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Grex > Coop8 > #75: "..computer networks deserve the highest protection from gummint ntrusion." |  |
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| 25 new of 73 responses total. |
remmers
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response 25 of 73:
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Jun 13 17:11 UTC 1996 |
I uploaded the complete text of the decision - all 250kb of it.
It's in /home/remmers/decision.txt. Recommended reading.
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dpc
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response 26 of 73:
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Jun 13 17:20 UTC 1996 |
The decision is terrific not only because of its extreme breadth, but
because it was *unanimous.* The original temporary restraining order
was issued by only one judge, and he only restrained one provision
of the CDA. Yesterday, he agreed that the whole thing was unconstitutional.
A decision by a unanimous panel is much more likely to be upheld
on appeal than a decision by a split panel.
I can't resist adding my personal twist to this case.
Folks may remember that last year I represented Jake Baker, the
Internet sex fantasist. Criminal charges against him were dismissed
in Federal District Court on constitutional grounds; the US has appealed
to the Sixth Circuit.
The Baker case triggered the writing of the CDA.
On April 17 of this year, there was a panel discussion about the
CDA at the U-M. One of the participants was Bruce Taylor, a right-wing
lawyer who helped draft the CDA. He said "Jake Baker was one of the
things that triggered a lot of concerns in Congress."
Soo - this decision is "Jake Baker's Revenge."
Muahahahahaha!!!
Let's all join in Tom Lehrer's immortal song: "Smut. I love
it. Give me smut and nothing but. Stories of tortures told by
debauchers, lurid, licentious, and vile--make me smile!"
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albaugh
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response 27 of 73:
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Jun 13 17:28 UTC 1996 |
Author/source: American Civil Liberties Union
For more information on yesterday's court ruling, goto:
http://www.aclu.org/issues/cyber/trial.htm
For the full text of the 200 page ruling, goto:
http://www.aclu.org/court/cdadec.html
- Doug Stoyer
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
ACLU LAUDS JUDGES' RULING PROTECTING FREE SPEECH IN CYBERSPACE
FOR IMMEDIATE RELEASE
June 12, 1996
PHILADELPHIA-- In a resounding victory for First Amendment rights
everywhere, a three-judge panel in federal district court in
Philadelphia today struck down a law that would criminalize free
speech in cyberspace.
In a 3-0 decision with three separate opinions issued by Chief
Judge Dolores K. Sloviter, Judge Stewart Dalzell, and Judge
Buckwalter, the court granted a motion for preliminary injunction
on "indecency" provisions of the Communications Decency Act.
"Cutting through the acronyms and argot that littered hearing
testimony, the Internet may fairly be regarded as a never-ending
worldwide conversation. The Government may not, through the CDA,
interrupt that conversation," Judge Stewart Dalzell wrote in his
opinion. "As the most participatory form of mass speech yet
developed, the Internet deserves the highest protection from
governmental intrusion."
Speaking at a press conference today in New York, the ACLU lauded
the court's ruling. "It's only a handful of times in a century
that a court is called upon to decide what the rules will be in a
new communications medium," said Christopher Hansen, one of the
lawyers who argued the case for the ACLU. "Today's decision
reaffirms that, no matter what the medium, the message should be
protected by the First Amendment ."
Addressing the ACLU's argument that the "indecency" and "patently
offensive" provisions of the CDA were impermissibly vague, Judge
Ronald Buckwalter wrote: "I continue to believe that the word
"indecent " is unconstitutionally vague, and I find that the
terms "in context" and "patently offensive" are also so vague as
to violate the First and Fifth Amendments."
"This is a decision of inestimable historic
importance," said Marjorie Heins, a member of the legal
team who argued the case before the court. "For the
first time, the court has clearly stated that standards
like ?indecency' and ?patently offensive' are
impermissibly vague and therefore unacceptable for
regulating free speech by a free people."
Throughout the course of the trial, the court expressed concern
that works of serious literary merit would be censored under the
CDA, and that individuals would be held criminally liable for
violations.
As Chief Judge Dolores K. Sloviter noted in her opinion, trusting
the government to limit the CDA's application in a way that would
avoid prosecution for works of serious literary or artistic merit
"would require a broad trust indeed from a generation of judges
not far removed from the attacks on James Joyce's Ulysses as
obscene."
Summing up her opinion, Judge Sloviter wrote: "The bottom line is
that the First Amendment should not be interpreted to require us
to entrust the protection it affords to the judgment of
prosecutors. Prosecutors come and go...The First Amendment
remains to give protection to future generation as well."
