Obama’s new free speech threat

Glenn Greenwald | Salon.com | May 16 2012

An Executive order seeks to punish U.S. citizens even for "indirectly" obstructing dictatorial rule in Yemen

(updated below – Update II)

There is substantial opposition in both Yemen and the West to the new U.S.-backed Yemeni President, Abed Rabbo Mansour Hadi. Hadi was the long-time Vice President of the Yemeni dictator Ali Abdullah Saleh, and after Saleh finally stepped down last year, Hadi became President as part of an “election” in which he was the only candidate (that little fact did not prevent Hillary Clinton from congratulating Yemen “on today’s successful presidential election” (successful because the U.S. liked the undemocratic outcome)). As it does with most U.S.-compliant dictators in the region, the Obama administration has since been propping up Hadi with large amounts of money and military assistance, but it is now taking a much more extreme step to ensure he remains entrenched in power — a step that threatens not only basic liberties in Yemen but in the U.S. as well:

President Obama plans to issue an executive order Wednesday giving the Treasury Department authority to freeze the U.S.-based assets of anyone who “obstructs” implementation of the administration-backed political transition in Yemen.

The unusual order, which administration officials said alsotargets U.S. citizens who engage in activity deemed to threaten Yemen’s security or political stability, is the first issued for Yemen that does not directly relate to counterterrorism.

Unlike similar measures authorizing terrorist designations and sanctions, the new order does not include a list of names or organizations already determined to be in violation. Instead, one official said, it is designed as a “deterrent” to “make clear to those who are even thinking of spoiling the transition” to think again. . . .

The order provides criteria to take action against people who the Treasury secretary, in consultation with the secretary of state, determines have “engaged in acts that directly or indirectly threaten the peace, security or stability of Yemen, such as acts that obstruct the implementation of the Nov. 23, 2011, agreement between the Government of Yemen and those in opposition to it, which provides for a peaceful transition of power . . . or that obstruct the political process in Yemen.”

In other words, the U.S. Government will now punish anyone who is determined — in the sole discretion of the U.S. Government — even to “indirectly” obstruct the full transition of power to President Hadi. But what if someone — a Yemeni or an American — opposes Hadi’s rule and wants to agitate for a real election in which more than one candidate runs? Is that pure political advocacy, as it appears, now prohibited by the U.S. Government, punishable by serious sanctions, on the ground that it “obstructs” the transition of power to Hadi? Can journalists who report on corruption or violence by the Hadi regime and who write Op-Eds demanding a new election be accused, as it seems, of “threatening Yemen’s political stability”?

The NYPD's criminal stop-and-frisk record

Darius Charney | The Guardian |  15 May 2012 

A march earlier this month against the NYPD's stop-and-frisk policy, led by community leaders and Princeton University professor and activist Cornel West. Photograph: Scott Houston/Corbis

The police department's policy amounts to racial profiling and the illegal harassment of thousands of New Yorkers a day.

Last week, the New York Police Department released quarterly data on its stop-and-frisk program. The numbers are worse than ever, and they confirm everything that is wrong with this practice.

From January through March 2012, 203,500 New Yorkers were stopped and frisked. That's an average of 2,200 people per day. Twenty-two hundred people a day, many of whom are stopped for no reason – or the wrong reason, like the color of their skin, or their age, or their gender expression – patted down, sometimes roughed-up, intimidated, asked for ID in their own neighborhood, sometimes in their own buildings, asked to empty their pockets. Twenty-two hundred people a day stopped by police as they walk down the street on their way home, to school, the corner deli, or to see friends. Twenty-two hundred people a day asked to justify their presence in the city in which they live.

This is already an outrage; but if you look further at the numbers, it's even more outrageous. Despite years of public outcry and lawsuits, theNYPD is stopping even more people than in previous years. In 2011, the department stopped a record 685,724 New Yorkers, a 600% increase since Raymond Kelly took over as police commissioner in 2002. But the 2012 numbers are on track to be still worse. At the rate it's going, the NYPD will stop nearly three-quarters of a million New Yorkers in 2012.

Eight-seven per cent of the people stopped by the NYPD in the first quarter of 2012 were black or Latino, while only 54% of the city's population is black or Latino. Despite claims to the contrary, the data show that even when you take other factors into consideration – including crime rates –stops are disproportionately concentrated in black and Latino neighborhoods. And in all neighborhoods, blacks and Latinos are significantly more likely to be stopped than whites. The data also show that NYPD officers use physical force more often when stopping blacks and Latinos.

