Posts Tagged ‘Supreme Court’

Warning against the danger of criminalizing provocative Facebook postings

Monday, September 8, 2014 at 1:00 pm by

dislikeWeighing in on a case that will significantly impact expression on Facebook, Twitter and other social networks, The Rutherford Institute has asked the U.S. Supreme Court to reverse the conviction of a Pennsylvania man who was charged with making unlawful threats (it was never proven that he intended to threaten anyone) and sentenced to 44 months in jail after he posted allusions to popular song lyrics and comedy routines on his Facebook page.

The Rutherford Institute’s amicus brief in Anthony D. Elonis v. United States of America argues that the First Amendment protects even inflammatory statements that may give offense or cause concern to others unless the statements were a credible threat to engage in violence against another and made by the defendant with the intent to cause fear in the alleged victim. The case arises out of Facebook postings made by Anthony Elonis expressing his anger about events in his life, and which were based upon rap lyrics of artists such as Eminem and a comedy sketch of the group The Whitest Kids U’ Know. (more…)

The Court finally shows up for work (Part II)

Monday, June 30, 2014 at 8:12 am by

Part I of this series explained the Supreme Court’s decision in Riley v. California, and why it represents so dramatic an evolution from prior cases where the Court failed to grasp the implications of digital technology for the privacy values pervading the Bill of Rights. This follow-up post explains the social forces animating the decision, with crucial implications for any number of social issues going forward.

Where it came from: is the Court “in front,” or behind?

It remains important to recognize how a broader social debate made possible last week’s decision in Riley v. California. Only in examining the influence of mass debate on elite legal discourse can we understand how digital privacy — or other contested rights — will evolve in the future.

A long-running debate among legal theorists questions whether, and how, courts are influenced by broader public debates beyond the courtroom. On the one hand, courts are inherently reactive institutions.

On the other hand, courts have occasionally advanced justice while the political branches remain mired in majoritarian prejudice: in Brown vs Board, the Court — not Congress — forced desegregation on the South, just as Goodridge v. Dep’t of Public Health placed a Massachusetts court near the front of the marriage equality movement (disclosure: I was part of the legal team representing the mayor of new Paltz, NY in a 2004 marriage equality case).

Brown vs. Board is relevant not only in demonstrating an example of the Court’s occasional proactivity, but also in rejecting “separate but equal” systems for people of different races. Lost in most commentary about the Riley decision has been an awareness of its serious implications for race, which in turn help reveal whether Riley reflects a Court “out in front,” or instead, one lagging behind American society.


The Court finally shows up for work (Part I)

Thursday, June 26, 2014 at 6:11 pm by

The Supreme Court’s unanimous ruling in Riley v. California and US v Wurie has been hailed as a breakthrough for digital privacy, and it is. Lost in most celebration of the Court finally joining the 20th century, however, is an understanding of how it got there. Why this ruling came down in 2014 is crucial to understand for future debates over any number of issues.

A watershed case: the Court acknowledges digital privacy

Riley represents the first time the Supreme Court has even attempted to meaningfully embrace the privacy issues presented by the digital age.

A recent prior case, US vs Jones, addressed GPS tracking by local police. Jones vindicated checks on runaway executive power, though not on privacy grounds. While the Jones ruling rejected extended police GPS surveillance without a warrant, it did so on property grounds, protecting for landowners interests denied to others (namely, anyone who parks a car on a street, rather than behind a fence).


Albany’s on its way to becoming the next city to challenge federal indefinite detention

Friday, October 4, 2013 at 8:00 pm by

obama indefinite detention hypocriteOn October 2, 2013, Anton Konev, City of Albany Common Council member, introduced Resolution #80.92.13, adding his voice to mounting dissent in the Albany City Council towards the detention provisions within the National Defense Authorization Act (NDAA). The resolution aims to repeal Sections 1021 and 1022 in the NDAA, which could allow anyone, including US citizens, anywhere in the world to be indefinitely detained without trial.