The ACLU filed its legal challenge to the Communications Decency
Act on February 8, the day after it was signed into law by
President Clinton, saying that its chilling effects would be felt
immediately throughout the online world. After an initial hearing
before Judge Ronald L. Buckwalter, the three-judge panel was
convened to hear the case:. (Note: see Chronology for details on
ACLU v. Reno.)
The ACLU's suit argued that provisions of the CDA were
unconstitutional because they would criminalize expression that
is protected by the First Amendment. The legislation would also
violate constitutional rights to privacy, the ACLU asserted,
because it would criminalize certain private e-mail
correspondence between individuals.
During five scheduled days of trial, which took place during
March, April and May, the court heard from 15 witnesses for the
plaintiffs, who testified about the technological and
sociological nature of the Internet and how the censorship law
would effectively ban most "indecent" speech in cyberspace.
The ACLU brought its case on behalf of 20 individuals and
organizations that provide information via the Internet --
including itself -- moving quickly because it feared that the
telecommunications legislation would have an immediate impact on
the Internet. In addition to the ACLU, plaintiffs in the case
including the Electronic Privacy Information Center, Critical
Path AIDS Project, Human Rights Watch, the Institute for Global
Communication, the journalist Brock Meeks; the Electronic
Frontier Foundation, and Planned Parenthood Federation of
America. A second case, brought by the American Library
Association, was consolidated with ACLU v. Reno on February 26,
1996.
Several plaintiffs, including the ACLU and Planned Parenthood
Federation of America, also sought relief from the electronic
"gag rule" version of the Comstock Law, criminalizing online
speech about abortion. Today's decision did not address that
aspect of the case, because the government had conceded earlier
that the abortion speech restrictions were unconstitutional.
Lawyers for the ACLU appearing before the judges are Christopher
Hansen, Marjorie Heins, Ann Beeson, and Stefan Presser, legal
director of the ACLU of Pennsylvania.
Copyright 1996, The American Civil Liberties Union
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albaugh
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response 28 of 73:
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Jun 13 17:31 UTC 1996 |
Are there things that under existing "obscenity" laws would be unlawful to
appear "on the internet" if they were available to all, including minors?
What if these things could be somehow restricted to adult access only,
would they then be OK? ("lawful")
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robh
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response 29 of 73:
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Jun 13 17:43 UTC 1996 |
I believe that "obscene" material is illegal to own, no matter
what your age.
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danr
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response 30 of 73:
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Jun 13 19:06 UTC 1996 |
Speaking of the ACLU, the Michigan chapter will be holding their state
convention in Ann Arbor on Saturday, June 19, 1996. The event is an
all-day affair and costs $40, which includes lunch. Nadine Strossen, ACLU
President, will deliver the keynote speech. Make your check payable
to ACLU Fund of Michigan and send it to: ACLU, 1249 Washington Blvd.,
Suite 2910, Detroit, MI 48226.
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tsty
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response 31 of 73:
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Jun 13 19:47 UTC 1996 |
and the next trick for us is to use the philospohy of this decision
as the basis for preventing the gummint from collecting all our private
encryption keys ...just in case.
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janc
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response 32 of 73:
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Jun 13 20:18 UTC 1996 |
Oh, I wouldn't worry about that one. The government is trying to hold back
the tide on that issue. There is simply no possibility of their succeeding.
I can't say I think much of the two "newspaper" articles posted above. The
first is written by EFF and consists of EFF people quoting each other. The
second is written by the ACLU and consists of ACLU people quoting each other.
This kind of mock-reporting is a bit obnoxious, however grateful I am to those
two organizations for their efforts.
Anyway, here is the un-adulterated (I think) conclusion of the decision:
| E. Conclusion
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| Cutting through the acronyms and argot that littered the
| hearing testimony, the Internet may fairly be regarded as a never-
| ending worldwide conversation. The Government may not, through the
| CDA, interrupt that conversation. As the most participatory form
| of mass speech yet developed, the Internet deserves the highest
| protection from governmental intrusion.
| True it is that many find some of the speech on the Internet
| to be offensive, and amid the din of cyberspace many hear discordant
| voices that they regard as indecent. The absence of governmental
| regulation of Internet content has unquestionably produced a kind of
| chaos, but as one of plaintiffs' experts put it with such resonance
| at the hearing:
| What achieved success was the very chaos that the
| Internet is. The strength of the Internet is that
| chaos.[23]
| Just as the strength of the Internet is chaos, so the strength of our
| liberty depends upon the chaos and cacophony of the unfettered speech
| the First Amendment protects.
| For these reasons, I without hesitation hold that the CDA is
| unconstitutional on its face.
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albaugh
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response 33 of 73:
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Jun 13 20:34 UTC 1996 |
Re: ACLU picnic: June 19 isn't a Saturday...