Stop-and-frisk, as practiced by the NYPD, amounts to racial profiling, which is illegal. It violates the 14th amendment of the US constitution, which prohibits racial discrimination, and the fourth amendment, which protects against unreasonable searches and seizures.

Stop-and-frisk also fails to make New Yorkers safer. There is an implied trade-off that New Yorkers are told to accept: OK, so the practice is intrusive and humiliating and it violates your rights, but it's necessary to fight crime. That is a lie. The vast majority of stop-and-frisks – 90%, in the first quarter of 2012 – do not uncover evidence of a crime. Less than 1% lead to recovery of guns, the supposed goal of the stop-and-frisk program.

The NYPD is not catching criminals; they are stopping and humiliating thousands of New Yorkers a day who have done nothing wrong.

There is no evidence that stop-and-frisk is responsible for the city's drop in crime rate in recent years. On the contrary, New Yorkers feel less safe and often have their lives upended by unlawful stops. Many communities, especially communities of color, feel that they are under siege. To them, the presence of police on the streets signals not protection against crime, but a danger of becoming the victims of a crime: being illegally stopped, harassed, possibly beat up.

The Center for Constitutional Rights is suing New York City to end these gross violations of hundreds, or thousands, of people's rights. Occupying entire neighborhoods and treating vast portions of the city's citizenry as suspects violates the US constitution and fundamental human rights.

Is That All You Got? How the proponents of a gay marriage ban just ran out of arguments.

Dahlia Lithwick | Slate | February 9, 2012 

One of the most remarked-upon aspects of the first round of Prop 8 litigation, that concluded this week with a 2-1 defeat for the initiative at the 9th Circuit Court of Appeals, was the weakness of the case against gay marriage. As Andrew Cohen explained at the time, at every turn Judge Vaughn Walker, who presided over the trial, expressed frustration at the fact that the opponents of gay marriage either had no case or couldn’t be bothered to make one. Arguing for the gay marriage ban, seasoned attorney Charles Cooper called only two witnesses (the plaintiffs called 17), one of whom was not deemed qualified to testify as an expert. As Cooper finally explained in his closing argument, "Your honor, you don't have to have evidence for this. … You only need to go back to your chambers and pull down any dictionary or book that defines marriage," Cooper told the judge. "You won't find it had anything to do with homosexuality."

This defense satisfied almost no one. Ted Olson, the plaintiff’s attorney, was absolutely flummoxed by Cooper’s claim that he had no burden to do anything beside assert the immutability of traditional marriage. In his closing argument, a perplexed Olson replied, “You can't take away the rights of tens of thousands of persons and come in here and say 'I don't know' and 'I don't have to prove anything.' ” An equally maddened Judge Walker agreed, railing in his opinion about how the Prop 8 proponents had failed to produce promised evidence and testimony. Even conservative groups wrung their hands, questioning whether Prop 8 had been “adequately defended” at the hearing. Then again, perhaps punting on Prop 8 was a strategic decision. Doing so allowed the supporters of Prop 8 to argue that the fix was in. Judge Walker, who is gay, and the Hollywood appeals court would never have given them a fair shake in the first place.

Or, perhaps, there was another explanation. Perhaps, as many speculated at the time, it reflected the deeper reality that there was no factual or empirical case to be made: The evidence, the data, and the experts overwhelming agree that gay marriage does not harm children. And that leaves opponents of gay marriage to argue a tautology: Gay marriage is wrong because it’s wrong.

The Caging of America: Why do we lock up so many people?

 Adam Gopnik | The New Yorker | January 30, 2012

A prison is a trap for catching time. Good reporting appears often about the inner life of the American prison, but the catch is that American prison life is mostly undramatic—the reported stories fail to grab us, because, for the most part, nothing happens. One day in the life of Ivan Denisovich is all you need to know about Ivan Denisovich, because the idea that anyone could live for a minute in such circumstances seems impossible; one day in the life of an American prison means much less, because the force of it is that one day typically stretches out for decades. It isn’t the horror of the time at hand but the unimaginable sameness of the time ahead that makes prisons unendurable for their inmates. The inmates on death row in Texas are called men in “timeless time,” because they alone aren’t serving time: they aren’t waiting out five years or a decade or a lifetime. The basic reality of American prisons is not that of the lock and key but that of the lock and clock.