The resolution points out that:

[T]he U.S. Supreme Court has ruled that neither Congress nor the President can constitutionally authorize the detention and/or disposition of any person in the United States, or citizen of the United States “under the law of war” who is not serving “in the land or naval forces, or in the Militia, when in actual service in time of War or public danger;” or in subsequent cases as “part of or supporting forces hostile to the United States or coalition partners” and who have “engaged in an armed conflict against the United States” while “in a foreign combat zone;”


Secret law thrives, eroding the courts

Monday, July 15, 2013 at 8:55 am by

Last week, current and former intelligence officials spoke anonymously with the New York Times and the Wall Street Journal to reveal that the Foreign Intelligence Surveillance Court (FISC) is wielding even more power than Edward Snowden’s leaks imply.  According to the New York Times, the court is not simply processing requests for surveillance authority. Instead, it is “regularly assessing broad constitutional questions and establishing important judicial precedents, with almost no public scrutiny, according to current and former officials familiar with the court’s classified decisions.”

Under the Foreign Intelligence Surveillance Act (FISA), access to business records requires an application to the FISC that includes “facts showing that there are reasonable grounds to believe that the tangible things sought are relevant to an authorized investigation.” While the law around relevance and reasonable grounds to believe is somewhat unclear, the Wall Street Journal reports:

The court’s interpretation of the word enabled the government, under the Patriot Act, to collect the phone records of the majority of Americans, including phone numbers people dialed and where they were calling from, as part of a continuing investigation into international terrorism.

In addition to an extremely broad definition of what is relevant, the officials revealed that the court has issued opinions that “have expanded the use in terrorism cases of a legal principle known as the ‘special needs’ doctrine and carved out an exception to the Fourth Amendment’s requirement of a warrant for searches and seizures.”


News Digest 07/10/13

Wednesday, July 10, 2013 at 5:00 pm by

The land of the blind: The illusion of freedom in America

Tuesday, June 25, 2013 at 7:52 am by

police-state-noThis commentary was written by John W. Whitehead, president of the Rutherford Institute. It was originally published on June 24, 2013.

“How far does a man have to go to be thought so dangerous that he needs to be locked away, physically separated from the rest of the world, behind stone walls and iron bars? Clearly, it is a last resort.” — Joe, Land of the Blind

In the Wachowskis’ iconic 1999 film, The Matrix, the protagonist Neo is wakened from a lifelong slumber by Morpheus, a freedom fighter seeking to liberate humans from virtual slavery—a lifelong hibernation state—imposed by hyper-advanced artificial intelligence machines. With their minds plugged into a perfectly crafted virtual reality, few humans ever realize they are living in a dream world to such an extent that most are willing to give their lives in order to preserve the system that enslaves them.

Sound familiar? It should, because as I make clear in my new book, A Government of Wolves: The Emerging American Police State (available on and in stores), we too are living in a fantasy world carefully crafted to resemble a representative democracy, while in reality we are little more than slaves in thrall to an authoritarian regime, with its constant surveillance, manufactured media spectacles, secret courts, inverted justice, and violent repression of dissent. And for the few who dare to challenge the status quo such as Edward Snowden, they are assured of being branded either as conspiratorialists, alarmists, lunatics or outright traitors.


The panopticon is here

Wednesday, June 12, 2013 at 6:13 am by

On June 3rd, the Supreme Court released its decision in Maryland v. King, in which a 5-4 majority held that:

taking and analyzing a cheek swab of [an] arrestee’s DNA is, like fingerpringting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment.

Justices Ginsburg, Sotomayor, and Kagan joined Justice Antonin Scalia’s dissent, focusing on the huge privacy invasion concerns represented by DNA swabbing prior to conviction.

This decision is clearly cause for concern. What’s more, it should  be viewed as part and parcel of a growing surveillance state, in which everyone’s bodies are cataloged, their movements tracked, and their beliefs recorded. The old idea of the Fourth Amendment, which was created specifically in order to protect us from government tyranny, is nearly dead.

Justice Kennedy, writing for the majority, acknowledged that swabbing for DNA qualifies as a  search under the Fourth Amendment. However, he argues, it is a minimal intrusion and requires only a balancing of privacy concerns and legitimate government interests. He focuses on the comparison between taking DNA and fingerprinting, which is done mainly for the purposes of identifying arrestees.

The thrust of questioning and argument during oral argument belies this focus. While the government fell back on the arrestee identification argument, it initially argued that taking DNA samples would help solve unsolved crimes. Questions from several Justices in the majority made it clear that they appreciate the crime-solving aspect of DNA, beyond the identification aspect. Justice Scalia’s dissent explains why this matters.