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scg
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response 34 of 73:
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Jun 13 22:48 UTC 1996 |
I'm interested in seeing whawt the other side has to say about this. Reading
quotes from people on our side all day gets a little boring.
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dpc
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response 35 of 73:
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Jun 13 23:09 UTC 1996 |
The other side is reconsidering its options. The Govt says it's not
certain it will appeal. 8-)
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cathy
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response 36 of 73:
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Jun 13 23:29 UTC 1996 |
I thought they were required to by a provision of the telecomm bill?
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adbarr
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response 37 of 73:
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Jun 14 00:35 UTC 1996 |
Next move: attack the judges, and tne courts.
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krj
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response 38 of 73:
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Jun 14 04:42 UTC 1996 |
Right: expect the pro-censorship forces to begin attacking liberal
judges and the politicians who appoint them.
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srw
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response 39 of 73:
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Jun 14 07:19 UTC 1996 |
I especially like the part of the opinions that concludes that the internet
should be afforded at least as much license for free speech as is afforded
to the print medium. I have strongly believed that this principle should be
established as such, and I hope that this ruling will begin the process of
establishing it as a principle.
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dpc
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response 40 of 73:
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Jun 14 16:07 UTC 1996 |
No, cathy, the bill just says that *if* there is an appeal it will
go directly to the Supremes. In nearly all other cases, the loser
has to ask "mother may I?" of the Supremes and get the Court's permission
to appeal. Congress just eliminated that step.
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rcurl
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response 41 of 73:
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Jun 14 17:52 UTC 1996 |
That was probably unconstitutional too. Congress can't preempt the judicial
system to force it to bypass legal procedures.
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tsty
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response 42 of 73:
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Jun 14 18:00 UTC 1996 |
i was wondering about that, too.
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dpc
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response 43 of 73:
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Jun 14 20:41 UTC 1996 |
Actually, Congress *does* control the procedures in the Federal courts
in two respects. First, unlike in Michigan, where the Michigan Supreme
Court promulgates the rules of procedure, Congress actually promulgates
Federal rules of procedure. Second, Congress can, and sometimes does,
grant jurisdiction to the Federal and appellate courts by statute for
particular subject matter. That's what Congress did here.
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rcurl
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response 44 of 73:
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Jun 14 22:02 UTC 1996 |
Well, that's not what the Constitution says. It says "The judicial power
of the United States, shall be vested in one Supreme Court, and in such
inferior courts as the Congress may from time to time ordain and
establish..... The judicial power shall extend to all cases, in law and
equity, arising under this Constitution, the laws of the United States, and
treaties made...etc. So yes, Congress ordains and establishes inferior
courts, but there is nothing there saying Congress can *instruct* the courts
on how they will deal with cases, even though the cases arise under laws
adopted by Congress. I still think Congress was out of order in saying how
the judicial process should proceed.
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dpc
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response 45 of 73:
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Jun 14 23:58 UTC 1996 |
Sorry, rcurl, but Congress hasn't taken away the Supremes' jurisdiction.
It has simply stated, in the way it has frequently done, that the
Supremes have direct "appeal by right" jurisdiction in this CDA
case, instead of the normal "grant of certiorari" (mother may I)
appellate route (which, by the way, isn't mentioned in the Constitution
and was also established by Congress.)
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adbarr
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response 46 of 73:
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Jun 15 00:59 UTC 1996 |
I tend to agree with rcurl. I don't think the United States Congress, or any
other group, can change the mandates of the Constitution, withtout complying
with the constituting document. Perhaps we are talking apples vs kumquats
here. ?? I guess the USC could just ignore this. Am I right? Then, would not
the panel's decision become the law of the land?
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adbarr
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response 47 of 73:
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Jun 15 01:42 UTC 1996 |
Does Congress establish United States Supreme Court jurisdiction? If so, they
control the Court. Lock, stock, and barrel. I thought different. Guess
one should run for Congress - control money, control interpretation of law.
What's next?
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dpc
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response 48 of 73:
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Jun 15 02:23 UTC 1996 |
This is not an easy area of the law. But I am certain that Congress
acted lawfully in conferring appellate jurisdiction of right, rather
than by leave, upon the Supremes. Nothing in the Constitution
mentions how appellate jurisdiction is supposed to work.
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aaron
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response 49 of 73:
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Jun 15 12:23 UTC 1996 |
Read a bit further down in the Constitution....
"In all cases affecting ambassadors, other public ministers and consuls,
and those in which a State shall be a party, the Supreme Court shall have
original jurisdiction. In all the other cases before mentioned, the
Supreme Court shall have appellate jurisdiction, both as to law and fact,
with such exceptions, and under such regulations, as the Congress shall make."
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