That’s why no one who has been inside a prison, if only for a day, can ever forget the feeling. Time stops. A note of attenuated panic, of watchful paranoia—anxiety and boredom and fear mixed into a kind of enveloping fog, covering the guards as much as the guarded. “Sometimes I think this whole world is one big prison yard, / Some of us are prisoners, some of us are guards,” Dylan sings, and while it isn’t strictly true—just ask the prisoners—it contains a truth: the guards are doing time, too. As a smart man once wrote after being locked up, the thing about jail is that there are bars on the windows and they won’t let you out. This simple truth governs all the others. What prisoners try to convey to the free is how the presence of time as something being done to you, instead of something you do things with, alters the mind at every moment. For American prisoners, huge numbers of whom are serving sentences much longer than those given for similar crimes anywhere else in the civilized world—Texas alone has sentenced more than four hundred teen-agers to life imprisonment—time becomes in every sense this thing you serve.

For most privileged, professional people, the experience of confinement is a mere brush, encountered after a kid’s arrest, say. For a great many poor people in America, particularly poor black men, prison is a destination that braids through an ordinary life, much as high school and college do for rich white ones. More than half of all black men without a high-school diploma go to prison at some time in their lives. Mass incarceration on a scale almost unexampled in human history is a fundamental fact of our country today—perhaps the fundamental fact, as slavery was the fundamental fact of 1850. In truth, there are more black men in the grip of the criminal-justice system—in prison, on probation, or on parole—than were in slavery then. Over all, there are now more people under “correctional supervision” in America—more than six million—than were in the Gulag Archipelago under Stalin at its height. That city of the confined and the controlled, Lockuptown, is now the second largest in the United States.

The accelerating rate of incarceration over the past few decades is just as startling as the number of people jailed: in 1980, there were about two hundred and twenty people incarcerated for every hundred thousand Americans; by 2010, the number had more than tripled, to seven hundred and thirty-one. No other country even approaches that. In the past two decades, the money that states spend on prisons has risen at six times the rate of spending on higher education. Ours is, bottom to top, a “carceral state,” in the flat verdict of Conrad Black, the former conservative press lord and newly minted reformer, who right now finds himself imprisoned in Florida, thereby adding a new twist to an old joke: A conservative is a liberal who’s been mugged; a liberal is a conservative who’s been indicted; and a passionate prison reformer is a conservative who’s in one.

The scale and the brutality of our prisons are the moral scandal of American life. Every day, at least fifty thousand men—a full house at Yankee Stadium—wake in solitary confinement, often in “supermax” prisons or prison wings, in which men are locked in small cells, where they see no one, cannot freely read and write, and are allowed out just once a day for an hour’s solo “exercise.” (Lock yourself in your bathroom and then imagine you have to stay there for the next ten years, and you will have some sense of the experience.) Prison rape is so endemic—more than seventy thousand prisoners are raped each year—that it is routinely held out as a threat, part of the punishment to be expected. The subject is standard fodder for comedy, and an uncoöperative suspect being threatened with rape in prison is now represented, every night on television, as an ordinary and rather lovable bit of policing. The normalization of prison rape—like eighteenth-century japery about watching men struggle as they die on the gallows—will surely strike our descendants as chillingly sadistic, incomprehensible on the part of people who thought themselves civilized. Though we avoid looking directly at prisons, they seep obliquely into our fashions and manners. Wealthy white teen-agers in baggy jeans and laceless shoes and multiple tattoos show, unconsciously, the reality of incarceration that acts as a hidden foundation for the country.

How did we get here? How is it that our civilization, which rejects hanging and flogging and disembowelling, came to believe that caging vast numbers of people for decades is an acceptably humane sanction? There’s a fairly large recent scholarly literature on the history and sociology of crime and punishment, and it tends to trace the American zeal for punishment back to the nineteenth century, apportioning blame in two directions. There’s an essentially Northern explanation, focussing on the inheritance of the notorious Eastern State Penitentiary, in Philadelphia, and its “reformist” tradition; and a Southern explanation, which sees the prison system as essentially a slave plantation continued by other means. Robert Perkinson, the author of the Southern revisionist tract “Texas Tough: The Rise of America’s Prison Empire,” traces two ancestral lines, “from the North, the birthplace of rehabilitative penology, to the South, the fountainhead of subjugationist discipline.” In other words, there’s the scientific taste for reducing men to numbers and the slave owners’ urge to reduce blacks to brutes.

