if it is absolutely necessary, pass a law/regulation that is based on the morality of the community that those governments represent. Our federal government should not ever be taking action based on some perceived moral standard. The above-described news item illustrates this point quite well.

The community of people that live in the state of Nevada have decided for themselves that prostitution is okay. They have chosen to elect officials who recognize this particular moral standard, and those officials have enacted legislation that reflects that standard. The people of Nevada are free to change their minds and elect new officials who might change the law. This scenario accurately depicts the dream of our Founders.

Outrage over some “spillage” of immorality into other communities is a weak excuse for demanding some sweeping federal standard that is contrary to the laws of Nevada. The First Amendment was written specifically to prevent this type of thing. If you don’t like it, don’t look at it – you are free to make the decision for yourself. Have the courtesy to let the rest of us do the same – for ourselves.

This story was originally published on The Legal Satyricon.