FBI & NSA spying revealed: Uncle Sam is watching you, and both Congress and the courts are complicit

Thursday, June 6, 2013 at 10:41 am by

The (UK) Guardian published a previously secret court order authorizing dragnet surveillance of millions of Americans without any pretense of justification, confirming concerns raised by civil libertarians (including me) for years.

Since first taking office in 2009, the Obama administration has repeatedly extended the USA PATRIOT Act, including the overbroad section 215 cited as the basis for the FBI surveillance approved by the secret order disclosed by the Guardian. In light of Congress’ recent decision to extend the law permitting even worse abuses by the NSA for another five years, and the Supreme Court’s outrageous decision in Clapper v. Amnesty Int’l turning a blind eye to dragnet domestic surveillance, the document is also a clarion call for both mass outrage and immediate congressional action for long overdue sunlight at the National Security Agency.


The document is disturbing because, in a single swoop, it authorizes not just the wiretapping of a single individual, or a single organization, but all of the customers of a single telecommunications company. The order reinforces its own secrecy, immune from public or congressional oversight, violating core tenets of both Due Process and the Fourth Amendment at once.

Surveillance run amok

The first thing to take away from this disclosure is this sheer scale and scope of FBI and NSA spying on Americans. Senators Ron Wyden (D-OR) and Rand Paul (R-KY), like the Bill of Rights Defense Committee and various allied organizations, have been raising alarm since even before the 2008 amendments to the Foreign Intelligence Surveillance Act (“FISA”).

Along with Senator Mark Udall (D-CO), Sen.  Wyden has suggested in his capacity as a member of the Senate Intelligence Committee that Americans would be outraged if we knew about secret government interpretations of the PATRIOT Act’s controversial Section 215 authority. The law is bad enough without being contorted to allow surveillance even beyond its meager limits, but that’s exactly what the document leaked to the Guardian demonstrates: a single wiretap order allowing the FBI to spy on millions of law-abiding Americans at once, without even a pretense of the individualized suspicion long required by the Constitution.

Wyden has also sought information about how many Americans have been impacted by NSA spying overseen by the same FISA court that approved the FBI surveillance revealed by the Guardian. The answers would be laughable if they weren’t so disturbing: the NSA claimed it couldn’t answer a quantitative question because it would somehow violate the privacy of individuals under surveillance, and also that figuring out the answer to Wyden’s inquiries would simply be impracticable.

The NSA’s spin moves before Sen. Wyden’s attempts at oversight insinuated what the Guardian’s disclosure confirms: that our government’s most secret agency is run amok, squandering billions of dollars while assaulting America from our own shores, using our own money.

While outrage is appropriately escalating at the scale of FBI and NSA abuses, three angles to this controversy have remained muted in most of today’s commentary.


Silence in the face of classist Fourth Amendment jurisprudence

Friday, April 26, 2013 at 11:02 am by

Gavel and BooksLate last month, the Supreme Court of the United States handed down a victory for the Fourth Amendment and the largely African-American and Latino communities persecuted in name of the war on drugs. At the same time, the reasoning deployed by the 5-4 majority (written by Justice Scalia) does nothing to fix our classist Fourth Amendment jurisprudence, which protects one’s privacy in proportion to the size of one’s yard.

The case, Florida v. Jardines, involved whether the police’s use of a drug-sniffing dog in one’s yard to investigate suspected marijuana cultivation was a “search” and, therefore, required a warrant. In finding that the use of the dog violated the Fourth Amendment, the Court used a property-based notion of the Fourth Amendment.

The Court held that “[w]hen the Government obtains information by physically intruding on persons, houses, papers, or effects, a ‘search’ within the original meaning of the Fourth Amendment has occurred.” Because one’s yard is part of one’s house and the police intruded upon it without permission to use the K9, a “search” had occurred and a warrant is required.

The majority refused to consider whether the defendant also had a reasonable expectation of privacy in the odors emitted from his home. The decision goes to lengths to emphasize that the reasonable-expectations test has “been added to, not substituted for the traditional property-based understanding of the Fourth Amendment.” Therefore, it reasons, there is no need to pass on whether the defendant’s expectation of privacy was justified because the search violated the property-based protections.