New Book: When American Religion Meets American Mass Incarceration

Sara Mayeux  | Prison Law Blog | 9 January 2012



Insofar as America is (descriptively) exceptional,* two key differences setting America apart from its peer nations are mass incarceration and popular religiosity. Assuming the U.S. is most usefully compared with Canada, Australia, and Western Europe (I acknowledge not all will share this assumption), none of these peer nations match the U.S. imprisonment rate and few come close to American levels of church membership, church-going, or public professions of faith. Perhaps not surprisingly, then, many American prisons offer a wide array of faith-based programming (even, or especially, prisons where secular education and rehabilitation programming is meager: for instance, in Louisiana’s Angola State Prison, you can earn a BA from a Baptist theological seminary, but no non-Christian college courses are offered). An evangelical group, Chuck Colson’s Prison Fellowship Ministries, is among the most prominent national organizations sending volunteers into prisons and advocating for criminal justice reform.

How does this convergence of American religiosity with American imprisonment fit with the First Amendment’s ban on state-established religion? In her book Prison Religion: Faith-Based Reform and the Constitution (Princeton UP, 2009), Buffalo law professor Winifred Sullivan uses a recent lawsuit as a case study for considering this question. From the book’s introduction:

In December 2006, in Des Moines, Iowa, a U.S. District Court judge found unconstitutional a faith-based, in-prison rehabilitation program operating in the Newton Facility of the Iowa Department of Corrections, a program known as InnerChange Freedom Initiative (IFI). … Approximately a year after the District Court’s decision, the U.S. Court of Appeals for the Eighth Circuit found Prison Fellowship Ministries at the Iowa prison to be acting “under color of state law” in a program of conversion and discrimination. The Iowa Department of Corrections finally terminated its contract with InnerChange on March 10, 2008. (IFI programs are currently present in the prisons of five other states: Arkansas, Kansas, Minnesota, Missouri, and Texas. Private faith-based prison programs managed by other religious groups also exist in many states. Some states, including Florida, have initiated their own state-run, in-prison, faith-based programs. Because of variations in contracting arrangements, the effect of the Iowa court’s decision on these other programs remains unclear.)

AU v. PFM is acknowledged to be one of the most significant recent court cases considering the application of the establishment clause of the First Amendment to the U.S. Constitution to the new “faith-based” social services. A legal and social climate substantially more hospitable to government/religion partnership than in the recent past has made possible an increase in the number of government contracts with private, “faith based” social service providers, particularly those operating in prisons. … Notwithstanding the actual decision in the case, set in the larger context of religion in the United States, the trial testimony reveals a religious culture in which the sacred and the secular can be seen to be sinuously and ambiguously intertwined and support for religious authority more thoroughly located in the individual rather than in traditional institutions.

I look forward to reading the rest of Sullivan’s book and perhaps blogging about it further.
(h/t: Legal Theory Blog)

—

* (I’ll leave prescriptivist exceptionalism to the politicians.)

"Panic" by David Marr: on John Hatzistergos

David Marr | SMH | 17 April 2008 

That this is the last civilised nation not to guarantee its citizens' rights counts for nothing. We don't have foot and mouth disease or video games for grown-ups. So what's to stop us quarantining Australia against bills and charters of rights?

The Attorney-General, John Hatzistergos, has been thundering against them lately in the best traditions of NSW Labor. Bob Carr was one of the wittiest and most determined opponents of handing out rights we could enforce in court. It's something one-party states never willingly allow.

"We do not live in a perfect society and never will," Hatzistergos solemnly informed the Sydney Institute last week. "There may well be laws perceived by some to be unjust in our community. It is however wrong to suggest that they can be remedied by enacting charters with wide-ranging values and all will be well."

If only our grim-faced Attorney-General had been around in 1791 to tug James Madison's sleeve and stop him making the historic mistake of presenting the US Congress with constitutional amendments guaranteeing free speech and a free press; the freedom to assemble and the freedom to worship; the assurance that life and liberty will only ever be infringed by due process of law - and, alas, the right to bear arms.

Two-and-a-bit centuries later in Australia, the courts are all but powerless to prevent these rights being legislated away. And a good thing too, says Hatzistergos: "Transforming social and political questions into legal ones … forces the courts to start making decisions … for which they do not have democratic legitimacy."

That's American talk. America gave the world the great model of entrenched rights and lately America has bred mighty rhetoric attacking the courts as undemocratic for protecting them.

The wisdom of experience? Yes and no. Hatzistergos and his tribe are mouthing the words of those sore losers whose democratic sensibilities are offended by the secular, decent revolution pulled off by the US Supreme Court in the last half century that began in 1954 with Brown v Board of Education of Topeka, ending racial segregation of schools.

Interpreting The Constitution In The Digital Era

NPR Fresh Air | November 30, 2011



GPS monitors can track your every movement. Brain scans can now see lies forming in your brain. And advancements in genetic engineering may soon allow parents to engineer what their children will look and be like.

These new technologies are "challenging our Constitutional categories in really dramatic ways," says George Washington University law professor Jeffrey Rosen. "And what's so striking is that none of the existing amendments give clear answers to the most basic questions we're having today."

On Wednesday's Fresh Air, Rosen, the co-editor of the new book Constitution 3.0: Freedom and Technological Change, details how technological changes that were unimaginable at the time of the Founding Fathers are challenging our notions of things like personal vs. private space, freedom of speech and our own individual autonomy.

GPS Monitoring

Rosen points to United States v. Jones, a case the Supreme Court is currently considering. At issue is whether police need to have a warrant from a judge before attaching a secret GPS monitor to a car to track a suspect around the clock.

"The relevant constitutional text is the Fourth Amendment, which says, 'The right of the people to be secure in their houses, persons, papers and effects against unreasonable searches and seizures shall not be violated,' " he says. "But that doesn't answer the question: Is it an unreasonable search of our persons or effects to be monitored in public spaces?"

The government contends that the Fourth Amendment only bans warrantless searches of private spaces — and that a GPS device is just an extension of basic human surveillance. But some others disagree, Rosen says. Judge Douglas Ginsburg, a member of the U.S. Court of Appeals in Washington, D.C., argued that there is a difference between short-term and long-term surveillance, and that people have the expectation of privacy in both situations.

Regardless of what the Supreme Court decides, Rosen says, the "GPS case has the potential to be the most important privacy case of the decade."

"Will the justices be willing to look beyond the existing Fourth Amendment categories, which have been inadequate to confront these new virtual technologies, and take a leap of imagination?" he asks. "Really, the leap they're being asked to take is the one that Justice Brandeis took in the 1920s when the court decided for the first time the constitutionality of wiretapping."

In that instance, Brandeis wrote the dissenting opinion in Olmstead v. United States, a landmark case in which the court ruled that neither the Fourth Amendment nor the Fifth Amendment protects a defendant against having personal conversations wiretapped by federal agents.

"Brandeis noted that at the time of the framing of the Constitution, a far less intrusive search — namely breaking into someone's home and riffling through their desk drawers to identify a critic of King George III — was the quintessential example of an unreasonable search," Rosen says. "[Brandeis added] that it was now possible to invade the privacy of people of both ends of a telephone wire. And then ... Brandeis looked forward to the age of cyberspace. He said, 'Ways may someday be developed — without breaking into desk drawers — to extract papers from home and introduce them in court before a jury. ... The court should translate the Constitution and recognize that you don't need a physical trespass to create an unreasonable search.'"

Rosen says it took decades for the Supreme Court to embrace Brandeis' insights. In 1967, the high court overruled Olmstead v. United States in the case Katz v. United States, which extended the Fourth Amendment to include all areas where a person "has a reasonable expectation of privacy." Law enforcement agents were then required to obtain a warrant before wiretapping suspects.

The Constitution In The Year 2025

But how the Fourth Amendment — and the other amendments to the Constitution — should extend to quickly changing technologies is unclear.

Recently, Rosen and his colleague Benjamin Wittes asked leading legal scholars to imagine technologies that might be developed in the next few decades that would challenge current constitutional laws. Their hypothetical scenarios, collected in Constitution 3.0, address questions about a variety of topics, including security, free speech, privacy and the constitutional right against self-incrimination.

Rosen describes one privacy scenario, imagined at a conference by Google public policy chief Andrew McLaughlin, in which websites like Google and Facebook could someday potentially post video from live surveillance cameras online — and then archive those videos in a database.

Occupying the First Amendment

Raymond Vasvaril | Slate | November 15, 2011

What the actions over Zuccotti Park teach us about public spaces and citizen protest.

For nearly 60 days, demonstrators gathered in Zuccotti Park, a privately owned and very publicly occupied sliver of lower Manhattan, to Speak Truth to Power at what has become the hub of the Occupy Wall Street movement. But last night, Power was in no mood to chat. So shortly after 1 a.m. several hundred New York City Police surrounded the park dressed in riot gear, illuminated the encampment with klieg lights, and delivered—on behalf of Power—the same message that made Max von Sydow so charming in the Exorcist: “Get out.”

And get out they did. In a few hours time, over 200 demonstrators were arrested. Police cordoned off streets approaching the park, keeping the curious, the sympathetic, and most notably the press away from the action. Several journalists reported being roughly handled by police in the process, and an order closing the air space over lower Manhattan ensured that news helicopters couldn’t get footage of the raid.

That was the state of affairs when the First Amendment right to peaceably assemble smashed into the right of cities to protect their parks. And that was the state of affairs at 8 a.m., when Mayor Michael Bloomberg issued a statement affirming his deep regard for the First Amendment. He proceeded to give the sort of stern lecture about rights and responsibilities that sitcom fathers give their badly behaved teens, the tenor of which was that while free expression is generally a good thing, this nonsense had gone on long enough, and the city of New York had run out of patience.

It is no exaggeration to say that what happened overnight could be a watershed moment for the Occupy Movement: Frankfort, Ky., San Francisco, and Cincinnati have all been occupied, but the encampment near Wall Street has been the spiritual and symbolic center of a leaderless movement that has taken the example of Zuccotti Park and turned it into a moral franchise of sorts around the world.

Do we have a fundamental right to film the police in public?

Hugh Tomlinson QC | The Guardian | 31 August 2011

English case law is unclear, but rulings in the US and Strasbourg suggest we do have a right to photograph public officials

As a number of recent cases have made clear, filming policing activity in public places is a vital method of holding police to account. But there have been continuing tensions between the police and photographers over the practice. In January 2010 there was a protest in Trafalgar Square by photographers against the use of terrorism laws to stop and search photographers. A campaign called "I'm a photographer, not a terrorist" was launched to protect the rights of those taking photographs in public places.

However, although guidance issued by, for example, the Metropolitan Police has made it clear that

"Members of the public and the media do not need a permit to film or photograph in public places and police have no power to stop them filming or photographing incidents or police personnel"

this often does not appear to have come to the attention of individual police officers (or security guards).

There have been some successful complaints about the use of police powers to prevent photography (see, for example, the complaint by Jess Hurd) but there is no English case law on the relationship between the right to take photographs of the police and freedom of expression. Advances in technology has meant that the legal issues have arisen in a number of different jurisdictions (see "Is filming the police a felony or a right?").

In this context, a recent decision from the United States is of considerable interest. In the case of Glik v Cunniffe (26 August 2011) the US Court of Appeals for the First Circuit held that there is a First Amendment right to record police activity in public. Glik was arrested on 1 October 2007, after openly using his mobile phone to record three police officers arresting a suspect on Boston Common. He was charged with criminal violation of the Massachusetts wiretap act, aiding the escape of a prisoner and disturbing the peace. The charges were dismissed but, with the assistance of ACLU, Mr Glik brought a claim alleging, inter alia, that the police officers violated his First Amendment right to record police activity in public. The Judge refused to dismiss the claim on the basis of qualified immunity and the Court of Appeals dismissed the police appeal holding that

"Glik was exercising clearly-established First Amendment rights in filiming the officers in a public space, and that his clearly-established Fourth Amendment rights were violated by his arrest without probable cause."

It was noted that

"Gathering information about government officials in a form that can readily be disseminated to others serves a cardinal First Amendment interest in protecting and promoting "the free discussion of governmental affairs".

The court's conclusion will resonate with photography campaigners in this country:

"A citizen's right to film government officials, including law enforcement officers, in the discharge of their duties in a public space is a basic, vital, and well-established liberty safeguarded by the First Amendment."

The Citizen Media Law Project and the Thomas Jefferson Center have posts about the case.

Although First Amendment jurisprudence is not always consistent with the approach of the English or European Courts, the principles set out in this case are ones which appear to be consistent with the Convention's approach. The importance of the right to gather information for the purposes of promoting public debate has been repeatedly recognised by the Strasbourg court and strongly suggests that there is a fundamental right to take photographs of the activities of public officials - particularly police officers.

The Supreme Court Got it Right on Prison Overcrowding in California

Stephen Yair Liebb, Héctor Oropeza | Fox News Latino | 10 June 2011

The United States Supreme Court’s decision affirming an order placing a population limit on California’s prisons to prevent continued mental and medical health violations does not mean that “46,000 criminals – the equivalent of three army divisions – will be released,” as Justice Alito claimed in his dissent.

His description of the consequences of the Supreme Court’s decision is an example of the hyperbole and hysteria used by Justices who are required to exercise sound reasoning in deciding cases.

Our perspective comes from having served more than 50 years combined in California prisons, and having witnessed the conditions under which men are confined, and the provision of medical treatment to those in need. We understand, too, that in an economy where many law-abiding citizens are out of work and unable to afford health care for themselves and their families, the lack of mental and medical health treatment for prisoners does not engender much sympathy.

However, the U.S. is still a symbol of freedom across the world. How we treat the most despised of our own citizens is important if we are to have credibility and moral authority in advocating for human rights in other countries. The Court noted that the Constitution protects the “essence of human dignity in each person.”

The Supreme Court Declares California's Prisons Overcrowded

Andrew Cohen | The Atlantic | May 23, 2011

Monday's ruling calls for the early release of thousands of the Golden State's inmates

The United States Supreme Court's ruling Monday requiring the early release of tens of thousands of California prison inmates may be, as Justice Antonin Scalia wrote in his fiery dissent, a "staggering" and "radical" event in the annals of law. But it comes as no surprise to people (in and out of the criminal justice system) who long have been chronicling atrocious prison conditions around the country. And it surely marks a nadir in America's persistently zealous efforts to imprison its citizens: We still lead the world in that category by far.

It was left to Justice Anthony Kennedy, a native of Sacramento and a graduate of Stanford University, to finally do the dirty work that has long needed to be done; to hold accountable lawmakers and prison officials who have tarried for decades in providing state prisoners with a constitutionally acceptable level of care and living conditions. In Brown v. Plata, one of the most important and contentious cases of the term, Justice Kennedy provided the critical fifth vote, the swing vote, to affirm a rare affirmative injunction issued by a special three-judge panel ordering as a last resort some 37,000 prisoners to be released through a variety of measures.

Here, at last, after decades of short-sighted policy, comes the butcher's bill for the war on drugs, the state's dubious three-strikes law, and the magnetizing political pull of victims' rights groups. And it was delivered to the Golden State by the only tribunal in America with the power and the authority to speak on behalf of the nation's last lobbyless constituency -- our nation's prisoners. If this decision is a "slap in the face" to the victims of crime, as so many overheated commentators were suggesting Monday afternoon, it is not a slap delivered by the inmates themselves or even the federal judiciary. Like so much else about modern governance, we see here instead the consequences of the gulf between political promise and budgetary reality; between our short attention spans (lock 'em up, throw away the key) and life's long journey (in or out of a cell).

Obama v. Obama on signing statements

Glenn Greenwald | Salon.com | April 17, 2011

The issue of signing statements is more complex than the political controversy over them suggests. When condemning Bush/Cheney lawlessness, I rarely focused on their use of signing statements. That was true for several reasons.

There's nothing inherently illegitimate about a President's expressing his view on various laws. It's vastly preferable for a President to openly declare his intent to violate the law than to do so secretly. Signing statements themselves are just instruments for conveying constitutional views of the law; whether they're truly odious depends upon the view that is being expressed (what made Bush so radical were the theories of executive omnipotence he embraced, not his use of signing statements to express those views).

And a reasonable argument can be made (though it's not one I share) that a President's duty to uphold the Constitution can sometimes be advanced more by refusing to execute an unconstitutional law than by enforcing it; that view, at least for some, is a critical part of the formal definition of the "unitary theory of the executive" and is something right-wing theorists (and now Obama supporters) have long maintained (I ultimately reject that view because the constitutionally legitimate means for a President to object to an unconstitutional law is to veto it, not violate it; moreover, the power to declare laws unconstitutional lies with courts, not the President). But all of those issues introduce nuance into the question of signing statements that is often lacking in the political discussions they've triggered.

But there was no such nuance present when Barack Obama, during a 2008 campaign rally, made his position known on signing statements. After being asked by an audience member whether he would "promise" not to use signing statements to override Congressional statutes, he stated simply "yes," and then elaborated as follows: