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Enslaving Speech and Thought

“[...] I suggested in 'Repressive Tolerance' the practice of discriminating tolerance in an inverse direction, as a means of shifting the balance between Right and Left by restraining the liberty of the Right, thus counteracting the pervasive inequality of freedom (unequal opportunity of access to the means of democratic persuasion) and strengthening the oppressed against the oppressed [sic, should be "oppressors" -AMPP Ed.]. Tolerance would be restricted with respect to movements of a demonstrably aggressive or destructive character (destructive of the prospects for peace, justice, and freedom for all). Such discrimination would also be applied to movements opposing the extension of social legislation to the poor, weak, disabled. [...]”
-Herbert Marcuse, in a
1968 postcript to his 1965 essay "Repressive Tolerance"

Hear John McCain say “talking about campaign finance reform....I know that money corrupts....I would rather have a clean government than one where quote First Amendment rights are being respected, that has become corrupt. If I had my choice, I'd rather have the clean government.” on the Don Imus Show (MSNBC), 2006-Apr-21, Portsmouth, NH, video courtesy of

Read Lawrence Lessig's new (2004-Mar-26) book: Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity (PDF download). Lessig's bio (from opens: ``Lawrence Lessig is a Professor of Law at Stanford Law School and founder of the school's Center for Internet and Society. Prior to joining the Stanford faculty, he was the Berkman Professor of Law at Harvard Law School. Lessig was also a fellow at the Wissenschaftskolleg zu Berlin, and a Professor at the University of Chicago Law School. He clerked for Judge Richard Posner on the 7th Circuit Court of Appeals and Justice Antonin Scalia on the United States Supreme Court.''

Also read Defending the First Amendment from Antidiscrimination Laws, adapted from the book You Can't Say That!: The Growing Threat to Civil Liberties from Antidiscrimination Laws (Cato 2003), by David E. Bernstein.

Editor's note on free speech and the Internet: The Internet is like New York City, or in fact all the cities and towns and secluded cult and militia compounds in the world - plus, of course, all the libraries - all just milliseconds away. Parents of young children, indeed all adults entrusted with them, need to respect the Internet the way they respect the real world it reflects. It is their profound responsibility to do so. The state pursues lawbreakers whether the laws are broken on city streets or on the Internet, but it is neither a responsibility, nor indeed a permissible role, for the state to make city streets or the Internet safe for young children to explore and experience, unaccompanied and unguided by responsible, attentive adults. Children must not be left to fend for themselves in the marketplace of ideas. The Internet is not like a video game. When a young child sits in front of a networked computer, there should always be either a non-bypassable access control system gating network access (so that the child can only contact and be contacted by people approved by responsible adults, and web sites audited and approved by responsible adults), or a responsible adult at his side.

com.mis.sar \'ka:m-*\ n [Russ komissar, fr. G kommissar, fr. ML
   commissarius] 1a: a Communist party official assigned to a military unit to 
   teach party principles and policies and to ensure party loyalty 1b: one 
   resembling a political commissar in attempting to control public opinion or 
   its expression 2: the head of a government department in the U.S.S.R. until 

from the Wall Street Journal, 2015-Aug-23, by L. Gordon Crovitz:

Plotting Against the Internet
The U.S. delays giving up Web oversight, but other nations are already planning a power grab.

The Obama administration last week caved in to critics by admitting that it needs more time to give up U.S. protection of the Internet. But instead of delaying its plan, the administration should have killed it. Dropping the plan has become urgent with new evidence of how other governments plan to take control of the Internet if the U.S. gives them the chance.

The saga began in March 2014 when the Commerce Department announced that the U.S. would end its long-standing contract with the Internet Corporation for Assigned Names and Numbers, or Icann. American oversight gives the multistakeholders of network operators and engineers the freedom to run the global Internet without political interference—and is why China and Russia are unable to block the open Internet elsewhere even as they censor the Internet within their own borders.

The Obama administration at first claimed that the U.S. role was merely “clerical.” This ignored the American exceptionalism at the heart of the Internet as we know it. U.S. oversight created a global Internet that protects free speech and open innovation, which are now core digital values around the world. Authoritarian regimes are forced to invest billions of dollars to close off access to the open Internet while they monitor and censor their citizens.

The Obama administration naïvely imagined other governments would keep their hands off Icann and the root zone of the Internet. In its announcement last week, the administration postponed the handover from its original deadline of September this year to September 2016, saying “it has become increasingly apparent over the last few months that the community needs time to complete its work, have the plan reviewed by the U.S. government and then implement it if it is approved.”

The Obama administration pulled a fast one by extending the contract with Icann by only one year. The U.S. contract with Icann says renewals are for two years, which should have extended the agreement to September 2017. This would have given the next president the chance to kill the Obama plan.

Icann recently published a 199-page draft proposal on supposed protections if the U.S. gives up control of the Internet. It suggests convoluted new structures for governance but can't guarantee the open Internet without U.S. stewardship. Meanwhile, evidence mounts of how other governments plan to take control of the Internet once the U.S. abandons its role.

A concerned participant in the Internet-governance negotiations sent me the synopsis of positions taken by governments at an Icann planning meeting held in Paris in July. Behind closed doors, governments spoke openly about their plans once the Obama administration gives up U.S. oversight.

Based on the views expressed in the Icann planning meetings, the overwhelming majority of countries want more power for governments and less for the multistakeholders. Over the objections of a handful of countries such as the U.S., Britain, Australia and Japan, governments plan to “upgrade” their current advisory function over the Internet to a controlling role.

China says governments “should acquire relatively independent status.” Argentina says the “current imbalance of government participation in Icann structure must not persist.” India says the “operating principles should be reviewed” to give governments more power. Spain wants the role of governments to be “advisory plus.”

Russia endorses more power for governments, but it wants to complete plans only after the U.S. gives up protection for the Internet. Moscow says the role of governments “should be more meaningful than just advisory,” but it cautions that this “topic needs to be further examined in [the] post-transition period.” In other words, governments should move to control the Internet only after the U.S. gives up the ability to block such a move.

One goal of other governments is ending Icann's status as a U.S. legal entity, subject to U.S. law. At the Icann meeting in July, Russia said the “combination of Icann's international mission and national legal status creates complexity; needs further consideration.” Changing Icann's legal status would undermine whatever protections are put in place if the U.S. gives up its role. Another plan is to introduce majority voting among governments to give them more power over the Internet, ending today's requirement of unanimity.

Now that other governments have made their intentions clear, Congress should redouble its opposition to the Obama Internet-surrender plan. Congress used its power of the purse to block the administration from abandoning the Internet during 2015. For 2016 the House passed a bill requiring the administration to give notice of its new plan for Internet governance. The Senate is considering whether to require that Congress get to vote to up or down on such a plan, not just be told about it.

The clear evidence is that many governments around the world are eager to wrest control over the Internet for themselves. Canceling the Obama plan would deprive them of the chance.

from the Wall Street Journal, 2015-Aug-11, by James L. Gattuso:

Europe's Latest Export: Internet Censorship
If French regulators have their way, the `right to be forgotten' will go global, stifling speech.

American Web surfers may soon find their search-engine results censored, thanks to a recent decision by French regulators.

In June, France's Commission Nationale de l'Informatique et des Libertés, or CNIL, publicly ordered Google to apply Europe's rather bizarre “right-to-be-forgotten” rules globally. The rules give European Union residents the right to request that Internet search engines remove links that appear in searches for their own names. Google responded on July 30, firmly rejecting the French regulator's demand.

If Google is forced to comply with the EU rules globally, the result would be unprecedented censorship of Internet content world-wide, as well as a dangerous expansion of foreign regulators' control over what Americans can see on the Web.

The EU's right-to-be-forgotten rules were first articulated in May 2014 by the European Court of Justice. The case involved Mario Costeja González, a Spanish citizen whose house was foreclosed on in 1998 due to a debt that was subsequently “resolved.” Citing Mr. Costeja González's privacy rights under EU law, the court ordered search engines to stop providing links to news accounts of the incident in response to searches of his name.

The new rule has triggered a tsunami of requests for removal. Google reported in July that in less than a year it has received requests to delist over a million URLs related to individual name searches. Supporters of the rule argue that it is a vital protection of privacy rights. Individuals, they say, should not be dogged forever by indiscretions of their youth, or fear damage to their businesses or reputations from dated information on the Internet.

But the mandate to forget is not so benign. Since taking effect, the rule has produced a disturbing record of censorship, covering a broad range of stories of legitimate interest to the public. Links blocked from certain search results have included a 2003 BBC report about a woman convicted of running a prostitution ring that quoted a former employee, a 1998 BBC report about German skinhead soccer fans that quotes one saying “I like violence,” and a 2009 Daily Mail story about employees of the grocery store Tesco posting insulting comments online about their customers.

The right to be forgotten has spurred Russia, no amateur at censorship, to adopt its own such law, openly modeled on the European example. And in the U.S. last month, an advocacy group, Consumer Watchdog, filed a complaint against Google with the Federal Trade Commission for not following right-to-forget rules in America. The group argues that for Google to claim to protect its users' privacy and not follow such rules is an “unfair and deceptive” practice under the Federal Trade Commission Act.

Since the EU court's ruling last year, Google has only shown limited search results on European extensions of its service, such as, and CNIL argues that this is not sufficient, since Europeans are still able to see unfiltered search results at Thus the French regulator ordered that results be applied to “all extensions” of the search engine—including Google's main site, the one based in the U.S.

What exactly this means is not yet clear. One possibility is that Google would have to identify the location of its users, and filter results for all that are physically in EU countries. This is not unprecedented—in a controversial 2000 case, French authorities ordered Yahoo to filter an online auction of Nazi paraphernalia from Web surfers in France. But it would represent a troubling new use of such geolocation data. It would also be an odd way to enforce a law ostensibly meant to protect individual privacy.

Regulators might find it more practical to try to force Google to filter the search results for right-to-be-forgotten URLs world-wide, meaning that no Google user would be able to see them. This would mean that Internet users around the globe, including in the U.S., would have the content of the searches results they receive censored by French bureaucrats. Such global implementation would be an affront to U.S. sovereignty, as well as a blow to free speech. But even if confined to Europe, it is an indefensible restraint.

The next step is up to CNIL, which has called Google's refusal to comply “political,” claiming its own position is based “strictly on legal reasoning.” Litigation is expected to go on for some time. Ironically, the one certainty is that Mario Costeja González, the Spaniard who started the right-to-be-forgotten controversy, will not soon be forgotten.

Mr. Gattuso is a senior research fellow in regulatory policy at the Heritage Foundation.

from the Wall Street Journal, 2015-Aug-14:

A Free-Speech Clinic for the FDA
A judge says companies can tell the truth about off-label drug uses.

The Food and Drug Administration thinks its powers are so total that it can even prohibit drug companies from making true claims about their products. Not so fast. A federal judge in an important and closely watched test case in New York has called this political control a violation of the First Amendment.

At issue are off-label prescriptions. Once the FDA approves new drugs, they are often repurposed by physicians in all fields for diseases, in doses or for patient populations that the agency has not reviewed. A therapy for breast cancer, say, might also prove effective against tumors elsewhere in the body, or a medicine for adults might be used in pediatric care. About one of five U.S. prescriptions are for non-FDA-sanctioned uses.

In a small miracle, these off-label experiments are legal, and they drive innovation. The artificial conditions that the FDA demands for clinical trials are increasingly divorced from how medicine is practiced, and modern care advances far faster than the FDA's regulatory molasses. Off-label use is vital for complex conditions like cancer and psychiatric disorders that require trial and error for individual patients, who can't wait years for the FDA's blessing.

But the FDA and Justice Department are targeting off-label prescriptions as a threat to their hegemony. Their goal is to force drug makers and physicians to seek FDA approval for every new real-world use, as if it were an entirely new drug. Until recently, drug makers were banned from making off-label claims backed by solid evidence or even from distributing peer-reviewed journal articles.

Prosecutors have also become increasingly aggressive. In 2012 GlaxoSmithKline paid $1 billion for encouraging doctors to use Paxil to treat depression in patients under 18, which research shows helps although the FDA has not endorsed this conclusion. The FDA construes some forms of off-label promotion as crimes, and people are serving jail time.

In U.S. v. Caronia in 2012, the Second Circuit Court of Appeals overturned one such conviction—of a drug rep caught in a sting urging doctors to use a narcolepsy medicine for unapproved uses. He didn't make a false or misleading statement but merely described the modern state of the literature.

The Second Circuit held that “the truthful promotion” of off-label uses is constitutionally protected speech that the FDA can't regulate. The off-label speech prohibition “`paternalistically' interferes with the ability of physicians and patients to receive potentially relevant treatment information; such barriers to information about off-label use could inhibit, to the public's detriment, informed and intelligent treatment decisions.”

Instead of appealing Caronia to the Supreme Court, where it might lose, the FDA interpreted the decision narrowly and said drug makers could engage in off-label marketing in limited ways if the FDA edited and signed off on the materials first. The word for this is censorship, which a small company called Amarin Pharma is now challenging, at considerable risk of FDA retaliation.

Amarin makes a triglyceride-reducing drug called Vascepa, which is approved for people with very high levels that can contribute to cardiovascular disease. Amarin wants to market the drug for people with somewhat lower triglyceride levels, and it conducted a successful clinical trial whose design was approved by the FDA that showed Vascepa reduces their levels too.

But the FDA rejected Amarin's application because it has new doubts about the relationship between triglycerides and cardiovascular risk. The agency threatened to sue or prosecute Amarin if it told doctors of the results of the study, and Amarin countersued.

In court, the FDA claimed that distributing the information would be a “frontal assault” on its drug-approval authority and likened it to other forms of illegal speech like blackmail or insider trading. But then the agency tried to moot the case by offering to settle. Amarin refused, with good reason.

Judge Paul Engelmayer last week told the FDA it couldn't end-run the Caronia decision to “chill Amarin's First Amendment rights.” He added that, “Had the FDA believed that Caronia gravely undermined the drug approval process, it should have sought review of that decision.”

Judge Engelmayer's opinion ensures that the off-label controversy will be resolved fairly and transparently. The Second Circuit—and likely the Supreme Court—could protect both medical progress and the Constitution by rebuking the FDA's power grab.

from the Wall Street Journal, 2015-Jul-24:

The Taxman's Politics
New evidence that IRS bias may have extended to tax audits.

The Obama Administration has made a two-year career of dismissing concern about IRS policies targeting conservative tax-exempt groups. That evasion just got harder. New information shows the agency may have shown similar bias in tax audits.

A new Government Accountability Office report says protocols in place at the IRS Exempt Organizations unit made it possible for groups to be unfairly targeted for audit “based on the organization's religious, educational, political, or other views.” That's our emphasis. The report also shows a process that allowed reviewers to wield significant discretion over whether certain groups were selected for scrutiny.

GAO says that once the audit targets were chosen, the process lacked transparency and documentation, including why the groups were selected. Of the audits that came in from outside referrals, the agency had no documentation for around 25% of the original complaints. This raises the possibility that some groups may have been flagged for audits by political opponents who disapproved of their tax-exempt purpose. In some cases, the GAO says the IRS never disclosed why a group was selected for audit.

The IRS is dismissing the findings as hypothetical. At a House Ways and Means hearing Thursday, IRS Commissioner John Koskinen told Rep. Peter Roskam that “at this point we do not have indications that anyone improperly was selected for an exam.” But information from Treasury Inspector General for Tax Administration J. Russell George suggests IRS audit selection has already led to improperly selected audits.

In fiscal years 2013 through 2015, Mr. George initiated 102 internal investigations based on complaints by tax-exempt groups and individuals who say they were unfairly targeted for audit. It's not public how many of those 102 may have been improperly targeted. But according to the House Ways and Means Committee, 12 presented facts so egregious that the IRS referred them to the Justice Department for criminal prosecution. Not for tax evasion, mind you, but for improper conduct by IRS employees.

A criminal referral is a big step, suggesting the audit selections met a high bar of evidence that IRS employees may have knowingly violated the law when choosing an audit target. Thursday's hearing also included testimony from groups that believe they were improperly audited.

Michelle Easton, president of the conservative Clare Boothe Luce Policy Institute, said the agency told her in 2011 that it was auditing her group for 2008, the same year Ms. Easton volunteered to work for Sarah Palin's campaign for Vice President. In the “first of seven separate requests for massive amounts of documents,” Ms. Easton said, “the IRS asked for a `List of contributors and Amounts,'” information that is beyond proper IRS review.

Another target was the Leadership Institute, which says its mission is to “increase the number and effectiveness of conservative activists and leaders in the public policy process.” Vice President Joseph Metzger said he was told his group was referred for audit by an outsider and that the IRS wanted to investigate “the institute's use of the word `conservative.'”

Lawyer Elizabeth J. Kingsley, who represents nonprofit groups, also testified that the rate of audits had risen sharply beginning in late 2012 and included audits of liberal groups. “My assessment,” she said in prepared testimony, “indicates that we have handled more audits in the past five years than in the preceding fifteen.”

Those incidents smack of the hailstorm of federal audits that hit Catherine Engelbrecht when her True the Vote nonprofit was infuriating Washington Democrats. Our Kimberley Strassel reported in 2012 that Idaho businessman and Mitt Romney contributor Frank VanderSloot was hit with a federal tax audit not long after being called out by name in an email from President Obama's re-election campaign.

An IRS audit can impose huge burdens in time and legal expense, and an adverse report often means a group's tax status is revoked, a killer for 501(c)s that raise money from individuals and foundations. The stigma also means that few who are audited dare to challenge the agency's decision.

Mr. Koskinen, the IRS director, has already shown through his previous stonewalling that his assurances can't be trusted. We hope Congress keeps digging into the growing evidence of a politicized tax agency.

from the Wall Street Journal Best of the Web, 2015-Aug-11, by James Taranto:

`Speech Nuts'
Does the left like anything in the Bill of Rights?

“The First Amendment has something in common with the Second Amendment,” writes the New Yorker's Kelefa Sanneh: “Both are unusually broad legal guarantees that mark a difference between America and the rest of the world.”

Swells you up with patriotism, doesn't it? (Or envy, if you're from Canada, France or one of the other non-U.S. countries too numerous to mention.) But Sanneh means it as an invidious comparison. He writes: “Speech nuts, like gun nuts, have amassed plenty of arguments, but they—we—are driven, too, by a shared sensibility that can seem irrational by European standards.”

As that parenthetical “we” suggests, Sanneh's essay—which is about free expression, and mentions the Second Amendment only for the sake of this comparison—is more nuanced than the “speech nuts” epithet might suggest. He counts himself among the nuts, but only equivocally: “Perhaps America's First Amendment, like the Second, is ultimately a matter of national preference.”

One further similarity between the First and Second amendments is that these days the political left is relatively hostile to both. That's long been true of the Second but is a relatively recent development with regard to the First. Although we were not reading the New Yorker in 1987—when, as now, it was America's leading forum of middlebrow left-liberalism—we feel fairly confident in saying an article like this would not have appeared there then.

In those days, by and large, liberals were the “speech nuts,” and they reacted with outrage when conservatives argued that free expression had in some respects gone too far. In a 1971 law-review article, Robert Bork described pornography as “a problem of pollution of the moral and aesthetic atmosphere precisely analogous to smoke pollution.” The left pilloried him for that during his Supreme Court confirmation hearings in 1987. By 2013, as we noted at the time, no less than the New York Times editorial page was demanding federal action against “polluting” speech (though not pornography).

Meanwhile, Sanneh's piece is a critical response to two pro-free-speech books—one by a pair of conservative authors (Mary Katharine Ham and Guy Benson) and one by a dissident liberal (Kirsten Powers). Powers, incidentally, turns out to be less of a dissident than we thought. We learn from Sanneh that she “disagrees” with what he rightly calls “probably the most consequential free-speech ruling of the modern era,” Citizens United v. Federal Election Commission, “which explains why she wrote a book about free speech without mentioning it.”

By 1987 the campus left was beginning to turn against free speech, as we learned from personal experience. But even the liberal media generally treated political correctness as an object of curiosity and mockery. These days it isn't hard to find articles so silly they could have been put out by some diversity administrator at Podunk State. An example, from Vox's Amanda Taub:

A programmer from New Zealand named Byron Clark has come up with a perfect way to show what people really mean when they talk about political correctness. He set up his browser to automatically change all mentions of the term “political correctness” to “treating people with respect.”

The venn diagram of “political correctness” and “treating people with respect” no doubt would show some overlap, but the claim that the two are equivalent is feeble even by Vox's standards.

Sanneh's piece is at least thoughtful, and it presents some arguments that, while unsound, are worth rebutting. One comes from the literary theorist Stanley Fish:

His mischievous contribution to the debate, published [in 1994], was “There's No Such Thing as Free Speech: And It's a Good Thing, Too,” which argued that free expression was no one's “primary value.” . . . Free speech, in Fish's unsentimental account, was a “political prize,” a tag awarded by politically powerful groups to whatever forms of expression they approved of. . . . The question of whether to regulate so-called “hate speech” was “no more or less difficult than the question of whether spectators at a trial can applaud or boo the statements of opposing counsels.” . . .
Perhaps it is no coincidence that one of the most influential free-speech skeptics in America today is an immigrant. Jeremy Waldron is a law professor from New Zealand who teaches at New York University. In 2012, he published “The Harm in Hate Speech,” a powerful little book that seeks to dismantle familiar defenses of the right to indefensible speech. Waldron is unimpressed by the “liberal bravado” of free-speech advocates who say, “I hate what you say but I will defend to the death your right to say it.” In his view, the people who say this rarely feel threatened by the speech they say they hate.

Sanneh himself halfway endorses that view: “Some kinds of free speech really can be harmful, and people who want to defend it anyway should be willing to say so.” For our part, we wonder if perhaps it's time to cut off immigration from New Zealand.

But seriously, is the unwillingness to acknowledge that speech “can be harmful” really a problem? This columnist would surely qualify as a “speech nut,” but just yesterday we decried the anti-Semitic overtones of President Obama and his supporters' attacks on opponents of his Iran deal. Surely readers understood us to be arguing that such rhetoric is harmful. On the other hand, it never would have occurred to us to call for it to be answered with censorship.

Fish's claim that free speech is no one “primary value” seems at odds with Sanneh's idea that some people are “speech nuts.” It is no doubt true, however, that even many “speech nuts” tend toward a degree of hypocrisy—that is, they are more apt to object to censorship of the speech they like. It seems to us quite wrongheaded, though, to reject free speech as a principle on this basis.

Consider the question at a higher level of generality: Most people claim to favor fairness but are less likely to object to unfairness when it is to their benefit. It does not follow that all appeals to fairness are without substance. True, “fairness” is such a vague and multifaceted concept that it is insufficient to serve as a legal standard or a policy goal. But that criticism does not apply with any force to “free speech,” which, some ambiguity notwithstanding, has a clear meaning under American law.

As vague the idea of “fairness” is, it is at the heart of the rule of law. And here there is a crucial difference between a legal regime based on restricting government (free speech) and one based on empowering it (“hate speech”): The latter is far more amenable to abuse by people in authority.

Enforcing the law and prosecuting crimes—and this is as true of actual crimes as it would be of speech crimes—necessarily entails a substantial amount of discretion, if only because law-enforcement resources are finite. Even assuming a facially neutral hate-speech law could be written, it would be enforced in ways that reflect the political priorities of the powerful—just as, for example, the Obama IRS used ostensibly neutral speech regulations to persecute the administration's critics.

To take a concrete example: Even if we thought Obama and his supporters deserved to be prosecuted for anti-Semitic hate speech (we do not, just in case that isn't already clear), and laws were on the books making it theoretically possible, it's safe to assume no attorney general would seek charges against the president who appointed him.

Hate-speech laws, then, would give those in power not only a tool to suppress their foes but also a license to engage in hateful speech themselves. Those who favor censorship at least ought to be willing to acknowledge it is harmful.

from the Wall Street Journal, 2015-May-21, by Peggy Noonan:

The Trigger-Happy Generation
If reading great literature traumatizes you, wait till you get a taste of adult life.

Readers know of the phenomenon at college campuses regarding charges of “microaggressions” and “triggers.” It's been going on for a while and is part of a growing censorship movement in which professors, administrators and others are accused of racism, sexism, homophobia, classism, gender bias and ethnocentric thinking, among other things. Connected is the rejection or harassment of commencement and other campus speakers who are not politically correct. I hate that phrase, but it just won't stop being current.

Kirsten Powers goes into much of this in her book, “The Silencing.” Anyway, quite a bunch of little Marats and Robespierres we're bringing up.

But I was taken aback by a piece a few weeks ago in the Spectator, the student newspaper of Columbia University. I can't shake it, though believe me I've tried. I won't name the four undergraduate authors, because 30 years from now their children will be on Google, and because everyone in their 20s has the right to be an idiot.

Yet theirs is a significant and growing form of idiocy that deserves greater response.

The authors describe a student in a class discussion of Ovid's epic poem “Metamorphoses.” The class read the myths of Persephone and Daphne, which, as parts of a narrative that stretches from the dawn of time to the Rome of Caesar, include depictions of violence, chaos, sexual assault and rape. The student, the authors reported, is herself “a survivor of sexual assault” and said she was “triggered.” She complained the professor focused “on the beauty of the language and the splendor of the imagery when lecturing on the text.” He did not apparently notice her feelings, or their urgency. As a result, “the student completely disengaged from the class discussion as a means of self-preservation. She did not feel safe in the class.”

Safe is the key word here. There's the suggestion that a work may be a masterpiece but if it makes anyone feel bad, it's out.

Later the student told the professor how she felt, and her concerns, she said, were ignored. The authors of the op-ed note that “Metamorphoses” is a fixture in the study of literature and humanities, “but like so many texts in the Western canon it contains triggering and offensive material that marginalizes student identities in the classroom.” The Western canon, they continue, is full of “histories and narratives of exclusion and oppression” that can be “difficult to read and discuss as a survivor, a person of color, or a student from a low-income background.”

That makes them feel unsafe: “Students need to feel safe in the classroom, and that requires a learning environment that recognizes the multiplicity of their identities.” The authors suggest changing the core curriculum but concede it may not be easy. Another student, they report, suggested in her class that maybe instead they could read “a Toni Morrison text.” A different student responded that “texts by authors of the African Diaspora are a staple in most high school English classes, and therefore they did not need to reread them.” That remark, the authors assert, was not only “insensitive” but “revealing of larger ideological divides.” The professor, they report, failed at this moment to “intervene.”

The op-ed authors call for “a space to hold a safe and open dialogue” about classroom experiences that “traumatize and silence students,” with the aim of creating environments that recognize “the multiplicity” of student “identities.”

Well, here are some questions and a few thoughts for all those who have been declaring at all the universities, and on social media, that their feelings have been hurt in the world and that the world had just better straighten up.

Why are you so fixated on the idea of personal safety, by which you apparently mean not having uncomfortable or unhappy thoughts and feelings? Is there any chance this preoccupation is unworthy of you? Please say yes.

There is no such thing as safety. That is asking too much of life. You can't expect those around you to constantly accommodate your need for safety. That is asking too much of people.

Life gives you potentials for freedom, creativity, achievement, love, all sorts of beautiful things, but none of us are “safe.” And you are especially not safe in an atmosphere of true freedom. People will say and do things that are wrong, stupid, unkind, meant to injure. They'll bring up subjects you find upsetting. It's uncomfortable. But isn't that the price we pay for freedom of speech?

You can ask for courtesy, sensitivity and dignity. You can show others those things, too, as a way of encouraging them. But if you constantly feel anxious and frightened by what you encounter in life, are we sure that means the world must reorder itself? Might it mean you need a lot of therapy?

Masterpieces, by their nature, pierce. They jar and unsettle. If something in a literary masterpiece upsets you, should the masterpiece really be banished? What will you be left with when all of them are gone?

What in your upbringing told you that safety is the highest of values? What told you it is a realistic expectation? Who taught you that you are entitled to it every day? Was your life full of . . . unchecked privilege? Discuss.

Do you think Shakespeare, Frieda Kahlo, Virginia Woolf, Langston Hughes and Steve Jobs woke up every morning thinking, “My focus today is on looking for slights and telling people they're scaring me”? Or were their energies and commitments perhaps focused on other areas?

I notice lately that some members of your generation are being called, derisively, Snowflakes. Are you really a frail, special and delicate little thing that might melt when the heat is on?

Do you wish to be known as the first generation that comes with its own fainting couch? Did first- and second-wave feminists march to the barricades so their daughters and granddaughters could act like Victorians with the vapors?

Everyone in America gets triggered every day. Many of us experience the news as a daily microaggression. Who can we sue, silence or censor to feel better?

Finally, social justice warriors always portray themselves—and seem to experience themselves—as actively suffering victims who need protection. Is that perhaps an invalid self-image? Are you perhaps less needy than demanding? You seem to be demanding a safety no one else in the world gets. If you were so vulnerable, intimidated and weak, you wouldn't really be able to attack and criticize your professors, administrators and fellow students so ably and successfully, would you?

Are you a bunch of frail and sensitive little bullies? Is it possible you're not intimidated but intimidators?

Again, discuss.

By the way, I went back to the op-ed and read the online comments it engendered from the Columbia community. They were quite wonderful. One called, satirically, to ban all satire because it has too many “verbal triggers.” Another: “These women are like a baby watching a movie and thinking the monster is going to come out of the screen and get them.” Another: “These girls' parents need a refund.”

The biggest slayer of pomposity and sanctimony in our time continues to be American wit.

from Entertainment Weekly, 2015-Jun-8, by Dana Rose Falcone:

Jerry Seinfeld: Politically correct college students 'don't know what the hell they're talking about'

Like Chris Rock and Larry the Cable Guy, Jerry Seinfeld avoids doing shows on college campuses. And while talking with ESPN's Colin Cowherd on Thursday, the comedian revealed why: College kids today are too politically correct. “I hear that all the time,” Seinfeld said on The Herd with Colin Cowherd. “I don't play colleges, but I hear a lot of people tell me, `Don't go near colleges. They're so PC.'” Seinfeld says teens and college-aged kids don't understand what it means to throw around certain politically-correct terms. “They just want to use these words: `That's racist;' `That's sexist;' `That's prejudice,'” he said. “They don't know what the hell they're talking about.” The funnyman went on to recount a conversation he and his wife had with their 14-year-old daughter, which he believes proved his point. “My wife says to her, `Well, you know, in the next couple years, I think maybe you're going to want to be hanging around the city more on the weekends, so you can see boys,'” Seinfeld recalled. “You know what my daughter says? She says, `That's sexist.'” Cowherd pointed out the flack comedian Louis C.K. received after his controversial appearance on Saturday Night Live last month, further proving Seinfeld's point. “Louis' great gift is that he doesn't worry, he just does his thing,” he said. And Seinfeld's not scared to make his point, either: “If I wanted to say something, I would say it.” But for now, Seinfeld will stick to covering the topics he can feels he can make humorous, PC or not. “I talk about the subjects I talk about because for some reason I can make them funny,” he said. “The ones I can't make funny, you don't hear.”

from the Wall Street Journal Best of the Web, 2015-Jun-4, by James Taranto:

Varsity Calvinball
The “excesses” of political correctness are inevitable.

One of our favorite tropes from Bill Watterson's brilliant comic strip Calvin and Hobbes was “Calvinball.” The eponymous 6-year-old boy invented the game because he didn't care for organized sports. The central feature of Calvinball is that the rules change all the time, at either player's whim. That infinity of rules amounts to an absence of rules, making Calvinball a pure battle of determination—whoever is more willful in the imposition of rules wins.

Of late progressive academics have been discovering that Calvinball is no fun when you're not making the rules.

Last week Laura Kipnis, a communication professor at Northwestern University, published a much-discussed piece in the Chronicle of Higher Education titled “My Title IX Inquisition.” Kipnis, a self-described feminist, had been brought up on “sex discrimination” charges for an article she wrote criticizing the way such charges are adjudicated. The essay is quite something to read, but it requires a subscription, so we'll let Jezebel's Natasha Vargas-Cooper sum things up:

The trouble for Kipnis started a few months ago when she published an essay in the Chronicle of Higher Education about the growing sexual paranoia on college campuses. . . .
Student activists at Northwestern protested Kipnis' essay by carrying around mattresses. . . . The students, with mattresses in tow, went to Northwestern's president with a petition demanding swift and official condemnation of [the] Kipnis essay. . . .
After the petition was circulated and mattresses dragged to the University President's office, two students filed Title IX complaints against Kipnis. Kipnis was informed of the complaints through email but was not told what she had done or to whom she had allegedly done it.

“Kipnis was then plunged into a secretive and labyrinthine bureaucratic process that she believes threatens her academic freedom” and that she describes in hair-raising detail in the new Chronicle essay. In the end she was cleared of the charges, but the process itself was quite punishing, enough so to have a chilling effect on other academics who may be inclined to express similar views.

Yesterday Vox published another long essay in the same genre, titled “I'm a Liberal Professor, and My Liberal Students Terrify Me.” The author, “a professor at a midsize state school” who evidently does not have tenure, is called Edward Schlosser, but that's not his name. “All my remotely offensive or challenging opinions, such as this article, are expressed either anonymously or pseudonymously,” he explains.

As we read the Schlosser piece, we felt more Schadenfreude than sympathy, and we wondered if that reflected poorly on us. (Spoiler: Nah.) To our mind, he got off on the wrong foot with his opening anecdote, which was about a conservative student whom he depicts as a knucklehead. This column acknowledges the existence of conservative knuckleheads, and we are in no position to dispute Schlosser's account or his evaluation of this student. But the anecdote seemed gratuitous. And even under cover of anonymity, Schlosser is much more respectful of knuckleheads when they are on the left.

A piece by National Review's Charles Cooke clarified our lack of sympathy for Schlosser:

For all the unconfined joy that conservatives will take from such clear and unadulterated admissions of this fact, the important part of Schloss's [sic] essay in fact lies in the first clause of its headline, not the second. We already knew that our present discontent is the fault of the lunatic Left and its many young acolytes. What we did not know, however, is that their nominal allies within the academic and journalistic establishments would have such an early breaking point. If you want to take something crucial away from this story, notice who is doing the mourning: “I'm a liberal professor . . .”
I am not at all convinced that this is a sign that the “most recent wave of political correctness is cresting.” Rather, I suspect that it is merely in the process of mutating into a form in which it is less obviously damaging to progressive interests. That “backlash” that David notes? It's not really a backlash at all. It's a rearguard action. And that “concern” that we are supposedly hearing from Jezebel and The Nation? It is not the product of intellectual honesty or of a more general desire to institute academic liberty on campus; it's a self-serving attempt to fight back against those revolutionaries who are eating their own.

In other words, progressives (e.g., Schlosser) want to keep playing by Calvinball rules when their opponents are conservatives, but they expect their dispute with the left to be governed by the rules of old-fashioned liberalism—such as free speech, due process, academic freedom and the scientific method.

Cooke argues, quite rightly, that that's an outrageous demand—that progressives shouldn't (or shouldn't be allowed to) impose such a double standard. We propose that they cannot do so—that the desired double standard is both logically incoherent and impossible to sustain in practice.

One obvious objection to any double standard is that liberalism—and let us emphasize we are using the term in its old-fashioned sense; the opposite of “liberal” is “illiberal,” not “conservative”—makes universal claims, so that any double standard amounts to a betrayal of liberalism. That's a fine argument, but it doesn't establish the impossibility of a double standard. Social systems have existed—think of the American South under slavery and Jim Crow—in which a dominant ingroup governed itself in accord with liberal principles while subjecting the outgroup to a combination of oppressive rules and often-cruel whims.

An objection to our analysis of the political-correctness problem is that our taxonomic categories—“progressives,” “conservatives” and “the left”—are vague, fluid and relative. But that's what makes it dauntingly complicated simply to define an outgroup (conservatives) to which to apply Calvinball rules. Many individuals can't easily be classified as members of the ingroup or outgroup. Most pertinent to this point, it is probable that the people Schlosser describes as his “liberal students” think of him as a conservative.

Still, the categories are clear enough that we can apply them in the specific cases at hand. Kipnis and Schlosser are progressives seeking to limit political correctness; the students who complained against the former and terrify the latter are leftists seeking to push the boundaries.

The progressive wants the leftist to respond to an appeal to reason. Let's see how that works in practice.

Toward the end of his essay, Schlosser quotes a pair of tweets from “critic and artist” Zahira Kelly, which we run together but otherwise quote verbatim: “when ppl go off on evo psych, its always some shady colonizer white man theory that ignores nonwhite human history. but `science'. ok. most `scientific thought' as u know it isnt that scientific but shaped by white patriarchal bias of ppl who claimed authority on it.”

Schlosser responds, in effect (and in contrast to his treatment of that conservative student), Come, let us reason together:

Kelly is intelligent. Her voice is important. She realizes, correctly, that evolutionary psychology is flawed, and that science has often been misused to legitimize racist and sexist beliefs. But why draw that out to the extreme of rejecting scientific inquiry as a whole? Can't we see how it's dangerous to reject centuries of established thought so blithely? Or how scary and extreme that makes us look to people who don't already agree with us? And tactically, can't we see how shortsighted it is to abandon a viable and respected manner of inquiry just because it's associated with white males?

A contributor to the Ace of Spades blog quotes Kelly's tweets in response to Schlosser's essay, which begin as follows: “so @voxdotcom has illustrated what passive aggressive white male violence looks like against black women, whining that we overreact. & see white man is protected while targeting me while I have less power & no recourse. this is your progressive journalism @voxdotcom.”

To be sure, Kelly's tweets are fully protected by the First Amendment and she has not in any way infringed upon Schlosser's rights. (We'd add that her response makes his point far more strongly than he dared, even anonymously.) But if she were a student at his institution, her complaints would have real force.

Conservatives are at a disadvantage when progressives subject them to Calvinball rules; most are predisposed, both temperamentally and ideologically, to expect predictable rules. That's one reason they shun academia (another is that academia shuns them). Having introduced Calvinball to academia, they are asking for a return to liberalism from those who are least committed to it. Some of us who are now experiencing Schadenfreude were in the same position long ago.

Schlosser concludes his essay with a warning to his fellow progressives:

Debate and discussion would ideally temper this identity-based discourse, make it more usable and less scary to outsiders. Teachers and academics are the best candidates to foster this discussion, but most of us are too scared and economically disempowered to say anything. Right now, there's nothing much to do other than sit on our hands and wait for the ascension of conservative political backlash.

In response Cooke is scathing: “The American Left has started to rebel at the exact moment that its own interests are being hurt? Naturally. This isn't about standards; it's about power.”

We've got a different take: Schlosser is wistful for an electoral deus ex machina that he would find ideologically repugnant. That's an expression of profound powerlessness. A counsel of despair is his only hope—though assuming it is a political possibility, it is a genuine hope for any progressive who has, however belatedly, awakened to liberalism's worth. By and large what today's conservatives hope to conserve is the liberal principles that underlie America.

from the Wall Street Journal Best of the Web, 2015-Jun-12, by James Taranto:

When Words Fail
What if someone is retraumatized by trigger warnings?

When this columnist was in the flower of our youth, parents sometimes responded when their children used foul language by saying: “When you talk that way, it just shows you have a limited vocabulary.” A guy we knew, having received such an admonition from his mother, quipped: “My sister knows more bad words than I do. Does that mean her vocabulary is more limited?”

But maybe Mom had a point. Our generation must've really overdone it with the offensive language, because these days it's the youngsters who are censorious. A case in point comes from the young-adult website, where Jenée Desmond-Harris makes what Voxen chief Ezra Klein calls “a really convincing case” against the phrase “you guys.”

Specifically, Desmond-Harris, who confesses that she herself is “a big user of `guys,' ” now thinks the phrase should never be uttered in mixed company:

As I read up on the issue, I realized that my knee-jerk response (”It doesn't seem like that big a deal to me, personally, and changing would require effort on my part and that's hard and tiring”) is nothing more than a very typical lazy excuse for avoiding the tiny tweaks to our lives that can, as a whole, make society more equal.
Now I'm convinced that “guys”—unless we are actually addressing a group of guys—has got to go. . . .
In an interview filmed in 2012, author and activist Alice Walker argues it's especially troubling when women refer to themselves as “guys,” because it represents a “fear of being feminine.” 

Perhaps you know a woman in her 40s who has failed to reach her full potential because her feminine spirit was crushed by “The Electric Company.” Desmond-Harris acknowledges that “you can think of the push to drop `guys' as political correctness run amok,” but urges you instead to “think of it as making a tiny change that doesn't cost you anything and will . . . help you make the world just a tiny bit more fair.”

And it's not as if there aren't plenty of alternatives. Desmond-Harris suggests “friends,” “folks,” “everyone,” “colleagues,” “gang,” “team,” “y'all” and “guys and girls.” Other inclusive possibilities might include “guys and gals,” “guys and dolls” or “guys and guyesses.” Our personal favorite is a classic that never gets old, “ladies and germs.”

Even if one thinks—as Desmond-Harris herself did until she “read up on the issue”—that this is all a bit silly, it goes too far to characterize it as “political correctness run amok.” After all, not every phrase is appropriate for every situation. A judge would not address a jury as “you guys,” even in the statistically unlikely event that it was composed of 12 men, none of them angry.

But political correctness can run amok. You've probably heard of “trigger warnings,” which are all the rage on campus these days. If you haven't, the Everyday Feminism blog has a lengthy explainer, written by Gillian Brown. It begins with the following “editor's note”:

Like this phenomenal article, Everyday Feminism definitely believes in giving people a heads up about material that might provoke our reader's trauma. However, we use the phrase “content warning” instead of “trigger warning,” as the word “trigger” relies on and evokes violent weaponry imagery. This could be re-traumatizing for folks who have suffered military, police, and other forms of violence. So, while warnings are so necessary and the points in this article are right on, we strongly encourage the term “content warning” instead of “trigger warning.”

That is followed by a “content warning”: “This article discusses triggering in detail and mentions common topics of triggering (sexual assault, anxiety, health anxiety, depression, death, non-specific fears and phobias).”

Note that the content warning not only twice uses the triggering word “triggering” but also “mentions common topics of triggering,” albeit without discussing them in detail. Which in turn raises the question: What if trigger warnings, however delicately phrased, are themselves triggering? That's the whole point of a warning, is it not? The proximate purpose of a fire alarm, for instance, is precisely to induce alarm.

Further, both articles use the triggering nomenclature right in the headlines, which precede any warnings. Vox: “Why I'm Finally Convinced It's Time to Stop Saying `You Guys.' ” Everyday Feminism: “Not Sure What People Mean by `Triggering?' This Article Is Your One-Stop 101.”

That points to a practical difficulty with the entire effort to banish offensive terminology. If the number of taboo words is small, euphonyms like “F-word” and “N-word” will suffice. But once the list grows beyond a handful, that approach becomes unmanageable.

Try rephrasing Everyday Feminism's content warning so that it conveys the message without including any language that might be triggering. The best we can do is “DO NOT READ this phenomenal article,” and we suspect Gillian Brown would object to that.

Anyway, isn't all language potentially triggering? Yes it is—and not just language, according to Brown. One of her headings asks “What Sorts of Things Can Be Triggers?” and she answers:

Anything. Absolutely anything.
In the most straightforward of cases, triggers are anything the person can sense that reminds them [sic] of the cause of the triggering.
For instance, if a person is sensitive about sexual assault, they might be triggered by seeing somebody who reminds them of an attacker, or by being touched in a certain way, or by seeing news articles that mention sexual assault.
However, due to the completely illogical way in which the mind works sometimes, triggers are often more convoluted than that.
To give a personal example, I am often triggered when I see books by Terry Pratchett. I have been told that his books are fantastic, but I cannot bring myself to read any of them because Pratchett now suffers from Alzheimer's disease.
I have mentioned this particular trigger to friends and family before and have been met with surprise, disbelief, and remarks on how silly I'm being.
As you might imagine, such remarks are not helpful.

That, ladies and germs, is political correctness run amok.

from the Wall Street Journal, 2015-Jun-7, by Jessica Gavora:

How Title IX Became a Political Weapon
Now that the law is used to suppress free speech, even liberals are alarmed. Where have they been?

Since its passage 43 years ago, Title IX has proved to be a remarkably elastic law. It has been stretched and warped from its original intent to end discrimination on the basis of sex in schools that receive federal funding. As long as Title IX's victims were wrestlers or swimmers from low-revenue men's sports that were jettisoned to achieve participation-parity with women's sports, nobody much cared. But now that the law is being turned into a tool to suppress free speech on college campuses, even liberals are starting to cry foul.

A tipping point was reached earlier this year when a Northwestern University film professor and feminist, Laura Kipnis, dared to criticize new Title IX regulations governing campus sex. The regulations, promulgated in the name of preventing a “hostile environment” for women, broadly defined sexual harassment as “any unwelcome conduct of a sexual nature.” An unwelcome touch or comment was grounds for a Title IX investigation, with college administers forced to be police, judge and jury in allegations of sexual harassment from offensive speech to rape.

In February Ms. Kipnis wrote in the Chronicle of Higher Education that the new rules infantilize women by encouraging them to “regard themselves as such exquisitely sensitive creatures that an errant classroom remark could impede their education.” Instead of preventing a hostile environment, she wrote, such rules instead have created an atmosphere of “sexual paranoia” that is spinning out of control. “In the post Title IX landscape,” she noted, “sexual panic rules. Slippery slopes abound.”

For her candor about the overreach of Title IX, Ms. Kipnis was hit with . . . a Title IX investigation. In an argument that would have made Joseph Stalin blush, two Northwestern students charged that Ms. Kipnis's criticism of Title IX violated Title IX. The university launched an investigation and subjected Ms. Kipnis to what she has called an “inquisition.”

She was eventually acquitted, but the episode has left academics and the liberals who love them suddenly complaining about abuse under the law. As the liberal writer Josh Marshall declared on his Talking Points Memo blog, “The very idea that a professor could be hit with a Title IX investigation over an opinion article she wrote in The Chronicle of Higher Education is so palpably ridiculous that there is simply no need to go further.”

To which many coaches and male athletes who have seen their sport's program unfairly penalized or canceled under Title IX might reply, like John McClane greeting the LAPD in “Die Hard”: “Welcome to the party, pal.”

The road that took Title IX from a classically liberal antidiscrimination law to an illiberal gender-quota regime began in 1996 with an innocent-seeming “Dear Colleague” letter written by federal education officials in the Clinton administration. The letter targeted colleges and universities struggling to answer the difficult question of what constitutes (unlawful) discrimination under Title IX in sports programs that are already segregated on the basis of sex. It instructed schools that quotas—equalizing the participation of men and women in athletics, despite demonstrated disparities of interest—were the way to comply with the law.

Activists who had been instrumental in creating the new standard took the federal guidance and ran with it. Aided by the trial bar, they initiated lawsuits that enshrined the new bureaucratic “guidance.” The case brought against Brown University in the early 1990s by a coalition of feminists and trial lawyers set the stage. It alleged that Brown—which offered more women's sports teams than men's at the time—had violated the law by downgrading two women's teams. The university produced reams of data showing that women at Brown had more opportunities to play sports than men, but more men than women played intramural sports by 3 to 1 and club sports by a whopping 8 to 1.

To the applause of the Clinton administration, the court ruled that such data didn't matter. The responsibility of the school wasn't to provide equal opportunity to participate in sports—it was to educate women to be interested in sports. In effect the ruling said that Brown women didn't know what they wanted. They only thought they were dancers or actors or musicians. They had to be taught that they were really athletes. They didn't know what was good for them but the government did.

With that, Title IX was transformed. It no longer mattered if schools offered equal or more-than-equal opportunities for women in athletics. If colleges couldn't produce enough actual female bodies on the playing field, the schools were forced to cut male athletes until the participation rates of both sexes were the same. No legislation, let alone public discussion, made this so. When it comes to Title IX, quaint notions of the people's representatives having anything to do with the law ended when the law passed.

The movement of Title IX into areas as remote as the mere discussion of sexual politics on campus has followed the same trajectory. Beginning in 2011 the Obama Education Department wrote “Dear Colleague” letters to schools. Suddenly, schools were responsible for harassment and assault that occur off campus. A lower standard of evidence was established to prove the guilt of the accused. Earlier protections for academic freedom and free expression were dropped.

With that, the pas de deux with activist groups commenced. Title IX investigations of accusations of sexual assault and harassment on campuses exploded. Just as they had with Title IX in sports, activists went in search of victims to be the media face of a rape crisis—and to become plaintiffs in litigation against schools.

The notorious and now-debunked story of the University of Virginia's “Jackie” gang-rape is a case in point. Rolling Stone reporter Sabrina Rubin Erdely was, in her words, searching for a victim who would show “what it's like to be on campus now . . . not only where rape is so prevalent but also that there is this pervasive culture of sexual harassment/rape culture.”

The new demands to combat what federal education officials also call a “rape culture” on campus are so excessive that even current and former Harvard Law professors have publicly complained that their school's attempt to comply has undermined due process and is “overwhelmingly stacked against the accused.” But for Ms. Kipnis, it is the reduction of women to helpless, permanent victim status that has roused her and other feminists to anger.

Feminists might not be so surprised today if they had paid more attention when college women, as a feature of Title IX enforcement, were being treated like impressionable children incapable of choosing to join a sports team. Most of the attention was focused on supposedly sexist men, and when Title IX targeted male athletes, academics like Ms. Kipnis didn't speak out. Now academics are in the cross hairs. Who will be next?

Ms. Gavora is the author of “Tilting the Playing Field: Schools, Sports, Sex and Title IX” (Encounter, 2002).

from, 2015-Jul-28, by Joe Newby:

Facebook: Marine Corps emblem violates community standards

Late Monday, Facebook unpublished the popular pro-military "Locked and Loaded" page, while telling administrators that a picture of the United States Marine Corps emblem with a ribbon marked "In Remembrance" violated their community standards. Jason Light, an administrator from Atlanta, Georgia, told Examiner in an exclusive interview the page was covering the funeral and burial of Marine Lance Corporal Skip Wells, who was killed in Chattanooga.

Administrator Robert Combs also received a three-day ban over the image of the Marine Corps logo. Combs told Examiner all he can do for the next three days is chat, but he intends to replace the page.

"I am just speechless as to how this violates community standards," he said. The screenshot provided by Light did not indicate why the image was yanked, other than Facebook's claim it violated their standards.

The Facebook page boasted over 53,000 likes and was set up to help promote a blog by the same name. While not as large as other pages, Light said, it reached over 1 million people.

Light also posted the graphic to Twitter, where it was re-tweeted by talk show host Neal Boortz. "I'm going to post it back to FB," one person said in response. "Let's see what happens."

It's not the first questionable call by Facebook, as we have reported many times. Recently, the social media giant told one conservative user that her picture of a lilac tree was considered pornographic. On the other hand, it once said that a page calling for the murder of a Texas Tech cheerleader who hunts big game does not violate its standards.

In 2013, Facebook banned one conservative blogger for 30 days over a link she never posted. Another conservative was punished for simply saying "thank you."

Light told Examiner he believes the page was targeted by "fake conservative trolls," people who pretend to be friendly but really aren't. "Many people," he told Examiner, "wanted to be the one to take us down." Facebook has not responded to our request for comments. A screenshot of the allegedly "offensive" emblem can be seen in the slideshow above.

from, 2015-May-22, by Joe Newby:

Facebook to conservative user: Picture of lilac tree considered 'pornographic'

On Thursday, a conservative Facebook user who wished to be identified only as "Carol" told that Facebook declared a picture of a lilac tree to be pornographic after a liberal "troll" complained. Additionally, she said Facebook also called a picture of her granddaughter opening Christmas presents pornographic after complaints from "trolls" who wished to silence her.

Those, she said, were just two of the "stupid" items Facebook took down because of false reports. A picture of Glenn Beck, a friend's dog, and a picture of another friend fishing were also falsely deemed to be pornography after being reported.

This happened, she added, at about the same time Facebook blocked her for 30 days. It all happened, she said, because she accepted a friend request. She "unfriended" the person and was asked to enter a "Security" code. She was then slapped with a 30-day ban from using most of Facebook's features.

This is just one of the many stories we have received from Facebook users in the last few days. While participating in an online "Q&A" with Fox News' Megyn Kelly on Thursday, one user told Kelly that Facebook would not allow her to add new members to her group. Another person asked why Facebook is removing people based on false reports with no follow-up to see if the reports are real. Kelly did not respond.

In another incident, Facebook blocked the administrators of one page based on posts that were forged. The forgeries were reported to the FBI and Facebook was notified, but took no action to mitigate the punishments. An administrator of a pro-Sarah Palin page told Examiner that Facebook locks her out as many as 10 to 12 times per day. This, she added, started about three days ago.

This isn't the first time Facebook has gone "ban-happy." As we have reported in the past, users have been slapped for saying "thank you" and clicking "like," even though a court ruled that doing so is Constitutionally-protected free speech.

While Facebook called Carol's lilac tree "pornography," it has said that a page calling for the murder of a Texas Tech cheerleader who hunts big game does not violate its standards. It also shut down James O'Keefe's page for a time after he posted a voter fraud expose.

Facebook has claimed in the past that it supports free speech. The conservatives we have spoken to over the last several years, however, say otherwise.

from the Wall Street Journal, 2015-Jul-17, by John H. McWhorter:

How Dare You Say That! The Evolution of Profanity
From `Odsbodikins' to `belly,' the banned words of our ancestors look as bizarre today as tribal rituals

At street level and in popular culture, Americans are freer with profanity now than ever before—or so it might seem to judge by how often people throw around the “F-bomb” or use a certain S-word of scatological meaning as a synonym for “stuff.” Or consider the millions of fans who adore the cartoon series “South Park,” with its pint-size, raucously foul-mouthed characters.

But things might look different to an expedition of anthropologists visiting from Mars. They might conclude that Americans today are as uptight about profanity as were our 19th-century forbears in ascots and petticoats. It's just that what we think of as “bad” words is different. To us, our ancestors' word taboos look as bizarre as tribal rituals. But the real question is: How different from them, for better or worse, are we?

In medieval English, at a time when wars were fought in disputes over religious doctrine and authority, the chief category of profanity was, at first, invoking—that is, swearing to—the name of God, Jesus or other religious figures in heated moments, along the lines of “By God!” Even now, we describe profanity as “swearing” or as muttering “oaths.”

It might seem like a kind of obsessive piety to us now, but the culture of that day was largely oral, and swearing—making a sincere oral testament—was a key gesture of commitment. To swear by or to God lightly was considered sinful, which is the origin of the expression to take the Lord's name in vain (translated from Biblical Hebrew for “emptily”).

The need to avoid such transgressions produced various euphemisms, many of them familiar today, such as “by Jove,” “by George,” “gosh,” “golly” and “Odsbodikins,” which started as “God's body.” “Zounds!” was a twee shortening of “By his wounds,” as in those of Jesus. A time traveler to the 17th century would encounter variations on that theme such as “Zlids!” and “Znails!”, referring to “his” eyelids and nails.

In the 19th century, “Drat!” was a way to say “God rot.” Around the same time, darn started when people avoided saying “Eternal damnation!” by saying “Tarnation!”, which, because of the D-word hovering around, was easy to recast as “Darnation!”, from which “darn!” was a short step.

By the late 18th century, sex, excretion and the parts associated with same had come to be treated as equally profane as “swearing” in the religious sense. Such matters had always been considered bawdy topics, of course, but the space for ordinary words referring to them had been shrinking for centuries already.

Chaucer had available to him a thoroughly inoffensive word referring to the sex act, swive. An anatomy book in the 1400s could casually refer to a part of the female anatomy with what we today call the C-word. But over time, referring to these things in common conversation came to be regarded with a kind of pearl-clutching horror.

By the 1500s, as English began taking its place alongside Latin as a world language with a copious high literature, a fashion arose for using fancy Latinate terms in place of native English ones for more private matters. Thus was born a slightly antiseptic vocabulary, with words like copulate and penis. Even today modern English has no terms for such things that are neither clinical nor vulgar, along the lines of arm or foot or whistle.

The burgeoning bourgeois culture of the late 1700s, both in Great Britain and America, was especially alarmist about the “down there” aspect of things. In growing cities with stark social stratification, a new gentry developed a new linguistic self-consciousness—more English grammars were published between 1750 and 1800 than had ever appeared before that time.

In speaking of cooked fowl, “white” and “dark” meat originated as terms to avoid mention of breasts and limbs. What one does in a restroom, another euphemism of this era, is only laboriously classified as repose. Bosom and seat (for the backside) originated from the same impulse.

Passages in books of the era can be opaque to us now without an understanding of how particular people had gotten: In Dickens's “Oliver Twist,” Giles the butler begins, “I got softly out of bed; drew on a pair of…” only to be interrupted with “Ladies present…” after which he dutifully says “…of shoes, sir.” He wanted to say trousers, but because of where pants sit on the body, well…

Or, from the gargantuan Oxford English Dictionary, published in 1884 and copious enough to take up a shelf and bend it, you would never have known in the original edition that the F-word or the C-word existed.

Such moments extend well into the early 20th century. In a number called “Shuffle Off to Buffalo” in the 1932 Broadway musical “42nd Street,” Ginger Rogers sings “He did right by little Nelly / with a shotgun at his bell-” and then interjects “tummy” instead. “Belly” was considered a rude part of the body to refer to; tummy was OK because of its association with children.

Obviously, it was people of a certain class who most avoided profanity in these times. Novelist Frances Trollope was appalled at the amount of cursing she heard among working people when she toured America in the 1820s. At the turn of the 20th century, a slang dictionary notes that the F-word was already in widespread use, although we hardly know it from anything anyone put in writing at the time. In the early 20th century, a cigar-chomping man-of-the-people sort like journalist H.L. Mencken freely used the term euphemized as SOB among friends, despite never venturing it in his newspaper columns.

Still, a sense reigned that one kept the “bad words” out of polite society. The same year that Ginger Rogers was substituting tummy for belly on Broadway, Cole Porter put the SOB term into a song lyric sung by a woman in “Gay Divorce”—but with the joke that when the singer uttered the final word in the expression, a drum smack from the pit drowned her out. Certain proprieties were assumed in public settings.

We may congratulate ourselves for being beyond such uptightness. When hit television shows like “The Sopranos,” “Girls” and “Louie” would attract criticism for not having their characters regularly use the classic four-letter words, those words are no longer truly profane. They qualify more as salty. That Martian anthropologist would hardly recognize them as “bad words,” as opposed to ones we avoid using in certain public spaces, such as school and work (to an extent).

But we heartily erupt with those same words the second we escape those settings, and young people drink them in avidly in music and social media.

In other respects, we're actually quite a bit like our ancestors. We are hardly beyond taboos; we just observe different ones. Today, what we regard as truly profane isn't religion or sex but the slandering of groups, especially groups that have historically suffered discrimination or worse. Our profanity consists of the N-word, that C-word once suitable for an anatomy book discussion of women's bodies, and a word beginning with f referring to gay men (and some would include a word referring to women beginning with b).

It might seem strained to compare our feelings about the N-word with a bygone era's appalled shuddering over the utterance of “By God!” But do note that I have to euphemize the N-word here in print just as someone would have once have felt compelled to say, “By Jove!”

As late as the early 1960s, an episode of “The Dick Van Dyke Show” had middle-class Everycouple Rob and Laura Petrie horrified that their son had uttered what the context suggests was the F-word. The Petries were portrayed as rather “hip” for their era, but Rob actually refers to the word as “evil.”

Today, it is the N-word that such a couple would smack down with precisely this indignation. The response is the same; only the issues of concern have changed.

Use of the N-word turned the previously beloved comedian Michael Richards into a persona non grata in 2006, led to the end of Laura Schlessinger's syndicated radio show in 2010 and put football player Richie Incognito on the defensive for months in 2013.

Society tiptoes around a stipulation, as fragile as it is formal, that black people can use it but white people can't. A recent book by Jabari Asim is wholly devoted to outlining the justification and parameters of this arrangement, “The N-Word, Who Can Say It and Why.”

Anthropologists call this sort of response the policing of a taboo, much as we might associate that label exclusively with distant lands. Taboos are about what we fear. In one era, it is the wrath of God; in another, hanky-panky; in ours, the defamation of groups.

We may feel that the taboo against discrimination is a moral advance. Indeed, we can celebrate that we are blissfully past the days when, in 1934, an aide to young Nelson Rockefeller would write of a new secretary, “She weighs close to 200, has red hair, and is a niggir [sic],” as Richard Norton Smith recounts in his recent biography.

History does bring progress, as it also has in how we refer to homosexuality. After his lyricist partner Lorenz Hart—who was given to drinking binges—died in 1943, the composer Richard Rodgers grumbled that he had enjoyed writing his latest score by himself, without having to “search all over the globe for that little fag.” A man of Rodgers's place would be unlikely to say that to the star of his latest show today, and the dismissive expression “that's so gay” is increasingly on the ropes among anyone with even pretensions of enlightenment.

But we are just as capable as previous eras of policing our taboos with unquestioning excess. An administrator in Washington, D.C.'s Office of the Public Advocate had to resign in 1999 for using the word niggardly in a staff meeting. At the University of Virginia, there was a campus protest in 2003 after a medical school staffer said that a sports team called the Redskins “was as derogatory to Indians as having a team called n— would be to blacks.” Julian Bond, who was then the head of the NAACP, said that only his respect for free speech kept him from recommending that she be fired. In 2014, the lawyer and writer Wendy Kaminer elicited aggrieved comments for saying, during a panel discussion at Smith College, that when we use euphemisms for the N-word we all “hear the word n— in our head.”

The basic idea that slurring groups is intolerable and unenlightened is welcome and urgent. But we fail to make important distinctions when we reflexively insist that it is a moral abomination even to refer to such words. And usages change.

Many black men use the N-word to mean, basically, “buddy.” As black speech, music, greetings and even demeanor become an increasingly large component of the cultural default setting of young Americans of all colors, we will continue to see nonblacks casually calling each other the N-word in emulation. We should check the impulse to compare such usage to the venom of Bull Connor.

Some might object that we should not check that impulse, and that extremism is necessary to create lasting social change. But it's useful to recall that, when it comes to profanity, there were once people who considered themselves every bit as enlightened as we see ourselves today, with the same ardent and appalled sense of moral urgency. They were people who said “Odsbodikins” and did everything they could to avoid talking about their pants.

Dr. McWhorter teaches linguistics, American studies, philosophy and music at Columbia University. His latest book is “The Language Hoax” (Oxford University Press).

from the Wall Street Journal, 2015-Jun-29, by William McGurn:

Justice Kennedy's Bitter Truth
The same-sex marriage ruling will unleash the legal furies against those who disagree with it.

In the heady days since Anthony Kennedy unearthed a constitutional right for Americans “to define and express their identity,” the extravagance of the Supreme Court's claim has taken some by surprise. It shouldn't have. In finding for same-sex marriage the way he did, Justice Kennedy made official what he made inevitable a quarter-century back.

That was in 1992. The occasion was a Supreme Court decision on abortion into which Mr. Kennedy inserted a new definition of liberty. Where Thomas Jefferson had grounded human liberty in self-evident truth, Mr. Kennedy holds that the mere self suffices.

“At the heart of liberty,” he wrote, “is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life.”

Now he has followed through. In Obergefell v. Hodges, the court substitutes for the laws passed by the people acting through their state legislatures a new constitutional right to “dignity” based on the court's “better informed understanding.”

Back when poor Harry Blackmun in Roe v. Wade established a right to privacy that likewise appears nowhere in the Constitution, he wrote under the conceit that his decision would resolve the issue once and for all. Instead, his 1973 ruling launched the culture wars.

Obergefell is Roe on steroids. Roe legalized a market for abortion for those who wanted them and those who provided them. It was qualified by conscience protections plus riders attached to federal legislation greatly limiting the use of taxpayer dollars to underwrite the practice. So Roe didn't demand much of those on the other side—or on the sidelines.

Obergefell is another thing altogether. In one of the great flimflams of American life, it is a prescription for endless litigation smuggled in under libertarian clothing. This began with the opening question put to all those who held the classic view of marriage: What can it possibly matter to you, they were asked, if two men or two women who love each other call their relationship marriage?

We learned that it matters a great deal.

It matters to Brendan Eich, who was forced to resign last year as CEO of the company he co-founded after it became public that he had donated $1,000 to Proposition 8, the successful California ballot measure banning same-sex marriage.

It matters to Chick-fil-A, which in 2012 saw the mayors of Chicago and Boston declare the restaurant chain had no place in their cities because its chief executive held the same view of marriage that Barack Obama held until very recently.

It matters to Catholic Charities, which in several states has been forced out of the adoption business either because the charity does not offer same-sex spousal benefits or declines to place children for adoption with same-sex couples.

It matters for cake bakers, photographers, florists, jewelers and pizza-parlor owners who happily serve gay customers but draw the line at assisting gay weddings.

Finally, it matters to all religious schools and religious institutions. Give the Obama administration its due: The president's solicitor general admitted during the Obergefell oral argument that a victory for same-sex marriage would put the tax-exempt status of such institutions on the chopping block.

The reason for all this is that the right for men to marry men or women to marry women is only half of the equation—and not even the most important half at that.

The other half involves antidiscrimination statutes and regulations, not to mention the discretion of federal, state and even private bureaucracies regarding everything from funding and accreditation to tax exemption.

In short, there is nothing live-and-let-live about the way this movement has operated the past few years, and to pretend otherwise requires a willful blindness. Now, with Obergefell, the full furies have been released.

As Justice Samuel Alito suggested in his dissent, thousands of Americans who never dreamed that the issue would affect them will soon get highly personal lessons in how the legalization of same-sex marriage by judicial fiat threatens their schools, their institutions and even their livelihoods. This is not your father's culture war.

A century ago, another Supreme Court justice famously wrote that the Constitution “is made for people of fundamentally differing views.” How far we have traveled since.

Those seeking to crush all dissent from the new judicial orthodoxy on marriage will not always win, not least because the right to the free exercise of religion—in bald contrast to Mr. Kennedy's right to dignity—is in fact in the Constitution. Still, however individual cases may turn out, by foreclosing the option for democratic debate and compromise the Supreme Court has ensured a bitter national harvest.

Welcome to Justice Kennedy's world. Where upholding the Kennedy definition of liberty—the right to define your own truth—turns out to mean denying that same right to millions of Americans who define marriage and truth in a way different from his.

from the Wall Street Journal Best of the Web, 2015-Jun-29, by James Taranto:

`Progress' Needs Enemies
The ungracious victory of same-sex marriage.

It didn't take long for the backlash to emerge after the Supreme Court handed down Obergefell v. Hodges. From opponents of same-sex marriage one heard the usual empty talk about constitutional amendments and civil disobedience. The fiercer—and uglier—backlash came from the victors.

A case in point is the Patriot-News. The Harrisburg, Pa., paper rushed out an editorial that began celebratorily enough: “June 26 just became a de facto national holiday for gay Americans. . . . [Justice Anthony] Kennedy nailed it: There are no rights more fundamental than due process and equal treatment under the law.”

Not even free speech? Definitely not, according to the Patriot-News, which in the same editorial announced this new policy: “As a result of Friday's ruling, PennLive/The Patriot-News will no longer accept, nor will it print, op-Eds and letters to the editor in opposition to same-sex marriage.”

That quote comes from the Daily Caller's Betsy Rothstein, who reports that “after receiving strong pushback,” the paper softened its policy a tiny bit. The editorial now reads:

As a result of Friday's ruling, PennLive/The Patriot-News will very strictly limit op-Eds and letters to the editor in opposition to same-sex marriage.
These unions are now the law of the land. And we will not publish such letters and op-Eds any more than we would publish those that are racist, sexist or anti-Semitic.
We will, however, for a limited time, accept letters and op-Eds on the high court's decision and its legal merits.

Of course Advance Publications Inc., which owns the Patriot-News, has a perfect right under the Constitution to make its own editorial decisions. The announcement, however, is both strange and gratuitous.

It's strange because the Patriot-News's intolerant new policy actually is at odds with the ruling to whose authority the paper claims to bow. “It must be emphasized,” Justice Kennedy wrote, “that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned. . . . The same is true of those who oppose same-sex marriage for other reasons.”

It's gratuitous because ordinary editorial practices would have yielded the same result. Now that the question is settled as a matter of law, letters and op-eds arguing the policy merits can be rejected as untimely. The same will be true “after a limited time” about those dealing with the legal merits.

In an email to the Caller's Rothstein, Patriot-News editorial page editor John Micek attempted a further explanation:

No reasonable person would publish anti-Semitic speech, racist speech or sexist speech. It seems entirely reasonable to me to specifically add homophobic speech to that list.
While that sort of speech has long been banned under our community guidelines for commenting, the Opinion page had never explicitly stated such a policy. . . .
We will not accept letters/op-Eds that use the Court's ruling as a pretext to engage in hate speech.

To his credit, Micek acknowledges in his email that “hate speech” is “constitutionally permissible”—i.e., protected. So—let us repeat—is a private corporation's right not to publish such speech. But even the revised editorial does not distinguish “hate speech” from other speech “in opposition to same-sex marriage.” The latter category is entirely a subset of the former, in the editorial view of the Harrisburg Patriot-News: If you oppose same-sex marriage, you are by definition a hateful person.

That's not even the most extreme such reaction. Dylan Byers, who covers media for Politico, noticed on Friday “three news organizations—BuzzFeed, Huffington Post [sic] and Mashable—changed their Twitter avatars to feature the rainbow flag,” a gay-pride symbol:

The decision to endorse a legal ruling that is opposed by many conservatives—including the vast majority of Republican presidential candidates—signals how comfortable some news outlets have become with backing certain political causes, and highlights a divide among media organizations not always accounted for in the familiar dichotomies of old vs. new, right vs. left, etc.

As Byers notes, there are other “digital-first organizations,” like Bloomberg News and Politico itself, which it would be “difficult to imagine” taking sides in a controversy in the manner of BuzzFeed et al.

There's a fairly obvious explanation: The latter category of online “news organizations” are more like opinion magazines than old-fashioned (purportedly) objective newspapers. Even before the Web no one was surprised when the New Republic or National Review espoused a point of view.

That, however, is not the answer Byers got from one editor:

For Ben Smith, the editor-in-chief of BuzzFeed, same-sex marriage is an issue which does not have sides. On Friday, he told the On Media blog that BuzzFeed's Twitter avatar was in keeping with its standards guide: “We firmly believe that for a number of issues, including civil rights, women's rights, anti-racism, and LGBT equality, there are not two sides.”

That belief is obviously absurd. According to a Friday BuzzFeed news story, “The U.S. Supreme Court ruled in a 5-4 decision that states cannot ban same-sex marriage.” If there aren't two sides, that should have read “a 5-0 decision.” But actually, even the zero implies another side. How about “a 5 decision”? But how could there have been a decision without an alternative to decide against? The sentence should have read: “The U.S. Supreme Court ruled in a 5 that states cannot ban same-sex marriage.”

Aside from being logically incoherent, Smith's denial that another side of the question even exists demonstrates a lack of filial piety. In Hernandez v. Robles (2006), New York's highest court considered the question and reached the opposite conclusion: “We hold that the New York Constitution does not compel recognition of marriages between members of the same sex. Whether such marriages should be recognized is a question to be addressed by the Legislature.”

The author of that decision, Judge Robert S. Smith, is Ben Smith's father. (The New York Legislature legalized same-sex marriage in 2011, and Bob Smith left the bench when his term ended in 2014.)

We're having some fun here; obviously Smith wasn't speaking literally and meant simply that he and his colleagues consider the other side to be beneath contempt. But then there is this, from a blog post by Andrew Rosenthal, editorial page editor of the New York Times:

Gov. Bobby Jindal of Louisiana said: “This decision will pave the way for an all out assault against the religious freedom rights of Christians who disagree with this decision. This ruling must not be used as pretext by Washington to erode our right to religious liberty. The government should not force those who have sincerely held religious beliefs about marriage to participate in these ceremonies.”
All of that, of course, is ridiculous. No one has ever attempted, or will attempt, to force anyone to participate in any same-sex marriage ceremony.

That last statement is a flat-out factual falsehood, and Rosenthal surely knows it. There have been several widely publicized cases in which state and local government agencies have attempted to coerce small-business proprietors with conscientious objections to participate in same-sex ceremonies (not all of which, ironically, the states in question recognized as marriages at the time).

In an editorial Saturday, the Times comes close to acknowledging the untruth of Rosenthal's claim: “The dwindling number of Americans who oppose same-sex marriage have shifted tactics to rely on so-called religious-freedom laws, which they say allow them to, among other things, decline to provide business services for same-sex weddings.”

The American Civil Liberties Union chose this moment to announce—in a Friday Washington Post op-ed by deputy legal director Louise Melling—that it no longer favors religious freedom:

The ACLU supported the RFRA's passage at the time because it didn't believe the Constitution, as newly interpreted by the Supreme Court, would protect people such as Iknoor Singh, whose religious expression does not harm anyone else. But we can no longer support the law in its current form.

The Obergefell decision left many religious people worried that, as headline of a Rod Dreher column at chillingly puts it, “Orthodox Christians Must Now Learn to Live as Exiles in Our Own Country.” Leading progressives, in contrast with Justice Kennedy, are not even offering weak reassurances that Dreher is overreacting. To the contrary, they are doing their best to make clear their determination to crush all dissent.

It seems to us that the headline's conclusion is premature. Dreher agrees; his essay begins: “No, the sky is not falling—not yet, anyway.” It is quite possible that public opinion, which has moved quickly in support of same-sex marriage, will recoil at efforts to bully conscientious objectors, whose numbers, as the Times notes, are “dwindling” anyway.

But why can't progressives be gracious in victory? Why, having won the war, do they so greedily anticipate the next battle? We can think of psychological and political explanations but would like to offer a philosophical one.

A common refrain among supporters of same-sex marriage has been that they are on “the right side of history.” In other contexts as well, that's been a common refrain of President Obama, America's leading progressive politician. As Jonah Goldberg noted in a 2014 column, such rhetoric serves multiple functions: In foreign policy—as when Obama declared ISIS to be “on the wrong side of history” last summer, it's “a sign of weakness” (we'd say an excuse for inaction). “On social issues like, say, gay marriage, it amounts to a kind of impatient bullying that you can afford when time is on your side; `Your defeat is inevitable, so let's hurry it up.' ”

Goldberg summarizes the intellectual history of this idea of “progress”:

The idea that history moves in a predetermined, inexorable path amounts to a kind of Hallmark-card Hegelianism. Marx, who ripped off a lot of his shtick from the philosopher Hegel, popularized the idea that opposition to the inevitability of socialism was anti-intellectual and anti-scientific. The progression of history is scientifically knowable, quoth the Marxists, and so we need not listen to those who object to our program. Later, Lenin, Stalin, Mao and others would use this reasoning to justify murdering millions of inconvenient people. It was a “God is on our side” argument, minus God.
In fairness, I doubt Barack Obama and John Kerry have Marx or Hegel on the brain when they prattle on about the right and wrong sides of history. They more properly belong in what some call the “Whig school” of history, coined in 1931 by historian Herbert Butterfield. The Whiggish tendency in history says that the world progresses toward the inevitable victory of liberal democracy and social enlightenment.

The rapid social acceptance of same-sex marriage—an almost unheard-of idea 30 years ago, a fringe one 20 years ago, a controversial one 10 years ago, a fait accompli now—fits the theory perfectly.

But when “history” triumphs, as it did (according to the theory) last Friday, it does not thereby come to an end. It continues to move, and the only way it can move is foward. In order to remain on the right side of history, the progressive needs to define others as being on the wrong side. Thus “progress” will always find an enemy to oppose.

from the Daily Signal, 2015-Jul-2, by Kelsey Harkness:

State Silences Bakers Who Refused to Make Cake for Lesbian Couple, Fines Them $135K

Oregon Labor Commissioner Brad Avakian finalized a preliminary ruling today ordering Aaron and Melissa Klein, the bakers who refused to make a cake for a same-sex wedding, to pay $135,000 in emotional damages to the couple they denied service.

“This case is not about a wedding cake or a marriage,” Avakian wrote. “It is about a business's refusal to serve someone because of their sexual orientation. Under Oregon law, that is illegal.”

In the ruling, Avakian placed an effective gag order on the Kleins, ordering them to “cease and desist” from speaking publicly about not wanting to bake cakes for same-sex weddings based on their Christian beliefs.

“This effectively strips us of all our First Amendment rights,” the Kleins, owners of Sweet Cakes by Melissa, which has since closed, wrote on their Facebook page. “According to the state of Oregon we neither have freedom of religion or freedom of speech.”

The cease and desist came about after Aaron and Melissa Klein participated in an interview with Family Research Council's Tony Perkins. During the interview, Aaron said among other things, “This fight is not over. We will continue to stand strong.”

Lawyers for plaintiffs, Rachel and Laurel Bowman-Cryer, argued that in making this statement, the Kleins violated an Oregon law banning people from acting on behalf of a place of public accommodation (in this case, the place would be the Kleins' former bakery) to communicate anything to the effect that the place of public accommodation would discriminate.

Administrative Law Judge Alan McCullough, who is employed by the Oregon Bureau of Labor and Industries and was appointed by Avakian, threw out the argument in the “proposed order” he issued back in April.

But today, Avakian, who was in charge of making the final ruling in the case—and is also an elected politician—reversed that decision.

“The Commissioner of the Bureau of Labor and Industries hereby orders [Aaron and Melissa Klein] to cease and desist from publishing, circulating, issuing or displaying, or causing to be published … any communication to the effect that any of the accommodations … will be refused, withheld from or denied to, or that any discrimination be made against, any person on account of their sexual orientation,” Avakian wrote.

The Kleins' lawyer, Anna Harmon, was shocked by the provision.

“Brad Avakian has been outspoken throughout this case about his intent to `rehabilitate' those whose beliefs do not conform to the state's ideas,” she told The Daily Signal. “Now he has ruled that the Kleins' simple statement of personal resolve to be true to their faith is unlawful. This is a brazen attack on every American's right to freely speak and imposes government orthodoxy on those who do not agree with government sanctioned ideas.”

Hans von Spakovsky, a senior legal fellow at The Heritage Foundation, called the order “outrageous” and said citizens of Oregon should be “ashamed.”

“This order is an outrageous abuse of the rights of the Kleins to freely practice their religion under the First Amendment,” he said.

It is exactly this kind of oppressive persecution by government officials that led the pilgrims to America. And Commissioner Avakian's order that the Kleins stop speaking about this case is even more outrageous—and also a fundamental violation of their right to free speech under the First Amendment.

Avakian would have fit right in as a bureaucrat in the Soviet Union or Red China. Oregon should be ashamed that such an unprincipled, scurrilous individual is a government official in the state.

The case began in February 2013 when Rachel and Laurel Bowman-Cryer filed a complaint against the Kleins for refusing to bake them a wedding cake.

At the time of the refusal, same-sex marriage had not yet been legalized in Oregon.

The Bowman-Cryers' complaint went to the Oregon Bureau of Labor and Industries, which is in charge of defending the law that prohibits businesses from refusing service to customers based on their sexual orientation, among other characteristics, called the Equality Act of 2007.

In January 2014, the agency found the Kleins unlawfully discriminated against the couple because of their sexual orientation. In April, McCullough recommended they pay $75,000 to Rachel and $60,000 to Laurel.

In order to reach the total amount, $135,000, Rachel and Laurel submitted a long list of alleged physical, emotional and mental damages they claim to have experienced as a result of the Kleins' unlawful conduct.

Examples of symptoms included “acute loss of confidence,” “doubt,” “excessive sleep,” “felt mentally raped, dirty and shameful,” “high blood pressure,” “impaired digestion,” “loss of appetite,” “migraine headaches,” “pale and sick at home after work,” “resumption of smoking habit,” “shock,” “stunned,” “surprise,” “uncertainty,” “weight gain” and “worry.”

In their Facebook post, the Kleins signaled their intention to appeal Avakian's ruling, writing, “We will not give up this fight and we will not be silenced,” already perhaps putting themselves at risk of violating the cease and desist.

from the Wall Street Journal, 2015-Aug-13, by Jacob Gershman:

Civil Litigation
Christian Baker Can't Turn Down Gay Couple, Colorado Court Rules

A state appeals court in Colorado ruled on Thursday that a Christian baker outside of Denver can be fined for refusing to design a cake for a same-sex wedding.

The Colorado Court of Appeals rejected the argument by lawyers for the cake shop owner who argued that forcing him to create and sell a cake to a gay couple planning a wedding celebration violated his First Amendment rights.

Coming in the wake of the Supreme Court's landmark ruling for gay marriage, the decision is the latest to limit the rights of religious business owners involved in wedding services to turn away same-sex couples.

The dispute started in 2012 when Charlie Craig and David Mullins visited Masterpiece Cakeshop in Lakewood and requested a cake to celebrate their planned wedding. The couple had plans to marry in Massachusetts but wanted to celebrate with their friends in Colorado, which at the time did not permit same-sex marriages, according to the opinion.

Masterpiece owner Jack Phillips declined the couple's request, telling them he doesn't create wedding cakes for same-sex weddings because of his religious beliefs, according to the opinion, which said he advised the two men that he would be happy to sell them other baked goods.

“Phillips believes that decorating cakes is a form of art, that he can honor God through his artistic talents, and that he would displease God by creating cakes for same-sex marriages,” the opinion said.

The couple then filed a complaint with the Colorado Civil Rights Commission, alleging discrimination based on sexual orientation under the Colorado Anti-Discrimination Act. After a commission judge ruled for the couple — a decision affirmed by the commission itself — Mr. Phillips took his case to the appellate court.

The court rejected the baker's argument that his refusal to create the cake was because of his opposition to same-sex marriage, not because of his opposition to the customers' sexual orientation.

Judge Daniel M. Taubman, author of the opinion, said “such distinctions are generally inappropriate,” citing this year's U.S. Supreme Court opinion that declared gay marriage to be a constitutional right nationwide.

“We conclude that the act of same-sex marriage is closely correlated to Craig's and Mullins' sexual orientation, and therefore, the [administrative law judge] did not err when he found that Masterpiece's refusal to create a wedding cake for Craig and Mullins was `because of' their sexual orientation, in violation of CADA,” wrote Judge Taubman, who said Mr. Phillips is free to post a disclaimer online or in his store indicating that his services don't constitute an endorsement of gay marriage.

“This is an important decision for civil rights in Colorado and for the country,” Denver attorney Paula Greisen, who represented the couple, told Law Blog.

An attorney with Alliance Defending Freedom, which represented Masterpiece, said they're considering their legal options. “The court is wrong to deny Jack his fundamental freedoms,” said ADF senior legal counsel Jeremy Tedesco in a statement.

Gay couples have won similar cases in other states. In 2013, the highest court in New Mexico ruled that the owners of an Albuquerque wedding photography company may not deny services to same-sex couples.

Earlier this summer, the Oregon labor commissioner ordered the owners of “Sweetcakes by Melissa” bakery to pay a lesbian couple $135,000 in damages “for emotional and mental suffering resulting from” its refusal to bake them a wedding cake.

Ms. Griesen in Denver said another baker in the area who heard about the case donated a cake to Messrs. Craig and Mullins.

from the Wall Street Journal, 2015-May-13, by Bjorn Lomborg:

The Honor of Being Mugged by Climate Censors
I believe in global warming but also in responsible policies to address it. That can get you in trouble.

Opponents of free debate are celebrating. Last week, under pressure from some climate-change activists, the University of Western Australia canceled its contract to host a planned research center, Australia Consensus, intended to apply economic cost-benefit analysis to development projects—giving policy makers a tool to ensure their aid budgets are spent wisely.

The new center in Perth was to be a collaboration with a think tank I run, Copenhagen Consensus, which for a decade has conducted similar research. Working with more than 100 economists, including seven Nobel laureates, we have produced research that measures the social and economic benefits of a wide range of policies, such as fighting malaria, reducing malnutrition, cutting air pollution, improving education and tackling climate change.

Therein lay the problem. This kind of comparison can upset those who are committed to advocating less effective investments, particularly poor responses to climate change.

Copenhagen Consensus research shows that policy makers considering climate change have practical solutions. Cutting fossil-fuel subsidies is a great idea. Each year $550 billion is wasted, mostly by developing nations, on subsidies that mainly help the rich. A dramatic increase in spending on green-energy R&D is needed, as innovation will drive down the price of green energy to the point that it can outcompete fossil fuels. A well-crafted carbon tax would help too.

But our analyses also show that Kyoto-style approaches—poorly designed EU climate policies, or the pledge to hold warming to two degrees Celsius—are costly and ineffective. There are much better ways we could spend money to help the planet.

That conclusion draws the ire of some climate-change activists. When the collaboration between Copenhagen Consensus and the University of Western Australia was announced, the Australian Climate Council, led by paleontologist Tim Flannery, called it “an insult to the scientific community.” Making up facts, the Climate Council warned supporters that I think “we shouldn't take any steps to mitigate climate change.” This set the tone for the ensuing attacks.

A Sydney Morning Herald columnist wrote that I had produced “anti climate change” work: a documentary, called “Cool It,” exploring the smartest solutions to climate change. In this columnist's topsy-turvy world, one need never even question the science of global warming to be “anti climate change.”

Under pressure, the university canceled its contract with the Australian government to host the new research center. The UWA's vice chancellor said he believed the center would have delivered “robust, evidence-based knowledge and advice” but that “the scale of the strong and passionate emotional reaction was one that the university did not predict.”

A small but loud group of opponents deliberately ignored the Copenhagen Consensus's endorsement of smart climate policies. They also ignored that most of our research has nothing to do with climate. The bulk of our papers focus on health, education, nutrition and the many other areas where relatively small investments can help millions.

Philanthropists, donors and policy makers must prioritize development goals. What Copenhagen Consensus does is ensure that such parties understand the price tags and potential outcomes for each option.

This work has shown that some aid projects do phenomenally well: For instance, providing contraception to the 215 million women across the globe who lack access to it would reduce maternal mortality and boost growth, producing $120 in social benefits for each dollar spent.

Other policies have lower multipliers. Getting sanitation to the poorest half of the world, for example, would produce only $3 of benefits for each dollar spent. This is worthy, but for a government with a limited development budget, it probably isn't the first place to spend money.

We should focus resources where they will do the most good—not where they will make us feel the most good. The United Nations is setting 169 global development targets for the next 15 years. These are laudable aims, but together they're a laundry list: reduce arms trafficking; finance sustainable forest management; achieve universal access to drinking water; halve deaths and injuries from traffic accidents; increase market access for “small-scale artisanal fishers.”

Studies by Copenhagen Consensus show that if the U.N. focused on only 19 of the most efficient projects, each dollar of development spending would do four times more good.

There is a strong sense among some climate-change activists, however, that global warming should not be subject to such comparison. Thus it is easier for them to use emotional labels like “climate denier” than to acknowledge our entire volume of research on aid, development, environmental and health spending, simply because in one specific area, current climate policy, some findings don't line up with their unyielding views.

“Australia's culture of open debate is increasingly sick,” Tim Wilson, Australia's human rights commissioner, wrote Monday. “Outrage, confected or otherwise, is a popular tool to condemn your opponents because it avoids the need to actually debate ideas.”

An 88-year-old UWA fellow said he had never seen anything like this at the university. “People have been rejected on account of insufficient abilities but not because they do not have the right type of view,” Prof. Hank Greenway told the Australian.

What is the lesson for young academics? Avoid producing research that could produce politically difficult answers. Steer clear of results that others might find contentious. Consider where your study could take you, and don't go there if it means upsetting the status quo.

The Australian government remains committed to Australia Consensus, and I am still enthusiastic about working with academics to build a research center that will be judged on its actual output, improving global efforts on aid and development.

Our research will continue to go where the economic evidence leads, rather than where idealism might make us want to end up. Facts must never, ever be seen as an unwelcome contribution to policy debate.

Mr. Lomborg, director of the Copenhagen Consensus Center, is the author of “The Skeptical Environmentalist” (Cambridge Press, 2001) and “Cool It” (Knopf, 2007).

from the Wall Street Journal, 2015-Aug-3:

Thank You, Super Pacs
Trump agrees with liberals who want to regulate politics.

Republicans are fielding an unprecedented array of presidential candidates, yet the media are full of laments about the political role of rich donors and super Pacs. Sorry, folks, you can't have it both ways. Voters who want more political competition should thank the super Pacs for making more candidates competitive.

Friday's quarterly reports of super Pac contributions produced the usual moaning about the rich and powerful dominating the presidential campaign. Multiple super Pacs raised a total of some $258 million through July 31, with Jeb Bush's Pac collecting $102 million. The difference from previous years is that this time nearly every candidate has a super Pac, and even some of those polling back in the pack have raised notable sums. Ted Cruz's super Pacs took in nearly $38 million, while one backing Scott Walker raised $20 million.

The point to keep in mind is that these contributions are political speech protected under the First Amendment. Donations to a candidate are one important measure of support, and the ability to raise money is a sign of political organization. A candidate who trails badly in fund-raising in the primaries is also likely to be less competitive during the general election.

Campaign laws limit donations to individual campaigns to $2,700, which gives an advantage to well-known or wealthy candidates. Super Pac donations can be unlimited and so they give lesser-known candidates like neurosurgeon Ben Carson or Ohio Governor John Kasich a fighting chance.

Donald Trump is taunting those who attended the Koch brothers' retreat for donors this weekend by suggesting that his competitors are “puppets.” What he really means is that he'd prefer if they raised less money so he can have the advantage. As Mr. Trump likes to say, it's good to be rich. But why shouldn't a middle-class politician like Mr. Walker have a chance to raise enough money to compete with a billionaire?

Another myth is that these big donors so dominate the political debate that they drown out the voice of unrich Americans. But the candidates still have to persuade voters, and there is no shortage of media voices. Mr. Bush's super Pac haul hasn't spared him from being pounded by the anti-immigrant right. Super Pacs make it more likely that more candidates will be able to last beyond the three early contests in Iowa, New Hampshire and South Carolina and into the more populous states. This also broadens political competition.

The other complaint, especially on the political left, is that much of this cash is “dark money” because it's secret. But nearly all such donations are disclosed, including those to super Pacs. The liberals who deplore big donations don't mind what our friend David Rivkin calls “dark power,” which is the regulatory discretion of government bureaucrats. This can lead to the secret abuses of power we've seen in Wisconsin and IRS. We'll take our chances with donations freely given than with the arbitrary and partisan rulings of Lois Lerner at the IRS or Ann Ravel at the Federal Election Commission.

In a better world Americans could donate as much as they want to any candidate, not merely to super Pacs. This would make it easier to hold candidates responsible for advertising done on their behalf. But until that day arrives, thank the super Pacs and their donors for increasing political competition.

from the Wall Street Journal, 2015-Jun-19:

The IRS Loses Again
Z Street may soon get to see why the agency sat on its application.

The story of IRS targeting of conservative groups that disagreed with Obama Administration policy isn't over. On Friday the IRS lost another big battle, as the D.C. Circuit Court of Appeals ruled that a viewpoint discrimination lawsuit against the agency can proceed. Next stop, discovery.

The lawsuit began when the Pennsylvania-based pro-Israel group Z Street applied for tax-exempt status in 2009. When Z Street called to inquire about its application, it says an IRS agent said the agency had a policy that required Israel-related applications to get extra scrutiny in a special unit in Washington. Z Street sued in federal court but the IRS claimed the Anti-Injunction Act prevents suits meant to evade the collection of taxes and because the IRS was protected by the doctrine of sovereign immunity. The IRS lost in district court but appealed.

Last month we told you about the oral argument at the D.C. Circuit when appellate judges Merrick Garland, David Tatel and David Sentelle were appalled by the IRS argument. Is the agency's position really that “the IRS is free to discriminate on the basis of viewpoint, religion, race [for 270 days]?” Judge Garland asked, “You don't actually think that?” The court's decision on Friday echoed those sentiments.

The IRS now has seven days to appeal (Z Street v. Koskinen) to the full circuit court. The agency has been using every tool to delay the lawsuit to get through the last days of the Obama Administration. But if this long-shot fails, Z Street may soon be able to begin discovery, and Z Street says it will seek every document and communication within the IRS as well as between the IRS and other parts of the government germane to its lawsuit or to the special policy regarding pro-Israel groups.

We already know from the IRS's Be On the Lookout lists that the agency was flagging groups having to do with “occupied territory advocacy.” Soon we may see what else no good the agency was up to.

from the Wall Street Journal, 2015-Jun-18:

Free Speech for Whom?
The Supreme Court overturns `content' speech regulation.

Clarence Thomas isn't often the Supreme Court's swing Justice, but he was on Thursday as the Court ruled on two cases that illuminate when the government can restrict speech. His answer is that the government has more power to do so when the speech belongs to the government.

The High Court issued a welcome verdict in Reed v. Town of Gilbert, ruling unanimously that the Arizona town's limits on signs announcing church services violated the First Amendment. Gilbert said that Pastor Clyde Reed's signs directing people to his church could be no larger than six square feet and displayed only 12 hours before and one hour after an event. The town put no such limits on political and ideological signs, and the Court ruled that this amounted to content discrimination against Rev. Reed.

“Innocent motives do not eliminate the danger of censorship presented by a facially content-based statute, as future government officials may one day wield such statutes to suppress disfavored speech,” wrote Justice Thomas, who was joined by the four conservatives and Justice Sonia Sotomayor.

Justices Stephen Breyer and Elena Kagan concurred in the judgment, but they wrote separately to say that such speech regulations should not be subject to “strict” legal scrutiny. “Regulatory programs almost always require content discrimination,” Justice Breyer wrote. “And to hold that such content discrimination triggers strict scrutiny is to write a recipe for judicial management of ordinary government regulatory activity.”

To the contrary, strict scrutiny is a brushback pitch to local governments that regulations restricting speech can't discriminate by content. A more lenient standard would invite more speech regulation, and thus more judicial challenges.

Justice Thomas joined the Court's liberals in the day's other speech case, Walker v. Texas Division, Sons of Confederate Veterans. Texas denied the group its application for a specialty license plate featuring a confederate flag, and the Court ruled 5-4 that this speech restriction passes constitutional muster.

Freedom of speech doesn't apply when the government is the speaker, wrote Justice Breyer for the majority, because Texas license plates “are, essentially, government IDs.”

Y'all must be crazy if you believe anyone thinks the personal messages on license plates are the government's opinion, Justice Samuel Alito wrote in dissent for the four conservatives: “If a car with a plate that says `Rather Be Golfing' passed by at 8:30 am on a Monday morning, would you think: `This is the official policy of the State—better to golf than to work?'”

He added: “What Texas did here was to reject one of the messages that members of a private group wanted to post on some of these little billboards because the State thought that many of its citizens would find the message offensive. That is blatant viewpoint discrimination.”

As harrowing as it is to disagree with such a principled constitutionalist as Justice Thomas, we're with Justice Alito on this one. If Texas wants to object to certain kinds of expression on license plates, it ought to get out of the business of vanity plates and leave the speech to bumper stickers.

from the Wall Street Journal, 2015-Jun-12, by Sam Schechner:

French Privacy Watchdog Orders Google to Expand `Right to Be Forgotten'
Move escalates the fight over the divisive rule

PARIS—France's data-protection regulator ordered Google to expand Europe's new right to be forgotten to the search engine's websites world-wide, escalating a fight over the territorial scope of the divisive new rule amid a broader battle between U.S. tech firms and European authorities.

France's Commission Nationale de l'Informatique et des Libertés, or CNIL, said Friday that it issued a formal order to Google to begin applying right to be forgotten removals it is processing to “all domain names” of the search engine globally, including, not just those that are aimed at Europe, such as

“For delisting to be effective, it must be world-wide,” said Isabelle Falque-Pierrotin, the head of the CNIL. “It is a question of principle. Google must respect the rights of European citizens.”

Google has made clear it believes the takedowns should apply only to its websites in Europe, presaging a new legal battle over the line between privacy and free speech—and the reach of national laws—in the Internet age. “We've been working hard to strike the right balance in implementing the European Court's ruling,” said a Google spokesman. “The ruling focused on services directed to European users, and that is the approach we are taking in complying with it.”

The French order gives Google 15 days to conform, after which the CNIL can open sanctions proceedings that could lead to a fine of up to €150,000 ($168,000). While the fine is small compared with Google's revenue, the company can challenge the order or any resulting sanction in court.

The order ramps up conflict over a new right, established by the European Union's top court a year ago. Google has so far removed nearly 1 million links under the ruling that gives European residents the ability to demand that search engines remove links that appear in searches for an individual's name. But European regulators have assailed the company's approach, arguing the ruling says nothing about applying only to European domain names.

The battle comes amid an unprecedented wave of investigations into U.S. tech giants in Europe, with regulators cracking down on alleged violations ranging from unfair competition to tax avoidance. On Thursday, the EU launched an antitrust inquiry into Inc.'s e-book business. Under pressure from France and Germany, the EU is also considering new regulations aimed at reining in the behavior of big Internet platforms such as Google and Facebook Inc.

When it comes to the right to be forgotten, since last summer, Google executives have repeatedly said that they would move quickly to implement the decision, but would only remove links from the European versions of Google's search engine, such as, or, not from The reason: They say doing so could create the precedent that one region can set global rules for the Internet.

Several European regulators respond that—while they are generally happy with Google's quick cooperation on the right to be forgotten—the company is undermining the decision and Europe's protections of its own citizens by not applying it globally. They say they have jurisdiction because Google offers its global search engine in Europe.

Some data-protection experts and regulators, including a top official at the UK's data-protection authority, have suggested Google could use geolocation to remove links from only for searches conducted within the EU. That would mean results could be removed from when accessed in Paris, but not when viewed from New York.

But such a solution wouldn't be sufficient for the CNIL, Ms. Falque-Pierrotin said.

“This is about Europe's ability to say that if you come here, you must respect our laws,” Ms. Falque-Pierrotin said. “Either they will comply, or there will be legal action and a judge will decide.”

from the Washington Examiner, 2015-Jun-7, by Paul Bedard:

NRA: Gun blogs, videos, web forums threatened by new Obama regulation

Commonly used and unregulated internet discussions and videos about guns and ammo could be closed down under rules proposed by the State Department, amounting to a "gag order on firearm-related speech," the National Rifle Association is warning.

In updating regulations governing international arms sales, State is demanding that anyone who puts technical details about arms and ammo on the web first get the OK from the federal government — or face a fine of up to $1 million and 20 years in jail.

According to the NRA, that would include blogs and web forums discussing technical details of common guns and ammunition, the type of info gun owners and ammo reloaders trade all the time.

"Gunsmiths, manufacturers, reloaders, and do-it-yourselfers could all find themselves muzzled under the rule and unable to distribute or obtain the information they rely on to conduct these activities," said the NRA in a blog posting.

"This latest regulatory assault, published in the June 3 issue of the Federal Register, is as much an affront to the First Amendment as it is to the Second," warned the NRA's lobbying shop. "Your action is urgently needed to ensure that online blogs, videos, and web forums devoted to the technical aspects of firearms and ammunition do not become subject to prior review by State Department bureaucrats before they can be published," it added.

At issue is the internet. State is updating International Traffic in Arms Regulations (ITAR), which implement the federal Arms Export Control Act (AECA). The rules govern everything from guns to strategic bombers.

The NRA said that the rules predate the internet, and now the federal government wants to regulate technical arms discussions on on the internationally available web.

State's proposal is highly technical. It took 14 pages in the Federal Register to explain. But the NRA boiled it down for gun owners with this warning:

"In their current form, the ITAR do not (as a rule) regulate technical data that are in what the regulations call the 'public domain.' Essentially, this means data 'which is published and which is generally accessible or available to the public' through a variety of specified means. These include 'at libraries open to the public or from which the public can obtain documents.' Many have read this provision to include material that is posted on publicly available websites, since most public libraries these days make Internet access available to their patrons.

"The ITAR, however, were originally promulgated in the days before the Internet. Some State Department officials now insist that anything published online in a generally-accessible location has essentially been 'exported,' as it would be accessible to foreign nationals both in the U.S. and overseas.

"With the new proposal published on June 3, the State Department claims to be 'clarifying' the rules concerning 'technical data' posted online or otherwise 'released' into the 'public domain.' To the contrary, however, the proposal would institute a massive new prior restraint on free speech. This is because all such releases would require the 'authorization' of the government before they occurred. The cumbersome and time-consuming process of obtaining such authorizations, moreover, would make online communication about certain technical aspects of firearms and ammunition essentially impossible."

Below are the State changes drawing the NRA fire:

Paragraph (b) of the revised definition explicitly sets forth the Department's requirement of authorization to release information into the ''public domain.'' Prior to making available ''technical data'' or software subject to the ITAR, the U.S. government must approve the release through one of the following: (1) The Department; (2) the Department of Defense's Office of Security Review; (3) a relevant U.S. government contracting authority with authority to allow the ''technical data'' or software to be made available to the public, if one exists; or (4) another U.S. government official with authority to allow the ''technical data'' or software to be made available to the public.

The requirements of paragraph (b) are not new. Rather, they are a more explicit statement of the ITAR's requirement that one must seek and receive a license or other authorization from the Department or other cognizant U.S. government authority to release ITAR controlled ''technical data,'' as defined in § 120.10. A release of ''technical data'' may occur by disseminating ''technical data'' at a public conference or trade show, publishing ''technical data'' in a book or journal article, or posting ''technical data'' to the Internet.

This proposed provision will enhance compliance with the ITAR by clarifying that ''technical data'' may not be made available to the public without authorization. Persons who intend to discuss ''technical data'' at a conference or trade show, or to publish it, must ensure that they obtain the appropriate authorization.

from the Wall Street Journal, 2015-Jun-7:

King Salman and the 1,000 Lashes
A liberal Saudi reformer may not survive his Medieval sentence.

Saudi Arabia's highest court on Sunday upheld a 1,000-lash flogging sentence against the country's leading liberal dissident, Raif Badawi. The blogger and activist will also be jailed for 10 years and fined $266,000. Mr. Badawi has now exhausted the appellate process, and the ruling can't be overturned save for a pardon by King Salman.

Mr. Badawi's alleged crimes include founding the Saudi Liberal Network, an online-only forum promoting reform, individual rights and gender equality in the Kingdom, where women are still barred from driving cars and authorities behead people suspected of practicing witchcraft.

He was convicted last year of “insulting Islam” and committing cybercrimes. Mr. Badawi has already received the first 50 of the 1,000 lashes, and there is a real concern that he won't survive the other 950 when the flogging resumes, perhaps as early as this week.

It is up to King Salman, who ascended the Saudi throne earlier this year, to undo this horrific and unjust sentence. The threats to the House of Saud come from Islamic jihadists who are suicide bombers, either Sunni or Shiite, not from liberals who want a modicum of more personal autonomy.

The King has been praised, rightly, for galvanizing the Sunni Arab states to act against growing Iranian hegemony in the region. But he can ensure a larger legacy if he adds to his foreign policy a domestic-reform agenda. Pardoning Raif Badawi would be a good start.

from the Wall Street Journal Best of the Web, 2015-May-6, by James Taranto:

`The Terrorists Will Have Won'
A post-9/11 fatuity takes on real meaning.

Remember the post-9/11 cliché “If we [do X], the terrorists will have won”? X was some change in antiterror policy or practice that the speaker thought an affront to civil liberties—or, as it was often put, to “our most cherished values.”

The cliché was based on a premise that, in our view, was both fatuous and overblown: The terror threat was (and remains) real, more-vigilant policies were necessary to protect the public, and the purported threats to civil liberties were imaginary. To be sure, on the last point there is room for disagreement. Perhaps the government would have been less sensitive to civil liberties but for the alarmists.

In any case, “the terrorists will have won” was a non sequitur. It made no sense to think that America's enactment of stronger antiterror policies, even misguided ones, was a terrorist objective. The World War II internment of Japanese-Americans really was an overreaction and an affront to “our most cherished values,” but it did not mean Japan won the war.

Today, however, that post-9/11 cliché has real meaning. Some intellectuals are arguing for curtailments of civil liberties that would both fulfill terrorist objectives and damage one of our most cherished values, namely the freedom of speech.

Exhibit A is this Washington Post headline: “Event Organizer Offers No Apology After Thwarted Attack in Texas.” The event is the “Texas cartoon contest attacked by two gunmen late Sunday,” featuring images of Muhammad, the Muslim prophet; and the organizer is Pamela Geller, a truculent critic of Islam. From the story, by Sandhya Somashekhar:

“Pamela Geller has every right to hold this event. And she should be able to do that—as ugly as others, including me, think it is—without facing any type of violence,” said Heidi Beirich of the Southern Poverty Law Center, which has Geller on a list of extremists.
Still, “I think decent people would say: `Why would you need to do that?' ” Beirich said.

Perhaps, but decent people for whom that is an honest query and not a rhetorical one might want to read our Monday column on the subject. What is truly indecent is the headline's suggestion that a violent attack calls for an apology from its target.

Fleshing out that claim is Noah Feldman, a Harvard law professor and Bloomberg View columnist. Feldman, who specializes in constitutional law, knows his subject well enough to acknowledge that the event was constitutionally protected speech. “But it's also easy to be distracted by the First Amendment,” he writes. Uh-oh:

The protected status of free speech says nothing about whether particular speech is morally right or wrong. That status allows me to advocate for child abuse or witch-burning or killing members of a race I don't like. These kinds of speech are morally repugnant, even though they are constitutionally protected.

Feldman goes right for the argumentum ad Hitlerum: “Insulting the Prophet to make a point is a bit like showing Nazi propaganda to prove that Jews can be subject to criticism: effective, but repulsive.”

That is, to say the least, a sloppy analogy. Yes, Nazi propaganda is protected by the First Amendment; see National Socialist Party v. Skokie (1977). But it is of a different order of repugnance. Nazism is not mere “criticism” of Jews; it is an ideology devoted to their extermination. It is repugnant to universal (and secular) moral principles.

“Insulting the Prophet,” by contrast, is repugnant only within the context of Islamic religious law. To be sure, insulting others' religion is ill-mannered, but by secular standards cartoons of Muhammad are no more repugnant than other forms of expression mocking religion, such as the musical “The Book of Mormon,” the photograph “Piss Christ” or the painting “The Holy Virgin Mary.”

Anyway, Feldman's ad Hitlerum turns out to be gratuitous, which is to say it is not central to his argument. His primary claim is that the cartoon exhibition was immoral not because of the offense to innocent Muslims but because of the violence committed by guilty ones: “Geller was trying to provoke a reaction. If the reaction was reasonably likely to be violent, she can't hide behind the notion that she didn't want anyone to get hurt.”

Was it reasonable to anticipate a violent reaction? On that point, Feldman rather hilariously equivocates: “Fairness toward American Muslims would seem to require us to say that the violent reaction wasn't reasonably likely to occur. We'd then have to absolve Geller on a ground she probably wouldn't much like.”

That seems to have been the approach taken by the Department of Homeland Security. PJMedia's Patrick Poole reports:

As online chatter about a Muhammad cartoon contest began to escalate last week, the FBI and Department of Homeland Security (DHS) issued a Joint Intelligence Bulletin last Thursday. The bulletin acknowledged the potential threat, but downplayed the possibility of any violence targeting the event.
The bulletin concluded that while the event could inspire violence abroad by contributing to terrorist messaging, it was “unlikely” that such violence would happen in the United States. . . .
According to those close to the investigation, the real heroes who quickly eliminated the threat on Sunday were the Texas Department of Public Safety, who took the online threats seriously. The threats included inciting tweets from known foreign Islamic State operatives overseas (namely, IS cybercaliphate chief Junaid Hussain), leading [police] to deploy a “massive” presence at the cartoon contest event.

To his credit, Feldman notes parenthetically that “the guard who shot and killed the attackers counts as a hero who saved lives, regardless of Geller's motives.” But by his standard, the federal DHS's complacency about the threat is morally preferable to the Texas DPS's vigilance, because “fairness toward American Muslims would seem to require” the former.

Would it really? Many Catholics took offense when the Brooklyn Museum displayed Chris Ofili's “The Holy Virgin Mary”—featuring elephant dung and cutouts from pornographic magazines—in 1999. As New York's Daily News reported at the time, one of them vandalized the work by throwing white paint on it. But there was no violence against persons, and as far as we recall no one thought there would be.

Nobody expected the Spanish Inquisition, but not because “fairness” toward American Catholics “required” it. Rather, it was because such an expectation would have been empirically unfounded—inconsistent with experience and observation. American Catholics—and Mormons and other Christians—who respond with violence to religious insults do not appear to exist. The same cannot be said of American Muslims, even if those inclined to such violence are a tiny minority.

Feldman's conclusion:

If—and I say if—Geller intended to provoke violence, she did something much worse than giving offense. By willfully trying to provoke violence, Geller was trying to create a situation in which innocent people could have been harmed or killed. . . . If Geller wanted violence to happen, her actions were morally culpable—even though she obviously didn't commit it.

We asked Feldman on Twitter yesterday to explain how this logic would apply to Martin Luther King's acts of nonviolent resistance, which, as we noted Monday, were designed to make a point by provoking a violent response. So far he has not responded.

Again, Feldman at least acknowledges that the cartoon exhibit was constitutionally protected. The same cannot be said for all putative experts in constitutional law. This is from a McClatchy report titled “After Texas Shooting: If Free Speech Is Provocative, Should There Be Limits?”:

There are two exceptions from the constitutional right to free speech—defamation and the doctrine of “fighting words” or “incitement,” said John Szmer, an associate professor of political science and a constitutional law expert at the University of North Carolina at Charlotte.
“Fighting words is the idea that you are saying something that is so offensive that it will lead to an immediate breach of the peace,” Szmer explained. “In other words, you are saying something and you should expect a violent reaction by other people.”
The exhibit of cartoons in Texas might have crossed the line, Szmer said.
“I don't think it is unreasonable to expect what they were doing would incite a violent reaction,” he said.
Organizers knew, he said, that caricatures of the Prophet Muhammad, which many Muslims consider insulting, have sparked violence before. In a recent case that drew worldwide attention, gunmen claiming allegiance with the self-described Islamic State killed 12 people in an attack on the Paris offices of the French magazine Charlie Hebdo, which was known for satirical depictions of the Prophet Muhammad.

If the McClatchy reporters accurately describe Szmer's views, he really does not know his subject. For one thing, there are other narrowly drawn categories of unprotected speech besides the “two” cited—obscenity, invasion of privacy, child pornography, threats. Commercial speech also receives only limited protection.

More important, fighting words and incitement are two different doctrines. “Incitement,” defined in Brandenburg v. Ohio (1968), refers to speech that encourages violence against an adversary. Only “fighting words” is applicable to speech that provokes violence by an adversary.

The fighting-words doctrine has been interpreted narrowly since the U.S. Supreme Court set it down in Chaplinsky v. New Hampshire (1942), but the Chaplinsky definition is still good law inasmuch as it stipulates necessary conditions for regarding speech as unprotected. “Fighting words,” according to the Chaplinsky court, are “those which by their very utterance inflict injury or tend to incite an immediate breach of the peace.”

The key word is “immediate.” The Post's Somashekhar notes that the two gunmen “drove 1,000 miles from Phoenix” and “shot at a police car outside the event.” A premeditated attack is not “an immediate breach of the peace,” and if they didn't even get inside the event, their actions cannot have been incited by any of the speech (literal or symbolic) inside.

It's telling that Szmer and like-minded “experts” are responding to the Texas attack by citing “fighting words” rather than “incitement”—that is, by arguing to restrict speech critical of Islam rather than speech encouraging acts of violent jihad. The latter would be difficult to prosecute as well; Brandenburg held that speech advocating violence is protected absent an “imminent” threat, a limitation similar to Chaplinsky's “immediate” breach of the peace.

The consequence of following Feldman's moral theory and Szmer's legal one would be to empower violent fanatics to constrain the free-speech rights of Americans. In the case at hand, it would effectively make Shariah's prohibition on images of Muhammad the law of the land. The terrorists really would have won.

from NewsMax, 2015-May-7, by Drew MacKenzie:

FBI, DHS Didn't Contact Pamela Geller After Texas Attack

Anti-Islam activist Pamela Geller, who was targeted by terrorists over the weekend, has slammed President Barack Obama for fostering an environment that has put the United States in danger of increasing terror attacks.

Geller also told Fox News host Sean Hannity that to her surprise she has not been contacted by the FBI or the Department of Homeland Security (DHS) since the attack on her Prophet Muhammad cartoon competition, in which two terrorists were killed.

Later during the interview Geller got into a screaming match with British-based Muslim Anjem Choudary over whether she should be put to death for organizing the controversial "Draw the Prophet" contest in Garland, Texas.

"They have not contacted me," Geller said about the FBI. "But of course we've now increased my team. I have a team now, private security, and NYPD counterterror has been in touch with me."

After Geller informed Hannity that she had reached out to the FBI without reply, he asked whether Homeland Security had tried to speak to her, according to The Weekly Standard.

"This is a serious threat," said Hannity. "Basically a Fatwa, a death threat, has now been issued."

Geller replied: "No, and this is interesting because this is a terrorist threat. And the FBI, President Obama should provide security. There's no question about it. Because he created an environment that raised the stakes on this."

Suspected jihadist gunmen Elton Simpson, 31, and Nadir Soofi, 34, attacked the cartoon contest Sunday, wounding a security guard before the two were shot dead.

Depictions of the Prophet Muhammad are considered offensive to many Muslims and have prompted attacks in the past. In January, 12 people were gunned down in an Islamist attack on the French satirical paper Charlie Hebdo in Paris, which had also published cartoons of Muhammad.

Choudary, who has been a guest on "Hannity" several times, was asked by the conservative host: "Do you support this death threat against Pam Geller because she ran a free speech contest?"

"Let's be clear we are not talking about Mickey Mouse or Donald Duck," Choudary replied, according to Daily "We are talking about people who deliberately had a competition to insult the messenger Muhammad."

Choudary, who once said "the flag of Islam will fly over the White House," pointed out that Geller knew many Muslims consider blasphemy against Muhammad to be a crime worthy of the death penalty.

Geller, the head of the American Freedom Defense Initiative, shot back: "To blame me and say that my cartoons are controversial ... murdering cartoonists is controversial."

According to Mediaite, Geller also said to Choudary, "I know you're used to stepping over women."

Choudary then called Geller worse than a "Khanzier" -- Arabic for pig -- before he started ranting about Americans "murdering innocent people." Hannity then said he was "evil and pathetic" before ending the interview with him.

from the Wall Street Journal, 2015-May-5, by Donald F. McGahn II:

Hillary's Constitutional Aversion to Criticism
Candidate Clinton signs on to the campaign to rewrite the First Amendment to limit political speech.

Progressivism's ever-tightening grip on the Democratic Party is on full display in Hillary Clinton's presidential platform. Starting with her kickoff speech in Iowa, and in subsequent venues across the country, she spoke of her campaign's “four fights,” one of which is a constitutional amendment on campaign finance. This marks Mrs. Clinton as an adherent to one of the newest and most fervently held tenets of modern progressive teaching: Citizens United v. FEC is an evil that must be destroyed at any cost.

Yet it's worth dwelling on that cost. Recent history demonstrates that the anti-Citizens United campaign quickly devolves into an assault on the First Amendment and a free and fair electoral system.

In a sense, it's fitting that Mrs. Clinton supports efforts to overturn the Supreme Court's 2010 ruling that dealt with the right to buy television ads for a movie that criticized her. The constitutional amendment she wants could return American elections to where they were in 2008, when her opponents and critics were often muzzled in the public square.

Despite the hyperbole surrounding Citizens United, the justices were actually debating a simple issue: Whether a movie critical of then-Sen. Hillary Clinton could be aired on pay-per-view television. Under the Bipartisan Campaign Finance Reform Act of 2002, such activity was banned within 30 days of a primary election. The justices struck down this prohibition, ruling that “the First Amendment protects political speech.” Chief Justice John Roberts was even more blunt, arguing that such bans subvert “the vibrant public discourse that is at the foundation of our democracy.”

There was a time when most Americans agreed with this logic. The American Founding was partially triggered by the Stamp Act, which squelched speech by mandating that publications possess a stamp purchased from the British government. Following the Revolution and the ratification of the Constitution, the first Congress wisely passed the First Amendment to prevent politicians from banning speech that criticizes officeholders. Throughout American history, this constitutional guarantee of free speech has been the bulwark of the country's experiment in self-government.

Yet this consensus disappeared following Citizens United. The Democratic Party's leadership, fearing the electoral losses that ultimately came to pass, called for a crusade to undo the Supreme Court's decision. Their holy war found its fullest expression in the demand for a constitutional amendment that would, in essence, repeal the First Amendment.

Hillary Clinton is now on board this campaign, based on her recent pledge to “fix” our political system “even if that takes a constitutional amendment.” For a hint of what her proposed amendment might look like, consider the measure then-Senate Majority Leader Harry Reid (D., Nev.) brought to the Senate floor last year. The so-called Udall Amendment—introduced by Sen. Tom Udall (D., N.M.), co-sponsored by 48 other Democratic senators, and ultimately supported by 54 senators, but no Republicans—was designed to reverse Citizens United.

The amendment—which was filibustered in the Senate in September—promises to “advance the fundamental principle of political equality for all” and “protect the integrity of the legislative electoral process.” In reality, it would give politicians unlimited authority to stifle the speech of their political opponents.

As with most campaign-finance reform measures, the Udall Amendment's goal is to get money out of politics. It seeks to accomplish this by allowing Congress to regulate and limit how “candidates and others” raise and spend money.

Yet free speech is toothless without money—especially when it concerns elections and public policy. It is necessary to print campaign mailers, organize phone banks, air television and radio ads, build websites and pay for a thousand other things.

By giving legislators authority to regulate the money that finances this speech, politicians would only succeed in making it harder for Americans to make their voices heard in the political process. The American Civil Liberties Union argued in a 2014 letter to Congress that the Udall Amendment would “lead directly to government censorship of political speech.” The ACLU also warned that it would “fundamentally `break' the constitution and endanger civil rights and civil liberties for generations.”

It isn't hard to see how. The Obama administration admitted in 2010 that its position in Citizens United would empower the government to ban books, ads and anything else that contains a political message that regulators and politicians don't like. The only limit the Udall Amendment placed on Congress is that any campaign-finance law must be “reasonable.” This led Sen. Ted Cruz (R., Texas) to remark in a 2014 Senate subcommittee hearing on the amendment that “I am not content to have . . . free speech rights protected by the reasonableness of members of Congress, Republicans or Democrats.”

No one, left or right, should be comfortable with giving politicians such power. When elected officials are able to handicap and silence their electoral opponents, they will rarely refrain from doing so. This is true whether it's the man or woman in the White House, representatives and senators in Congress, state legislators and governors, or even the members of the local PTA. A constitutional amendment on campaign finance can't change human nature.

Before she goes down in history as the first presidential candidate to make gutting the First Amendment a central part of her platform, Mrs. Clinton might want to remember the liberal heroes of yesteryear who defended free speech. Supreme Court Justice Oliver Wendell Holmes Jr. was right when he declared in 1919 that “the best test of truth is the power of the thought to get itself accepted in the competition of the market.”

Justice Louis Brandeis was also right in 1927 when he called for “more speech, not enforced silence” in America's political debates. And so was Sen. Ted Kennedy, who 80 years later declared that “we have never amended the Bill of Rights, and now is not the time to start.”

It's a shame that the Democratic Party's de facto presidential candidate has abandoned this wisdom.

Mr. McGahn is a former chairman of the Federal Election Commission.

from the Washington Post, 2015-May-14, by Matea Gold and Anne Gearan, with Robert Barnes and Karen Tumulty contributing:

Hillary Clinton's litmus test for Supreme Court nominees: a pledge to overturn Citizens United

Hillary Clinton told a group of her top fundraisers Thursday that if she is elected president, her nominees to the Supreme Court will have to share her belief that the court's 2010 Citizens United decision must be overturned, according to people who heard her remarks.

Clinton's emphatic opposition to the ruling, which allowed corporations and unions to spend unlimited sums on independent political activity, garnered the strongest applause of the afternoon from the more than 200 party financiers gathered in Brooklyn for a closed-door briefing from the Democratic candidate and her senior aides, according to some of those present.

"She got major applause when she said would not name anybody to the Supreme Court unless she has assurances that they would overturn" the decision, said one attendee, who, like others, requested anonymity to describe the private session.

If the make-up of the court does not change by 2017, four of the justices will be 78 years of age or older by the time the next president is inaugurated.

Clinton's pledge to use opposition to Citizens United as a litmus test for Supreme Court nominees echoes the stance taken by Sen. Bernie Sanders of Vermont, who is challenging her for the Democratic nomination.

“If elected president, I will have a litmus test in terms of my nominee to be a Supreme Court justice,” Sanders said on CBS' “Face the Nation” on Sunday. “And that nominee will say that we are all going to overturn this disastrous Supreme Court decision on Citizens United because that decision is undermining American democracy. I do not believe that billionaires should be able to buy politicians.”

On Thursday, Clinton also reiterated her support for a constitutional amendment that would overturn Citizens United, a long-shot effort that is nonetheless popular among Democratic activists.

"She said she is going to do everything she can," the attendee said. "She was very firm about this – that this Supreme Court decision is just a disaster."

A campaign spokesman did not immediately respond to a request for comment.

Clinton has made overhauling the current campaign finance system one of the major planks of her campaign, even as she has tacitly endorsed the efforts of two big-money super PACs working to help get her elected in 2016 -- Priorities USA Action and Correct the Record. Advisers have said that they cannot reject such vehicles when they are being vigorously embraced by the Republican field.

Still, the prominent role that wealthy donors are expected to play in boosting her bid could make it hard for Clinton to cast herself as a champion of campaign finance reform, particularly in the eyes of some advocates who remember the soft-money scandals of the Bill Clinton administration.

On Thursday, the former secretary of state spoke and took questions for about 45 minutes in a converted warehouse on a pier in Brooklyn's Red Hook neighborhood, with sweeping waterfront views of the Manhattan skyline and the Statue of Liberty. The fundraisers on hand for the meeting -- a mix of longtime Clinton backers and a small number of bundlers who played major roles in the campaigns of President Obama -- had all raised at least $27,000 for her campaign.

In response to questions from the group, Clinton spoke about the need for renewable energy and strongly endorsed Obama's free community college plan.

She avoided taking a position on the controversial Trans-Pacific Partnership trade accord, saying she first wants to see what comes out of Congress.

Afterward, Clinton stayed and shook hands for 45 minutes. There was no sense that old Clinton loyalists had higher ranking than newer supporters, attendees said. “She spent time with every single person -- new friends and old friends equally," said a second participant.

from the Wall Street Journal, 2015-Mar-30:

The New Intolerance
Indiana isn't targeting gays. Liberals are targeting religion.

In the increasingly bitter battle between religious liberty and the liberal political agenda, religion is losing. Witness the media and political wrath raining down upon Indiana because the state dared to pass an allegedly anti-gay Religious Freedom Restoration Act. The question fair-minded Americans should ask before casting the first stone is who is really being intolerant.

The Indiana law is a version of the federal Religious Freedom Restoration Act (RFRA) that passed 97-3 in the Senate and that Bill Clinton signed in 1993. Both the federal and Indiana laws require courts to administer a balancing test when reviewing cases that implicate the free exercise of religion.

To wit: Individuals must show that their religious liberty has been “substantially burdened,” and the government must demonstrate its actions represent the least restrictive means to achieve a “compelling” state interest. Indiana's law adds a provision that offers a potential religious defense in private disputes, but then four federal appellate circuits have also interpreted the federal statute to apply to private disputes.

The federal RFRA followed the Supreme Court's Employment Division v. Smith ruling in 1990 that abandoned its 30-year precedent of reviewing religious liberty cases under strict scrutiny. Congress responded with RFRA, which merely reasserted longstanding First Amendment protections.

In 1997 the Supreme Court limited RFRA's scope to federal actions. So 19 states including such cultural backwaters as Connecticut, Rhode Island and Illinois followed with copy-cat legislation, and Indiana is the 20th. Courts in 11 states have extended equally vigorous protections.

Indiana was an outlier before the new law because neither its laws nor courts unambiguously protected religious liberty. Amish horse-drawn buggies could be required to abide by local traffic regulations. Churches could be prohibited from feeding the homeless under local sanitation codes. The state Attorney General even ruled Indiana Wesleyan University, a Christian college which hires on the basis of religion, ineligible for state workforce training grants.

In February, 16 prominent First Amendment scholars, some of whom support same-sex marriage, backed Indiana's legislation. “General protection for religious liberty is important precisely because it is impossible to legislate in advance for all the ways in which government might burden the free exercise of religion,” they explained.

That hasn't stopped the cultural great and good from claiming Indiana added the religious defense in private disputes as a way to target gays. If this is Indiana's purpose, and there's no evidence it is, this is unlikely to work.

The claim is that this would empower, say, florists or wedding photographers to refuse to work a gay wedding on religious grounds. But under the RFRA test, such a commercial vendor would still have to prove that his religious convictions were substantially burdened.

And he would also come up against the reality that most courts have found that the government has a compelling interest in enforcing antidiscrimination laws. In all these states for two decades, no court we're aware of has granted such a religious accommodation to an antidiscrimination law. Restaurants and hotels that refused to host gay marriage parties would have a particularly high burden in overcoming public accommodation laws.

In any event, such disputes are rare to nonexistent, a tribute to the increasing tolerance of American society toward gays, lesbians, the transgendered, you name it.

The paradox is that even as America has become more tolerant of gays, many activists and liberals have become ever-more intolerant of anyone who might hold more traditional cultural or religious views. Thus a CEO was run out of Mozilla after it turned out that he had donated money to a California referendum opposing same-sex marriage.

Part of the new liberal intolerance is rooted in the identity politics that dominates today's Democratic Party. That's the only way to explain the born-again opportunism of Hillary Clinton, who tweeted: “Sad this new Indiana law can happen in America today. We shouldn't discriminate against ppl bc of who they love.”

By that standard, Mrs. Clinton discriminated against gays because she opposed gay marriage until March 2013. But now she wants to be seen as leading the new culture war against the intolerant right whose views she recently held.

The same reversal of tolerance applies to religious liberty. When RFRA passed in 1993, liberal outfits like the ACLU were joined at the hip with the Christian Coalition. But now the ACLU is denouncing Indiana's law because it wants even the most devoutly held religious values to bow to its cultural agenda on gay marriage and abortion rights.

Liberals used to understand that RFRA, with its balancing test, was a good-faith effort to help society compromise on contentious moral disputes. That liberals are renouncing it 20 years after celebrating it says more about their new intolerance than about anyone in Indiana.

from the Wall Street Journal, 2015-Apr-3:

Liberal Intolerance, Round II
To stamp out cultural dissent, the left is willing to stomp on religious liberty.

The political delirium over Indiana's law protecting minority religious beliefs doesn't seem to be abating, and the irony is that it may be illustrating why such statutes are necessary. Much of the modern political left has abandoned the American tradition of pluralism in favor of an all-or-nothing social model that brooks no dissent.

On Thursday the Indiana legislature passed and Governor Mike Pence signed an amendment to the state's Religious Freedom Restoration Act emphasizing that the law is not the license to discriminate that it never was. This concession is unlikely to temper the media portrait of Indianapolis as the new Selma, circa 1965, because this rumpus long ago kicked free of the legal merits or even the basic facts. The political goal behind the uproar is to intimidate or destroy people who think they are still allowed to articulate traditional moral convictions.


Take the family-owned pizza parlor in Walkerton, Indiana—population 2,144. A local TV reporter went door-to-door asking restaurants how they would respond if they were asked to cater a gay wedding. The innocents at Memories Pizza, who had never faced the question in daily business, said that they would prefer not to participate in a hypothetical same-sex pizza party ceremony. Cue the national deluge.

They were suddenly converted into the public face of antigay bigotry across cable news and the Internet, and became the target of a social-media mob, as if they somehow screened for sexual orientation at the register. The small business closed amid the torrent, although a crowd-funding counter-reaction supplied tens of thousands of dollars in recompense.

The episode is a discredit to U.S. civil society, which we used to think was strong and friendly enough to tolerate all people of whatever religious or sexual persuasion.

For the record, the federal and state Religious Freedom Restoration Acts, or RFRAs, very rarely implicate gay rights, and most of these religious cases are noncontroversial. They simply say that government must use the least restrictive means of achieving a compelling state interest when infringing on religious practice.

RFRA disputes typically involve Muslim prisoners who are told they cannot wear beards, or the inner-city Chicago churches that zoning laws prohibited from feeding the homeless in 2000, or the Arizona carillon bells that neighbors complained were too loud in 2010. They are about the Sikh who was fired by the Internal Revenue Service in 2005 for carrying a kirpan, the small knife that Sikhs believe is an emblem of justice.

Nonetheless, the Indiana revision clarifies that RFRA does not authorize a business to refuse to offer “services, facilities, use of public accommodations, goods, employment, or housing” on the basis of sexual orientation or gender identity. This is mostly symbolic, since there is no evidence anyone was doing so before the law passed, but Indiana's Republicans felt they had little choice lest the state suffer economic damage. The confusion and retreat was not Governor Pence's finest hour.

Indiana was reacting to unfair abuse from Democrats and corporate leaders eager to demonstrate their social justice bona fides. White House spokesman Josh Earnest flatly and wrongly said the law would “legitimize discrimination,” while several states with their own RFRAs like Connecticut have banned taxpayer-funded travel to Indiana. A raft of companies including Apple and the Indiana-based diesel engine maker Cummins have also denounced the law.

Well—hold on. Liberals have instructed us time and again that corporations aren't people or persons, that companies cannot express speech and have no right to engage in politics. But now Tim Cook is celebrated for delivering a moral lecture to Hoosiers on behalf of Apple because liberals agree with him. Perhaps Mr. Cook and other CEOs who've criticized Indiana should reconsider their offices in China and other places around the world that have contempt for human rights, or in some cases open hostility to gays and lesbians.

To the extent anyone is offering a good-faith criticism, it seems to apply to the narrow exceptions of sole proprietors in the wedding industry, such as florists, bakers, photographers and singers. Our view is that their speech and conduct is protected by the First Amendment, but do liberals really now believe that the very few vendors who object to working at same-sex weddings should be forced to participate in what they believe to be a moral wrong?

For that matter, should a Native American printer be legally compelled to make posters with an Indian mascot that he finds offensive, or an environmentalist contractor to work a shift at a coal-fired power plant? Fining or otherwise coercing any small number of private citizens—who aren't doing anyone real harm but entertain politically unacceptable thoughts—is thuggish stuff.


A principle in quantum physics holds that everything not forbidden is mandatory, and social liberals seem intent on importing it into politics. But they may well come to regret this choice.

The movement for state recognition of same-sex marriages has succeeded in changing public opinion by appealing to people's sympathy and values like love and acceptance. They will lose this good will if they adopt the illiberal standard that “equality” must mean stomping on religious liberty.

Correction: An earlier version of this editorial misstated where Apple Inc. has stores.

from, 2015-May-19, by Donna Rachel Edmunds:

Christian Bakery Guilty of Discrimination for Refusing to Bake Pro-Gay Marriage Cake

A Christian bakery has been found guilty of discrimination for refusing to make a cake bearing the slogan “support gay marriage”. The ruling was handed down by District Judge Isobel Brownlie following three days of evidence at Belfast County Court, Northern Ireland, in March.

Gay rights activist Gareth Lee placed the order for the cake, which also featured Sesame Street characters Bert and Ernie with Ashers Baking Company, which employs 80 people across nine branches and delivers across the UK and Ireland.

Founder and owner Karen McArthur, a born-again Christian, at first accepted the order, but two days later phoned Mr Lee to inform him that the company would not be able to fulfil the order. He subsequently had the cake made by another company.

During the evidence sessions, Mr Lee told the court that the McArthur's refusal to make the cake had left him feeling like a lesser person. “I wasn't worthy of service because they were Christian. That was the message that struck me. It made me feel not worthy, like I'm a lesser person and to me that is wrong,” he said.

The case was brought on behalf of Mr Lee by the Northern Ireland Equality Commission, which monitors compliance with the region's anti-discrimination laws.

Mrs McArthur told the court that she had initially taken the order to avoid embarrassment or confrontation, but knew that her company would not be able to complete it. The family, who are all devout Christians, discussed how to proceed amongst themselves before deciding to decline the order. They told the judge they “could not stand before God” and produce a cake which declared support for same sex marriage.

Speaking ahead of the judgement, Ashers' General Manager Daniel McArthur said: “Our faith is very important to us; it determines how we live, how we bring up our children, how we run our business, how we meet and how we engage with other people in society, so yes we can't leave it out whenever we go to work in the morning.

“It's been a difficult and exhausting time for us as a family but God has been faithful to us. And He has given us the strength to deal with this, and we know and trust in Him that going forward He will continue to give us His strength.”

Ashers was supported by The Christian Institute which funded their defence.

The Institute's Deputy Director Simon Calvert said: “The McArthurs, like countless other Christian business owners across the country, simply want to live and work in accordance with their Christian beliefs – beliefs which have long had a positive influence on Western culture and history.”

The case has prompted calls for a “conscience clause” to be included in equality legislation. Sinn Fein has vowed to veto the clause.

Ashers' General Manager Daniel McArthur has said:

“We've said from the start that our issue was with the message on the cake, not the customer and we didn't know what the sexual orientation of Mr Lee was, and it wasn't relevant either. We've always been happy to serve any customers that come into our shops.

“The ruling suggests that all business owners will have to be willing to promote any cause or campaign no matter how much they disagree with it. Or as the Equality Commission has suggested, they should perhaps just close down, and that can't be right.

“But we won't be closing down, we certainly don't think we've done anything wrong and we will be taking legal advice to consider our options for appeal.

“The loss of the case and the possibility of a financial penalty is disappointing but that is a small burden to bear as the case has provided us with an opportunity through which we have been able to speak about our faith and our beliefs. And for that we give thanks to the Lord.”

Institute's Deputy Director Simon Calvert has said: “We are extremely disappointed at today's ruling against the McArthur family and Ashers Baking Company. It will also sadden all those who value freedom of conscience and freedom of speech.

“Judge Brownlie recognised that there were competing rights in this case but has favoured sexual orientation over religious belief.

“We are equally baffled by the court's decision to uphold the Equality Commission's claim of political discrimination. This was a late addition to the case and the ruling suggests all business owners now have to be willing to promote any political cause or campaign, no matter how much they disagree with it, or – as the Equality Commission has suggested – close down.

“It appears that we are all now required by law to support same-sex marriage. What next? Will the Muslim printer now be obliged to print cartoons of Mohammed? Will the lesbian T-shirt printer now be forced to print T-shirts promoting traditional marriage? We should all consider the real concern and confusion that will result from this ruling.”

from the Wall Street Journal, 2015-Apr-30, by Charlotte Allen:

Modern Sin: Holding On to Your Belief
Trying to put florists, bakers and others out of work for unapproved ideas about marriage.

On Tuesday the Supreme Court heard oral arguments in Obergefell v. Hodges, the case that asks whether the Constitution requires states to allow same-sex couples to marry. Four days before the hearing, in Oregon, an administrative-law judge proposed a $135,000 fine against Aaron and Melissa Klein, proprietors of the Sweet Cakes bakery in Gresham, for the “emotional distress” suffered by a lesbian couple for whom the Kleins, citing their Christian belief that marriage is between a man and a woman, had declined to bake a wedding cake in 2013.

Same-sex marriage wasn't legal in Oregon when the Kleins made their decision. But the couple was found to have violated a 2008 Oregon law forbidding discrimination in public accommodations on the basis of sexual orientation.

Media sympathy for the Kleins' claim that being forced to participate in a same-sex wedding would violate their consciences ranged from nonexistent to . . . nonexistent. A CNN headline dubbed the Kleins' since-closed business the “anti-gay bakery”; the Huffington Post prefers “anti-gay baker.”

Supporters of the Kleins—who have five children and operated the bakery out of their home—quickly went on the crowdfunding website GoFundMe to try to raise money to help the family pay legal fees and the fine, which still requires approval by the state labor commissioner. The effort managed to raise more than $100,000 in a few hours. But then, on Saturday night, GoFundMe abruptly shut down the online appeal because the Kleins' case involved “formal charges.”

The Kleins join a small number of bakers, florists and photographers around the country, most of whom say they serve and even employ gays in their over-the-counter operations but who also insist that their Christian beliefs in man-woman marriage preclude their providing services to same-sex weddings. Those numbers will probably dwindle further: Many states are treating those acts of conscience as ordinary bigotry and, by levying or threatening fines, forcing those small business owners into costly and potentially ruinous litigation.

In Washington state, 70-year-old Barronelle Stutzman, owner of Arlene's Flowers in Richland, has asked the state Supreme Court to overturn a $1,000 fine against her last month for refusing to arrange flowers for the same-sex wedding of a longtime customer; Ms. Stutzman had recommended another nearby florist instead.

The lower court that levied the fine also issued a permanent injunction ordering Ms. Stutzman, a Southern Baptist who has cited her “relationship with Jesus” as the reason for her refusal, to serve same-sex weddings in the future. She also faces the potential costs of awards for damages and attorney's fees in a lawsuit brought by the American Civil Liberties Union on behalf of the customer and his partner.

In 2014, the U.S. Supreme Court declined to review a New Mexico Supreme Court ruling that a Christian-owned photography studio could not refuse to take photos of a lesbian commitment ceremony. Colorado baker Jack Phillips announced that he would no longer make wedding cakes after the Colorado Civil Rights Commission ruled that he had discriminated against a gay couple in 2012 for declining to produce a cake for their wedding reception.

The irony is that only a few years ago, when the legalization of same-sex marriage didn't appear so inevitable, gay-marriage advocates eagerly assured a skeptical public that scenarios like those above would never happen. Typical was since-retired California Supreme Court Chief Justice Ronald M. George, who wrote in the 2008 decision legalizing gay marriage in that state: “Affording same-sex couples the opportunity to obtain the designation of marriage will not impinge upon the religious freedom of any religious organization, official, or any other person.”

The victors have dropped their conciliatory stance. Bubonic plague-level hysteria surged through the media, academia and mega-corporate America in March after Indiana passed a law—modeled on the federal Religious Freedom Restoration Act of 1993—that would enable religious believers to opt out of universally applicable laws under some circumstances.

Amid threats of business boycotts, the Indiana legislature amended the law to ensure antidiscrimination protections for gays and lesbians—but not before a pizzeria in Walkerton shut down for a week amid death and arson threats after its Catholic owners told a reporter that, while they would gladly serve gays in their restaurant, they wouldn't cater a gay wedding.

Should the Supreme Court rule in Obergefell v. Hodges that same-sex marriage is a constitutional right, expect more of the same. During oral arguments on Tuesday, Justice Samuel Alito asked Obama administration Solicitor General Donald Verrilli whether a religiously affiliated college that opposed same-sex marriage could lose its tax-exempt status after such a ruling. “It is going to be an issue,” Mr. Verrilli replied.

That is putting it mildly; the phrase “persecution of Christians” might be more apt. It would be nice if states passed religious-freedom laws that both protected gays and lesbians from discrimination in day-to-day transactions and accommodated people whose beliefs recognize traditional man-woman marriage—as Utah did last month. But in today's mood of vengeful triumphalism among the progressive elites who rule public opinion, don't count on many compromises.

Ms. Allen is the author of “The Human Christ: The Search for the Historical Jesus” (Free Press, 1998).

from, 2015-Apr-1, by Scott Ott:

Story About First Business to `Publicly Vow to Reject Gay Weddings' Was Fabricated Out of Nothing
Woman becomes the new face of Christian bigotry while literally minding her own business, after ambush interview, media feeding frenzy.

The Huffington Post headline screams:

Indiana's Memories Pizza Reportedly Becomes First Business To Reject Catering Gay Weddings

Memories Pizza is a nine-year-old shop in downtown Walkerton, Indiana, just a few blocks from John Glenn High School. It's owned by an openly-Christian couple, the O'Connors, who decorate their shop with mementos of their faith in Christ. So how does a small business in a small town wind up making headlines around the world as the new avatar of Christian bigotry?

Perhaps, you say, they brought this upon themselves, seeking out publicity for their strict biblical views.


Some cursory internet forensics shows how it happened…or rather, how it was made to happen.

ABC-57 reporter Alyssa Marino's editor sends her on a half-hour drive southwest of their South Bend studio, to the small town of Walkerton (Pop. ~2,300). According to Alyssa's own account on Twitter, she “just walked into their shop [Memories Pizza] and asked how they feel” about Indiana's new Religious Freedom Restoration Act.

Owner Crystal O'Connor says she's in favor of it, noting that while anyone can eat in her family restaurant, if the business were asked to cater a gay wedding, they would not do it. It conflicts with their biblical beliefs. Alyssa's tweet mentions that the O'Connors have “never been asked to cater a same-sex wedding.”

What we have here is — as we called in journalism school jargon — “no story.” Nothing happened. Nothing was about to happen.

If I were forced to mark out a story line, it would be this: A nice lady in a small town tries to be helpful and polite to a lovely young reporter from “the big city.”

In other words, Memories Pizza didn't blast out a news release. They didn't contact the media, nor make a stink on Twitter or Facebook. They didn't even post a sign in the window rejecting gay-wedding catering jobs. They merely answered questions from a novice reporter who strolled into their restaurant one day – who was sent on a mission by an irresponsible news organization.

Next: ABC-57 anchor Brian Dorman leads the evening newscast dramatically with this:

Only on ABC-57 News tonight. We went into small towns looking for reaction to the Religious Freedom Act. We found one business, just 20 miles away from a welcoming South Bend…with a very different view.

Notice that his city of South Bend is “welcoming,” but that small-town business is not. It's very different. That's why ABC-57 “went into small towns,” as if embarking on a safari to aboriginal lands.

Not only did ABC-57 News create that story ex nihilo (out of nothing), but the next day, the station's Rosie Woods reported on the social-media backlash against the Christian pizza shop owners.

“Our Facebook page has been blowing up with comments after we aired that story last night,” said Woods.

At this point, even my old Leftist journalism professors would be grinding their teeth and rending their garments.

You see, not only did ABC-57 manufacture the story with an ambush interview, it then doubled-down by making the reaction to the story into another story to give the sense of momentum, as if it were growing at its own impetus. Yet, everything about it is a fabrication.

Memories Pizza didn't “publicly vow to reject gay weddings” as HuffPo says it. The O'Connors were just, quite literally, minding their own business.

Back in the ABC-57 studio, Rosie Woods read three negative social media comments attacking the pizza shop owners, and then said, “And that's just one side of this debate that's heating up as more people and business owners speak up about the law.”

She then quotes one (1) person, the owner of another business, who agreed with the O'Connors. Seems that “just one side of this debate” deserves more attention than the other.

The unnamed ABC-57 editor then sends another reporter door-to-door on Walkerton's rather depressed-looking main drag, trying to get reactions from other business people about the pizza shop owners. And the story inexorably snowballs onward, with only man's yearning for truth to propel it.

All of the blog traffic and social media activity led to about 36,000 Facebook shares at on the original Alyssa Marino story less than 24 hours after it aired.

BuzzFeed posted its own inaccurate headline, with the kicker: ”The Internet has unleashed its wrath.”

All of those eyeballs benefit the TV station, which sells advertising on its website. It also helps several young, minor-market reporters who hustled and stumbled their way into the national spotlight. But don't blame them. Blame the editor.

Meanwhile, over at, more than a thousand “reviews” of Memories Pizza rapidly accumulated, quickly overwhelming the positive comments from actual customers who like the pizza, the hospitality and the small-town charm. Folks who never heard of Walkerton attacked Crystal O'Connor's business, her morality and her Lord. Many of the remarks included racially charged descriptions of genitalia and sex acts. “Reviewers” also posted pictures of naked men, of Adolf Hitler shouting “Ich habe ein pizza” (I have a pizza), and of Jesus gesturing with his middle finger. Over on Facebook, the restaurant's 5-star average rating rapidly plunged to one star, as non-customers slammed away at Crystal's little business.

In Saul Alinsky's Rules for Radicals, a manifesto of political power, Rule No. 12 says, in part:

Go after people and not institutions; people hurt faster than institutions. (This is cruel, but very effective. Direct, personalized criticism and ridicule works.)

The Left doesn't care who gets hurt, so long as they get what they want. They're willing — no, they're eager — to sacrifice a small-town business, and it's owners.

Lest you think I'm being too dramatic. Late Wednesday, word comes that Jess Dooley, a female coach at Concord High School 45 minutes away in Elkhart, has been suspended after tweeting:

Who's going to Walkerton, IN to burn down #memoriespizza w me?

from the Wall Street Journal, 2015-Mar-8, by L. Gordon Crovitz:

Netflix Recants on Obamanet
Proponents of net neutrality appear to be experiencing lobbyists' remorse.

Corporate executives choose their words carefully at investor conferences hosted by the large investment banks, and analysts listen closely to decide whether to drive share prices up or down. Presentations are preceded by required securities-law disclosures, heightening the pressure to speak only carefully considered thoughts.

With that in mind, consider what David Wells, chief financial officer of Netflix , said last week at the annual Morgan Stanley Technology, Media and Telecom Conference. He disclosed that Netflix, one of the few companies that advocated the most extreme form of Internet regulation, had lobbyist's remorse only a week after the Federal Communications Commission voted to replace the open Internet with Obamanet.

“Were we pleased it pushed to Title II?” Mr. Wells said to investors. “Probably not. We were hoping there might be a nonregulated solution.”

Title II is the part of the Communications Act of 1934 that bureaucrats used to exert near-total control over the AT&T telephone monopoly. The FCC recently did President Obama's bidding by voting to impose that micromanagement on the Internet. The FCC will decide what prices and other terms online are “just and reasonable.” The agency added a new “general conduct” catchall provision giving itself oversight of Internet content and business models.

Netflix PR handlers claimed that Mr. Wells was just “trying to convey how our position had evolved.” But the company's actions support Mr. Wells's words. Last week, Netflix violated a core tenet of net neutrality when it launched its service in Australia as part of a “zero rating” offering by broadband providers, which excludes its video from data caps. Net neutrality advocates want to outlaw such deals. Netflix shrugged off this objection: “We won't put our service or our members at a disadvantage.”

Last year National Journal reported that Netflix was “relishing” its role as the lead lobbyist for net neutrality, “not only advocating a position that would protect its profits,” but “also earning goodwill from web activists and liberals.”

Today Netflix is a poster child for crony capitalism. When CEO Reed Hastings lobbied for Internet regulations, all he apparently really wanted was for regulators to tilt the scales in his direction with service providers. Or as Geoffrey Manne of the International Center for Law and Economics put it in Wired: “Did we really just enact 300 pages of legally questionable, enormously costly, transformative rules just to help Netflix in a trivial commercial spat?”

Ironically, Netflix could end up the biggest loser with a regulated Internet. The FCC did not stop at claiming power to regulate broadband providers. It will also review the interconnection agreements and network tools that allow the smooth functioning of the Internet—including delivery of Netflix videos, which take up one-third of broadband nationwide at peak times.

Net-neutrality advocates oppose “fast lanes” on the Internet, arguing they put startups at a disadvantage. Netflix could not operate without fast lanes and even built its own content-delivery network to reduce costs and improve quality. This approach will now be subject to the “just and reasonable” test. The FCC could force Netflix to open its proprietary delivery network to competitors and pay broadband providers a “fair” price for its share of usage.

There's no need for the FCC to override the free-market agreements that make the Internet work so well. Fast lanes like Netflix's saved the Internet from being overwhelmed, and there is nothing wrong with the “zero cap” approach Netflix is using in Australia. Consumers benefit from lower-priced services.

The FCC still hasn't made public its 300-plus pages of new regulations, but there is increasing opposition against changing the Internet as we know it. Last week John Perry Barlow, the Grateful Dead lyricist-turned-Internet-evangelist, participated in a conference call of Internet pioneers opposed to the FCC treating the Internet as a utility. He called the regulatory step “singular arrogance.”

In 1996 Mr. Barlow's “Declaration of the Independence of Cyberspace” helped inspire a bipartisan consensus for the open Internet: “Governments of the Industrial World, you weary giants of flesh and steel, I come from Cyberspace, the new home of Mind. On behalf of the future, I ask you of the past to leave us alone. You are not welcome among us. You have no sovereignty where we gather.”

The permissionless Internet succeeded beyond anyone's expectations, becoming an unmatched outlet for creativity and innovation. Mr. Obama has defied the bipartisan consensus that made this possible. Unless Congress or the courts intervene, the future of the Internet will look like the past, when bureaucrats and lawyers, not visionaries and entrepreneurs, were in charge.

from CNN, 2015-Feb-13, by Jeremy Diamond:

U.S. slips again in press freedom ranking with blame on Obama administration

Washington -- The United States has dropped 29 spots in the annual Reporters Without Borders press freedom ranking since 2009, when President Barack Obama took office.

The U.S. ranked 49th this year out of 180 countries included in the organization's World Press Freedom Index, joining the ranks of countries like Niger, Malta and Romania.

The decline from its position at No. 20 in 2009 has been spurred by the Obama administration's aggressive prosecution of whistleblowers, said Delphine Halgand, the organization's U.S. director.

"We consider that the Obama administration has launched a war against whistleblowers," Halgand said. "This year is a continuation of the concern we already expressed that national security protection has been more and more threatening freedom of information in the U.S."

The U.S. has prosecuted eight alleged whistleblowers under the Espionage Act, more than all previous presidential administrations combined, Halgand said.

Despite Obama's campaign pledge to make his administration one of the most transparent in history, reporters and press freedom watchdogs have continually slammed the administration as one of the least transparent and criticized its dogged efforts to plug leaks.

Reporters without Borders, an organization that works to protect journalists around the world, tied the U.S.'s drop in this year's rankings to the "judicial harassment" of James Risen, a New York Times reporter who last year stared down federal prosecutors pushing him to reveal the identity of an anonymous source.

The purported source, ex-CIA officer Jeffrey Sterling, was convicted early this year on nine felony counts for leaking classified information. Risen refused to reveal his source, and federal prosecutors decided not to indict him on any charges.

Reporters without Borders also pointed to the Ferguson protests, where it says at least 15 journalists were arrested.

The organization similarly downgraded the U.S.'s press freedom ranking following the Occupy Wall Street protests in 2011.

Fellow Western democracies scored better than the U.S. in the ranking.

Finland snagged the top spot, Canada was ranked 8th, and other U.S. allies, the United Kingdom and France, came in 34th and 38th, respectively.

France and the U.K. have also slipped in the rankings in recent years over concerns that national security concerns are encroaching on press access, Halgand said.

Other countries that got higher marks than the U.S. for press freedom? El Salvador, Botswana, Belize and Suriname, to list just a few.

The U.S. could again climb the rankings if it pulls back on its aggressive tack on leaks and if Congress passes a strong federal shield law, which would protect reporters' rights to not reveal their sources without fearing prosecution.

Most states have some type of shield law, but there is still no shield law to protect journalists in federal cases.

from the Wall Street Journal, 2015-Mar-4, by Richard S. Lindzen:

The Political Assault on Climate Skeptics
Members of Congress send inquisitorial letters to universities, energy companies, even think tanks.

Research in recent years has encouraged those of us who question the popular alarm over allegedly man-made global warming. Actually, the move from “global warming” to “climate change” indicated the silliness of this issue. The climate has been changing since the Earth was formed. This normal course is now taken to be evidence of doom.

Individuals and organizations highly vested in disaster scenarios have relentlessly attacked scientists and others who do not share their beliefs. The attacks have taken a threatening turn.

As to the science itself, it's worth noting that all predictions of warming since the onset of the last warming episode of 1978-98—which is the only period that the United Nations Intergovernmental Panel on Climate Change (IPCC) attempts to attribute to carbon-dioxide emissions—have greatly exceeded what has been observed. These observations support a much reduced and essentially harmless climate response to increased atmospheric carbon dioxide.

In addition, there is experimental support for the increased importance of variations in solar radiation on climate and a renewed awareness of the importance of natural unforced climate variability that is largely absent in current climate models. There also is observational evidence from several independent studies that the so-called “water vapor feedback,” essential to amplifying the relatively weak impact of carbon dioxide alone on Earth temperatures, is canceled by cloud processes.

There are also claims that extreme weather—hurricanes, tornadoes, droughts, floods, you name it—may be due to global warming. The data show no increase in the number or intensity of such events. The IPCC itself acknowledges the lack of any evident relation between extreme weather and climate, though allowing that with sufficient effort some relation might be uncovered.

World leaders proclaim that climate change is our greatest problem, demonizing carbon dioxide. Yet atmospheric levels of carbon dioxide have been vastly higher through most of Earth's history. Climates both warmer and colder than the present have coexisted with these higher levels.

Currently elevated levels of carbon dioxide have contributed to increases in agricultural productivity. Indeed, climatologists before the recent global warming hysteria referred to warm periods as “climate optima.” Yet world leaders are embarking on costly policies that have no capacity to replace fossil fuels but enrich crony capitalists at public expense, increasing costs for all, and restricting access to energy to the world's poorest populations that still lack access to electricity's immense benefits.

Billions of dollars have been poured into studies supporting climate alarm, and trillions of dollars have been involved in overthrowing the energy economy. So it is unsurprising that great efforts have been made to ramp up hysteria, even as the case for climate alarm is disintegrating.

The latest example began with an article published in the New York Times on Feb. 22 about Willie Soon, a scientist at the Harvard Smithsonian Center for Astrophysics. Mr. Soon has, for over 25 years, argued for a primary role of solar variability on climate. But as Greenpeace noted in 2011, Mr. Soon was, in small measure, supported by fossil-fuel companies over a period of 10 years.

The Times reintroduced this old material as news, arguing that Mr. Soon had failed to list this support in a recent paper in Science Bulletin of which he was one of four authors. Two days later Arizona Rep. Raul Grijalva, the ranking Democrat on the Natural Resources Committee, used the Times article as the basis for a hunting expedition into anything said, written and communicated by seven individuals— David Legates, John Christy, Judith Curry, Robert Balling, Roger Pielke Jr. , Steven Hayward and me—about testimony we gave to Congress or other governmental bodies. We were selected solely on the basis of our objections to alarmist claims about the climate.

In letters he sent to the presidents of the universities employing us (although I have been retired from MIT since 2013), Mr. Grijalva wanted all details of all of our outside funding, and communications about this funding, including “consulting fees, promotional considerations, speaking fees, honoraria, travel expenses, salary, compensation and any other monies.” Mr. Grijalva acknowledged the absence of any evidence but purportedly wanted to know if accusations made against Mr. Soon about alleged conflicts of interest or failure to disclose his funding sources in science journals might not also apply to us.

Perhaps the most bizarre letter concerned the University of Colorado's Mr. Pielke. His specialty is science policy, not science per se, and he supports reductions in carbon emissions but finds no basis for associating extreme weather with climate. Mr. Grijalva's complaint is that Mr. Pielke, in agreeing with the IPCC on extreme weather and climate, contradicts the assertions of John Holdren, President Obama 's science czar.

Mr. Grijalva's letters convey an unstated but perfectly clear threat: Research disputing alarm over the climate should cease lest universities that employ such individuals incur massive inconvenience and expense—and scientists holding such views should not offer testimony to Congress. After the Times article, Sens. Edward Markey (D., Mass.), Sheldon Whitehouse (D., R.I.) and Barbara Boxer (D., Calif.) also sent letters to numerous energy companies, industrial organizations and, strangely, many right-of-center think tanks (including the Cato Institute, with which I have an association) to unearth their alleged influence peddling.

The American Meteorological Society responded with appropriate indignation at the singling out of scientists for their scientific positions, as did many individual scientists. On Monday, apparently reacting to criticism, Mr. Grijalva conceded to the National Journal that his requests for communications between the seven of us and our outside funders was “overreach.”

Where all this will lead is still hard to tell. At least Mr. Grijalva's letters should help clarify for many the essentially political nature of the alarms over the climate, and the damage it is doing to science, the environment and the well-being of the world's poorest.

Mr. Lindzen is professor emeritus of atmospheric sciences at MIT and a distinguished senior fellow of the Cato Institute.

from the Wall Street Journal, 2015-Mar-5, by Suryatapa Bhattacharya and Aditi Malhotra:

Google Complies With India Order to Block Links to Film
Indian police want access limited to documentary on 2012 gang rape

NEW DELHI— Google Inc. said Thursday that Indian law-enforcement agencies asked the company to block links on its YouTube video-sharing site that led to copies of a documentary about a 2012 gang rape and murder in Delhi.

Indian police sought and received a court order earlier this week banning broadcast of the film “India's Daughter,” which tells the story of the brutal attack that galvanized public opinion in India and tarnished the nation's image abroad.

The court said comments by one of the convicted rapists, Mukesh Singh, who was interviewed in the documentary could cause “huge public outcry.” The court order also banned publication of Mr. Singh's comments.

The British Broadcasting Corp. showed the film Wednesday evening in the U.K. Internet users then uploaded the documentary on YouTube, where Indian viewers were able to see it early Thursday.

Gaurav Bhaskar, a Google spokesman in India, said that by later Thursday the company had “complied with the court order and blocked access to those web links” specified by law-enforcement authorities.

Clicking on some YouTube links resulted in a message reading: “This content is not available on this country domain due to a court order. Sorry about that.” Other links to the documentary still appeared to work, however.

Speaking to reporters Thursday, Home Minister Rajnath Singh said “all options are open” to prevent broadcast of the film.

The BBC said the film was made with the “full support and cooperation” of the rape victim's family. A spokesman said it “handles the issue responsibly and we are confident the program fully complies with our editorial guidelines.”

Government efforts to keep the documentary, made by a British filmmaker, from being seen have sparked vigorous debate in India.

On Wednesday, Mr. Singh told Parliament the government wouldn't “allow any attempt by any individual, group or organization to leverage such an unfortunate incident for commercial benefits.”

Anu Aga, a member of Parliament, said in the upper house Wednesday the documentary reflected the view that women are often held responsible for provoking men with their choice of clothing.

“If there is a rape, blame is put on the woman,” she said. “We have to confront the issue that men in India do not respect women in India.”

The father of the victim told The Wall Street Journal on Thursday that he felt the documentary had succeeded in holding up a mirror to society's attitude toward women. “It reflects upon our society what men think of our daughters, their views on women and rape,” he said.

Still, he said, he supported the government's restrictions on the film. “The government must have put some thought to it,” he said.

from, 2015-Feb-23, by Mary Katharine Ham:

Revealed: Blogger finally finishes book
Alternate headline: Blogger reveals why she's been slacking on for a year.

I'm excited to announce that my longtime friend and colleague, Guy Benson and I have written a book! It's called…drumroll please and take a deep breath, so you can say the whole subtitle:

“End of Discussion: How the Left's Outrage Industry Shuts Down Debate, Manipulates Voters, and Makes America Less Free (And Fun!)”

Coming in June 2015, but available for pre-order now!

There's a coalition of blowhards and busybodies creating an ever-changing list of words you cannot say and things you cannot do. The increasingly weaponized public shame machine kicks into gear for anyone who crosses these ever-changing boundaries, making private citizens into social pariahs, taking away their livelihoods, and otherwise extracting economic costs for parting ways with the modern Left. The object is to win social and policy debates, not by having them, but by preventing them from happening.

Buzzfeed's Katherine Miller today featured a news item from our interview with Gov. Scott Walker in the book. This is a taste of how he built a media strategy during his 2011 budget fight that allowed him to speak to the people of Wisconsin without being shouted down by some of the most intense outrage brigades the country has seen in years:

“At the height of the [anti-budget] union protests, when we were approaching 100,000 protesters at and around the Capitol, I finally got wise,” Walker tells Ham and Benson in an interview for the book. “I started holding press conferences at 5:00 because I knew that if I kept it concise, local television and some national outlets would cover it live. So I had an unfiltered way to talk to the state for about 10 minutes.”

The protests in 2011 were over Walker's budget proposal, which, to meet a budget deficit, instituted significant increases to public-sector employees' benefits and pension contributions, and limited their ability to collectively bargain.

That media control of Walker's didn't last forever, and he admits that the protesters figured out what he was doing and adapted.

“They started to get really loud right around 5 p.m.,” he says in the interview. “I'd be speaking to the press, and they'd make lots of noise. On one particular day, they were louder than they'd ever been, and a reporter asked me if those people had a right to be heard. And I said that they had every right to be heard, but that I wasn't going to let tens of thousands of people — and some were bused and flown in from other states — drown out the voices of millions of people around Wisconsin who elected me to do exactly what I was doing.”

As the past week illustrates, every GOP candidate is going to have to be ready for the outrage circus, from activists and journalists alike, spinning up controversies under the most aggravating of double standards.

This is not a good way of doing business. What once was a country dedicated to using free speech to push boundaries has become a daily exercise in creating new and ever tighter boundaries on public discourse. And, if you cross them, you'll get stunned like a puppy with an electric collar.

This book is two parts examination, two parts venting of frustration. The double standards, the demagoguery, the utter dumbness of making every tiny story incident into something about which we must all be outrageously outraged (and, yes, our side does it, too, which we address). It can make life truly miserable, politics even stupider than it already was, and debate nearly impossible.

Welcome to the End of Discussion.

Available for pre-order now at! Please come see us at CPAC, where we'll be taking orders and pictures. It's a fun read on a serious topic, and we tried to write it in such a way that you could hand it to your moderate or liberal friends or family and hope to open their eyes to the increasingly stifling and intolerant society we're creating—not just for conservatives, but for art, comedians, liberals in good standing, and everyone else.

It's our first book, produced with the help of our friends at Crown Forum, who have more on the it, here.

We hope you'll enjoy, and help us prevent the End of Discussion!

from BBC News, 2015-Mar-5:

Facebook rant lands US man in UAE jail

An expat American has been arrested in the United Arab Emirates for comments he posted on Facebook while in the US.

Helicopter mechanic Ryan Pate wrote the Facebook post while in Florida after arguing with employer Global Aerospace Logistics (Gal) over sick leave.

On returning to Abu Dhabi from Florida, he was arrested for breaking the country's strict cyber-slander laws.

His trial is due to start on 17 March and he could face up to five years in jail and a large fine if found guilty.

Legal fee

Mr Pate's dispute with his employer began in December last year when he sought to extend his holiday to see a doctor about a long-standing back injury. After being told he could not extend his leave, Mr Pate posted a rant about the Abu Dhabi-based firm on his Facebook page.

In the post, Mr Pate called Gal "backstabbers" and warned other contractors about working for the firm. He also complained about life in the UAE and used a racial slur against the region's people.

He returned to Abu Dhabi in order to resign but soon after arriving he was called by police who told him to report to a nearby police station. On attending he was shown screenshots of the Facebook message and told his employer had filed charges accusing him of breaking wide-ranging Emirates laws that ban slander.

The laws were introduced in late 2012 and make it an offence to use the net to mock or deride organisations and individuals.

Analysis: Jonathan Frewin, BBC Middle East business correspondent 2012 - 2014

This is the latest in a series of difficult cases for UAE authorities following the introduction of the country's 2012 Cyber-crimes law.

One involved the detention of a man who had filmed and uploaded a video of an Emirati government official attacking an Indian van driver. The attacker faced a fine of up to 10,000 dirhams (£1,800) and a year in jail. The uploader, charged with defamation for sharing a video of the attack, faced a possible penalty of two years in jail, and a 20,000 dirhams (£3,600) fine.

And whilst in this case many in the west may be surprised to see that someone could face imprisonment for what might be regarded as innocuous comments on Facebook about an employer, in Gulf culture, protection of reputation is seen as paramount, and enshrined by tough laws.

Now it has garnered international attention though, this new case poses yet another potentially embarrassing headache for the UAE government. However, the resolution of the road rage incident may offer a model. All charges were dropped, whilst the attacker lost his job.

Although Mr Pate will no doubt hope that he avoids the fate of another American who was caught up in the UAE's cyber-crimes law. Shezanne Cassim was convicted of defamation and spent a year in jail, for uploading a satirical video to YouTube.

"I never even entertained the fact that I would wind up in prison out here for something I put on Facebook in the United States," said Mr Pate.

Gal has yet to respond to requests for comment about the incident.

However, news about Mr Pate's arrest has begun to spread online and some people have posted comments on Gal's Facebook page criticising the way it has treated him.

In addition, Mr Pate's cause has been taken up by his congressman David Jolly who has contacted the US State Department and the UAE attorney general seeking to get the case quashed.

"It is deeply troubling that Mr Pate now faces judicial proceedings over an action that was done legally in his home country," said Mr Jolly.

Mr Jolly is also pushing for a meeting with the US ambassador to the UAE to get help with the case. Mr Pate's fiancee has begun an online effort to raise funds to pay his legal fees.

The US State Department said the American embassy in the country has helped Mr Pate get medical attention and legal advice. Mr Pate was arrested on 16 February and spent about 10 days in jail. He has now been released on bail prior to the trial later this month.

"I just want to apologise to everybody I dragged into this," Mr Pate said in an interview with a US newspaper. "It is embarrassing, and I never meant for this to happen. I let my emotions get the better of me."

from USA Today, 2015-Jan-20, by John Shinal:

Banning encryption is digital equivalent of banning books

SAN FRANCISCO — The widespread dissemination of ideas can disrupt society and subvert the power of those at its top.

Gutenberg's printing press, for example, helped spur the Protestant Reformation that over time helped overturn the religious and political order of Europe.

In an often-bloody process that took about 400 years, the authoritarian empires that ruled the continent gave way to modern, democratic nation-states.

Books have been banned (and burned) precisely because new ideas are a threat to the people in charge.

As powerful elites from across the globe prepare to gather for the World Economic Forum this week, smartphones and electronic tablets linked to the Internet have become the modern equivalents of mass-produced bibles.

These mobile devices are helping to disseminate not only political ideas but technological literacy and innovation-driven productivity to workers around the globe.

That's a positive development for the world economy and for nascent, democratic political movements.

Yet even as it empowers individuals, the proliferation of connected-consumer technology is making nations and large corporations less secure.

In such uncertain times, as terrorist attacks on civilians and hacker attacks on corporate computer systems increase, the urge to censor ideas is once again on the rise.

Last week, U.K. Prime Minister David Cameron proposed a new form of censorship, one that could become the digital equivalent of book-banning.

What Cameron would like to ban is not printed books but rather encrypted texts and e-mails, like those often used by terrorists.

Cameron wrapped his proposal in a speech that stated that the most important thing a government can do for its people is to keep them safe.

I would argue to Cameron that the most important thing a democracy can do for its people is to keep them free.

That means being free to express political opinions and communicate with whomever they want in whatever manner they want.

At times, such freedom comes at a terrible cost — one paid for in blood — as Americans were reminded on Sept. 11, 2001, and as the people of France suffered this month.

But terrorists aren't the only people who favor secret communication. So do government whistle-blowers and political dissidents.

That's why Internet censorship is practiced with great vigor in countries with traditions of violently suppressing political dissent, including China, Russia, North Korea and much of the Middle East.

Cameron's proposal — like China's great Internet firewall and the USA Patriot Act — could trade freedom for a promise of safety. It's also a tacit admission that law-enforcement agencies have fallen behind the technology curve. Rather than modernize them, Cameron would slow down the use of a new technology that can be used by some to promote dangerous ideas.

There's no doubt that the spread of radical Islam is dangerous, given that its adherents persist in murdering civilians. Yet as the printing press and the Reformation showed, such attempts at information control are usually futile over the long run.

What's needed instead is a long-term plan to engage and empower those at risk of being radicalized and using murder to express their political and social grievances.

Let's hope those gathered in Davos, Switzerland, this week can come up with an idea or two for doing so.

Internet consumers who care about online privacy and long-term security should fight any proposal to ban encrypted communication. So should executives or board members who want to discuss their company's strategy or finances behind closed doors.

In the wake of computer attacks that have included the theft of sensitive e-mails, look for more companies to encrypt such internal communications. A proposal like Cameron's would give law enforcement agencies blanket access to those as well.

Americans should be leery of anyone who promises to keep them safe via online censorship and other restrictions on private communication.

History shows that individual freedom and empowerment — not safety at all costs — is the best long-term strategy for nurturing and protecting democracies.

Shinal has covered tech and financial markets for more than 15 years at Bloomberg, BusinessWeek,The San Francisco Chronicle, Dow Jones MarketWatch, Wall Street Journal Digital Network and others. Follow him on Twitter: @johnshinal.

from BoingBoint, 2015-Jan-13, by Cory Doctorow:

What David Cameron just proposed would endanger every Briton and destroy the IT industry
David Cameron says there should be no "means of communication" which "we cannot read" -- and no doubt many in his party will agree with him, politically. But if they understood the technology, they would be shocked to their boots.

What David Cameron thinks he's saying is, "We will command all the software creators we can reach to introduce back-doors into their tools for us." There are enormous problems with this: there's no back door that only lets good guys go through it. If your Whatsapp or Google Hangouts has a deliberately introduced flaw in it, then foreign spies, criminals, crooked police (like those who fed sensitive information to the tabloids who were implicated in the hacking scandal -- and like the high-level police who secretly worked for organised crime for years), and criminals will eventually discover this vulnerability. They -- and not just the security services -- will be able to use it to intercept all of our communications. That includes things like the pictures of your kids in your bath that you send to your parents to the trade secrets you send to your co-workers.

But this is just for starters. David Cameron doesn't understand technology very well, so he doesn't actually know what he's asking for.

For David Cameron's proposal to work, he will need to stop Britons from installing software that comes from software creators who are out of his jurisdiction. The very best in secure communications are already free/open source projects, maintained by thousands of independent programmers around the world. They are widely available, and thanks to things like cryptographic signing, it is possible to download these packages from any server in the world (not just big ones like Github) and verify, with a very high degree of confidence, that the software you've downloaded hasn't been tampered with.

Cameron is not alone here. The regime he proposes is already in place in countries like Syria, Russia, and Iran (for the record, none of these countries have had much luck with it). There are two means by which authoritarian governments have attempted to restrict the use of secure technology: by network filtering and by technology mandates.

David Cameron has already shown that he believes he can order the nation's ISPs to block access to certain websites (again, for the record, this hasn't worked very well). The next step is to order Chinese-style filtering using deep packet inspection, to try and distinguish traffic and block forbidden programs. This is a formidable technical challenge. Intrinsic to core Internet protocols like IPv4/6, TCP and UDP is the potential to "tunnel" one protocol inside another. This makes the project of figuring out whether a given packet is on the white-list or the black-list transcendentally hard, especially if you want to minimise the number of "good" sessions you accidentally blackhole.

More ambitious is a mandate over which code operating systems in the UK are allowed to execute. This is very hard indeed. We do have, in Apple's Ios platform and various games consoles, a regime where a single company uses countermeasures to ensure that only software it has blessed can run on the devices it sells to us. These companies could, indeed, be compelled (by an act of Parliament) to block secure software. Even there, you'd have to contend with the fact that other EU states and countries like the USA are unlikely to follow suit, and that means that anyone who bought her Iphone in Paris or New York could come to the UK with all their secure software intact and send messages "we cannot read."

But there is the problem of more open platforms, like GNU/Linux variants, BSD and other unixes, Mac OS X, and all the non-mobile versions of Windows. All of these operating systems are already designed to allow users to execute any code they want to run. The commercial operators -- Apple and Microsoft -- might conceivably be compelled by Parliament to change their operating systems to block secure software in the future, but that doesn't do anything to stop people from using all the PCs now in existence to run code that the PM wants to ban.

More difficult is the world of free/open operating systems like GNU/Linux and BSD. These operating systems are the gold standard for servers, and widely used on desktop computers (especially by the engineers and administrators who run the nation's IT). There is no legal or technical mechanism by which code that is designed to be modified by its users can co-exist with a rule that says that code must treat its users as adversaries and seek to prevent them from running prohibited code.

This, then, is what David Cameron is proposing:

* All Britons' communications must be easy for criminals, voyeurs and foreign spies to intercept

* Any firms within reach of the UK government must be banned from producing secure software

* All major code repositories, such as Github and Sourceforge, must be blocked

* Search engines must not answer queries about web-pages that carry secure software

* Virtually all academic security work in the UK must cease -- security research must only take place in proprietary research environments where there is no onus to publish one's findings, such as industry R&D and the security services

* All packets in and out of the country, and within the country, must be subject to Chinese-style deep-packet inspection and any packets that appear to originate from secure software must be dropped

* Existing walled gardens (like Ios and games consoles) must be ordered to ban their users from installing secure software

* Anyone visiting the country from abroad must have their smartphones held at the border until they leave

* Proprietary operating system vendors (Microsoft and Apple) must be ordered to redesign their operating systems as walled gardens that only allow users to run software from an app store, which will not sell or give secure software to Britons

* Free/open source operating systems -- that power the energy, banking, ecommerce, and infrastructure sectors -- must be banned outright

David Cameron will say that he doesn't want to do any of this. He'll say that he can implement weaker versions of it -- say, only blocking some "notorious" sites that carry secure software. But anything less than the programme above will have no material effect on the ability of criminals to carry on perfectly secret conversations that "we cannot read". If any commodity PC or jailbroken phone can run any of the world's most popular communications applications, then "bad guys" will just use them. Jailbreaking an OS isn't hard. Downloading an app isn't hard. Stopping people from running code they want to run is -- and what's more, it puts the whole nation -- individuals and industry -- in terrible jeopardy.

from the Wall Street Journal, 2014-Dec-29, by Barry A. Fisher:

Free Speech's Shrinking Circle of Friends
Liberals and even some conservatives embrace the `heckler's veto' threat to the First Amendment.

An essential freedom-of-speech paradigm was established in 1949 by the Supreme Court in Terminiello v. Chicago. In that case a vitriolic, racist speaker spoke to an auditorium packed with supporters. Outside the auditorium was what was described as “ `a surging, howling mob hurling epithets' at those who would enter and `tried to tear their clothes off.' ” The police blamed the mob's action on the speaker, Arthur Terminiello, a Catholic priest under suspension by his bishop. He was convicted of disturbing the peace and fined.

The Supreme Court, in a 5-4 decision, reversed the conviction and ruled that Terminiello's speech was protected by the First Amendment. The court said that the police, instead of taking action against the speaker, should have protected him and controlled the crowd, including making arrests if necessary. University of Chicago law professor Harry Kalven Jr. would later coin the term “heckler's veto” to describe what would have happened had the court decided otherwise. First Amendment rights could be “vetoed” by others who create a public disturbance that forces the silencing of the speaker.

Sony 's recent crisis over the film “The Interview”—along with the domestic political correctness and anti-hate speech movements, various international agreements and globalization itself—is leading the country precisely toward a heckler's veto.

Protesters have silenced speakers on several occasions this year, sometimes with the law's support. In February a panel of the Ninth Circuit Court of Appeals upheld a California high school's decision to prohibit students from wearing American-flag T-shirts on Cinco de Mayo “to avert violence.” In August a panel of the Sixth Circuit Court of Appeals upheld the ejection of an anti-Islam Christian group from an Arab festival in Dearborn, Mich., on the theory that the group's speech would incite festivalgoers to violence. (In October the full court agreed to reconsider the decision.)

In December protesters against the non-indictment of a police officer in Ferguson, Mo., stormed into an auditorium at the University of California, Berkeley, and shut down a speech by Internet entrepreneur Peter Thiel . And during the past academic year, protesters caused the cancellation of commencement addresses by former U.S. Secretary of State Condoleezza Rice at Rutgers University, and International Monetary Fund Director Christine Lagarde at Smith College.

There is growing support, including among academics and racial and religious advocacy groups, that what they define as hate speech like Terminiello's is simply outside the First Amendment's protection. Law professors have concocted influential concepts like “outsider jurisprudence,” “critical race theory,” “critical feminist theory, and “storytelling” theory to define some kinds of politically incorrect speech as not speech at all, but “mechanisms of subordination.”

The International Covenant on Civil and Political Rights (which the U.S. Senate ratified, but with several “reservations” that may have rendered it toothless for now) nominally protects free expression, but requires state parties to prohibit “any advocacy of national, racial or religious hatred that constitutes incitement to discrimination.” The Organization of the Islamic Conference has repeatedly sponsored resolutions in the U.N. Human Rights Commission against the “defamation of religion.”

Meanwhile, globalization itself poses challenges.

In Terminiello, the site of the speech was a rented hall in Chicago. In the case of “The Interview,” the “speaker” is Sony Pictures, a subsidiary of the Japanese technology and media conglomerate. The “places” of speech were mostly intended to be big theater chains like AMC Theatres. AMC is a subsidiary of another foreign company, the Chinese conglomerate Dalian Wanda Group. The movie—the “speech” in this case—satirizes a third country, North Korea.

The project is informed by national interests and international relations that conflict with each other and with those of the U.S. Internal Sony emails released by hackers that the U.S. government has said were working for North Korea, show that executives in Tokyo, including the CEO of Sony Corp., were concerned about the film's potential for inflaming relations between Japan and North Korea, and made changes to tone it down. No matter; North Korea declared that to allow the production and distribution of the movie was an “act of war” and threatened attacks against targets in the U.S.

China has used its muscle to squelch free speech in the U.S. sometimes involving Falun Gong—a religious group that Beijing has condemned and whose members have been brutally persecuted in China. Several years ago Falun Gong had an agreement to rent space for exhibits at a major Los Angeles hotel. They complained that the Chinese government pressured the hotel to end its agreement. Chinese consulates in the U.S. also have pressured local Chinese New Year's Day committees to prevent Falun Gong from participating in Chinese New Year's parades in cities including Los Angeles, San Francisco and New York. With globalization, the reach of foreign government influence on free expression will multiply, and the free expression that Americans enjoy will wither.

It is rare for movies released by major studios to be shut down by opposition. Ironically, one example also involved Korea—the film “Inchon,” a Hollywood production with a stellar cast and crew. The film, at its pre-release première at Washington's Kennedy Center, was greeted by picketers who had been alerted that it had been financed largely by Rev. Sun Myung Moon, whose Unification Church was accused of being a coercive cult.

The film was released by MGM/UA in 1982, and again drew anti-Unification Church pickets in Los Angeles. With public attention focused on Unification Church involvement in the film rather than, as hoped by the producers, the actual battle of Inchon in 1950, the film was swiftly withdrawn at the request of the Unification Church. It was never shown again in theaters and was never released on videocassette or DVD.

Do police have a duty to protect the film exhibitors and viewers of “The Interview,” or of similar such films in the future? Fear of retaliation already has inhibited speech about Muhammad and other Islam-related matters—Iran's 1989 fatwa calling for the assassination of Salman Rushdie, author of “The Satanic Verses,” being the most well known. Add to that now speech about North Korea.

Mr. Fisher is a partner in the Los Angeles law firm of Fleishman & Fisher. He has litigated free-speech cases in state and federal courts including the Supreme Court, and has served as vice chairman of the American Bar Association First Amendment Committee.

from the Wall Street Journal, 2014-Oct-31, by John O'Sullivan:

No Offense: The New Threats to Free Speech
The U.S. and Britain have long considered themselves the standard-bearers for freedom of expression. Can this proud tradition survive the idea that `hurtful' speech deserves no protection?

On Feb. 14, 1989, I happened to be on a panel on press freedom for the Columbia Journalism Review when someone in the audience told us of Ayatollah Ruhollah Khomeini's religious edict for blasphemy against the British novelist Salman Rushdie. What did we think? We didn't, as I best recall, disgrace ourselves. We said most of the right things about defending freedom of thought and the imagination.

But the death sentence from Iran's supreme leader seemed unreal—the sending of a thunderbolt from medieval Qom against modern Bloomsbury—and we didn't treat it with the seriousness that it deserved. I recall, alas, making a very poor joke about literary deconstructionism. My colleagues, though more sensible, were baffled and hesitant. Was it even true—or perhaps just a mistranslation?

We knew soon enough that it was true. The literary, media and political worlds rallied in defense of Mr. Rushdie. He became a hero of free speech and a symbol—even if a slightly ambivalent postcolonial one—of Western liberal traditions. But he also went, very sensibly, behind a curtain of security that was to last many years.

And by degrees—when it seemed that not only Mr. Rushdie's life but the lives of his publishers, editors and translators might be threatened—his base of support in the literary world thinned out. Sensitive intellectuals discovered that, in a multicultural world, respect for the Other meant understanding his traditions too, and these often were, well, sterner than ours. Freedom of speech was only one value to be set against…ahem, several other values. Fear, cowardice and rationalization spread outward.

Twenty-five years later, we can look back on a long series of similar events, including: the 2002 anti-Christian riots in Nigeria, in which more than 200 people were killed because a local tabloid had facetiously suggested that Miss World contestants would make suitable brides for Muhammad; the 2004 murder of the Dutch filmmaker Theo van Gogh for his movie “Submission,” in which passages from the Quran were printed on women's bodies; the riots in Denmark and throughout the Middle East in 2005 in response to the publication of cartoons of Muhammad by a Danish magazine; the murder threats against Dutch politician Geert Wilders for his 2008 film “Fitna,” which interleaved passages from the Quran with clips of jihadist violence.

These events were threats to free speech, however, not only in themselves but also because they intimidated people and private organizations and gave governments an excuse to restrict free media. Over time, they encouraged others who had no interest in Islam whatsoever—from wealthy individuals to “dissident” minorities to democratic politicians—to try their hand at silencing opponents. Almost no newspapers published the Muhammad cartoons, for instance, though the story of them dominated the international media for weeks. Yale University Press especially distinguished itself by publishing a major study of the controversy in 2009—without the actual drawings.

Governments began to treat those threatened for their opinions almost as harshly as those attacking them. Dutch legal authorities tried repeatedly, if unsuccessfully, to prosecute Mr. Wilders for “inciting hatred” with his film. He was briefly prohibited from entering Britain. In 2006, Tony Blair's government passed the Racial and Religious Hatred Act—a kind of “blasphemy lite” law—ostensibly designed to protect all religions against threatening expression but generally understood as intended to limit hostile criticism of Islam. Both the U.S. and the European Union have entered into a dialogue in recent years with the 56 states of the Organization of the Islamic Conference, which is seeking an international law prohibiting blasphemy. In 2011, Secretary of State Hillary Clinton told the OIC that, while the First Amendment prevented the U.S. from prohibiting speech, the administration might still “use some old-fashioned techniques of peer pressure and shaming so that people don't feel they have the support to do what we abhor.”

Admittedly, it is difficult to draw a clear line between criticism of an Islamic belief and an attack on Muslims who believe it. If you denounce a belief as absurd, you are implicitly criticizing the believers as credulous fools. Christians have to endure explicit denunciations of their faith all the time from such writers as Richard Dawkins and Sam Harris. And so they should. If you can't stand the heat, don't listen to hellfire sermons from atheists.

Hearing criticisms of your own convictions and learning the beliefs of others are training for life in a multifaith society. Preventing open debate means that all believers, including atheists, remain in the prison of unconsidered opinion. The right to be offended, which is the other side of free speech, is therefore a genuine right. True belief and honest doubt are both impossible without it.

It isn't just some Muslims who want the false comfort of censoring disagreeable opinions. Far from it. Gays, Christians, feminists, patriots, foreign despots, ethnic activists—or organizations claiming to speak for them—are among the many groups seeking relief from the criticism of others through the courts, the legislatures and the public square.

England's libel laws—long a scandalous system for enabling the rich to suppress their scandals—now have imitations in Europe and the U.S. In May 2014, the European Court of Justice created “the right to be forgotten,” enabling those with ugly pasts—a fraudster, a failed politician, an anti-Muslim bigot perhaps—to delete their crimes, misdemeanors and embarrassments from Internet records so that search engines cannot find them.

Surely such things can't happen in the land of the First Amendment? Not in quite the same way, perhaps, but a libel suit brought by the climatologist Michael Mann against the opinion writer Mark Steyn, National Review magazine (with which I am affiliated) and the Competitive Enterprise Institute for their criticism of his temperature projections still poses a chilling threat to free speech and scientific debate. Even if the case is ultimately resolved in favor of Mr. Mann's critics, they will have suffered a considerable loss in time and money. “The process is the punishment,” Mr. Steyn has said of such trials. It is also a deterrent to future critics.

Nor are conservatives free from sin on this issue. In recent years, their attacks on free expression in the U.S. have generally been prompted by a philistine discomfort with provocative art, from the “Sensation” exhibition at the Brooklyn Museum in 1999 to the more recent flap over “The Death of Klinghoffer” at New York's Metropolitan Opera.

In Britain, the sitting Tory home secretary, Theresa May, long resisted efforts to reform a catchall law regulating speech that the police have enforced with extraordinary zeal and no sense of proportion. These police actions include arresting a protester for asking a policeman “Is your horse gay?”; prosecuting a drunken soccer fan who, from his sofa, attacked a player in a racist tweet; summoning a youngster to appear in court for a placard describing Scientology as a cult; and arresting a Muslim demonstrator for burning a Remembrance Poppy.

Under the new British law, an evangelical Christian also was fined for holding up a sign that read “Stop Homosexuality, Stop Lesbianism.” But he was lucky. A human rights tribunal in Canada imposed a lifetime ban on sermonizing about homosexuality on a clergyman who had similarly offended. In both countries, the restraints on speech have since been softened, but the concessions have been modest, and Canada's Supreme Court has clearly indicated a wish to retain the new speech regime in full.

This slow erosion of freedom of expression has come about in ways both social and legal. Before the 1960s, arguments for censorship tended to focus on sexual morality, pornography and obscenity. The censors themselves were usually depicted as benighted moral conservatives—priggish maiden aunts. Freedom of political speech, however, was regarded as sacrosanct by all. As legal restraints on obscenity fell away, however, freedom of political speech began to come under attack from a different kind of censor—college administrators, ethnic-grievance groups, gay and feminist advocates.

The new censors advanced such arguments as that “free speech can never be an excuse for racism.” These arguments are essentially exercises both in begging the question and in confusing it. While the principle of free speech cannot justify racism any more than it can disprove racism, it is the only principle that can allow us to judge whether or not particular speech is racist. Thus the censor's argument should be reversed: “Accusations of racism can never be an excuse for prohibiting free speech.”

Meanwhile, the narrowly legal grounds for restricting speech changed, too. Since the 18th century, the basic legal justifications for restricting political speech and publication were direct incitement to harm, national security, maintaining public order, libel, etc. Content wasn't supposed to be considered (though it was sometimes smuggled in under other headings).

Today, content is increasingly the explicit justification for restricting speech. The argument used, especially in colleges, is that “words hurt.” Thus, universities, parliaments, courts and various international bodies intervene promiscuously to restrict hurtful or offensive speech—with the results described above. In the new climate, hurtful speech is much more likely to be political speech than obscene speech.

The definition of political speech has changed too. The U.S. Supreme Court has expanded it to include nonspeech actions, such as nude dancing. Conservative judges such as the late Robert Bork had some fun pointing out that, under the Court's rulings, students couldn't lawfully pray before a football game, but they might dance naked—unless the dance included scarves, since this might constitute a prohibited “biblical” allusion to Salome's veils.

There is plainly scope for disagreement over what actions amount to protected speech, but in a landmark ruling in 1989, the Supreme Court decided that burning the American flag was among them. If one accepts the notion of nonspeech opinion, it is difficult to disagree. Burning the flag of the U.S., however odious, is plainly a statement meant to reject American power and legitimacy.

The Court's judgment in this case was the apogee of post-Vietnam free speech liberalism. But to bring the issue up-to-date: Burning the Quran also expresses a political opinion. Would today's justices reach the same conclusion as their predecessors did on the question of flag-burning? Would a U.S. administration that is discussing an international blasphemy law with the world's Islamic states tell the Court that burning a Quran is also protected speech? It is, at the very least, doubtful.

We know that today's British government wouldn't do so. Burning a Remembrance Day poppy is the British equivalent of flag-burning, and Ms. May, the home secretary, implicitly disagreed with the American precedent in her defense of Britain's restrictive laws. She explained that “a careful balance [had] to be struck between protecting our proud tradition of free speech and taking action against those who cause widespread offense.” Realistically parsed, this amounts to an acknowledgment that Britain's proud tradition of free speech will not in fact be protected. Speech that offends significant groups of people—as distinguished from speech that directly invites or threatens violence—will be censored or punished.

Some years ago, the liberal writer Michael Kinsley described the different attitudes to free speech in the U.K. and the U.S. as follows: “In a country like Great Britain, the legal protections for speech are weaker than ours, but the social protections are stronger. They lack a First Amendment, but they have thicker skin and a greater acceptance of eccentricity of all sorts.”

Today, both sorts of protection for speech—legal and social—are weaker than before in both countries. This year, official regulation of the press was passed into U.K. law for the first time since 18th-century juries nullified press prosecutions. These new restraints enjoyed the backing not just of all the parties but apparently of the public as well.

In the U.S., the case of Mann v. Steyn, let alone a hypothetical case involving Quran-burning, has yet to be decided. But Democrats in the Senate are seeking to restrict political speech by restricting the money spent to promote it. And in the private sector, American corporations have blacklisted employees for expressing or financing certain unfashionable opinions. In short, a public culture that used to be liberal is now “progressive”—which is something like liberalism minus its commitment to freedom.

The U.S. and Britain have long thought of themselves as, above all, free countries. If that identity continues to atrophy, free speech will be the first victim. But it will not be the last.

Mr. O'Sullivan is director of the Danube Institute in Budapest and a senior fellow of the National Review Institute in New York.

from the Wall Street Journal, 2015-Jan-15, by Deborah Ball:

Pope Francis Sees Limits to Freedom of Speech
On the Way to the Philippines, Pope Also Calls Killing in Name of Religion an `Aberration'

MANILA— Pope Francis waded into the debate over freedom of expression following the attacks in Paris, saying that killing in the name of religion is an “aberration,” but adding that those who deride other faiths can expect to provoke a strong—even violent—response.

Speaking in reference to last week's assault on French publication Charlie Hebdo that left 12 dead, the pope said that “no one can kill in the name of God. This is an aberration.”

He added, however, that “there is a limit to freedom of expression.” The pope offered a colorful example, referring to a hypothetical case in which someone insults his mother.

“One cannot react violently, but if [someone] says something bad about my mother, he can expect a punch. It's to be expected,” the pontiff said. “There are a lot of people who speak badly about other religions. They make fun of them. What happens is what happens with my friend [who insults my mother]. There is a limit.”

The pope made the comments during an in-flight news conference from Sri Lanka to Manila, where he took up the second leg of a weeklong tour of Asia. He was greeted at the airport by President Benigno Aquino III and a performance by hundreds of jeans-clad young people. People cheered the pope's motorcade to the residence of the apostolic nuncio.

In recent days, the 78-year-old pontiff strongly denounced the attack by two militant Muslim gunmen on Charlie Hebdo, the French satirical publication that has long derided Islam and other religions and their institutions, including the Vatican.

Before leaving Rome on Monday, the pope said “deviant forms of religion” lead to atrocities such as those in France, and he prayed for the victims.

—Deborah Ball

He has frequently denounced killings and persecution, particularly of Christians, perpetrated by Islamic fighters in the name of religion. The pontiff has been a strong advocate of interreligious dialogue, even in the face of Islam-inspired violence.

But his in-flight remarks are likely to fuel the debate about freedom of expression that has erupted since the killings, amid complaints from Muslim leaders that the French publication stepped over the line in its mordant depictions of the Prophet Muhammad.

“Each person not only has the freedom but also the obligation to say what he thinks in the name of the common good,” the pope said. But “each religion has its dignity. I cannot make fun of it.”

Separately, the pope said a much-anticipated encyclical on the environment likely will come out in June or July. It will be the first papal encyclical on the issue, and any strong stand by the pope on the question of whether climate change is provoked by human activity is likely to be divisive.

The Argentine-born pontiff has frequently warned against the despoiling of the planet and has expressed concern over the impact of rising tides and natural catastrophes on poor countries. As a result, some expect him to endorse the idea that human activity is a cause of global warming. If so, the Catholic Church could give a major boost to those who see human activity as causing climate change.

In the news conference, the pope sidestepped the question, saying only that he believes that man “has overexploited nature” and making reference to concerns raised by Catholic leaders regarding the deforestation of the Amazon.

The pope is hoping to release the encyclical before the U.N. Climate Change Conference in Paris in November, saying that past efforts to find international agreement on ways to combat climate change “lacked courage.”

“Let's hope that in Paris, they are braver,” he said.

Environmental issues are likely to emerge during the pope's tour of the Philippines, parts of which were devastated by a typhoon in November 2013. A major highlight of the Philippines visit will be a Mass scheduled Saturday in Tacloban, an area that suffered the largest number of casualties.

The pope also dropped a strong hint that he could travel to Mexico or to the U.S.-Mexican border during a planned trip to the U.S. in September. The Holy See has confirmed only that he will attend a world family day in Philadelphia in September, but Pope Francis has said publicly that he is considering stops in Washington, D.C., New York and Mexico.

During the news conference, the pope said that during his September trip, he will canonize Junipero Serra, a cleric credited with having spread Catholicism in the Western U.S. in the 18th century. He gave no further details. The Vatican typically confirms the exact agenda of papal travels a couple of months ahead of a visit.

The pontiff also addressed concerns that he could be the target of an attack by Islam-inspired militants. Since the Paris attack, the Italian government has acknowledged that the Vatican could be a target, although it said it has no information on specific threats.

Almost every Wednesday, the pope holds a public audience in St. Peter's Square, typically touring the piazza in his open-top popemobile and stopping to greet some of the tens of thousands of faithful who come to the area.

Security is a major concern for the Philippines trip. Some fear an attempt on the pope's life by al Qaeda-linked Islamic militants active in the south of the country. Authorities are also concerned that the huge crowds—a Mass on Sunday could draw as many as six million people—could rush the hugely popular pontiff. He was surrounded by bodyguards at his arrival at the airport, and security forces jammed cellular networks.

Pope Francis, who hates being constrained by security and has spurned bulletproof cars, admitted Thursday that he was concerned about security, particularly the risk that an attack could injure or kill bystanders.

“I worry, but I have a healthy dose of disregard,” Pope Francis said. “I know they are taking security precautions….All I can do is pray that I don't feel pain [in the case of an attempt on his life]. I'm not very courageous when it comes to pain.”

from the Wall Street Journal Best of the Web, 2015-Jan-29, by James Taranto:

Is Jonathan Chait Liberal?
He doesn't live by the creed he now defends.

The obvious thing to say about Jonathan Chait's battle against the left is that we're rooting for casualties. Which we suppose calls for an explanation of why we're not simply on Chait's side.

After all, we agree with the broad thesis of his lengthy New York magazine article, “Not a Very P.C. Thing to Say,” which is (our paraphrase) that political correctness is both noxious and imbecilic. There's also some good reporting in there, most notably a riotous series of quotes from a secret Facebook group that calls itself “Binders Full of Women Writers” and functions as a distaff Journolist.

Yet whereas Journolist—of which Chait himself was a member—served its function of encouraging ideological conformity, BFOWW is filled with “bitter identity-politics recriminations, endlessly litigating the fraught requirements of p.c. discourse.” One writer endured a “vicious backlash” for her witty self-description as a “gluten free WWC,” an acronym for “woman without color.” (Our preferred term would be “woman of pallor,” but we can see where the acronym would be awkward.)

Chait argues, without much evidence, that “after political correctness burst onto the academic scene in the late '80s and early '90s, it went into a long remission.” More persuasively, he asserts that it's worse now than then, because it's more widespread:

It would be a mistake to categorize today's p.c. culture as only an academic phenomenon. Political correctness is a style of politics in which the more radical members of the left attempt to regulate political discourse by defining opposing views as bigoted and illegitimate. Two decades ago, the only communities where the left could exert such hegemonic control lay within academia, which gave it an influence on intellectual life far out of proportion to its numeric size. Today's political correctness flourishes most consequentially on social media, where it enjoys a frisson of cool and vast new cultural reach. And since social media is also now the milieu that hosts most political debate, the new p.c. has attained an influence over mainstream journalism and commentary beyond that of the old.

Chait's essay has prompted sharp disagreement on both left and right, and both sides make some decent points. Gawker's Alex Pareene opens by describing Chait as a “sad white man,” a common PC argumentum ad hominem. But he is on to something with this observation:

Chait, like many liberal commentators with his background, is used to writing off left-wing critics and reserving his real writerly firepower for (frequently deserving) right-wingers. That was, for years, how things worked at the center-left opinion journalism shops, because it was simply assumed that no one important—no one who really matters—took the opinions of people to the left of the center-left opinion shop seriously. That was a safe and largely correct assumption. But the destruction of the magazine industry and the growth of the open-forum internet have amplified formerly marginal voices. Now, in other words, writers of color can be just as condescending and dismissive of Chait as he always was toward the left. And he hates it. . . .
Now, not only is it harder to avoid reading negative feedback from people with different perspectives than you, especially if you engage online at all, but there are actually important people—people with status, who've won awards and hold positions of authority—who listen to those people with different perspectives. Ta-Nehisi Coates [with whom Chait has clashed] is at The Atlantic, for godssake, not In These Times.

Blogress Ann Althouse, a law professor whose politics are heterodox and centrist, elaborates pointedly: “The left is getting its speech out there. Lefties are employing the good old-fashioned `more speech' remedy. . . . How perfectly amusing! Liberals [like Chait] are force-fed their own `more speech' remedy, and they don't like it. Another twist in the glorious history of American free speech.”

By contrast,—whose editor in chief, Ezra Klein, founded Journolist—manages to get it completely wrong as usual. Amanda Taub's rebuttal of Chait is nervously titled “The Truth About `Political Correctness' Is That It Doesn't Actually Exist”—using 11 words and a pair of scare quotes to convey a four-word idea (“Political Correctness Doesn't Exist”).

Here's Taub's thesis and an example:

First things first: there's no such thing as “political correctness.” The term's in wide use, certainly, but has no actual fixed or specific meaning. What defines it is not what it describes but how it's used: as a way to dismiss a concern or demand as a frivolous grievance rather than a real issue. . . .
An example from outside of Chait's article makes it easy to see how that technique works in practice. I, personally, think that the name of the Washington Redskins is racist and hurtful to Native Americans, and should be changed. So if someone asks me what I think of the debate about the team, that's what I say. By contrast, Virginia legislator Del Jackson Miller likes the name and wants the team to keep it. But rather than making an argument on the merits of the name, he referred to the entire debate as “political correctness on overdrive.” In other words, he's saying, this is a false debate—just another example of “political correctness”—so I don't have to even acknowledge concerns about racism.

With apologies in advance to the Differently Sighted, Taub's view of the “Redskins debate” is rather myopic. What she, personally, thinks of the name—which, let's face it, she almost certainly “thinks” because it's what she thinks she's supposed to think—is of little importance. How Jackson Miller—Del isn't his first name but a mistranscription of the abbreviation for his title, Delegate—makes her, personally, feel with his comment is of even less importance.

At any rate, the Redskins dispute is an especially inapposite counterexample, for it is not a case in which the left is simply answering speech with more speech. Those who seek to censor the name have employed both government coercion (the cancellation of the team's trademark, currently stayed pending a court appeal) and institutional suppression (many news organizations have banned the name from reports about the team). It is a quintessential case of politically correct censorship.

The right's critique of Chait amounts to a charge of hypocrisy: “If he wants to argue for an end of ad hominem as a substitute for analysis, then I'm altogether with Chait,” writes National Review's Kevin Williamson. “But he's only arguing that people like him should be immune to the very sort of dishonest stupidity that he practices.”

As an example of that dishonest stupidity, Williamson cites this passage from a 2010 Chait post at the New Republic, referring to the libertarian philanthropist David Koch: “Here's a man who inherited a massive business empire. He has been able to spend a gigantic fortune to help bend the political system so as to become more congenial to his own economic interests.”

Not only is this ad hominem, Williamson notes, its factual premises are faulty: “Koch Industries and the political organizations to which it contributes have long argued against (among many, many other things) subsidies that would directly benefit Koch Industries, for example handouts and mandates related to alternative fuels.”

Sean Davis of the Federalist has two more-recent examples, from Chait's work at New York: a post titled “Sorry, ObamaCare Denialists, You're Insane,” and one titled “Why Climate-Science Denialism Should Disqualify Anyone From Holding Office.” The former appeared last August, the latter last week. Davis's criticism echoes Williamson's: “Jonathan Chait isn't mad that speech codes are being employed by the online left. He's mad because he and his friends have been caught in the web.”

To these examples, we'd add one more: Chait's classic, and at the time much-discussed, 2003 New Republic piece that begins “I hate George W. Bush” and goes on in that vein for more than 3,600 words.

One might respond that the charge of hypocrisy is itself an argumentum ad hominem. The validity of Chait's argument is not diminished by his own past bad behavior, even if some of it was in the very recent past. Williamson, Davis and your humble columnist all concede that point, by endorsing, as we put it above, his broad thesis.

If the message is true, why pick on the messenger? Because in this case the argumentum ad hominem turns out to be a relevant one. In his new essay, Chait makes the following distinction:

The right wing in the United States is unusually strong compared with other industrialized democracies, and it has spent two generations turning liberal into a feared buzzword with radical connotations. This long propaganda campaign has implanted the misperception—not only among conservatives but even many liberals—that liberals and “the left” stand for the same things.
It is true that liberals and leftists both want to make society more economically and socially egalitarian. But liberals still hold to the classic Enlightenment political tradition that cherishes individuals [sic] rights, freedom of expression, and the protection of a kind of free political marketplace. (So, for that matter, do most conservatives.)

We agree with Chait's parenthetical about “most conservatives.” The rest of this passage, however, is quite wrong—and Chait himself is Exhibit A.

In his 1964 book, “Suicide of the West: An Essay on the Meaning and Destiny of Liberalism” James Burnham listed 39 sentences, about which he observed: “A full-blown liberal will mark every one, or very nearly every one, of these thirty-nine sentences, Agree. A convinced conservative will mark many or most of them, a reactionary all or nearly all of them, Disagree.” (The New Criterion's James Panero reproduced the 39 sentences in a 2005 blog post.)

Late last year we read “Suicide of the West” in preparation for a panel discussion at Yale. The 39 sentences hold up pretty well; with some qualifications, we'd say most liberals half a century later would answer “yes” to 34 of them (though 2014 conservatives would probably assent to more of them than their 1964 counterparts would have).

Here are the five exceptions:

2. Everyone is entitled to his own opinion.
12. Any interference with free speech and free assembly, except for cases of immediate public danger or juvenile corruption, is wrong.
27. In determining who is to be admitted to schools and universities, quota systems based on color, religion, family or similar factors are wrong.
33. Everyone has the right to freedom of thought, conscience and expression.
34. Everyone has the right to freedom of opinion and expression.

Sentence 27 is a special case: Almost every liberal today supports racial quotas in university admissions for purposes of “diversity”—apparently including Chait, who in a 1997 New Republic column faulted his alma mater, the University of Michigan, for denying that it treated applicants disparately based on race, but asserted that there is “an optimal level of racial preference,” namely that at which it “helps its intended beneficiaries.” Chait's main point in 1997 was that the university should be upfront so as to encourage “a free, democratic debate”—so that column, too, was primarily an argument against political correctness.

Sentences 2, 12, 33 and 34 are all variations on the theme of free expression—or, as Chait put it this week, “the protection of a kind of free political marketplace.” It struck us as we read “Suicide” that today's liberals have more or less fully rejected that ideal. We can think of some exceptions: the First Amendment lawyer Floyd Abrams, the writer Nat Hentoff, the former ACLU president Nadine Strossen. Their ages, respectively, are 78, 89 and 64. All came of age when the prevailing “liberal” worldview was the one described by Burnham.

Chait, who is in his 40s, insists that the distinction between “liberalism” and “the left” is still salient, and he puts himself forward as an exponent of the former. The examples offered by Williamson, Davis and this columnist demonstrate that Chait is nowhere near as liberal as he thinks—or, alternatively, that there is today little distinction between liberalism and the left.

Vox's Amanda Taub closes by quoting this passage from Chait's New York essay:

Of course liberals are correct not only to oppose racism and sexism but to grasp (in a way conservatives generally do not) that these biases cast a nefarious and continuing shadow over nearly every facet of American life. Since race and gender biases are embedded in our social and familial habits, our economic patterns, and even our subconscious minds, they need to be fought with some level of consciousness. The mere absence of overt discrimination will not do.

She means to suggest that when you get down to it, Chait's views are not that different from her own. Even she gets that right.

from the Wall Street Journal, 2015-Jan-1, by Lee E. Goodman:

Online Political Opinions Don't Need Regulating
YouTube videos expressing conservative views are an exercise of free speech, not a reason to rein in the Internet.

A decade ago, the Federal Election Commission, where I am a commisioner and former chairman, debated whether it should regulate political communications posted on the Internet. The commission received more than 800 public comments and, after thorough study and two days of hearings, unanimously approved a rule in 2006 that freed the vast majority of political commentary on the Internet from regulation.

That Internet freedom rule exempted all political commentary that citizens and groups distribute online free, whether in email or on websites, blogs or various social media platforms. The commission retained jurisdiction over two limited areas: political campaigns, parties and political-action committees that post communications on the Internet; and anyone else who posts express electoral advocacy online for an advertising fee—like a paid advertisement placed on television or in a newspaper.

The rule opened a robust national forum for political discussion about public policy, government and elections. Millions of citizens are now empowered to speak widely as commenters, bloggers, podcasters, YouTube posters and Facebook supporters, while new technologies have facilitated a record number of new political communities at a fraction of historical costs. Political speech and civic engagement have flourished on the Internet.

But this freedom can no longer be taken for granted. In a recent enforcement matter, a conservative group allegedly violated the law by posting two political videos on YouTube without reporting them to the FEC. The FEC's Office of General Counsel recommended that the commission dismiss the case because the videos were disseminated free and solely on the Internet. I, along with two Republican colleagues, voted to dismiss the complaint, effectively blocking any further action. But three commissioners—two Democrats and one independent—voted to investigate the group.

Vice Chairwoman Ann Ravel explained in an Oct. 24 statement that she voted to investigate the group because the 2006 rule turned a “blind eye” toward Internet communications and “failed to acknowledge the importance of providing transparency to the public no matter what the medium of political communication.” She also criticized the Republican commissioners for following the rule: “Some of my colleagues seem to believe that the same political message that would require disclosure if run on television should be categorically exempt from the same requirements when placed on the Internet alone [free]. As a matter of policy, this simply does not make sense.”

Commissioner Ravel has since backtracked. In a Nov. 5 letter to the editor of this newspaper, she wrote that she meant only that the “FEC is woefully out of step with technological innovations,” and that she simply wanted “to encourage the FEC to begin opening a new dialogue, listening to outside experts and gathering a broad range of views about new and emerging technologies.”

This case did spark a dialogue. Nearly 2,000 citizens have submitted comments urging the commission to keep its hands off the Internet. While Commissioner Ravel's rebooted rationale is an improvement, it is of little solace to thousands of online speakers who now post under the chilling shadow of the FEC's split vote—and Commissioner Ravel's expressed intent to disregard established law and seek to regulate YouTube videos—until she hears more about technological innovations from outside experts.

The FEC should not only adhere to the 2006 rule but also expand Internet freedom, for several reasons. First, for the low cost of a personal computer and a monthly Internet-connection charge, citizens can reach millions of people. The Internet has so democratized modern journalism that there are thousands of regular online publications, bloggers, podcasters and commentators of all stripes. Government registration, reporting and disclaimer regulations would burden and interfere with online publishers small and large.

Second, the FEC has no authority to regulate political speech for the sake of limiting speech, but only with regard to large monetary contributions and expenditures with corruptive potential. Unlike the expensive television-ad buys targeted by campaign-finance reforms of the 1970s, free and low-cost Internet postings are not corrupting because no large expenditures of money are necessary. On the Internet, well-expressed ideas can find an audience without cost barriers.

Third, citizens voluntarily seek the viewpoints they want to hear on the Internet. Government should not impose regulatory burdens that restrict the political information citizens choose to view.

Finally, how would the FEC ever monitor the Internet to cull posts meriting investigation? The specter of government agents reviewing the thousands of daily online political posts is as impractical as it is ominous. Just as infeasible would be a regulatory scheme that attempts to assign monetary values to unique online posts or regulates citizens based on what portion of their online use is devoted to political activities.

The FEC considered these ideas when it adopted the 2006 rule, and the commission chose freedom for citizens and organizations. Nothing justifies revisiting that studied determination. Heavy-handed regulations and disclosure burdens would impede online participation and threaten the continued viability of the most democratic public forum of all time. Given the boundless promise of the Internet and new technologies as tools for civic engagement, if anything the Federal Election Commission must instead look for new ways to encourage—rather than discourage—political speech and democratic engagement online.

Mr. Goodman is a commissioner and former chairman of the Federal Election Commission.

Corrections & Amplifications

An earlier version misstated the current status of the enforcement matter concerning the political videos on YouTube.

from the Wall Street Journal, 2015-Jan-2:

Campaign-Finance Bondage
How rules limiting political donations trap the little guy.

Campaign-finance reformers claim to oppose “big money” in politics, but more often small citizen groups get caught in the webs that regulate political speech. That's what has happened in Arizona, where a federal court recently formalized a decision striking down the state's byzantine definition of a “political committee.” The court's decision invalidates many of the Arizona campaign laws that depend on that definition.

In 2011 Dina Galassini, a resident of Fountain Hills, Ariz., emailed 23 acquaintances about staging an old-fashioned protest against a bond measure scheduled for a town vote. Her plan: Make homemade signs and wave them on the street to convince people to oppose the bond issue. Ms. Galassini estimates she spent about $25 on her advocacy. Sounds like grass-roots democracy in action—except to the campaign police.

Her email made its way to the town's election officers, who promptly warned her in a letter not to engage in any further political speech until she registered as a political committee. Under the law in Fountain Hills, as soon as two or more people associate and either accept any contributions or spend money for a political purpose, they had to be considered a political-action committee.

In Arizona that designation comes with bureaucratic entanglements especially burdensome on an operation as small as Ms. Galassini's. Political committees are required to file regular reports on all contributions and expenditures, have separate bank accounts, keep records for three years and disclose donors who contribute more than $50.

With the help of the Institute for Justice, Ms. Galassini sued, arguing that such broad and vague suppression of political speech violates the First Amendment. In September 2013, federal Judge James Teilborg agreed, writing that it is “not clear that even a campaign finance attorney would be able to ascertain how to interpret the definition of `political committee' in Arizona. As such, people of common intelligence must guess at the law's meaning and will differ as to its application.”

The state's definition is also so vast that it “sweeps in a substantial amount of constitutionally protected speech without any sufficiently important governmental interest in regulating such speech,” Judge Teilborg continued. He formalized the decision in December.

This decision for “common intelligence” is good news for Ms. Galassini and other grass-roots groups whose speech might be suppressed by burdensome campaign-finance rules. It also means that Arizona laws—and there are many—that refer to political-action committees are unenforceable until the definition is resolved. That leaves the state the choice of appealing the decision or rewriting the definition.

It should do the latter in a way that restores respect to the First Amendment. Campaign-finance laws have become a trap for citizens least likely to know the rules, leaving political speech to groups that can afford fleets of lawyers to defend their rights. Kudos to Judge Teilborg for ending Arizona's campaign-finance bondage, and other judges should take up the call.

from the Wall Street Journal, 2014-Dec-19, by Tim Phillips and David Spady:

A California Assault on Free Speech That Would Shock the Founders
The state's attorney general is attempting to silence a foundation that educates Americans on free markets.

`Whoever would overthrow the liberty of a nation must begin by subduing the freeness of speech.”

Benjamin Franklin's warning is perhaps more apt today than at any point in American history. In the past four years, the Democratic Party and the progressive movement have been dealt devastating losses at the ballot box, in large part because voters rejected their policies as violations of fundamental liberties.

Yet rather than debate the merits of their policies, many on the left responded with a coordinated campaign to suppress free speech—primarily by intimidating, demonizing and silencing the people who opposed and defeated them. Examples include the Internal Revenue Services' targeting of conservative nonprofit groups, Senate Democrats' recent attempt to write a new constitutional amendment that would gut the First Amendment, and a host of other anti-free-speech efforts at both the state and federal level.

Our organizations, Americans for Prosperity, a nonprofit advocacy group that mobilizes grass-roots activists to support or oppose specific legislation and hold lawmakers accountable, and Americans for Prosperity Foundation, which educates citizens about the benefits of free-market policies, have been among the left's primary targets.

President Obama has personally leveled attacks on our nonprofits on numerous occasions, as has Majority Leader Harry Reid in speeches from the Senate floor. Their allies, whether in Congress, in the federal bureaucracy or affiliated groups, have gone to great lengths to discredit and destroy us.

On Dec. 9 the AFP Foundation filed suit in federal court to stop the latest such attack—California Attorney General Kamala Harris 's demand that we disclose our donors, including their names, addresses and contribution levels. Ms. Harris has indicated that the penalty for noncompliance will be financial penalties for our individual officers and directors as well as a denial of nonprofit status, essentially ending our work in the state of California.

Ms. Harris claims she will not disclose this information to the public. But this is a hollow promise. There is no provision of California law that ensures confidentiality. Indeed, California law appears to be to the contrary, requiring her to disclose information in her possession upon request from the public. The likely outcome is that her allies on the left will use the information to target and ultimately suppress our organization and those who support it.

Ms. Harris's demand derives no support from existing statutes or regulations. Neither state nor federal law requires nonprofits like the AFP Foundation to disclose the information she has requested. The organization has operated in California for more than 13 years, a period in which our donor and member information was never required or otherwise requested by state officials. We have fully complied with the laws and regulations that govern nonprofits. Nothing has changed, except perhaps the politicization of the office which Ms. Harris now holds.

Without any law to back up her demand, our conclusion is that the attorney general is attempting to silence our organization and its supporters.

The left has mounted a campaign against right-of-center organizations like ours for years. This trend began in the 2010 midterm election cycle when the left—facing a looming defeat at the ballot box—began characterizing nonprofits like ours as “dark” and “shadowy,” simply because our donors are anonymous. The IRS also began surreptitiously targeting many right-leaning groups that wished to use their First Amendment freedoms to speak about political issues.

Nevertheless, federal law expressly allows and protects anonymous membership for organizations of any political view, and organizations leaning both right and left operate in the same fashion. The Supreme Court has defended the First Amendment right of groups to maintain the privacy of their donors and members as well as their right to engage in anonymous political speech.

These attacks escalated in the 2012 election cycle. Among other things, the IRS began auditing people who donated to groups opposing President Obama's re-election. Such actions certainly benefited the president and his party, which emerged victorious on Election Day.

Perhaps the most alarming attack on free speech was unveiled earlier this year by the U.S. Senate. Fifty-four senators—all Democrats or independents who caucus with the Democrats—supported an unprecedented constitutional amendment to the Bill of Rights that would give Congress unlimited power to regulate, limit and suppress speech that affects politics. This potentially includes all speech. This measure—which ultimately failed to clear a necessary procedural vote in the Senate—is so sweeping that even the American Civil Liberties Union denounced it as essentially repealing the First Amendment.

Absent such an absurd new power, the left must instead rely on partisan politicians like California's Ms. Harris to harass organizations like ours. We are hopeful that the federal courts, starting with our suit in California, will rebuke such actions and recognize them as the unconstitutional assaults on free speech that they are. American democracy depends on a vigorous debate about the issues facing our country and the best policies to address them. Attempts to silence dissent and stifle disagreement demean our democratic process and weaken us as a nation.

Mr. Phillips is the president and Mr. Spady is the California state director of Americans for Prosperity.

from the Los Angeles Times, 2015-Feb-4, by Sean Silbert:

China tightens Web controls; commenters must register real names

China's Internet regulators on Wednesday announced wide-reaching rules requiring anybody posting comments online to register using their real name, the latest step in a continued tightening of control over freedom of expression online.

The regulations, which are set to take effect March 1, require people to register accounts with their real name when using blogs, online forums and other platforms that allow online expression -- including instant messaging services or news comment sections, the Cyberspace Administration of China said.

Users will be allowed to pick their own user names and avatar images, provided they aren't impersonating organizations or well-known users such as “Obama” or “Putin.” Though that means aliases can still be used to make comments online, the new rules aim to ensure that authorities know authors' real identities.

Wednesday's announcement is the latest step in what many believe is a far-reaching campaign to further control online dialogue in China -- already one of the world's most tightly restricted online environments.

The announcement underscored that authorities will not tolerate “illegal content” -- defined as anything that violates the constitution or other laws, “subverts state power” or “undermines national security.” Promoting pornography, terrorism, gambling, superstition or rumor-mongering is also forbidden.

By the end of last year, 649 million of China's more than 1.3 billion people were online, an increase of more than 31 million over the year before, according to data from the government-run China Internet Network Information Center.

Xu Feng, the head of the mobile Internet bureau of the Cyberspace Administration of China, told reporters Wednesday that the tightening of rules is intended to remove anything online that “seriously damages socialism's core values” or “violates the public interest.”

Responsibility for enforcing the new rules will be left to Internet service providers. Xu did not mention specific punishments for violators.

In addition to Wednesday's announcement, Chinese regulators recently released new rules that require writers who publish online to use their real names; similar identification rules were earlier promulgated for app developers and online video uploaders.

Government authorities recently closed 133 social media accounts they said were being used to distort Chinese history and spread lies about the ruling Communist Party. The government also has launched an attack on Virtual Private Networks, or VPNs, that enable Chinese Internet users to access blocked sites including Google and Twitter.

This is not the first time Beijing has tried to mandate more accountability in online commentary. China announced real-name registration requirements for social media services such as Sina Weibo in 2012, but the difficulty of verifying information for millions of users and the high cost of implementing the plan for Internet providers proved to be stumbling blocks.

from the Wall Street Journal, 2015-Jan-30, by Eva Dou:

China's Great Firewall Gets Taller
Internet Filter Makes It Harder to Circumvent Blocks to Services Like Google and Facebook

China's government has unveiled a smarter and stricter Internet filter, riling web users and widening the divide between China's Internet and the World Wide Web.

A recent upgrade to China's web filters, commonly referred to as the Great Firewall, has made it more difficult to use services called virtual private networks to circumvent the country's blocks to U.S. services like Google and Facebook .

Chinese officials confirmed a crackdown on VPNs this week, saying that new measures were needed as the Internet evolved. In the past week, major VPN providers such as Astrill have reported disruptions to their services.

The move is further indication of China's desire to create a parallel Internet environment that it can more easily control. The web filters serve a dual purpose of screening out content critical of the Chinese government and providing protection for China's own growing web firms against stronger overseas rivals.

The upgraded firewall also comes as Beijing is calling for U.S. technology companies to submit to intrusive security inspections, according to U.S. business groups. Advertisement

This time, China appears to have made the blocking of VPN connections more automated and dynamic, said Liviu, who runs a VPN service based in Romania and requested his surname to be withheld to avoid reprisal. Whereas China's firewall previously blocked connections known to be VPNs, since late last year it also appears to automatically find and block connections that it thinks are likely to be VPNs, he said.

“Now it seems they are doing it automatically,” he said. “You can apply some clever rules for the firewalls that will not trigger blocks.”

The crackdown has complicated life for business people in China who rely on global services such as Gmail and Twitter to communicate with clients and collaborators.

Christopher Dobbing, director of Vogmask China, which sells pollution masks, said the disruptions to VPNs have made it difficult to connect to Gmail, Facebook and other services that he uses to correspond with clients.

“I couldn't run my business without it (VPN),” he said. “I understand the government needs to protect itself against risks, but I'm just trying to do my work.”

Liheng Bai, an independent college counselor based in Shanghai, said the VPN crackdown has also presented challenges to educators and students. Ms. Bai says she searches for information about U.S. colleges online and helps students log into admissions portals when they apply for U.S. colleges—a slow process without a VPN.

“In the long run, it really affects Chinese students' access to the latest information in education, science and literature. It's very narrowing and limits their world view,” she said, adding that search results from Google and Chinese search engine Baidu are very different.

Kestrel Lee, a Shanghai-based marketing consultant who is active on social media, says that he used to use Gmail as his primary email, but has switched to Hotmail due to blocks and disruptions.

“All of us who use Gmail have created new accounts by now,” he said. “It's no use trying to fight this.”

The VPN disruptions, added to already slower connection speeds for loading foreign websites in China, mean decreased productivity for Chinese researchers, engineers and others whose work involves keeping tabs on global developments.

But state media has been arguing that the benefits for China's tech sector are larger. A Global Times column on Wednesday said the success of China's Internet giants could be credited to the firewall.

“The firewall blocks certain overseas websites in a targeted fashion, rather than isolating China's Internet from the overseas one,” the column said.

Others disagree. Peking University professor Wu Bihu took to the microblog platform Weibo to complain about recent crackdowns on the Internet and other media.

“What do you want to do?” he wrote. “The Ministry of Industry and Information Technology closes and cuts off the global Internet, the State Administration of Press, Publication, Radio, Film and Television rudely censors TV dramas, the State Administration for Industry and Commerce wanted to screw Alibaba without checking the source of the fakes or good intention…China has reformed and opened up for decades but now it's back to the impasse of seclusion. Isn't it sad!”

While the blocks are unlikely to be reversed by China's government, it could spur VPN providers to come up with new and better ways to get around the firewall, analysts say. VPN providers pointed to a similar crackdown in 2012 that resulted in stealthier wall-hopping techniques.

—Alyssa Abkowitz in Beijing and Fanfan Wang and Colum Murphy in Shanghai contributed to this article.

Corrections & Amplifications

Liviu, who runs a VPN service based in Romania and requested his surname to be withheld to avoid reprisal, said “Now it seems they are doing it automatically,” and added that “you can apply some clever rules for the firewalls that will not trigger blocks.” An earlier version of this article omitted the word “not” in the second part of the quote.

from the Wall Street Journal, 2015-Jan-2, by Sohrab Ahmari:

How to Fight the Campus Speech Police: Get a Good Lawyer
That's what student Daniel Mael had to do after Brandeis charged him with `harassment' in a dispute over Israel.

Rolling Stone magazine in November published a 9,000-word account of a horrific gang rape alleged to have occurred in 2012 at a University of Virginia fraternity. The story triggered a national outcry. UVA administrators pre-emptively suspended all fraternal activities on campus, effectively tarring an entire class of students for maintaining a culture of rape and impunity.

Then the original story collapsed. The confusion and anger that followed was a teachable moment about campus frenzies and baseless moral panic. But the episode also threw into high relief another facet of modern higher education: university administrators who, in their eagerness to mollify critics, trample students' rights and in the process lives and reputations.

Often students from unpopular groups and those who hold unpopular views find themselves alone, facing zealous administrators at closed-door disciplinary hearings. In these places the basic rights of Americans—including the right to counsel, due process, the presumption of innocence and even free speech—don't apply.

That was the predicament faced by Daniel Mael, a senior majoring in business at Brandeis University near Boston. The 22-year-old native of Newton, Mass., is on the honor roll and has immersed himself in student life, intramural sports and Brandeis's Orthodox Jewish community. As a student journalist, he has published articles in national outlets.

The problem: Mr. Mael is a pro-Israel man of the right on a campus increasingly hostile to conservatism and the Jewish state. The other problem: The Brandeis administration, as at so many colleges, is more committed to shielding students' political sensitivities from “harassment” than challenging their minds. Brandeis administrators define harassment so broadly that almost any student could be guilty at any time.

Speaking by phone while on winter vacation in Israel this week, Mr. Mael says: “They try to intimidate students into being silent, in the interest of people's feelings not being hurt, rather than encourage debate.”

In fall 2013, a public dispute about Israel broke out between Mr. Mael and Eli Philip, another Brandeis student and a leader of the campus affiliate of J Street, an advocacy outfit that describes itself as “pro-Israel, pro-peace.” In the course of the debate Mr. Philip's feelings were hurt—“then all hell broke loose,” Mr. Mael says. The result was a yearlong disciplinary saga that would threaten his future.

Yet unlike many students in this situation, Mr. Mael fought back, eventually retaining top-shelf legal counsel. The legal record generated by the case, now exclusively obtained by the Journal, shines a rare light on the hidden realm of campus discipline.

Like most harassment claims, the one Mr. Philip brought against Mr. Mael arose from actions and counteractions over which the two parties disagree. On Oct. 14, 2013, two campus pro-Israel organizations, the Brandeis Israel Public Affairs Committee and Stand With Us, hosted Barak Raz, a former spokesman for the Israel Defense Forces, or IDF.

As he wrote in a contentious Facebook exchange with Messrs. Mael and Raz and other students the next day, Mr. Philip, then a junior, said he “did walk in late, and did not hear the beginning and framing” of Mr. Raz's lecture. Then Mr. Philip posed a question about the checkpoints the IDF operates in the Palestinian territories. “Motivated by deep frustration, the question was not asked calmly,” Mr. Philip would write in an op-ed about the incident published more than a month later in the Jewish Exponent, a Philadelphia periodical. (Mr. Philip didn't respond to an email request for comment.)

Mr. Mael, also a junior at the time, says Mr. Philip was “particularly obnoxious” and “disrespectful” toward the speaker, behavior that Mr. Mael says continued online the next day, when, during the same Facebook exchange, Mr. Philip accused Mr. Raz of having “lie[d] to a roomful of students.” Mr. Mael says he decided to hold his political opponent accountable by challenging him in the university's marketplace of ideas, including by publishing articles and circulating petitions.

Mr. Philip interpreted this as harassment, and in a Dec. 9, 2013, complaint to Brandeis administrators, he presented charges under the university code of conduct. Mr. Philip said in his written complaint that at a lunch meeting two days after the IDF event, Mr. Mael “accused me of behavior unfitting a Jewish soul” and of harboring “deep-seated `evil inclinations.' ” Mr. Mael, Mr. Philip went on, “informed me that I damaged the Jewish community, that I should resign from my position as student leader, and that he must take action to restore the Jewish community.”

Mr. Mael says his words were misquoted and taken out of context, but that's beside the point. Religious-oriented conversations, however passionate, don't amount to harassment, a principle that the U.S. Equal Opportunity Commission has set forth regarding workplaces and one even more relevant on college campuses, where philosophical disputation is supposed to be part of the air students breathe. Nor did the encounter amount to conduct with “the purpose or effect of unreasonably interfering” with Mr. Philip's “education or work performance,” as the Brandeis student code defines harassment. The students, after all, were having lunch.

Mr. Philip's filing also complained that Mr. Mael attended J Street meetings. “His presence, sitting in the back of the room and typing notes after each comment, was uncomfortable and intimidating.” Blaming Mr. Mael's influence, Mr. Philip noted that “the Orthodox community stopped speaking to me and routinely ignored me.” Also: “Getting lunch and dinner at the kosher section in Sherman dining hall became an uncomfortable experience.”

A responsible university administrator might have counseled Mr. Philip to take a deep breath and develop thicker skin for the slings and arrows of adult life. But on Dec. 5, 2013, Dean of Students Jamele Adams summoned Mr. Mael to his office, without informing him about the purpose of the meeting, the student says: “I was handed a copy of the Rights and Responsibilities handbook and told to familiarize myself with it because Eli was considering certain actions.”

Mr. Mael says he was also advised to avoid using social media—an odd discouraging of his free-speech rights and a hint of what lay ahead as the administration picked sides in the dispute.

For months, though, nothing happened. Mr. Philip went to Morocco for a semester abroad, and during that period Mr. Mael recalls he had “nothing to do with the dean.” He pressed on with his campus activism, helping to draw national attention to the Brandeis decision in April to withdraw its offer of an honorary doctorate to human-rights activist Ayaan Hirsi Ali.

Then, three months ago, almost a year since the original incident, Mr. Adams re-entered Mr. Mael's life. Again he was summoned to the dean's office without knowing the Oct. 8 meeting's purpose. “I'm told that there are charges against me under bullying, harassment and religious discrimination,” Mr. Mael recalls. “And I'm told that I have to give a response—guilty or not guilty—ideally within 48 hours.” A guilty determination could have led to his suspension or expulsion from school. Since this was around the Jewish holiday of Sukkot, Mr. Mael was given about a week to reply.

Crucially, Mr. Mael wasn't allowed to keep a copy of the complaint. Dean Adams told him that this was routine “procedure,” Mr. Mael says. “How am I supposed to tell my parents that I'm being brought to court and by the way I don't know what the charges are?” Mr. Mael recalls thinking. “This is antithetical to the values of our Constitution.”

In a panic after the meeting with Dean Adams, Mr. Mael consulted his friend Noah Pollak, of the Washington-based Emergency Committee for Israel, which retained the Covington & Burling law firm to act on his behalf. Yet when Mr. Mael's lawyer initially corresponded with university counsel, he was informed that “parties involved in the conduct process are not permitted to engage legal counsel to act or speak on their behalf.”

Covington & Burling paid no heed. With the deadline approaching and still without a copy of the complaint, Mr. Mael opted to plead not guilty and request a full hearing before a jury of his fellow students.

A ndrew Flagel, Brandeis's senior vice president for students and enrollment, wouldn't discuss the Mael case, citing federal privacy regulations, but said there is no university policy to advise students to curtail their speech online while a disciplinary case is pending. Mr. Flagel added that it is university practice not to provide the accused with a copy of a complaint but added that this is “one of the things we've been evolving.” Regarding the right to counsel, Mr. Flagel said: “This is not a legal proceeding, so your assumption that there is a right is not in evidence.”

By the end of October, Mr. Mael was finally provided a copy of the charges he would face. And Covington & Burling submitted to Brandies two lengthy legal memoranda blasting violations of Mr. Mael's rights. One letter concluded: “We reserve all rights on behalf of Mr. Mael, including the right to assert claims for the reputational and other harms caused by the baseless allegations at the heart of this proceeding.” In other words: See you in court.

On Oct. 27 Dean Adams informed Mr. Mael via email that the “allegations against you will not be adjudicated through our Student Conduct Board. The accuser has withdrawn from the option to do so and therefore this case should be considered closed and without determination of fault or sanction. . . . Thank you for your cooperation.”

Thus closed a window on life at American universities, where administrators are only too happy to indulge the objections of students whose feelings are bruised in the combat of ideas. Mr. Mael considers himself fortunate not to be facing expulsion. “It's imperative to understand that if I didn't have extremely qualified counsel,” he says, “I would be under duress.”

As it happens, Brandeis University is named for the U.S. Supreme Court Justice Louis Brandeis, a free-speech champion and ardent Zionist.

Mr. Ahmari is a Journal editorial-page writer based in London.

from Reuters, 2014-Dec-18, by Eric Kelsey, Lisa Richwine and Piya Sinha-Roy, with additional reporting by Jim Finkle in Boston, Mark Hosenball in Washington, Thomas Wilson and Reiji Murai in Tokyo, and editing by Chizu Nomiyama, Richard Chang and Raju Gopalakrishnan:

U.S. determines North Korea behind Sony attack as studio pulls movie

U.S. investigators have determined North Korea was behind a cyber-attack on Sony Pictures, a U.S. government source said, an unprecedented act that has forced the studio to cancel releasing a comedy about the fictional assassination of North Korea's leader.

Hackers who said they were incensed by the film attacked Sony Corp (6758.T) last month, leaking documents that drew global headlines and distributing unreleased films on the Internet.

Washington may soon officially announce that the North Korean government was behind the attack, the U.S. government source said.

The $44 million raunchy comedy, "The Interview", had been set to debut on Dec. 25, Christmas Day, on thousands of screens.

"Sony has no further release plans for the film," a Sony spokeswoman said on Wednesday when asked whether the movie would be released later in theaters or as video on demand.

Earlier in the day, Sony canceled next week's theatrical release, citing decisions by several theater chains to hold off showing the film. The hacker group that broke into Sony's computer systems had threatened attacks on theaters that planned to show it.

North Korea has denied it was behind the hacking, but security experts in Washington said it was an open secret Pyongyang was responsible.

"The North Koreans are probably tickled pink," said Jim Lewis, a senior fellow with the Center for Strategic and International Studies. "Nobody has ever done anything this blatant in terms of political manipulation. This is a new high."

Sony came under immediate criticism for the decision to pull the movie.

"With the Sony collapse, America has lost its first cyberwar. This is a very, very dangerous precedent," said former Republican House of Representatives speaker Newt Gingrich in a Twitter post.

However, Sony's shares traded as much as five percent higher in Tokyo on Thursday as investors said there was hope the movie's cancellation would help bring an end to the crisis.

"By not releasing the movie, they won't be hacked again. Investors think that from here on, further damage probably won't be done," said Makoto Kikuchi, CEO of Myojo Asset Management. "Whether that justifies a 5 percent jump in Sony's stock, I'm not so sure."

Macquarie analyst Damian Thong estimated last week, before the cancellation of "The Interview", that losses from the hacking including online leaks of other movies such as “Fury” and “Annie”, would likely be around 10 billion yen ($84.41 million). The worst case scenario, he said, would be an impairment of 25 billion yen.


The film industry showed support for the film in various ways. Hollywood filmmakers and actors, many of them friends of "The Interview" stars Seth Rogen and James Franco, also criticized the decision made by theaters and Sony.

Texas cinema chain Alamo Drafthouse said its Dallas-Fort Worth theater would show the puppet-comedy "Team America: World Police" in which a U.S. paramilitary force try to foil a terrorist plot by late North Korean leader Kim Jong Il.

The White House National Security Council said the United States was investigating the Sony breach and would provide an update about who did it at the appropriate time.

"The U.S. government is working tirelessly to bring the perpetrators of this attack to justice, and we are considering a range of options in weighing a potential response," NSC spokeswoman Bernadette Meehan said, adding that the government was not involved with Sony's decision to pull the film.

The U.S. Federal Bureau of Investigation warned theaters and other businesses associated with "The Interview" on Tuesday that they could be targeted in cyber-attacks, according a copy of the document reviewed by Reuters.

Still, several U.S. national security officials told Reuters the government had no credible evidence of a physical threat to moviegoers.

Sony said it was "deeply saddened at this brazen effort to suppress the distribution of a movie, and in the process do damage to our company."

The studio said it stood by the film makers of "The Interview".

from the Washington Post, 2014-Dec-23, by Hayley Tsukayama and Cecilia Kang, with Greg Jaffe contributing:

Sony confirms The Interview' will have Christmas Day screenings after all

"The Interview" is getting time on the big screen this Christmas after all.

In a statement Tuesday, Sony confirmed that it will be releasing the film in "limited release" in the United States on Christmas Day.

"We have never given up on releasing The Interview and we're excited our movie will be in a number of theaters on Christmas Day," said Michael Lynton, Chairman and CEO of Sony Entertainment. "At the same time, we are continuing our efforts to secure more platforms and more theaters so that this movie reaches the largest possible audience." Based on a screenplay by Dan Sterling, "The Interview" tells the story of two celebrity journalists (James Franco and Seth Rogen) who land an interview with North Korean leader Kim Jong Un on their popular television show, only to have the CIA ask them to assassinate him. (Sony Pictures)

Sony initially put the movie's release on ice after threats of terrorist attacks from hackers who stole and released countless documents -- many embarrassing -- from the studio last month. The attack, which the U.S. government has attributed to hackers backed by North Korea, was allegedly prompted by the comedy, which revolves around two Americans' plot to assassinate North Korean leader Kim Jong Un.

The studio did not say how many theaters will be a part of the release. A Twitter message from the chief executive of Alamo Drafthouse, a chain of movie theaters founded in Austin, Tex. with several national locations, confirmed that that chain will be a part of the film's release.

Another cinema, the Plaza Theater in Atlanta, also said on Twitter that it will be screening the film on Christmas. On Tuesday, both theater companies began listing Dec. 25 showtimes for the movie.

Star and co-director of "The Interview" Seth Rogen celebrated on Twitter.

The studio has been the target of harsh criticism following its decision to pull the film. Last week, President Obama called the decision "a mistake."

After the public blowback for its decision to cancel the Christmas day release of "The Interview," Sony scrambled in the last day to negotiate the limited release of the film to about 200 screens out of the originally planned release for 3,800 screens, according to a person familiar with the negotiations.

Sony Pictures Entertainment told theater owners it would do a simultaneous release of the film online for Christmas day but didn't disclose details on which vendor would provide streaming or downloads of the film, according to the source who spoke on the condition of anonymity because the talks were private.

It did not appear that the major theater chains, such as Regal and AMC, were part of the Christmas Day release plans.

A spokesman for Sony Pictures Entertainment said the studio is "still exploring other distribution options," and did not respond to questions about simultaneous online release plans. Netflix and Apple, which both have wide distribution platforms for streaming movies, declined to comment.

Movie theater owners have long balked at the idea of movies being released online at the same time they appear in theaters. Movie theaters have traditionally enjoyed first rights to show movies, part of a way to keep audiences coming to theaters when consumers have increasing options to watch movies at home.

Lynton did not address the question of whether the studio will release the film online over on-demand streaming services. But he did indicate this is not the last we'll hear of the film.

"While we hope this is only the first step of the film's release, we are proud to make it available to the public and to have stood up to those who attempted to suppress free speech," Lynton said.

The White House praised Sony's move on Tuesday.

"The President applauds Sony's decision to authorize screenings of the film,” said Eric Schultz, a White House spokesman. “As the President made clear, we are a country that believes in free speech, and the right of artistic expression. The decision made by Sony and participating theaters allows people to make their own choices about the film, and we welcome that outcome.”

North Korea's government did not immediately respond to Sony's decision. The isolationist nation's government has strongly rebuked "The Interview," but it has denied any involvement in the cyberattack against Sony.

But pressure has mounted against the North Korean government in the last few days. On Monday, North Korea's limited access to the Internet was shut down for more than nine hours. The UN General Assembly also held discussions on the nation's human rights abuses this week. In the past, North Korea has launched cyber and other military offenses around the holidays.

"There's a lot of stuff coming together now," said Victor Cha, a senior fellow at the Center for International and Strategic and International Studies. It's "hard for me to think North Korea will remain quiet, especially because they like to do things around U.S. holiday."

from the Wall Street Journal, 2014-Nov-26, by Sam Schechner and Frances Robinson:

EU Says Google Should Extend `Right to Be Forgotten' to `.com' Websites
Guidelines Could Escalate Disagreement Between Regulators and Search Engine Giant

Europe's privacy regulators want the right to be forgotten to go global.

In a new set of guidelines agreed Wednesday in Brussels, the body representing the EU's 28 national privacy regulators said that search engines should apply the bloc's new right to be forgotten to all of their websites—in particular .com websites like Google . com, which Google Inc. had excluded from the new rule.

Representatives of the body also said that Google and other search engines should limit how they notify websites that their Web pages have been the subject of such removals, saying that there is “no legal basis” to make such notifications on a “routine” basis.

The guidelines escalate a disagreement between regulators and the search giant over how to implement a May decision by Europe's top court, which determined that individuals in Europe have an online “right to be forgotten” that applies to Internet search engines. That battle is only the latest Google is facing with European authorities: they had a hefty French bill for back taxes and a call from the EU parliament to “unbundle” its search business from other commercial businesses.

At issue in Wednesday's opinion is how broadly Google must apply the court ruling, under which people can demand that Google and other engines remove links to pages that come up when one searches for their names. Privacy advocates allege that Google has been undermining the new right by limiting its application, while free speech advocates say the rule is a gateway to Internet censorship that will whitewash the Web.

While Google moved quickly to apply the ruling over the summer, it has only applied removals to European domains, like or, but not, even when accessed in Europe. That can make it easier to find results that have been removed by comparing the websites.

Google also moved to send notifications to websites when they had been the subject of removals—a move that irked privacy regulators because it wasn't specified in the ruling, and made it possible to use a process of elimination to figure out who may have requested the removal of a given link.

“The court says the delisting decision has to be effective,” said Isabelle Falque-Pierrotin, chairwoman of the pan-European advisory body that issued Wednesday's opinion, and head of France's data-protection regulator. “These decisions should not be easily circumvented by anybody.”

A Google spokesman said: “We haven't yet seen the Article 29 Working Party's guidelines, but we will study them carefully when they're published.”

It remains unclear whether Google will move to implement the regulators' opinion, the full text of which wasn't immediately available. The body that issued the Article 29 Working Party doesn't have any enforcement power. But its opinions reflect the consensus position of national regulators, which themselves can pursue enforcement action and lawsuits against companies under their own national laws.

Regulators in Germany, France and the U.K. have, for instance, already received 440 complaints from individuals regarding Google's implementation of the ruling, the regulators say. That could give them grounds to pursue the search giant, and eventually issue fines.

Google has already struck a defiant stance on the issues of where to apply the right to be forgotten, and whether to issue notifications. In early October, a federation representing Germany's multiple data protection authorities also asserted that the new right to be forgotten must be applied globally, and said that search engines aren't authorized to “routinely” notify content providers.

“The protection of the individual from the unauthorized circulation of personal data must apply everywhere,” the German regulators wrote.

In response, Google made no changes to its process. Speaking at a privacy conference in Brussels last week, Google's global privacy counsel, Peter Fleischer, said the company consciously chose to limit its application of the new rule. “Other courts in other parts of the world would never have reached the result that the European Court of Justice reached,” Mr. Fleischer said.

Google may consider a way to apply the ruling on without applying it globally, people close to the company said. The company could do so by returning different results depending on whether the person is searching from an Internet Protocol address located within the EU. But it is unclear if such a move would satisfy regulators, as it would only make it harder to sidestep the ruling inside the EU, not globally.

“These are fundamental rights. My rights don't go away at the border,” one data-protection official said of the idea of using IP addresses to apply the rule.

Google has also defended its notifications, arguing that the process laid out by the court, which gives a requester the right to appeal Google's decisions to local data-protection regulators, should be balanced by giving the people whose content is being removed the ability to appeal a removal.

“We are dealing with competing fundamental human rights,” Mr. Fleischer said last week. Without notifications, “this is not a court with two sides,” he said.

The ruling has already had an impact across Europe. Google says that more than 174,000 people have requested removal of more than 600,000 search results from searches from their own names. The company says it has removed about 42% of the links it has had a chance to evaluate from the requester's search results—though the rate varies from more than half of links removed from requesters' results in Germany and France, to barely a quarter in Italy and Portugal.

The rate is far lower in countries where more people request the removal of links to newspaper articles, rather than to information on sites like Facebook , according to a person familiar with the process.

from Reason, 2014-Nov-8, by Brendan O'Neill:

Britain Poised to Muzzle 'Extremist' Speech
The country that gave us free expression may be backpedaling.

In Britain, if you have extreme views on anything from Western democracy to women's role in public life, you might soon require a licence from the government before you can speak in public. Seriously.

Nearly 350 years after us Brits abolished the licensing of the press, whereby every publisher had to get the blessing of the government before he could press and promote his ideas, a new system of licensing is being proposed. And it's one which, incredibly, is even more tyrannical than yesteryear's press licensing since it would extend to individuals, too, potentially forbidding ordinary citizens from opening their gobs in public without officialdom's say-so.

It's the brainchild of Theresa May, the Home Secretary in David Cameron's government. May wants to introduce "extremism disruption orders", which, yes, are as terrifyingly authoritarian as they sound.

Last month, May unveiled her ambition to "eliminate extremism in all its forms." Whether you're a neo-Nazi or an Islamist, or just someone who says things which betray, in May's words, a lack of "respect for the rule of law" and "respect for minorities", then you could be served with an extremism disruption order (EDO).

Strikingly, EDOs will target even individuals who do not espouse or promote violence, which is already a crime in the U.K. As May says, "The problem that we have had is this distinction of saying we will only go after you if you are an extremist that directly supports violence. [This] has left the field open for extremists who know how not to step over the line." How telling that a leading British politician should be snotty about "this distinction" between speech and violence, between words and actions, which isn't actually some glitch in the legal system, as she seems to think, but rather is the foundation stone on which every free, democratic society ought to be built.

Once served with an EDO, you will be banned from publishing on the Internet, speaking in a public forum, or appearing on TV. To say something online, including just tweeting or posting on Facebook, you will need the permission of the police. There will be a "requirement to submit to the police in advance any proposed publication on the web, social media or print." That is, you will effectively need a licence from the state to speak, to publish, even to tweet, just as writers and poets did in the 1600s before the licensing of the press was swept away and modern, enlightened Britain was born (or so we thought).

What sort of people might find themselves branded "extremists" and thus forbidden from speaking in public? Anyone, really. The definition of extremist being bandied about by May and her colleagues is so sweeping that pretty much all individuals with outré or edgy views could potentially find themselves served with an EDO and no longer allowed to make any public utterance without government approval.

So you won't have to incite violence to be labelled an extremist —in May's words, these extremism-disrupting orders will go "beyond terrorism." May says far-right activists and Islamist hotheads who have not committed any crime or incited violence could be served with an order to shut the hell up. She has also talked about people who think "a woman's intellect [is] deficient," or who have "denounced people on the basis of their religious beliefs," or who have "rejected democracy"—these folk, too, could potentially be branded extremists and silenced. In short, it could become a crime punishable by gagging to be a sexist or a religion-hater or someone who despises democracy.

Never mind violence, you won't even have to incite hatred in order to be judged an extremist. As one newspaper report sums it up, the aim is "to catch not just those who spread or incite hatred," but anyone who indulges in "harmful activities" that could cause "public disorder" or "alarm or distress" or a "threat to the functioning of democracy." (By "harmful activities", the government really means "harmful words"—there's that Orwellian slip again.) This is such a cynically flabby definition of extremism that it could cover any form of impassioned, angry political or moral speech, much of which regularly causes "alarm or distress" to some of the people who hear it.

As some Christian campaigners recently pointed out, they are frequently accused by their opponents of being "extremists" and of "spreading hatred" simply for opposing gay marriage and taking other traditional stances. Will they potentially be silenced for saying extreme things and causing distress? It's not beyond the realms of possibility, given that May has said that anyone who wants to avoid being thought of as an extremist should "respect British values and institutions" and express "respect for minorities." Slamming gay marriage could very well be read as disrespect for a British institution (gay marriage was legalised here this year) and disrespect for a minority.

What the government is proposing is the punishment of thoughtcrimes, plain and simple. Its insistence that officialdom must now move beyond policing violence and incitements to violence and start clamping down on hotheaded, "harmful" speech that simply distresses people is about colonising the world of thought, of speech, of mere intellectual interaction between individuals—spheres officialdom has no business in policing.

But self-styled progressives, members of the left and those who consider themselves liberal, don't have much of a leg to stand on when it comes to challenging May's tyrannical proposals. For it is was their own arguments, their claims over the past decade that "hate speech" is dangerous and must be controlled and curbed, that gave legitimacy to May's vast silencing project, that inflamed the government's belief that it has the right to police heated minds and not just heated behaviour.

For the best part of two decades, so-called progressives have been spreading fear about the impact of dodgy words and dangerous ideas on the fabric of society. On campuses, in academia, in public life, they've continually pushed the notion that words hurt, that they cause terrible psychic damage, especially to vulnerable groups, wrecking people's self-esteem and making individuals feel worthless. From Britain's student-union officials who have banned Robin Thicke's 'Blurred Lines' in the name of protecting "students' wellbeing" to feminists who have demanded (and won) the arrest and imprisonment of misogynistic trolls, a climate of intolerance towards testy and vulgar speech has already been created in Britain, and the government is merely milking it.

May's proposal to set up a system of licensing for speech, essentially to provide a license to those who respect British values and deny it to those who don't, is the ugly, authoritarian endpoint to the mad obsession with hate speech that has enveloped much of the Western world in recent years.

We should defend extremists. Extremism can be good. I'm an extremist, especially on freedom of speech, which I don't think should ever be limited. Extremists enliven public debate; they sex it up, stir it up, forcing us all to rethink our outlooks and attitudes and sometimes to change our minds. A world without extremists would be conformist and dull and spiritually and intellectually dead.

Let's remember the words of the 17th-century poet John Milton in his impassioned argument against those authorities that last tried to license public expression: "Give me the liberty to know, to utter, and to argue freely according to conscience, above all liberties." Guess what was said about Milton after he said those words? Yep, he was called an extremist.

Brendan O'Neill is editor of spiked in London.

from the Wall Street Journal, 2014-Oct-20:

The Latest Speech Assault
Liberals want to regulate `coordination,' but a judge blows the whistle in Wisconsin.

Some of our readers have asked why we've devoted so much space to the Wisconsin prosecutorial probe of conservatives for supposed campaign-finance violations. One reason is to oppose a particular injustice, but Wisconsin is also on the front lines of the latest national offensive to regulate free political speech and assembly.

That came into stark view last week with a new and welcome judicial ruling in Wisconsin, only days after the Brennan Center issued a trumpet call for government to find more ways to criminalize campaign spending. The new liberal target is “coordination” between politicians and independent groups. This is dangerous stuff.


First, the good news from Wisconsin, where federal Judge Rudolph Randa issued an order last week preventing prosecutors and the state's Government Accountability Board from prosecuting groups for coordinating on issue advocacy. The judge issued the order because he noted that the plaintiff against the state was “likely to succeed on the merits.”

That plaintiff is Citizens for Responsible Government Advocates, an advocacy group that wants to collaborate with politicians on a project called “Take Charge Wisconsin” to educate the public about fiscal responsibility and property rights. But the group was unsure it could proceed under Wisconsin law as interpreted by prosecutors, so it sought relief in federal court.

The problem is that Wisconsin and other states have set up elaborate bureaucracies like the Government Accountability Board (GAB) to police free speech and harass individuals and groups that want to run political advertising. Wisconsin's GAB and Milwaukee District Attorney John Chisholm “have taken the position that coordinated issue advocacy is illegal under Wisconsin's campaign finance law,” wrote Judge Randa.

That legal interpretation has already been rejected by state judge Gregory Peterson, but the state and Mr. Chisholm are appealing. Thanks to Judge Randa's ruling, at least the conservatives will be able to engage in issue advocacy without fear of prosecution in the few remaining days before the election.

Judge Randa notes in his order that the only permissible speech regulations are those that target corruption or its appearance. The Seventh Circuit Court of Appeals agreed with that logic earlier this year in Wis. Right to Life v. Barland. “As applied to political speakers other than candidates, their committees, and political parties,” the Seventh Circuit wrote, the definition of political purposes and political committee “are limited to express advocacy and its functional equivalent as those terms were explained in Buckley.”

Express advocacy is the legal term for advocating for or against candidates, and Buckley is the 1976 Supreme Court case that established the corruption standard for regulating speech. Issue advocacy, by contrast, gets the highest possible protection under the First Amendment.

It's important to understand that this political attack on “coordination” is part of a larger liberal campaign. The Brennan Center—the George Soros-funded brains of the movement to restrict political speech—issued a report this month that urges regulators to police coordination between individuals and candidates as if it were a crime.

The report raises alarms that independent expenditures have exploded since the Supreme Court's 2010 Citizens United decision, as if trying to influence elections isn't normal in a democracy. The political left wants to treat independent expenditures as a “contribution” to candidates limited under campaign-finance law to $2,600 per election. That would essentially ban independent issue advocacy, since you can't buy much air time for $2,600.

Such regulation is also an assault on freedom of association. If like-minded people can't pool resources to influence elections, they are essentially shut out of modern political debate.

All the more so if citizens who do join together can be harassed by regulators or prosecutors. That's clearly the intention of the Brennan speech enforcers, who survey state efforts to regulate speech and urge others to pick up the truncheon.

The authors recommend that regulators require “`cooling off' periods” before advisers to a political candidate can raise money for an independent group. So David Axelrod would have been barred for some period after he left the Obama campaign from raising money for a pro-Obama operation. We don't recall seeing “cooling off period” in the First Amendment. How long is reasonable for giving up your free-speech rights? Two years?

Another regulatory gem would create “firewalls” between candidates and outside groups—that is, “written protocols” that would bar the two from sharing advisers or campaign services. Imagine the opportunities for political harassment as regulators searched high and low for evidence that their protocols were violated. The cost of answering subpoenas alone would deter most sane people from taking the risk of doing issue advocacy.

What's going on here is a concerted political effort to use government to inhibit speech that politicians don't like. Kudos to Judge Randa for blowing the whistle in Wisconsin, but look for more mischief soon in a state near you.

from the Wall Street Journal, 2015-Aug-27:

We `the Sheeple'
New evidence that partisanship drove Wisconsin's John Doe.

Wisconsin's Supreme Court shut down the John Doe investigation of conservative groups in July, but it turns out the probe was even worse than the judges knew. Documents filed at the state Supreme Court opposing Special Prosecutor Francis Schmitz's motion to reconsider show that partisan motives ran through those who conducted their operations in secret while using gag orders to silence targets.

Wisconsin's Government Accountability Board (GAB) regulates elections. Emails we've seen show that GAB staff, including Director Kevin Kennedy, worked with Mr. Schmitz and the Milwaukee Democratic District Attorney's office to subpoena and intimidate the major conservative players in Wisconsin politics. The investigation coalesced around the controversy over Governor Scott Walker's union reforms and pushed the liberal agenda to limit political speech.

In an email to Mr. Schmitz on Nov. 27, 2013, GAB staff counsel Shane Falk encouraged the special prosecutor to keep up the good work and “stay strong” in his pursuit of conservative nonprofit groups and allies of Mr. Walker. “Remember, in brief, this was a bastardization of politics and our state is being run by corporations and billionaires,” Mr. Falk wrote. “That isn't democracy to say the least, but due to how they do this dark money, the populace never gets to know.”

“The cynic in me says the sheeple would still follow the propaganda even if they knew,” Mr. Falk continued, “but at least it would all be out there so that the influences on our politicians is clearly known.” By “the sheeple” Mr. Falk means Wisconsin voters.

In June 2014, Mr. Schmitz's attorney, Randall Crocker, issued a statement saying that Governor Walker was not a target of the investigation into campaign finance coordination. “You just lied to the press,” Mr. Falk wrote in an email to Mr. Schmitz, copying Mr. Kennedy, others at the GAB and Milwaukee DA John Chisholm. “See the attached `target' sheets from our search warrant and subpoena meeting. I see `SW' right up there near the top on Page 1. Is there someone else that has those initials?”

The Doe team was also apparently concerned that exonerating Mr. Walker as a target might have an effect on the election or damage the chances of 2014 Democratic nominee for Governor Mary Burke. “If you didn't want this to have an effect on the election, better check Burke's new ad,” Mr. Falk continued, “Now you will be calling her a liar. This is a no win.”

Was Mr. Falk reprimanded for his obviously partisan motives? Apparently not. When Mr. Falk left the GAB last year, Mr. Kennedy sang his praises in a departure memo posted on the GAB's website, saying he “exemplifies all that is great about the people who work at the Government Accountability Board” and that his contributions “have been critical to steering us through some extraordinarily challenging times.” Messrs. Falk and Kennedy did not respond to requests for comment.

We also know that GAB staff counsel Nathan Judnic marched against Mr. Walker's Act 10 reforms and wrote on Twitter that the state should “Stand in solidarity. Kill the bill. Support public employees and their right to bargain.”

Democrats trying to salvage the GAB's reputation have pointed to a recent audit by the state's Legislative Audit Bureau that raised no major concerns about GAB's handling of ethics or campaign-finance complaints. One problem: The John Doe process was outside the scope of the audit. Mr. Kennedy put out a statement saying that the audit “puts to rest any questions as to whether the six Board Members exercise independent judgment when they make decisions about complaints, investigations and penalties.”

The six board members? What about the staff? Mr. Kennedy says the GAB is a nonpartisan agency, but the GAB was an active partner in the Doe, and there was nothing nonpartisan about that.

from National Review, 2014-Oct-15, by David French:

City of Houston Attacks Pastors, then Doubles Down

The story sounds like something you'd read on a crazed e-mail forward — the city of Houston demands to see the contents of pastors' sermons on the topic of homosexuality, gender identity, and . . . restroom access. In fact, when I first heard the story from a parent at my kids' school, I didn't believe it.

But, yes, it's true. In fact, the reality is even worse than the reports. Houston — as part of its litigation strategy opposing a voter lawsuit filed after the city rejected voter petitions to repeal a law that allows members of the opposite sex into bathrooms — has issued subpoenas that don't just demand pastors' sermons on the topics of “equal rights, civil rights, homosexuality, or gender identity,” (and, of course, “restroom access”), they also demand all documents including ”emails, instant messages, and text messages” on those same topics.

So, if a pastor is engaged in a theological discussion with a fellow pastor on the covered topics, that will have to be produced. If a pastor texts a friend his position on “restroom access,” that has to be produced.

Oh, and did I mention that the pastors aren't even parties to the lawsuit?

The sexual revolution, apparently, brooks no dissent. Not even from the pulpit, or in Skype chat boxes.

As I looked closer at the issue, the best-case scenario was this was “merely” (as Ed Whelan points out) big-firm scorched-earth litigation tactics, the kind of harassment that veteran litigators engage in almost without thinking, and certainly without thinking through the First Amendment implications.

But then I saw this tweet from the Houston mayor:

If the 5 pastors used pulpits for politics, their sermons are fair game. Were instructions given on filling out anti-HERO petition?-A

— Annise Parker (@AnniseParker) October 15, 2014

Umm, no. Pastors are not “fair game” simply for doing their job. First — and contrary to popular leftist belief — pastors can absolutely educate their flock, engage in issue advocacy, and even endorse ballot referenda from the pulpit. That does not make them “fair game.” Under IRS rules, they have an unlimited right to engage in issue advocacy, and they can endorse ballot referenda so long as the endorsement-related activities do not constitute a “substantial part” of the church's activities in a given year. But those are IRS rules and utterly irrelevant to a state-court lawsuit regarding the validity of voter signatures.

Second, there is a degree of constitutionally protected privacy in your First Amendment–protected speech. For example, in DeGregory v. New Hampshire, the Supreme Court quashed a state inquiry into a citizen's past ”subversive” activities with the Communist party. In the words of the Court:

The Attorney General further sought to have him disclose information relating to his political associations of an earlier day, the meetings he attended, and the views expressed and ideas advocated at any such gatherings.

The Court noted that compelled disclosure was “objectionable and damaging in the extreme to one whose associations and political views do not command majority approval” and held that in the absence of an “overriding and compelling state interest,” Mr. DeGregory could, in fact, keep his views to himself. Speaking more broadly, the Court declared that “The First Amendment prevents use of the power to investigate enforced by the contempt power to probe at will and without relation to existing need.”

And what, pray tell, is the “existing need” here? To hear the mayor of Houston tell it, the “existing need” is to find out if pastors used their First Amendment–protected speech (including sending personal e-mails and text messages) for “political” purposes, something they had the right to do. If there is a specific allegation of wrongdoing against a specific pastor, then make that allegation. Otherwise, the fishing expedition is unconstitutional, and chillingly so.

I agree with Eugene Volokh when he says, that “at the very least, the subpoena seems vastly overbroad.” But his post on the topic spends most of its time exploring a question that's not really at issue — whether a pastor's sermons are always off limits in civil discovery. The issue here is entirely different — whether the mere existence of civil litigation regarding a contentious ballot issue can be a pretext for publicly exposing the public and private communications of pastors who are not even parties to the litigation. What's next, subpoenaing all political donor emails when there's an election challenge?

The message Houston is sending is clear: You'll agree with our dictates or you'll be humiliated.

My good friends at Alliance Defending Freedom have filed a motion to quash the city's subpoenas. May God bless their efforts. We'll soon see whether, as Mark Steyn predicts, our First Amendment isn't robust enough to survive a transgendered bathroom ordinance.

from Religion News Service via the Washington Post, 2014-Oct-17, by Scott R. Murray:

Why I stand with the Houston Five

HOUSTON — Recently, Houston city attorneys, acting on behalf of Mayor Annise Parker and the City Council, issued subpoenas to five area pastors requiring they hand over copies of all communication with members of their congregations about a gay rights ordinance. The subpoena asks for communications from the pastors related to the mayor, the ordinance, and “gender equality” issues.

What are pastors to do when coerced by a government entity like the city of Houston? It seems to me that there are a two possible responses: one from a Christian pastor, who serves in Christ's kingdom, and another from a citizen of the kingdom of this world.

How did we get here? These five pastors were at the forefront of an effort to get a referendum on the November ballot to overturn a city ordinance, which among other things would give people access to the restrooms of their choice in public accommodations as a matter of “gender equality.”

Opponents of the ordinance gathered about 50,000 signatures in a petition drive to get the issue on the November ballot. The city secretary reportedly has certified that there were sufficient signatures — it takes 17,269 certifiable signatures to add the referendum. The mayor and the City Council declined to follow the city charter, refusing to place the referendum before the people of Houston.

A group that supports the ballot initiative is suing the city to force it to follow the city charter. As a way of fighting the suit, the city subpoenaed the communications of the pastors, who are not even parties to the lawsuit.

So what is a Christian pastor to do?

The mayor or members of the City Council are always welcome in my congregation. Sermons aren't exactly private or privileged communications; they are proclaimed to audiences in public and placed on our website for people to listen to any time. Christian preachers condemn human sin and call people to repentance. They proclaim the forgiveness of sins for the sake of Christ, who died for us, to those who mourn their sin. Sexual immorality is sin. Christian preachers will call it what it is. If that offends the politicians, then so be it.

Christian pastors have been offending powerful authorities since Jesus angered the establishment of his day. If my sermons are subpoenaed, I would be tempted to print all of them and hand deliver them all, tied up in a ribbon, with the hope that the mayor might read them. We Christians are called by God to make our testimony before kings, and we should not be ashamed of the gospel of Jesus Christ. A pastor should be delighted when he is given an opportunity to deliver publicly the gospel of Jesus Christ. This is what those who belong to the kingdom of Christ hope and pray for.

It may be a slight variation on President Obama's line of a few months ago, but it applies here: “Go ahead, subpoena me!” Put my sermons before a court of law, please! The rage and spite of those who hate the Christian worldview might well benefit the church and her Lord.

But that's not the whole story.

Pastors are also citizens of the kingdom of Caesar. In the bare-knuckled realm of American politics, the mayor and City Council are not really interested in reading a bunch of Christian sermons to find out what they say. They are attempting to stop Christian pastors from commenting on moral issues that are important to politicians. They are using the coercive power of the city's legal department and turning it on the speech of the church. Not only is this an effort to shame the pastors for their principled stand on sexual mores, but it is a naked attempt to silence them.

Lawyers from the Alliance Defending Freedom, who are defending the pastors, have called the city's action a “witch-hunt” and an “inquisition” — both terms dripping with irony.

The effort by the mayor and the City Council attacks two of the freedoms protected in the First Amendment: the free exercise of religion and the right to political speech. And while it has been argued that the city is not silencing speech, the abuse of state power will have a chilling effect on both the free exercise of religion and freedom of speech.

When will ordinary citizens exercise their right to organize a petition drive in the city of Houston again? The fear of being attacked by the unlimited resources of a bully state keeps people from speaking their minds against the wishes of their political masters. These rights remain the peoples' rights. And as citizens, the five pastors have every right and every reason to resist these bullying tactics.

Against this bullying, I am glad to stand with them — both as a Christian pastor and as a citizen. You should too.

(The Rev. Scott R. Murray is senior pastor of Memorial Lutheran Church in Houston, and is the fourth vice president of the Lutheran Church-Missouri Synod.)

from the Houston Chronicle, 2014-Oct-29, by Katherine Driessen and Mike Morris:

Pastors speak up on city's decision to drop subpoenas

The city of Houston will withdraw its controversial subpoenas of five pastors tied to a lawsuit over the city's equal rights ordinance, Mayor Annise Parker announced at a news conference Wednesday.

The decision comes amid a national firestorm over the subpoenas, which have prompted outrage among Christian conservatives. Parker last week had left the subpoenas in place with narrower wording, removing any mention of "sermons." However, Parker said two Tuesday meetings, one with local pastors and another with national clergy, persuaded her to pull the subpoenas altogether.

The move is in the best interest of Houston, she said, and is not an admission that the requests were in any way illegal or intended to intrude on religious liberties. The subpoenas were part of a discovery phase in a suit filed by opponents of the equal rights ordinance, who largely take issue with the rights the law extends to gay and transgender residents.

"I didn't do this to satisfy them," Parker said of critics. "I did it because it was not serving Houston."

Regardless, the mayor's critics were not quieted. Grace Community Church pastor Steve Riggle, who was among the subpoenaed pastors, said, "If the mayor thought the subpoenas were wrong she would have pulled them immediately, not waited until she was forced to by national outrage."

Parker said she was persuaded in part by the demeanor of the clergymen she met with Tuesday, saying they were concerned not about the ordinance or politics but about the subpoenas' impact on the ongoing national discussion of religious freedoms.

"That was the most persuasive argument, because to me it was, 'What is the goal of the subpoenas?' The goal of the subpoenas is to defend against a lawsuit, and not to provoke a public debate," Parker said. "I don't want to have a national debate about freedom of religion when my whole purpose is to defend a strong and wonderful and appropriate city ordinance against local attack, and by taking this step today we remove that discussion about freedom of religion."

When news of the subpoenas first surfaced, Parker and City Attorney David Feldman said they did not know about the request for sermons and said the wording of the documents was "overly broad." That led to Friday's announcement that the wording had been narrowed, which did little to dampen the outcry.

Among the seven pastors who flew to Houston to meet with Parker on Tuesday was the Rev. Myke Crowder, of Christian Life Church in Layton, Utah. He described the meeting as "honest, respectful and serious," and said it focused not on politics but on the theological implication of the subpoenas. While the group left the meeting unsure about whether Parker would pull the subpoenas, Crowder said they were confident that she was taking it under serious consideration.

"What we did was to simply respectfully articulate our concerns," Crowder said. "And I believe what we did was help her to understand a broader picture than what she might have seen before. She honestly listened, she asked hard questions, fair questions, and we gave her fair and honest answers."

Parker admitted she is concerned dropping the subpoenas may impede the city's legal defense, but said the city would pursue an aggressive defense.

The plaintiffs' attorney in the lawsuit, Andy Taylor, called Parker's announcement a "head fake," and challenged her not only to pull down the subpoenas but to drop the city's defense of the lawsuit and put the ordinance to a vote. The city last summer ruled opponents' petition to submit the equal rights ordinance to a repeal referendum fell short of the legal requirements spelled out in the city charter, prompting the lawsuit.

"The truth is she's using this litigation to try to squelch the voting rights of over a million well-intentioned voters here in the city of Houston," Taylor said. "It's very simple why we filed a lawsuit: Because they won't do what the city constitutional charter requires them to do."

Plaintiff and conservative activist Jared Woodfill said he was glad the mayor had "finally seen the light on subpoenas," but he and other opponents said a Sunday rally at Riggle's church protesting the subpoenas - and urging an immediate City Council vote to place the item before voters - will still go forward.

from the Daily Signal, 2014-Oct-18, by Ryan T. Anderson:

Government to Ordained Ministers: Celebrate Same-Sex Wedding or Go to Jail

For years, those in favor of same-sex marriage have argued that all Americans should be free to live as they choose. And yet in countless cases, the government has coerced those who simply wish to be free to live in accordance with their belief that marriage is the union of a man and a woman.

Just this weekend, a case has arisen in Idaho, where city officials have told ordained ministers they have to celebrate same-sex weddings or face fines and jail time.

The Idaho case involves Donald and Evelyn Knapp, both ordained ministers, who run Hitching Post Wedding Chapel. Officials from Coeur d'Alene, Idaho, told the couple that because the city has a non-discrimination statute that includes sexual orientation and gender identity, and because the 9th U.S. Circuit Court of Appeals struck down Idaho's constitutional amendment defining marriage as the union of a man and a woman, the couple would have to officiate at same-sex weddings in their own chapel.

The non-discrimination statute applies to all “public accommodations,” and the city views the chapel as a public accommodation.

On Friday, a same-sex couple asked to be married by the Knapps, and the Knapps politely declined. The Knapps now face a 180-day jail term and $1,000 fine for each day they decline to celebrate the same-sex wedding.

A week of honoring their faith and declining to perform the ceremony could cost the couple three and a half years in jail and $7,000 in fines.

Government Coercion

The Knapps have been married to each other for 47 years and are both ordained ministers of the International Church of the Foursquare Gospel. They are “evangelical Christians who hold to historic Christian beliefs” that “God created two distinct genders in His image” and “that God ordained marriage to be between one man and one woman.”

But as a result of the courts redefining marriage and a city ordinance that creates special privileges based on sexual orientation and gender identity, the Knapps are facing government coercion.

Governmental recognition of same-sex relationships as marriages need not and should not require any third party to recognize a same-sex relationship as a marriage. Government should respect the rights of all citizens. Indeed, a form of government respectful of free association, free contracts, free speech and free exercise of religion should protect citizens' rights to live according to their beliefs about marriage.

The Knapps have been celebrating weddings in their chapel since 1989. Government should not now force them to shut down or violate their beliefs.

After all, protecting religious liberty and the rights of conscience does not infringe on anyone's sexual freedoms. No one has a right to have the government force a particular minister to marry them. Some citizens may conclude that they cannot in good conscience participate in same-sex ceremonies, from priests and pastors to bakers and florists. They should not be forced to choose between strongly held religious beliefs and their livelihood.

What Can Be Done

At the federal level, Congress has an opportunity to protect religious liberty and the rights of conscience.

Policy should prohibit the government from discriminating against any individual or group, whether nonprofit or for-profit, based on their beliefs that marriage is the union of a man and woman or that sexual relations are reserved for marriage. The government should be prohibited from discriminating against such groups or individuals in tax policy, employment, licensing, accreditation or contracting.

The Marriage and Religious Freedom Act—sponsored by Rep. Raul Labrador, R-Idaho, in the House (H.R. 3133) with more than 100 co-sponsors of both parties, and sponsored by Sen. Mike Lee, R-Utah, in the Senate (S. 1808) with 17 co-sponsors—would prevent the federal government from taking such adverse actions.

States need similar policy protections, including broad protections provided by state-level Religious Freedom Restoration Acts (RFRAs) and specific protections for beliefs and actions about marriage.

Indeed, Idaho has a RFRA, called the Free Exercise of Religion Protected Act (FERPA). State RFRAs prevent the imposition of substantial burdens on sincere religious beliefs unless the government proves that such a burden advances a compelling government interest that has been pursued through the least restrictive means possible.

Protecting Religious Liberty

It is unclear how the city could claim that forcing the Knapps to perform a same-sex wedding is a compelling government interest being pursued in the least restrictive way. There are numerous other venues where a same-sex couple could get married. Indeed, there is a county clerks office directly across the street from the chapel.

States must protect the rights of Americans and the associations they form—both nonprofit and for-profit—to speak and act in the public square in accordance with their beliefs. It is particularly egregious that the city would coerce ordained ministers to celebrate a religious ceremony in their chapel. The Alliance Defending Freedom has filed a motion arguing that this action “violates [the Knapps's] First and 14th Amendment rights to freedom of speech, the free exercise of religion, substantive due process, and equal protection.”

Citizens must work to prevent or repeal laws that create special privileges based on sexual orientation and gender identity. We must also insist on laws that protect religious freedom and the rights of conscience.

Protecting religious liberty and the rights of conscience is the embodiment of a principled pluralism that fosters a more diverse civil sphere. Indeed, tolerance is essential to promoting peaceful coexistence even amid disagreement.

Ryan T. Anderson researches and writes about marriage and religious liberty as the William E. Simon Fellow at The Heritage Foundation. He also focuses on justice and moral principles in economic thought, health care and education, and has expertise in bioethics and natural law theory. Read his research.

from Fox News, 2014-Oct-25, by Judson Berger:

YouTube, Beware: Election-spending regulator sets sights on political Internet videos

Politically themed YouTube videos could be the next target of federal regulators.

The top Democrat on the Federal Election Commission strongly suggested Friday that regulators look at extending their authority to election-themed Internet videos – an area that for years has been largely hands-off for the government.

The statement from Vice Chairwoman Ann Ravel, who is in line to take over the commission next year, prompted Republicans to warn that such a move could threaten the growth and freedom of the Internet itself.

“I have been warning that my Democratic colleagues were moving to regulate media generally and the Internet specifically for almost a year now,” Chairman Lee Goodman told “And today's statement from Vice Chair Ravel confirms my warnings.”

At issue was a case considered by the FEC – the chief campaign-finance regulator – in September involving a group that ran pro-coal videos critical of Democrats in 2012. The group initially was accused of failing to report the cost of the videos and of failing to include the routine “disclaimers.”

But the group maintained that since they were only run on YouTube, they were exempt.

The case ended in a split, 3-3 decision at the FEC and was dismissed. But the vote itself aired a striking divide: despite a decision clearing the organization by the general counsel, Democrats voted to pursue an investigation anyway while Republicans voted to drop it.

Ravel was blunt in her written statement Friday explaining her side's vote. She scolded Republicans for arguing rules that would apply to TV ads should not apply to web videos.

“As a matter of policy, this simply does not make sense,” she said.

She said, rather, a “re-examination” of the FEC approach to the Internet is “long overdue” and complained the commission has “turned a blind eye” to the Internet's influence in politics.

“Since its inception, this effort to protect individual bloggers and online commentators has been stretched to cover slickly-produced ads aired solely on the Internet but paid for by the same organizations and the same large contributors as the actual ads aired on TV,” she said. Ravel vowed to “bring together” people from “across the spectrum” next year to look at the issue.

This set off alarm bells.

GOP members of the commission cite an “Internet exemption” dating back to 2006 that spares free web videos from FEC regulations. In other words, anyone who posts a politically themed video for free only to YouTube can – for now -- do so without including a disclaimer or reporting the costs.

“The FEC's approach to free speech on the Internet should be hands-off,” Goodman said, urging the public to go to the FEC website to comment on the issue.

A statement from Goodman and his GOP colleagues on the commission likewise warned about the implications of the 3-3 decision, and a “desire to retreat” from “important protections for online political speech.”

This, they wrote, would be a “shift in course that could threaten the continued development of the Internet's virtual free marketplace of political ideas and democratic debate.”

This is hardly the first warning from Goodman and his colleagues about the direction of the current FEC. He previously has warned that officials at the agency want to start regulating the media, and might even try to regulate book publishers. Democrats on the commission have called those allegations “overheated” and overblown.

from BBC News, 2014-Oct-17, by Dave Lee:

BBC to publish 'right to be forgotten' removals list

The BBC is to publish a continually updated list of its articles removed from Google under the controversial "right to be forgotten" rule.

The ruling allows people to ask Google to remove some types of information about them from its search index.

But editorial policy head David Jordan told a public meeting, hosted by Google, that the BBC felt some of its articles had been wrongly hidden.

He said greater care should be given to the public's "right to remember".

Following the ruling, Google set up a form on its site allowing people to request which links should be taken down.

The European Court of Justice (ECJ) said links that were "inadequate, irrelevant or no longer relevant" should not appear when a specific search - usually a person's name - was made.

Google decided to notify affected websites each time a link had been removed.

The BBC will begin - in the "next few weeks" - publishing the list of removed URLs it has been notified about by Google.

Mr Jordan said the BBC had so far been notified of 46 links to articles that had been removed.

They included a link to a blog post by Economics Editor Robert Peston. The request was believed to have been made by a person who had left a comment underneath the article.

An EU spokesman later said the removal was "not a good judgement" by Google.

Real IRA

The list will not republish the story, or any identifying information. It will instead be a "resource for those interested in the debate", Mr Jordan said.

He criticised the "lack of a formal appeal process" after links have been taken down, noting one case where news of the trial involving members of the Real IRA was removed from search results.

"Two of whom were subsequently convicted," Mr Jordan explained.

"This report could not be traced when looking for any of the defendants' names. It seems to us to be difficult to justify this in the public's interest."

He suggested that Google implement some changes to the process of making a "right to be forgotten" request - such as requiring the identity of the person to be shared with the publication, on condition of confidentiality.

The meeting, hosted by Google chairman Eric Schmidt, is the latest of several that have taken place around Europe in the past two months. The next, on 4 November, will be held in Brussels.

However supporters of the ruling said the meetings were a "PR exercise" for Google - which would rather not deal with requests - rather than an open debate.

"They want to be seen as being open and virtuous, but they handpicked the members of the council, will control who is in the audience, and what comes out of the meetings," said Isabelle Falque-Pierrotin, head of CNIL - France's data protection body.

from the Asahi Shimbun, 2014-Oct-10, by Ken Sakakibara:

Tokyo court orders Google to delete search results that implied criminality

The Tokyo District Court on Oct. 9 ordered Google Inc. to delete more than 100 search results that invaded a man's privacy by giving the impression he was involved in criminal activity.

The man sought an injunction with the court in June 2014 to delete 237 Google search results on his name, saying they implied he was a criminal and were damaging his personal life.

Presiding Judge Nobuyuki Seki ordered Google to delete 122 of the results, including the “title” and the accompanying summary of the contents.

The court said some of the search results did infringe on the man's personal rights.

“It is only natural that an obligation to delete (the search results) arises for Google, which manages the site,” the ruling said.

The court rejected Google's argument that in principle it does not have an obligation to delete results as the provider of a search engine.

“This verdict is very good news for the many people who have suffered both physically and psychologically through an invasion of privacy over the Internet,” said Tomohiro Kanda, the lawyer for the plaintiff.

Google could appeal the decision.

“We have not yet confirmed at the present time that (the injunction) has actually been issued,” a spokesperson for Google's Japanese subsidiary said.

Masatomo Suzuki, an information law professor at Niigata University, said, “I have never heard of a court verdict in Japan that called on a search engine site to delete search results.”

In May 2014, the Court of Justice of the European Union ordered Google to delete search results that contained inappropriate personal information. That ruling received international attention because it recognized a person's right to be “forgotten.”

The Tokyo District Court ruling follows in the same vein as that EU court decision.

from the Wall Street Journal, 2014-Aug-12:

Google on the Run
A Hong Kong court continues the trend toward censorship.

Google fled mainland China for Hong Kong in 2010 to escape the Beijing government's censorship and cybersnooping. Now a court ruling threatens to censor the search giant in Hong Kong—and in the process please opponents of free speech from Beijing to Brussels.

Hong Kong's High Court ruled last week that local tycoon Albert Yeung, whose businesses include pop music, casinos and luxury retailing, can sue Google for defamation over its "autocomplete" feature. Mr. Yeung objects that when Internet users type his name into Google, the site offers terms such as "triad," "Sun Yee On" and "14K"—references to Hong Kong organized crime. Mr. Yeung was convicted of illegal bookmaking and obstruction of justice in the 1980s, but he denies any connections to organized crime and charges that Google effectively defames him every time anyone searches his name.

Google retorts that its autocomplete suggestions simply reflect common searches by Web users, with Google serving as a "passive facilitator" of that information—not a publisher controlling its content. Nor would such control be possible, the company says. "The entire basis of the Internet will be compromised if search engines are required to audit what can be assessed by users using their search tools," Google's lawyer told the court. Given the billions of searches conducted, that would be an "infinite duty" that "should not be foisted on Google."

Judge Marlene Ng apparently disagrees. She ruled that "Google Search does not simply convey information" but rather publishes suggestions "distilled pursuant to artificial intelligence set up by Google." So Mr. Yeung has "a good arguable case" against the company, and a jury can decide what damages may be appropriate. Google meanwhile will likely scramble to start auditing its search tools and heading off litigation from other Hong Kongers happy to shake down a tech colossus.

Hong Kong thus joins the growing global campaign to cleanse the Internet of information that some person or another wants to make disappear, even at the expense of the public interest. In May the European Union's highest court blessed a "right to be forgotten," giving individuals the power to demand that search engines and social-media platforms withhold links to certain Web pages. The ruling included a nominal public-interest exception, but no one knows what courts will decide to protect and what to order erased. Is your years-old bankruptcy outdated personal information, or still valuable for potential business partners or creditors?

Tech firms would rather alter search results than face capricious courts, so the censorship has begun. Google, which in June reported receiving 10,000 privacy requests per day, has informed several European news outlets—including the BBC, the Guardian, El Mundo and The Wall Street Journal—that it now withholds search results for certain articles on their sites.

In ruling against Google last week Justice Ng mentioned the European right to be forgotten only in passing, but Hong Kong privacy commissioner Allan Chiang is already pushing for the territory to follow the EU's lead. "As a responsible enterprise, Google should also entertain removal requests from other parts of the world to meet their privacy expectations," he said before a meeting of 15 regional privacy czars in June.

Such high-minded rhetoric about privacy obscures the inherent authoritarian risks in heightened information controls, whether concerning Albert Yeung's autocomplete results or official European records. As law professor Eugene Volokh wrote presciently in 2000: "The difficulty is that the right to information privacy—the right to control other people's communication of personally identifiable information about you—is a right to have the government stop people from speaking about you." Inviting such government power is no path to greater individual privacy or security.

from the Washington Times, 2014-Jul-16, by Andrew Napolitano:

Feds chilling free speech
The marketplace of ideas is in the federal cross hairs

“Chilling” is the word lawyers use to describe governmental behavior that does not directly interfere with constitutionally protected freedoms, but rather tends to deter folks from exercising them.

Classic examples of “chilling” occurred in the 1970s, when FBI agents and U.S. Army soldiers, in business suits with badges displayed or in full uniform, showed up at anti-war rallies and proceeded to photograph and tape-record protesters. When an umbrella group of protesters sued the government, the Supreme Court dismissed the case, ruling that the protesters lacked standing — meaning, because they could not show that they were actually harmed, they could not invoke the federal courts for redress.

Yet they were harmed, and the government knew it. Years after he died, longtime FBI boss J. Edgar Hoover was quoted boasting of the success of this program. The harm existed in the pause or second thoughts that protesters gave to their contemplated behavior because they knew the feds would be in their faces — figuratively and literally. The government's goal, and its limited success, was to deter dissent without actually interfering with it. Even the government recognized that physical interference with and legal prosecutions of pure speech are prohibited by the First Amendment. Eventually, when this was exposed as part of a huge government plot to stifle dissent, known as COINTELPRO, the government stopped doing it.

Until now.

Now the government fears the verbal slings and arrows of dissenters, even as the means for promulgating one's criticisms of the government in general and of President Obama in particular have been refined and enhanced far beyond those available to the critics of the government in the 1970s.

What has the Obama administration done to stifle, or chill, the words of its detractors? For starters, it has subpoenaed the emails and home telephone records of journalists who have either challenged it or exposed its dark secrets. Among those journalists are James Risen of The New York Times and my colleague and friend James Rosen of Fox News. This is more personal than the National Security Agency spying on everyone, because a subpoena is an announcement that a specific person's words or effects have been targeted by the government, and that person continues to remain in the government's cross hairs until it decides to let go.

This necessitates hiring legal counsel and paying legal fees. Yet, the targeting of Mr. Risen and Mr. Rosen was not because the feds alleged that they broke the law. There were no such allegations. Rather, the feds wanted to see their sources and their means of acquiring information. What journalist could perform his work with the feds watching? The reason we have a First Amendment is to ensure that no journalist would need to endure that.

Two weeks ago, a notorious pot-stirrer in Norfolk, Neb., built a mock outhouse, put it on a truck and drove the truck with permission in a local Fourth of July parade. In front of the outhouse, he placed a mannequin that he claimed looked like himself, and on the outhouse, he posted a sign that stated: “Obama Presidential Library.”

Some thought this was crude, and some thought it was funny; yet it is fully protected speech. It is protected because satire and opinion about public figures are absolutely protected, as well as is all criticism of the government. Still, the Department of Justice has sent a team to investigate this event because a local official called it racist. Such an allegation by a public official and such a federal investigation are chilling. The reason we have a First Amendment is to ensure that the government stays out of investigating speech.

Just last week, Attorney General Eric H. Holder Jr., while in London, opined that much of the criticism of Mr. Obama is based on race — meaning that if Mr. Obama were fully white, his critics would be silent. This is highly inflammatory, grossly misleading, patently without evidential support and, yet again, chilling. Tagging someone as a racist is the political equivalent of applying paint that won't come off. Were the Democrats who criticized Attorney General Alberto Gonzales or Secretary of State Condoleezza Rice racists? Is it appropriate for government officials to frighten people into silence by giving them pause before they speak, during which they basically ask themselves whether the criticism they are about to hurl is worth the pain the government will soon inflict in retaliation?

The whole purpose of the First Amendment is to permit, encourage and even foment open, wide, robust debate about the policies and personnel of the government. That amendment presumes that individuals — not the government — will decide what language to read and hear. Because of that amendment, the marketplace of ideas — not the government — will determine which criticisms will sink in and sting, and which will fall by the wayside and be forgotten.

Surely, government officials can use words to defend themselves; in fact, one would hope they would. Yet when the people fear exercising their expressive liberties because of how the governmental targets they criticize might use the power of the government to stifle them, we are no longer free.

Expressing ideas, no matter how bold or brazen, is the personal exercise of a natural right that the government in a free society is powerless to touch, directly or indirectly. However, when the government succeeds in diminishing public discourse so that it only contains words and ideas of which the government approves, it will have succeeded in establishing tyranny. This tyranny — if it comes — will not come about overnight. It will begin in baby steps and triumph before we know it.

Yet we do know that it already has begun.

Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, is an analyst for the Fox News Channel. He has written seven books on the U.S. Constitution.

from the Wall Street Journal, 2014-Apr-3, by James Taranto:

Welcome to the Collective
Justice Breyer turns the First Amendment on its head.

In his plurality opinion in yesterday's free-speech case, McCutcheon v. Federal Election Commission, Chief Justice John Roberts notes an anomaly in contemporary "liberal" First Amendment jurisprudence: "If the First Amendment protects flag burning, funeral protests, and Nazi parades--despite the profound offense such spectacles cause--it surely protects political campaign speech despite popular opposition."

We'd take the point a step further. The examples Roberts cites all involve fringe political expression. But the First Amendment also protects outré speech outside the political realm--most notably pornography, the subject of a great deal of Supreme Court jurisprudence over the past few decades, in which judicial liberals took the lead in expanding free-speech rights.

In recent years something of a consensus has emerged. When the court extended First Amendment protection to "depictions of animal cruelty" (U.S. v. Stevens, 2010) and violent video games (Brown v. Entertainment Merchants Association, 2011), the decisions were written by Roberts and Justice Antonin Scalia, respectively, for 8-1 and 7-2 majorities.

So why have the court's "liberals" adopted a hostile attitude toward political speech, which has long been understood as being at the core of First Amendment protection? In his McCutcheon dissent, Justice Stephen Breyer elaborates the theory behind this odd development.

We should note that Breyer has proved more willing than his liberal colleagues to uphold restrictions on nonpolitical speech. He was one of the two dissenters (with Justice Clarence Thomas) in Brown v. EMA, which involved a statute restricting sales of games to minors. He also dissented in U.S. v. Playboy Entertainment Group (2000), which invalidated limits on sexually explicit cable TV programming.

But in both those cases Breyer was alone among the court's liberals. In McCutcheon, his dissent gained the support of Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan. It's a familiar pattern: A series of high court rulings pitting campaign finance restrictions against free speech, beginning in 2007, have been decided 5-4, with the same majority as in McCutcheon and the identity of the dissenters varying only by virtue of changes in the court's personnel.

Yesterday's decision was fairly narrow. It invalidated a statutory provision limiting the total contributions an individual could make to congressional candidates, party committees and political action committees during an election cycle. But it let stand the limits on contributions to each candidate or committee. That means, among other things, that a contributor may now give to as many candidates as he wants, but only $5,200 apiece ($2,600 each for the primary and general election). Thomas argued for striking down the individual limits too, which is why Roberts's opinion did not command a majority.

In making the case for the constitutionality of restrictions on campaign contributions, Breyer advances an instrumental view of the First Amendment. He quotes Justice Louis Brandeis, who in 1927 "wrote that the First Amendment's protection of speech was 'essential to effective democracy,' " and Brandeis's contemporary Chief Justice Charles Evans Hughes, who in 1931 argued that " 'a fundamental principle of our constitutional system' is the 'maintenance of the opportunity for free political discussion to the end that government may be responsive to the will of the people" (emphasis Breyer's).

After citing Jean-Jacques Rousseau's (!) views on the shortcomings of representative democracy, Breyer quotes James Wilson, one of the Founding Fathers, who argued in a 1792 commentary that the First Amendment's purpose was to establish a "chain of communication between the people, and those, to whom they have committed the exercise of the powers of government." Again quoting Wilson, Breyer elaborates: "This 'chain' would establish the necessary 'communion of interests and sympathy of sentiments' between the people and their representatives, so that public opinion could be channeled into effective governmental action."

And here's how Breyer sums it all up: "Accordingly, the First Amendment advances not only the individual's right to engage in political speech, but also the public's interest in preserving a democratic order in which collective speech matters."

The emphasis on "matters" is again Breyer's. We'd have italicized "collective" as the key concept. As with the Second Amendment, he and the other dissenters assert a "collective" right, the establishment of which is purportedly the Constitution's ultimate purpose, as a justification for curtailing an individual right.

In this case they at least acknowledge the individual right exists. But then the First Amendment, unlike the Second, has no prefatory clause explaining its purpose; it simply says "Congress shall make no law . . ." Breyer has to venture outside the text to find a reason to read that prohibition equivocally.

It's important to note that when Breyer refers to "collective" rights, what he does not have in mind is individuals exercising their rights by voluntarily collecting themselves into organizations. In fact, the prevailing left-liberal view, most notably with respect to Citizens United v. FEC (2010), is that collections of individuals, at least when they take corporate form, have (or should have) no rights.

The only "collective" that matters to Breyer is the one from which you cannot opt out except by the extreme measure of renouncing your citizenship: "the people" or "the public" as a whole. In Breyer's view, the purpose of the First Amendment is to see that (in Chief Justice Hughes's words) "the will of the people" is done. Individual rights are but a means to that end. To the extent they frustrate it, they ought to be curtailed. You will be assimilated.

That resolves the conundrum we noted atop this column. Fringe political speech like flag burning, funeral protests and Nazi parades is so broadly unappealing as to have no effect on "the will of the people." The same is true of nonpolitical forms of expression such as pornography, violent video games and depictions of animal cruelty. (Breyer's willingness to countenance restrictions of the first two has to do with the protection of children, not of the body politic.)

Only mainstream political expression has the potential to thwart the "collective" will, and thus, in the view of Breyer and his fellow dissenters, it alone is deserving of restriction on such a rationale. That stands the First Amendment on its head. Its purpose may be to "make government responsive," as Wilson argued, but the means by which it does so is the limitation of government power and protection of individual freedom.

The Puffington Host has a revealing quote from a politician who objects to yesterday's ruling, Rhode Island's Sen. Sheldon Whitehouse:

"This is a court that knows essentially nothing about elections. It's the first court in a long time on which no one has ever run for office," said Whitehouse, comparing the five justices who ruled for businessman Shaun McCutcheon to "the ultimate amateur . . . who says, 'I know how to eat, so I can open a restaurant.' "

Whitehouse is arguing that the political process should be controlled by professional politicians. As Roberts notes in responding to Breyer's dissent: "The degree to which speech is protected cannot turn on a legislative or judicial determination that particular speech is useful to the democratic process." To do so would impose the will of politicians or judges on the people, not the other way around.

from the Wall Street Journal, 2014-May-6:

Rewriting the First Amendment
Chuck Schumer thinks he can improve on James Madison.

A standard liberal talking point about the Tea Party is that its constitutional designs are "extremist." But you will search in vain for any Tea Party proposal that is anywhere close to as radical as the current drive by mainstream Democrats to rewrite the Bill of Rights.

The Supreme Court's Citizens United decision allowing unions and corporations to donate to independent political groups has driven liberals to such fits that they now want to amend the First Amendment. At a Senate Rules Committee meeting last week, New York Democrat Chuck Schumer announced a proposal to amend the Constitution to empower government to regulate political speech.

"The Supreme Court is trying to take this country back to the days of the robber barons, allowing dark money to flood our elections," Mr. Schumer said. The Senate will vote this year on the amendment to "once and for all allow Congress to make laws to regulate our system, without the risk of them being eviscerated by a conservative Supreme Court." He even rolled out retired Supreme Court Justice John Paul Stevens to pronounce his unhappiness with freedom's bedrock document.

According to the text of the proposed revision to James Madison's 1791 handiwork, sponsored by New Mexico Senator Tom Udall, the states and federal government would have the power to regulate the "raising and spending of money" through a wide range of means "to advance the fundamental principle of political equality for all."

The real guarantee would be political advantage for all incumbents, since it's the sitting lawmakers who really benefit from any law limiting contributions to candidates or on their behalf. While Beltway boys like Messrs. Schumer and Udall have the name recognition to raise money in small increments, challengers often need the financial boost from a few individuals to get their message heard.

Mr. Schumer is conjuring the age of robber barons, but there were no general limits on what an individual could donate to a federal candidate in this country until as recently as 1974. Contrary to the outrage that greeted the Supreme Court's recent decision ending aggregate limits to candidates and political party committees in McCutcheon v. FEC, at the time that ruling was issued 32 states already had no aggregate or similar limits on contributions to candidates. That fact was so uncontroversial that Mr. Udall may not even know that New Mexico was among the 32.

Mr. Udall's amendment is careful to specify that nothing "should be construed to grant Congress the power to abridge the freedom of the press." In case you don't follow campaign finance, that is supposed to protect newspapers and TV networks, most of which embrace Democratic causes and candidates.

The real target will be the corporations Democrats have railed against since Citizens United. But why should Warren Buffett's company enjoy free speech rights because he owns a handful of newspapers along with insurance companies, while Jeffrey Immelt's is muzzled because GE makes jet turbines? For that matter, what's to stop political groups from incorporating themselves as newspapers?

Once you've opened the First Amendment for revision by politicians, and reinterpretation by judges, anything can happen. We know liberal editors tend to lose their bearings when they write about money in politics, but is the problem so great that it's worth letting, say, Senator Ted Cruz determine whether the New York Times Co. qualifies for protection under the First Amendment?

This prospect doesn't seem to bother even the great totems of the legal left, who also see an amendment as the only way to end-run the Supreme Court. Amending the First Amendment is a "particularly worthy enterprise," Harvard's Laurence Tribe wrote on in 2012 "given that the composition of the court prefigures little chance of a swift change in direction." Who would have thought that the legal left considered rights of speech and association to be so easily tradeable for partisan gain?

Professor Tribe added that thanks to the rise of Super PACs, campaign donors are "invisible to the electorate, though they are all too visible to the candidates who benefit." Think of the Koch brothers—or, as Mr. Tribe suggests, the "invisible" tycoon Sheldon Adelson, whose contributions to Newt Gingrich's political action committee during the 2012 GOP primary "singlehandedly sustained a floundering presidential campaign." These donors are so "invisible" that Mr. Tribe can put their names in an op-ed and his readers all know who they are.

A Constitutional amendment requires a two-thirds vote of the House and Senate and ratification by 38 states, so it has scant chance of passing any time soon. Those ample checks against self-interested legislatures are another reason to thank the Founders. But who knows what might happen the next time Democrats get supermajorities in Congress, or find a Republican like John McCain willing to give their effort bipartisan cover?

The larger story here is how far the American left is willing to go to cripple their political opponents. They're even willing to write a giant loophole into America's founding charter so Congress can limit political speech. The Tea Party's concerns about eroding liberty turn out to be more accurate than even its most devoted partisans imagined.

from the Wall Street Journal, 2014-Jun-1, by Ted Cruz:

The Democratic Assault on the First Amendment
Congress has too much power already; it should not have the power to silence citizens.

For two centuries there has been bipartisan agreement that American democracy depends on free speech. Alas, more and more, the modern Democratic Party has abandoned that commitment and has instead been trying to regulate the speech of the citizenry.

We have seen President Obama publicly rebuke the Supreme Court for protecting free speech in Citizens United v. FEC; the Obama IRS inquire of citizens what books they are reading and what is the content of their prayers; the Federal Communications Commission proposing to put government monitors in newsrooms; and Sen. Harry Reid regularly slandering private citizens on the Senate floor for their political speech.

But just when you thought it couldn't get any worse, it does. Senate Democrats have promised a vote this year on a constitutional amendment to expressly repeal the free-speech protections of the First Amendment.

You read that correctly. Forty-one Democrats have signed on to co-sponsor New Mexico Sen. Tom Udall's proposed amendment to give Congress plenary power to regulate political speech. The text of the amendment says that Congress could regulate "the raising and spending of money and in-kind equivalents with respect to federal elections." The amendment places no limitations whatsoever on Congress's new power.

Two canards are put forth to justify this broad authority. First, "money is not speech." And second, "corporations have no free speech rights."

Neither contention bears even minimal scrutiny. Speech is more than just standing on a soap box yelling on a street corner. For centuries the Supreme Court has rightly concluded that free speech includes writing and distributing pamphlets, putting up billboards, displaying yard signs, launching a website, and running radio and television ads. Every one of those activities requires money. Distributing the Federalist Papers or Thomas Paine's "Common Sense" required money. If you can prohibit spending money, you can prohibit virtually any form of effective speech.

As for the idea that the Supreme Court got it wrong in Citizens United because corporations have no First Amendment rights, that too is demonstrably false. The New York Times is a corporation. The television network NBC is a corporation. Book publisher Simon & Schuster is a corporation. Paramount Pictures is a corporation. Nobody would reasonably argue that Congress could restrict what they say—or what money they spend distributing their views, books or movies—merely because they are not individual persons.

Proponents of the amendment also say it would just "repeal Citizens United" or "regulate big money in politics." That is nonsense. Nothing in the amendment is limited to corporations, or to nefarious billionaires. It gives Congress power to regulate—and ban—speech by everybody.

Indeed, the text of the amendment obliquely acknowledges that Americans' free-speech rights would be eliminated: It says "[n]othing in this article shall be construed to grant Congress the power to abridge the freedom of the press." Thus, the New York Times is protected from congressional power; individual citizens, exercising political speech, are not.

If this amendment were adopted, the following would likely be deemed constitutional:

Congress could prohibit the National Rifle Association from distributing voter guides letting citizens know politicians' records on the Second Amendment.

Congress could prohibit the Sierra Club from running political ads criticizing politicians for their environmental policies.

Congress could penalize pro-life (or pro-choice) groups for spending money to urge their views of abortion.

Congress could prohibit labor unions from organizing workers (an in-kind expenditure) to go door to door urging voters to turn out.

Congress could criminalize pastors making efforts to get their parishioners to vote.

Congress could punish bloggers expending any resources to criticize the president.

Congress could ban books, movies (watch out Michael Moore ) and radio programs—anything not deemed "the press"—that might influence upcoming elections.

One might argue, "surely bloggers would be protected." But Senate Democrats expressly excluded bloggers from protection under their proposed media-shield law, because bloggers are not "covered journalists."

One might argue, "surely movies would be exempt." But the Citizens United case—expressly maligned by President Obama during his 2010 State of the Union address—concerned the federal government trying to fine a filmmaker for distributing a movie criticizing Hillary Clinton.

One might argue, "surely books would be exempt." But the Obama administration, in the Citizens United oral argument, explicitly argued that the federal government could ban books that contained political speech.

The contemplated amendment is simply wrong. No politician should be immune from criticism. Congress has too much power already—it should never have the power to silence citizens.

Thankfully, any constitutional amendment must first win two-thirds of the vote in both houses of Congress. Then three-fourths of the state legislatures must approve the proposed amendment. There's no chance that Sen. Udall's amendment will clear either hurdle. Still, it's a reflection of today's Democratic disrespect for free speech that an attempt would even be made. There was a time, not too long ago, when free speech was a bipartisan commitment.

John Stuart Mill had it right: If you disagree with political speech, the best cure is more speech, not less. The First Amendment has served America well for 223 years. When Democrats tried something similar in 1997, Sen. Ted Kennedy was right to say: "In the entire history of the Constitution, we have never amended the Bill of Rights, and now is no time to start."

Mr. Cruz, a Republican senator from Texas, serves as the ranking member on the Senate Judiciary Committee's Subcommittee on the Constitution, Civil Rights, and Human Rights.

from the New York Times, 2014-Nov-2, printed 2014-Nov-3, p.A31, by David Schanzer and Jay Sullivan:

Cancel the Midterms

DURHAM, N.C. — By Tuesday night about 90 million Americans will have cast ballots in an election that's almost certain to create greater partisan divisions [not create, reflect -- absent fraud, elections by design can only reflect --AMPP Ed.], increase gridlock [or checking and balancing, as the country's founders would have it -AMPP Ed.] and render governance of our complex nation even more difficult [as the founders intended -AMPP Ed.]. Ninety million sounds like a lot, but that means that less than 40 percent of the electorate will bother to vote, even though candidates, advocacy groups and shadowy “super PACs” will have spent more than $1 billion to air more than two million ads to influence the election.

There was a time when midterm elections made sense — at our nation's founding, the Constitution represented a new form of republican government, and it was important for at least one body of Congress to be closely accountable to the people. But especially at a time when Americans' confidence in the ability of their government to address pressing concerns is at a record low, two-year House terms no longer make any sense. [Close accountability no longer makes sense? This should be a hoot. -AMPP Ed.] We should get rid of federal midterm elections entirely.

There are few offices, at any level of government, with two-year terms. Here in Durham, we elect members of the school board and the county sheriff to terms that are double that length. Moreover, Twitter, ubiquitous video cameras, 24-hour cable news and a host of other technologies provide a level of hyper-accountability the framers could not possibly have imagined. [The accountability inheres in the elections -- no elections, no accountability. -AMPP Ed.] In the modern age, we do not need an election every two years to communicate voters' desires to their elected officials. [This is the Soviet model. "Soviet" is Russian for "advice" -- the authors support the right of people and subordinate officials to communicate their desires upward, and support the prerogative of the superiors to ignore those desires. -AMPP Ed.]

But the two-year cycle isn't just unnecessary; it's harmful to American politics. [But the authors have it above that politics is the problem, so they should support harming it. They must mean that the two-year cycle results in more politics, of which they disapprove. -AMPP Ed.]

The main impact of the midterm election in the modern era has been to weaken the president [Indeed this has been its effect in every era since the country's founding, as intended by the authors of the Constitution. -AMPP Ed.], the only government official (other than the powerless vice president) elected by the entire nation. Since the end of World War II, the president's party has on average lost 25 seats in the House and about 4 in the Senate as a result of the midterms. This is a bipartisan phenomenon — Democratic presidents have lost an average of 31 House seats and between 4 to 5 Senate seats in midterms; Republican presidents have lost 20 and 3 seats, respectively. [This is what accountability looks like. -AMPP Ed.]

The realities of the modern election cycle are that we spend almost two years selecting a president with a well-developed agenda [and a public forced to choose one of only two viable candidates, due to America's political duopoly -AMPP Ed.], but then, less than two years after the inauguration, the midterm election cripples that same president's ability to advance that agenda.

These effects are compounded by our grotesque campaign finance system. House members in competitive races have raised, on average, $2.6 million for the 2014 midterm. That amounts to $3,600 raised a day — seven days a week, 52 weeks a year. Surveys show that members spend up to 70 percent of their time fund-raising during an election year. Two years later, they'll have to do it all again. [Gosh that horrible democracy, it's so messy, can't we neaten things up a bit? -AMPP Ed.]

Much of this money is sought from either highly partisan wealthy individuals or entities with vested interests before Congress [which, due to overreach by legislators and Presidents affialated with the Democratic Party, now includes all interests -AMPP Ed.]. Eliminating midterms would double the amount of time House members could focus on governing [as opposed to fretting over being held accountable by one's constituents -AMPP Ed.] and make them less dependent on their donor base.

Another quirk is that, during midterm elections, the electorate has been whiter, wealthier, older and more educated than during presidential elections. Biennial elections require our representatives to take this into account, appealing to one set of voters for two years, then a very different electorate two years later. [Yes, they appeal to the people who care enough about their country and its government to show up to vote. That's democracy. -AMPP Ed.]

There's an obvious, simple fix, though. The government should, through a constitutional amendment, extend the term of House members to four years and adjust the term of senators to either four or eight years, so that all elected federal officials would be chosen during presidential election years. [This is where the farce reaches its highpoint -- the structural dynamics of Constitutional amendment are similar to those of the House of Representatives and the midterm elections, but far more onerous, requiring multiple supermajorities in Congress (2/3 in each house) and among the state legislators (3/4). Any cause that can prevail by Constitutional amendment would sail through a midterm election and resulting Congress virtually unopposed. -AMPP Ed.] Doing so would relieve some (though, of course, not all) of the systemic gridlock ["check and balances", as the founders would have it -AMPP Ed.] afflicting the federal government and provide members of Congress with the ability to focus more time and energy on governance instead of electioneering [i.e. more imposition, less fretting over being held accountable by the constituents they betrayed -AMPP Ed.].

This adjustment would also give Congress the breathing space to consider longer-term challenges facing the nation — such as entitlement spending [presumably less for the "whiter, wealthier, older and more educated" to whom they above seek explicitly to exempt elected officials from appealing, and relatively more for the not-white, not-wealthier, not-older, and less-educated -AMPP Ed.], immigration [again, by the same rationale, presumably less of "whiter, wealthier, older and more educated" and more for the not-white, not-wealthier, not-older, and less-educated -AMPP Ed.] and climate change [it is inconceivable, given the other views they express here, that the authors mean anything other than the forceful imposition by government on the population of increasingly ruinous schemes of taxation and quotas on the 82% of US energy production that is fossil-fuel-based, without considering alternative strategies of mitigation and adaptation that are more economically realistic and more congenial to the voting public -AMPP Ed.] — that are either too complex or politically toxic to tackle within a two-year election cycle.

To offset the impact of longer congressional terms, this reform might be coupled with term limits that would cap an individual's total congressional service at, say, 24 years [guaranteeing a substantial contingent, at any given time, of lame duck legislators with no accountability at all, all of whose erstwhile constituents would have no substantive representation for the duration of the final term -AMPP Ed.], about the average for a member of Congress today. This would provide members enough time to build experience in the job, but also limit the effects of incumbency and ensure the circulation of new blood in the system.

The framers included an amendment process in the Constitution so our nation could adjust the system to meet the demands of a changing world. Surely they would not be pleased with the dysfunction, partisan acrimony and public dissatisfaction that plague modern politics. [On the contrary, the framers anticipated and intended precisely the "gridlock" currently afflicting the US national government, knowing it to be immeasurably preferable to a bare majority running roughshod over the irreducible and vital economic and social interests of a bare minority, a bare minority that might thereby be motivated to catastrophic rebellion inducing national ruin. -AMPP Ed.] Eliminating the midterm elections would be one small step to fixing our broken system.

David Schanzer is a professor of public policy and Jay Sullivan is a junior at Duke.

from the Daily Caller, 2014-Aug-19, by Leslie Ford and Ryan T. Anderson, both affiliated with the Heritage Foundation:

Government to Farmers: Host Same-Sex Wedding or Pay a $13,000 Fine

Should the government be able to coerce a family farm into hosting a same-sex wedding?

In a free society, the answer is no. Family farms should be free to operate in accordance with the beliefs and values of their owners. Government shouldn't be able to fine citizens for acting in the market according to their own—rather than the government's—values, unless there is a compelling government interest being pursued in the least restrictive way possible.

But the New York State Division of Human Rights doesn't see things this way. On August 8, it fined Cynthia and Robert Gifford $13,000 for acting on their belief that marriage is the union of a man and woman and thus declining to rent out their family farm for a same-sex wedding celebration. The Human Rights Commission ruled that “the nature and circumstances of the [Giffords's] violation of the Human Rights Law also warrants a penalty.”

This is coercive big government run amok.

Here's the back story. In 2012, Melissa Erwin and Jennie McCarthy contacted the Giffords to rent the family's barn for their same-sex wedding ceremony and reception. Cynthia Gifford responded that she and her husband would have to decline their request as they felt they could not in good conscience host a same-sex wedding ceremony at their home. The Giffords live on the second and third floor of the barn and, when they host weddings on the first floor, they open part of the second floor as a bridal suite.

The Giffords have owned and operated Liberty Ridge Farm in Schaghticoke, New York for over 25 years. Like many small farm families, they often open the farm to the public for events like berry picking, fall festivals, and pig racing.

Should the government be in the business of “re-educating” its citizens to change their moral beliefs?

They also open their home for weddings and receptions. When the Giffords host weddings, they are involved in every aspect of the wedding planning and celebration: they greet and drive guests in their farm trolley, decorate the barn, set up floral arrangements, arrange fireworks displays, and provide catering. As the Human Rights Commission ruling even points out, “the only wedding-related service Liberty Ridge Farm does not offer is providing the official for the wedding ceremony.”

As many brides know, planning a wedding requires hours of careful work to organize in order to pull off the celebration—hours during which family businesses operating venues like the Giffords' actively participate in the weddings they host. The Giffords believe that as free citizens running a business, they should have the right to decline to participate in an event that does not reflect their values.

Unfortunately, New York's Human Right's law (Executive Law, art. 15) creates special privileges based on sexual orientation that trump the rights of business owners. Because the Giffords' family farm is open to the public for business, New York classifies it as a “public accommodation” and then mandates that it not “discriminate” on the basis of sexual orientation.

Of course the Giffords were not engaging in any insidious discrimination—they were acting on their belief about the nature of marriage. They do not object to gay or lesbian customers attending the fall festivals, or going berry picking, or doing any of the other activities that the farm facilitates. The Giffords' only objection is to being forced to abide by the government's views on sexuality and host a same-sex wedding. The Human Rights Commission has now declared this historic belief about marriage to be “discrimination.”

The Giffords must pay a $1,500 mental anguish fine to each of the women and pay $10,000 in civil damages penalty to New York State. If they can't pay in 60 days, a nine percent interest rate will be added to that total. Like Jack Phillips of Masterpiece Cakeshop, the Giffords must also institute anti-discrimination re-education classes and procedures for their staff.

The question before all citizens is whether this law and this fine are just. Should the government be able to force family businesses to betray their consciences and participate in ceremonies that violate their beliefs? Should the government be in the business of “rehabilitating” consciences or “re-educating” its citizens to change their moral beliefs about the definition of marriage?

Government should not create special legal privileges based on sexual orientation and gender identity. Instead, government should protect the rights of Americans and the associations they form to act in the public square in accordance with their beliefs. The Giffords' case illustrates the growing conflict between religious liberty rights and laws that grant special privileges based on sexual orientation and gender identity. In a nation founded on limited government and religious freedom, government should not attempt to coerce any citizen, association, or business into celebrating same-sex relationships.

from the Wall Street Journal, 2014-Jul-30:

Texas Speech Shootout
Home schoolers sue the regulators who want to shut them up.

One of the few remaining subjects of bipartisan comity in U.S. politics is the abuse of campaign-finance laws to protect incumbents from criticism. Well, now Texas Republicans will have to defend in federal court one such bid to shut down political speech and intimidate donors—and explain why the First Amendment supposedly stops at the steps of state legislatures.

On Friday the Texas Home School Coalition Association sued the state over an attempt to ensnare virtually all civics organizations under government control and regulate their activities. The gambit emerged from a panic in Austin over the rise of outside scrutiny and was meant to prevent the barbarians from participating in politics.

A seat in the Texas legislature was once a lifetime sinecure, but after the Supreme Court's 2010 free-speech decision in Citizens United, what liberals and some Republicans call "dark money" started to pour into the fray. Lawmakers started to lose primaries as their positions and records were exposed to voters, so in 2013 they struck back with legislation that imposed onerous reporting and disclosure requirements on groups engaged in issue advocacy as if they were a regular political committee stumping for a candidate.

Governor Rick Perry rightly vetoed the bill, citing its "chilling effect" on speech that would undermine "our democratic political process." So the Ethics Commission, the state's campaign-finance regulator, decided to restrict speech on its own with no legal basis.

At the request of legislators, the Ethics Commission is reinterpreting the existing state election code to target issue-oriented groups that also take part in elections in any way, even if such campaign advocacy is a sideline to their primary mission. Under the proposed new rules, these groups must register with the state, hire campaign accountants and attorneys, and file and disclose detailed reports on contributors, spending and their beneficiaries. Violations are a criminal offense.

The Texas Home School Coalition Association argues that this attempt to burden speech is unconstitutional. The nonprofit mainly supports non-state education through parental seminars, legal aid and the like. But the association devotes about 9% of its budget in election years to producing a voter guide, promoting endorsements of candidates who support its values, and advertising its policy positions on matters of public concern at the ballot box.

Even the Supreme Court's original campaign-finance sins, 1976's Buckley v. Valeo and a follow-on 1986 case, explicitly protected the First Amendment rights of "organizations whose major purpose is not campaign advocacy, but who occasionally make independent expenditures on behalf of candidates." These precedents say the government can only restrict core political speech to avoid corruption, but how can advocating for home schooling create a corrupt quid pro quo?

The real goal of the Ethics Commission and its legislator accessories is to reduce the influence of critics and expose donors to political intimidation. Here's an opportunity to vindicate citizen participation and accountability in government, which is what politicians fear the most.

from the Wall Street Journal, 2014-May-7, by Daniel Henninger:

Obama Unleashes the Left
How the government created a federal hunting license for the far left.

In the U.S., the politics of the left versus the right rolls on with the predictability of traffic jams at the George Washington Bridge. It's a lot of honking. Until now. All of a sudden, the left has hit ramming speed across a broad swath of American life—in the universities, in politics and in government. People fingered as out of line with the far left's increasingly bizarre claims are being hit and hit hard.

Commencement-speaker bans are obligatory. Former Secretary of State Condoleezza Rice withdrew as Rutgers's speaker after two months of protests over Iraq, the left's long-sought replacement for the Vietnam War. Brandeis terminated its invitation to Somali writer Hirsi Ali, whose criticisms of radical Islam violated the school's "core values."

Azusa Pacific University "postponed" an April speech by political scientist Charles Murray to avoid "hurting our faculty and students of color." Come again? It will "hurt" them? Oh yes. In a recent New Republic essay, Jennie Jarvie described the rise of "trigger warnings" that professors are expected to post with their courses to avoid "traumatizing" students.

Oberlin College earlier this year proposed that its teachers "be aware of racism, classism, sexism, heterosexism, cissexism, ableism, and other issues of privilege and oppression." The co-chair of Oberlin's Sexual Offense Policy Task Force said last month that this part of the guide is now under revision.

I think it's fair to say something has snapped.

Mozilla co-founder Brendan Eich was driven out as CEO for donating money to support California's Prop. 8. An online protest tried to kill Condi Rice's appointment to the Dropbox board of directors over Internet surveillance. Incredibly, Dropbox CEO Drew Houston didn't cave.

Earlier this year, faculty and students held a meeting at Vassar College to discuss a particularly bitter internal battle over the school's boycott-Israel movement. Before the meeting, an English professor announced the dialogue "would not be guided by cardboard notions of civility."

In the Harvard Crimson, recently, an undergraduate columnist wrote: "Let's give up on academic freedom in favor of justice." How would that work? "When an academic community observes research promoting or justifying oppression, it should ensure that this research does not continue." She explicitly cited for suppression the work of conservative Harvard government professor Harvey Mansfield.

It's obvious that the far left has decided there are no longer constraints on what it can do to anyone who disagrees with it. How did this happen? Who let the dogs out?

The answer is not university presidents. The answer is that the Obama administration let the dogs out.

The trigger event was an agreement signed last May between the federal government and the University of Montana to resolve a Title IX dispute over a sexual-assault case.

Every college administrator in the U.S. knows about this agreement. Indeed, there are three separate, detailed "Montana" documents that were signed jointly—and this is unusual—by the civil-rights divisions of the Justice and Education Departments. Remarked DoJ's Joceyln Samuels, "The government is stronger when we speak with one voice."

That's real muscle. But read the agreement. It is Orwellian.

The agreement orders the school to retain an "Equity Consultant" (yes, there is such a thing) to advise it indefinitely on compliance. The school must, with the equity consultant, conduct "annual climate surveys." It will submit the results "to the United States."

The agreement describes compliance in mind-numbing detail, but in fact the actual definitional world it creates is vague. It says: "The term 'sexual harassment' means unwelcome conduct of a sexual nature." But there are also definitions for sexual assault and gender-based harassment. All of this detailed writ is called "guidance." As in missile.

No constitutional lawyer could read this agreement and not see in it the mind of the Queen of Hearts: "Sentence first, verdict afterwards!" Indeed, the U.S. Education Department felt obliged to assert that the agreement is "entirely consistent with the First Amendment."

First Amendment? It's more like a fatwa. The Obama administration has issued a federal hunting license to deputize fanatics at any university in America. They will define who gets accused, and on what basis.

The White House enabled these forces again last week, releasing an Education Department list of 55 colleges that are "under investigation" for possible Title IX violations. Not formally cited but "under investigation." The list includes such notorious Animal Houses as Catholic University, Swarthmore, Knox College, Carnegie Mellon and Harvard Law School. In truth, every school in America is effectively on the list.

Make no mistake, universities under constant pressure from the Obama administration and the most driven members of their "communities" will comply and define due process downward. If the liability choice falls between the lawyer brigades at the Holder Justice Department or some 19-year-old student or an assistant professor who didn't post the course's "trigger warning," guess who will get tossed to the Marcusian mobs at Harvard and Vassar?

If it's possible for the left to have its John Birch moment, we're in it. Wave goodbye to cardboard civility.

from, 2014-May-14, by Katie Pavlich:

Judicial Watch Obtains New Documents Showing IRS Targeting Came Directly From Washington D.C.

New documents obtained and released through a Judicial Watch lawsuit show the targeting of tea party and conservative groups came directly out of Washington D.C., not a rogue IRS office in Cincinnati.

On July 6, 2012, former Director of the IRS Rulings and Agreements Division and current Manager of Exempt Organizations Guidance Holly Paz sent an email to IRS Attorney Steven Grodnitzky asking for an explanation of how tea party group applications were being handled. Grodnitzky responded by confirming the cases were being handled in Washington.

"EOT is working the Tea party applications in coordination with Cincy. We are developing a few applications here in DC and providing copies of our development letters with the agent to use as examples in the development of their cases. Chip Hull [another lawyer in IRS headquarters] is working these cases in EOT and working with the agent in Cincy, so any communication should include him as well. Because the Tea party applications are the subject of an SCR [Sensitive Case Report], we cannot resolve any of the cases without coordinating with Rob," Grodnitzky wrote.

When the IRS targeting scandal broke last year, officials in Washington immediately pinned the blame on the Cincinnati office. This documentation proves not only that direction was coming out of Washington, but that Washington instructed Cincinnati about how to handle tea party applications.

A new email from Lois Lerner also details how BOLO lists (be on the look out) were specifically created for tea party groups or groups with issues related to government spending, debt, taxes and "how the country is being run."

"Because the BOLO only contained a brief reference to "Organizations involved with the Tea Party movement applying for exemption under 501(c)(3) and 501(c)(4)" in June 2011, the EO Determinations manager asked the manager of the screening group, John Shafer [IRS Cincinnati field office manager], what criteria were being used to label cases as "tea party " cases. ("Do the applications specify/state ' tea party'? If not, how do we know applicant is involved with the tea party movement?") The screening group manager asked his employees how they were applying the BOLO's short –hand reference to "tea party." His employees responded that they were including organizations meeting any of the following criteria as falling within the BOLO's reference to "tea party" organizations: "1. 'Tea Party', 'Patriots' or '9/12 Project' is referenced in the case file. 2. Issues include government spending, government debt and taxes. 3. Educate the public through advocacy/legislative activities to make America a better place to live. 4. Statements in the case file that are critical of the how the country is being run. . . " Lerner wrote on April 2, 2013. "So, we believe we have provided information that shows that no one in EO "developed" the criteria. Rather, staff used their own interpretations of the brief reference to "organizations involved with the Tea Party movement," which was what was on the BOLO list."

Judicial Watch also found the IRS put red and orange alert symbols on tea party issues for heightened awareness. Here are two slides from a "Heightened Awareness Presentation" used at the IRS.

[see pages 1 and 7 of PDF document]

Further, documents show the IRS responded to "intense" requests from Democrat Senator Carl Levin to come down on conservative tax exempt groups in an effort to get rid of them, specifically the groups working against his reelection campaign.

Emails released by Judicial Watch last month show former head of taxpayer groups Lois Lerner was in contact with the Department of Justice about the potential criminal prosecution of conservative groups. In her emails about DOJ, Lerner noted that putting one person from a conservative organization in jail would create and example and "shut the whole thing down."

from the Washington Post, 2014-Apr-10, by Charles Krauthammer:

Thought police on patrol

Two months ago, a petition bearing more than 110,000 signatures was delivered to The Post, demanding a ban on any article questioning global warming. The petition arrived the day before publication of my column, which consisted of precisely that heresy.

The column ran as usual. But I was gratified by the show of intolerance because it perfectly illustrated my argument that the left is entering a new phase of ideological agitation — no longer trying to win the debate but stopping debate altogether, banishing from public discourse any and all opposition.

The proper word for that attitude is totalitarian. It declares certain controversies over and visits serious consequences — from social ostracism to vocational defenestration — upon those who refuse to be silenced.

Sometimes the word comes from on high, as when the president of the United States declares the science of global warming to be “settled.” Anyone who disagrees is then branded “anti-science.” And better still, a “denier” — a brilliantly chosen calumny meant to impute to the climate skeptic the opprobrium normally reserved for the hatemongers and crackpots who deny the Holocaust.

Then last week, another outbreak. The newest closing of the leftist mind is on gay marriage. Just as the science of global warming is settled, so, it seems, are the moral and philosophical merits of gay marriage.

To oppose it is nothing but bigotry, akin to racism. Opponents are to be similarly marginalized and shunned, destroyed personally and professionally.

Like the CEO of Mozilla who resigned under pressure just 10 days into his job when it was disclosed that six years earlier he had donated to California’s Proposition 8, which defined marriage as between a man and a woman.

But why stop with Brendan Eich, the victim of this high-tech lynching? Prop 8 passed by half a million votes. Six million Californians joined Eich in the crime of “privileging” traditional marriage. So did Barack Obama. In that same year, he declared that his Christian beliefs made him oppose gay marriage.

Yet under the new dispensation, this is outright bigotry. By that logic, the man whom the left so ecstatically carried to the White House in 2008 was equally a bigot.

The whole thing is so stupid as to be unworthy of exegesis. There is no logic. What’s at play is sheer ideological prejudice — and the enforcement of the new totalitarian norm that declares, unilaterally, certain issues to be closed.

Closed to debate. Open only to intimidated acquiescence.

To this magic circle of forced conformity, the left would like to add certain other policies, resistance to which is deemed a “war on women.” It’s a colorful synonym for sexism. Leveling the charge is a crude way to cut off debate.

Thus, to oppose late-term abortion is to make war on women’s “reproductive health.” Similarly, to question Obamacare’s mandate of free contraception for all.

Some oppose the regulation because of its impingement on the free exercise of religion. Others on the simpler (nontheological) grounds of a skewed hierarchy of values. Under the new law, everything is covered, but a few choice things are given away free. To what does contraception owe its exalted status? Why should it rank above, say, antibiotics for a sick child, for which that same mother must co-pay?

Say that, however, and you are accused of denying women “access to contraception.”

Or try objecting to the new so-called Paycheck Fairness Act for women, which is little more than a full-employment act for trial lawyers. Sex discrimination is already illegal. What these new laws do is relieve the plaintiffs of proving intentional discrimination. To bring suit, they need only to show that women make less in that workplace.

Like the White House, where women make 88 cents to the men’s dollar?

That’s called “disparate impact.” Does anyone really think Obama consciously discriminates against female employees, rather than the disparity being a reflection of experience, work history, etc.? But just to raise such questions is to betray heretical tendencies.

The good news is that the “war on women” charge is mostly cynicism, fodder for campaign-year demagoguery. But the trend is growing. Oppose the current consensus and you’re a denier, a bigot, a homophobe, a sexist, an enemy of the people.

Long a staple of academia, the totalitarian impulse is spreading. What to do? Defend the dissenters, even if — perhaps, especially if — you disagree with their policy. It is — it was? — the American way.

from the Wall Street Journal, 2014-Jul-4:

Climate of Conformity
One of our writers gets sacked for dissenting on global warming.

As loyal left-wingers go, Caleb Rossiter is a trouper. He's supported every left of center cause going back to the Cold War, but lately he's become a partial dissenter against the new religion of climate change. And now he's been put out in the cold.

The Institute for Policy Studies terminated Mr. Rossiter's fellowship two days after he wrote a May 5 op-ed for these pages. Mr. Rossiter, who is also an American University adjunct professor of math and statistics, argued that the computer modeling used to support claims that the earth is headed for a climate catastrophe is far from definitive. But more important from a moral point of view, he wrote that limiting fossil fuels would make it harder for Africa to escape poverty.

In a May 7 email, IPS Director John Cavanagh and Foreign Policy in Focus co-director Emira Woods informed Mr. Rossiter that, "Unfortunately, we now feel that your views on key issues, including climate science, climate justice, and many aspects of U.S. policy to Africa, diverge so significantly from ours that a productive working relationship is untenable."

So after a 23-year association, Mr. Rossiter got the boot. Some readers may recall IPS as a stalwart opponent of U.S. policy during the long twilight struggle with the Soviet Union. Mr. Rossiter says he agrees with the institute on almost everything and calls it "the only anti-imperialist think tank in D.C."

Mr. Cavanagh says the termination was "a respect issue": Mr. Rossiter "didn't reach out to the people who work on those issues and he implied in the piece that if you didn't agree with him you wanted Africans to be without electricity in the dark. That's not our position."

Mr. Rossiter says his support for fossil fuels for Africa was well known at IPS even before his fellowship began. There is a "right to development," he told us, and when the developed world is "denying, even to South Africa which is a democratic government, that right, it strikes me as cultural imperialism." He says his "biggest problem" with climate-change theory "is with the certainty that people express. For years I have tried to get people at IPS to come to my classes where I teach statistics. I think they don't come because they think it lends credence to the other side if you debate the topic."

When Mr. Rossiter pushed for a climate debate this spring, Mr. Cavanagh replied in an email: "My opposition to a future based on fossil fuels goes way beyond the math. It is rooted in one of Emira's arguments, that as long as we're dependent on fossil fuels, we'll keep building bases in other countries to grab their oil. And, I'm watching what fossil fuel extraction has meant to indigenous peoples, to the people of Alberta."

He's referring to the oppressed self-governing people of Alberta, Canada.

Think tanks can support whoever they want, though we thought they were supposed to let people "think." Mr. Rossiter's fate is further evidence of the left's climate of intellectual conformity. If you disagree with the orthodoxy on climate change, you aren't merely wrong, you must be banished from public debate.

from the Wall Street Journal Best of the Web, 2014-May-15, by James Taranto:

Scientific Authoritarians
The case for skepticism about climate scientists.

Florida's Sen. Marco Rubio came under attack this week for refusing to submit to scientific authority. "I do not believe that human activity is causing these dramatic changes to our climate the way these scientists are portraying it," he said in an interview with Jonathan Karl.

Nonscientist Ruth Marcus, writing for the Washington Post, declared that Rubio's words "undermine his other assertion," namely "that he is prepared to be president." Juliet Lapidos, also lacking in scientific expertise, went so far as to assert, in a New York Times blog post, that Rubio had "disqualified himself" from the presidency.

Of all the silly things written on the subject of global warming, Marcus's and Lapidos's offerings are surely among the most recent. Apart from that they're entirely typical of the genre of global-warmist opinion journalism, in which ignorant journalists taunt politicians for their ignorance but have no argument beyond an appeal to authority. Lapidos: "Does Mr. Rubio think scientists are lying? Or that they don't know what they're talking about? Either way, what leads him to believe that the 'portrait' of climate change offered by scientists is inaccurate?"

Appeals to authority aren't necessarily fallacious, except in the realm of formal deductive logic, where they entail adopting the unfounded premise that the authority is infallible. In informal logic--such as political debate at its best--an appeal to authority can be a sound argument if the authority is both relevant and trusted. And when dealing with complicated matters in which one lacks specialized expertise. As Michael Gerson puts it in the Washington Post: "Our intuitions are useless here. The only possible answers come from science. And for non-scientists, this requires a modicum of trust in the scientific enterprise."

Do you see the subtle problem with Gerson's formulation? The injunction have trust after tossing aside your intuition is at best a contradiction in terms, at worst a con.

This columnist is probably as unqualified as Marcus or Lapidos to evaluate the scientific merits of global warmism. But because we distrust climate scientists, we're with Rubio in being inclined to think it's a bill of goods. The trouble for global-warmist journalists like Marcus and Lapidos is that an appeal to the authority of a distrusted source undermines rather than strengthens one's argument.

Here, from National Review's Patrick Brennan, is the latest reason to distrust the authority of "consensus" climate scientists:

On May 8, Lennart Bengtsson, a Swedish climate scientist and meteorologist, joined the advisory council of the Global Warming Policy Foundation, a group that questions the reliability of climate change and the costs of policies taken to address it. While Bengtsson maintains he'd always been a skeptic as any scientist ought to be, the foundation and climate-change skeptics proudly announced it as a defection from the scientific consensus.
Less than a week later, he says he's been forced to resign from the group. The abuse he's received from the climate-science community has made it impossible to carry on his academic work and made him fear for his own safety. A once-peaceful community, he says in his resignation letter, now reminds him of McCarthyism.
"I had not expect[ed] such an enormous world-wide pressure put at me from a community that I have been close to all my active life," he wrote in his resignation. "Colleagues are withdrawing their support, other colleagues are withdrawing from joint authorship."

London's Daily Mail reports that Bengtsson "was also abused on science blogs, with one describing the people who condemned him as 'respectable' and that his actions amounted to 'silliness.' Another described him as a 'crybaby.' "

Bengtsson tells the Mail: "Some people like my views, other people don't, that is the way when it comes to science." That's precisely the point. Science is a methodical process of open inquiry. Those who enforce orthodoxies and engage in name-calling aren't doing science, even if they're scientists.

Gerson is correct in observing that a layman's intuition is of little use in evaluating a scientific proposition. That requires intellect and expertise, and most laymen do not have the latter. But intuition is enough to distinguish an authoritarian from a real authority.

from BBC News, 2014-Jul-31:

Russia enacts 'draconian' law for bloggers and online media
Russia's parliament has voted through a series of internet laws Russia's parliament has voted through a series of internet laws

A new law imposing restrictions on users of social media has come into effect in Russia.

It means bloggers with more than 3,000 daily readers must register with the mass media regulator, Roskomnadzor, and conform to the regulations that govern the country's larger media outlets.

Internet companies will also be required to allow Russian authorities access to users' information.

One human rights group called the move "draconian".

The law was approved by Russia's upper house of parliament in April.

It includes measures to ensure that bloggers cannot remain anonymous, and states that social networks must maintain six months of data on its users.

The information must be stored on servers based in Russian territory, so that government authorities can gain access. Russia has previously blocked sites belonging to opponents of Vladimir Putin, such as Garry Kasparov Russia has blocked the sites of opponents such as Garry Kasparov

Critics see it as the latest in a series of recent moves to curb internet freedom.

'Free expression'

Hugh Williamson, of New York-based Human Rights Watch, has called the law "another milestone in Russia's relentless crackdown on free expression".

"The internet is the last island of free expression in Russia and these draconian regulations are clearly aimed at putting it under government control," he added.

Opposition figures have used the internet to air their views, with some gaining millions of followers.

Commentators opposing Vladimir Putin often face restrictions in broadcast outlets and newspapers.

Russian bloggers are bracing themselves for the moment when Russia's new "information security law" comes into force on 1 August. Some already share advice on how to use proxy servers in order to access social media sites that, in their view, are under threat of being closed.

It is hard to see how the law will be enforced. The servers for most of the popular social media platforms that many Russians use are based outside Russia.

Many popular bloggers are already looking for, and apparently finding, ways to "cheat" the feature that counts page visits and keep their daily unique visitor numbers just under 3000, or to make sure that the statistics are hidden altogether.

Anton Nossik, who is considered Russia's "internet guru", wrote in his LiveJournal blog that the new law didn't threaten individual bloggers directly, but provided legal grounds to block popular social networks like Facebook, Twitter, LiveJournal and Google.

"The issue of banning all these platforms in Russia is a political one and it will be decided by only one person", Mr Nossik wrote, with a thinly veiled reference to President Vladimir Putin.

Critics blocked

Earlier in the year, Russia enacted a law that gave the government powers to block websites without explanation.

In March, Moscow blocked the blog of Mr Navalny, along with two news sites and a organisation run by Garry Kasparov - a vocal critic of the Russian government.

In a statement, Russia's prosecutor general's office said the blocks were imposed because of the sites' role in helping stage illegal protests.

Earlier this week, Twitter blocked access to an anti-Kremlin account that often publishes leaked government documents, following a request by Russia's federal communications agency Roskomnadzor.

'CIA project'

For many years, Russia had relatively lax internet laws.

However Moscow has recently changed its tune, with Mr Putin branding the internet an ongoing "CIA project".

He also claimed that the popular Russian search engine Yandex was controlled by foreign intelligence.

Two years ago, Russia enacted a law enabling authorities to blacklist and force certain websites offline without a trial.

The government said the legislation was designed to protect children from harmful internet content, such as pro-suicide or pornography websites.

On Thursday, lawyers for US intelligence officer Edward Snowden said the whistleblower had filed for refugee status in Russia.

Mr Snowden received temporary shelter in Russia last year.

He had evaded US authorities after he leaked classified government documents revealing mass surveillance programmes undertaken by the NSA in the US and GCHQ in the UK.

from the Telegraph of London, 2014-Jul-4, by Sarah Knapton:

BBC staff told to stop inviting cranks on to science programmes
BBC Trust says 200 senior managers trained not to insert 'false balance' into stories when issues were non-contentious

BBC journalists are being sent on courses to stop them inviting so many cranks onto programmes to air `marginal views'

The BBC Trust on Thursday published a progress report into the corporation's science coverage which was criticised in 2012 for giving too much air-time to critics who oppose non-contentious issues.

The report found that there was still an `over-rigid application of editorial guidelines on impartiality' which sought to give the `other side' of the argument, even if that viewpoint was widely dismissed.

Some 200 staff have already attended seminars and workshops and more will be invited on courses in the coming months to stop them giving `undue attention to marginal opinion.'

“The Trust wishes to emphasise the importance of attempting to establish where the weight of scientific agreement may be found and make that clear to audiences,” wrote the report authors.

“Science coverage does not simply lie in reflecting a wide range of views but depends on the varying degree of prominence such views should be given.”

The Trust said that man-made climate change was one area where too much weight had been given to unqualified critics.

In April the BBC was accused of misleading viewers about climate change and creating `false balance' by allowing unqualified sceptics to have too much air-time.

In a damning parliamentary report, the corporation was criticised for distorting the debate, with Radio 4's Today and World at One programmes coming in for particular criticism.

The BBC's determination to give a balanced view has seen it pit scientists arguing for climate change against far less qualified opponents such as Lord Lawson who heads a campaign group lobbying against the government's climate change policies.

Andrew Montford, who runs the Bishop Hill climate sceptic blog, former children's television presenter Johnny Ball and Bob Carter, a retired Australian geologist, are among the other climate sceptics that have appeared on the BBC.

The report highlighted World at One edition in September of a landmark UN Intergovernmental Panel on Climate Change (IPCC) research project which found concluded with 95 per cent certainty that the climate is changing and that human activity is the main cause.

The programme's producers tried more than a dozen qualified UK scientists to give an opposing view but could not find one willing to do so – so they went to Mr Carter in Australia.

Pitted against Energy Secretary Ed Davey, Mr Carter described the findings of the most authoritative report ever undertaken into the science of climate change – put together by hundreds of scientists around the world – as “hocus-pocus science”.

from BBC News, 2014-Jul-4, by Dave Lee:

Google reinstates 'forgotten' links after pressure

After widespread criticism, Google has begun reinstating some links it had earlier removed under the controversial "right to be forgotten" ruling.

Articles posted online by the Guardian newspaper were removed earlier this week, but have now returned fully to the search engine.

Google has defended its actions, saying that it was a "difficult" process.

"We are learning as we go," Peter Barron, head of communications for Google in Europe, told the BBC.

Speaking to Radio 4's Today programme, he dismissed claims made on Thursday that the company was simply letting all requests through in an attempt to show its disapproval at the ruling.

"Absolutely not," he said. "We are aiming to deal with it as responsibly as possible.

"The European Court of Justice [ECJ] ruling was not something that we welcomed, that we wanted - but it is now the law in Europe and we are obliged to comply with that law."

He said Google had to balance the need for transparency with the need to protect people's identity.

'Memory hole'

Mr Barron argued that the search giant was doing its best to comply with the ECJ's ruling, which stated that links to web pages can be removed from search engine if they are deemed to be "outdated, irrelevant or no longer relevant".

The ruling has come under particular scrutiny after BBC economics editor Robert Peston was notified that a blog post he had written in 2007 would be removed from appearing when a specific search was carried out on Google.

The identity of the person who made the request is not yet known, although Google has confirmed it is not the subject of the article, former Merrill Lynch boss Stan O'Neal.

Instead, the request relates to the reader comments that appear underneath the story.

In addition to Peston's blog, seven other BBC articles were singled out for removal, most of which included comment threads.

Elsewhere, the Guardian's special projects editor James Ball wrote that six of the newspaper's articles had "fallen down the memory hole".

Back in the headlines

A source has confirmed to the BBC that the Guardian articles have now been re-indexed for all relevant search terms.

Mr Ball joined those saying that Google's actions may have been "tactical".

"There are very few news organisations in the world who are happy to hear their output is being stifled," he said.

"A few automated messages later, the story is back in the headlines - and Google is likely to be happy about that."

His thoughts echoed those of Ryan Heath, spokesman for the European Commission's vice-president, who described the decision to remove a link to Peston's blog as "not a good judgement".

"Google clearly has a strong interest in making sure that they're able to work with whatever the legal requirements are, so they position themselves in a particular way over that," he said.

"It doesn't come cheap to deal with all of these requests, so they need to find some way to come up with dealing with them."

He added that the ruling should not allow people to "Photoshop their lives".

from the Wall Street Journal, 2014-May-13, by Frances Robinson, Sam Schechner and Amir Mizroch, with Lisa Fleisher in London, Rolfe Winkler in San Francisco, Christopher Bjork and David Román in Madrid contributing:

EU Orders Google to Let Users Erase Past
Surprise Decision Could Prove Highly Disruptive to Search-Engine Operators

The EU's Court of Justice has ruled that Google must listen, and sometimes comply, when individuals ask for links to articles or websites to be removed. What does this mean for the search giant and its more than one billion users? WSJ's Jason Bellini has #TheShortAnswer.

Europe's top court ruled that Google Inc. can be forced to erase links to content about individuals on the Web, a surprise decision that could disrupt search-engine operators and shift the balance between online privacy and free speech across Europe.

Under Tuesday's ruling—which doesn't trigger any specific new enforcement, but sets a strong legal precedent across the European Union—individuals can request that search engines remove links to news articles, court judgments and other documents in search results for their name. National authorities can force the search engines to comply if they judge there isn't a sufficient public interest in the information, the court ruled.

A dispute between a Madrid plastic surgeon and Google set the stage for the "right to be forgotten" battle. Read about the case. (3/7/2011)

The European Court of Justice's decision represents the strongest legal backing of what is often called the "right to be forgotten," a concept born out of 19th-century French and German legal protections that once permitted honor-based dueling—but remains unfamiliar to most Americans.

Proponents of the "right to be forgotten" argue that individuals should be able to force the removal from the Internet of information that is old or irrelevant, and could be deemed to infringe on their right to privacy. Detractors say that the ruling could lead to a massive wave of takedown requests that would swamp companies and privacy regulators with legal costs, while whitewashing the public record.

The decision "makes grim reading for Google and will delight privacy advocates in the EU," said Richard Cumbley, information-management and data-protection partner at U.K. law firm Linklaters.

The ruling was a surprise. The decision contradicted a previous opinion by one of the court's own advocates general, or senior legal advisers. That opinion, issued last year, argued that search engines like Google shouldn't be responsible for personal data that they turn up when crawling the Web for information. That move was seen at the time as a victory for Google.

Google called Tuesday's ruling disappointing, and said it needed time to analyze the implications. A person familiar with the matter said Google isn't likely to remove information globally from its search results.

Some lawyers argue that the ruling will probably only be applied for searches done and displayed in Europe, and only for European data subjects, for instance, EU citizens or European residents. The court specifically said, however, that companies can't get out of compliance simply by saying their servers are outside of Europe.

Microsoft Corp., whose search engine Bing would fall under the ruling, declined to comment. Yahoo Inc. said in a statement that it is assessing the impact for its business, adding that it supports "an open and free Internet; not one shaded by censorship."

Tuesday's ruling comes as EU parliamentarians and national governments are currently wrestling with how to craft a new privacy and data-protection law for the continent. That law has become the object of vociferous debate and lobbying between privacy-rights advocates and much of the technology industry.

The fight underscores just how significantly that new law may shape the Internet's evolving rules of the road, in Europe and in other jurisdictions. In that debate, both sides have used two competing legal principles—but two that have been embraced in different ways on opposite shores of the Atlantic.

The technology industry has rallied around freedom of speech, long a tenet of Western democracy but enshrined specifically in the U.S. Constitution as its First Amendment. Privacy-rights activists and many European officials have supported a competing notion: the "right to be forgotten." That stems from a culture in France and Germany that once allowed individuals to protect their honor and reputation—either through duels or through the courts, according to James Whitman, a professor at Yale Law School.

Companies are bracing for a tsunami of requests to take down search results following the ruling, lawyers and analysts said Tuesday.

The court decision by itself doesn't force Google to respond to requests from individuals. But if it doesn't act, individuals can go to national regulators or privacy watchdogs to ask for material to be removed.

The details under what circumstances they might be able to act still have to be worked out by national courts and legislatures, a process that could take years.

Such requests could be more difficult to handle in part because the Luxembourg-based court left ambiguity and interpretation in defining an allowable removal request, saying there must be a balance of the public interest against personal privacy.

In addition, the court ruled that search engines are "controllers" of the personal data they turn up online, potentially subjecting them to other obligations, such as notifying people that their data has been collected, lawyers say.

Tech companies and free speech advocates say the decision could lead to a chilling effect on free expression, as search engines are forced to scrub their results in Europe.

The Computer & Communications Industry Association, which includes Facebook Inc., Yahoo, Google, and Microsoft, said in a statement that the ruling "opens the door to large scale private censorship in Europe," adding that "our concern is it could also be misused by politicians or others with something to hide who could demand to have information taken down."

The ruling follows a series of legal setbacks for Google on the privacy front in recent months. The company lost related cases in both France and Germany brought by former Formula One chief Max Mosley, who had sued to force Google to automatically remove from its results images of a sadomasochistic orgy in which he participated in 2008. Google said it is appealing the cases. Mr. Mosley said Tuesday that he hoped Google would bend.

Tuesday's judgment comes in response to a 2011 request for guidance on EU privacy laws from a Spanish court. The Spanish court was dealing with a case pitting Google against Spain's data-protection regulator, which had to assess 180 cases—now 220—brought by individuals unhappy with search results relating to their name.

The case considered concerned Mario Costeja González, who complained after Google results displayed links to a 1998 announcement in the Spanish newspaper La Vanguardia. At the time La Vanguardia had published an announcement for a real-estate auction, which contained details on Mr. Costeja González's social security debts—a situation that is now fully resolved.

"There's a saying in Spanish: If to resist is to win, I have won by resisting," Mr. Costeja González said. He said he was fighting to remove information that violates the "dignity, honor and respect of a person, and which doesn't have any public relevance."

Hugo Guidotti, a Madrid surgeon, also asked Google to remove a link to a 1991 report in Spanish newspaper El País about a malpractice lawsuit against him after an allegedly botched breast surgery. The link turns up in Google searches of his name.

"I'm happy, of course," Mr. Guidotti said of the decision. "I've been fighting over this for years."

from the Wall Street Journal, 2014-Apr-2, by Charles G. Koch:

I'm Fighting to Restore a Free Society
Instead of welcoming free debate, collectivists engage in character assassination.

I have devoted most of my life to understanding the principles that enable people to improve their lives. It is those principles—the principles of a free society—that have shaped my life, my family, our company and America itself.

Unfortunately, the fundamental concepts of dignity, respect, equality before the law and personal freedom are under attack by the nation's own government. That's why, if we want to restore a free society and create greater well-being and opportunity for all Americans, we have no choice but to fight for those principles. I have been doing so for more than 50 years, primarily through educational efforts. It was only in the past decade that I realized the need to also engage in the political process.

A truly free society is based on a vision of respect for people and what they value. In a truly free society, any business that disrespects its customers will fail, and deserves to do so. The same should be true of any government that disrespects its citizens. The central belief and fatal conceit of the current administration is that you are incapable of running your own life, but those in power are capable of running it for you. This is the essence of big government and collectivism.

More than 200 years ago, Thomas Jefferson warned that this could happen. "The natural progress of things," Jefferson wrote, "is for liberty to yield and government to gain ground." He knew that no government could possibly run citizens' lives for the better. The more government tries to control, the greater the disaster, as shown by the current health-care debacle. Collectivists (those who stand for government control of the means of production and how people live their lives) promise heaven but deliver hell. For them, the promised end justifies the means.

Instead of encouraging free and open debate, collectivists strive to discredit and intimidate opponents. They engage in character assassination. (I should know, as the almost daily target of their attacks.) This is the approach that Arthur Schopenhauer described in the 19th century, that Saul Alinsky famously advocated in the 20th, and that so many despots have infamously practiced. Such tactics are the antithesis of what is required for a free society—and a telltale sign that the collectivists do not have good answers.

Rather than try to understand my vision for a free society or accurately report the facts about Koch Industries, our critics would have you believe we're "un-American" and trying to "rig the system," that we're against "environmental protection" or eager to "end workplace safety standards." These falsehoods remind me of the late Sen. Daniel Patrick Moynihan's observation, "Everyone is entitled to his own opinion, but not to his own facts." Here are some facts about my philosophy and our company:

Koch companies employ 60,000 Americans, who make many thousands of products that Americans want and need. According to government figures, our employees and the 143,000 additional American jobs they support generate nearly $11.7 billion in compensation and benefits. About one-third of our U.S.-based employees are union members.

Koch employees have earned well over 700 awards for environmental, health and safety excellence since 2009, many of them from the Environmental Protection Agency and Occupational Safety and Health Administration. EPA officials have commended us for our "commitment to a cleaner environment" and called us "a model for other companies."

Our refineries have consistently ranked among the best in the nation for low per-barrel emissions. In 2012, our Total Case Incident Rate (an important safety measure) was 67% better than a Bureau of Labor Statistics average for peer industries. Even so, we have never rested on our laurels. We believe there is always room for innovation and improvement.

Far from trying to rig the system, I have spent decades opposing cronyism and all political favors, including mandates, subsidies and protective tariffs—even when we benefit from them. I believe that cronyism is nothing more than welfare for the rich and powerful, and should be abolished.

Koch Industries was the only major producer in the ethanol industry to argue for the demise of the ethanol tax credit in 2011. That government handout (which cost taxpayers billions) needlessly drove up food and fuel prices as well as other costs for consumers—many of whom were poor or otherwise disadvantaged. Now the mandate needs to go, so that consumers and the marketplace are the ones who decide the future of ethanol.

Instead of fostering a system that enables people to help themselves, America is now saddled with a system that destroys value, raises costs, hinders innovation and relegates millions of citizens to a life of poverty, dependency and hopelessness. This is what happens when elected officials believe that people's lives are better run by politicians and regulators than by the people themselves. Those in power fail to see that more government means less liberty, and liberty is the essence of what it means to be American. Love of liberty is the American ideal.

If more businesses (and elected officials) were to embrace a vision of creating real value for people in a principled way, our nation would be far better off—not just today, but for generations to come. I'm dedicated to fighting for that vision. I'm convinced most Americans believe it's worth fighting for, too.

Mr. Koch is chairman and CEO of Koch Industries.

from BBC News, 2014-Jun-2, by Samanthi Dissanayake:

The Indian miracle-buster stuck in Finland


An Indian man who made his name exposing the "miraculous" feats of holy men as tricks has fled the country after being accused of blasphemy. Now in self-imposed exile in Finland, he fears jail - or even assassination - if he returns.

When a Hindu fakir declared on live television that he could kill anybody with tantric chanting, Sanal Edamaruku simply had to take him up on the challenge.

As both were guests in the studio, the fakir was put to the test immediately.

The channel cancelled all subsequent programming and he began chanting on the spot. But as the hours passed a note of desperation crept into his raspy mantras. For his part, Edamaruku, president of the Indian Rationalist Association, showed no sign of discomfort, let alone death. He merely chortled his way through this unconventional (and unsuccessful) attempt on his life.

He has spent his life as a prominent member of India's small band of miracle-busters, men who dedicate their life to traversing the country demystifying certain beliefs.

It's a nation often associated with profound spirituality, but rationalists see their country as a breeding ground for superstition.

In the 1990s Edamaruku visited hundreds of villages replicating the apparently fabulous feats some self-proclaimed holy men became renowned for - the materialisations of watches or "holy" ash - exposing them as mere sleight of hand.

As a campaigner determined to drill home his point, sometimes with an air of goading bemusement, he has attracted critics.

He readily admits he took advantage of the explosion in Indian television channels which discovered an audience fascinated with tales of the extraordinary.

"I was campaigning in villages for so long before the television came," he says. "But some people do not like me to be going on television and reaching out to millions of people."

But in 2012, four years after his televised encounter with the fakir, a steady drip of water from the toe of a statue of Christ genuinely did, he believes, put his life in danger.

Immediately hailed as a miracle, hundreds of Catholic devotees and other curious residents flocked to the shrine in a nondescript Mumbai suburb to watch the hypnotic drip. Some even drank the droplets.

Edamaruku was challenged to investigate and so he went to the site with an engineer friend and traced the source of the drip backwards. Moisture on the wall the statue was mounted on seemed to come from an overflowing drain, which was in turn fed by a pipe that issued from a nearby toilet.

The "miracle" was simply bad plumbing, he said.

It was then that the situation turned ugly.

He presented his case in a febrile live television debate with representatives of Catholic lobby groups, while outside the studio a threatening crowd bearing sticks had gathered. He claims they were hired thugs.

For some Catholics the veracity of the miracle is no longer the point. Edamaruku, they say, insulted the Catholic church, by alleging the church manufactured the miracle to make money, by claiming the church was anti-science and even casting doubt over the miracle that ensured Mother Theresa's sainthood.

In the following weeks, three police stations in Mumbai took up blasphemy cases filed against him by Catholic groups under the notorious Section 295a of India's colonial-era penal code.

Section 295a was enacted in 1927 to curb hate speech in a restless colony bristling with religious and communal tensions. It makes "deliberate and malicious" speech insulting to religion punishable with up to three years in prison and a fine. However, some say it is frequently abused to suppress free speech.

"Under this law a policeman can simply arrest me even though there has been no investigation... they can just arrest me without a warrant and keep me in prison for a long time… That risk I do not want to take," says Edamaruku.

India's 'blasphemy' law

India's colonial era Penal Code prohibits hate speech - section 295a says:

"Whoever, with deliberate and malicious intention of outraging the religious feelings of any class of [citizens of India]... shall be punished with imprisonment of either description for a term which may extend to [three years], or with fine, or with both."

Key cases include:

  • 1957: Ramji Lal Modi published a cartoon and article deemed offensive to Muslims - he was fined and imprisoned for 12 months
  • 1996: Artist MF Husain faced a prolonged legal campaign over his images of Hindu figures - higher courts dismissed most cases but as more were registered he took Qatari citizenship
  • 2008: IT worker Lakshmana Kailash spent 50 days in jail after being arrested on suspicion of posting offensive images online - police had mistakenly identified him and he was released
  • 2013: Writer Yogesh Master was arrested over his book about the Hindu god Ganesh and got bail a day later

He applied for anticipatory bail, which would prevent police taking him into custody before any investigation - but this was rejected. At the same time, he says, he was getting threatening phone calls from policemen proclaiming their intention to arrest him and telling him that unless he apologised the complaint would never be withdrawn.

Threatening comments were posted on an online forum, he says, and contacts in Mumbai told him they had heard talk of somebody being hired to beat him in jail. Catholic groups say they aren't behind any threats Mr Edamaruku may have received.

He decided to leave early for a European lecture tour. Finland was the first country to give him a visa and he had friends on the Finnish humanist scene willing to help.

He arrived in Helsinki on a summer afternoon two years ago, the endless hours of sunlight saturating both day and night. He thought he would only stay for a couple of weeks until the furore he left behind in India had died down.

But the furore has not died down - the Catholic Secular Forum (CSF), one of the groups that made the initial complaint, still insists it will press for prosecution should he ever return.

Two years on, he is angry, bitter and defiant. Living in a small flat on the eastern edge of Helsinki, he has forced himself to adjust to an alien landscape. After the crowded hustle of Delhi, more than 3,000 miles away, he can now walk mile upon lonely mile without seeing a single person.

His closest friend here - the founder of the Finnish humanist society Pekka Elo - died late last year.

"I miss a lot of people… That I cannot meet them is something that saddens me," he says.

Since he left India, his daughter has had a child, and his mother has died.

He conducts board meetings of the Indian Rationalist Association by Skype and every morning colleagues update him on the latest tales of the supernatural and fraudulent holy men. He plots their downfall. This routine is crucial to him.

Cardinal Oswald Gracias of Mumbai tried to broker a solution by calling upon Edamaruku to apologise and on Catholic groups to drop their case in return.

But Edamaruku staunchly refuses to compromise on what he sees as his freedom of expression.

"I don't regret anything I said," he says. "I feel that I have full right to express my views... I am open for discussion and correction but I am not willing to accept anybody's bullying, change my views or submit to their pressure to apologise."

Some legal analysts think he could risk returning. The courts recognise that Section 295a is regularly misused, they point out. Writers, activists and others have been arrested and imprisoned even before charge - but most were released on bail.

But Edamaruku fears for his safety, pointing to the fate of his friend, anti-black-magic campaigner Narendra Dabholkar.

"Narendra Dabholkar… suggested that if I come to Mumbai he and his friends would be able to protect me. I was considering his proposal," Edamaruku recalls, referring to a conversation last summer.

But four days later he was murdered, a crime which many believe was linked to his campaign against magic.

So Edamaruku spends his time trudging the arresting, bleak forests of Helsinki, sometimes remembering his unconventional childhood in Kerala.

His father, born a Christian, grew up to become a rebel who was excommunicated. His mother gave birth to him in the pouring rain having fled her in-laws' Christian home because they pressured her to convert. But the family always managed to reconcile its differences. The bishops and Hindu priests among his relatives could be found sitting around one dinner table laughing at their own beliefs.

He insists he has no regrets.

"I would do it again. Because any miracle which has enormous clout at one moment, is simply gone once explained. It's like a bubble. You prick it and it is finished."

The statue still stands in that sleepy suburb of Mumbai, but it no longer drips.

from NewsMax, 2014-May-11:

Human Rights Lawyer Killed Over Pakistan's 'Blasphemy' Law

A prominent human rights lawyer in Pakistan was shot dead because he was defending a man accused of "blasphemy" against the Prophet Mohammed.

Rashid Rehman Khan, a coordinator for the Human Rights Commission of Pakistan (HRCP), was killed on Wednesday when two gunmen burst into his office in the city of Multan.

Pakistan's blasphemy laws call for the death penalty for anyone convicted of defiling "the sacred name of the Holy Prophet Mohammed."

Human rights activists say the laws have contributed to violence against Christians in Pakistan. Around half of those charged under the laws since 1988 have been non-Muslims, who comprise just 2 percent of the population.

Junaid Hafeez, a lecturer in English at Multan's Bahauddin Zakariya University, was charged with blasphemy in March after radical Islamists accused him of posting "blasphemous" comments on his Facebook page.

Hafeez struggled for months to find an attorney willing to represent him before Khan stepped in, CNS News reported.

In April, the HRCP issued a statement expressing concerns about Khan's safety after he was threatened by a group of men in a Multan courtroom who told him, "You will not come to court next time because you will not exist anymore."

The U.S. Commission on International Religious Freedom (USCIRF), an independent watchdog, said it is aware of 17 Pakistanis currently on death row for blasphemy, and 19 serving life terms in prison.

One notable case that has attracted international attention involves an illiterate Christian farm laborer known as Asia Bibi, the first woman to be sentenced to death for blasphemy.

In June 2009, Muslim women she was working with in the field made derogatory statements about her religion, according to the New York Post, and Bibi responded: "I believe in Jesus Christ, who died on the cross for the sins of mankind. What did your Prophet Muhammad ever do to save mankind?"

A mob later came to her house, where she lived with her husband and five children, and beat her. She was arrested and spent a year in jail before being charged.

In November 2010, a judge sentenced her to death by hanging.

A month after her conviction, a Muslim cleric announced a reward equivalent to $10,000 to anyone who killed her, the Express Tribune in Pakistan reported.

After the governor of Punjab state, Salman Taseer, took up Bibi's case, he was shot dead by a member of his bodyguard. Hundreds of lawyers offered the killer free representation and 500 Muslim scholars gave him an honorary title as "Lover of the Prophet."

Pakistan's federal minorities minister, a Christian who also supported Bibi, was also shot dead.

Khan's murder came a week after the USCIRF repeated a recommendation that the U.S. State Department designate Pakistan, which is a major recipient of American aid, as a "country of particular concern" under U.S. law, CNS disclosed.

But the Obama State Department has chosen not to do so.

from the Wall Street Journal, 2014-Apr-18, by Michael A. Carvin and Yaakov M. Roth:

Courts Should Stay Out of Political Fact-Checking
At least 15 states prohibit 'false' political statements in campaigns. That's the kind of judgment best left to voters.

The U.S. Supreme Court will hear oral arguments on April 22 in Susan B. Anthony List v. Driehaus, a case raising important constitutional questions about laws that purport to prohibit "false" political statements. At least 15 states, including Ohio—where this case originated—have such laws on the books, often carrying criminal penalties.

Some reporters have called this a lawsuit about the "right to lie." That is a tendentious and inaccurate depiction of what the case involves. The issue is not whether campaigns should lie. Of course they should not. Rather, the question is who should decide whether a political campaign advertisement is true—courts, wielding the power to impose fines or imprisonment, or the American people, wielding the power to elect or turf the competing candidate. The stakes for free speech and the democratic process are very high.

People often disagree about what is the "truth," particularly in the political context. While websites such as PolitiFact purport to fact-check claims by politicians, even it characterizes many statements as "half-true"—one-sided, perhaps, or simply open to reasonable interpretation. The problem with a law prohibiting "false" statements about candidates is that it threatens to chill free political discourse, by silencing speakers who believe they are speaking truth but are fearful of being subjected to burdensome, costly legal proceedings by their political adversaries.

Supreme Court Justices across the political spectrum are alert to the danger. In 2012 in United States v. Alvarez, the court threw out the conviction of a man who violated the federal Stolen Valor Act by falsely claiming to have been awarded the Medal of Honor. The court ruled that the First Amendment may protect even false statements in order to protect true statements.

As Justice Stephen Breyer wrote in a concurring opinion, "criminal prosecution [of falsity] is particularly dangerous" in the "political arena," because it can "inhibit the speaker from making true statements, thereby 'chilling' a kind of speech that lies at the First Amendment's heart."

Justice Samuel Alito agreed in his dissenting opinion, warning that "any attempt by the state to penalize purportedly false speech" in political contexts "would present a grave and unacceptable danger of suppressing truthful speech."

Susan B. Anthony List v. Driehaus presents a vivid example of this "chilling" phenomenon. The Susan B. Anthony List and the Coalition Opposed to Additional Spending and Taxes—the two advocacy organizations that are petitioners in this case—wanted to criticize Rep. Steve Driehaus (D., Ohio), for his 2010 vote in favor of the Affordable Care Act. The groups believe that the law includes taxpayer-funded abortion because (among other things) it subsidizes insurance plans that may include abortion coverage.

That is a perfectly reasonable characterization of the Affordable Care Act. But Mr. Driehaus argued that the law would not use federal dollars to subsidize abortion because insurers were required to "segregate" federal subsidy dollars from funds used to pay most abortion providers. Since money is fungible, that segregation rule was an accounting gimmick. Nonetheless, the Ohio Elections Commission, a panel of political appointees, voted along partisan lines that this criticism was probably "false" and thus could subject the groups to fines or even imprisonment under Ohio's false-statement law.

While the Susan B. Anthony List organization continued to press its message through radio ads, the two advocacy groups were unable to fully disseminate their message during the 2010 midterm campaign or subsequent elections. A billboard company, for example, refused to post their message after threats of legal action.

The relevant question is thus not whether there is a constitutional "right to lie," but rather whether the state may force citizens to defend the "truth" of their political critiques before bureaucrats who may well have been appointed by the politicians being criticized. Such a regime imposes substantial burdens on core political speech and therefore chills robust political debate.

The premise of the First Amendment is that the people should decide what is "true" and what is "false" in the political arena, and punish or reward political candidates at the ballot box. Political fact-checking is not a task for courts of law. Criminal penalties should not hang over the heads of speakers who disagree with their version of political "truth."

The Supreme Court will not decide this year whether Ohio's false-statement law violates the Constitution. Rather, the issue before the court now is whether groups like the Susan B. Anthony List and the Coalition Opposed to Additional Spending and Taxes are even entitled to bring a First Amendment challenge to the regulatory scheme that is chilling their speech, before they are actually charged or convicted.

A favorable decision by the Supreme Court will set the stage for a full consideration of the constitutional implications of state-sponsored "truth" commissions like Ohio's. Other states with laws like Ohio's include Colorado, Florida, Michigan and Wisconsin. That vital question should be considered directly, and decided in favor of free speech.

Messrs. Carvin and Roth are attorneys at Jones Day, and represent the petitioners in Susan B. Anthony List v. Driehaus.

from the Wall Street Journal, 2014-Apr-27, by L. Gordon Crovitz:

Governments Grab for the Web
Authoritarians accept Obama's invitation to take Internet control.

The Obama administration still doesn't seem to understand the whirlwind it reaped with its decision to give up stewardship of the open Internet. The first Internet governance conference since that surprise March announcement was held last week. The State Department issued a statement before the conference urging everyone to avoid the issue: "We would discourage meeting participants from debating the reach or limitations of state sovereignty in Internet policy."

But deciding who gets to govern the Internet was precisely why many attendees from 80 countries came to last week's NetMundial conference in Brazil.

The host country's leftist president, Dilma Rousseff, opened the conference by declaring: "The participation of governments should occur with equality so that no country has more weight than others." The Russian representative objected to "the control of one government," calling for the United Nations to decide "international norms and other standards on Internet governance." Last week Vladimir Putin called the Internet a "CIA project" and said "we must purposefully fight for our interests."

Authoritarian regimes want to control the Internet to preserve their power. "National sovereignty should rule Internet policy and governance," the Chinese representative said. "Each government should build its own infrastructure, undertake its own governance and enforce its own laws." The Saudi Arabian delegate said: "International public policy in regard to the Internet is the right of governments and that public policy should be developed by all governments on an equal footing."

Even nominal supporters of the existing multi-stakeholder model embraced the end of Internet self-governance. The delegate from India declared a greater role for the world's governments "an imperative that can't be ignored." Neelie Kroes of the European Commission said: "The Internet is now a global resource demanding global governance."

Philip Corwin, a U.S. lawyer who represents Internet companies, noted that 27 of the first 30 speakers at NetMundial were from governments or U.N. agencies—at a "meeting supposedly conceived to strengthen the private-sector-led multi-stakeholder, consensus-based policy-making model."

The conference produced a "consensus" document that asserts: "The respective roles and responsibilities of stakeholders should be interpreted in a flexible manner with reference to the issue under discussion." Carl Bildt, Sweden's foreign minister, offered this translation: "Governments are more equal than other stakeholders when it comes to policy."

The Internet ran smoothly for 25 years because the U.S. ensured that the Internet Corporation for Assigned Names and Numbers, known as Icann, operated without government interference. Authoritarian regimes can censor the Internet in their own countries and jail their bloggers, but until now had no way to get control over the root zone filenames and addresses of the global Internet. Handing over control could allow them to undermine the open Internet globally, including Americans' access to U.S. websites.

Some open-Internet advocacy groups realize it is light-handed U.S. control that has allowed what political theorists would call the "ordered liberty" of Internet self-governance. "Part of the strength of the Internet over the last couple of decades has been that the technical aspects have not had direct political or government interference," Thomas Hughes of the human-rights group Article 19 told the BBC.

Michael Daniel, special assistant to President Obama, declared without apparent irony that "from the U.S. perspective, NetMundial was a huge success." But it's no accomplishment when countries that have long sought power over the Internet embrace the U.S. invitation for them to seize it.

The NetMundial conference was politicized from the start. It was held in Brazil as a favor to President Rousseff after she objected when news broke that the National Security Agency had listened in on her communications. But Sweden's Mr. Bildt pointed out at the conference that "the issue of surveillance in no way relates to the issues of the governance of the net." He added: "I'm stressing this point because sometimes the debate on surveillance is used as an argument to change the governance of the net."

Under bipartisan pressure in Washington, the Obama administration was forced to backtrack during congressional hearings earlier this month. Officials testified they won't necessarily stick to their original September 2015 date for giving up protection of the Internet. Officials said the issue could be pushed to 2019 and thus decided by the next president. Many in Congress want an up-or-down vote on ending U.S. control of the Internet, knowing lawmakers would reject the idea.

President Obama should revoke the plan to abandon the open Internet. The ugly spectacle of countries jockeying to control the Internet is a timely reminder of why the U.S. should never give them the chance.

from the Wall Street Journal, 2014-Mar-18, by L. Gordon Crovitz:

America's Internet Surrender
By unilaterally retreating from online oversight, the White House pleased regimes that want to control the Web.

The Internet is often described as a miracle of self-regulation, which is almost true. The exception is that the United States government has had ultimate control from the beginning. Washington has used this oversight only to ensure that the Internet runs efficiently and openly, without political pressure from any country.

This was the happy state of affairs until last Friday, when the Obama administration made the surprise announcement it will relinquish its oversight of the Internet Corporation for Assigned Names and Numbers, or Icann, which assigns and maintains domain names and Web addresses for the Internet. Russia, China and other authoritarian governments have already been working to redesign the Internet more to their liking, and now they will no doubt leap to fill the power vacuum caused by America's unilateral retreat.

Why would the U.S. put the open Internet at risk by ceding control over Icann? Administration officials deny that the move is a sop to critics of the National Security Agency's global surveillance. But many foreign leaders have invoked the Edward Snowden leaks as reason to remove U.S. control—even though surveillance is an entirely separate topic from Internet governance.

According to the administration's announcement, the Commerce Department will not renew its agreement with Icann, which dates to 1998. This means, effective next year, the U.S. will no longer oversee the "root zone file," which contains all names and addresses for websites world-wide. If authoritarian regimes in Russia, China and elsewhere get their way, domains could be banned and new ones not approved for meddlesome groups such as Ukrainian-independence organizations or Tibetan human-rights activists.

Until late last week, other countries knew that Washington would use its control over Icann to block any such censorship. The U.S. has protected engineers and other nongovernment stakeholders so that they can operate an open Internet. Authoritarian regimes from Moscow to Damascus have cut off their own citizens' Internet access, but the regimes have been unable to undermine general access to the Internet, where no one needs any government's permission to launch a website. The Obama administration has now endangered that hallmark of Internet freedom.

The U.S. role in protecting the open Internet is similar to its role enforcing freedom of the seas. The U.S. has used its power over the Internet exclusively to protect the interconnected networks from being closed off, just as the U.S. Navy protects sea lanes. Imagine the alarm if America suddenly announced that it would no longer patrol the world's oceans.

The Obama administration's move could become a political issue in the U.S. as people realize the risks to the Internet. And Congress may have the ability to force the White House to drop its plan: The general counsel of the Commerce Department opined in 2000 that because there were no imminent plans to transfer the Icann contract, "we have not devoted the possibly substantial staff resources that would be necessary to develop a legal opinion as to whether legislation would be necessary to do so."

Until recently, Icann's biggest controversy was its business practice of creating many new domains beyond the familiar .com and .org to boost its revenues. Internet guru Esther Dyson, the founding chairwoman of Icann (1998-2000), has objected to the imposition of these unnecessary costs on businesses and individuals. That concern pales beside the new worries raised by the prospect of Icann leaving Washington's capable hands. "In the end," Ms. Dyson told me in an interview this week, "I'd rather pay a spurious tax to people who want my money than see [Icann] controlled by entities who want my silence."

Icann has politicized itself in the past yearby lobbying to end U.S. oversight, using the Snowden leaks as a lever. The Icann chief executive, Fadi Chehadé, last fall called for a global Internet conference in April to be hosted by Brazilian President Dilma Rousseff. Around that time, Ms. Rousseff, who garnered headlines by canceling a White House state dinner with President Obama, reportedly to protest NSA surveillance of her and her countrymen, also denounced U.S. spying in a speech at the United Nations. Mr. Chehadé said of the speech: "She spoke for all of us that day."

The Obama administration has played into the hands of authoritarian regimes. In 2011, Vladimir Putin —who, as Russia took over Crimea in recent days, shut down many online critics and independent media—set a goal of "international control over the Internet."

In the past few years, Russia and China have used a U.N. agency called the International Telecommunication Union to challenge the open Internet. They have lobbied for the ITU to replace Washington as the Icann overseer. They want the ITU to outlaw anonymity on the Web (to make identifying dissidents easier) and to add a fee charged to providers when people gain access to the Web "internationally"—in effect, a tax on U.S.-based sites such as Google and Facebook. The unspoken aim is to discourage global Internet companies from giving everyone equal access.

The Obama administration was caught flat-footed at an ITU conference in 2012 stage-managed by authoritarian governments. Google organized an online campaign against the ITU, getting three million people to sign a petition saying that "a free and open world depends on a free and open web." Former Obama aide Andrew McLaughlin proposed abolishing the ITU, calling it "the chosen vehicle for regimes for whom the free and open Internet is seen as an existential threat." Congress unanimously opposed any U.N. control over the Internet.

But it was too late: By a vote of 89-55, countries in the ITU approved a new treaty granting authority to governments to close off their citizens' access to the global Internet. This treaty, which goes into effect next year, legitimizes censorship of the Web and the blocking of social media. In effect, a digital Iron Curtain will be imposed, dividing the 425,000 global routes of the Internet into less technically resilient pieces.

The ITU is now a lead candidate to replace the U.S. in overseeing Icann. The Commerce Department says it doesn't want to transfer responsibility to the ITU or other governments, but has suggested no alternative. Icann's CEO, Mr. Chehadé, told reporters after the Obama administration's announcement that U.S. officials are "not saying that they'd exclude governments—governments are welcome, all governments are welcome."

Ms. Dyson calls U.N. oversight a "fate worse than death" for the Internet.

The alternative to control over the Internet by the U.S. is not the elimination of any government involvement. It is, rather, the involvement of many other governments, some authoritarian, at the expense of the U.S. Unless the White House plan is reversed, Washington will hand the future of the Web to the majority of countries in the world already on record hoping to close the open Internet.

Mr. Crovitz, a former publisher of The Wall Street Journal, writes the weekly Information Age column.

from the Wall Street Journal, 2014-Mar-23, by L. Gordon Crovitz:

How to Save the Internet
Congress can override the president's decision to hand over control of Web addresses and domains to an international body.

It's been a good month for Vladimir Putin : He got Crimea and the Internet.

Gallows humor is not the only possible response to the Obama administration plan to give up U.S. control of the Internet to a still-to-be-determined collection of governments and international groups. Congress should instruct President Obama that if the Internet ain't broke, don't fix it.

Authoritarian governments led by Russia and China long ago found ways to block access to the Internet for their citizens. Under the new Obama plan, these regimes could also block access to the Internet for Americans.

There is recent precedent: Authoritarian governments tried to block new Internet top-level domains beyond the familiar .com and .org and .net. Saudi Arabia sought to veto the addition of .gay as being "offensive." It also tried to block .bible, .islam and .wine. Under U.S. control, the Saudis were denied their wishes. With some new post-U.S. system of governance, will .gay websites be removed from the Internet?

The plan announced on March 14 would have the U.S. give up control of the "root zone file" of the Internet and the Internet Corporation for Assigned Names and Numbers, or Icann. This root of the Internet stores all the names and addresses for websites world-wide, while Icann controls Web addresses and domains. The U.S. has used this control to ensure that websites operate without political interference from any country and that anyone can start a website, organize on Facebook or post on Twitter without asking permission.

It's easy to imagine a new Internet oversight body operating like the United Nations, with repressive governments taking turns silencing critics. China could get its wish to remove from the Internet as an affront to its sovereignty. Russia could force Twitter to remove posts by Ukrainian-Americans criticizing Vladimir Putin.

The plan announced by the Commerce Department set off enough alarm bells that officials felt obliged last week to issue a follow-up news release denying the U.S. is "abandoning the Internet" and pledging "nothing could be further from the truth." But it still has no plan to safeguard the Web against authoritarian governments. Nor is there any reassurance in a letter to the editor in Monday's Wall Street Journal from the head of Icann, Fadi Chehade. He says the Internet's "billions of diverse stakeholders all deserve a voice in its governance," and he remains on record saying that "all governments are welcome" in whatever the new governance process turns out to be.

Hearings on U.S. protection for the Internet were quickly called for the House starting in early April. One topic should be whether the executive branch of government has the unilateral authority to transfer control over Internet addresses and root zone management of domains.

Congress doubted that the president could do this on his own when the issue was considered in 2000. The General Accounting Office, now called the Government Accountability Office, concluded it was "uncertain" whether Congress has to pass a law. The Property Clause of the Constitution says Congress must pass legislation to effect a transfer of government property. Arguably the president could no more transfer the valuable control over the naming and domains of the Internet than he could give Alaska back to Russia.

Contacted by this columnist last week, a spokesman for the Commerce Department's National Telecommunications and Information Administration said the agency reviewed this legal issue and concluded the administration can act without Congress but refused to share a copy of the legal analysis. Congress should ask for a copy and do its own analysis.

Congress also could tell the Commerce Department not to carry out its plan. In 2012, both the Senate and House passed a unanimous resolution to keep the Internet "free from government control." That happened as the Obama administration was being outfoxed by Russia and China, which hijacked the U.N.'s International Telecommunication Union to legitimize control over the Internet in their countries. Protecting the Internet may be the most bipartisan issue in Congress.

Meanwhile, at a meeting over the weekend in Singapore to plan a post-U.S. system, sources say Icann's Mr. Chehade upset the "multistakeholders" in attendance by presenting a PowerPoint slide dictating a new structure that minimizes accountability for Icann. After pushback, Mr. Chehade withdrew his slide, but his intentions are clear.

The alternative to continued U.S. authority is control by an international body dominated by authoritarian regimes. In a law review article about Icann in 2000, "Wrong Turn in Cyberspace," Michael Froomkin wrote that "It is hard to see how an undemocratic solution based on the international system in which a tyranny's vote is as valid as a democracy's vote would be a material improvement on Icann itself."

Congress should quickly come to the same conclusion and act to save the Internet.

from the Wall Street Journal, 2014-Apr-1, by Karl Borden:

Get Ready for the Internet Robber Barons
If the United Nations ends up in charge, it would have a chokehold on the global economy.

Do you remember the original robber barons? No, they were not the great American industrialists/philanthropists of the late 19th century—men who were unfairly tagged with the moniker. I mean the originals: the German barons of the 13th century who controlled the Rhine River, which was the primary channel of commerce and communications for central Europe. Their castles overlooked the river, and they exacted tribute from every passing ship.

The barons ignored customary "just" tolls, charged whatever the commerce would bear, exacted payment "in kind" from cargoes, and exercised power by controlling strategic territory. These Raubritter provided no real service other than the extortion implicit in allowing safe passage past their own weapons.

The world may see history repeat itself with the Internet, and the unintended consequences are likely to be profound. The United Nations has long craved the power to tax, and the Obama administration's decision to give up U.S. oversight of the domain-name system and the Internet Corporation for Assigned Names and Numbers, or Icann, may end up giving the U.N. that power.

As far back as 2001, a U.N. report, "Financing the Global Sharing Economy," proposed that the U.N. be given the authority to levy a tax on "speculative currency transactions" with a projected revenue stream north of $150 billion. Should the U.N. get control of the Internet and the global commerce it carries, that figure will be chump change.

There are political and strategic issues—involving security, privacy and censorship—associated with international control of the Internet. Should the U.N. end up in charge, it would have a chokehold on the global economy and a vast stream of revenue that would make it even more unaccountable than it already is.

All this would start modestly, of course, and it would never be called a tax. Instead, it might begin with a small fee associated with access to an obscure technical mechanism, or a small transaction charge for certain types of traffic.

But if history is any guide, the run-up to big dollars will be stunningly rapid. One need only reference the increases in U.S. federal revenues and expenditures after passage in 1913 of the 16th Amendment establishing the federal income tax. The top 1913 rate of 7% more than doubled by 1916 to 15%, then rocketed to 67% in 1917 and 77% in 1918. It always starts small.

Power follows the money, and bureaucratic appetites are voracious. Who will there be to stop the process, after all? Where is the elected legislative body that will answer to the world's population that finally pays these "fees"?

Among the many disingenuous justifications being touted for this colossal strategic mistake is that no "government control" will be imposed on the Internet. But democratic "government control" is exactly what will be needed, and it will be absent. Constitutional governments are the means by which citizens delegate the job of protecting their individual rights, and allow them to retain at least some ability to avoid tyranny. With constitutional government it becomes at least possible for citizens to say "No—No more!" No such checks are in place for a global bureaucracy that will have the power to reach into every pocket on earth.

Can anyone doubt that within just the next few decades the Internet will be the essential infrastructure for participation in even the smallest segment of the global economy? The revenue potential associated with controlling the "rivers" of the 21st-century-and-beyond will be enormous and will finance an ever-expanding international bureaucracy, likely under the aegis of the United Nations.

The robber barons of the 13th century were finally stopped only when the Rhine League, consisting of merchants and aristocrats, banded together to tear down their castles and hang them. The robber barons of the 21st century may be much more difficult to deal with.

Mr. Borden is a professor of financial economics at the University of Nebraska/Kearney.

from the Wall Street Journal, 2014-May-2, by Joe Parkinson, Sam Schechner and Emre Peker:

Turkey's Erdogan: One of the World's Most Determined Internet Censors
Some Worry Prime Minister's Tactics Could Become a Template for Other Countries

ISTANBUL—Turkish Prime Minister Recep Tayyip Erdogan rode around Google Inc. headquarters last spring in the company's self-driving car, tried on Google Glass eyewear and vowed to keep digitizing the economy in the country he has ruled since 2003.

Since then, the 60-year-old Mr. Erdogan has turned his democratically elected government into one of the world's most determined Internet censors.

His political party passed laws letting him shut down websites without a court order and collect Web browsing data on individuals. He put a veteran spy in charge of Turkey's telecommunications regulator.

He also has blocked dozens of websites. Twitter Inc. was banned for two weeks in late March and early April, and Google's YouTube video-sharing service has been dark since March 27. An opposition newspaper columnist and academic was sentenced Tuesday to 10 months in jail for a tweet that insulted the prime minister, while 29 defendants are on trial on allegations that include using tweets to organize protests and foment unrest last year.

"Let people say whatever they want, we will take care of this ourselves," Mr. Erdogan said after blocking Twitter.

Tensions were high Thursday as protesters clashed with police trying to enforce a ban on the traditional march to Istanbul's Taksim Square, long symbolic as a place of dissent on May Day. Some critics of Mr. Erdogan say privately that they feel more nervous about making antigovernment statements. In cafes and bars here, people compare technical workarounds aimed at dodging the government's website blockages and surveillance efforts.

Mr. Erdogan's shake-up, a rapid-fire response to a power struggle with political enemies, has left Internet companies and government officials from Washington to Brussels worried that Turkey could become a template for other countries where leaders want to rein in the Internet without cracking down with as much force as China or Iran.

Iran is building what it calls a "halal" intranet to replace the Internet, and Chinese officials have imposed a censoring and filtering system known as the Great Firewall. In Turkey, Mr. Erdogan wants unfettered Internet access that can be blocked swiftly if Turkey's intelligence agency spots something it believes is a threat.

"This is a test case for a new authoritarian model of Internet censorship," says Zeynep Tufekci, a Turkish national who is an Internet specialist at the University of North Carolina at Chapel Hill.

Turkey's moves appear to differ from a nonbinding statement of "important values" agreed to last week by dozens of governments and groups, including Turkey, at a meeting on Internet governance. "Everyone should have the right to access, share, create and distribute information on the Internet," they concluded.

Mr. Erdogan backed down from the Twitter ban after it was overturned by Turkey's top court. But officials now are demanding that Twitter move faster to implement orders to block the accounts of specific users.

Twitter has said it is in an "ongoing dialogue" with Turkish authorities, while Google has filed appeals in three courts to end the YouTube ban. A Google spokesman said in an emailed statement: "It is obviously very disappointing to people and businesses in Turkey that YouTube is still blocked." In January, YouTube and Twitter were the third- and sixth-most-popular websites in Turkey, according to trade group IAB Turkiye.

Some of the world's most visible Internet companies are grappling with how far they are willing to go to accommodate Mr. Erdogan's government in return for continued access to the country. The dilemma is aggravated because Turkey is emblematic of the emerging markets where tech companies are looking for a big growth spurt.

Last year, online-advertising spending in Turkey reached $615 million, about 1.4% of the U.S. total, but grew more than a third faster in local-currency terms, according to data from IAB Turkiye and Interactive Advertising Bureau.

Since the crackdown, the number of formal requests to Google and Twitter to remove content objected to by government officials has surged, pressuring the companies to comply or risk recurring blackouts.

In addition, the same law that gave Mr. Erdogan the power to shut down websites allows Internet service providers in Turkey to block individual Web addresses even if tech companies refuse.

Turkey's parliament, controlled by the prime minister's Justice and Development Party, passed April 17 a separate law letting the Turkish spy agency demand without a court order any data deemed threatening to national security. That could include individual Web browsing activity, email and text messages, and company sales records. It isn't clear if officials are using those powers.

Internet service providers such as Turk Telekomunikasyon AS, in which the government owns a 30% stake, have begun using deep-packet inspection technology, which examines a computer network's traffic and can filter posts or help identify their authors, people familiar with the matter say. The technology, supplied at least partly by Palo Alto Networks Inc. of Santa Clara, Calif., mirrors aspects of what China has used to build its Great Firewall.

Mr. Erdogan's office and Turkey's telecom ministry and regulator didn't respond to phone calls or emailed questions seeking comment about the changes. Turk Telekom says in a statement that it has complied with Turkish laws. A Palo Alto spokeswoman couldn't be reached.

Turkish government officials have said repeatedly that the changes are designed to protect individual privacy and family values. Mr. Erdogan has shown no signs of backing down, especially after his party trounced the main opposition Republican People's Party in local elections in March.

Some technology investors and startup firms say Mr. Erdogan's restrictions could cripple a nascent boom. "I used to discuss Turkey's Internet market and local firms with four to six foreign investors a week," says Arda Kutsal, a former technology investment adviser who runs a tech blog called Webrazzi.

Those phone calls have stopped, he says.

Social-media companies like Twitter and YouTube "have nothing to do with freedom," said Mr. Erdogan, who is weighing a run for president and has said he would try to make the largely ceremonial post more powerful. August's election will be the first in which Turkish voters directly choose their president.

Turkey is the latest example of the standoff between tech superpowers and governments in rising economies from Russia to Indonesia where leaders are trying to assert control over the Internet.

On Monday, Russia's parliament passed new restrictions that would force many bloggers to reveal their identities and not disseminate extremist information. President Vladimir Putin is expected to sign the new laws soon.

Technology firms have asserted wide leeway to remove content from their sites but usually do so only if it violates their legal "terms of service." Those terms include copyright violations and valid legal orders.

"When we suspend or withhold accounts, we do [so] in response to user complaints or court orders, not in response to government requests," said Colin Crowell, Twitter's vice president of global public policy.

If websites or tweets violate a local law or legal order, Twitter and Google often block the content—but sometimes allow users to bypass the ban with minor tweaks to their website settings. The cat-and-mouse strategy is "part of the DNA of Silicon Valley," says a person familiar with the matter.

Officials have said Turkey's sovereignty and national interest trump the companies' rules, justifying the new laws and website blockages.

Several cabinet ministers have accused Twitter of tax evasion because it has no office in the country. Officials have demanded that the San Francisco firm open an office in Turkey. Doing so would make Twitter vulnerable to the new law that lets the spy agency demand information without a court order.

In an effort to ease tensions, Mr. Crowell and other senior Twitter staff members met in mid-April with Turkish officials. Twitter refused to open a local office but agreed to implement court orders quickly.

"Our decisions to open offices around the world are based upon whether the underlying economic climate justifies it," Mr. Crowell said. Since the meeting, Twitter has implemented at least a dozen Turkish court orders to withhold accounts or block tweets.

In contrast, Mr. Erdogan's visit last year to Silicon Valley was buoyed by a budding spirit of compromise and mutual opportunity. He visited Apple Inc., Google and Microsoft Corp.

In 2011, the Turkish leader courted Microsoft, Hewlett-Packard Co. and other tech companies to join a classroom digitization project named Fatih—or "conqueror," after an Ottoman sultan. Government officials tried to censor what could be viewed on the tablets, but students found a way to breach the device's firewalls to play games.

In late 2012, Google launched a local version of YouTube, a move that allowed the company to block access to some videos within Turkey while making them available elsewhere. Turkey dropped its demand that YouTube block globally all videos critical of the Turkish republic's founder, Mustafa Kemal Atatürk.

Mr. Erdogan's position began to shift dramatically less than a month after coming home from Silicon Valley. Tweets and other social media helped fuel antigovernment protests across Turkey that left seven people dead. The prime minister called Twitter a "menace to society," and his political party set out to fight critics online with a 6,000-person team of loyalists.

Last December, leaks of wiretapped recordings posted anonymously on Twitter and YouTube implicated dozens of Mr. Erdogan's closest allies and family members in allegedly corrupt practices.

He denied the claims, said the tapes were doctored and accused Fethullah Gulen, a U.S.-based Turkish imam with millions of followers, of masterminding the mess. The imam says he isn't responsible for the recordings

Despite criticism from Western allies and fistfights in Turkey's parliament, lawmakers approved Mr. Erdogan's move to empower the government to shut down websites without court orders. "The law was drafted hastily and with no consultation," says Gokhan Candogan, an executive at the Ankara Bar Association. The group has filed an appeal with Turkey's constitutional court.

The shake-up spread to Turkey's telecom regulator, where five top managers were replaced. "Authorities walked into their offices and said: 'Leave now. Don't even bother taking your jackets,' " says one person familiar with the incident. The agency's new boss: Ahmet Cemaleddin Celik, a longtime spy at Turkey's intelligence service.

Under Mr. Celik, the number of requests to Internet companies to remove content has soared, including more than 15 to Twitter so far this year, up from two in the last half of 2013.

On March 20, Mr. Erdogan vowed to "eradicate" Twitter. Hours later, the telecom regulator began bouncing queries for the company's website to an error message. Top Internet service providers in Turkey got phone calls from the agency with firm instructions: "Just block it now."

At Twitter headquarters, employees saw the hashtag #Twitterisblockedinturkey, an alert from Turkish users, rocket to the top of the website's hottest topics. Top officials gathered in a "virtual war room" to discuss Twitter's options.

The company decided to tweet instructions to Turkish users on how to circumvent the ban using text messages. It had done the same thing in Venezuela earlier this year.

Internet users in Turkey worked hard to evade Mr. Erdogan's crackdown. Graffiti painted on walls in Istanbul and other Turkish cities steered people to "open DNS" addresses run by Google. Some users hid messages by routing them through encrypted networks outside Turkey or software that connected through other users' computers.

Turkish President Abdullah Gul, a longtime ally of Mr. Erdogan, tweeted an objection to the prime minister's moves: "The wholesale shuttering of social media platforms cannot be approved."

Twitter tried to both resist and acquiesce to Turkey's demands. The company filed a court appeal to bring the site back to life, yet blocked an antigovernment account that used the handle @oyyokhirsiza—or "no vote for the thief." Twitter officials also left a loophole that allowed Turkish users to see the tweets by changing their location settings to a different country.

Turkish authorities blocked YouTube after demanding that the company remove videos that claimed to include a recording of Turkey's foreign minister and spy chief discussing the viability of faking an attack by Syrian terrorists to justify armed intervention inside Syria.

"We blocked YouTube to protect our national security," Mr. Erdogan said bluntly. He said the leak was "villainous and cowardly" but hasn't disputed the authenticity of the recording.

The shutdown came before lawyers at Google, based in Mountain View, Calif., had fully reviewed the demand. Within 24 hours, Google agreed to halt the videos in Turkey.

Moves by computer users to work around the bans led the Turkish government to tighten its grip even more. As the local elections loomed, Turk Telekom began impersonating servers owned by Google and other U.S. companies, according to Renesys Corp., a Manchester, N.H., company that monitors Internet performance. That let the telecom company redirect or block access to sites and monitor browsing activity, lawyers and Internet activists say.

Google criticized Turkey on the company's security blog. Turkish officials haven't publicly admitted or denied the practice, widely referred to as hijacking.

At the same time, Turkish officials prodded Google to make faster decisions about government requests to block objectionable content, people familiar with the matter say. While Google had agreed to block some of the hundreds of videos the government wanted to remove, the company resisted a push to shift more decision-making authority to employees in Turkey.

Four days after the local-election victory by Mr. Erdogan's party, the highest court in Turkey overturned the Twitter ban as "illegal and arbitrary." He complied but has said he doesn't respect the ruling.

In Istanbul, graffiti with instructions on how to sidestep Internet censorship has been covered in gray paint. When the graffiti reappears, so do government authorities, armed with more gray paint.

from the Wall Street Journal, 2014-Feb-12, by James Taranto:

The first rule: You do not talk about perverse incentives.

You've no doubt heard about the latest ObamaCare "delay"--the announcement that the Internal Revenue Service will waive fines on certain employers that do not provide workers with medical insurance. That "employer mandate," which by law took effect this year, had already been put off until 2015. Now it won't be enforced until 2016 for companies with between 50 and 99 employees, and those with 100 or more will escape fines if they offer insurance to 70% of their employees rather than the 95% stipulated in the law.

Because most big employers already cover workers, "the employer mandate is not an especially important policy lever in the Affordable Care Act," shrugs the Washington Post's Sarah Kliff. The "lever" metaphor--something that moves--seems precisely chosen. The employer mandate's main intent would seem to be to prevent companies from dropping coverage, not to induce them to start. It's meant as a constraint, not a lever. Anyway, Kliff concludes that while the new delay "can matter politically," in terms of its effect on the insurance market, it "will likely amount to a relatively small, if non-existent, change." We think she means "if existent."

One problem with the employer mandate is that it creates perverse incentives. Businesses with fewer than 50 employees aren't subject to the mandate, which means that for a company on the cusp, the marginal cost of hiring the next employee could run into the tens of thousands of dollars--or, for one just above the threshold, the marginal savings from firing a worker can be considerable. Employers can also reduce their liability by replacing full-time workers with part-time ones. The exact workings of the mandate are complicated; the National Federation of Independent Business, appellant in the 2012 Supreme Court case that upheld most of ObamaCare, charts some scenarios.

By adding a new threshold--100 workers as well as 50--the new delay creates an additional perverse incentive. At least until 2016, a company that doesn't offer insurance is better off not hiring the 100th worker--or firing him. But as Fox News Channel's Chris Stirewalt points out, the regulations for the new delay attempt to forestall the latter possibility:

Obama officials made clear in a press briefing that firms would not be allowed to lay off workers to get into the preferred class of those businesses with 50 to 99 employees. How will the feds know what employers were thinking when hiring and firing? Simple. Firms will be required to certify to the IRS--under penalty of perjury--that ObamaCare was not a motivating factor in their staffing decisions. To avoid ObamaCare costs you must swear that you are not trying to avoid ObamaCare costs. You can duck the law, but only if you promise not to say so.

The specific regulation is on page 124 of this PDF from the Federal Register. It stipulates that the full exemption for the mandate applies if "the employer does not reduce the size of its workforce or the overall hours of service of its employees in order to satisfy the workforce size condition"--that is, if it doesn't fire workers to get below 100:

A reduction in workforce size or overall hours of service for bona fide business reasons will not be considered to have been made in order to satisfy the workforce size condition. For example, reductions of workforce size or overall hours of service because of business activity such as the sale of a division, changes in the economic marketplace in which the employer operates, terminations of employment for poor performance, or other similar changes unrelated to eligibility for the transition relief provided in this section XV.D.6 are for bona fide business reasons and will not affect eligibility for that transition relief.

Legal or regulatory changes that affect the cost of labor would fall into the category of "changes in the economic marketplace in which the employer operates." So it would be more precise to say that employers may cut back employment for any bona fide business reason except to take advantage of the ObamaCare mandate delay.

The administration thus acknowledges that its policy creates a perverse incentive and orders employers not to act upon it. But that can't be enforced. A business will take into account all relevant factors, including the additional costs imposed by ObamaCare, in making decisions about hiring and firing, including whether to terminate employees for poor performance, sell a division, etc. In practice, the new rule is a ban--under threat of criminal liability--on acknowledging the perverse incentive. Call it OmertèCare, a government-imposed conspiracy of silence.

from the Wall Street Journal, 2014-Mar-11, by James Taranto:

Speak of the Devil
The silly, sinister campaign against the Koch brothers.

"New Democratic Strategy Goes After Koch Brothers," announced a New York Times headline last week. Here's how the story began:

Charles G. and David H. Koch, the billionaire brothers who are perhaps the best-known patrons of conservative Republican politics, are bespectacled and in their 70s. They look genial enough.
But Democrats are embarking on a broad effort that aims to unmask the press-shy siblings and portray them, instead, as a pair of villains bent on wrecking progressive politics.
On Thursday, the Democratic Senatorial Campaign Committee is starting a digital campaign that will use Internet ads and videos, as well as social media, to tie Republican Senate candidates to the policies and actions of the Koch brothers. Its slogan: "The G.O.P. is addicted to Koch" (pronounced coke).

There are some clues here that this campaign isn't aimed at a mass audience. The Kochs are so obscure, even to Times readers, that the reporter felt obliged to identify them right off the bat, necessitating a yawner of a lead paragraph. They're also sufficiently unknown that the pun on their name needs a pronunciation guide, which deprives the joke of all its sting.

This is a play to the base--and are they ever base. Back in February 2011 we noted an anti-Koch rally in California where various "progressives" were captured on video calling for the assassination of Supreme Court justices who voted to uphold the right to free speech. Establishment Democrats like Senate Majority Leader Harry Reid haven't gone that far, but they are joining in the demonization of private citizens, following Saul Alinsky's 13th rule: "Pick the target, freeze it, personalize it, and polarize it. "

The Weekly Standard's Daniel Halper scooped the Times by more than a week when he noted this Reid floor speech Feb. 26;

"Despite all that good news, there's plenty of horror stories being told. All of them are untrue, but they're being told all over America," said Reid.
"The leukemia patient whose insurance policy was canceled [and] could die without her medication, Mr. President, that's an ad being paid for by two billionaire brothers. It's absolutely false. Or the woman whose insurance policy went up $700 a month--ads paid for around America by the multibillionaire Koch brothers, and the ad is false.
"We heard about the evils of Obamacare, about the lives it's ruining in Republicans' stump speeches and in ads paid for by oil magnates, the Koch brothers. But in those tales, turned out to be just that: tales, stories made up from whole cloth, lies distorted by the Republicans to grab headlines or make political advertisements.
"Mr. President, these two brothers are trying to buy America. They not only funnel money through their Americans for Prosperity, they funnel money into all kinds of organizations to do the same thing that they're doing. They're trying to buy America. I don't believe America is for sale. We'll see, Mr. President."

We're torn between finding this effort sinister and ridiculous, and the truth is it's both. Alinskyite tactics were meant to be applied against the powerful by the powerless. When applied by powerful men, like Reid, who are supposed to be public servants, they take on the character of tyranny rather than rebellion.

No doubt the Kochs can take it, but note that his attack aimed not only at them but also at ordinary Americans who have been victimized by ObamaCare and spoken out about it. The aim is clearly to intimidate others and thereby suppress information about ObamaCare's failures.

On the ridiculous side, the Washington Free Beacon reports on an anti-Koch protest over the weekend staged by a pair of unions, the New York State Nurses Association and the Service Employees International Union Local 1199, along with the state chapter of the NAACP. They were protesting a new hospital wing.

Yes, you read that right. They objected to "the soon-to-be-built David H. Koch Center at New York-Presbyterian Hospital," for which the eponymous donor gave $100 million:

The donation was the largest in the hospital's history, and will presumably create a fair number of new nursing jobs. So why are the usual suspects up in arms? Well, the agitators were apparently agitated because this particular hospital didn't need all the money. Oh yeah, and because it was International Women's Day, and the Kochs are the primary funders of the "war on women's reproductive rights . . . and many other issues of concern to American women." They're also behind "the effort to defeat and repeal healthcare to all Americans," whatever that means.

It means that they oppose ObamaCare, of course. And you can't fault Obama partisans for defending ObamaCare, except on the merits. But the people who staged this protest merely called attention to David Koch's nonpolitical philanthropic efforts, with which no reasonable person can find fault, and in turn to their own unreasoning hatred.

Also ridiculous, if duller, is an editorial in today's New York Times titled "The Democrats Stand Up to the Kochs":

Democrats are starting to fight back, deciding they should at least try to counter the tycoons with some low-cost speech of their own. Democrats may never have the same resources at their disposal--no party should--but they can use their political pulpits to stand up for a few basic principles, including the importance of widespread health-insurance coverage, environmental protection and safety-net programs.
The leader of this effort has been Senator Harry Reid, the majority leader, who has delivered a series of blistering attacks against the Kochs and their ads on the Senate floor over the last few weeks. In addition, the Democratic Senatorial Campaign Committee has set up a website,, to remind voters of just what the Kochs stand for, and why they raised $407 million in the 2012 election. And individual candidates are making sure voters know who is paying for the ad blitz.

The Democrats are not quite as outmatched as all that. Along with the "political pulpits" afforded by the White House and the Senate majority, they also have a $2.5 billion corporation that is happy to disseminate their propaganda free of charge.

That same company won a landmark court case half a century ago that expanded corporate free-speech rights. As the Times recounted in a Sunday editorial:

How is society to preserve open criticism of the government, while also protecting individuals from libel, or the publication of damaging false statements?
Fifty years ago this Sunday, the Supreme Court answered that question with a landmark decision in New York Times [Co.] v. Sullivan. The ruling instantly changed libel law in the United States, and it still represents the clearest and most forceful defense of press freedom in American history.
The case involved an ad that had appeared in The Times in 1960.

The Times generally opposes free speech in political ads, a position this column deplores. But Times v. Sullivan was a great victory, and we salute the company for having done the right thing. If we didn't, we'd be as silly as the people protesting the David H. Koch Center at New York-Presbyterian Hospital.

from the Huffington Post, 2014-Feb-12, by Jack Mirkinson:

US Plummets In Press Freedom Rankings

The United States plunged 14 places in the annual Press Freedom Index released by Reporters Without Borders on Wednesday. The group said it was "one of the most significant declines" in press freedom it had tracked during 2013.

The US in now ranked 46th on the RWB list, in between Romania and Haiti. It was ranked 32nd in the 2013 index. (Finland tops the entire list.)

The press freedom group was blunt in its explanation. It cited increased efforts to track down whistleblowers and the sources of leaks, mentioning Chelsea Manning and Edward Snowden in particular. It also condemned the Justice Department's surveillance of reporters, and the continued leak battle facing New York Times journalist James Risen.

RWB also criticized the United Kingdom for what it said were its "disgraceful" threats against the Guardian newspaper, and for its detention of Glenn Greenwald's partner, David Miranda.

"Both the US and UK authorities seem obsessed with hunting down whistleblowers instead of adopting legislation to rein in abusive surveillance practices that negate privacy, a democratic value cherished in both countries," the group wrote.

The decision by RWB to rank the UK 13 places higher than the US, at 33, drew a great deal of skepticism from many in the media:

Ryan Gallagher ✔ @rj_gallagher

UK being 13 above US in press freedom index isn't reality. US has far greater protections b/c of 1st amendment. …
3:11 AM - 12 Feb 2014
17 Retweets 6 favorites

The US also came under fire from the Committee to Protect Journalists, which, in its annual Attacks on the Press report, said that press freedom had "dramatically deteriorated" in 2013.

The US was 20th on the list just a few years ago. It fell 27 places in the 2012 index thanks to the harassment and arrest of journalists covering Occupy Wall Street, before climbing 15 places in 2013.

Read the full RWB report here.

from the Wall Street Journal, 2014-Jan-16, by Kimberley A. Strassel:

IRS Targeting and 2014
Democrats are working hard to make sure conservative groups are silenced in the 2014 midterms.

President Obama and Democrats have been at great pains to insist they knew nothing about IRS targeting of conservative 501(c)(4) nonprofits before the 2012 election. They've been at even greater pains this week to ensure that the same conservative groups are silenced in the 2014 midterms.

That's the big, dirty secret of the omnibus negotiations. As one of the only bills destined to pass this year, the omnibus was—behind the scenes—a flurry of horse trading. One of the biggest fights was over GOP efforts to include language to stop the IRS from instituting a new round of 501(c)(4) targeting. The White House is so counting on the tax agency to muzzle its political opponents that it willingly sacrificed any manner of its own priorities to keep the muzzle in place.

And now back to our previously scheduled outrage over the Chris Christie administration's abuse of traffic cones on the George Washington Bridge.

The fight was sparked by a new rule that the Treasury Department and the IRS introduced during the hush of Thanksgiving recess, ostensibly to "improve" the law governing nonprofits. What the rule in fact does is recategorize as "political" all manner of educational activities that 501(c)(4) social-welfare organizations currently engage in.

It's IRS targeting all over again, only this time by administration design and with the raw political goal—as House Ways and Means Chairman Dave Camp (R., Mich.) notes—of putting "tea party groups out of business."

Congressional sources tell me that House Appropriations Chairman Hal Rogers (R., Ky.) had two priorities in the omnibus negotiations. One was getting in protection for groups that morally oppose ObamaCare's contraception-coverage requirement. The other was language that would put a hold on the IRS rule.

The White House and Senate Democrats had their own wish list, including an increase in funding for the International Monetary Fund, the president's prekindergarten program and more ObamaCare dollars.

Yet my sources say that throughout the negotiations Democrats went all in on keeping the IRS rule, even though it meant losing their own priorities. In the final hours before the omnibus was introduced Monday night, the administration made a last push for IMF money. Asked to negotiate that demand in the context of new IRS language, it refused.

That's a lot to sacrifice for a rule that the administration has barely noted in public, and that then-acting IRS Commissioner Danny Werfel claimed last fall when it was introduced is simply about providing "clarity" to nonprofits. It only makes sense in a purely political context. The president's approval ratings are in the toilet, the economy is in idle, the ObamaCare debate rages on, and the White House has a Senate majority to preserve. With one little IRS rule it can shut up hundreds of groups that pose a direct threat by restricting their ability to speak freely in an election season about spending or ObamaCare or jobs. And it gets away with it by positioning this new targeting as a fix for the first round.

This week's Democratic rally-round further highlights the intensely political nature of their IRS rule. It was quietly dropped in the runup to the holiday season, to minimize the likelihood of an organized protest during its comment period. That 90-day comment period meantime ends on Feb. 27, positioning the administration to shut down conservative groups early in this election cycle.

Mr. Camp's committee has meanwhile noted that Treasury appears to have reverse-engineered the carefully tailored rule—combing through the list of previously targeted tea party groups, compiling a list of their main activities and then restricting those functions.

And an IRS rule that purports to—as Mr. Werfel explained—"improve our work in the tax-exempt area" completely ignores the biggest of political players in the tax-exempt area: unions. The guidance is directed only at 501(c)(4) social-welfare groups—the tax category that has of late been flooded by conservative groups. Mr. Obama's union foot soldiers—which file under 501(c)(5)—can continue playing in politics.

Treasury is also going to great lengths to keep secret the process behind its rule. Cleta Mitchell, an attorney who represents targeted tea party groups, in early December filed a Freedom of Information Act request with Treasury and the IRS, demanding documents or correspondence with the White House or outside groups in the formulation of this rule. By law, the government has 30 days to respond. Treasury sent a letter to Ms. Mitchell this week saying it wouldn't have her documents until April—after the rule's comment period closes. It added that if she didn't like it, she can "file suit." The IRS has yet to respond.

Mr. Camp has now authored stand-alone legislation to rein in the IRS, though the chance of Majority Leader Harry Reid (D., Nev.) allowing a Senate vote is approximately equal to that of the press corps paying attention to this IRS rule.

So that puts a spotlight on newly sworn-in IRS Commissioner John Koskinen, who vowed during his confirmation hearing to restore public trust in the agency, and now must decide whether to aid in a new and blatantly political abuse of IRS powers. The White House is using the agency to win an election this fall. They gave the proof this week.

from the Wall Street Journal, 2014-Feb-4:

Taking the IRS Fifth
If everything was kosher, why won't Lois Lerner talk to Congress?

Liberals are celebrating President Obama's claim that "not even a smidgen of corruption" occurred when the IRS targeted conservative groups for additional scrutiny in an election season. Less enthused must be Lois Lerner, the former director of tax-exempt organizations who invoked her Fifth Amendment right not to testify before a House committee last May.

Asked by Fox News's Bill O'Reilly whether there was any corruption in the IRS handling of groups applying for tax-exempt status, Mr. Obama said "absolutely not," adding that the policy that delayed hundreds of applications by conservative groups was a case of "some bone-headed decisions out of a local office." By local he means Cincinnati.

The President's clairvoyance is extraordinary, since neither the Justice Department nor Congress has finished investigations. The congressional probes have conducted interviews with dozens of employees from the IRS and Treasury Department and reviewed hundreds of thousands of pages of documents. They have already revealed that the tea-party cases, including intrusive questionnaires, were systematically reviewed by lawyers in the IRS Washington office.

But hey, if the President says it's all kosher and the FBI doesn't intend to pursue criminal charges in its probe of the selective IRS screening procedures, why should Ms. Lerner take the Fifth? Perhaps we'll get to hear what Ms. Lerner meant when she wrote in February 2011 emails that the tea party matter was "very dangerous" and that "Cincy should probably NOT have these cases."

Meantime, the IRS has decided to reinstate bonuses for employees. Judging by the President's vote of confidence, maybe Ms. Lerner could get a retroactive performance bonus for following the IRS rule of omerta.

from the Wall Street Journal, 2014-Jan-28, by James Taranto:

Enemies of Friends of Abe
How the IRS chills freedom of association.

These days "IRS Targets Conservative Group" is a dog-bites-man story. But this one was man-bites-dog by virtue of its placement: on the front page of the New York Times, a newspaper that is usually supportive of this administration's efforts to suppress domestic dissent. Put it down to a sudden outbreak of news judgment.

The news value to the Times may lie more in the nature of the organization than its trouble with the IRS. "In a famously left-leaning Hollywood, where Democratic fund-raisers fill the social calendar, Friends of Abe stands out as a conservative group that bucks the prevailing political winds," reads the lead paragraph.

But Friends of Abe--as in Lincoln--has sought nonprofit status under Section 501(c)(3) of the U.S. Tax Code, which would allow it to collect tax-deductible contributions. The IRS has been reviewing the application for some two years, seeking information about meetings where politicians spoke. A 501(c)(3) is prohibited from engaging in campaign activity, such as hosting a fundraiser, but as the Times notes, "tax-exempt groups are permitted to invite candidates to speak at events."

The most troubling revelation in the Times account is that at one point the IRS "included a demand--which was not met--for enhanced access to the group's security-protected website, which would have revealed member names." The Times points out that FOA "keeps a low profile and fiercely protects its membership list, to avoid what it presumes would result in a sort of 21st-century blacklist" and that "tax experts said that an organization's membership list is information that would not typically be required."

With the possible exception of academia, show business is about as totalitarian a subculture as you will find in America. Conservatives are a tiny minority, and they fear for their livelihoods if exposed. A few high-profile celebrities are exceptions--the Times mentions Gary Sinise, Jon Voight, Kelsey Grammer and Lionel Chetwynd--but for lesser-known actors and people who work in off-camera jobs, confidentiality is crucial.

This column obtained a letter that Jeremey Boreing, FOA's executive director, sent members last week in response to the Times story. Its tone demonstrates how seriously the group takes its members' privacy:

At one point, as we were pushing to get the situation resolved, the IRS asked for access to those portions of our website that contain the names of our members. We refused to give them this access, and we will continue to refuse it.

At present, that is no longer one of the demands that they are making. . . .

We will not name names in Hollywood--not for the New York Times and not for the IRS. If the day should come that the IRS makes seeing the list an essential demand for our determination, we will simply remove our request for exemption and structure the organization in a different manner. This office will never reveal the names of our members, and we ask that none of our members reveal their fellows either.

We should note that, true to his word, Boreing names no names in the letter.

FOA members have good reason to fear being identified to the IRS. Last year the agency was revealed to have leaked confidential donor information about the National Organization for Marriage to the Human Rights Campaign, an antagonist in the debate over same-sex marriage. HRC promptly posted the purloined information online. reported in October that congressional investigators had identified the leaker, "but in an ironic twist, the Internal Revenue Service is forbidden from disclosing whether the employee has been prosecuted, fired, or even reprimanded."

The IRS's intrusive tactics thus have a chilling effect on people who wish to exercise their First Amendment right of free association without attracting public attention--or, more precisely, the attention of vicious ideological antagonists. Even calling attention to those tactics can compound the problem, as illustrated by FOA's need to reassure its members in the wake of the Times story. The gradual accretion of power by a vast administrative state, combined with an administration intolerant of dissent, has produced a clear and present danger to basic American freedoms.

from the New York Times, 2014-Jan-22, printed 2014-Jan-23, p.A1, by Michael Cieply and Nicholas Confessore:

Leaning Right in Hollywood, Under a Lens

LOS ANGELES — In a famously left-leaning Hollywood, where Democratic fund-raisers fill the social calendar, Friends of Abe stands out as a conservative group that bucks the prevailing political winds.

A collection of perhaps 1,500 right-leaning players in the entertainment industry, Friends of Abe keeps a low profile and fiercely protects its membership list, to avoid what it presumes would result in a sort of 21st-century blacklist, albeit on the other side of the partisan spectrum.

Now the Internal Revenue Service is reviewing the group's activities in connection with its application for tax-exempt status. Last week, federal tax authorities presented the group with a 10-point request for detailed information about its meetings with politicians like Paul D. Ryan, Thaddeus McCotter and Herman Cain, among other matters, according to people briefed on the inquiry.

The people spoke on the condition of anonymity because of the organization's confidentiality strictures, and to avoid complicating discussions with the I.R.S.

Those people said that the application had been under review for roughly two years, and had at one point included a demand — which was not met — for enhanced access to the group's security-protected website, which would have revealed member names. Tax experts said that an organization's membership list is information that would not typically be required. The I.R.S. already had access to the site's basic levels, a request it considers routine for applications for 501(c)(3) nonprofit status.

Friends of Abe — the name refers to Abraham Lincoln — has strongly discouraged the naming of its members. That policy even prohibits the use of cameras at group events, to avoid the unwilling identification of all but a few associates — the actors Gary Sinise, Jon Voight and Kelsey Grammer, or the writer-producer Lionel Chetwynd, for instance — who have spoken openly about their conservative political views.

The I.R.S. request comes in the face of a continuing congressional investigation into the agency's reviews of political nonprofits, most of them conservative-leaning, which provoked outrage on the right and forced the departure last year of several high-ranking I.R.S. officials. But unlike most of those groups, which had sought I.R.S. approval for a mix of election campaigning and nonpartisan issue advocacy, Friends of Abe is seeking a far more restrictive tax status, known as 501(c)(3), that would let donors claim a tax deduction, but strictly prohibits any form of partisan activity.

The group is not currently designated tax-exempt, but it behaves as a nonprofit and has almost no formal structure, people briefed on the matter said. The I.R.S. review will determine whether Friends of Abe receives tax-exempt status that would provide legal footing similar to that of the People for the American Way Foundation, a progressive group fostered by the television producer Norman Lear and others. If not, Friends of Abe could resort to the courts, or it might simply operate as a nonprofit, but it would be unable to receive tax-deductible contributions.

Jeremy Boreing, executive director of Friends of Abe, declined on Wednesday to discuss details of the tax review, but said the group would continue regardless of outcome.

“Certainly, it's been a long process,” he said.

“Friends of Abe has absolutely no political agenda,” he added. “It exists to create fellowship among like-minded individuals.”

People for the American Way, Mr. Lear's group, stands as something of a liberal counterpart to Friends of Abe, though the organization is far larger, with an affiliate that spends millions of dollars a year on issue advocacy in Washington and beyond. But the entertainment industry has been crisscrossed by progressive groups like the Natural Resources Defense Council, which maintains a tax-exempt educational adjunct under the 501(c)(3) provision, and includes the producer Laurie David and the actor Leonardo DiCaprio among its trustees. Another, the American Foundation for Equal Rights, is a nonprofit that supports marriage rights for gay people and counts the producer Bruce Cohen and the writer Dustin Lance Black among its founders.

In the request last week, tax officials combined broad questions about membership criteria and social events, according to the people briefed on the matter, with pointed queries about meetings with a Los Angeles mayoral candidate, Kevin James, and Republican politicians like Mr. Ryan, Mr. Cain and Rick Santorum.

Officials particularly wanted to know why a speech introducing Mr. Cain at a Friends of Abe event in November 2011 — when he was a presidential candidate — should not be regarded as potentially prohibited political campaign support.

While tax-exempt groups are permitted to invite candidates to speak at events, it is not uncommon for the I.R.S. to scrutinize such activities to determine whether they cross the line into partisan election activity. One issue is whether the organization invites all the qualified candidates.

“The I.R.S. would say that if you are inviting only conservative candidates, that's a problem,” said Marcus S. Owens, a former director of the I.R.S.'s exempt organizations division. “But it's never really been litigated.”

Ofer Lion, a lawyer representing Friends of Abe in its application for tax-exempt status, declined to comment.

Friends of Abe began about nine years ago as little more than an email chain linking conservative stars, filmmakers and other Hollywood figures who were generally reluctant to openly discuss their views. The name is a take on Friends of Bill, the circle of loyalists who have adhered to Bill Clinton over the years.

Mr. Sinise was a leading voice among those who in early 2005 gathered at Morton's Steakhouse here for an informal dinner that members have since identified as the group's closest approach to an actual founding moment.

As Friends of Abe grew, however, Mr. Sinise withdrew from active leadership, and Mr. Boreing, a film producer and director, took charge.

Membership has been defined mostly by access to a private website (there are no dues, but enhanced online access requires a small fee), and attendance at a growing number of events that have included meetings with political operatives like Karl Rove and Frank Luntz; politicians like Michele Bachmann and John Boehner; and media figures like Ann Coulter, Dennis Miller and Mark Levin.

The recent I.R.S. query did not mention the earlier request for access to the names of members, people briefed on the query said.

But a remaining question is whether at least some of the group's politically oriented encounters will be interpreted as campaign activity, and weigh against its bid for tax exemption as a 501(c)(3) organization, devoted to educational or charitable work.

A spokesman for the I.R.S. on Wednesday said it was prohibited from commenting on specific taxpayer activity.

Tax officials and congressional overseers have been embroiled in a debate over the enforcement of rules that restrict campaign activity by tax-exempt groups since last year, when an I.R.S. official acknowledged that officers had improperly targeted Tea Party groups for extra scrutiny. But most of those groups were seeking recognition as so-called 501(c)(4) groups, whose ability to conduct a limited amount of campaign activity is governed by a vague patchwork of rules and standards. In November, in an effort to make the process both more transparent and more rigorous, the I.R.S. announced that it would begin formulating new rules.

Michael Cieply reported from Los Angeles and Nicholas Confessore from New York.

from BBC News, 2014-Feb-12, by Soutik Biswas:

Why did Penguin recall a book on Hindus?

"Now here's this book. And there will be more. After half a century of studying and engaging with Hinduism, I'm not about to be silenced by a few (bad) eggs," academic Wendy Doniger wrote in her latest book On Hinduism, published last year.

Doniger, who teaches at the University of Chicago and has written nearly half a dozen books on Hinduism, including a translation of the Kama Sutra, was writing about how her 2009 book The Hindus: An Alternative History quickly became a lightning rod for Hindu anger.

Doniger wrote that bloggers had accused her of attacking Hinduism and sexualising Hindus, flooded Amazon with their "lurid opinions of the book" and sent her obscene and threatening emails. There was even a protest outside the US embassy in Delhi calling for the book, which was climbing the best-seller non-fiction list, to be banned. The book had also prompted a legal challenge from Hindu groups and attracted at least two separate criminal complaints.

But Tuesday's news of her publisher Penguin India deciding to recall and destroy all remaining copies of The Hindus is being seen as the unkindest cut of all.

The publisher appears to have come to an out-of-court agreement with a little-known Hindu campaign group called Shiksha Bachao Andolan (Save Education Movement), which had filed cases against the book.

The man behind the campaign is Shiksha Bachao Andolan leader Dinanath Batra, a former teacher and school principal. After retirement, he told a newspaper, he began to devote his time to a "mission to see distortions removed from books taught to schoolchildren".

Since then, he says, he has filed some 10 lawsuits involving "objectionable passages" from various textbooks. He filed another demanding an essay on Ramayana by the late poet and scholar AK Ramanujan be dropped from the history syllabus of Delhi University. That was followed by a legal notice to a newspaper for publishing a story on Hindu terrorism. Then he trained his guns on the Doniger book.

"The book is in a bad taste right from the beginning," Mr Batra told a BBC Hindi colleague on Wednesday. "If you see the front page [cover], the picture there is also objectionable since it portrays a deity in a vulgar pose. The book is slanderous and even facts have been distorted."

The Hindus is a magisterial 779-page work that attempts a narrative that is different to the one constituted by the famous texts in Sanskrit, the literary language of ancient India.

Doniger writes that it also tells an alternate history to "show how much the groups that conventional wisdom says were oppressed and silenced and played no part in the development of the [Hindu] tradition - women, untouchables [Dalits]- did actually contribute to Hinduism". Reviewers who liked the book described it as "history as entertainment" and "staggeringly comprehensive". They praised Doniger's "vast erudition, insight, graceful writing laced with gentle wit".

Mr Batra doesn't think so.

He finds it objectionable that Doniger writes in the book that independence hero Mahatma Gandhi had a "habit of sleeping beside girls young enough to be called jailbait in the United States"; and that 19th Century Hindu monk Swami Vivekananda "set himself against all forms of caste distinction and advised people to eat beef".

Mr Batra's pride is also hurt by Doniger's assertion that Maharashtrian queen Lakshmi Bai "claimed loyalty to the British" and sought their help when a local rival to the throne invaded her kingdom. And he also does not believe Doniger when she writes that "there is no Hindu canon", and that ideas about major issues such as vegetarianism, non-violence, even caste, are "subjects of a debate, not a dogma".

The fact that a top publisher has acceded to the demands of a fringe Hindu group has come as a shock to many. (Penguin has refused to comment so far.)

"This is deeply disappointing," historian Ramachandra Guha tweeted. "Penguin should have appealed in a higher court."

Journalist and commentator Swapan Dasgupta said he was "very uneasy" about Penguin's decision. "Ideas and academic studies, however contentious, can't be handled by censorship."

Doniger has, however, has been kinder to her publisher.

She said in a statement that she did not blame Penguin Books, which had made an effort to save the book by defending it in the courts for four years - both as a civil and criminal suit - unlike other publishers, which have quietly withdrawn books.

What's seen as a bigger worry is the erosion of India's liberal tradition.

Academic Pratap Bhanu Mehta writes that the country's reputation as a bastion of liberal values is "dimming by the day".

He makes the point that the courts have also failed liberal India "because of a law that signals that it is open to banning books", a point Doniger also makes in her statement. Mr Mehta despairs that liberal India has also been "silenced" by "professional offence mongers". He blames the educators for the "extraordinary failure of the project of liberal education".

Mr Mehta writes: "Wendy Donniger could not have damaged Hindus. But if liberal India dies, Hinduism will die as well. It's a frightening message for one of the world's largest religions."

from the Wall Street Journal, 2014-Feb-4, by Lee E. Goodman:

Lee E. Goodman: The Feds Flirt With Reining in TV Talk
A TV station invites two candidates to debate. Has it made an illegal contribution to their campaigns?

David Gregory and George Stephanopoulos should be concerned. The same Federal Election Commission that represented to the Supreme Court that it could ban books now claims the authority to censor Sunday-morning news programs.

This startling assertion of government power became public in December when the FEC released an enforcement file in the case of a Boston television station's regular Sunday-morning news program, "On the Record." The station, WCVB, had invited two congressional candidates (a Democrat and a Republican) into its studio to appear on "On the Record" in the weeks leading up to the 2012 election and formatted the joint appearance as a 30-minute debate.

Another candidate (a libertarian) who was not invited filed a complaint alleging that the value of WCVB's production costs and airtime constituted unlawful corporate contributions to the two candidates who were invited. Corporate contributions to federal candidates are illegal and people who make them face stiff fines, injunctions, and can even go to prison.

The Federal Election Campaign Act, which established the FEC, regulates money in federal campaigns to protect American citizens from corrupt politicians. It also expressly forbids the agency from regulating the press. Congress enacted this "press exemption" to protect the profoundly important First Amendment right of the press to inform the public about campaigns and candidates without government interference.

WCVB invoked the First Amendment and the campaign act's press exemption. When the FEC considered the matter in November 2013, the staff recommended that the agency disregard both. The FEC proceeded to sit in judgment of the news directors' editorial criteria for choosing the candidates to appear to debate on the station's Sunday morning program. Ultimately the FEC decided that the editorial criteria were sufficiently objective and thus the station had not made an unlawful corporate contribution. It dismissed the case.

Based on this outcome, Messrs. Gregory and Stephanopoulus might rest easy. They shouldn't, which is why I took issue with the FEC's ostensible beneficence. A decision to approve implies the power to disapprove. And in the case of FEC regulatory authority over corporate contributions, the power to investigate, punish and even enjoin is the power to censor news programs like "On the Record," "Meet the Press" and "This Week." The upshot of the WCVB decision is that every television newsroom must look over its shoulder whenever it invites two or more candidates to a joint appearance.

Tellingly, Congress forbade even the Federal Communications Commission, an agency expressly empowered to regulate broadcast television stations, to dictate such news judgments. But the FEC appears to be intent upon meddling in TV newsrooms.

History is rife with government efforts to disrupt, investigate and even silence dissenting published opinion. From early colonial times when royal governments punished and shuttered printers critical of royal governors, to film-review-board censorship, attempts to enjoin the printing of the Pentagon Papers and, more recently, government prying into journalists' telephone records, government power has proved to be a dangerous threat to freedom of the press.

The judgments of six FEC commissioners—who are by law appointed by partisan affiliation—can be biased too. A few examples from recent years (several predating current commissioners' tenures) are revealing. The FEC voted unanimously in 2008 to recognize a technology company's (Melothe Inc.) right to launch a new Web campaign channel devoted exclusively to pro-Democratic coverage, endorsements of Democratic candidates and even solicitations for contributions on behalf of Democratic candidates. Six commissioners also voted to recognize former Democratic Sen. Jean Carnahan's right to launch an online publication in 2005 devoted exclusively to pro-Democratic commentary free from regulation.

But in 2010, three commissioners voted to find that "The Sean Hannity Show" violated the law when the radio program endorsed a Republican candidate for Congress and emailed its endorsement and a solicitation of support to the show's distribution list.

Likewise, there were six unanimous votes in 2004 on the commission to dismiss complaints against Michael Moore, Harvey Weinstein and their production companies for expending corporate funds to produce, advertise and exhibit the anti-Bush editorial film "Fahrenheit 9/11," but only four votes in 2010 to recognize the press rights of Citizens United to make conservative documentary films. Also in 2010, the commission deadlocked three to three when filmmaker RG Entertainment Ltd. sought to advertise and distribute the conservative documentary "I Want Your Money."

The point is that government officials cannot be trusted to regulate journalists fairly and without bias. For precisely that reason, Congress prohibited the FEC from regulating the news media's exercise of editorial discretion—and that manifestly includes any attempt to second-guess a TV news program's criteria for hosting two candidates for elective office to debate.

While some in the media advocate more aggressive enforcement of campaign-related speech, they should pay close attention to what aggressive FEC regulation of WCVB's "On the Record" signifies for their own First Amendment rights.

Mr. Goodman, a Republican, was appointed to the Federal Election Commission in October 2013 and elected as chairman in December. The opinions expressed do not necessarily represent the views of the FEC.

from Politico, 2014-Jan-24, by Tal Kopan:

Right wing: Dinesh D'Souza charges red flag

In the wake of the indictment of conservative author and filmmaker Dinesh D'Souza for alleged fraud, conservatives are crying foul that it is evidence of the Obama administration punishing its critics.

Ranging from questions about selective enforcement of laws to outright accusations of manipulation, many bloggers, writers and pundits on the right raised flags about the arrest of the prominent critic of President Barack Obama and creator of the controversial film “2016: Obama's America,” released in 2012.

D'Souza's co-producer on “2016” called the arrest politically motivated in an interview with The Hollywood Reporter.

“In America, we have a long tradition of not doing what is commonly done in too many other countries — criminalizing dissent through the selective enforcement of the law,” Greg Molen said. “In light of the recent events and the way the IRS has been used to stifle dissent, this arrest should send shivers down the spines of all freedom-loving Americans.”

His thoughts were echoed by prominent conservatives, including influential Drudge Report founder Matt Drudge, who sent out a conspiracy-stoking tweet.

They are going after the Obama critics with indictments. VA Gov. Now Dinesh D'souza. Holder unleashing the dogs...
11:51 PM - 23 Jan 2014
569 Retweets 143 favorites

D'Souza has been accused of making straw donations to the campaign of the opponent of Sen. Kirsten Gillibrand (D-N.Y.) in the 2012 election, and in a press release, the U.S. Attorney's Office said the indictment came out of a “routine review” by the FBI, which was seized upon by the blogosphere.

“A routine review, eh? At the very least, the report raises a few questions,” Ed Morrissey wrote on HotAir. “The race, although not specified, appears to be the Senate election between Kirsten Gillibrand and Wendy Long in New York, in which Long lost to Gillibrand by forty-five points (72% to 27%). Why would D'Souza try to push illegal contributions in the low five figures and risk criminal prosecution in a race where tens of millions of dollars were spent, and where the challenger was utterly doomed? For that matter, why use straw men when D'Souza could have just bundled for Long instead, or set up a PAC?”

Morrissey critiqued campaign contribution laws as inherently flawed and acknowledged D'Souza could have broken the law, but he said that doesn't lower the red flags.

“How many of these cases involve Obama boosters rather than critics? How did prosecutors decide to look into D'Souza's activities in the first place?” Morrissey wrote.

Conservative website The Daily Caller published a story with the headline, “Obama administration indicts conservative filmmaker critical of Obama,” which cited Molen's comments to THR and implied there could be motives behind the indictment.

“`2016: Obama's America' was a surprise box-office smash, raking in $33 million in revenue. The documentary is currently the second-most-popular political documentary in American history behind `Farenheit 9/11,' a 2004 movie by leftist documentarian Michael Moore which thrashes the foreign policy of Obama's predecessor, George W. Bush. Bush administration officials never indicted Moore,” the article read.

Writing on, senior editor Brian Doherty also used the indictment to criticize campaign finance laws, wielding sarcasm to question any possible motives in D'Souza's arrest.

“Is it a good thing that someone should face fines and/or jail time for deciding to express his support of a political candidate by reimbursing people he knows for the amounts of money they donated to that candidate? The correct answer is no,” he wrote. “Yet, in this land of free speech and democracy, where political expression is highly valued, you can and indeed do face criminal charges for such actions. See the fate today of conservative politico and writer (and anti-Obama filmmaker, but we can be sure that had nothing to do with this) Dinesh D'Souza.”

He continued: “Expressing your support for a candidate above an arbitrary legislative limit—or, even, giving some cash to friends of yours for whatever reason you want, money is fungible—is corruption of the electoral process. That laws like this exist to slam enemies of the regime when such laws might be needed, well, that's just politics.”

Some bloggers took their criticism farther, with Pamela Gellar of Atlas Shrugged comparing the Obama administration to fascists in the pre-World War II era.

“The ongoing persecution of Republicans and conservatives mirrors the attacks by the fascists of Europe on their opponents in the 1930s. Punishing Obama's political adversaries claims another victim,” Gellar wrote in a post. “The latest attacks are against conservative authors and/or groups that share a philosophy based on individual rights. Dinesh D'Souza is the latest target.”

from the Wall Street Journal, 2013-Aug-22, p.A13, by David B. Rivkin Jr. and Lee A. Casey:

The True Lesson of the IRS Scandal
There should be less federal regulation of political speech.

President Obama and his political allies have dismissed as "phony scandals" mounting evidence that the Internal Revenue Service and other federal agencies hindered and punished conservative advocacy groups. Meanwhile, efforts are under way to impose even more regulation on core political speech. The government's abuses are very real, but the scandal's lessons are not appreciated: The federal regulation of political speech has already gone further than can be justified by existing law, let alone the Constitution. The debate about political speech has so far focused on a particular type of nonprofit entity: social-welfare organizations exempt from federal income tax under section 501(c)(4) of the Internal Revenue Code. A group qualifies for this exempt status if it is "operated exclusively for the promotion of social welfare." This means its efforts cannot inure to the benefit of specific individuals, members or private clubs. On Wednesday, Rep. Chris Van Hollen (D., Md.) filed a federal lawsuit seeking to force the IRS to tighten the eligibility rules for politically active groups seeking 501(c)(4) status. Yet "social welfare" is a capacious term that includes many policy and political goals—from preserving historic battlefields to repealing laws for or against same-sex marriage. The IRS has long recognized this by permitting such groups, if consistent with their stated social-welfare purpose, to engage primarily or even wholly in public-issue advocacy or lobbying. In other words, they are permitted to engage in political speech directed at government officials. At the same time, however, the IRS says that political campaign activities cannot account for more than half of a 501(c)(4)'s expenditures. But the statute itself contains no such limitation. In short, the IRS effectively robs social-welfare organizations of one half of their potential political speech. This distinction between lobbying and election advocacy is entirely arbitrary. Electing candidates who support an organization's principles and goals may be the most effective (and in some cases the only) means of achieving that organization's social-welfare purpose. Yet the IRS rules here are consistent with the federal government's overall approach to regulating elections since at least the 1970s. Bizarre as it may be in the world's leading democracy, federal election laws treat the most effective form of political speech as the most disfavored. Stricter regulations like those sought by Rep. Van Hollen and others would only worsen the problem. Until recently, the Supreme Court largely supported this system, interpreting the Constitution's free-speech guarantees to permit these limitations in order to avoid corruption or its appearance. Even so, the court rejected efforts to control political activities, including expenditures, in support of a candidate but made independently of a candidate's own campaign organization. The exception was corporations, which could not make independent expenditures. In Citizens United v. FEC (2010), a majority of the court more sensitive to the First Amendment invalidated restrictions on independent political campaign expenditures by corporations, associations and labor unions. Since Citizens United, the use of 501(c)(4) organizations to engage in political speech has burgeoned—largely because such groups need not disclose their donors as purely political organizations still must. Calls for the IRS to close this supposed "loophole" also have multiplied. That is a bad idea, not supported by the statutory language, and it is unconstitutional to boot. Although the Supreme Court has held that there is no duty to subsidize political speech through tax exemptions, there is no plausible basis on which the IRS (or Congress) can limit tax-exempt status to groups that eschew independent campaign spending while permitting other forms of political speech, such as lobbying. Where the potential for corruption—for example, giving money to a candidate in exchange for favors—is absent, as the Citizens United ruling found with regard to independent expenditures, treating one form of political speech differently than others is not rational. It fails even the most deferential judicial review standard, much less the more exacting compelling governmental interest ordinarily applied under the First Amendment. The IRS-created 50% limit is vulnerable to challenge on the same grounds. It should make no difference under the existing statutory language what form the political speech of a 501(c)(4) takes; the organization should be able to spend 100% of its funds on independent campaign spending. There also are sound policy reasons to cut 501(c)(4)s loose from such regulations. Such groups allow ordinary people to compete with the better-funded media industry, political parties, celebrities and other wealthy players, in the marketplace of ideas. Constraining the activities of 501(c)4s would not, as "progressives" claim, protect the little guy and level the playing field. Instead it would protect entrenched interests and, most of all, incumbents who can raise money simply because they hold public office. Congress could abolish the 501(c)(4) status entirely. However, neither the IRS nor Congress can produce a result in which some groups, whose social-welfare purposes can be advanced through nonpolitical speech (such as promoting botany or historical research), can use 100% of their resources to do so, while others groups, whose social-welfare purposes can be advanced only through political speech, cannot. To conclude otherwise would enable the government to engage in content-based restrictions on speech that have always been viewed as the most insidious violation of the First Amendment. The Supreme Court also has long made clear that Congress cannot deploy tax subsidies as a means of suppressing "dangerous ideas." The IRS scandal is a moment of reckoning. It offers the country a unique opportunity to free a substantial portion of political speech from government regulation. This is an opportunity not to be wasted. Republicans should broaden their oversight inquiries into the constitutional and statutory basis on which the IRS has limited 501(c)(4) expenditures in the past—and force the agency to justify any plans it has to continue or expand those limits. Messrs. Rivkin and Casey served in the Justice Department during the Reagan and George H.W. Bush administrations. They are partners in the Washington, D.C., office of Baker & Hostetler LLP.

from the New York Times, 2013-Nov-26, by Nicholas Confessore, with Eric Lipton contributing:

New Rules Would Rein In Nonprofits' Political Role

The Obama administration on Tuesday moved to curb political activity by tax-exempt nonprofit organizations, with potentially major ramifications for some of the biggest and most secretive spenders in American politics.

New rules proposed by the Treasury Department and the Internal Revenue Service would clarify both how the I.R.S. defines political activity and how much nonprofits are allowed to spend on it. The proposal covers not just television advertising, but bread-and-butter political work like candidate forums and get-out-the-vote drives.

Long demanded by government watchdogs and Democrats who say the flow of money through tax-exempt groups is corrupting the political system, the changes would be the first wholesale shift in a generation in the regulations governing political activity by nonprofits.

The move follows years of legal and regulatory shifts, including the Supreme Court's Citizens United ruling in 2010, that have steadily loosened the rules governing political spending, particularly by those with the biggest bank accounts: corporations, unions and wealthy individuals.

But the proposal also thrusts the I.R.S. into what is sure to be a polarizing regulatory battle, with some Republicans immediately criticizing the proposal on Tuesday as an attack on free speech and a ploy to undermine congressional investigations into the agency's handling of applications from Tea Party groups.

“Before rushing forward with new rules, especially ones that appear to make it harder to engage in public debate, I would hope Treasury would let all the facts come out first,” said Representative David Camp of Michigan, the chairman of the House Ways and Means Committee.

Political spending by tax-exempt groups — from Crossroads Grassroots Policy Strategies, co-founded by the Republican strategist Karl Rove, to the League of Conservation Voters — skyrocketed to more than $300 million in 2012 from less than $5.2 million in 2006, according to the Center for Responsive Politics. Much of the money has been funneled through chains of interlinked nonprofit groups, making it even harder to determine the original source.

And unlike political parties and “super PACs,” political nonprofits are permitted to keep the names of donors confidential, making them the vehicle of choice for deep-pocketed donors seeking to influence campaigns in secret.

The new rules would not prohibit political activity by nonprofits. But by seeking to establish clearer limits for campaign-related spending by groups claiming tax exemption, the I.R.S. proposal could have an enormous impact on some of the biggest groups, forcing them to either limit their election spending or register as openly political organizations, such as super PACs.

A spokesman for Crossroads declined to comment, as did officials at other political nonprofits.

Nick Ryan, the founder of the American Future Fund, which spent at least $25 million on political advertising last year, said, “Unfortunately, it appears that the same bureaucrats that attempted to suppress the speech of conservative groups in recent years has now put together new rules that apply to (c)4 groups but do not apply to liberal groups like labor unions.”

“I wish I could say I am surprised,” Mr. Ryan added, “but I am not."

The final rules are unlikely to be issued until after the 2014 election, after a public comment period.

The administration's proposal would apply to nonprofits organized under Section 501(c)4 of the tax code, which are granted tax exemption in exchange for devoting themselves to the promotion of “social welfare.”

Under current rules, promoting social welfare can include some political activity, along with unlimited amounts of lobbying. Some of the largest political nonprofits — like Americans for Prosperity, backed by the conservative philanthropists Charles and David Koch — have used that provision to justify significant expenditures on political ads.

But under the new proposal, a broad swath of political work would be classified as “candidate-related political activity” and explicitly excluded from the agency's definition of social welfare. Those activities include advertisements that mention a candidate within 60 days of an election as well as grants to other organizations making candidate-related expenditures.

“Depending on the details, this could be dramatic,” said Marcus S. Owens, a former chief of the I.R.S.'s exempt organizations division.

The rules could also affect more traditional conservative and liberal advocacy organizations, including Tea Party groups whose complaints of harassment by I.R.S. employees prompted the resignation of several high-ranking I.R.S. officials last spring. Distributing voter guides, for example, would automatically count as political activity.

Jay Sekulow, a lawyer representing more than three dozen of the groups in a federal lawsuit against the I.R.S., described the new proposal as a further attack on free speech. “This is a feeble attempt by the Obama administration to justify its own wrongdoing with the I.R.S. targeting of conservative and Tea Party groups,” he said in a statement.

Administration officials described the new proposal as a response to widespread complaints that the existing regulations were too vague, leading to inconsistent or arbitrary enforcement. The I.R.S. would be better equipped to enforce the rules, the officials said, if they were clearer, while nonprofit groups would be better able to comply.

“This proposed guidance is a first critical step toward creating clear-cut definitions of political activity by tax-exempt social welfare organizations," said Mark J. Mazur, the assistant Treasury secretary for tax policy.

In addition to clarifying what activities count toward assessing a tax-exempt group's primary purpose, the final guidance could include a more precise definition of how much political activity a 501(c)4 group is permitted to engage in while still maintaining its tax exemption.

Many election lawyers and their clients use an unofficial rule of thumb: If a tax-exempt group spends less than 50 percent of its budget on political activity, then its primary purpose is not winning campaigns.

Some activists have argued that a rule requiring 501(c)4s to spend no more than 10 percent to 15 percent of their budgets on political activities would be closer to the letter and spirit of existing law.

Some lawyers said they worried that the new rules, particularly those that could apply to grass-roots organizing, could unfairly burden bona fide social welfare groups. Others suggested that tighter restrictions on social welfare groups would only hasten the migration of political money into other kinds of entities whose campaign spending is not subject to I.R.S. jurisdiction.

Mr. Owens, now a tax lawyer in Washington, said the I.R.S. proposal would have one certain consequence: more business.

“I'm looking forward to a very profitable New Year,” he said.

from the New York Times, 2013-May-10, by Jonathan Weisman:

I.R.S. Apologizes to Tea Party Groups Over Audits of Applications for Tax Exemption

WASHINGTON — The Internal Revenue Service apologized to Tea Party groups and other conservative organizations on Friday for what it now says were overzealous audits of their applications for tax-exempt status.

Lois Lerner, the director of the I.R.S. division that oversees tax-exempt groups, acknowledged that the agency had singled out nonprofit applicants with the terms “Tea Party” or “patriots” in their titles in an effort to respond to a surge in applications for tax-exempt status between 2010 and 2012.

She insisted that the move was not driven by politics, but she added, “We made some mistakes; some people didn't use good judgment.”

“For that we're apologetic,” she told reporters on a conference call.

Republicans seized on the acknowledgment, demanding more information and adding it to a growing list of steps by the Obama administration that they say prove political interference, from allegations of hiding the terrorist origins of the attack in Benghazi, Libya, to the demand for disclosure of donors to conservative “super PACs.”

Senator Mitch McConnell of Kentucky, the Republican leader, called for “a transparent, governmentwide review aimed at assuring the American people that these thuggish practices are not under way at the I.R.S. or elsewhere in the administration against anyone, regardless of their political views.”

The White House press secretary, Jay Carney, said the events in question happened while the I.R.S. was under the directorship of a Bush administration appointee and regardless, it is an agency run independently of White House oversight. He also said the matter is already under investigation by the agency's inspector general.

The apology and the ensuing reaction could be a turning point for the I.R.S., which has been caught between Congressional Democrats pressing the agency to more aggressively protect tax-exempt status from overtly political groups and conservative groups claiming harassment.

Campaign finance watchdogs have said for years that 501(c)(4) tax exemptions are widely abused by conservative and liberal groups whose primary purpose is to influence elections, not to promote “social welfare,” as tax-exempt status mandates.

But Ms. Lerner said the examinations of the Tea Party groups were not a response to such pressure. She portrayed it more as a bureaucratic mix-up. Between 2010 and 2012, applications for 501(c)(4) tax exemptions nearly doubled, to more than 2,400. As the agency has done in the past, it centralized the processing of the surge at its Cincinnati office, where about 300 were flagged for further examination.

Staff members at that office singled out the terms “Tea Party” and “patriot,” she said, but not out of political bias; it was “just their shortcut.” Only about a quarter of the 300 cases flagged for scrutiny were Tea Party-related, she said, but she called the singling out of those groups “absolutely inappropriate and not the way we should do things.”

Ms. Lerner indicated that no disciplinary action had been taken against the low-level employees she said were responsible; when pressed, she said she could not comment on personnel matters. But, she said, policy changes had been made to ensure that similar episodes would not occur. For instance, high-level I.R.S. officials must now approve efforts to lump similar applications or audits into one centralized location for processing.

To the conservative groups and their defenders, the acknowledgment confirmed their worst accusations. In early 2012, numerous Tea Party-affiliated groups came forward to charge the I.R.S. with harassment for demanding that they fill out extensive — and intrusive — questionnaires before their tax-exempt applications could be approved. The questionnaires demanded detailed membership lists, donors, contact information, logs of activities and other information about the groups' intentions.

Many of those groups found representation with the conservative American Center for Law and Justice and its outspoken lead lawyer, Jay Sekulow, who accused the I.R.S. of “McCarthyism” intended to stifle conservative speech.

The center called the apology “a significant victory for free speech.”

But the leader of one of the groups that cried foul, the Kentucky 9/12 Project, said he had received no such admission from the agency. Eric Wilson, the group's director, said he never complied with the I.R.S. questionnaire.

Nonetheless, the I.R.S. sent the group a one-paragraph letter on April 1 granting nonprofit status, with no explanation for the protracted process and no regrets, he said.

Organizations that had been pressing for more aggressive enforcement of tax-exemption laws reacted with alarm. Lisa Gilbert, the director of Public Citizen's Congress Watch division, said the I.R.S. should not be targeting any particular political ideology. But, she said, questioning applicants for tax exemption to determine whether they were primarily political was entirely proper and should be more widely pursued.

“We don't think it's inappropriate to ask questions,” she said. “Tax-exempt groups are abusing their tax status to pursue political agendas.”

Under current law, tax-exempt 501(c)(4) organizations are supposed to be “primarily” engaged in social welfare work. In practice, groups like the conservative Crossroads GPS and the liberal Priorities USA appear to spend virtually all their efforts trying to sway elections.

Last year, Senate Democrats began pressing the I.R.S. to more aggressively target such groups. As the Tea Party questionnaires surfaced, the agency released a statement saying, “To be tax-exempt as a social welfare organization described in Internal Revenue Code (IRC) section 501(c)(4), an organization must be primarily engaged in the promotion of social welfare. The promotion of social welfare does not include any unrelated business activities or intervention in political campaigns on behalf of or in opposition to any candidate for public office.”

But pressure will now come from the other direction. Representative Dave Camp of Michigan, the House Ways and Means Committee chairman, announced Friday that he would hold hearings on the matter. Representative Eric Cantor of Virginia, the House majority leader, promised an investigation.

Senator Orrin G. Hatch of Utah, the ranking Republican on the Senate Finance Committee, rejected the apology as insufficient, demanding “ironclad guarantees from the I.R.S. that it will adopt significant protocols to ensure this kind of harassment of groups that have a constitutional right to express their own views never happens again.”

from Reuters, 2014-Jan-24, by Harro ten Wolde and Nikola Rotscheroth with editing by Catherine Evans:

German court orders Google to block Max Mosley sex pictures

A German court has ordered Google to block search results in Germany linking to photos of a sex party involving former Formula One boss Max Mosley.

The court said on Friday that although Google had not taken the pictures it was responsible as a distributor of the images.

"The court is of the opinion that the banned pictures of the plaintiff severely violate his private sphere, as they show him active in sexual practices," the court said.

The ruling comes more than two months after a French court ordered Google to find a way to remove recurring links to images of Mosley, who was photographed in 2008 at an orgy with prostitutes.

The dispute in the Hamburg court relates to photographs of Mosley published by the defunct British tabloid News of the World that were accompanied by an article suggesting he had organized a "sick Nazi orgy".

Mosley has acknowledged that he engaged in sado-masochistic activity with the five women and paid them 2,500 sterling ($4,000), but denied the orgy was Nazi-themed.

The decision is another setback for Google as it tries to defend a global stance that the search engine is merely a platform that delivers links to content and it should not be responsible for policing them.

Although Google can delete images on its website, it cannot prevent others reposting them, resulting in a constant game of catch-up.

Google said on Friday it would appeal the ruling.

"It could mean that Internet providers are required to monitor even the smallest components of content they transmit or store for their users. We believe this is contrary to European law," a Google spokesman said.

In a blog post published in September, Google said it had already removed "hundreds of pages for Mr. Mosley" as part of a process that helps people delete specific pages from Google's search results after they have been shown to violate the law.

from Bloomberg, 2013-Nov-26, by Nicole Gaouette in Washington, edited by John Walcott:

NSA Spying Risks $35 Billion in U.S. Technology Sales

International anger over the National Security Agency's Internet surveillance is hurting global sales by American technology companies and setting back U.S. efforts to promote Internet freedom.

Disclosures of spying abroad may cost U.S. companies as much as $35 billion in lost revenue through 2016 because of doubts about the security of information on their systems, according to the Information Technology & Innovation Foundation, a policy research group in Washington whose board includes representatives of companies such as International Business Machines Corp. (IBM) and Intel Corp. (INTC)

“The potential fallout is pretty huge given how much our economy depends on the information economy for its growth,” said Rebecca MacKinnon, a senior fellow at the New America Foundation, a Washington policy group. “It's increasingly where the U.S. advantage lies.”

Any setback in the U.S. push to maintain an open Internet also could inflict indirect damage on companies such as Apple Inc. (AAPL) and Google Inc. (GOOG) that benefit from global networks with few national restrictions.

Almost 40 percent of the world's population, or 2.7 billion people, are online, according to the International Telecommunication Union, a Geneva-based United Nations agency.

Cisco Systems Inc. (CSCO), the world's largest maker of computer-networking equipment, said this month that the NSA disclosures are causing some hesitation among customers in emerging markets.

Orders in China fell 18 percent in the three months ended Oct. 26. Elsewhere, Robert Lloyd, head of development and sales, said on a conference call Nov. 13, “it's not having a material impact, but it's certainly causing people to stop and then rethink decisions.”

`Serious Damage'

News about U.S. surveillance disclosed by former NSA contractor Edward Snowden has “the great potential for doing serious damage to the competitiveness” of U.S. companies such as Cupertino, California-based Apple, Facebook Inc., and Microsoft Corp., Richard Salgado, Google's director for law enforcement and information security, told a U.S. Senate panel Nov. 13. “The trust that's threatened is essential to these businesses.”

The spying revelations have led governments around the world to consider “proposals that would limit the free flow of information,” Salgado said. “This could have severe unintended consequences, such as a reduction in data security, increased cost, decreased competitiveness, and harm to consumers.”

Brazil, Germany

Countries such as China and Russia that are seeking to impose more national controls on the Internet are finding their views gaining ground. Rising economic powers, including India, Mexico and South Korea, are weighing further limits. Brazil's President Dilma Rousseff, a target of NSA surveillance, is calling for a new conversation about Internet governance with support from Germany, whose chancellor, Angela Merkel, also was an NSA target.

The uproar in Germany will probably hurt Akamai Technologies Inc. (AKAM)'s business there, according to Tom Leighton, chief executive officer of the Cambridge, Massachusetts-based company that helps corporate customers deliver online content faster.

“It's clearly bad for American companies,” Leighton said Nov. 20 at “The Year Ahead: 2014,” a two-day conference in Chicago hosted by Bloomberg LP. “It's particularly bad now in Germany, where it's really being played up, to whip up anti-American corporate sentiment. We'll probably lose some business there.”

Data Flows

Technology companies aren't the only ones facing potential damage from disclosure of the NSA's surveillance, said Myron Brilliant, an executive vice president with the U.S. Chamber of Commerce in Washington. Studies show products and services that rely on cross-border data flows are expected to add an estimated $1 trillion in value to the U.S. economy annually over the next 10 years, he said.

“This is a priority issue, not just for technology or Web-based companies, but also small- and medium-sized businesses,” Brilliant said, listing finance, manufacturing, health care, education, shipping “and other areas not commonly thought of as Internet companies.”

Information technology companies were the first to see fallout after Snowden fled to Hong Kong in May and began releasing details of U.S. surveillance programs. Snowden is now living in Russia.

Cisco in China

Facing a backlash that's already crimping sales in China, San Jose, California-based Cisco may be locked out of future purchases if the Chinese government cites security concerns to favor domestic companies in a projected surge of IT spending, to $520 billion in 2015, to increase urban broadband speeds and expand rural Internet access.

The cloud computing market will be valued at $207 billion by 2016, according to the Information Technology & Innovation Foundation.

A survey by the Cloud Security Alliance, an industry group, found that 10 percent of its non-U.S. members have canceled contracts with U.S.-based cloud providers since May. Fifty-six percent said they'd be less likely to use one.

“People aren't going to trust the U.S. and U.S. companies as much,” said Jason Healey, director of the Cyber Statecraft Initiative at the Atlantic Council, a Washington-based policy group. “You're going to see national boundaries begin in cyberspace.”

Internet Regulation

For years, the U.S. has lobbied against such an approach, advocated by countries including China and Russia. In 2011, they submitted a proposed “Internet code of conduct” to the United Nations. The U.S. has pushed back, “trying hard to get up-and-coming countries like Brazil to trust us, not the Chinese, about how the Internet should look,” Healey said.

A top-down intergovernmental approach “would hamper the pace of innovation and hamper global economic development, and it could lead to unprecedented control over what people say and do online,” Daniel A. Sepulveda, the U.S. State Department's coordinator for international communications and information policy, said in a Nov. 6 phone briefing.

Today, a UN panel adopted a resolution sponsored by Brazil and Germany expressing concern over the “negative impact” of Internet surveillance. The 193-member General Assembly will vote next month on the document, which calls for a report by next year on privacy protections “in the context of domestic and extraterritorial surveillance and/or interception of digital communications and collection of personal data.”

`Political Message'

The move sends a “political message” that “the right to privacy has to be protected” even though the resolution isn't legally binding, Peter Wittig, Germany's ambassador, told reporters after the resolution's adoption.

Since Snowden's disclosures revealed that the NSA was monitoring exchanges between Rousseff and her top aides, the Brazilian president has led an effort to establish Internet protections.

Brazil is considering legislation that would require companies such as Mountain View, California-based Google to use local data centers or equipment developed by the government. A preference for non-U.S. providers could hurt companies such as Sunnyvale, California-based Juniper Networks Inc. (JNPR), which accounted for 10 percent of Brazil's router revenue in the first half of the year, or Cisco, which holds 56 percent.

German E-Mail

In Germany, Bonn-based Deutsche Telekom AG (DTR) is part of an alliance of companies promoting a system to keep German e-mail and Web searches within the country.

“The private sector is very worried about this because it messes with what might be most economic way to route message flows and traffic,” said Gene Kimmelman, project director for human rights and Internet policy at the New America Foundation, a Washington policy group. “If you're forced to have equipment in a certain country, by law, it might add significant expense to an operation.”

European Union legislators set to negotiate a trade agreement with the U.S. want to include strict rules for American companies handling EU citizens' data and fine them heavily for violations.

Some of the anger over the NSA is disingenuous, given that there's “a substantial awareness that surveillance goes on” in many countries, Kimmelman said.

Even so, Google's Salgado said international reaction to the NSA's surveillance risks changing the nature of the Internet.

He said proposals being advanced could lead to the “creation of a splinter net, broken up into smaller national regional pieces with barriers around it to replace the global Internet that we know today.”

from BBC News, 2013-Aug-18:

Snowden case: Brazil 'concerned' after UK detention

Brazil says the detention under British terror laws of one of its citizens at London's Heathrow airport caused "grave concern" and was "unjustified".

David Miranda, the partner of Guardian journalist Glenn Greenwald who published documents leaked by Edward Snowden, was held at Heathrow for nine hours on his way to Rio de Janeiro.

He reportedly had his mobile phone, laptop, DVDs and other items seized.

Mr Miranda was later released by British authorities.

Mr Greenwald called his partner's detention an "intimidation" and a "profound attack on press freedoms".

Under the Terrorism Act 2000, UK police can hold someone at an airport for up to nine hours - but the power must be used appropriately and proportionately and is subject to independent scrutiny.

Amnesty International says the incident shows the law can be abused for what it described as "petty and vindictive reasons".

'Serious threat'

"At 08:05 on Sunday 18 August 2013 a 28-year-old man was detained at Heathrow Airport under Schedule 7 of the Terrorism Act 2000. He was not arrested. He was subsequently released at 17:00," said a statement issued by the Metropolitan Police.

"To detain my partner for a full nine hours while denying him a lawyer, and then seize large amounts of his possessions, is clearly intended to send a message of intimidation to those of us who have been reporting on the NSA [United States National Security Agency] and GCHQ [Government Communications Headquarters]," he wrote in The Guardian.

Mr Greenwald said the British authorities' actions were a "serious threat to journalists everywhere".

The Brazilian government issued an official statement soon after the release of David Miranda. Glenn Greenwald, US journalist Mr Greenwald called his partner's detention a "serious threat to journalists"

The foreign ministry document says there was no justification for detaining an "individual against whom there are no charges that can legitimate the use of that [anti-terror] legislation".

It also says Brazil expects incidents "such as the one that happened to the Brazilian citizen today" not to be repeated.

Mr Miranda was flying back from the German capital, Berlin, to Rio de Janeiro, where he lives with Mr Greenwald, when he was detained in transit through Heathrow.

In Germany, he had met US film-maker Laura Poitras, who has also been working on the Snowden files with Greenwald and the Guardian. according to the newspaper.

Following his detention at Heathrow, Brazilian government officials and Guardian lawyers were called to the airport, The Guardian says.

The NSA has broken privacy rules and overstepped its legal authority thousands of times in the past two years, according to documents leaked by Edward Snowden.

The incidents resulted in the unauthorised electronic surveillance of US citizens, it is alleged.

Mr Snowden, a former NSA contractor, has leaked top secret documents to the US and British media.

He has been given asylum in Russia.

from CNN, 2013-Nov-29, by Shawn Nottingham and Mariano Castillo:

U.S. man in hot water in Dubai over parody video

It was intended as a piece of comedy, but it's turned into a drama.

A young American living in the United Arab Emirates has been imprisoned since April, his family says, for posting what was intended to be a funny video on the Internet.

Now, the family of Shezanne "Shez" Cassim wants to bring attention to his case ahead of a hearing December 16.

The video in question is a 19-minute short that pokes fun at a clique of Dubai teens who are influenced by hip-hop culture. In the 1990s, the label "Satwa G" was coined for a group of suburban teens who were known to talk tougher than they really were.

The video depicts a look at a "combat school" in the suburb of Satwa, where these "gangsters" are trained. The training includes how to throw sandals at targets, using clothing accessories as whips, and how to call on the phone for backup.

"It's like someone in the U.S. making a parody video of a Brooklyn hipster and getting thrown in jail for it and being held in jail for months without bail," Cassim's brother, Shervon Cassim, told CNN affiliate KARE. "That's what's going on here."

Cassim's family says Shez, 29, has been charged with endangering national security, but they've not been told what about the video endangered security.

UAE authorities did not respond to CNN requests for details about what charges Cassim may be facing and why.

"It's just a straightforward silly comedy video. And he's being treated like some sort of dangerous criminal, high security criminal that they need to keep under maximum security conditions," Shervon Cassim told KARE about his brother.

Shez Cassim has lost a lot of weight, but is otherwise in good physical condition, his brother told CNN.

Cassim, from Woodbury, Minnesota, moved to Dubai in 2006 after graduating college to work for PricewaterhouseCoopers.

He and some friends made and posted the video online in 2012. He was arrested in April 2013.

According to the family, Cassim and eight friends have been charged under a cybercrimes law for endangering public order. This law, the family says, wasn't passed until after the video had been released.

Two attempts by Cassim's lawyers to get him released on bail have been rejected.

The U.S. State Department is providing consular services to Cassim, a department official said, and has attended all his court hearings.

"The U.S. Embassy and Consulate General have engaged with UAE counterparts to urge a fair and expedient trial and judgment," the official said.

The Satwa G's, the family said in a statement, were known as wanna-be gangsters, and that's how Cassim portrayed them.

"These 'gangstas' were known for their decidedly mild behavior and were seen as the total opposite of actual criminals," the statement said. "The fictional training depicted in the video teaches techniques that include the best way to throw a sandal at a newspaper (target) and, ultimately, how to use the mobile phone when in trouble."

At the last hearing, the judge in the case asked for an Arabic translation of the video, giving the family some hope that the authorities will realize that it was a parody.

"I just want my son home for Christmas," said Cassim's mother, Jean Cassim, in a statement. "He's a good young man with a great career and has never been in trouble. Now he's being held for no reason. I've been praying, going to mass and lighting candles, and that's what I'm going to keep doing."

An average of about 2,500 Americans are jailed abroad every year, and about a third of those arrests are related to illegal drugs, the U.S. State Department says. "In 2010 alone, consular officers conducted more than 9,500 prison visits, and assisted more than 3,500 Americans who were arrested abroad," the State Department's website says.

U.S. travelers in foreign countries are subject to the laws of those countries, and there's a limit to how much help they can get from the U.S. Embassy or Consulate there.

U.S. diplomatic corps officials "cannot represent you in legal proceedings or pay your legal fees or other expenses. But they can perform many vital services such as providing a list of attorneys, assisting in contacting your family, helping your family to send money, and monitoring your health and welfare," the State Department says.

from the Washington Examiner, 2013-Aug-9, by Paul Bedard:

IRS agent: Tax agency is still targeting Tea Party groups

In a remarkable admission that is likely to rock the Internal Revenue Service again, testimony released Thursday by House Ways and Means Committee Chairman Dave Camp reveals that an agent involved in reviewing tax exempt applications from conservative groups told a committee investigator that the agency is still targeting Tea Party groups, three months after the IRS scandal erupted.

In closed door testimony before the House Ways & Means Committee, the unidentified IRS agent said requests for special tax status from Tea Party groups is being forced into a special "secondary screening" because the agency has yet to come up with new guidance on how to judge the tax status of the groups.

In a redacted transcript from the committee provided to Secrets, a Ways & Means investigator asked: "If you saw -- I am asking this currently, if today if a Tea Party case, a group -- a case from a Tea Party group came in to your desk, you reviewed the file and there was no evidence of political activity, would you potentially approve that case? Is that something you would do?"

The agent said, "At this point I would send it to secondary screening, political advocacy."

The committee staffer then said, "So you would treat a Tea Party group as a political advocacy case even if there was no evidence of political activity on the application. Is that right?" The agent admitted, "Based on my current manager's direction, uh-huh."

Camp called the renewed targeting of Tea Party groups "outrageous."

Added a committee aide, "In plain English, the IRS is still targeting Tea Party cases."

During 2010-2012 period when the anti-Obama Tea Party groups faced special scrutiny from the president's IRS, agents used a "be on the lookout," or BOLO, list which said groups with words like "Tea Party" in their title should face special, secondary screening for political activities that might hamper their special tax status.

When the scandal erupted after a Treasury Department inspector general revealed the improper political scrutiny, the acting head of the IRS, Danny Werfel, said the BOLO list had been suspended. That was six weeks ago.

But because there is nothing in its place, agents apparently either don't know how to handle Tea Party tax exempt applications, or are too scared to make a decision.

Asked by the committee how it handles Tea Party applications, the agent said, "If a political advocacy case came in today, I would give it -- or talk about it to my manager because right now we really don't have any direction or we haven't had any for the last month and a half."

Camp, the Michigan Republican, told Secrets, "It is outrageous that IRS management continues to target Tea Party cases without any justification. The harassment, abuse and delays these Americans have faced over the last few years has been unwarranted, unprovoked and, at times, possibly illegal. The fact that the IRS still continues to treat the Tea Party differently and subject them to additional targeting is outrageous and it must stop immediately."

In response, the IRS reiterated Werfel's pledge to not target groups because of political labels. "The IRS has taken decisive action to eliminate the use of inappropriate political labels in the screening of 501(c)(4) applications. We look forward to seeing the full transcript to gain a fuller understanding of the context of the interview," they said early Friday.

Werfel, called in to fix the scandal, directed the IRS to eliminate the use of BOLO lists. The statement said that "IRS policy is now clear that screening is based on activity, not words in a name. The new steps and current policies...specifically spells out that political campaign intervention will be reviewed without regard to specific labels. The IRS will not tolerate any deviation from this."

In an IRS review, the plan was that after the BOLO lists were removed, political labels would be ignored by the "Determinations Unit" as they screened for information for those seeking tax exempt status.


Below is the Ways & Means Committee transcript of the IRS official.

Wednesday, August 1, 2013

Committee: Today, currently, how do you analyze advocacy cases. If, for example, Tea Party of Arkansas came in today, how would you handle it?

IRS agent: Well, the BOLO list doesn't exist anymore.

Committee: Sure.

IRS: If a political advocacy case came in today, I would give it -- or talk about it to my manager because right now we really don't have any direction or we haven't had any for the last month and a half.


Committee: If you saw -- I am asking this currently, if today if a Tea Party case, a group -- a case from a Tea Party group came in to your desk, you reviewed the file and there was no evidence of political activity, would you potentially approve that case? Is that something you would do?

IRS agent: At this point I would send it to secondary screening, political advocacy.

Committee: So you would treat a Tea Party group as a political advocacy case even if there was no evidence of political activity on the application. Is that right?

IRS agent: Based on my current manager's direction, uh-huh.

Paul Bedard, The Washington Examiner's "Washington Secrets" columnist, can be contacted at

from the Wall Street Journal, 2013-Jul-11, printed 2013-Jul-13, p.A11, by Kimberley A. Strassel:

Another IRS Scandal Waiting to Happen
Federal Elections Commissioner Donald McGahn wants to rein in the bureaucracy of this sensitive agency. The political left is furious.

The Obama administration claims it wants to ensure that the rank political abuse perpetrated by the Internal Revenue Service is never repeated. Ask Donald McGahn how that's going.

Mr. McGahn is a Republican appointee to the Federal Election Commission, an agency with every bit as much potential for partisan meddling as the IRS. Due to leave the agency soon, Mr. McGahn's parting gift is a campaign to rein in an out-of-control FEC bureaucracy. But the left is fighting that oversight and is determined to keep power in the hands of unaccountable staff.

The FEC was created in the wake of Watergate, in part to remove primary power over political actors from the Justice Department. It sports an equal number of Democratic and Republican commissioners, so that neither side can easily impose a partisan agenda. This means a lot of deadlocks, a situation that infuriates the left, which prefers a fire-and-brimstone regulator.

It also frustrates the FEC's staff, which has responded by going around the commissioners. The Federal Election Campaign Act (FECA), for instance, makes it clear that staff may not commence investigations until a bipartisan majority (four members) of the commission votes that there is a "reason to believe" a violation has occurred. In theory, this provision should guard against IRS-like witch hunts.

Except that over the years staff have come to ignore the law, and routinely initiate their own inquiries—often on little more than accusations they find on blogs or Facebook . For a sense of how these investigations can go off the rails, consider that Lois Lerner—before serving as the center of today's IRS scandal—was the senior enforcement officer at the FEC. A Christian Coalition lawyer has testified that during a (sanctioned) FEC investigation in the 1990s—in addition to generating endless subpoenas, depositions and document requests, Ms. Lerner's staff demanded to know what Coalition members discussed at their prayer meetings and what churches they belonged to. Once staff gets rolling, there is little to stop them.

More troubling to some FEC commissioners has been the staff's unsanctioned and growing ties to the Obama Justice Department. In September 2011, Tony Herman was named FEC general counsel. Mr. Herman in early 2012 brought in Dan Petalas, a Justice prosecutor, as head of the agency's enforcement section. FECA is clear that a bipartisan majority of commissioners must vote to report unlawful conduct to law enforcement. Yet FEC staff have increasingly been sending agency content to Justice without informing the commission.

For instance, when a complaint is filed with the FEC against a political actor, the general counsel is required to write a report for the commissioners on whether there is a "reason to believe" the actor committed a violation. This report is confidential and never made public until a case is closed. Yet FEC staffers have sent these reports to Justice, in one case before the report was considered by the commissioners.

In a June memo, Mr. Herman defended staff supremacy with the astonishing argument that big decisions are best made by "non-partisan, career leadership." (No joke.) That way, the commission is shielded from "claims that it is deciding whether to assist DOJ criminal prosecutions" on the basis of "political considerations." Better, apparently, to keep the public completely in the dark.

These ties are disturbing, since the Obama campaign pioneered the tactic of demanding that Justice pursue criminal investigations of its political opponents as a means of intimidation. The FEC's info-funneling to Obama Justice raises the obvious question of whether Obama Justice wasn't in turn influencing FEC reports. (It also raises another question: If Justice had this kind of pipeline to the FEC, did it have one to the IRS?)

These questions are why election law requires bipartisan diligence over investigations and information sharing. Mr. McGahn is attempting to right the ship by getting the commission to adopt a new enforcement manual that would require uniform procedures. Yet FEC Chairman Ellen Weintraub has been uncharacteristically quiet on the issue, and liberal groups such as the Center for American Progress (via its Think Progress blog) have launched howling accusations that Mr. McGahn is trying to "block enforcement" and "weaken the agency." Some have suggested he's trying to ram through the change while the commission has a temporary 3-2 Republican majority.

In fact, Mr. McGahn hasn't forced this issue, because he's intent on getting all his colleagues to stand up for institutional responsibility. He's made clear he's not trying to end the relationship with the DOJ, or to stop investigations. As he told me this week, the only question is who will make the decisions: "The presidentially appointed, Senate-confirmed commissioners who answer to the public, or an unaccountable staff?"

The left wants the latter, since it provides more latitude to use the FEC to their political ends. This has worked to their benefit at agencies like the (currently illegitimate) National Labor Relations Board, where (Acting) General Counsel Lafe Solomon is single-handedly running U.S. labor policy, much to their liking.

But Americans, and the FEC commissioners, need only recall our recent experience of letting federal employees meddle in politics. Mr. McGahn deserves great credit for trying to avoid the potential for another IRS scandal. Let's see if the Obama team is just as serious.

from the Guardian, 2013-Jun-17, by Jeff Jarvis:

I fear the chilling effect of NSA surveillance on the open internet
Snowden's NSA leak revelations are changing people's assumptions about online privacy, killing trust in web freedom

I fear the collateral damage the NSA's spying via technology will do to that technology. The essential problem is not the internet or internet companies or even the spies. The real problem is the law and what it does not prevent the American government from doing with technology, and how it does not protect the principles upon which this nation was founded.

The damage to the net and its freedoms will take many forms: users may come to distrust the net for communication, sharing, and storage because they now fear – with cause – that the government will be spying on them, whether or not they are the object of that surveillance. International users – properly concerned that they are afforded even less protection than Americans – may ditch American platforms. The European Union and other national governments, which already were threatening laws targeting US technology companies, will work harder to keep their citizens' data away from the US. Technologists may find it necessary to build in so many protections, so much encryption and caution, that the openness that is a key value of the net becomes lost.

If we trust the net less, will we use it less? Will it become less of an engine for innovation and economic development? Will it be a diminished tool for speech and assembly among citizens?

If governments use this event as an excuse to exercise more oversight and control over the net, will that not then, in turn, reduce citizens' trust in the net and their freedom using it? Governments present themselves as the protector of our privacy, but as the NSA story demonstrates, governments present the greatest threat to our privacy as they have the means both to surveil us and to use our information against us.

And note well that governments' relationship with the net is necessarily influenced by the net's disruptive force on government: witness the internet's use in organizing protests against governments in Turkey, Brazil, Egypt, Tunisia, Iran, and more nations by the day. Isn't a weakened, controlled, distrusted net in governments' interests?

So far, much of the negative coverage and emotion in this story have centered on the technology companies alleged by Edward Snowden's leaked PowerPoint slides to have cooperated with the NSA. The Washington Post has yet to correct its contention that the NSA and FBI are "tapping directly" into the servers of internet companies, though that simplistic characterization has been soundly denied by Google, Facebook, and others. The Associated Press has given a more nuanced and sensible interpretation of the slides, explaining that some Prism data is the product of warrants served on those companies, producing data from their servers that is delivered by file transfer, or disc in Google's case, and some is the result of apparent wholesale eavesdropping on internet fibre.

That tapping into the net's full flow of communications is far more troubling even than the US government's secret warrants. For a savvy description of how that can occur, listen to security expert Steve Gibson's podcast. I've yet to hear internet bandwidth providers (Level3, Verizon, et al) questioned as internet service companies have been about whether and how they are cooperating with the spies. That is a next phase of this story.

What the NSA is doing may be legal, made so by the Patriot Act. But even on Fox News, regular contributor Andrew Napolitano has questioned whether its actions and this law are constitutional. That is the key question Edward Snowden and company now put before us: what principles are being violated or upheld by the government's actions? That is the discussion we must have. I see these core principles at stake.

First, privacy: in the United States, first-class letters and parcels are protected from search and seizure except by warrant. That should be the case, but is not, for any private communication using any technology: other classes of mail, email, internet telephony, Twitter direct message, or means yet to be invented.

Second, the balance of powers: the NSA is overseen by a secret court and gagged legislators. Thus, save for Snowden's leaking, we the people are excluded from the information we need and the opportunity we deserve to keep our representatives and agents in check.

A third principle riding atop these is transparency: the notion that government should be transparent by default and secret by necessity (and there are necessary secrets). Today, government is secret by default and transparent by force, whether from whistleblowers and journalists. When government threatens to torture the whistleblowers and prosecute the journalists who share information with us, then that puts a chill on speech and a choke on the transparency citizens depend upon to assure their rights and monitor their governments.

The first two are principles enshrined in the US constitution: in the fourth amendment that guarantees freedom from unreasonable searches and seizures; and in the structure of American government itself. The third is a principle whose value I have learned from the net and the power it gives any citizen to speak publicly; to find, organize, or join a public; and ultimately, to choose what is public and what is not. The NSA's actions and the laws that enable them – as well as some occasionally overblown conjecture around this – threaten to diminish the power and freedom of the net.

I worry that the damage is done.

Jeff Jarvis is journalism professor at the City University of New York.

from National Review Online and, 2013-Jun-11, by Victor Davis Hanson:

Pick Your Scandal
Violating Americans' privacy while failing to identify the terrorists among us.

All can agree that the Obama administration is mired in myriads of scandals, but as yet no one can quite figure out what they all mean and where they will lead.

Benghazi differs from all the other scandals — and from both Watergate and Iran-Contra — because in this case administration lapses led to the deaths of four Americans. Nine months later, the administration's problems of damage control remain fourfold: (a) there was ample warning that American personnel were in danger in Libya, and yet requests for increased security were denied; (b) during the actual attack, the American tradition of sending in relief forces on the chance that fellow Americans could be saved was abrogated; (c) the president and his top officials knowingly advanced a narrative of a culpable filmmaker that they knew was not accurate; (d) a through c are best explained as resulting not from honest human error or the fog of war, but from a methodical effort to assure the public in the weeks before the election that “lead from behind” in Libya had been a successful venture and that the death of Osama bin Laden had made al-Qaeda–inspired terrorism rare. All other concerns became secondary, including the safety of Americans in Libya.

Until someone proves that the administration was not wrong in failing to beef up our posts, was not wrong in not ordering immediate succor, was not wrong in blaming the violence on a filmmaker, and was not wrong in covering up the truth by promoting a demonstrably false narrative, the scandal will not go away.

Other questions remained unanswered. What role was the “consulate” actually playing? Who gave the stand-down order despite the calls for help? Who dreamed up the filmmaker-as-guilty-party yarn? Did General David Petraeus's post-Benghazi testimony square with the CIA talking points, and were any of these events related to his post-election resignation? And does Jay Carney face any consequences for blatantly lying to the press corps when he asserted that the administration had made a single adjustment to its Benghazi talking points — when there were, in fact, twelve substantive revised drafts?

In the AP and Fox News scandals, it cannot have been leaks per se that prompted the administration to go after journalists, given that the administration itself had leaked key classified information about the Stuxnet virus, the drone program, the bin Laden hit, and the Yemeni double agent. The suspect reporters were not so much enemies as rivals. They were monitored not because the administration wanted all leaks stopped so as to ensure that national security was not endangered, but because it wished to retain a monopoly on them: In-house favorable leaks were okay; unauthorized ones by others were grounds for surveillance. Note in all these scandals that when the Obama administration begins demonizing an opponent — Fox News since 2009; the Tea Party in 2010 — then usually the government finds a way unlawfully to go after it. For now, the public wonders how does Eric Holder explain his conflicting testimony to Congress, and will those in the administration who leaked favorable classified information to pet reporters be prosecuted? Will granting exclusive access to the bin Laden trove to a reporter like David Ignatius, who could be expected to present a narrative laudatory of the administration, have any repercussions?

The AP/Fox scandal affects not only the reporters involved but also the way the news is disseminated, and the IRS mess potentially affects every American. When the IRS comes calling, Americans cannot employ the sort of obfuscation and dissimulation that the IRS itself now employs. Try taking the Fifth Amendment with an IRS auditor or claiming that a suspicious visit to a business associate was due to an Easter-egg roll, and then see how well your audit goes. Because the system of voluntary tax compliance collapses without honesty and nonpartisanship, our entire tax-collection apparatus is now suspect. Every prominent conservative from now on, every tea-party-like nonprofit organization, every Republican political donor will assume, rightly or wrongly, that the next IRSletter in the mail is not legitimate, but prompted by Obama-era politics.

I don't see how the reputation of the IRS can quite recover, especially given reports of its repugnant waste of money on entertainment and frivolity, at a time of sequester belt-tightening (e.g., why do travelers suffer airline delays supposedly due to thinned-out air-traffic controllers, while IRS agents play-act Captain Kirk and Mr. Spock in a $60,000 parody video?), coupled with the fact that 47 percent of the public pays no federal income tax at all. Add it all up, and there is now a historic opportunity for principled reformers to do away with the IRS as we know it, and to rebrand it as a collection agency for a flat federal income tax. Will a new gang of eight address “comprehensive tax-collection reform”?

So far, we know that the administration's story that IRS malfeasance was confined to a single regional office cannot be true. If it turns out that Washington IRSofficials were communicating with the Obama administration about inordinate scrutiny of political opponents, then the scandal will reach Nixonian proportions.

The problem with the NSA monitoring is not just Obama's hypocrisy of once decrying elements of the Patriot Act only to embrace them, or indeed expand upon them. By now, everyone knows that what Obama demagogued in 2008 was what he adopted in 2009. Nor is the problem that the U.S. does not have a need to monitor the communications of potential terrorists who plan attacks through the Internet, e-mail, and cell phones. Rather, the dilemma for the Obama administration is that the apparently vastly expanded NSA surveillance came at a time when, in high-profile terrorist cases — the Tsarnaev bombing, Major Hasan's murder spree — U.S. officials did not use the intelligence in their possession to preempt terrorist acts. Fairly or not, there is the impression that a James Rosen of Fox News or the tea-party affiliates were more likely to earn unlawful federal attention than was a possible terrorist. In the present climate, the NSA will be presumed guilty of something until proven innocent.

And of course the NSA disclosures do not appear in a vacuum, but amid a multitude of other scandals in which the administration's initial explanations have proven deceptive. In other words, if even a few cases emerge in which those who by no stretch of the imagination could be suspected of terrorism were monitored, then the NSA disclosures will prove by far the most damaging of all the scandals.

Finally, the common denominator in these transgressions is that they all predated the 2012 election, were kept secret from the public, and emerged only once Barack Obama was safely elected. In that regard, they were successful operations that ensured that the voters went to the polls with the impression that al-Qaeda–inspired terror was rare, Libya was secure, the Tea Party had deflated and disappeared, and their unheralded president was, as the good leaks showed, in the shadows successfully fighting terrorists by drone, computer, SEAL teams, and double agents. The later whistle-blowers — the State Department's Gregory Hicks, the NSA's Edward Snowden, and Lois Lerner of the IRS in her psychodramatic response to the set-up questioner – were supposed Obama supporters and came forward only after the election. Note also the clear administration lying: Susan Rice reiterating the false story about a culpable filmmaker and a spontaneous demonstration; Jay Carney sticking to his lie about a single change in administration talking points; Eric Holder misleading Congress by assuring the House Judiciary Committee that he would not do what he in fact did in the James Rosen case; James Clapper insisting to Congress that the NSA collects data only under strict court supervision.

Paranoia over reelection, in classic Nixon style, is the common key that unlocks much of the mystery surrounding the administration's reckless, unethical, and often unlawful behavior.

NRO contributor Victor Davis Hanson is a senior fellow at the Hoover Institution.

from the Associated Press via USA Today, 2013-Sep-11:

Fla. pastor arrested as he prepped to burn Qurans

MULBERRY, Florida (AP) — Law enforcement arrested a Florida pastor Wednesday as he drove to a park to light nearly 3,000 Qurans on fire to protest the 2001 terrorist attacks.

Sheriff's deputies arrested Pastor Terry Jones, 61, and his associate pastor, Marvin Sapp Jr., 34, on felony charges as he drove a pickup truck towing a large barbecue-style grill filled with Qurans soaked in kerosene. He had said he was heading to a nearby park to burn 2,998 Qurans — one for every victim of the Sept. 11, 2001, terrorist attacks. Sheriff's officials said they would hold a news conference later Wednesday to discuss specific charges.

Mulberry's mayor, along with area elected officials, a sheriff's deputy and several Polk County residents have talked about the need to express love and tolerance for all faiths on Sept. 11.

Jones is the pastor of a small evangelical Christian church. He first gained attention in 2010 when he planned to burn a Quran on 9/11, although he eventually called it off. His congregation did burn the Muslim holy book in March 2011 and last year he promoted an anti-Muslim film. All three incidents sparked violence in the Middle East and Afghanistan.

The most violent protest happened after the 2011 Quran burning as hundreds of protesters stormed a U.N. compound in Mazar-i-Sharif in northern Afghanistan, killing seven foreigners, including four Nepalese guards.

Jones has repeatedly ignored pleas from the U.S. military asking him not to stage his protests. Military officials say his actions put American and Western troops in Afghanistan and elsewhere in danger.

Mulberry is a town of about 3,000 between Orlando and Tampa and has no connection to Jones' church, which recently moved out of its Gainesville building.

An Egyptian court convicted Jones, along with seven Egyptian Coptic Christians in absentia, sentencing them to death on charges linked to the film. The ruling was seen as largely symbolic because Jones and the other defendants live outside of Egypt.

Just last week, a federal judge in Michigan issued a summary judgment in favor of Jones and his organization, Stand Up America Now, against the city of Dearborn for requiring Jones and his organization to sign a city-issued agreement in order to speak on public property in front of a Dearborn mosque in 2012.

Earlier Wednesday, about 75 people gathered In Mulberry for an interfaith prayer service to counter Jones' actions.

Mike Ghouse, who has organized a 9/11 prayer service in his home state of Texas for nine years, brought his event to Mulberry because of Jones' planned Quran burning. He initially had planned to hold the service in Texas but teamed with a group of Mulberry residents who had organized an anti-Jones Facebook page.

"Everyone has a right to believe what they believe," said Ghouse, adding that it was Jones' right as an American to express himself. Others said that while Jones was free to say or do whatever he wanted, the people of Mulberry didn't want the world to think that the residents condone or agree with Jones' views.

"We don't buy what Jones is selling," said Polk County resident Butch Rahman.

from PC Magazine, 2013-Nov-7, by Stephanie Mlot:

Google Ordered to Block Formula One Star's Orgy Pics

A French court on Wednesday ruled that Google must remove from its search results photos of a former Formula One racing chief participating in an orgy.

Max Mosley, one-time president of the International Automobile Federation, sued Google in 2011, requesting that the company automatically filter links to a 2008 British newspaper report that included photos and a video of Mosley participating in a Nazi-themed sex party.

Mosley argued that French law prohibits the taking or distribution of images of an individual in a private space without his or her consent. But Google argued that that reasoning limits free speech.

As part of this week's settlement, the tech giant must filter nine images of Mosley from its worldwide search results, and pay him €1 in compensation. Beginning in 2014, the company will also be fined €1,000 every time a salacious photo of Mosley is found in its search engine.

Google did not immediately respond to PCMag's request for comment, but told the New York Times that it plans to appeal the decision.

"The law does not support Mr. Mosley's demand for the construction of an unprecedented new Internet censorship tool," Google Associate General Counsel Daphne Keller said in a September statement. She pointed to repeated European court rulings that found filters to be "blunt instruments that jeopardize lawful expression and undermine users' fundamental right to access information."

A filter may not even solve Mosley's problem, Keller added, explaining that pages removed from search results remain live on the Web, accessible to users by other means, like following links on social networks or navigating to a specific address in a browser.

"It's a fair decision," Clara Zerbib, a Parisian lawyer who represented Mosley, told the Times. "This case isn't about censoring information, but about complying with French law."

There is no word on just how much of a trickle-down effect this week's French court ruling will have on the tech giant, but Keller argued in September that it will leave a mark.

"This is not just a case about Google, but the entire Internet industry," she said. "Any start-up could face the same daunting and expensive obligation to build new censorship tools — despite the harm to users' fundamental rights and the ineffectiveness of such measures."

In 2008, Mosley was awarded £60,000 ($96,000) in a successful suit against England's now-defunct News of the World, which published the photos.

from the Guardian, 2013-Jun-17, by Juli Zeh:

NSA surveillance: what Germany could teach the US
Data protection is to the communication age is what environmental protection was for the age of industrialisation. We must not leave it too late to act

At the end of the G8 meeting in Northern Ireland on Tuesday night, Barack Obama and Angela Merkel will hop on a plane bound for Berlin together. Merkel has already boasted that she will make their meeting an awkward one, promising to ask uncomfortable questions about the Prism affair. The image that comes to my mind is that of a pinscher yapping at a great dane, while the great dane just benignly gazes into the distance.

Of course, the pinscher has every reason to bark its lungs out. Surveillance of worldwide internet communications, as practised by the National Security Agency (NSA) through Prism, is the stuff of Orwellian nightmares. Any democratic system rests on the idea that its citizens can think and act freely – but no individual can act and think freely while being watched. The very fact of being watched means that we act differently. Unsupervised communication between individuals is an essential precondition for a functioning democracy.

There will always be people who dismiss complaints about state surveillance as hysteria. Since 11 September 2001 it has become increasingly easy to discourage those who care about their fundamental rights. Just insist that a new measure will aid the fight against terrorism, and that legitimises it. Particularly in Britain and the US, many people seem surprisingly blase about the idea of the state watching over them.

I despair at such indifference. Germany endured two totalitarian systems in the 20th century. Not just Nazism, but the GDR too, built a dictatorship on the surveillance, registration and selection of individuals. People became objects who were divided into nebulous categories. The fight against terror requires a similar division of civil society according to sex, age, ethnicity, religion and politics. The problem with such machine-led screening methods is not only that it is very hard for people to escape them once they get caught, but that they no longer presume innocence – everyone is now a potential suspect.

Because of this, Germans have traditionally been more sensitive to assaults on their private sphere. There are fewer CCTV cameras, and Google's Street View project was met with widespread resistance in 2010: click yourself through a map of Germany and you'll still find large areas still pixelated. A few weeks ago, Germany published its first post-reunification census – the previous ones in the 1980s were widely boycotted on ethical grounds. But that Germany hasn't reached the level of the US is not thanks to politicians' sense of history, but to the so-called "basic law" that anchors our constitution and the federal constitutional court that protects it. One "security law" after the next has been proposed and then rejected by the court for infringing on civil rights.

But being a little more sensible on civil rights issues than other European states will no longer do. On the contrary: with its unique historical background, Germany should be leading the charge against any form of Big Brother system.

Having been raised in East Germany, Merkel especially should know what is at stake here. She experienced in her youth how long-term surveillance can demoralise the human spirit and distort the character of a society.Explaining that to her American counterpart would be a start for Merkel. She should explain to him that there is a lesson for the rest of the world in Germany's history. In the 21st century, modern technology will take the possibility for total surveillance to a completely new level. Compared with what Prism allows you to do, Stasi activities look like child's play: the size and speed of the data flow threatens to overwhelm the lawmakers who are meant to control it.

My fear is that Merkel's protest will be hard to take seriously, and that Obama will notice this. Since 9/11, Merkel's government has also passed laws that allow the state to virtually x-ray its citizens. Der Spiegel recently reported that Germany's equivalent of the NSA, the BND, is planning to expand its web monitoring programme over the next five years.

Ultimately, Merkel's emphatic concern about the Prism affair stems from the fact there will a federal election in Germany in September. It's a convenient chance to demonstrate a bit of political spine. Once the pinscher's done with the yapping, the great dane will give her a kindly smile and assure her that everything is happening within the law. After that, the excitement about Prism will soon evaporate, and they in America and we in Europe will continue collecting data.

Data protection is to the communication age what environmental protection was for the age of industrialisation. Back then, we lost decades because we didn't realise how severe the damage we were causing really was. Let's try not to make the same mistake twice.

Juli Zeh is an award-winning German novelist. Her novel Dark Matter (Harvill Secker) is longlisted for the 2011 Independent Foreign Fiction Prize

• This article was amended on Tuesday 18 June. Angela Merkel was born in Hamburg, not East Germany, as the seventh paragraph originally stated. She was raised in East Germany.

from McClatchy, 2013-Jul-9, updated 2013-Jul-15, by Jonathan S. Landay and Marisa Taylor:

Experts: Obama's plan to predict future leakers unproven, unlikely to work

WASHINGTON — In an initiative aimed at rooting out future leakers and other security violators, President Barack Obama has ordered federal employees to report suspicious actions of their colleagues based on behavioral profiling techniques that are not scientifically proven to work, according to experts and government documents.

The techniques are a key pillar of the Insider Threat Program, an unprecedented government-wide crackdown under which millions of federal bureaucrats and contractors must watch out for “high-risk persons or behaviors” among co-workers. Those who fail to report them could face penalties, including criminal charges.

Obama mandated the program in an October 2011 executive order after Army Pfc. Bradley Manning downloaded hundreds of thousands of documents from a classified computer network and gave them to WikiLeaks, the anti-government secrecy group. The order covers virtually every federal department and agency, including the Peace Corps, the Department of Education and others not directly involved in national security.

Under the program, which is being implemented with little public attention, security investigations can be launched when government employees showing “indicators of insider threat behavior” are reported by co-workers, according to previously undisclosed administration documents obtained by McClatchy. Investigations also can be triggered when “suspicious user behavior” is detected by computer network monitoring and reported to “insider threat personnel.”

Federal employees and contractors are asked to pay particular attention to the lifestyles, attitudes and behaviors – like financial troubles, odd working hours or unexplained travel – of co-workers as a way to predict whether they might do “harm to the United States.” Managers of special insider threat offices will have “regular, timely, and, if possible, electronic, access” to employees’ personnel, payroll, disciplinary and “personal contact” files, as well as records of their use of classified and unclassified computer networks, polygraph results, travel reports and financial disclosure forms.

Over the years, numerous studies of public and private workers who’ve been caught spying, leaking classified information, stealing corporate secrets or engaging in sabotage have identified psychological profiles that could offer clues to possible threats. Administration officials want government workers trained to look for such indicators and report them so the next violation can be stopped before it happens.

“In past espionage cases, we find people saw things that may have helped identify a spy, but never reported it,” said Gene Barlow, a spokesman for the Office of the National Counterintelligence Executive, which oversees government efforts to detect threats like spies and computer hackers and is helping implement the Insider Threat Program. “That is why the awareness effort of the program is to teach people not only what types of activity to report, but how to report it and why it is so important to report it.”

But even the government’s top scientific advisers have questioned these techniques. Those experts say that trying to predict future acts through behavioral monitoring is unproven and could result in illegal ethnic and racial profiling and privacy violations.

“There is no consensus in the relevant scientific community nor on the committee regarding whether any behavioral surveillance or physiological monitoring techniques are ready for use at all,” concluded a 2008 National Research Council report on detecting terrorists.

“Doing something similar about predicting future leakers seems even more speculative,” Stephen Fienberg, a professor of statistics and social science at Carnegie Mellon University in Pittsburgh and a member of the committee that wrote the report, told McClatchy.

The emphasis on individual lifestyles, attitudes and behaviors comes at a time when growing numbers of Americans must submit to extensive background checks, polygraph tests and security investigations to be hired or to keep government or federal contracting jobs. The U.S. government is one of the world’s largest employers, overseeing an ever-expanding ocean of information.

While the Insider Threat Program mandates that the nearly 5 million federal workers and contractors with clearances undergo training in recognizing suspicious behavior indicators, it allows individual departments and agencies to extend the requirement to their entire workforces, something the Army already has done.

Training should address “current and potential threats in the work and personal environment” and focus on “the importance of detecting potential insider threats by cleared employees and reporting suspected activity to insider threat personnel and other designated officials,” says one of the documents obtained by McClatchy.

The White House, the Justice Department, the Peace Corps and the departments of Health and Human Services, Homeland Security and Education refused to answer questions about the program’s implementation. Instead, they issued virtually identical email statements directing inquiries to the Office of the Director of National Intelligence, declined to comment or didn’t respond.

Caitlin Hayden, a spokeswoman for the White House National Security Council, said in her statement that the Insider Threat Program includes extra safeguards for “civil rights, civil liberties and privacy,” but she didn’t elaborate. Manning’s leaks to WikiLeaks, she added, showed that at the time protections of classified materials were “inadequate and put our nation’s security at risk.”

Reply from the National Security Council

Even so, the new effort failed to prevent former National Security Agency contractor Edward Snowden from taking top-secret documents detailing the agency’s domestic and international communications monitoring programs and leaking them to The Guardian and The Washington Post newspapers.

The initiative goes beyond classified information leaks. It includes as insider threats “damage to the United States through espionage, terrorism, unauthorized disclosure of national security information or through the loss or degradation of departmental resources or capabilities,” according to a document setting “Minimum Standards for Executive Branch Insider Threat Programs.”

McClatchy obtained a copy of the document, which was produced by an Insider Threat Task Force that was set up under Obama’s order and is headed by Director of National Intelligence James Clapper and Attorney General Eric Holder. McClatchy also obtained the group’s final policy guidance. The White House, the Justice Department and the Office of the Director of National Intelligence declined requests for both documents, neither of which is classified.

Although agencies and departments are still setting up their programs, some employees already are being urged to watch co-workers for “indicators” that include stress, divorce and financial problems.

When asked about the ineffectiveness of behavior profiling, Barlow said the policy “does not mandate” that employees report behavior indicators.

“It simply educates employees about basic activities or behavior that might suggest a person is up to improper activity,” he said.

“These do not require special talents. If you see someone reading classified documents they should not be reading, especially if this happens multiple times and the person appears nervous that you saw him, that is activity that is suspicious and should be reported,” Barlow said. “The insider threat team then looks at the surrounding facts and draws the conclusions about the activity.”

Departments and agencies, however, are given leeway to go beyond the White House’s basic requirements, prompting the Defense Department in its strategy to mandate that workers with clearances “must recognize the potential harm caused by unauthorized disclosures and be aware of the penalties they could face.” It equates unauthorized disclosures of classified information to “aiding the enemies of the United States.”

All departments and agencies involved in the program must closely track their employees’ online activities. The information gathered by monitoring, the administration documents say, “could be used against them in criminal, security, or administrative proceedings.” Experts who research such efforts say suspicious behaviors include accessing information that someone doesn’t need or isn’t authorized to see or downloading materials onto removable storage devices like thumb drives when such devices are restricted or prohibited.

“If you normally print 20 documents a week, well, what happens if the next week or the following week you have to print 50 documents or 100 documents? That could be at variance from your normal activity that could be identified and might be investigated,” said Randy Trzeciak, acting manager of the Computer Emergency Response Team Insider Threat Center at Carnegie Mellon University’s Software Engineering Institute.

“We’ve come up with patterns that we believe organizations might be able to consider when determining when someone might be progressing down the path to harm the organization,” said Trzeciak, whose organization has analyzed more than 800 cases and works with the government and private sector on cyber security.

But research and other programs that rely on profiling show it remains unproven, could make employees more resistant to reporting violations and might lead to spurious allegations.

The Pentagon, U.S. intelligence agencies and the Department of Homeland Security have spent tens of millions of dollars on an array of research projects. Yet after several decades, they still haven’t developed a list of behaviors they can use to definitively identify the tiny fraction of workers who might some day violate national security laws.

“We are back to the needle-in-a-haystack problem,” said Fienberg, the Carnegie Mellon professor.

“We have not found any silver bullets,” said Deanna Caputo, principal behavioral psychologist at MITRE Corp., a nonprofit company working on insider threat efforts for U.S. defense, intelligence and law enforcement agencies. “We don’t have actually any really good profiles or pictures of a bad guy, a good guy gone bad or even the bad guy walking in to do bad things from the very beginning.”

Different agencies and departments have different lists of behavior indicators. Most have adopted the traditional red flags for espionage. They include financial stress, disregard for security practices, unexplained foreign travel, unusual work hours and unexplained or sudden wealth.

But agencies and their consultants have added their own indicators.

For instance, an FBI insider threat detection guide warns private security personnel and managers to watch for “a desire to help the ‘underdog’ or a particular cause,” a “James Bond Wannabe” and a “divided loyalty: allegiance to another person or company or to a country besides the United States.”

A report by the Deloitte consulting firm identifies “several key trends that are making all organizations particularly susceptible to insider threat today.” These trends include an increasingly disgruntled, post-Great Recession workforce and the entry of younger, “Gen Y” employees who were “raised on the Internet” and are “highly involved in social networking.”

Report from Deloitte

Some government programs that have embraced behavioral indicators have been condemned as failures. Perhaps the most heavily criticized is the Transportation Security Administration’s Screening of Passengers by Observation Techniques, or SPOT, program.

The program, which has cost $878 million and employs 2,800 people, uses “behavior detection officers” to identify potential terrorists by scrutinizing airline passengers for signs of “stress, fear or deception.”

DHS’ inspector general excoriated the program, saying in a May 2013 report, “TSA cannot ensure that passengers at United States airports are screened objectively, show that the program is cost-effective or reasonably justify the program’s expansion.”

Interviews and internal complaints obtained by The New York Times quoted TSA officers as saying SPOT has led to ethnic and racial profiling by emphasizing certain profiles. They include Middle Easterners, Hispanics traveling to Miami and African-Americans wearing baseball caps backward.

Another problem with having employees report co-workers’ suspicious behaviors: They aren’t sure which ones represent security threats.

“Employees in the field are not averse to reporting genuine security infractions. In fact, under appropriate conditions they are quite willing to act as eyes and ears for the government,” said a 2005 study by the Pentagon’s Defense Personnel Security Research Center. “They are simply confused about precisely what is important enough to report. Many government workers anguish over reporting gray-area behaviors.”

Even so, the Pentagon is forging ahead with training Defense Department and contractor managers and security officials to set up insider threat offices, with one company emphasizing how its course is designed for novices.

“The Establishing an Insider Threat Program for Your Organization Course will take no more than 90 minutes to complete,” says the proposal.

Officials with the Army, the only government department contacted by McClatchy that agreed to discuss the issue, acknowledged that identifying potential insider threats is more complicated than relying on a list of behaviors.

Response from the Army

“What we really point out is if you’re in doubt, report, because that’s what the investigative personnel are there to do, is to get the bottom of ‘is this just noise or is this something that is really going on?’” said Larry Gillis, a senior Army counterintelligence and security official.

The Army implemented a tough program a year before Obama’s executive order after Maj. Nidal Hasan, a U.S.-born Muslim, allegedly killed 13 people in a 2009 rampage at Fort Hood, Texas. Hasan, who has not gone on trial, has said he was defending the Afghan Taliban.

Gillis said the Army didn’t want a program that would “get people to snitch on each other,” nor did it want to encourage stereotyping.

“We don’t have the luxury to make up reasons to throw soldiers out,” Gillis said. “It’s a big deal to remove a soldier from service over some minor issue. We don’t want to ruin a career over some false accusation.”

But some current and former U.S. officials and experts worry that Obama’s Insider Threat Program could lead to false or retaliatory accusations across the entire government, in part because security officials are granted access to information outside their usual purview.

These current and former U.S. officials and experts also ridiculed as overly zealous and simplistic the idea of using reports of suspicious behavior to predict potential insider threats. It takes years for professional spy-hunters to learn their craft, and relying on the observations of inexperienced people could lead to baseless and discriminatory investigations, they said.

“Anyone is an amateur looking at behavior here,” said Thomas Fingar, a former State Department intelligence chief who chaired the National Intelligence Council, which prepares top-secret intelligence analyses for the president, from 2005 to 2008.

Co-workers, Fingar said, should “be attentive” to colleagues’ personal problems in order to refer them to counseling, not to report them as potential security violators. “It’s simply because they are colleagues, fellow human beings,” he said.

Eric Feldman, a former inspector general of the National Reconnaissance Office, the super-secret agency that oversees U.S. spy satellites, expressed concern that relying on workers to report colleagues’ suspicious behaviors to security officials could create “a repressive kind of culture.”

“The answer to it is not to have a Stasi-like response,” said Feldman, referring to the feared secret police of communist East Germany. “You’ve removed that firewall between employees seeking help and the threat that any employee who seeks help could be immediately retaliated against by this insider threat office.”

CORRECTION: An earlier version of this story gave the wrong name and title for Deanna Caputo, the principal behavioral psychologist at MITRE Corp.

from the Wall Street Journal, 2013-May-23, printed 2013-May-24, p.A13, by Theodore J. Boutrous Jr.:

Theodore J. Boutrous Jr.: A Radical Departure on Press Freedom
By the Justice Department's logic, doing basic reporting is committing a crime.

The Justice Department has completely lost sight of the First Amendment. The situation looked grim when the public found out that the department had subpoenaed two months of the Associated Press's phone records for one leak investigation. The latest revelations—the secret tracking and search warrant for the personal email ofFox NewsWashington correspondent James Rosen—show a shocking insensitivity to freedom of the press that is premised on the radical theory that traditional news gathering violates federal criminal laws. On Thursday, NBC News reported that Attorney General Eric Holder had signed off on the warrant.

In June 2009, based on unnamed sources, Mr. Rosen reported that the CIA had learned from someone inside North Korea that Pyongyang planned to conduct nuclear tests in response to United Nations sanctions. In August 2010, the Justice Department indicted State Department security adviser Stephen Jin-Woo Kim for violating the Espionage Act of 1917 by leaking the information. (Mr. Kim pleaded not guilty.)

As the Washington Post first reported on Sunday, the prosecutors—unknown to Mr. Rosen or Fox News—built their case against Mr. Kim by using electronic security badge data to track Mr. Rosen's and Mr. Kim's movements in and out of the State Department and by scouring phone records showing communications between them. The prosecutors also persuaded a federal judge to issue a search warrant for Mr. Rosen's private Gmail account. Fox News is now reporting that they also appear to have tracked Mr. Rosen's parents' phone records, though the Justice Department denies this.

The FBI affidavit, submitted in May 2010 asking the court to issue a search warrant for Mr. Rosen's emails, emphasizes that Mr. Rosen cajoled Mr. Kim to disclose the classified information. He did this by "employing flattery and playing to Mr. Kim's vanity and ego," and by using signals and code names to ensure confidentiality. Remember Deep Throat and the red flag in the flowerpot? Flattering sources and using code are basic techniques reporters use to gather information that the government wants to keep secret. In the words of the Supreme Court in Times-Picayune Publishing Co. v. United States (1953), the press is tasked with "vigilantly scrutinizing" the government "as a potent check on arbitrary action or abuse."

Apparently none of this matters to the prosecutors. Instead, they tracked Mr. Rosen's movements like he was a terrorist and labeled his garden-variety, constitutionally protected reporting techniques a crime. The affidavit declares that there is "probable cause" that Mr. Rosen violated the Espionage Act "at the very least, either as an aider, abettor and/or co-conspirator." This stunning assertion was reiterated to Politico by an unnamed Justice Department spokesperson on Monday.

Search warrants involving journalists are exceedingly rare—and rightfully so. Such warrants, which allow immediate physical or electronic seizure of journalistic materials, pose a clear threat to the First Amendment. (Warrants are worse than subpoenas, since journalists can ordinarily object to and fight subpoenas in court before producing any materials or testifying.)

Congress was so concerned about the potential for abuse of search warrants that in 1980 it enacted the Privacy Protection Act "to limit searches for materials held by persons involved in First Amendment activities." The law provides strong protections for journalists against search warrants. In the case of Mr. Rosen, the government invoked one of the law's few exceptions by accusing him of "committing a crime." The "crime" was asking a government official questions about national security and then publishing the answers.

The Supreme Court, however, has repeatedly made clear that the First Amendment forbids the government from making it a crime for a reporter who lawfully obtains information of public concern to publish it—even if he knows his source may have committed a crime by leaking the information. As the court explained in Bartnicki v. Vopper (2001)—a case in which a radio station broadcast the tape of a cellphone conversation it knew had been illegally recorded and disclosed in violation of federal wiretapping laws—"a stranger's illegal conduct does not suffice to remove the First Amendment shield from speech about a matter of public concern." To conclude otherwise, the court added, would encourage "timidity and self-censorship."

In Bartnicki, the justices rejected arguments for deeming journalistic activities "unlawful" and thus outside First Amendment protection. The federal appeals court in Washington, which will preside over any appeals in Mr. Kim's case, did the same in another wiretapping case, Boehner v. McDermott, in 2007. And the Supreme Court ruled in Smith v. Daily Mail Publishing Co. (1979) that the First Amendment prohibits punishing reporters who use "routine newsgathering techniques"—asking questions— aimed at causing law-enforcement officials to divulge information that criminal law purports to bar them from publishing.

No U.S. court has ever enforced the Espionage Act against a journalist. As its title makes clear, the statute targets officials who engage in espionage by disclosing government secrets to foreign governments or enemies. To stretch its amorphous language to apply to journalists would violate both the First Amendment and due process.

In short, the Justice Department knows better than to suggest that Mr. Rosen committed a crime. This claim was a pretext to get a search warrant and rummage through Mr. Rosen's emails without regard to constitutional and statutory restrictions and the department's own policy guidelines that govern the less invasive subpoena process.

This episode is part of a pattern. The Obama administration is prosecuting a record number of Espionage Act cases against alleged leakers, and along the way it is running roughshod over long-standing precedent and policies regarding journalists.

In the AP matter, the department took the subpoena route but ignored its own guidelines, which require compelling need and surgical precision in seeking information from journalists. It also ignored the requirement to give journalists advance notice to challenge subpoenas in court before records are turned over to prosecutors.

In another pending case, a federal district court in Virginia quashed a subpoena to New York Times reporter James Risen, but a Justice Department lawyer has argued on appeal that the First Amendment provided no protection because Mr. Risen was an "eyewitness to a crime," i.e., the leak of classified information. The lawyer analogized the situation to that of someone who receives illegal drugs from a drug dealer and refuses to testify about it.

This analogy is ludicrous, and the appeals court should reject it. It is disturbing that the government is even making such an argument.

Early Thursday, President Obama said that he is "troubled" about intrusions on press freedom, and that Attorney General Holder will review his department's policies. But given that later in the day Mr. Holder's involvement in the Rosen matter was revealed, a review is not likely to clear the air. Only an immediate repudiation of the misguided policy that has been fueling these leak prosecutions will suffice.

Mr. Boutrous is a partner at Gibson, Dunn & Crutcher LLP. He has represented Dow Jones, the AP and other media organizations in the past.

from the Wall Street Journal, 2013-May-20, printed 2013-May-21, p.A16:

A Journalist 'Co-Conspirator'
The feds accuse a Fox reporter of criminal behavior for doing his job.

Ok, we've learned our lesson. Last week we tried to give the Obama Administration the benefit of the doubt over its far-reaching secret subpoenas to the Associated Press, and now we learn that was the least of its offenses against a free press. No attempt to be generous to this crowd goes unpunished.

The latest news, disclosed by the Washington Post on Monday, is that the Justice Department targeted a Fox News reporter as a potential "co-conspirator" in a leak probe. The feds have charged intelligence analyst Stephen Jin-Woo Kim with disclosing classified information to Fox reporter James Rosen. That's not a surprise considering that this Administration has prosecuted more national-security cases than any in recent history.

The shock is that as part of its probe the Administration sought and obtained a warrant to search Mr. Rosen's personal email account. And it justified such a sweeping secret search by telling the judge that Mr. Rosen was part of the conspiracy merely because he acted like a journalist.

In a May 2010 affidavit in support of obtaining the Gmail search warrant, FBI agent Reginald Reyes declared that "there is probable cause to believe that the Reporter has committed or is committing a violation" of the Espionage Act of 1917 "as an aider and abettor and/or co-conspirator." The Reporter here is Mr. Rosen.

And what evidence is there to believe that Mr. Rosen is part of a spy ring? Well, declares Mr. Reyes, the reporter published a story in June 2009 saying that the U.S. knew that North Korea planned to respond to looming U.N. sanctions with another nuclear test. That U.S. knowledge was classified. But the feds almost never prosecute a journalist for disclosing classified information, not least because reporters can't be sure what's classified and what isn't.

We can recall only a single such prosecution of a journalist under the Espionage Act in 95 years. Julian Assange of WikiLeaks, who isn't a journalist, published far more damaging leaks but has never been indicted for it.

To add to his cloak-and-dagger hype, Mr. Reyes also makes much of the fact that Mr. Rosen used an alias, "Alex," while his alleged source Mr. Kim used the alias, "Leo." Believe it or not, Mr. Rosen also disclosed in one email that he is interested in "breaking news ahead of my competitors." And he even went so far as to urge "Leo" to help him "expose muddle-headed policy when we see it—or force the administration's hand to go in the right direction, if possible."

On the evidence of five years in office that isn't possible, but trying isn't a criminal motive. And if working with a source who uses an alias is now a crime, we've come a long way from the celebration of Bob Woodward and "Deep Throat."

The best face on these accusations is that Mr. Reyes was playing up the conspiracy angle to get the judge to approve a more sweeping search, which he did. The feds were then able to read widely in Mr. Rosen's personal email account, and thus potentially use it against him.

As with the AP subpoenas, this search is overbroad and has a potentially chilling effect on reporters. The chilling is even worse in this case because Mr. Rosen's personal communications were subject to search for what appears to be an extended period of time. At least in the AP case, the subpoena was for past phone logs during a defined period. The message is that anyone who publishes a story the Administration dislikes can be targeted for email searches that could expose personal secrets.

Mr. Reyes is far exceeding his brief here, but the larger fault lies with higher-ups. U.S. Attorney Ronald Machen, who is conducting the AP and Kim leak investigations, clearly has little regard for normal Justice standards and protocol for dealing with the media. Such a sweeping probe should also have been approved by senior Justice officials, at least by the Deputy Attorney General.

With the Fox News search following the AP subpoenas, we now have evidence of a pattern of anti-media behavior. The suspicion has to be that maybe these "leak" investigations are less about deterring leakers and more about intimidating the press. We trust our liberal friends in the press corps won't mute their dismay merely because this time the target is a network they love to hate.

from Politico, 2013-May-21, by Josh Feldman:

Fox's Bret Baier Reveals That DOJ Also Seized Phone Records For James Rosen's Parents

During a panel discussion on the Department of Justice seizing the phone records of Fox News' James Rosen, Bret Baier revealed that the seizure included the phone records of Rosen's parents. The entire panel agreed the scandal was an outrage, with Kirsten Powers pointing out that there have been a number of high-profile leaks from the Obama administration, but the only ones they seem interested in going after are the ones that make them look bad.

Charles Krauthammer found it amazing that the government would make such a “huge assault on the first amendment” in trying to go after Rosen for doing his job. Baier pointed out that Rosen was never formally charged nor contacted by the government. Powers accused the Obama administration of being overconcerned with prosecuting whistleblowers while not going after leakers who reveal positive information about the administration.

Baier then highlighted documents revealing that the seized phone records also included “records [that] relate to James' parents' home in Staten Island.”

Tucker Carlson went after the press for being silent when the White House was trying to basically kick Fox News out of the press room, and warned that the scandal could get bigger with the revelation that a CBS reporter's computer was compromised.

h/t Twitchy

from the Wall Street Journal, 2013-May-20, by David B. Rivkin Jr. and Lee A. Casey:

The IRS and the Drive to Stop Free Speech
Such a scandal was bound to happen after the government started trying to rule the expression of political views.

The unfolding IRS scandal is a symptom, not the disease.For decades, campaign-finance reform zealots have sought to limit core political speech through spending limits and disclosure requirements. More recently, they have claimed that it is wrong and dangerous for tax-exempt entities to engage in political speech.

The Obama administration shares these views, especially when conservative, small-government organizations are involved, and the IRS clearly got the message. While the agency must be investigated and reformed, the ultimate cure for these abuses is to unshackle political speech by all groups, including tax-exempt ones, from arbitrary and unconstitutional government regulation.

Beginning in March 2010, the IRS engaged in an unprecedented campaign of harassment against conservative groups, either through denials or delays in approving their tax-exempt-status applications, or through endless and burdensome audits.

In notable contrast, liberal and "progressive" organizations got approvals with remarkable speed. The most conspicuous example involves the Barack H. Obama Foundation, which was approved as tax exempt within a month by the then-head of the IRS tax-exempt branch, Lois Lerner. From media reports and firsthand accounts, we also know that the IRS disproportionately audited donors to conservative causes and leaked confidential tax information concerning conservative groups in violation of federal law.

This IRS politicization is not an isolated problem. It is an inevitable result of the broader efforts to regulate and, in fact, suppress political speech.

The IRS crackdown on tax-exemption approvals for conservative groups was directed at nonprofit social-welfare groups, often called 501(c)(4)s after the Internal Revenue Code section granting them tax-exempt status. Such groups do not have to disclose their donors and are exempt from most taxation, although donations to them generally aren't tax deductible.

Social-welfare organizations are permitted to engage in a range of political activities promoting their causes or beliefs, so long as these activities aren't their "primary purpose." This has been generally understood to mean that they must spend less than 50% of their total resources on political activities.

The IRS had little interest in 501(c)(4) political activities until the 2002 McCain-Feingold campaign-finance reform. That law barred dedicated political-advocacy groups from soliciting and spending soft money—funds that aren't subject to tight federal campaign-contribution limits and are used for issue advocacy and party-building.

This IRS restraint was doubtless reinforced by the fact that virtually all politically active (c)(4)s, mostly labor and environmental groups, were ideologically liberal and their activities were not attacked in the mainstream media or by the political establishment. Meanwhile, Republicans financed their political activities largely through candidate-specific campaigns and party and congressional committees.

Yet McCain-Feingold had the unintended effect of making 501(c)(4) political activities far more important than they had been, since the law's ban on soft money doesn't apply to such groups. Thus, it prompted the creation of conservative 501(c)(4)s—although there is little hard evidence of improper political activities by any such groups, whether liberal or conservative.

The Supreme Court's 2010 decision in Citizens United further increased the importance of the groups by invalidating the restrictions against much political speech by corporations. This freed 501(c)(4) groups, which ordinarily are organized as corporations, to engage in the express advocacy of political causes and candidates.

The Obama administration made clear its deep dislike of Citizens United and of the various new conservative groups spawned by the "tea party" movement. The IRS bureaucrats took the hint. No express order from senior administration officials would have been necessary. Like other federal enforcement agencies, the IRS has always been well-attuned to even subtle guidance from the White House, Congress and the political establishment.

Thus, the IRS crackdown on conservative organizations was a direct and inevitable consequence of political and policy messaging by the Obama administration, and by the campaign-finance reformers who share these views. Congressional Democrats are also to blame, since many of them have publicly—as with Max Baucus, chairman of the Senate Finance Committee, which oversees the IRS—or privately urged the IRS to go after conservative tax-exempt organizations.

Ignoring their own share of responsibility, campaign-finance reformers and their allies are now pressing to broaden the IRS crackdown to apply to all tax-exempt organizations. In their view, the problem is not only with express political advocacy, but with all tax-exempt activities that might have political overtones, or be related to political issues. Indeed, many argue that such organizations should be conspicuously apolitical.

This is wrong as a matter of law and policy. Congress doesn't have to provide tax-exempt status to social-welfare organizations, but having done so it cannot discriminate by the kind of advocacy in which such groups engage. To say that such activities can have no political implications is an insult to common sense. In a vibrant democracy, every major policy debate has political implications.

The spirited debate about policy issues should be at the core of social-welfare organizations. Politics is how we govern ourselves and political speech is essential to self-governance. The fact that 501(c)(4) group contributors aren't subject to campaign disclosure requirements is a good thing.

There is nothing inherently evil about anonymous political speech. It is firmly anchored in our political and legal culture and was used by the Framers during the founding. Hamilton, Madison and Jay published their Federalist Papers under a pseudonym. The fact that the IRS was able to target conservative donors—similar to the way donors to the NAACP were targeted at the height of the civil-rights battles—shows how disclosure can lead to speech-suppressing government actions.

The courts have long held that the IRS cannot use subjective, "value-laden" tests in administering nonprofit status. As the Court of Appeals for the D.C. Circuit stated in one leading case, Big Mama Rag, Inc. v. United States (1980): "although First Amendment activities need not be subsidized by the state, the discriminatory denial of tax exemptions can impermissibly infringe free speech."

The proper lessons of the unfolding IRS scandal are twofold. First, any effort to have the IRS police advocacy activities of social-welfare organizations is bound to be clumsy and prone to degenerate into either selective or broad witch hunts. Second, the remedy is not to further limit political speech by nonprofit entities—which would certainly raise significant constitutional issues—but to encourage such speech by imposing fewer restrictions.

Messrs. Rivkin and Casey served in the Justice Department during the Reagan and George H.W. Bush administrations. They are partners in the Washington, D.C., office of Baker & Hostetler LLP.

from the Associated Press, 2013-May-19:

AP CEO: Phone Search was 'Unconstitutional'

The president and CEO of The Associated Press says the government's seizure of AP journalists' phone records was "unconstitutional" and already has had a chilling effect on newsgathering.

Gary Pruitt, speaking on CBS' "Face the Nation," says the Justice Department's secret subpoena of reporters' phone records has made sources less willing to talk to AP journalists.

The Justice Department disclosed the seizure of two months of phone records in a letter the AP received May 10. The letter did not state a reason, but prosecutors had said they were conducting a leaks investigation into how the AP learned about an al-Qaida bomb plot in Yemen before it was made public last year.

Pruitt said the AP story contradicted the government's claim at the time there was no terrorist plot.

from NewsMax, 2013-May-14, by David Yonkman:

Carl Bernstein: AP Phone Scandal a 'Nuclear Event'

Washington -- Investigative reporter Carl Bernstein on Tuesday called the scandal involving the Department of Justice securing telephone records of Associated Press reporters and editors a "nuclear event."

"This is outrageous," Bernstein said on MSNBC's "Morning Joe." "It is totally inexcusable. This administration has been terrible on this subject from the beginning.

"The object of it is to intimidate people who talk to reporters," he said. "This was an accident waiting to become a nuclear event, and now it's happened."

The AP reported late Monday afternoon that the "Justice Department secretly obtained two months of telephone records of reporters and editors for The Associated Press."

The organization was not told the reason for the seizure. But the timing and the specific journalistic targets strongly suggest they are related to a continuing government investigation into the leaking of information a year ago about the CIA's disruption of a Yemen-based terrorist plot to bomb an airliner, The New York Times reported.

The development represents the latest collision of news organizations and federal investigators over government efforts to prevent the disclosure of national security information, and it comes against a backdrop of an aggressive policy by the Obama administration to rein in leaks, according to The New York Times.

Under President Barack Obama, six current and former government officials have been indicted in leak-related cases, twice the number brought under all previous administrations combined.

"The numerical thing doesn't matter," said Bernstein, a former Washington Post reporter who, along with Bob Woodward, broke the Watergate scandal that brought down President Richard Nixon. "What matters is, this is a matter of policy. It is known to the president of the United States that this is the policy. To say that there was no knowledge, in quotes, specifically about this in the White House is nonsense."

"This is a policy matter, and this does go to the president and the people around him," he said. "The idea is to try and make an example of those people who talk to reporters, especially on national security matters. National security is always the false claim of administrations trying to hide things that people ought to know."

That the Justice Department sought records of phone calls made over congressional phone lines could also raise a separation of powers issue between the administration and legislative branches of government.

"The First Amendment is first for a reason," House Speaker John Boehner spokesman Michael Steel tells Newsmax. "If the Obama administration is going after reporters' phone records, they better have a damned good explanation."

from the Wall Street Journal, 2013-Jan-30, printed 2013-Jan-31, p.A13, by Daniel Henninger:

Obama's Thunderdome Strategy
The president's goal is to make Republican ideas intolerable.

Few are the men and women in American public life who haven't heard Mr. Dooley's famous aphorism: "Politics ain't beanbag." John Boehner, currently serving out his community service as speaker of the House, appears to have been meditating on Mr. Dooley's cautionary wisdom. At the Ripon Society last week he said the Obama administration was trying "to annihilate the Republican Party."

Better late than never, Speaker Boehner now sees that Barack Obama's notion of political competition is Mad Max inside the Thunderdome: "Two men enter, one man leaves."

Last week during the president's second inaugural address, if one can employ that hallowed phrase to describe this speech, Mr. Obama used the occasion to defend entitlement programs by whacking his defeated presidential opponent: "They do not make us a nation of takers."

This was the second time Mr. Obama used a traditionally elevated forum to take down his opposition. His 2010 State of the Union speech will be remembered in history for nothing other than an attack on members of the Supreme Court seated before him. Justice Samuel Alito's whispered "Not true" would prove a prophetic comment on the Obama modus operandi.

Subsequent targets of the president's contempt have included the members of Congress's deficit-reduction supercommittee, the Ryan budget ("antithetical to our entire history"), repeated attacks on the "well off" and bankers, and famously a $100 million dump-truck of vilification on Mitt Romney.

When he won, the rationalization was that it was all a shrewd if brutal campaign strategy. But it kept coming. What is striking about the Obama technique is that it's not so much criticism as something closer to political obliteration, driving his opposition out of the political arena altogether.

After the inaugural speech, Obama communications director Dan Pfeiffer said that Democrats don't have "an opposition party worthy of the opportunity." Even among the president's supporters, one is hard put now to find anyone who doesn't recognize that Mr. Obama's original appeal to hope and change has given way to search and destroy.

Conventional wisdom holds that these unorthodox tactics are a mistake, that he's going to need GOP support on immigration and such. And by now it's conventional wisdom that when our smiling president transforms into Mr. Hyde he is merely channeling Saul Alinsky, deploying the tactics of community-organizing campaigns, the only operational world he knew before this.

The real pedigree, though, is a lot heavier than community organizing in Chicago.

Speaking last Saturday, Rep. Paul Ryan said that for Barack Obama to achieve his goals, "he needs to delegitimize the Republican Party." Annihilate, delegitimize—it's the same thing. The good news is that John Boehner and Paul Ryan recognize that their relationship with this White House is not as partners in anything. They are prey.

Back in 1965, when American politics watched the emergence of the New Left movement—rebranded today as "progressives"—a famous movement philosopher said the political left should be "liberated" from tolerating the opinions of the opposition:"Liberating tolerance would mean intolerance against movements from the Right and toleration of movements from the Left."

That efficient strategy was the work of Herbert Marcuse, the political theorist whose ideas are generally credited with creating the basis for campus speech codes. Marcuse said, "Certain things cannot be said, certain ideas cannot be expressed, certain policies cannot be proposed." Marcuse created political correctness.

But let's talk about Marcuse in the here and now. He also proposed the withdrawal of toleration "from groups and movements . . . which oppose the extension of public services, social security, medical care, etc."

Barack Obama in his "gloves-off" news conference Jan. 14: "They have suspicions about Social Security. They have suspicions about whether government should make sure that kids in poverty are getting enough to eat or whether we should be spending money on medical research."

Marcuse called this "the systematic withdrawal of tolerance toward regressive and repressive opinions." That, clearly, is what President Obama—across his first term, the presidential campaign and now—has been doing to anyone who won't line up behind his progressivism. Delegitimize their ideas and opinions.

A Marcusian world of political intolerance became a reality on U.S. campuses. With relentless pushing from the president, why couldn't it happen in American political life? Welcome to the Thunderdome.

The original argument for the Obama presidency was that this was a new, open-minded and liberal man intent on elevating the common good. No one believes that now. This will be a second term of imposition. As he said in the inaugural: "Preserving our individual freedoms ultimately requires collective action." That is Marcusian.

If the opposition is looking for one word to shape its role now, it would be this: Dissent.

from the Wall Street Journal, 2012-Nov-16, by Sohrab Ahmari:

How Free Speech Died on Campus
A young activist describes how universities became the most authoritarian institutions in America.

New York

At Yale University, you can be prevented from putting an F. Scott Fitzgerald quote on your T-shirt. At Tufts, you can be censured for quoting certain passages from the Quran. Welcome to the most authoritarian institution in America: the modern university—"a bizarre, parallel dimension," as Greg Lukianoff, president of the Foundation for Individual Rights in Education, calls it.

Mr. Lukianoff, a 38-year-old Stanford Law grad, has spent the past decade fighting free-speech battles on college campuses. The latest was last week at Fordham University, where President Joseph McShane scolded College Republicans for the sin of inviting Ann Coulter to speak.

"To say that I am disappointed with the judgment and maturity of the College Republicans . . . would be a tremendous understatement," Mr. McShane said in a Nov. 9 statement condemning the club's invitation to the caustic conservative pundit. He vowed to "hold out great contempt for anyone who would intentionally inflict pain on another human being because of their race, gender, sexual orientation, or creed."

To be clear, Mr. McShane didn't block Ms. Coulter's speech, but he said that her presence would serve as a "test" for Fordham. A day later, the students disinvited Ms. Coulter. Mr. McShane then praised them for having taken "responsibility for their decisions" and expressing "their regrets sincerely and eloquently."

Mr. Lukianoff says that the Fordham-Coulter affair took campus censorship to a new level: "This was the longest, strongest condemnation of a speaker that I've ever seen in which a university president also tried to claim that he was defending freedom of speech."

I caught up with Mr. Lukianoff at New York University in downtown Manhattan, where he was once targeted by the same speech restrictions that he has built a career exposing. Six years ago, a student group at the university invited him to participate in a panel discussion about the Danish cartoons depicting the Prophet Muhammad that had sparked violent rioting by Muslims across the world.

When Muslim students protested the event, NYU threatened to close the panel to the public if the offending cartoons were displayed. The discussion went on—without the cartoons. Instead, the student hosts displayed a blank easel, registering their own protest.

"The people who believe that colleges and universities are places where we want less freedom of speech have won," Mr. Lukianoff says. "If anything, there should be even greater freedom of speech on college campuses. But now things have been turned around to give campus communities the expectation that if someone's feelings are hurt by something that is said, the university will protect that person. As soon as you allow something as vague as Big Brother protecting your feelings, anything and everything can be punished."

You might say Greg Lukianoff was born to fight college censorship. With his unruly red hair and a voice given to booming, he certainly looks and sounds the part. His ethnically Irish, British-born mother moved to America during the 1960s British-nanny fad, while his Russian father came from Yugoslavia to study at the University of Wisconsin. Russian history, Mr. Lukianoff says, "taught me about the worst things that can happen with good intentions."

Growing up in an immigrant neighborhood in Danbury, Conn., sharpened his views. When "you had so many people from so many different backgrounds, free speech made intuitive sense," Mr. Lukianoff recalls. "In every genuinely diverse community I've ever lived in, freedom of speech had to be the rule. . . . I find it deeply ironic that on college campuses diversity is used as an argument against unbridled freedom of speech."

After graduating from Stanford, where he specialized in First Amendment law, he joined the Foundation for Individual Rights in Education, an organization co-founded in 1999 by civil-rights lawyer Harvey Silverglate and Alan Charles Kors, a history professor at the University of Pennsylvania, to counter the growing but often hidden threats to free speech in academia. FIRE's tactics include waging publicity campaigns intended to embarrass college administrators into dropping speech-related disciplinary charges against individual students, or reversing speech-restricting policies. When that fails, FIRE often takes its cases to court, where it tends to prevail.

In his new book, "Unlearning Liberty," Mr. Lukianoff notes that baby-boom Americans who remember the student protests of the 1960s tend to assume that U.S. colleges are still some of the freest places on earth. But that idealized university no longer exists. It was wiped out in the 1990s by administrators, diversity hustlers and liability-management professionals, who were often abetted by professors committed to political agendas.

"What's disappointing and rightfully scorned," Mr. Lukianoff says, "is that in some cases the very professors who were benefiting from the free-speech movement turned around to advocate speech codes and speech zones in the 1980s and '90s."

Today, university bureaucrats suppress debate with anti-harassment policies that function as de facto speech codes. FIRE maintains a database of such policies on its website, and Mr. Lukianoff's book offers an eye-opening sampling. What they share is a view of "harassment" so broad and so removed from its legal definition that, Mr. Lukianoff says, "literally every student on campus is already guilty."

At Western Michigan University, it is considered harassment to hold a "condescending sex-based attitude." That just about sums up the line "I think of all Harvard men as sissies" (from F. Scott Fitzgerald's 1920 novel "This Side of Paradise"), a quote that was banned at Yale when students put it on a T-shirt. Tufts University in Boston proscribes the holding of "sexist attitudes," and a student newspaper there was found guilty of harassment in 2007 for printing violent passages from the Quran and facts about the status of women in Saudi Arabia during the school's "Islamic Awareness Week."

At California State University in Chico, it was prohibited until recently to engage in "continual use of generic masculine terms such as to refer to people of both sexes or references to both men and women as necessarily heterosexual." Luckily, there is no need to try to figure out what the school was talking about—the prohibition was removed earlier this year after FIRE named it as one of its two "Speech Codes of the Year" in 2011.

At Northeastern University, where I went to law school, it is a violation of the Internet-usage policy to transmit any message "which in the sole judgment" of administrators is "annoying."

Conservatives and libertarians are especially vulnerable to such charges of harassment. Even though Mr. Lukianoff's efforts might aid those censorship victims, he hardly counts himself as one of them: He says that he is a lifelong Democrat and a "passionate believer" in gay marriage and abortion rights. And free speech. "If you're going to get in trouble for an opinion on campus, it's more likely for a socially conservative opinion."

Consider the two students at Colorado College who were punished in 2008 for satirizing a gender-studies newsletter. The newsletter had included boisterous references to "male castration," "feminist porn" and other unprintable matters. The satire, published by the "Coalition of Some Dudes," tamely discussed "chainsaw etiquette" ("your chainsaw is not an indoor toy") and offered quotations from Teddy Roosevelt and The college found the student satirists guilty of "the juxtaposition of weaponry and sexuality."

"Even when we win our cases," says Mr. Lukianoff, "the universities almost never apologize to the students they hurt or the faculty they drag through the mud." Brandeis University has yet to withdraw a 2007 finding of racial harassment against Prof. Paul Hindley for explaining the origins of "wetback" in a Latin-American Studies course. Indiana University-Purdue University Indianapolis apologized to a janitor found guilty of harassment—for reading a book celebrating the defeat of the Ku Klux Klan in the presence of two black colleagues—but only after protests by FIRE and an op-ed in these pages by Dorothy Rabinowitz.

What motivates college administrators to act so viciously? "It's both self-interest and ideological commitment," Mr. Lukianoff says. On the ideological front, "it's almost like you flip a switch, and these administrators, who talk so much about treating every student with dignity and compassion, suddenly come to see one student as a caricature of societal evil."

Administrative self-interest is also at work. "There's been this huge expansion in the bureaucratic class at universities," Mr. Lukianoff explains. "They passed the number of people involved in instruction sometime around 2006. So you get this ever-renewing crop of administrators, and their jobs aren't instruction but to police student behavior. In the worst cases, they see it as their duty to intervene on students' deepest beliefs."

Consider the University of Delaware, which in fall 2007 instituted an ideological orientation for freshmen. The "treatment," as the administrators called it, included personal interviews that probed students' private lives with such questions as: "When did you discover your sexual identity?" Students were taught in group sessions that the term racist "applies to all white people" while "people of color cannot be racists." Once FIRE spotlighted it, the university dismantled the program.

Yet in March 2012, Kathleen Kerr, the architect of the Delaware program, was elected vice president of the American College Personnel Association, the professional group of university administrators.

A 2010 survey by the American Association of Colleges and Universities found that of 24,000 college students, only 35.6% strongly agreed that "it is safe to hold unpopular views on campus." When the question was asked of 9,000 campus professionals—who are more familiar with the enforcement end of the censorship rules—only 18.8% strongly agreed.

Mr. Lukianoff thinks all of this should alarm students, parents and alumni enough to demand change: "If just a handful more students came in knowing what administrators are doing at orientation programs, with harassment codes, or free-speech zones—if students knew this was wrong—we could really change things."

The trouble is that students are usually intimidated into submission. "The startling majority of students don't bother. They're too concerned about their careers, too concerned about their grades, to bother fighting back," he says. Parents and alumni dismiss free-speech restrictions as something that only happens to conservatives, or that will never affect their own children.

"I make the point that this is happening, and even if it's happening to people you don't like, it's a fundamental violation of what the university means," says Mr. Lukianoff. "Free speech is about protecting minority rights. Free speech is about admitting you don't know everything. Free speech is about protecting oddballs. It means protecting dissenters."

It even means letting Ann Coulter speak.

Mr. Ahmari is an assistant books editor at the Journal.

from, 2012-Jan-5, by Staci D. Kramer:

NewsRight Launches With 29 Publishers; `Not A Litigation Shop'

Three years after the Associated Press started the News Registry to help publishers track their content online—and make money from reuse—comes NewsRight, the startup designed to make that work actually pay off.

Headed by David Westin, the former head of ABC News, NewsRight, the new name for AP spinoff NLG, moves into this phase with more than $30 million in cash and in-kind investment from 29 founding news and info publishers covering 841 sites. It also has the rights to license content—not just to track it through the microtag attached to every piece of content on member sites.

The in-kind investment covers the News Registry technology from AP that was spun off into NewsRight's predecessor and other tech assets. Westin, a former AP board member for broadcasting, joined as CEO in April. At ABC (NYSE: DIS) News, Westin ran a large news global organization. At NewsRight, he heads a lean staff spread between San Francisco and New York; he expects to make some sales and product hires soon.

The roster includes Advance, Hearst, the New York Times (NYSE: NYT) and the Washington Post Co. (NYSE: WPO)—but not Gannett (NYSE: GCI) (full list below). No specifics on the amount of cash but there are three different tiers of membership. Each member has one vote and no company has more than one board member; Bob Nutting, president and CEO of Ogden Newspapers, is the chairman.

The News Registry already tracks more than four billion impressions a month from nearly 170 million unique users but NewsRight has yet to sign a single deal. During an interview, Westin said the company was limited to preliminary discussion until it had the full rights clearance from its members.

NewsRight's first target: media monitoring services and others who charge enterprises for collecting news and info. He didn't want to get specific during an interview but for examples think Meltwater, Moreover, Vocus, and BurrellesLuce. He also didn't want to talk specifics about how the economics of a deal would work but said Newsright would get a fee with the bulk going back to publishers based on what they provide.

He hopes going public will encourage people to come up with new products that might have been considered too difficult before NewsRight could offer one-stop licensing across hundreds of sites. NewsRight services also include data and analytics that would show licensees how specific content is being used.

While NewsRight is headed by a lawyer, it would be a mistake to confuse NewsRight with Righthaven or other concepts based on raising money from copyright transgressions. Publishers can use the information provided by NewsRight to pursue their own actions but that's not the startup's mission. “We don't own the copyrights, we couldn't bring a lawsuit if we wanted to,” says Westin. “We really are interested in entering to business relationships and contracts. We're not a litigation shop.”

Full list of NewsRight founding members: Advance Publications, Associated Press, Axel Springer Group, A.H.Belo Management Services, Belo Management Services, Business Wire, Community Newspaper Holdings, El Dia, Galveston Newspapers, Gatehouse Media, The Gazette Company, Hearst Newspapers, Journal Communications (NYSE: JRN), Landmark Media Enterprises, McClatchy (NYSE: MNI), Media General (NYSE: MEG), MediaNews Group, Morris Communications, Morris Multimedia, NPG Newspapers, The New York Times Co., Ogden Newspapers, Pioneer Newspapers, Schurz Communications, E.W. Scripps (NYSE: SSP), Stephens Media, Swift Communications, Times Publishing Co. and Washington Post Co..

from the Atlantic, 2012-Jul/Aug, by Jeffrey Rosen:

The Right to Be Forgotten

For a preview of the titanic clash we're about to witness between privacy and free speech on the Internet, consider the case of Virginia Da Cunha. The Argentinean pop star posed for racy pictures, which found their way to the Internet. Then, thinking better of her decision, she sued Google and Yahoo, demanding they take the pictures down. An Argentinean judge, invoking a version of “the right to be forgotten,” sided with Da Cunha, fined Google and Yahoo, and ordered them to delink all sites with racy pictures that included her name. Claiming that removing only selected pictures was too difficult, Yahoo decided to block all sites even referring to Da Cunha from its Argentinean search engine. Today, when you plug the name Virginia Da Cunha into Yahoo Argentina, you get a blank page and a legal notice that the images have been removed by court order.

Soon, citizens around the world may have the ability to selectively delete themselves from the Internet. At the beginning of this year, Viviane Reding, the European commissioner for justice, fundamental rights, and citizenship, proposed codifying a sweeping version of the right to be forgotten in European data-protection law. The proposal is being strenuously resisted by Facebook and by Google, which could be liable for up to 1 percent of its $37.9 billion annual income if it fails to remove photos or other data that people post about themselves and later think better of, even if the data have been broadly shared.

But the right to be forgotten also gives people the right to demand the removal of embarrassing information that others post about them, regardless of its source, unless Google or Facebook can prove to a European regulator that the information is part of a legitimate journalistic, literary, or artistic exercise. This would transform Facebook and Google from neutral platforms into global censors and would clash directly with the principle, embedded in U.S. free-speech law, that people can't be restricted from publishing embarrassing but truthful information. As a result, the right to be forgotten may precipitate the Internet Age's most dramatic conflict between European conceptions of privacy and American conceptions of free speech.

However the international legal battles are resolved, the impulse to escape your past on the Internet is an understandable one. Who among us doesn't regret a tipsy Facebook photo from Cancún? Perhaps the most effective solution to the drunken-Facebook-photo problem isn't legal but technological. Companies with names like TigerText are already offering the possibility of “disappearing” your data—for example, allowing you to specify, when you send a text message, whether you want it to last for a day or a month. The Europeans may be going overboard in creating a new legal right to escape your past on the Internet, but if the threat of regulation prompts Facebook and Google to explore less heavy-handed ways of empowering users around the globe to clean up their online reputations, perhaps Europe and America can find some kind of common ground after all.

Jeffrey Rosen is a law professor at George Washington University and legal-affairs editor of The New Republic.

from the Daily Mail, 2012-Nov-2, updated 2012-Nov-12, by Dominic Sandbrook:

The new dark age: Across Europe, free speech and democracy face their biggest threat since the Thirties

After a week dominated by the terrible effects of Superstorm Sandy, the increasingly bitter struggle between Barack Obama and Mitt Romney and the continuing fallout from the Jimmy Savile scandal, it was easy to overlook a little story about an obscure Greek journalist called Kostas Vaxevanis.

In its way, though, the ordeal of Mr Vaxevanis, the editor of an Athens magazine, who narrowly escaped prison for publishing the names of suspected tax evaders, is the biggest story of all.

Its themes — the freedom of the Press, the corruption of the establishment, the arrogance of the elite and the terrifying storm engulfing the economies of Europe — go to the heart of a crisis that threatens to tear the Continent apart.

But the Vaxevanis scandal is merely the tip of the iceberg.

From the Leveson Inquiry in London to the attempted comeback of former Italian prime minister Silvio Berlusconi, and from the salons of Paris to the committee rooms of Brussels, there are disturbing signs of a backlash against democracy, free speech and the will of the people — a counter-revolution that could sweep away many of the liberties we take for granted.

For more than half a century after World War II, most of us assumed that life in Europe would always get better. And when the Berlin Wall fell in 1989, it seemed that the tide of freedom was irresistible.

But now, with Europe poised on the brink of a new dark age of austerity, corruption and censorship, I am beginning to wonder if we were wrong all along.

When, many years from now, historians come to explain how it happened, they may well start with the story of Kostas Vaxevanis.

Until this week, few people outside Greece had ever heard of him. His magazine, Hot Doc, is hardly one of the Continent's most prestigious publications.

Last weekend, however, he found himself catapulted into the headlines after publishing a leaked list of some 2,059 rich Greeks who have hidden more than €1 billion in secret Swiss bank accounts.

Given that one of Greece's greatest problems over the last few years has been a corrosive culture of tax evasion — some estimates suggest that the Greek government loses a staggering €15 billion a year in unpaid taxes — it is not surprising that the list aroused an enormous storm.

After all, millions of Greeks are suffering under the most painful austerity regime seen in Europe for generations, with the economy shrinking by almost 5 per cent a year, living standards in freefall and unemployment at a staggering 25 per cent.

Revealingly, the tax evasion list had been doing the rounds of Europe's finance ministries for years.

The French, who got hold of it first, had already passed it to the Greek government — who, living up to their reputation for incompetence and corruption on a world-class scale, did absolutely nothing about it.

But when Mr Vaxevanis leaked the list in his magazine, the Greek people were given a glimpse of their masters' real priorities. Instead of promising to follow up the leads on the list, the governing coalition immediately had him arrested and charged with invading the privacy of the rich plutocrats.

He was, thank goodness, acquitted. Still, his ordeal was reminiscent of something from George Orwell's 1984, or perhaps Franz Kafka's book The Trial, in which an innocent man is arrested and prosecuted by the repressive authorities, without ever being told what he has done wrong. But what makes this even more dangerous is that it comes with the far-Right marching ever more brazenly through the streets of Athens — a frightening reminder that as the political establishment loses its grip, ordinary people turn to the extremes.

In scenes not seen in Europe since the long night of the Thirties, almost every day is bringing new evidence that, in the shattered ruins of the Greek dream, the forces of xenophobia are gathering strength.

In June's general election, the neo-Nazi Golden Dawn party won 18 seats. And earlier this month, uniformed party thugs attacked a theatre in Athens which was staging a show which depicted Jesus and the Apostles as gay men in Texas.

It sounds like something from Hitler's Germany — but it is happening in the heart of Europe in 2012.

A year ago, I warned in these pages that the death agonies of the Eurozone could tip the Continent into its darkest hour since the Thirties. It gives me no satisfaction to see my predictions coming true.

Yet as the case of the magazine editor suggests, the threat to democracy may be subtler, and, therefore, more insidious, than I imagined.

Just look at the situation in Italy. Last November, as its economy imploded, the crooked and inept Silvio Berlusconi was forced out of office and replaced with an unelected, technocratic government answerable to Brussels and Berlin.

From any democratic standpoint, that was pretty bad. What is worse, though, is that despite the appalling revelations about Mr Berlusconi's grotesque sexual depravity, and despite the fact that he has only just been found guilty of fraud and tax evasion, he is now threatening to bring down the government and launch a new bid for office.

Nobody seriously thinks he has Italy's interests at heart. For Mr Berlusconi, the point of returning to the prime ministerial palace would be to castrate his country's corruption laws.

As an ordinary citizen, he might go to jail; as prime minister, he could fix things to ensure he never answers for his crimes. It is easy to dismiss the posturing Mr Berlusconi, with his transplanted hair and populist patter, as merely a buffoon, a comic caricature of everything wrong with Italy's sclerotic, venal, back-scratching civic culture. But the stakes are too high for us to be laughing.

As Europe's fourth biggest economy, Italy is a vital cog in the wheels of continental commerce. Yet in Rome as elsewhere, a vast chasm seems to be opening between a tiny, gilded metropolitan elite, and everybody else.

It speaks volumes, for example, that while Mr Berlusconi has effectively got away with it, several of the country's respected scientists have been jailed for six years for failing to predict an earthquake which killed 309 people in 2009.

How bitterly ironic it was the same Berlusconi who callously remarked that the quake's survivors should treat the experience as a `camping holiday'. But the most frightening irony is that Italy now has a political establishment that jails honest scientists and elevates a convicted fraudster to its highest elected office. What better illustration could there be of a fundamentally rotten system?

The truth is that Berlusconi is a democrat in name only. He only went into politics to protect his corrupt business empire from the long arm of the law.

Worse, he has often spoken openly of his admiration for the Fascist dictator Benito Mussolini — who, according to Berlusconi three years ago, was merely `a benign dictator who did not murder opponents but sent them on holiday'.

Once, it would have been unthinkable for one of Europe's most powerful men to trumpet his admiration for Hitler's chief partner in crime, who colluded in some of the most bloodstained hours in human history. But with supposed statesmen like Mr Berlusconi, who needs the far-Right?

Even in the less anarchic corners of Europe, you can detect signs of the same frightening backlash against the freedom of the Press, the will of the people and the rule of law.

Take, for example, the saga of Valérie Trierweiler, the girlfriend of France's hapless new Socialist president François Hollande. For more than a year, Mme Trierweiler has been trying to stifle press and police investigations into her murky past — so murky, it appears, that nobody outside Paris can be entirely sure what they are investigating.

You might have thought that, in a country that so loudly trumpets its enthusiasm for liberty, the Press would be free to discuss the mysterious affairs of the president's lover. Not a bit of it. Only last June, one of France's best-known commentators, the veteran Philippe Sollers, who has written for the Journal du Dimanche for the last 13 years, was abruptly sacked for criticising the president's mistress.

The cause, explained a rival publication, was `insolence on his part'. In fact, France has some of the most punishing privacy laws in Europe — which explains why it also has some of the most corrupt politicians.

During the Eighties, president François Mitterrand was able to conduct a string of affairs, confident that the Press would never expose him. Indeed, the fact one mistress bore him a secret daughter was not revealed until after his death.

His successor, the shamelessly venal Jacques Chirac, conducted a successful campaign to escape justice for his corruption when he was mayor of Paris.

All of this merely reflects a political culture in France in which power is reserved for a tiny, privileged, self-interested elite, most of whom even attended the same graduate college, the famous Ecole Nationale d'Administration. Mr Hollande's previous lover, for example, was the former Socialist presidential candidate Segolène Royal, who is now conducting an epic feud with Mme Trierweiler. Meanwhile, it has recently emerged that Mme Trierweiler was initially two-timing the president with a minister working for his rival Nicolas Sarkozy.

She even claims to have been chatted up by president Sarkozy himself. So if you ever doubted that French politics was deeply incestuous, think again.

It sounds like the stuff of a cheap Parisian farce. But at a time when the Eurozone is sliding closer to oblivion and voters feel more frightened, alienated and enraged than ever, it is no laughing matter.

We in Britain, meanwhile, have no cause for complacency or self-congratulation.

The awful revelations of the Jimmy Savile affair are a reminder that abuse and corruption can fester within even the most apparently benign institutions, such as the NHS and the BBC.

What is really disturbing is that our political masters seem intent on silencing the free Press that alone can hold them to account.

Yes, some newspapers have behaved terribly badly in recent years. But it is worth remembering that without the courage of Fleet Street, our MPs would still be fiddling their expenses and fleecing the taxpayer.

Remember, too, the Mail's brave campaign to bring Stephen Lawrence's killers to justice. And remember that it was the media, not the government, who exposed Jimmy Savile's appalling abuses.

If the Leveson Inquiry recommends the Government introduces statutory regulation of the Press, then our newspapers' freedom to investigate wrongdoing would be fatally compromised.

Even publications like the satirical magazine Private Eye, which has been exposing the corruption of the rich and powerful for 50 years, would have to answer to state censors.

If this happens, my prediction is that the story of Greek magazine editor Kostas Vaxevanis would become disturbingly familiar.

What would be the result if crusading journalists here tried to expose parliamentary wrongdoing in a few years' time? Might they, too, be threatened with a stretch in prison?

The stark truth is that, as the Eurozone continues to implode, the gulf between rich and poor yawns ever wider and Britain faces a historic decision about its future in Europe, we need a free Press more than ever. The watchwords should be courage and candour, not cowardice and compliance.

Across the board, we need more openness, honesty and principled self-government, not less. Yet with so many crucial decisions being taken in Berlin and Brussels, the principle of democracy itself now feels embattled.

More and more, the scenes on the streets of Athens remind me of the dreadful events of the early Thirties, when economic meltdown, political chaos and a festering sense of resentment paved the way for the greatest tyranny our Continent has ever known.

Yet even in the midst of the economic blizzard, we must hold tighter than ever to the two great principles of free speech and national self-determination. For as Kostas Vaxevanis would tell you, the alternative — a new dark age of repression — is too terrible to contemplate.

from Wired, 2013-Feb-25, by David Kravets:

ISPs Now Monitoring for Copyright Infringement

The nation’s major internet service providers on Monday said they are beginning to roll out an initiative to disrupt internet access for online copyright scofflaws.

The so-called “Copyright Alert System” is backed by the President Barack Obama administration and was pushed heavily by record labels and Hollywood studios.

The plan, more than four years in the making, includes participation by AT&T, Cablevision Systems, Comcast, Time Warner Cable and Verizon. Others could soon join.

After four offenses, the historic plan calls for these residential internet providers to initiate so-called “mitigation measures” (.pdf) that might include reducing internet speeds and redirecting a subscriber’s service to an “educational” landing page about infringement.

The plan does not prevent content owners from suing internet subscribers. The Copyright Act allows damages of up to $150,000 per infringement.

The Center for Copyright Information, the new group running the program, maintains it is not designed to terminate online accounts for repeat offenders. However, the Digital Millennium Copyright Act demands that internet service providers kick off repeat copyright scofflaws.

The program monitors peer-to-peer file-sharing services via internet snoop MarkMonitor of San Francisco. The surveillance was to have been deployed sooner. But the various delays included Hurricane Sandy and ISP reluctance to join.

Peer-to-peer monitoring is easily detectable. That’s because IP addresses of internet customers usually reveal themselves during the transfer of files. Cyberlockers, e-mail attachments, shared Dropbox folders and other ways to infringe are not included in the crackdown.

To be sure, the deal is not as draconian as it could have been.

The agreement, heavily lobbied for by the Recording Industry Association of America and the Motion Picture Association of America, does not require internet service providers to filter copyrighted material transiting their networks. U.S. internet service providers and the content industry have openly embraced that kind filtering. The Federal Communications Commission, in crafting its net neutrality rules, has all but invited the ISPs to practice it.

On a scofflaw’s first offense, internet subscribers will receive an e-mail “alert” from their ISP saying the account may have been misused for online content theft. On the second offense, the alert might contain an “educational message” about the legalities of online file sharing.

On the third and fourth infractions, the subscriber will likely receive a pop-up notice “asking the subscriber to acknowledge receipt of the alert.”

David Kravets is a senior staff writer for and founder of the fake news site He's a dad of two boys and has been a reporter since the manual typewriter days.

from the Wall Street Journal, 2012-Dec-3, p.B7, by Rory Jones:

Nations Meet to Discuss Web Rules

The question of who rules the Internet and how is being debated at a 12-day conference in Dubai.

The World Conference on International Telecommunications, which started Monday, aims to draft a new treaty to underpin international telecommunications regulations. The current rules were put in place in 1988. The conference is sponsored by the International Telecommunication Union, the United Nations agency for information and communication technologies.

[photo with caption: ITU Secretary General Hamadoun Toure, of Mali, spoke Monday.]

The bid to change the rule book has unleashed fears of a grab for centralized control of the Internet by the U.N. The process has also come under criticism for its lack of transparency, with documents unpublished and proposals up for debate kept secret.

Among the most vocal critics are U.S. Internet companies like Google Inc.

Google launched a campaign last month calling for Internet users to lobby their governments to denounce the conference as the wrong forum to decide the future of the Internet.

"Only governments have a voice at the ITU," Google wrote on its Take Action website. "This includes governments that do not support a free and open Internet."

A key battleground at the conference will be a proposal from Russia and several African nations to wrest control of the Internet from Internet Corp. for Assigned Names and Numbers, or Icann, an organization that helps oversee the Internet, and other groups that are primarily based in the U.S.

The Russian proposal, leaked onWCITleaks.ORG, a website set up to counter the lack of transparency, calls for countries to "have equal rights to manage their Internet including in regard to the allotment, assignment and reclamation of Internet numbering, naming addressing and identification resources."

Other proposals put forward by India and some countries from Africa and the Middle East include allowing telecom operators to charge Internet content companies—such as Facebook Inc. and Google's YouTube—a premium for transmitting data across national borders.

That would help telecom companies fund the high cost of upgrading networks to enable them to carry the surge in data expected from smartphones capable of streaming video, they argue.

A group of 17 Arab nations, including the United Arab Emirates, is proposing greater control by governments in regulating the Internet and transfer of data. The group is calling for all Internet users to be universally identified, but critics warn of greater monitoring of Internet traffic and censorship in many countries that already block what their citizens can view online.

Last month, the U. A. E passed wide-ranging cyber laws that prescribes jail sentences for anyone using the Internet to insult the country's leaders or to call for unlicensed demonstrations or marches.

"Governments all over the world are seeking to reclaim grip and control that has slipped from them into the hands of empowered individuals," said Marietje Schaake, a member of the European Parliament.

"Some of the proposals made are considered threats to the open Internet, to net neutrality, or to free speech if adopted," she added.

The European Parliament said last month that the International Telecommunication Union hosting the conference was "not the appropriate body" to have authority over the Internet.

Despite the political saber-rattling, observers don't expect drastic changes to the way the Internet is run will be agreed on at the Dubai conference. ITU Secretary-General Hamadoun Touré has said any changes must be agreed upon by all countries involved.

In a last-minute turnaround Monday, the ITU reversed its stance and said it would publish the conference documents.

"The conference documents will be published tomorrow," said Sarah Parkes, head of public relations for the ITU. "I can't guarantee it will be every proposal we ever received, but it is what we are now working with."

But Ms. Schaake of the European Parliament said there may be further challenges ahead.

"The struggle for digital freedom, control and economic gains will not end at the WCIT," she said. "The ITU (conference) is a test bed for power struggles over the Internet that we will face more of in the future."

from the Wall Street Journal's Political Diary, 2012-Nov-2, by Allysia Finley:

California Shakedown
State Attorney General Kamala Harris goes on a politically motivated fishing expedition, with Gov. Jerry Brown's blessing.

Last week California Attorney General Kamala Harris and the state's Fair Political Practices Commission sued the Arizona-based issue advocacy group Americans for Responsible Leadership, which has contributed $11 million to a conservative political action committee, to force it to disclose its financial backers. A Sacramento superior court judge has just ruled in the state's favor, thus stringing the line for a giant fishing expedition.

Judge Shelleyanne Chang wants Americans for Responsible Leadership to submit to a state audit, which means handing over emails, bank statements and other miscellaneous documents to the Fair Political Practices Commission. According to the commission's chair, Ann Ravel, an appointee of Democratic Gov. Jerry Brown, "it's so important for the public to know before they're voting about who the contributors are to campaigns in California."

Liberals hope the audit will expose a vast right-wing conspiracy, which with any luck is tied to the Koch brothers. The audit, however, was unlikely to be concluded until after the election since the group announced it would appeal an unfavorable ruling (and they have). Which makes Ms. Ravel's statement and the state's lawsuit perplexing.

Then again, the real purpose of the lawsuit probably isn't to expose Americans for Responsible Leadership's donors but rather to send a message to other conservative groups that their money is not welcome in the state. That, and to foment public anger at what Mr. Brown describes as a "shadowy" outside group's attempt to swing an election.

Americans for Responsible Leadership's donation is helping finance attack ads on Mr. Brown's tax initiative (Prop. 30) as well as commercials for a paycheck protection ballot measure (Prop. 32) that would bar unions and corporations from withholding money from workers' dues to fund their political spending. The lawsuit helps feed the Democrats' narrative that "shadowy" special interests are trying to subvert the democratic process.

We think Californians ought to be much more concerned about the governor's behavior. He's using the state's enforcement powers to undercut his political opponents.

from syndication via Rasmussen Reports, 2012-Oct-17, by John Stossel:

Bad Rules

We take free speech for granted in America, unlike elsewhere. The furor over that anti-Muslim video is the latest reminder of that.

But freedom of speech is never safe, even here. Many colleges now impose "civility codes." Civility is nice, but enforcing a "civility rule" against offensive speech would put an end to lots of useful provocative speech. As a University of North Carolina student put it, "A picture of Mitt Romney would offend 70 percent of residence hall students."

Taping my Fox Business Network show at UNC, I also learned that the college, to "protect" women, had dropped the word "freshman." The PC term is now "first year." UNC also decreed that no student may "implicitly" or "explicitly" ask for sex. (Then how do students get it?)

Since sexual activity on campus continues, it's clear that such rules are often ignored. But there is danger in selectively enforced rules. They let authorities punish those with unpopular ideas.

While in North Carolina, we ran across other assaults on freedom of speech. Steve Cooksey started a blog about low-carb nutrition, which included "Dear Abby"-style advice. The state told him that giving such advice without a license is illegal! Cooksey stopped, but enlisted help from the Institute for Justice, the libertarian public-interest law group. Together they sued the state for the free-speech violation. Unfortunately, a federal court dismissed the suit, saying that since the state took no formal action, Cooksey was not harmed. IJ will appeal.

My staff ran his advice by a Harvard nutritionist, who said it was reasonable. But even if it wasn't -- even if it was stupid -- people know that there's plenty of garbage on the Internet.

"Why is it against the law to tell people to avoid grains?" Cooksey asked. "To tell diabetics to reduce carbs to help them normalize their blood sugar? Why is that wrong?" It's "wrong" when politicians are eager to control everything -- even speech about food.

IJ lawyer Paul Sherman said "it would cost Steve thousands of dollars, and take years of his life, to get the dietitian license."

Not only that, it would take 900 hours of apprenticeship even after Cooksey got his degree.

"Anyone who wants to can write a book about nutrition. What the state of North Carolina has said is that you can write a book about nutrition, but if you want to give one-on-one advice to someone, that's categorically forbidden."

Sherman points out that licensing rules keep getting more intrusive: "Fifty years ago, only 5 percent of the American population needed a license from government to work in their chosen occupation. Now that number is 30 percent."

Often licensing is imposed because established businesses want to protect their incomes.

"The story that we see again and again is that the industry itself is the one who's calling for regulation," Sherman said. "It's not that the public is afraid that people like Steve are giving dietary advice. It's dietitians (who) don't want Steve competing with them."

Sherman says North Carolina is about average in terms of unnecessary regulations. It takes $120 in fees and 250 days of classes -- a total of two years -- to be able to cut hair legally. It takes three years to become a landscape contractor. Such rules are a reason unemployment stays high.

And there's no proof that the rules make us safer. "A dozen states don't have any licensure requirements for nutritionists," said Sherman. "Are people in those states more in danger than people in North Carolina?"

I supported occupational licensing when I was a young consumer reporter. But now I've wised up. Now I see that it doesn't protect consumers. Competition and reputation are better protection. When you move to a new community, do you choose new dentists or mechanics by checking their licenses? No. You ask neighbors or colleagues for recommendations, or check Consumer Reports and Angie's List. You check because you know that even with licensing laws, there is quackery.

Licensing creates a false sense of security, raises costs, stifles innovation, takes away consumer choice and interferes with the right to earn a living.

And now I see another reason to object to it. It collides with freedom of speech.

John Stossel is host of "Stossel" on the Fox Business Network. He's the author of "Give Me a Break" and of "Myth, Lies, and Downright Stupidity."

from the Associated Press, 2012-Sep-13, by Eileen Sullivan and Stephen Braun:

Feds ID California man's role in anti-Islam film

WASHINGTON — Federal authorities have identified a southern California man once convicted of financial crimes as the key figure behind the anti-Muslim film that ignited mob violence against U.S. embassies across the Mideast, a U.S. law enforcement official said Thursday.

Attorney General Eric Holder said that Justice Department officials had opened a criminal investigation into the deaths of the U.S. ambassador to Libya and three other diplomats killed during an attack on the American mission in Benghazi. It was not immediately clear whether authorities were focusing on the California filmmaker as part of that probe.

A federal law enforcement official said Thursday that Nakoula Basseley Nakoula, 55, was the man behind "Innocence of Muslims," a film denigrating Islam and the Prophet Muhammad that sparked protests earlier in the week in Egypt and Libya and now in Yemen. U.S. authorities are investigating whether the deaths of U.S. Ambassador Chris Stevens and three other Americans in Libya came during a terrorist attack.

The official, who spoke on condition of anonymity because he was not authorized to discuss an ongoing investigation, said Nakoula was connected to the persona of Sam Bacile, a figure who initially claimed to be the writer and director of the film. But Bacile quickly turned out to a false identity and the Associated Press traced a cellphone number used by Bacile to a southern California house where Nakoula was found.

Bacile initially claimed a Jewish and Israeli background. But others involved in the film said his statements were contrived as evidence mounted that the film's key player was a southern Californian Coptic Christian with a checkered past.

Nakoula told The Associated Press in an interview outside Los Angeles Wednesday that he managed logistics for the company that produced "Innocence of Muslims," which mocked Muslims and the prophet Muhammad.

Nakoula denied that he was Bacile and insisted he did not direct the film, though he said he knew Bacile. But federal court papers filed against Nakoula in a 2010 criminal prosecution said that he had used numerous aliases in the past. Among the fake names, the documents said, were Nicola Bacily, Robert Bacily and Erwin Salameh, all similar to the Sam Bacile persona. Other aliases described in the documents included Ahmad Hamdy, Kritbag Difrat and PJ Tobacco.

During a conversation outside his home, Nakoula offered his driver's license to show his identity but kept his thumb over his middle name, Basseley. Records checks by the AP subsequently found that middle name as well as other connections to the Bacile persona.

The AP located Bacile after obtaining his cellphone number from Morris Sadek, a conservative Coptic Christian in the U.S. who had promoted the anti-Muslim film in recent days on his website. Egypt's Christian Coptic populace has long decried what they describe as a history of discrimination and occasional violence from the country's Arab majority.

Pastor Terry Jones, of Gainesville, Fla., who sparked outrage in the Arab world when he burned Qurans on the ninth anniversary of 9/11, said he spoke with the movie's director on the phone Wednesday and prayed for him. Jones said he has not met the filmmaker in person but added that the man contacted him a few weeks ago about promoting the movie. Jones and others who have dealt with the filmmaker said Wednesday that Bacile was hiding his real identity.

"I have not met him. Sam Bacile, that is not his real name," Jones said. "I just talked to him on the phone. He is definitely in hiding and does not reveal his identity. He was quite honestly fairly shook up concerning the events and what is happening. A lot of people are not supporting him. He was generally a little shook up concerning this situation."

The YouTube account under the username "Sam Bacile," which was used to publish excerpts of the provocative movie in July, was used to post comments online as recently as Tuesday, including this defense of the film written in Arabic: "It is a 100 percent American movie, you cows."

Nakoula, who talked guardedly about his role, pleaded no contest in 2010 to federal bank fraud charges in California and was ordered to pay more than $790,000 in restitution. He was also sentenced to 21 months in federal prison and ordered not to use computers or the Internet for five years without approval from his probation officer.

Assistant U.S. Attorney Jennifer Leigh Williams said Nakoula set up fraudulent bank accounts using stolen identities and Social Security numbers; then, checks from those accounts would be deposited into other bogus accounts from which Nakoula would withdraw money at ATM machines.

It was "basically a check-kiting scheme," the prosecutor told the AP. "You try to get the money out of the bank before the bank realizes they are drawn from a fraudulent account. There basically is no money."

Prior to his bank fraud conviction, Nakoula struggled with a series of financial problems in recent years, according to California state tax and bankruptcy records. In June 2006, a $191,000 tax lien was filed against him in the Los Angeles County Recorder of Deeds office. In 1997, a $106,000 lien was filed against him in Orange County.

American actors and actresses who appeared in "Innocence of Muslims" issued a joint statement Wednesday saying they were misled about the project and alleged that some of their dialogue was crudely dubbed during post-production.

In the English-language version of the trailer, direct references to Muhammad appear to be the result of post-production changes to the movie. Either actors aren't seen when the name "Muhammad" is spoken in the overdubbed sound, or they appear to be mouthing something else as the name of the prophet is spoken.

"The entire cast and crew are extremely upset and feel taken advantage of by the producer," said the statement, obtained by the Los Angeles Times. "We are 100 percent not behind this film and were grossly misled about its intent and purpose. We are shocked by the drastic rewrites of the script and lies that were told to all involved. We are deeply saddened by the tragedies that have occurred."

One of the actresses, Cindy Lee Garcia, told KERO-TV in Bakersfield that the film was originally titled "Desert Warriors" and that the script did not contain offensive references to Islam.

She wants her name cleared.

"When I found out this movie had caused all this havoc, I called Sam and asked him why, what happened, why did he do this? I said, 'Why did you do this to us, to me and to us?' And he said, 'Tell the world that it wasn't you that did it, it was me, the one who wrote the script, because I'm tired of the radical Muslims running around killing everyone,'" she said.

Garcia said the director, who identified himself as Bacile, told her then that he was Egyptian.

The person who identified himself as Bacile and described himself as the film's writer and director told the AP on Tuesday that he had gone into hiding. But doubts rose about the man's identity amid a flurry of false claims about his background and role in the purported film.

Bacile told the AP he was an Israeli-born, 56-year-old Jewish writer and director. But a Christian activist involved in the film project, Steve Klein, told the AP on Wednesday that Bacile was a pseudonym and that he was Christian.

Klein had told the AP on Tuesday that the filmmaker was an Israeli Jew who was concerned for family members who live in Egypt.

Officials in Israel said there was no record of Bacile as an Israeli citizen.

When the AP initially left a message for Bacile, Klein contacted the AP from another number to confirm the interview request was legitimate; then Bacile called back from his own cellphone.

Klein said he didn't know the real name of the man he called "Sam," who came to him for advice on First Amendment issues.

About 15 key players from the Middle East — people from Syria, Iraq, Turkey, Pakistan and Iran, and a couple of Coptic Christians from Egypt — worked on the film, Klein said.

"Most of them won't tell me their real names because they're terrified," Klein said. "He was really scared and now he's so nervous. He's turned off his phone."

An official of the Coptic Orthodox Church in Los Angeles said in a statement Thursday that the church's adherents had no involvement in the "inflammatory movie about the prophet of Islam." An official identified as HG Bishop Serapion, of the Coptic Orthodox of Los Angeles, said that "the producers of this movie should be responsible for their actions. The name of our blessed parishioners should not be associated with the efforts of individuals who have ulterior motives."

The Southern Poverty Law Center, which monitors hate groups, said Klein is a former Marine and longtime religious-right activist who has helped train paramilitary militias at a California church. It described Klein as founder of Courageous Christians United, which conducts protests outside abortion clinics, Mormon temples and mosques.

It quoted Klein as saying he believes that California is riddled with Muslim Brotherhood sleeper cells "who are awaiting the trigger date and will begin randomly killing as many of us as they can."

In his brief interview with the AP, the man identifying himself as Bacile called Islam a cancer and said he intended the film to be a provocative political statement condemning the religion.

But several key facts Bacile provided proved false or questionable. Bacile told the AP he was 56 but identified himself on his YouTube profile as 74. Bacile said he is a real estate developer, but Bacile does not appear in searches of California state licenses, including the Department of Real Estate.

Hollywood and California film industry groups and permit agencies said they had no records of the project under the name "Innocence of Muslims," but a Los Angeles film permit agency later found a record of a movie filmed in Los Angeles last year under the working title "Desert Warriors."

A man who answered a phone listed for the Vine Theater, a faded Hollywood movie house, confirmed that the film had run for a least a day, and possibly longer, several months ago, arranged by a customer known as "Sam."

Google Inc., which owns YouTube, pulled down the video Wednesday in Egypt, citing a legal complaint. It was still accessible in the U.S. and other countries.

Klein told the AP he vowed to help make the movie but warned the filmmaker that "you're going to be the next Theo van Gogh." Van Gogh was a Dutch filmmaker killed by a Muslim extremist in 2004 after making a film that was perceived as insulting to Islam.

"We went into this knowing this was probably going to happen," Klein said.

Braun and Sullivan reported from Washington. Associated Press writers Gillian Flaccus, Shaya Tayefe Mohajer and Michael Blood in Los Angeles, Tamara Lush in Tampa, Fla., and AP researcher Rhonda Shafner in New York contributed to this report.

from USA Today via, 2009-Oct-19, by Jonathan Turley:

Just Say No To Blasphemy: U.S. Supports Egypt in Limiting Anti-Religious Speech

Here is today's column in USA Today on the Obama Administration's decision to join the U.N. Human Rights Council and support Egypt in recognizing limits on free speech for those who insult or denigrate religion. While the exception was included in a resolution heralding free speech, it was viewed as a major victory for Muslim countries seeking to establish an international blasphemy law.

Around the world, free speech is being sacrificed on the altar of religion. Whether defined as hate speech, discrimination or simple blasphemy, governments are declaring unlimited free speech as the enemy of freedom of religion. This growing movement has reached the United Nations, where religiously conservative countries received a boost in their campaign to pass an international blasphemy law. It came from the most unlikely of places: the United States.

While attracting surprisingly little attention, the Obama administration supported the effort of largely Muslim nations in the U.N. Human Rights Council to recognize exceptions to free speech for any “negative racial and religious stereotyping.” The exception was made as part of a resolution supporting free speech that passed this month, but it is the exception, not the rule that worries civil libertarians. Though the resolution was passed unanimously, European and developing countries made it clear that they remain at odds on the issue of protecting religions from criticism. It is viewed as a transparent bid to appeal to the “Muslim street” and our Arab allies, with the administration seeking greater coexistence through the curtailment of objectionable speech. Though it has no direct enforcement (and is weaker than earlier versions), it is still viewed as a victory for those who sought to juxtapose and balance the rights of speech and religion.

A `misused' freedom?

In the resolution, the administration aligned itself with Egypt, which has long been criticized for prosecuting artists, activists and journalists for insulting Islam. For example, Egypt recently banned a journal that published respected poet Helmi Salem merely because one of his poems compared God to a villager who feeds ducks and milks cows. The Egyptian ambassador to the U.N., Hisham Badr, wasted no time in heralding the new consensus with the U.S. that “freedom of expression has been sometimes misused” and showing that the “true nature of this right” must yield government limitations.

His U.S. counterpart, Douglas Griffiths, heralded “this joint project with Egypt” and supported the resolution to achieve “tolerance and the dignity of all human beings.” While not expressly endorsing blasphemy prosecutions, the administration departed from other Western allies in supporting efforts to balance free speech against the protecting of religious groups.

Thinly disguised blasphemy laws are often defended as necessary to protect the ideals of tolerance and pluralism. They ignore the fact that the laws achieve tolerance through the ultimate act of intolerance: criminalizing the ability of some individuals to denounce sacred or sensitive values. We do not need free speech to protect popular thoughts or popular people. It is designed to protect those who challenge the majority and its institutions. Criticism of religion is the very measure of the guarantee of free speech — the literal sacred institution of society.

Blasphemy prosecutions in the West appear to have increased after the riots by Muslims following the publication of cartoons disrespecting prophet Mohammed in Denmark in 2005. Rioters killed Christians, burned churches and called for the execution of the cartoonists. While Western countries publicly defended free speech, some quietly moved to deter those who'd cause further controversies through unpopular speech.

In Britain, it is a crime to “abuse” or “threaten” a religion under the Racial and Religious Hatred Act 2006. A 15-year-old boy was charged last year for holding up a sign outside a Scientology building declaring, “Scientology is not a religion, it is a dangerous cult. “In France, famed actress Brigitte Bardot was convicted for saying in 2006 that Muslims were ruining France in a letter to then-Interior Minister (and now President) Nicolas Sarkozy. This year, Ireland joined this self-destructive trend with a blasphemy law that calls for the prosecution of anyone who writes or utters views deemed “grossly abusive or insulting in relation to matters held sacred by any religion, thereby causing outrage among a substantial number of the adherents of that religion; and he or she intends, by the publication of the matter concerned, to cause such outrage.”

`Blasphemy' incidents

Consider just a few such Western “blasphemy” cases in the past two years:

• In Holland, Dutch prosecutors arrested cartoonist Gregorius Nekschot for insulting Christians and Muslims with cartoons, including one that caricatured a Christian fundamentalist and a Muslim fundamentalist as zombies who want to marry and attend gay rallies.

• In Canada, the Alberta human rights commission punished the Rev. Stephen Boission and the Concerned Christian Coalition for anti-gay speech, not only awarding damages but also censuring future speech that the commission deems inappropriate.

• In Italy, comedian Sabina Guzzanti was put under criminal investigation for joking at a rally that “in 20 years, the pope will be where he ought to be — in hell, tormented by great big poofter (gay) devils, and very active ones.”

• In London, an aide to British Foreign Secretary David Miliband was arrested for “inciting religious hatred” at his gym by shouting obscenities about Jews while watching news reports of Israel's bombardment of Gaza.Also, Dutch politician Geert Wilders was barred from entering Britain as a “threat to public policy, public security or public health” because he made a movie describing the Quran as a “fascist” book and Islam as a violent religion.

• In Poland, Catholic magazine Gosc Niedzielny was fined $11,000 for inciting “contempt, hostility and malice”by comparing the abortion of a woman to the medical experiments at Auschwitz.

The “blasphemy” cases include the prosecution of writers for calling Mohammed a “pedophile” because of his marriage to 6-year-old Aisha (which was consummated when she was 9). A far-right legislator in Austria, a publisher in India and a city councilman in Finland have been prosecuted for repeating this view of the historical record.

In the flipside of the cartoon controversy, Dutch prosecutors this year have brought charges against the Arab European League for a cartoon questioning the Holocaust.

What's next?

Private companies and institutions are following suit in what could be seen as responding to the Egyptian-U.S. call for greater “responsibility” in controlling speech. For example, in an act of unprecedented cowardice and self-censorship, Yale University Press published The Cartoons That Shook the World, a book by Jytte Klausen on the original Mohammed cartoons. Yale, however, (over Klausen's objections) cut the actual pictures of the cartoons. It was akin to publishing a book on the Sistine Chapel while barring any images of the paintings.

The public and private curtailment on religious criticism threatens religious and secular speakers alike. However, the fear is that, when speech becomes sacrilegious, only the religious will have true free speech. It is a danger that has become all the more real after the decision of the Obama administration to join in the effort to craft a new faith-based speech standard. It is now up to Congress and the public to be heard before the world leaves free speech with little more than a hope and a prayer.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University and a member of USA TODAY's board of contributors.

from ZDNet UK, 2012-Feb-29, by Ben Woods:

Schmidt: UN treaty a 'disaster' for the internet

Internet freedom and innovation are at risk of being stifled by a new United Nations treaty that aims to bring in more regulation, Google's executive chairman Eric Schmidt has warned.

At Mobile World Congress, Google's Eric Schmidt has warned against a new UN treaty that could bring in more internet regulation. Image credit: Stephen Shankland/CNET News

In a question-and-answer session at Mobile World Congress 2012 on Tuesday, Schmidt said handing over control of things such as naming and DNS to the UN's International Telecommunications Union (ITU) would divide the internet, allowing it to be further broken into pieces regulated in different ways.

"That would be a disaster... To some, the openness and interoperability is one of the greatest achievements of mankind in our lifetime. Do not give that up easily. You will regret it. You will hate it, because all of a sudden all that freedom, all that flexibility, you'll find it shipped away for one good reason after another," Schmidt said.

"I cannot be more emphatic. Be very, very careful about moves which seem logical, but have the effect of balkanising the internet," he added, urging everyone to strongly resist the moves.

International governance of the internet

The ITU, which is part of the United Nations, this week began discussing changes to a 1988 treaty that would bring in international governance of the internet. At the moment, web businesses, technology providers, user groups, engineering groups and others collaborate without such oversight to keep the internet running.

The new proposals, thought to be backed by Russia and China, would extend regulation into areas such as cybersecurity and give the ITU dominance over such "ground up" organisations as ICANN, according to US Federal Communications Commissioner Robert McDowell. The proposals will go to a vote by the 193 members of the ITU at a meeting in Dubai in November, after which they could become part of international law.

Google, which has crossed swords with regulators in the EU and elsewhere, has been campaigning against more internet regulation for years. Vint Cerf, chief internet evangelist at the web giant, highlighted an online petition against such moves in a blog post in December 2010.

"There's a lot of concern among the internet community about the transfer of control of the internet to the ITU," Schmidt said at MWC in Barcelona. "The ITU is a magnificent organisation and has done a great job in telecommunications... but the principles of the way that the web has worked are different."

"If the current governance is working pretty well — and I think it is — I wouldn't move it [control of the internet] or if I did I would do it very, very carefully," he added.

Role of regulators

Schmidt acknowledged regulators have a role to play. However, he advised decision makers to consider the future when settling on how to govern the internet over things such as privacy.

"There's a tendency of regulators to regulate what is happening now as opposed to what will be," he said. "If you have to regulate, try to do it for an outcome, not the technology. If there is an outcome you don't like, don't specify in law a specific type of solution, because the technology moves forward."

In addition, regulators should explain more fully the true outcomes of their decisions, he urged.

"The unintended cost of regulation is often the loss of innovation," Schmidt said. "There's a winner and a loser in these regulatory battles... You have to be very careful to frame that correctly, so people understand what they are losing as well as what they are gaining."

from the Sun of Kuala Lumpur Malaysia, 2012-May-21, by Michelle Chun:

Internet users cry foul over amendment to Evidence Act

PETALING JAYA (May 20, 2012): The recently passed Evidence (Amendment) (No 2) Act 2012, whereby internet users are held liable for any content posted through their registered networks or data processing device, is both unfair and an attempt to put fear in people, says civil society.

The amended law will have serious repercussions on internet use as the owner of the site or device is presumed guilty and has to fight to prove his innocence, they say.

What this means is, if an anonymous person posts content said to be offensive on your Facebook wall, or if someone piggybacks your WiFi account and uploads a controversial document, you will be immediately deemed the publisher of the content and subject to prosecution under the relevant laws such as the Sedition Act.

Not only that, if a person starts a blog in your name and publishes content that is red-flagged, you will be considered the publisher unless you can prove otherwise.

All of this is provided for through the insertion of Section 114A into the Act which was recently bulldozed through both houses of Parliament in its last meeting with no debate.

Section 114A, which explains presumption of fact in publication, states:

– a person whose name, photograph or pseudonym appears on any publication depicting himself as the owner, host, administrator, editor or sub-editor, or who in any manner facilitates to publish or re-publish the publication is presumed to have published or re-published the contents of the publication unless the contrary is proved.

– a person who is registered with a network service provider as a subscriber of a network service on which any publication originates from is presumed to be the person who published or re-published the publication unless the contrary is proved.

– Any person who has in his custody or control any computer on which any publication originates from is presumed to have published or re-published the content of the publication unless the contrary is proved. (Computer here means any data processing device, including tablets, laptops and mobile phones.)

Kuala Lumpur Bar Information Technology Committee co-chairman Foong Cheng Leong told theSun these amendments would put fear in people.

“We shouldn't even be discussing this law because it is based on the idea that one is presumed being guilty until proven innocent.

“Why does the owner of a site, or Facebook account, have to take the rap and prove his innocence while being subject to investigation and seizure of property?” he asked.

Minister in the Prime Minister's Department Datuk Seri Nazri Abdul Aziz, while winding up the Bill in Parliament on April 18, had said the use of pseudonyms and anonymity by any party to commit cyber crimes made it difficult for action to be taken against them.

Hence, he said the Evidence Act 1950 had to be amended to address the issue of internet anonymity.

However, Internet Society Malaysian Chapter chairman Julian Vincent told theSun such amendments could be open to abuse by the investigators and force an innocent party to rebut the presumption of guilt at serious risk of wrongful prosecution and injustice.

“In the internet environment where the websites even of the largest organisations are susceptible to hacking and manipulation, it is dangerous to have this presumption in place.

“The society expresses its hope that the cabinet will revise the current text and work to address privacy considerations and protect citizens' rights and civil liberties in any future cyber security legislation,” he said.

Centre for Independent Journalism executive officer Masjaliza Hamzah said the amendments were a definite threat to freedom of expression and media freedom.

“The amendments are clearly an indirect way to control online content as it makes online sites responsible for comments posted by readers; forget about disclaimers on the comment section.

“This may force some sites to stop the comment feature because having to vet comments themselves may become untenable, and if this happens, it has a huge impact on the interactive nature of online media favoured by readers,” she said when contacted.

A blogger known as Obefiend added such amendments would make it difficult for people to prove their innocence because everything is hackable when dealing with the online world.

“There always is ambiguous evidence when dealing with electronic presence, which makes proving you are indeed not the publisher very tough,” said the blogger, who writes on Blog Serius.

“It's very scary and distressing to know that if somebody uses my name, I am automatically presumed guilty and have to prove my innocence,” he said.

from the Wall Street Journal's Political Diary, 2012-Jun-21, by Danielle Charette:

Worst Proposal of the Year?

Liberals are importuning the Supreme Court this week to use a Montana campaign finance case to overturn 2010's Citizens United decision. That's unlikely to happen. But any justices tempted to recant on protecting speech ought to ponder a new proposal that would overturn the First Amendment.

Introduced this week by Democratic Rep. Adam Schiff of California, and drafted by Harvard law professor Laurence Tribe, the amendment overturns Citizens and a slew of other legal precedents. Among them is Buckley v. Valeo, the 1976 case that upheld limits on campaign contributions but said that political spending by individuals is constitutionally protected speech. So much for stare decisis.

So much, too, for the Democratic claims that the problem is corporate spending on politics in the wake of Citizens. For the likes of Mr. Schiff, the problem is the existence of political speech itself, unmediated by the government. "Nothing in this Constitution shall be construed to forbid Congress or the states from imposing content-neutral limitations on private campaign contributions or independent political campaign expenditures," his amendment reads.

In other words, under the Schiff-Tribe amendment, anything political that involves the exchange of money—i.e., everything—would be open to regulation. That's everything from a TV ad to educate the public to a leaflet with a postage stamp. It's newspapers, books, the Internet and much else, too, since there's no exemption for the press.

Naturally Mr. Schiff's amendment has no chance of passage, but it does illustrate the glories of modern liberalism.

from the Wall Street Journal, 2012-Jun-17, by L. Gordon Crovitz:

Crovitz: The U.N.'s Internet Power Grab
Leaked documents show a real threat to the international flow of information.

It's easy to understand why countries like Russia, China and Iran would want to rewire the Internet, cutting off access to their citizens and undermining the idea of a World Wide Web. What's more surprising is that U.S. diplomats are letting authoritarian regimes hijack an obscure U.N. agency to undermine how the Internet works, including for Americans.

The failure by U.S. negotiators to stop attacks on the Internet became known only through documents leaked last week. They concern a U.N. agency known as the International Telecommunications Union. Founded in 1865 to regulate the telegraph, the body (now part of the U.N.) is planning a World Conference on International Telecommunications in December, when the 193 U.N. member countries, each of which has a single vote, could use the International Telecommunications Regulations to take control of the Internet. The U.N. process is mind-numbing, but as Vincent Cerf, one of the founders of the Web, recently told Congress, this U.N. involvement means "the open Internet has never been at a higher risk than it is now."

The process is secret, so it was hard to know what authoritarian governments were plotting or how the U.S. was responding. This column last month detailed some of the proposals, but other commentators doubted that any changes would be material.

Disclosure came when two academics decided to use the openness of the Web to help save the Web. George Mason University researchers Jerry Brito and Eli Dourado earlier this month created a site called They invited anyone with access to the documents describing the U.N. proposals to post them, so as "to foster greater transparency." These documents are not classified but had not been made public.

The WCITLeaks site hit pay dirt this past Friday. Someone leaked the 212-page planning document being used by governments to prepare for the December conference. Mr. Dourado summarized: "These proposals show that many ITU member states want to use international agreements to regulate the Internet by crowding out bottom-up institutions, imposing charges for international communication, and controlling the content that consumers can access online."

The broadest proposal in the draft materials is an initiative by China to give countries authority over "the information and communication infrastructure within their state" and require that online companies "operating in their territory" use the Internet "in a rational way"—in short, to legitimize full government control. The Internet Society, which represents the engineers around the world who keep the Internet functioning, says this proposal "would require member states to take on a very active and inappropriate role in patrolling" the Internet.

Several proposals would give the U.N. power to regulate online content for the first time, under the guise of protecting against computer malware or spam. Russia and some Arab countries want to be able to inspect private communications such as email. Russia and Iran propose new rules to measure Internet traffic along national borders and bill the originator of the traffic, as with international phone calls. That would result in new fees to local governments and less access to traffic from U.S. "originating" companies such as Google, Facebook and Apple. A similar idea has the support of European telecommunications companies, even though the Internet's global packet switching makes national tolls an anachronistic idea.

Another proposal would give the U.N. authority over allocating Internet addresses. It would replace Icann, the self-regulating body that helped ensure the stability of the Internet, under a contract from the U.S. Commerce Department.

According to notes in the leaked document, the U.S. delegation filed some objections here and there—but politely. The U.S. calls the broad Chinese proposal on regulating the Internet "both unnecessary and beyond the appropriate scope" of U.N. regulation. "The U.S. looks forward to a further explanation from China with regard to the proposed amendments, and we note that we may have further reaction at that time." Notes in the negotiating document say the U.S. delegation also objects to proposals in which "the text suggests that the ITU has a role in content-related issues. We do not believe it does."

These are weak responses even by Obama administration standards. Ever since the pre-Internet era of the 1970s, authoritarian regimes have sought to use the U.N. to establish an "information world order" based on government control, not open flows of information. The U.S. learned during the Cold War that the only way to stop U.N. meddling is to wield a big stick. Washington had to leave Unesco when it played the kind of dangerous game the ITU has now chosen.

It may be hard for the billions of Web users or the optimists of Silicon Valley to believe that an obscure agency of the U.N. can threaten their Internet, but authoritarian regimes are busy lobbying a majority of the U.N. members to vote their way. The leaked documents disclose a U.S. side that has hardly begun to fight back. That's no way to win this war.

from, 2012-Jun-11, by Bobbie Johnson:

Crazy: Orange censors all blogs, not just GigaOM

Every day millions of British mobile users hit a dead end on their phones, coming across web pages that they are blocked from reading. But it’s not because the sites they’re trying to access are illegal: it’s because they’ve fallen foul of child protection filters.

These filters are used by all of the country’s mobile operators, are generally turned on by default, get removed by a minority of people, and are largely unregulated. All of this has meant that as mobile consumption has boomed, the networks have become the de facto censors of the web in the U.K..

The most important thing to know about these mobile filters, though, is this: they are terrible at their job.

Over the years, many websites have found themselves the victim of a phenomenon known as “overblocking”, where the filters seem to arbitrarily censor them from millions of subscribers. The facts were documented in a recent report that outlined the problem: in their zeal to protect children, operators are screening vast amounts of legitimate content from users.

This may sound like a storm in a teacup (who doesn’t want to look out for kids?) but for many website owners, being hit by an overblock can be more than just irritating: it can be potentially threatening to your business.

Over the last month or so, I’ve been documenting the process we’ve been going through after we discovered that Orange — one of Britain’s biggest mobile operators — was overblocking GigaOM and preventing mobile readers from accessing our site. We did manage to get the block lifted, but what became even more frustrating than the overblock itself was trying to understand why it had happened.

But now, it turns out, we may have an actual answer — and it’s proof positive of the totally ludicrous, crude nature of the filtering that goes on.

Here’s the bottom line: Orange’s child protection filter, Safeguard, simply prevents people from reading anything that looks like a blog.

I’m serious.

The company sent me an official statement explaining their position (my emphasis):

“We would urge websites who feel they have been incorrectly categorised, or those who would like to register a complaint, to use the feedback tool provided on the Orange Safeguard landing page users are presented with when a site is blocked. We will aim to investigate and rectify any problems as quickly as possible.”

“GigaOM was blocked by our third party monitoring system as it was categorised incorrectly as a blog, (and at the moment Safeguard blocks blogs, but it will not block them all when the new Child Safety Safeguard goes live later in the year with a new Light setting) and not a professional tech news site, due to the usage of the word `blog' on the site. This has now been rectified. We would like to sincerely apologise again for any inconvenience caused.”

So, essentially, Safeguard divides the web into categories of content. Some of it is OK: things like news services or big, well-known websites. Meanwhile, pretty much any site that’s categorized as containing user-generated content gets filtered by default — and that includes blogs, forums, chat sites and many more. That’s it.

It’s got nothing to do with what’s on the sites themselves, just what category they fall into. Categorized as a blog, GigaOM was unsafe. Categorized as a news site, it’s available for the whole family to read. Nothing to do with analyzing text, pictures, links or even user feedback.

This is crazy not just because legitimate websites can contain all sorts of murky material that you wouldn’t want your kids to see, while blogs and other sorts of user-generated content can be totally family-friendly. It’s crazy because a blogging platform like WordPress is so vast that it’s now responsible for powering one in eight sites on the web — meaning that, effectively, Orange is making a huge chunk of the web go dark for mobile users and nobody’s doing anything about it.

So there you have it, the real reason Orange blocked GigaOM: because they can’t be bothered to try harder.

from CNN, 2012-Jun-18, by John D. Sutter:

Google reports 'alarming' rise in government censorship requests

Western governments, including the United States, appear to be stepping up efforts to censor Internet search results and YouTube videos, according to a "transparency report" released by Google.

"It's alarming not only because free expression is at risk, but because some of these requests come from countries you might not suspect -- Western democracies not typically associated with censorship," Dorothy Chou, a senior policy analyst at Google, wrote in a blog post on Sunday night.

"For example, in the second half of last year, Spanish regulators asked us to remove 270 search results that linked to blogs and articles in newspapers referencing individuals and public figures, including mayors and public prosecutors. In Poland, we received a request from a public institution to remove links to a site that criticized it. We didn't comply with either of these requests."

In the last half of 2011, U.S. agencies asked Google to remove 6,192 individual pieces of content from its search results, blog posts or archives of online videos, according to the report. That's up 718% compared with the 757 such items that U.S. agencies asked Google to remove in the six months prior.

Overall, Google received 187 requests from United States law enforcement agencies and courts to remove content from its Web properties from July to December, up 103% from the 92 requests the Mountain View, California, company received in the previous reporting period.

In one incident cited in the report, a U.S. law enforcement agency asked Google to take down a blog that "allegedly defamed a law enforcement official in a personal capacity." The company did not comply with that request.

In another, a separate law enforcement group asked Google to take down 1,400 YouTube videos (Google owns YouTube) because of "alleged harassment."

And in Canada, the passport office asked Google to delete a YouTube video "of a Canadian citizen urinating on his passport and flushing it down the toilet," according to the report.

The tech company did not oblige either of those requests but did comply at least in part with 42% of the removal requests from the United States in the last half of 2011, the report says. That number is down considerably compared to previous reports; In the latter half of 2010, for example, Google said it complied with 87% of U.S. requests to remove content.

The biannual transparency report, which includes data to July 2009, also indicates a rise in world governments' requests to take a look at the data Google collects about its users. And with those requests, Google tended to be much more likely to comply.

In the last half of 2011, Google received 6,321 requests for user data from government agencies in the United States and complied at least in part with 93% of them, according to data released in the report.

Those requests for information about Google users come as part of criminal investigations, Google says, and are not unique to the company.

Google complied more frequently with U.S.-based requests for information about users than with requests from other countries, according to the report. It complied or partially complied with only 24% of such requests from Canada, 44% from France and 64% from the United Kingdom, for example.

The number of user data requests Google received from the United States was up 6% over the previous six-month period and 37% compared with the last half of 2010.

Google says this increase "isn't surprising, since each year we offer more products and services, and we have a larger number of users." In the report, the company adds: "We review each request to make sure that it complies with both the spirit and the letter of the law, and we may refuse to produce information or try to narrow the request in some cases."

Writing at, tech columnist Andy Greenberg says that Google "should be applauded for taking a strong stand against censorship" but that "the government's increasingly sticky fingers in Google's databases comes at a sensitive time."

"Google has been criticized for failing to reveal much about its reported partnership with the National Security Agency following a Chinese attack on its systems in 2010," he writes. "And the company has yet to take a stand on the House's recently-passed Cyber Infrastructure Security and Protection Act or its equivalents in the Senate, which are designed to give companies far more leeway to hand data over to government agencies for security purposes."

At Politico, blogger Dylan Byers says the report "will certainly challenge any notions you might have about a free and unregulated Web."

Google says it hopes the data will offer a "small window into what's happening on the Web at large."

from PC Magazine, 2012-Jun-18, by Fahmida Y. Rashid:

India Demands Google Censor Objectionable Content

Google released its latest Transparency Report, which provides insight into the types of data governments around the world have asked the company to scrub from the Internet. The latest report covers the last six months of 2011.

As reported earlier today, Google received 6,321 government requests for disclosure of user data in the U.S., and Google partially or completely complied with 93 percent of those demands in the last six months of 2011. That was up from 5,950 requests in the first half of the year, according to the Google Transparency Report.

"We do hope that by being transparent about these government requests, we can continue to contribute to the public debate about how government behaviors are shaping our Web," Dorothy Chou, the company's senior policy analyst, wrote on the Official Google Blog.

What's Up With India?
India had the largest number of government takedown requests (that weren't court orders) during the reporting period. This is likely related to the ongoing legal wrangle between the search giant and India as part of that country's drive to clean up its cyberspace. Last year, the Indian government accused Google (and Facebook) of failing to failing to block "inappropriate" content in the country.

"The number of content removal requests we received increased by 49% compared to the previous reporting period," Google said, regarding India.

In response, Google decided to restrict users from viewing some videos in areas where local laws banned speech that could stir up “enmity between communities,” but left them viewable elsewhere in the world. It also rejected a request to remove online profiles that criticized a local politician.

In April 2011, India created new rules requiring Internet companies to remove objectionable content when requested. As a result, Google is in the midst of a trial in Indian courts for allegedly hosting content that "seeks to create enmity, hatred, and communal violence," and not removing said objectionable content when notified, according to the criminal complaint. The Delhi High Court will hold a hearing to decide whether or not to dismiss the complaint in August.

There were several other instances where Google chose to restrict access instead of complete removal. For example, Germany requested the company remove 70 YouTube videos for allegedly violating the German Children and Young Persons Act, which attempts to protect minors from "bad influences," such as violence and pornography. Instead of removing the allegedly offending videos, the company "restricted some of the videos from view in Germany in accordance with local laws," according to the report. Google also decided to go this route for 70 percent of the YouTube clips Thailand's Ministry of Information, Communication and Technology claimed insulted the country's monarchy.  

Restricting Political Speech
Governments are increasingly demanding political speech to be removed. Spanish regulators asked Google to take down 270 search results that linked to blogs and articles that discussed public figures. A public institution in Poland wanted links to a site criticizing the organization to be removed. Google denied these requests.

On the other hand, Google complied with requests from UK law enforcement to remove 640 videos posted by five YouTube users on the grounds that they promoted terrorism and violated user terms and conditions.

"[J]ust like every other time before, we’ve been asked to take down political speech," Chou wrote. She noted that many of the requests were from "Western democracies not typically associated with censorship" and called the trend "alarming."

During the latest reporting period, the company received 187 requests from the United States to remove offending content, of which 117 were court orders. The company fully, or partially, complied with 40 percent of court orders, but complied with 70 percent of other requests, such as ones from law enforcement and other government agencies.

from CNET, 2012-Jun-8, by Declan McCullagh:

European telcoms defend leaked proposal for U.N. Internet tax

Requiring content providers to pay based on usage is an "innovative" change to the way the Internet currently works and will create a more "fair" environment, European telecommunications companies claim.

European network providers that want the United Nations to consider a new Internet tax targeting Google, Facebook, Apple, and Netflix today defended their proposal, which was leaked earlier this week.

The idea of requiring content providers to pay fees based on usage is an "innovative" change to the way the Internet currently works and will create a more "fair" environment "where operators' revenues will not be disconnected from the investment needs made necessary by the rapid growth of Internet traffic," the providers said in a statement (PDF).

Last night, CNET reported that the European Telecommunications Network Operators Association, or ETNO, a Brussels-based lobby group representing companies in 35 nations, proposed the idea for debate at a December meeting of a U.N. agency called the International Telecommunication Union. ETNO's members, which unanimously approved the idea, include Deutsche Telekom, France Telecom, Telecom Italia, Swisscom, and Spain's Telefonica.

While this is the first time this proposal been advanced, European network providers and phone companies have complained bitterly about U.S. content providers for some time. France Telecom, Telecom Italia, and Vodafone Group want to "require content providers like Apple and Google to pay fees linked to usage," Bloomberg reported last December.

ETNO refers to it as the "principle of sending party network pays" -- an idea borrowed from the system set up to handle payments for international phone calls, where the recipient's network set the per-minute price. If its proposal is adopted, it would spell an end to the Internet's long-standing, successful design based on unmetered "peered" traffic, and effectively tax content providers to reach non-U.S. Internet users.

Today's statement from ETNO says: "It will be possible to establish new interconnection policies based on the 'value' of the traffic (not only on the 'volume'), enabling new business models and implementing an ecosystem where operators' revenues will not be disconnected from the investment needs made necessary by the rapid growth of Internet traffic." It suggests that "operating agencies shall negotiate commercial agreements to achieve a sustainable system of fair compensation for telecommunications services."

The leaked documents (No. 1 No. 2) were posted by the Web site WCITLeaks, which was created by two policy analysts at the free-market Mercatus Center at George Mason University in Arlington, Va, who stress their Wikileaks-esque project is being done in their spare time. The name, WCITLeaks, is a reference to the ITU's December summit in Dubai, the World Conference on International Telecommunications, or WCIT.

In a rare show of bipartisan unity during an election year, both the Obama administration and Republican members of Congress warned last week that secret negotiations at the ITU over an international communications treaty could result in a radical re-engineering of the Internet ecosystem and allow governments to monitor or restrict their citizens' online activities.

from The Washington Post, 3023-May-30, by Cecilia Kang:

U.S. tech companies warn of threat to Internet from foreign governments

U.S. officials and high-tech business giants have launched an assault against what they view as a massive threat to the Internet and to Silicon Valley's bottom lines: foreign governments.

In a congressional hearing Thursday, they will warn lawmakers of a growing movement led by China, Russia and some Arab states to hand more control of the Web to the United Nations and place rules on the Internet that the U.S. companies say would empower governments to clamp down on civil rights and free speech.

That could mean the Web might look drastically different in other countries than it does in the United States, opponents of the proposals say. An Internet user in Uzbekistan could be more easily tracked by government officials and might get access to only a portion of the Google search results seen in the United States, for example.

In a rare coordinated effort to knock down the proposals, Google, Microsoft, Verizon and Cisco also warn of financial risks to their businesses if new rules are adopted. They say some nations may push forlaws on Internet firms that could lead to tariffs on Internet service providers such as Verizon, or even Web firms such as Facebook that enable people to communicate over the Internet.

“The threats are real and not imagined, although they admittedly sound like works of fiction at times,” said Robert McDowell, a Republican member of the Federal Communications Commission.

The U.S. companies' protests come ahead of a key December meeting in Dubai, where United Nations members will reconsider a 1988 communications treaty. Several foreign governments have argued that the treaty needs to be updated, given the growing influence of Internet communications.

The number of Web users is expected to grow from 2.3 billion today to 3.4 billion in four years, according to a new report by Cisco. Facebook and Twitter proved to be vital for revolutionaries during the Arab Spring protests last year. And in many developing countries, the only outlet to the outside world is what people read online.

“So much has changed since the 1988 revisions, so the global policy and regulatory framework needs to be updated,” Hamadoun Toure, secretary general of the International Telecommunications Union, the U.N.'s telecom authority, said in a speech this month.

Many nations want more say over the shape of the Web. The Internet has been heavily influenced by U.S. firms and American academics who set the standards, they argue. China, in particular, has been critical of the United States' efforts to encourage open Web policies around the world.

The ITU has criticized the U.S. outcry against the proposals by foreign governments. “We are baffled. There is so much misinformation on this,” said Alexander Ntoko, head of corporate strategy for the ITU. He said the Americans are exaggerating how much the U.N. could shape the Web.

Still, U.S. officials have become alarmed at the language foreign leaders are using when they discuss what to do with the Internet.

Russian President Vladimir Putin, for instance, said last year he supported the idea of “international control over the Internet using the monitoring and supervisory capabilities” of the ITU.

Last September, Russia, China, Tajikistan and Uzbekistan wrote a letter to the U.N. General Assembly that called for an “international code of conduct” that would establish “norms and rules guiding the behaviour” of countries overseeing the Web.

In February, several Arab nations proposed that countries should be able to “take measures to ensure that fair compensation is received” for the flow of Internet traffic. Currently, no rules are in place for delivering Internet traffic globally. Telephone companies, in contrast, are required to pay fees to firms in foreign countries for international calls.

“Once upon a time, many countries in the developing world received billions of dollars in hard currencies for terminating telephone calls,” said David Gross, the former State Department coordinator of international communications policy now representing a coalition including AT&T, Cisco, Comcast, Google and Microsoft. “That money has disappeared.”

Russia has suggested cutting off access to the Internet for users who threaten network security. Arab nations have called for privacy protections for users, except for the purposes of law enforcement officials. “Such proposals raise the prospect of policies that enable government controls but greatly diminish the `permissionless innovation' that underlies extraordinary Internet-based economic growth, to say nothing of trampling human rights,” said Vint Cerf, Google vice president and “chief internet evangelist.”

from the Washington Post, 2011-Mar-1, by Ian Shapira:

Obama administration joins critics of U.S. nonprofit group that oversees Internet

The California nonprofit organization that operates the Internet's levers has always been a target for such global heavies as Russia and China that prefer the United Nations to be in charge of the Web. But these days, the Internet Corporation for Assigned Names and Numbers is fending off attacks from a seemingly unlikely source: the Obama administration.

Concerned about the growing movement to cede oversight to the U.N., the U.S. government, which helped create ICANN in 1998, has been reprimanding the nonprofit group to give foreign nations more say over the Web's operations.

The battle has come at a sensitive time for ICANN, which this month is meeting with foreign governments as it pulls off the biggest expansion ever of Web suffixes - including .gay, .muslim and .nazi. Also this fall, the nonprofit organization is seeking to hold on to its federal contract to oversee the Web's master database of addresses - a sweeping power that governments fear could be used to shut down foreign domains that the United States finds unsavory.

"There's a deeper question of how the world is reacting to a small company - even a nonprofit - completely in charge of a key part of the Internet. Is that acceptable? There's no 100 percent comfortable solution here," said Steve Crocker, ICANN's vice chairman, who lives in Bethesda and is the chief executive of Shinkuro, a technology company.

With some Middle East countries shutting down the Internet within their borders to curb uprisings, the question of who runs the Web is increasingly figuring into global foreign policy debates. Some fear that governments such as those of Libya or Iran could more easily crush rebellions if they gained more control over the Internet's inner workings.

ICANN quietly wields vast influence over the Web, a power unfamiliar to many Americans and elected officials. Based in an off-campus University of Southern California building, the company has more than 100 employees and is led by a chief executive and a board of directors comprised of private sector executives and technology experts. ICANN's core function: Decide which Web addresses get seen on the Internet.

In Washington, ICANN remains somewhat mysterious to elected officials, according to Nao Matsukata, a senior policy adviser to the Coalition Against Domain Name Abuse, a grass-roots organization in Washington. Matsukata's main problem, he said, is trying to explain what ICANN is to people on Capitol Hill. His group has met with more than 50 members of Congress.

"Sometimes, when we're in meetings on the Hill, they're just nodding their heads," said Matsukata, a former trade official in the George W. Bush administration. "Very few people understand where all these decisions are coming from and that this is something that impacts us every day of our lives. Someone is determining what is allowed, what is not allowed, and someone is profiting from these things."

The tiny nonprofit group can be especially provocative for a trade press that covers its every move, and for a rival U.N. agency, the International Telecommunications Union. When the ITU, a 145-year-old agency of nearly 200 nations and territories, held its annual meeting in October in Mexico, a Syrian emissary representing Arab states raged against ICANN as if it were an enemy nation.

"Do not surrender to the ICANN!" Nabil Kisrawi yelled during one of the conference's sessions, according to a story in the Register, an online publication on Internet governance. "There is even a representative of the ICANN in this room!" Kisrawi said. (Kisrawi recently died.)

Other nations have been mobilizing against ICANN. China, which monitors dissident activity on the Web, has been leading a campaign among dozens of developing nations to lobby the U.N. for oversight over ICANN, according to former and current ICANN officials. And a coalition of former Soviet states led by a Russian minister has been pushing the U.N. to obtain veto power over ICANN.

Some countries also worry that the new wave of Web suffixes might be too controversial and that others might require companies to spend vast sums to protect their online brands and trademarks. (Who gets .merck? The U.S. drug company? Or the German drug company with the same name?)

Chris Disspain, chairman of an ICANN internal group and an executive who oversees Australian domain names, said the prospect of governments running the Web would be calamitous. "China, Syria, Iran and Saudi Arabia and number of others have said in meetings they believe ICANN shouldn't be in existence, or be replaced by some U.N. body," he said. "Frankly, that would be a disaster."

Some countries fear that the United States has, at the very least, the appearance of too much power by owning the contract to run the master database of Web addresses.

"One concern is that if the U.S. decides Syria is behaving badly, then they could make all Web sites using Syria's country code domain - .sy - point to freedom of expression sites, for example," said Avri Doria, an ICANN group chairman. "Countries say, 'How can we subject ourselves to that?'"

Crocker, the ICANN board's vice chairman, said the chances of the United States tinkering with the master Web database are "nil." ICANN can only request changes in the master database; the U.S. government reviews those decisions, then the Dulles-based company VeriSign executes the change.

The Commerce Department, however, worries that other countries might soon lobby en masse for the U.N. to take over instead. Commerce officials prefer a nimble private-sector organization to run the Web's addressing system, but the government doesn't believe ICANN is listening enough to the international community.

Some ICANN officials worry that, if tensions continue with the Commerce Department, the nonprofit organization might lose its contract to run the Web's master database. That contract, which the Commerce Department last gave to ICANN in a no-bid process, comes up for renewal in the fall. Commerce officials have yet to decide whether they will ask for other organizations to compete for it.

In mid-February at a technology conference in Colorado, Lawrence Strickling, an assistant secretary in the Commerce Department, put ICANN on notice, declaring it "must act" by June on a set of accountability guidelines made by him and international leaders who will continue to "monitor" it. Strickling warned about the "forces at play" lobbying for the United Nations to run the Web.

Strickling said he met privately in December with ICANN board members in Colombia, where he urged ICANN to be more transparent and open to recommendations from foreign nations. "It's not out of hostility . . . but I am trying to nudge ICANN to be its best," Strickling said in an interview. "It's important that this model have buy-in from other governments in order to support the global growth of the Internet."

ICANN scored one minor victory in February. Its advisory body of foreign nations rejected the Obama administration's proposal that would have required ICANN to make it easier for nations to object to controversial new Web suffixes such as .gay or .xxx.

The United States proposed that any country within ICANN's advisory council should be able to recommend eliminating any new domain name. If no other country objected to that nation's veto recommendation, then ICANN's board would have to follow suit. ICANN, however, wants those challenges to go before three experts guiding the International Chamber of Commerce.

But ICANN's advisory body of foreign countries recently decided that any nation's objection will be considered as non-binding advice to ICANN's board.

Commerce Department officials worry that if foreign governments feel they have no role in the process, they will start ignoring ICANN, blocking Web sites and splitting up the Internet so that only certain domains can be accessed, depending on the country.

Critics of the Commerce Department say the agency is bending too much to other nations' preferences. "The U.S. government was pushing hard to give any country the power to object and have that right be decisive," said Milton Mueller, a Syracuse University professor who has chaired and participated in several groups that developed ICANN policies that would be overridden by the U.S. intervention. "We think they were playing a geopolitical game of placating governments."

from the Wall Street Journal, 2012-May-31, by Kimberley A. Strassel:

The Corporate Disclosure Ruse
The outfits warning companies about the risk of political contributions are themselves the source of the risk.

Chances are, you've never heard from Bruce Freed. That's because the founder of the Center for Political Accountability (CPA) is far busier ensuring you never hear from corporate America.

At least not when it comes to political free speech. In the growing liberal war against corporate free speech, its highest-grade weapon these days is "transparency." By pushing disclosure, the left can tee up companies for activist boycotts, protests and other actions designed to make political engagement as painful as possible. Think of this not as disclosure in the name of voter education, but disclosure in the name of mugging.

Cue Mr. Freed's outfit. While the White House and Democratic politicians have been writing their own proposals to force corporate tell-alls, CPA has taken the lead on the boardroom side. The group's particular mission is ginning up shareholder resolutions that demand more corporate political disclosure. Thanks to it and a handful of activist allies, the number of such political spending proposals was up 50% this year among Fortune 200 companies, accounting for 21% of all the shareholder proxies.

The center's particular skill is in presenting itself as nothing more than a selfless advocate of "good governance." Mr. Freed roams the corporate halls, lecturing one and all on the need for "responsible" political spending and warning of the "risk" that companies face by not instituting "board oversight" of its political dollars. "Risk" is the kind of word that grabs CEO attention.

Mr. Freed has also been busy creating the facade of a movement. To listen to CPA, there is a groundswell of support among institutional investors for corporate political disclosure. This in turn, CPA insists, has resulted in a rush by companies to get on board with best practices. Everybody is doing it, goes the center's line, and those who don't are bad actors.

Some companies are buying this, with little investigation into CPA or its motives. While pitching itself as just another campaign-finance watchdog, the center, founded in 2003, is in fact a recipient of hundreds of thousands of dollars from George Soros's Open Society Institute.

Mr. Freed worked for years for Capitol Hill Democrats, and most of the center's staff hails from the liberal-party machine. Its attorney, Karl Sandstrom, once served as general counsel for the Democratic National Committee. Chief financial officer Michael Novelli was in 2008 an Obama campaign director for Maryland. Peter Hardin, one of CPA's writers and editors, moonlights for another Soros-funded operation, Justice at Stake.

If you dig into the proxy proposals, you'll find that most have been pushed by the same three or four groups, including CPA and activist investor groups like NorthStar Asset Management, Trillium and Walden Asset Management. Those voting for the proposals are also the usual suspects, such as union pension funds. Not one of the proxies passed this year.

As for "transparency," the CEO world has mostly been played for dupes. The CPA tactic is to invite companies to voluntarily adopt some greater disclosure and avoid a proxy fight. The group then touts these concessions to other companies, to gull the same result.

Mr. Freed also likes to reference the "Zicklin Index," which scores companies on their political disclosure. This index ostensibly comes from the Zicklin Center at the Wharton School of Business. Less known is that Messrs. Freed and Sandstrom both sit on Zicklin's advisory board and helped create the ranking.

In a conversation, Mr. Freed repeated that his group is only interested in "good corporate governance." He says that while he works with other activist groups, it doesn't mean CPA "agrees with everything they do." He also insists that his group has never "challenged" a company's "right" to give political money.

Then again, the great ruse of this campaign is that the very organizations that claim to want to help corporate America manage its "risk" are themselves the source of the risk.

In a conference call earlier this year that included CPA, Walden, a member of Afscme (the union giant) and others, Christine Jantz of NorthStar acknowledged that her group wanted to highlight "ill-considered" contributions like those to politicians who are "actively working" against gay rights. It was exactly that kind of highlighting that facilitated the liberal protest and boycott against Target Corp., for donating to a Minnesota Republican gubernatorial candidate in 2010.

Having made direct contributions a liability, the groups can concentrate efforts on "disclosure" to third-party trade groups like the Chamber of Commerce. While Mr. Freed claims to believe in a company's right to donate, he nonetheless had this advice in a piece he wrote for a Conference Board publication this winter: "There is no substitute for a clear policy of not giving money to third-party groups for purposes of political spending."

CPA and other groups understand that if companies are too wary to contribute directly, but also see "risk" in giving to a trade group, they truly will have lost any free-speech rights. Now all that's left is for corporate America to catch on to this double-game.

from Dr. Dobb's Journal, 2012-May-1, by Andrew Binstock, Editor in Chief:

Oracle and the End of Programming As We Know It

If Oracle prevails in its claim that APIs can be copyrighted, nearly every aspect of programming will be changed for the worse.

Oracle is a company that's never particularly cottoned to developers. While Microsoft and Google have developer DNA wired deeply into their genes, Oracle is first and foremost a database company that prides itself on ruthlessly pursuing its business agenda with a take-no-prisoners approach. Whether its reckless approach to technology appeals to developers or any other community matters little to the company. Because Oracle stands for nothing but its own interests and because of its long history of aggression, it is feared by all market segments it touches: suppliers, competitors, and its own customers.

There is little surprise then to see it in court in San Francisco fighting Google, claiming patent infringement due to the latter's development of the Android operating system. Google, certainly no stranger to pushing the legal limits in its quest to access as much data as possible, is hardly a friend to licensing and copyright. Its fights with the publishing industry over copyrights are legendary and have generally forced Google to backtrack. Its expansive view of its access to data is at the heart of current uproars over Street View and the newly announced GDrive.

So, it seems almost inevitable that the two behemoths would meet in court one day. Initially, Oracle's suit and Google counter-suit looked to be one of those slow-moving affairs that was fascinating to watch from a distance in much the same way as the trial pitting the U.S. Department of Justice against Microsoft a decade ago.

However, events in San Francisco quickly took a sinister turn when Oracle posited an ominous theory: that Google had violated Oracle's Java copyrights by reimplementing Java APIs in Android. The question of the copyrightability of APIs is the hinge on which the first part of the trial now rests, and it provides a disturbing vision of how software development might look should Oracle prove this claim.

In a nutshell, if the jury sides with Oracle that the copyrights in the headers of every file of the Java source base apply specifically to the syntax of the APIs, then Oracle can extract payment and penalties from Google for having implemented those APIs without Oracle's blessing (or, in more specific terms, without a license).

Should this come to pass, numerous products will suddenly find themselves on an uncertain legal standing in which the previously benign but now newly empowered copyright holders might assert punitive copyright claims. Chief among these would be any re-implementation of an existing language. So, Jython, IronPython, and PyPy for Python; JRuby, IronRuby, and Rubinius for Ruby; Mono for C# and VB; possibly C++ for C, GCC for C and C++ and Objective-C; and so forth. And of course, all the various browsers that use JavaScript might owe royalties to the acquirers of Netscape's intellectual property.

Essentially, every language implementation not issued forth by the copyright holder will be suspect until the copyright owners announce a permanent statement dispensing with any threats to enforce the copyrights. There is no reason to believe that copyright holders will naturally act with such restraint. As we know, Oracle certainly has not. And who's to say the owners of Bell Labs care enough about the negative programming consequences of enforcing language copyrights when they can see possible licensing fees of tens if not hundreds of millions of dollars are a possible result?

The problem does not stop with languages, of course. Would Linux be at risk for all the UNIX APIs it recreated? Or would any of the ports of various libraries be similarly in danger? Probably so.

During the trial, Sun's last two CEOs provided conflicting evidence. In a nutshell, Jonathan Schwartz testified for Google's view (and his email congratulating Google on Android is a crucial piece of testimony), while Scott McNealy testified unequivocally that APIs were copyrightable, copyrighted, and not open to duplication by unlicensed third parties. Both views are in character. McNealy fought the UNIX wars on behalf of Solaris precisely on the basis of the extra libraries and APIs that distinguished it from HP-UX, IRIX, and AIX. I have no doubt that if this case had arrived 15 years ago, McNealy would have testified precisely the same way. Specific libraries and their attendant APIs were crucial means for companies to establish and maintain a competitive advantage.

This role for APIs tends to support Oracle's view that they are the property of the owners and are not intended for free use by unlicensed parties wanting to implement them. And Google's internal deliberations that show an awareness that a license might be necessary would also support the idea that the APIs are property. On this basis and the careful copyrights in each document, I am unwillingly led to conclude that the jury might not deliver good news when it returns from its deliberations. Of course, I deeply hope I'm wrong.

However, a silver lining could present itself: The jury could affirm that the APIs are copyrighted but that the syntax of the function signatures are a fair use exception. This would safeguard the right to reimplement APIs forever without fear of suit for copyright violation. And it would not be an unreasonable finding.

Trials are troublesome events in the course of computing history. They have delivered odder verdicts than one that would side entirely with Oracle. You might recall that the Lotus v. Borland suit (1990) originally resulted in a ruling affirming the copyrightability of a menu hierarchy. Not until the case reached the U.S. Supreme Court in 1996 was that bit of nonsense definitively overturned. Let us hope that there's no need for that much litigation to ensure forever that APIs can be freely copied.

from the Los Angeles Times, 2012-May-29:

Oracle vs. Google
The legal battle between Google and Oracle over the use of Java in Google's Android software is more than just another bruising patent fight between rival tech companies

The legal battle between Google and Oracle over the use of Java in Google's Android software is more than just another bruising patent fight between rival tech companies. The more unusual and disturbing aspect of the dispute is Oracle's claim to hold copyrights to Java's "application programming interfaces," or the bits of code that let apps written in Java work with other programs. Although a federal jury found that Google violated those copyrights (but not Oracle's patents), District Judge William Alsup can still hold that APIs aren't copyrightable. He should.

Sun Microsystems made the Java programming language freely available in 1995, a strategic move designed to boost sales of other products and help defend Sun against competition from Microsoft. The company also distributed a series of Java APIs that enabled developers of software platforms and programs to let their products inter-operate with those written in Java. When Google was creating the Android operating system for smartphones and other portable devices, it included its own version of the Java APIs so developers could write apps for Android devices largely in Java.

Oracle acquired Sun in 2010 and sued Google not long thereafter. It can't claim copyright over Java; a language can't be copyrighted, just creative expressions in that language. Nor could it show that Google copied the actual code in its APIs. So it argued that the Java APIs reflected a form of coding artistry that Google infringed on by copying the "sequence, structure and organization." But under that line of reasoning, any software writing task that could be accomplished in more than one way might be characterized as a creative expression, even if it's done with interchangeable sets of garden-variety code.

Extending copyright protection to programming interfaces would discourage the inter-operability and interaction that are a prime source of innovation. The providers of software platforms could encourage others to implement their APIs to create new Web-based services or apps, then try to extract royalties from the ones that proved popular. The implications are even worse in the case of programming languages such as Java. Giving a company a sweeping claim over a language's APIs, which are crucial to a program's workability, could effectively let it decide what programs can be written in that language. Google earns no plaudits for creating a version of Java that doesn't inter-operate with the ones Sun championed. But that doesn't justify stretching the bounds of copyright law to give Oracle control over Java's APIs.

from CNET, 2012-Apr-4, by Ben Parr:

Why the coming patent crisis is inevitable
The reason is simple: there isn't enough political will or pressure to institute massive patent reform without a crisis to rally around.

A week isn't complete in the tech industry without somebody suing somebody else over patents.

This time, Facebook is countersuing Yahoo, charging that Yahoo violated 10 of its patents. This move, of course, comes less than a month after Yahoo sued Facebook for allegedly infringing on 10 of its patents.

Facebook's countersuit shouldn't surprise anybody; it was always going to fight fire with fire, especially since Yahoo started this unnecessary fight. It's the same reason Facebook purchased 750 patents from IBM last month -- it needed more ammunition in a patent arms race that is quickly escalating.

But I'm shocked by some of the patents over which these two companies are suing each other. One of Yahoo's patents focuses on the "optimum placement of advertisements on a webpage", while Facebook has two patents that cover a "system for controlled distribution of user profiles over a network." Yahoo owns the patent for a "method to determine the validity of an interaction on a network", but "generating a feed of stories personalized for members of a social network" belongs to Facebook.

You really can receive a software patent for almost anything these days, it seems.

Facebook and Yahoo aren't the only ones collecting patents and threatening to use them like stockpiled nuclear weapons, though. Here are just some of the patent disputes that have made headlines in the last two weeks: Apple and Samsung, Microsoft and Motorola, RIM and NXP, Oracle and Google, and Tivo and Motorola.

Patents have played an important role in protecting an inventor's intellectual property and fostering innovation throughout history. However, their usefulness in software is far more limited, and in recent years has simply become damaging to innovation, thanks to patent trolls using IP they've acquired to sue smaller tech companies and make a quick buck.

Patent law simply wasn't designed for the always changing, rapidly developing world of software. Inventing a way for "generating a feed of stories" isn't the same as inventing a new type of fuel injection system or a new ultralight alloy for space travel. But software companies file patents like crazy because companies like Yahoo get desperate and start suing, and your only defense is to have your own stockpile of patents that will help you negotiate a settlement faster.

It's the tech industry's version of mutually assured destruction. And all the while, the patent situation inches closer toward a crisis that will make the SOPA controversy look like a walk in the park. At some point in the future, a company is going to skip the settlement and use the courts to shut down a popular and universal feature on the Web's top domains, simply because it has a patent that says it came up with the notion first. It will be a shock that reverberates all the way to the U.S. government and the World Trade Organization.

I suspect a patent crisis is both necessary and inevitable. The reason is simple: there isn't enough political will or pressure to institute massive patent reform without a crisis to rally around.

That's why the cycle of patents, lawsuits, and settlements isn't ending anytime soon. Now, if you'll excuse me, I'm going to go file a patent for a method of identifying patent trolls, just to see if I can.

from, 2012-May-13, by Timothy B. Lee:

Top judge: ditching software patents a "bad solution"
Former Federal Circuit Judge Paul Michel sees no "magic bullets" for patent reform.

For decades, the courts have struggled to decide what types of innovation are eligible for patent protection. For much of that time, the central institution in that debate has been the United States Court of Appeals for the Federal Circuit, the appeals court that has jurisdiction over patent cases.

The Federal Circuit has been strongly pro-patent since its inception in 1982. It was the court that opened the floodgates for software patents with a series of permissive decisions during the 1990s. And it was the court that gave the green light to patents on medical diagnostic techniques, only to be overruled by the Supreme Court in March.

Why is the Federal Circuit so enthusiastic about extending patent protection to new fields? The court's current members are understandably circumspect, but retired judges can be more candid. So on Friday, Ars Technica traveled to Princeton University to hear a keynote address by retired Judge Paul Michel, as part of a conference on patent law. Michel served on the Federal Circuit form 1988 to 2010, and was its chief judge for the last six years of his tenure. His comments shed light on the motivations behind the dramatic changes in patent law over the last two decades.

"Bad solutions"

In his remarks, Michel argued that policymakers crafting the America Invents Act, last year's patent reform bill, should have focused more on the interests of small, fast-growing technology startups. These firms, the "Apples of the future," are a key source of job creation, he said.

After Michel finished his speech, Ars Technica asked him what seemed to us the obvious question: given that many software startup founders find the patent system to be more of a hindrance than a help, shouldn't excluding software from patent protection be considered as a reform option? The judge didn't agree.

"My view is that broad categories treated pejoratively are going to lead us toward bad solutions," Michael told us. "People say 'We know all business method patents are bogus, so let's just get rid of them.'" He added that people make similar arguments about software and medical diagnostic patents. "I don't think that's a constructive way to proceed. Certainly there are software patents out there that are no good, and that's a shame. We've gotta clean those out. But I'm against these kinds of broad, polemical ways of proceeding."

Michel did concede that software patents don't appear to be very helpful to the software industry. "Software is way less dependent on patents—maybe not dependent at all except in certain areas. How much [patents] retard [software] I'm not so sure. I hear a lot of anecdotes, a lot of scare stories. I'm a facts and figures guy. I'm not for anecdotes and assumptions."

Some scholars have collected facts and figures. For example, a 2008 book by James Bessen and Michael Meurer attempted to compute the costs and benefits of the patent system to various industries. They found that benefits significantly exceeded costs for the pharmaceutical industry, but the costs of litigation exceeded the benefits of holding patents in many other industries. Their work suggests that the patent system has become a net disincentive to innovation in those industries. The problem was particularly severe in software.

Strangely, Michel singled out Bessen and Meurer's book as an example of a text that relied too much on anecdotes and not enough on data, declaring it "very disappointing." We pressed him on this. Michel conceded the problem was less that it was too anecdotal and more that he disagreed with the book's premise—that high litigation costs were a sign the patent system wasn't working.

Just opt out?

Judge Michel seemed unaware of the depth of the software industry's dissatisfaction with the patent system. He suggested the patent system's critics were relatively marginal figures not representative of the views of the broader technology industry. And he didn't seem to understand the dynamics of the patent arms race currently affecting the software industry.

"If software is less dependent on patents, fine then. Let software use patents less as they choose," Michel said. "If other industries are terribly dependent on patents, then let's not wreck the system just because software people are unhappy."

Unfortunately, software firms don't have the option to opt out of the patent system. A firm that chooses not to seek patents will be vulnerable to ruinous lawsuits from its competitors. And so every firm is compelled to participate in the system for defensive reasons even if they'd be collectively better off if none of them participated.

And if Michel is worried about anti-patent agitation from the software industry will "wreck the system" for other industries, that's an argument in favor of creating a carve-out for the software industry. As long as software firms are vulnerable to patent trolling, they'll be exerting pressure to weaken patent protections across the board. Freeing the software industry from the burdens of the patent system will make it easier to fine-tune the system for other industries where patent protection works better.

Hard work needed

Rather than looking for "magic bullets," Michel told us that fixing the patent system would require "a lot of very careful hard work from the lowest examiner to the top of the Supreme Court and all of the rest of them."

This is a common refrain among software patent supporters. In 2008, Doug Lichtman, now a law professor at UCLA, told us that excluding software from patentability was an "odd way to divide up the world."

Judge Randal Rader, the Federal Circuit's current chief judge, also spoke at the conference. He complained about "the patent system coming under attack." "Let's not damage the system that promotes the progress of science and the useful arts," he said.

Rader and Michel's perspectives are likely skewed by the fact they spent their time on the bench surrounded by patent lawyers (who by definition work with firms that have the resources to hire patent attorneys). For the typical software-producing firm, patent lawyers are simply too expensive. Most firms never get patents, and they typically settle patent claims rather than taking them to court. As a result, Judges Michel and Rader rarely hear from smaller firms for whom the patent system is nothing but a burden.

We weren't able to get Judge Michel to clearly articulate why software patents were needed. But at root, his objection to eliminating them seems to be that excluding entire classes of technology from patent law is a clumsy way to solve the system's problems. If you care most about promoting innovation, offering carve-outs from the patent system to certain industries and technologies looks like a pragmatic solution to a serious problem. If, like Michel and Rader, you're emotionally invested in the success of patent law as such, then allowing certain industries to opt out looks like an admission of failure and a horrible hack.

from the Economist, 2012-Mar-29, by G.L.:

The Arab Spring's online backlash

A BILL on “information-technology crimes” with extraordinarily broad wording and harsh punishments is due to come before Iraq's parliament in April, once the dignitaries and television cameras at this week's Arab League summit in Baghdad have departed.

The bill is one of four proposed laws that could severely restrict basic freedoms. (A fifth, on journalists, was passed last summer.) Access Now, a human-rights group with a focus on technology, has a report on it out today. According to an English translation from last August, it includes mandatory life sentences for using computers or the internet to “compromise” the “unity” of the state (Article 3), promote “ideas which are disruptive to public order” (Article 4), or engage in “trafficking, promoting or facilitating the abuse of drugs” (Article 5), which could include merely blogging about them.

Some of the most egregiously loose definitions make it a crime—though at least not one carrying a life sentence—to cause “damage, defect or obstruction to computer hardware, operating systems, software or information networks”, even by mistake; to “intrude, annoy or call computer and information network users without authorisation”; to “benefit unduly from telecommunications services” (all these from Article 14); or to “relate words, images or voices to someone else involving cursing or slander” (Article 22).

The law on journalists and the other three bills, which cover public assembly, telecoms and political parties, are similar in style, notes a report from the Centre for Law and Democracy (CLD), another human-rights group: filled with vague references to “public morals”, “public order”, “national interests”, “threatening” or “insulting” messages, and so on.

Several governments tried temporarily restricting or shutting off the internet during the Arab Spring, and it should be no surprise that they are now looking for more permanent ways to limit its influence. Yet these stem from more than a simple desire to repress.

The problem, says Katherine Maher of Access Now, is that across the Arab world, leaders are “looking around and realising that an entire industry has emerged in the last 10-15 years that has largely evaded any type of regulatory oversight.” Laws are sorely needed to cover such things as identity theft, e-commerce, data security and intellectual-property protection, not to mention the media and free speech. So Iraq's internet law contains some good points. But the rush to catch up, combined with official nerves rattled by the Arab Spring (or, in Iraq's case, its sectarian conflict), has produced a swathe of bad legislation.

Lebanon's government is considering an internet law that, says Ms Maher, is similar to Iraq's in breadth, if not in harshness. The Tunisian Internet Authority—now something of a defender of online freedom, after having been a key tool of repression for the deposed former president—is still fighting a court ruling last year ordering it to censor the web for pornography. Egypt's telecoms ministry is working on plans to do the same.

And in various countries, online journalists and activists continue to be jailed, beaten or killed for expressing views that are unpopular with either the government or the religious authorities. Iraq's law on journalists includes provisions that are supposed to protect them, but these are “simply too vague to be of practical use”, according to the CLD report.

The one bright spot in the picture is Libya, says Courtney Radsch of Freedom House, a group that promotes freedom and democracy around the world. In the north African country, which she has just visited, the thorough disintegration of the old regime has allowed people who believe in an untrammeled internet to get into top jobs. Elsewhere, the revolution has been far less complete.

from Foreign Policy, 2012-Apr-5, by Josh Rogin:

Exclusive: UAE detains foreign NGO workers

In an escalation of the United Arab Emirates' crackdown on foreign NGOs, the UAE government has detained foreign employees of the National Democratic Institute (NDI) and is preventing at least one of them from leaving the country.

Late Wednesday, the director of NDI's Dubai office, Patricia Davis, an American, and her deputy director Slobodon Milic, a Serbian national, were stopped at the Dubai airport by UAE government authorities as they tried to leave the country, according to three sources briefed on the incident. Davis was eventually allowed to leave the UAE, but Milic was not. He was detained by authorities, and subsequently released but is still barred from leaving the UAE. The UAE government has also notified NDI that they plan to file criminal indictments against foreign NGO workers in the UAE for foreign interference in political affairs, the sources said.

"We understand that the deputy director for NDI in the UAE was briefly detained and then released. We are seeking more information from the government of the UAE on the matter," a State Department official told The Cable. "As the Secretary has said many times, we believe NGOs play a valuable and legitimate role in a country's political and economic development. They should be able to operate consistent with regulations and standards and without constraints."

"We will continue to support civil society in the UAE and across the region. NDI is a respected organization that has been working across the region and beyond to promote civil society development and democratic values. The State Department is a firm supporter of NDI's activities," the official said.

The move mirrors the actions taken by the Egyptian government over the past three months, which included barring over a dozen foreign workers from leaving Egypt -- including Americans working for NDI, the International Republican Institute (IRI), and Freedom House -- and subsequently indicting them on criminal charges.

The U.S. government paid $5 million in "bail" money to secure the March 1 release of American NGO workers trapped in Egypt, including Sam LaHood, the Cairo director of the IRI and the son of Transportation Secretary Ray LaHood. Secretary of State Hillary Clinton then waived congressional restrictions on the $1.5 billion of annual U.S. aid to Egypt, which would have required that the State Department certify that Egypt was moving toward democracy and upholding civil rights.

Several of the American NGO workers who were indicted by the Egyptian government were not in Egypt at the time, and the National Journal reported Wednesday that the Egyptian government has asked Interpol to issue international arrest warrants for those NGO workers. Meanwhile, the Obama administration is trying to convince Interpol to reject those requests.

The UAE government shut down and revoked the license of the NDI office in Dubai last week, just days before Clinton visited the region and raised the issue in a meeting with Foreign Minister Sheikh Abdullah bin Zayed Al Nahyan.

"We very much regret it," Clinton said after the meeting. "We are as you know, as anyone who has visited the United States, strong believers in a vibrant civil society ... I expect our discussions on this issue to continue."

A U.S. congressional staff delegation has been in the UAE this week as well, and has been raising the NDI issue with both UAE and American officials on the ground. One congressional staffer in Dubai told The Cable Wednesday that UAE officials argued to the staff delegation that NDI was operating without a license, had no legal right to be operating in UAE, and was writing things that weren't true.

NDI Middle East Director Les Campbell said last week that his organization has no programs in the UAE, and the office "was simply a regional hub which supported programmes in places like Qatar and Kuwait."

The congressional staffers pressed the UAE officials to comment on the rumors that the UAE government was acting on behalf of the Saudi government, which is said to object to NDI's programs for Saudi women. But the UAE officials denied any knowledge of Saudi interference or pressure to the congressional staffers.

The staffer also said U.S. Ambassador to the UAE Michael Corbin downplayed the UAE government's actions in his meeting with the congressional delegation.

"Even more troublesome was [the U.S.] ambassador's statement in response to questions we raised about the shutdown in a meeting on Tuesday. He essentially suggested that it wasn't that big of a deal since NDI doesn't do any work in the UAE," the staffer said. "Moreover, he seemed to sympathize with their concerns given the changing situation in the Middle East and he characterized work that organizations like NDI do as `fomenting' political change."

Officials at NDI's Washington office and the UAE embassy in Washington declined to comment.

from the Associated Press, 2012-Apr-24, by Aya Batrawy:

Egypt comedian found guilty of offending Islam

An Egyptian court on Tuesday upheld a conviction against one of the Arab world's most famous comedians, sentencing him to jail for offending Islam in some of his most popular films.

CAIRO — An Egyptian court on Tuesday upheld a conviction against one of the Arab world's most famous comedians, sentencing him to jail for offending Islam in some of his most popular films.

The case against Adel Imam and others like it have raised concerns among some Egyptians that ultraconservative Muslims who made gains in recent elections after Hosni Mubarak's ouster last year are trying to foist their religious views on the entire country. Critics say the trend threatens to curb Egypt's vibrant film industry and freedom of speech.

Imam was sentenced to three months in jail and fined around $170 for insulting Islam in roles he played in movies such as "The Terrorist", in which he acted the role of a wanted terrorist who found refuge with a middle class, moderate family, and the film "Terrorism and Kabab. "

The actor was also found guilty for his 2007 role in "Morgan Ahmed Morgan," in which Imam played a corrupt businessman who tries to buy a university diploma. The film included a scene parodying bearded Muslim men wearing traditional Islamic clothing.

Author Alaa al-Aswany, whose best-seller "The Yacoubian Building" was turned into a film costarring Imam, said the court ruling sets Egypt back to the "darkness of the Middle Ages."

"This is an unimaginable crime of principle in developed nations," he said in remarks posted on his Twitter account Tuesday.

The case is one of many brought by conservative lawyers in recent months seeking to punish individuals they deem as having offended Islam. Earlier this year, two courts rejected blasphemy cases against Christian media mogul, Naguib Sawiris, after he relayed a cartoon online of Mickey Mouse with a beard and Minnie in a face veil.

The cases highlight the newfound sense of empowerment among followers of the ultraconservative Salafi trend of Islam in Egypt after Mubarak was toppled in a popular uprising. Their newly formed Al-Nour party won 25 percent of seats in parliament, emerging as the second most powerful group in Egypt after the more moderate Muslim Brotherhood.

The mere filing of such blasphemy cases by Salafi lawyers has raised concern among rights groups and liberals about attempts to curb freedom of speech.

Egyptian entertainment reporter Tarek el-Shinnawi said the case against Imam is a setback for Cairo's famed film industry, which has produced the region's most popular films.

"It will make any writer, director or actor think before considering the role of a Muslim figure," el-Shinnawi said.

Imam was initially found guilty in February in a case brought by an ultraconservative Islamist lawyer. He was given a retrial since he was first tried in absentia. He did not appear in court Tuesday but his lawyers did. Imam has the right to appeal.

Under Mubarak, government censors controlled what could be shown in theaters or filmed by major studios. The films Imam starred in were approved by the censors.

El-Shinnawi argued that a legally sound case would involve the writers and directors, and the censors who approved the movies, not just the star of the films.

Imam, 71, has acted in dozens of films in a career that spans nearly 50 years.

Long a beloved figured in Egypt, Imam lost popularity among Egyptian protesters for supporting Mubarak during last year's 18-day revolt.

In one of his most popular roles, Imam played an Arab dictator in a 1998 satirical play called el-Zaeem. The play has since been aired on satellite television across the Arab world, bypassing state censors and gaining popularity through its comedic take of a tyrannical figure.

from, 2012-Mar-24:

Microsoft Censors Pirate Bay Links in Windows Live Messenger

The Pirate Bay is not only the most visited BitTorrent site on the Internet, but arguably the most censored too. Many ISPs have been ordered to block their customers' access to the website, and recently Microsoft joined in on the action by stopping people sharing its location with others. Microsoft's Windows Live Messenger (MSN) now refuses to pass on links to The Pirate Bay website, claiming they are unsafe.

windows pirate logoImagine that you found this great new band sharing their music on BitTorrent for free.

You're actually so excited about this find you want to share the experience with friends, so you paste them a link to the official torrent file via Windows Live Messenger.

Although this might sound like a good idea to some, Microsoft appears to disagree. Those who try to paste a Pirate Bay link to their friends through Windows Live Messenger will notice that it never reaches its destination.

Instead, Microsoft alerts the sender that The Pirate Bay is unsafe. Apparently, the company is actively monitoring people's communications to prevent them from linking to sites they deem to be a threat.


picture of blocked url in windows live

The same happens in other chat clients such as Pidgin when using a Windows Live Messenger account.


blocked by pidgin

Whatever Microsoft's reason for monitoring private conversations and then swallowing Pirate Bay links, the Redmond-based company's censorship policies are not very consistent. All of the other large BitTorrent sites remain unaffected, even though they offer content that's identical to The Pirate Bay.

While it's not clear whether the above is related to copyright concerns, censorship is indisputably an up-and-coming tool to protect the interests of the entertainment industries. Taking away your freedom of speech one link at a time.

TorrentFreak attempted to contact Microsoft for a comment on the issue, but we have yet to hear back.

from the Huffington Post, 2012-Mar-9, by Edward J. Black:

UN's ITU Could Become Next Internet Freedom Threat

Internet freedom is again under fire for ostensibly noble reasons. After a narrow escape from Congress's SOPA legislation, Internet freedom is in the international crosshairs of a large group of nations, including many of the world's most undemocratic governments, seeking to give themselves control over Internet policy. Their target is the creation of new international legal rules that would allow them to legitimately impose censorship and monitor users' online activities.

The Internet's ability to empower people is feared by undemocratic countries. It's even a challenge for the governments of democratic countries to resist the temptation to tinker with Internet fixes for various social causes.

Sometimes the reasons for interference with users' activities spring from defendable intentions: stopping crime or blatant copyright abuse as we saw with SOPA. Internet openness would have been collateral damage if Congress had passed that legislation, which would have required U.S. companies to create privatized Internet censorship regimes in hopes of reducing copyright infringement.

However, once filtering, censorship or traffic redirecting tools are developed and deployed, they can be used for a variety of reasons -- not just for the purposes that first got the regulations enacted. Some of the lessons learned from the dangers of legislation like SOPA should be the need for forbearance and a well-researched, multi-stakeholder derived policy to avoid unintended consequences.

We've been concerned about similar efforts that could result in a treaty giving a United Nations agency new power to "manage" the Internet. Russia, along with China, North Korea, Iran and other notably nondemocratic countries, are advocating for international regulation of the Internet through a treaty-based organization in the United Nations -- the International Telecommunications Union (ITU).

These countries are also asking for a "cyber arms control treaty." But the real goal is to give governments the international legal cover to declare information they don't like a "danger to the state" and therefore the equivalent of cyber warfare so they can censor it. An article in the World Affairs Journal outlines Russia's patient, organized effort over more than a decade.

The article warns, "If diplomats are not careful, one by-product of a push to regulate state-on-state cyber conflict could be a new effort to subject Internet activity to political scrutiny." It points to the efforts at the ITU as a telling example of this trend.

These countries have also pushed this agenda in other venues:
• Suggesting at the UN General Assembly in 2011 that a code of conduct for Internet use should be mandated in international law (and conveniently giving the governments of the world the right to determine what is outside the limits of the code);
• Proposing to create a new UN agency that would be a 'super agency' responsible for managing all aspects of Internet policy -- with, naturally, governments having the only vote.

There are warning signs that 2012 is lining up to be particularly important in this fight.

Russian Prime Minister Vladimir Putin met last year with the head of the ITU and said "international control over the Internet" is critical.

As officials plan for a major ITU conference, the World Conference on International Telecommunications (WCIT), countries like China and Russia plan to try to significantly expand the authority of the ITU, according to former U.S. Ambassador David Gross.

Russia, China and their partners are expected to use this conference intended to renegotiate the ITU's telecommunications regulations to expand its mandate to regulate the Internet. To succeed, they need a majority of the 193 member states to agree. The proposals could dramatically change everything from access and affordability of the Internet to oversight by the ITU -- and therefore governments -- of ICANN, the IETF and other organizations responsible for elements of the Internet's architecture. Unlike the ITU, these organizations use a multi-stakeholder approach where all voices are a part of the process of decision-making -- but none control the others.

As FCC Commissioner Robert McDowell pointed out in his Wall Street Journal editorial last month, proponents of Internet freedom need to play offense not just defense by encouraging all interested parties, including governments and the ITU, to examine the economic and social benefits of the open Internet and to broaden the multi-stakeholder approach to managing Internet concerns.

The SOPA/PIPA battle that roused Internet users to the threats to this critical communications tool and awakened politicians to the power of Internet users is a small, though significant part of the growing Internet freedom war. The stakes are high. The outcome of these upcoming negotiations in Geneva, will affect every Internet users' access to information and ultimately the relationship every government has with those they govern.

CCIA has been engaged in this fight for years, on the ground, alongside other companies and NGOs. Those who value Internet freedom around the world need to spread the word and encourage their country to reject upcoming pressure to alter international regulations to control the Internet and its users.

from the Register (UK), 2012-Mar-11, by Richard Chirgwin:

US withdraws IANA RFP, `no suitable responses'
ICANN manages to lose a one-horse race

The Internet's rent-seeking domain name toll-collector ICANN is red-faced following the cancellation of an IANA (Internet Assigned Names and Numbers) RFP from the Department of Commerce.

The RFP (request for proposals) cancellation, reported on CircleID, happened because, according to the National Telecommunications and Information Administration, “we received no proposals that met the requirements requested by the global community”.

The cancellation means that not even ICANN (the Internet Corporation for Assigned Names and Numbers), whose 14-year-old self-serving monopoly experience operating the Internet's naming system has been refined over 14 years, could meet the RFP's requirements. The RFP will now be re-run, with ICANN's contract extended for six months during the process.

Some of those requirements, according to the NTIA's notice issued on March 10, included “the separation of policymaking from implementation, a robust companywide conflict of interest policy, provisions reflecting heightened respect for local company laws, and a series of consultation and reporting requirements to increase transparency and accountability to the international community”.

ICANN has been under growing criticism over key policy decisions; in particular, the processes that make both the .xxx domain and the creation of gTLD “brand” domains look like nothing more than protection rackets designed to extract cash from brand owners either fearful of having their brands polluted by smut-peddlers or squatted by bigger companies.

In entirely coincidental news, the day after the RFP debacle emerged, ICANN announced that it is “seeking expressions of interest for a review of its accountability mechanisms”. It wants to create a committee of “independent experts” to review both its Reconsideration Process and its Independent Review Process.

from Computerworld Kenya via PC Advisor, 2012-Mar-14, by Rebecca Wanjiku:

Domain seizures for copyright infringement likely to go global
Law enforement officials urge ICANN to take steps to ensure compliance with international agreements

Efforts to take down websites for copyright infringement are likely to move beyond U.S.-based registries, with ICANN (the Internet Corporation for Assigned Names and Numbers) promising to more closely cooperate with global law enforcement agencies and governments.

Cooperation to combat copyright infringement has been a hot topic this week at ICANN's international meeting in San José, Costa Rica. There are 22 registries and over 700 registrars accredited by ICANN. Registries contain domain names registered in a top-level domain, while registrars sell domains.

Any domain under a U.S. registry must follow U.S. laws regardless of where the servers are, according to agreements currently in place. The seizure of domains deemed to infringe on copyrights was first carried out by Verisign, the operator of the registry for .net and .com.

During an open session with the Government Advisory Committee (GAC), the ICANN board confirmed that it will enforce its contracts with registrars more effectively in order to meet expectations from governments and law enforcement authorities. The expectations were contained in a 12- page document submitted by the GAC, which also includes representatives from national law enforcement agencies as well as Interpol.

"There has been some agreement on 11 of the 12 recommendations made by law enforcement authorities to the registrar accreditation agreement; we will work to ensure agreement meets expectations and give registrars the incentive to accept recommendations right away," said Kurt Pritz, ICANN senior vice president in charge of stakeholder relations.

Representatives from governments, Interpol and the U.S. Federal Bureau of Investigationsaid they felt that ICANN's failure to enforce its own contractual agreements was damaging to Domain Name System users as well as end users.

Some of the 12 recommendations relating to registrar agreements was inclusion of a clause that holds registrars responsible through negligence for registering domains engaging in criminal activity. Another recommendation is for registrars to maintain detailed information of domain buyers, including their source IP addresses and transaction information, and validate the contact information given by domain buyers.

Law enforcement officials have also urged ICANN to review registrars' compliance record with enforcement agreements prior to renewing their contracts.

"Complaints on compliance started coming in the last six to nine months, a team of 12 is now in place and will improve the quality of service," said Rod Beckstrom, ICANN CEO and president.

from National Review Online, 2012-Mar-15, by Glenn T. Stanton:

Free Speech: Only for Those Who Agree

The organization GLAAD, which is committed to making sure no one in any media venue ever says anything untoward about homosexuality, has launched a new campaign aimed at a number of my friends and colleagues, as well as myself.

They do not like that media channels have asked any of us about our views on anything having to do with homosexuality and that our answers do not line up with GLAAD orthodoxy. Therefore, they believe we should be silenced. They say their effort is only to hold commentators like us “accountable” for what we say, but nowhere on their site do they try to correct or refute anything that any of us has said.

Most of the comments by the folks they are targeting are just plain, everyday views that many good citizens hold about homosexuality and so-called same-sex marriage. GLAAD is upset that people would say such things out loud and any media source — liberal, conservative, mainstream, Christian, Jewish, whatever — might print them. Read their “smoking-gun” evidence listed under each targeted spokesperson for yourself and see how many of them are really a threat to civil society. A few might not demonstrate the smartest reasoning in the world, but if we ban all unrefined quotes in the media . . .

Most serve to demonstrate GLAAD's unreasonableness. They take Jim Daly, my boss and president of Focus on the Family, to task for having the audacity to say some gay activists want to limit the speech of others. And yes, he did say it.

“Unfortunately, this is becoming a pattern for those that oppose Christianity. They want to control our speech in the public square. . . . It really is a form of fascism.”

Imagine. Doubtful GLAAD fully appreciates the irony of their selection of this quote.

from the Wall Street Journal's Best of the Web, 2012-Mar-12, by James Taranto:

That 70s Show
Elderly feminists try to turn back the clock.

When this column observed last month that contemporary feminism is a totalitarian ideology, we drew a bit of mockery from certain quarters on the left. Yet as if to illustrate our point, three prominent septuagenarian feminists--Jane Fonda, Robin Morgan and Gloria Steinem, co-founders of the Women's Media Center--joined forces over the weekend to demand the suppression of speech they dislike.

Specifically, they called on the the Federal Communications Commission to silence Rush Limbaugh using its regulatory power. "For 20 years, Limbaugh has hidden behind the First Amendment," they complain in a op-ed:

Limbaugh doesn't just call people names. He promotes language that deliberately dehumanizes his targets. Like the sophisticated propagandist Josef Goebbels, he creates rhetorical frames--and the bigger the lie, the more effective--inciting listeners to view people they disagree with as sub-humans. His longtime favorite term for women, "femi-Nazi," doesn't even raise eyebrows anymore, an example of how rhetoric spreads when unchallenged by coarsened cultural norms.

We suppose we should mention that we don't care for Limbaugh's term "feminazi" either. While there's no denying its euphony--and euphony counts for a lot in radio--feminism is fundamentally different from National Socialism in that the latter is based on a theory of racial supremacy while the former is based on a false theory of equality. If only there were a catchy portmanteau of "feminism" and "Gramsci."

That said, you have to marvel at Fonda, Morgan and Steinem's chutzpah in comparing Limbaugh to Goebbels and then, in the very next sentence, denouncing him for using a Nazi analogy. The technical term for this sort of thing is "comedy gold."

A deeper irony is that in calling on the FCC to shut Limbaugh down, the troika are actually looking to turn back the clock by at least 40 years. "Are the stations carrying Limbaugh's show in fact using their licenses 'in the public interest'?" they ask. "Spectrum is a scarce government resource. Radio broadcasters are obligated to act in the public interest and serve their respective communities of license."

The scarcity of radio bandwidth provided the U.S. Supreme Court with its rationale for upholding the so-called Fairness Doctrine in Red Lion v. FCC (1969). The doctrine's intent was to ensure a balance of opinion on broadcast radio and television, but its effect was to impose blandness, as broadcasters shunned controversy so as to avoid regulatory complications.

The FCC abolished the Fairness Doctrine less than 20 years later, and the explosion in conservative talk radio followed. Liberals have tried to mimic the success of Limbaugh and his compatriots, but their audience turned out to prefer NPR to Air America. Meanwhile the scarcity argument carries even less force today than it did in the 1980s, what with the growth of cable, satellite and Internet transmission. (CNN, for whose website the trio wrote this piece, launched 32 years ago this June.)

Even in Red Lion, the Supreme Court acknowledged that the FCC did not have the power to censor broadcasts directly:

There is no question here of the Commission's refusal to permit the broadcaster to carry a particular program or to publish his own views; of a discriminatory refusal to require the licensee to broadcast certain views which have been denied access to the airwaves; of government censorship of a particular program . . .; or of the official government view dominating public broadcasting. Such questions would raise more serious First Amendment issues.

Meanwhile, Politico reports that Gloria Allred, another 70-something feminist, wants to turn back the clock even further. On behalf of the Women's Equal Rights Legal Defense and Education Fund, Allred has written a letter to Michael McAuliffe, the chief state prosecutor for Palm Beach County, Fla., asking him to prosecute Limbaugh for defamation.

At issue, of course, are Limbaugh's comments about Sandra Fluke, the young political activist whom Democrats have used as a symbol for the ObamaCare mandate that religious organizations provide their employees with insurance for contraceptives, abortifacient drugs and sterilization procedures. Allred believes Limbaugh violated a Florida statute that provides: "Whoever speaks of and concerning any woman, married or unmarried, falsely and maliciously imputing to her a want of chastity, shall be guilty of a misdemeanor of the first degree."

For the purpose of this analysis, let's assume that Limbaugh did in fact "impute" to Fluke "a want of chastity." A successful prosecution would still require reversing important 14th Amendment and First Amendment precedents going back almost 50 years.

As blogger Aaron Worthing notes, the statute is facially unconstitutional under the 14th Amendment's Equal Protection Clause because it criminalizes defamation of women and not men. As Justice Sandra Day O'Connor wrote in Mississippi University for Women v. Hogan (1982):

The test for determining the validity of a gender-based classification . . . must be applied free of fixed notions concerning the roles and abilities of males and females. Care must be taken in ascertaining whether the statutory objective itself reflects archaic and stereotypic notions. Thus, if the statutory objective is to exclude or "protect" members of one gender because they are presumed to suffer from an inherent handicap or to be innately inferior, the objective itself is illegitimate.

A sex-neutral law barring false accusations of improper sexual conduct would meet this test, but it might also have a chilling effect on some of Allred's clients.

The First Amendment also poses an insurmountable obstacle to a Limbaugh prosecution. While criminal defamation statutes are not in themselves unconstitutional, they do have to be enforced consistent with New York Times v. Sullivan (1964) and subsequent cases. Since Fluke is a public figure, that means prosecutors would have to show that Limbaugh's comments were made not just with ill intent but with "actual malice"--either knowledge that they were false or reckless disregard for whether or not they were true. Fluke's testimony that she is a single woman in need of birth control would seem to provide Limbaugh with an airtight defense.

Even if one could go back in time to 1962 and try Limbaugh under the legal precedents that prevailed then, Allred's proposed prosecution would effectively put Fluke on trial. Criminal prosecutors must meet a higher standard of evidence than civil plaintiffs in order to win a case. In this instance they would have to prove beyond a reasonable doubt that Limbaugh's imputation of "a want of chastity" was false--or, to put it another way, that Fluke is, in fact, chaste.

One expects that Allred would regard such an inquiry as a repugnant intrusion into Fluke's private life. Indeed, it seems fair to say that such repugnance lies behind her desire to prosecute Limbaugh for his comments. But like the CNN trio with their Nazi analogy, Allred is trying to have it both ways. She wants to use criminal law to enforce standards of gentlemanly behavior while rejecting any reciprocal obligation for women to act ladylike. Thus feminism's theory of equality between the sexes dissolves into incoherence in the face of real life.

Speaking of incoherence, a group called Liberal Ladies Who Lunch, inspired by Aristophanes' play "Lysistrata," last week announced that it "has launched a movement, the 'NO ACCESS SEX STRIKE' to encourage women to cut off sex to their male partners for one week, April 28-May 5, 2012, to make their point":

"Access to affordable family planning is key to a woman's liberty," says Annette Maxberry-Carrara, the founder of Liberal Ladies Who Lunch. "But this is also an important issue for men. American men enjoy the benefits of women making their own choices about when to get pregnant. Men get the advantage of free, easy access sex with young women of child-bearing age. It wasn't like that sixty years ago. If women can't get reliable birth control, they will just have to keep their legs crossed to prevent pregnancy--even married women. I don't think anyone wants that."

The ladies in "Lysistrata" were seeking to end a war, so what exactly is the objective of this "strike"? "Once congress [sic] and insurance agencies agree to cover contraception, we will then resume having sex," according to The Ladies who Lunch are demanding something the government has already decreed. They might as well declare victory and go home.

But ponder this revealing yet very sad quote from Maxberry-Carrara: "Men get the advantage of free, easy access sex with young women of child-bearing age." It's a false analogy: Whereas the ObamaCare mandate creates an entitlement to birth control, no man is entitled to "easy access sex." That requires consent.

It is true, however, that contemporary feminism is a sweet deal for hedonistic men who have the social skills to persuade "young women of child-bearing age" to consent to "easy access sex." When you look at it that way, you can understand why feminism's grandes dames are so keen to turn back the clock.

from, 2012-Feb-16, by Nate Anderson:

Takedowns run amok? The strange Secret Service/GoDaddy assault on JotForm (updated)

Popular site JotForm doesn't host music or movies or child pornography, all of which have led US Immigration and Customs Enforcement (ICE) to seize other Internet domain names without advance warning (sometimes making serious mistakes). JotForm also doesn't create content itself. Instead, it helps customers create online forms that can then be embedded in their websites for easy data collection.

But that didn't spare the site from having its entire business shuttered without warning yesterday as the site's domain name was shut down at the request of the US Secret Service. JotForm's domain name registrar, GoDaddy, redirected the site's nameservers to NS1.SUSPENDED-FOR.SPAM-AND-ABUSE.COM—and with that, became unreachable and the site's two million user-created forms all broke.

And it all may have been done without a court order.

When he saw his site was down, JotForm cofounder Aytekin Tank scrambled. He checked in with GoDaddy, which told him that the site had been suspended as part of an ongoing investigation.

GoDaddy has long supported authorities who have concerns about the websites and domains it hosts. In Congressional testimony last year, the company's general counsel Christine Jones noted that "Our staff routinely works with courts and law enforcement from the local to international level to shut down domain names and websites through which infringers and counterfeiters operate. Any time we are notified by a court or a federal or state prosecutor that there is criminally infringing material on our systems, we work rapidly to disable access to that material."

Note the two criteria: a court order or a notification from a prosecutor. That latter category amounts to an unproven allegation—and it's what Tank believes derailed him here. "No, as far as I know, there is no judge order," he told me. "They sent a request to GoDaddy and GoDaddy complied."

But GoDaddy won't say publicly whether the takedown was voluntary or compulsory. When I asked, the company's Director of Network Abuse, Ben Butler, told me that his office complies with "orders from courts, as well as confirmed official requests from law enforcement agencies," but he wouldn't get into specifics in this case.

"We can tell you in general terms, at the specific request of law enforcement, Go Daddy sometimes takes action to prevent further harm being caused by a website hosted on our servers," he added. "This would include things like sites engaged in phishing, malware installation, securities fraud, and so on."

Butler's office acted on whatever request was received and shut down the site's domain, but he did pass the requesting agent's contact info along to JotForm so that the company could work to resolve the issue. According to a copy of an e-mail seen by Ars Technica, GoDaddy told JotForm that "the domain name was suspended as part of an ongoing law enforcement investigation" and that Tank should contact a special agent at the US Secret Service.

Tank, desperate to find out what had happened, called her.

"The agent told me she is busy and she asked for my phone number, and told me they will get back to me within this week," he wrote in an explanation post on Hacker News. "I told them we are a Web service with hundreds of thousands of users, so this is a matter of urgency, and we are ready to cooperate fully. I was ready to shutdown any form they request and provide any information we have about the user. Unfortunately, she told me she needs to look at the case which she can do in a few days. I called her many times again to check about the case, but she seems to be getting irritated with me."

A Secret Service spokesperson had no public comment when reached by Ars Technica, but he promised to look into the episode. No further information was available by publication time.

Caught by a phish-hook?

Though unsure of what the case was even about, Tank suspected a phishing form—something that JotForm has dealt with for quite some time. The company says it runs a Bayesian phishing filter to identity and block accounts being used to harvest various kinds of user information, and that it suspended 65,000 such accounts last year alone.

Such phishing attacks have been ongoing in recent weeks. Perusing the JotForm support forums turns up comments such as this one from the RSA Anti-Fraud Command Center. RSA says that it has "been appointed to assist [South Africa's] Standard Bank in preventing or terminating online activity that targets, or may target Standard Bank’s clients as potential fraud victims" and that "it appears the form service you provide is being used in a phishing attack."

The shutdown of his entire domain, without notice, for something a user had done even after protections were in place against it, seemed hugely unfair to Tank; he made his public case in terms that would also apply to other user-generated sites like YouTube. "We have 2 millions user generated forms," he wrote. "It is not possible for us to manually review all forms. This can happen to any Web site that allows user-generated content."

The first priority for JotForm was restoring some kind of access. Tank decided to migrate everything to and make that site live instead. This wouldn't fix anything automatically—existing Javascript that pointed to would continue to fail—but site operators who needed the forms could manually tweak their embedding code to point to instead. For customers with hundreds of forms, this could take a while.

"When they have suspended, and told us that it might take a few days to even take a look into the case, we had to do something to keep our users' forms alive," Tank told me.

"We have 700,000 users and 2,000,000 user-generated forms on our site. So, we had to make live and email our users so that their forms will keep working. They have not provided any information about the content they would like us to disable, and we cannot keep 2,000,000 forms down for a few days. They don't seem to care about our concerns or about our customers."

The government also didn't seem to care that a new site with the exact same content was also live on the Internet under a different name; remains active.

As for the impact on JotForm's business, Tank doesn't yet know what it will be. "Many users were unhappy and lost trust in us," he added. "We might lose many of our customers. It is hard to say at this point."

Customers blasted the site. "Jotform sucks. Always some sort of problem. I will never again use or recommend Jotform. Already cancelled my subscription and will tell my friend to do so as well," one wrote.

"We are a multimillion dollar Canadian company that has used jotform the last year for customer inquires," said another. "They have been very reliable. However because of what has happened now we will have to implement an internally hosted solution to guarantee this will not happen again and ensure we will not loose [sic] our data. I will now have to question purchasing any more services from US internet related providers."

Numerous commenters blamed the company for using GoDaddy as a registrar. "This is what you get for finically [sic] supporting a domain registrar which has a history of extrajudicial and unjustifiable actions like this," wrote another. "Idiots."

JotForm today moved its domains away from GoDaddy to registrars NameCheap and Hover. Tank still doesn't know why his domain was suspended or when it might be returned; however, a WHOIS search this afternoon revealed that GoDaddy has at last removed the domain from its penalty box.

Not that anyone bothered to tell him this.

"Yes, the site seems to be back now. This made us very happy!" he wrote me by e-mail. "We have been working for the last two days to restore our service for our customers. They have not provided any details. I just found it out from you. Thank you for the great news!"

Update: Secret Service spokesman Brian Leary has confirmed to Ars that, after further investigation, his agency is indeed involved in the JotForm case. The Secret Service has also launched an internal review to "make sure all our policies and procedures were followed" in the matter, he added. He could not comment on any other issues surrounding the case, including whether a court order had been obtained.

from the Hollywood Reporter, 2012-Feb-2, by Stewart Baker:

The SOPA War: Why the GOP Turned on Piracy

For Republicans, opposition to intellectual property laws is starting to look like a political winner, and that should terrify Hollywood as it misreads where the pop-culture power base now lies. The entertainment industry has lost the fight over SOPA, its legislative proposal for stopping Internet piracy. Now some want to try again with a revamped bill and a bigger push. But the same approach could stunt Hollywood's clout in Washington. That's because the industry still doesn't understand its adversary. From the start, studios saw the fight over SOPA as a struggle with a bunch of other companies -- Google and Internet service providers among them -- that were hoping to profit from the Internet travails of the entertainment industry. That turned out to be wrong. In fact, the industry is fighting what amounts to a new popular culture. Unlike the old pop culture Hollywood dominated, this one is largely independent of the music, movie and broadcast industries. In fact, people who spend hours online instead of watching TV or going to movies will probably encounter the entertainment industry only when YouTube videos of their kids dancing to Prince or spoofing Star Wars are pulled down by Hollywood's bots, or when the RIAA threatens to sue them for their college savings, or when digital rights software makes it hard to move their stuff to a new tablet or phone. To the entertainment industry, these episodes might seem like collateral damage in the fight to stop piracy. To the new pop culture, though, collateral damage and misuse of enforcement tools are everywhere, and they threaten everyone. The content industry has made itself into the villain. Increasingly, it looks like an occupying power, obeyed at gunpoint, despised for its ham-handed excesses and resisted from every dark corner. Unfortunately for Hollywood, as its customers migrate to the Internet, it is losing not just their money but their hearts and minds as well. The industry's miscalculation about the source of resistance to SOPA might have led to an even bigger mistake. As long as the campaign for better IP enforcement was an inside-the-beltway, company-versus-company struggle, it could be fought within the Congressional judiciary committees, where Republican and Democratic politicians were wooed and won as individuals. As a result, strengthening intellectual property enforcement has been a bipartisan issue for the past 25 years. But when the fight went from the committees to the floor and Wikipedia went down, every member of Congress was expected to take a stand. The two parties reacted very differently. Despite widespread opposition to SOPA from bloggers on the left, Democrats in Congress (and the administration) were reluctant to oppose the bill outright. The MPAA was not shy about reminding them that Hollywood has been a reliable source of funding for Democratic candidates, and that it would not tolerate defections. But that very public message also reached another audience: Tea Party conservatives. Most of them had never given a second thought to intellectual property enforcement, but many had drawn support from conservative bloggers. They began to ask why they should risk the ire of their Internet supporters to rescue an industry that was happily advertising how much it hated them. Pretty soon, far more Republicans than Democrats had bailed on SOPA, and the Republican presidential candidates had all come out for what they called "Internet freedom." That's what really ought to worry the entertainment industry. For Republicans, opposition to new intellectual property enforcement is starting to look like a political winner. It pleases conservative bloggers, appeals to young swing voters, stokes the culture wars and drives a wedge between two Democratic constituencies, Hollywood and Silicon Valley. We've seen this movie before. Immigration reform, the DREAM Act, free-trade agreements and the USA Patriot Act all commanded impressive bipartisan support -- for a while. Now, not so much. Bills on these topics still come to the floor, and they sometimes even pass, but only after endless partisan point-scoring and amendments driven by talk radio and mass e-mail. The same soon could be true of intellectual property enforcement. SOPA has pushed a generation of Republicans into choosing sides between Hollywood and the Internet. They might never look back. Stewart Baker, a former government official under President George W. Bush, practices security and technology law in Washington D.C. He is the author of Skating on Stilts: Why We Aren't Stopping Tomorrow's Terrorism.

from the Stonegate Institute via the Jerusalem Post, 2012-Feb-7, by Khaled Abu Toameh:

PA: Write only nice things about your leaders on Facebook
Palestinian Authority security forces monitor social media giant; say criticism should be directed against Israel.

Facebook has become a dangerous playground for Palestinians living under the Palestinian Authority in the West Bank.

The US-backed Palestinian Authority security forces belonging to Mahmoud Abbas and Salam Fayyad have been monitoring the activities of Palestinians on Facebook to make sure that no one criticizes them.

The Palestinian Authority wants Palestinians to write only nice things about their leaders. Criticism should be directed only against Israel. Those who fail to toe the line will find themselves either behind bars or without work.

The Palestinian leaders are aware of the power of social networking, especially in light of what happened in Tunisia, Egypt, Libya and Syria.

The Palestinian leadership's clampdown on Facebook users is seen as a pre-emptive measure to prevent the "Arab Spring" from infiltrating into the West Bank.

Rami Samara, a Palestinian journalist from Ramallah, last week found himself under interrogation by two different security agencies in the West Bank: Military Intelligence and General Intelligence.

Samara was detained while at work in the offices of the PLO's official news agency, Wafa. His crime: a comment he posted on his Facebook page.

The comment was about a statement issued by the PLO executive committee holding Israel responsible for the failure of the recent Israeli-Palestinian talks in Jordan.

Samara wrote in his sarcastic comment: "Ok, no joking now, do the members of the 'sole legitimate leadership of the Palestinian people' believe that this announcement is worth their sitting in their seats, turning on the heaters and drinking coffee and tea in their offices in Ramallah?"

The journalist said he was interrogated separately by the two intelligence forces in Ramallah about the comment and his activities on the social networking site. He was released a few hours later following strong protests by other journalists and human rights organizations.

Samara is the second Palestinian journalist to be targeted by security forces loyal to Abbas and Fayyad because of Facebook.

About a year ago, Mamdouh Hamarneh, a TV producer from Bethlehem, was detained for 50 days after comparing Abbas on Facebook to a Syrian actor who portrayed a "traitor" in a popular Syrian soap opera.

This week, a Palestinian woman complained that she too had been summoned for interrogation because of a comment she had posted on her Facebook page. She said she was interrogated by another security agency - Preventive Security - which also belongs to Abbas and Fayyad.

Because of the crackdown on Facebook users, many Palestinians in the West Bank today think twice before they post a comment that could anger the Palestinian leadership in Ramallah.

from the Guardian of London, 2012-Feb-10, by Owen Bowcott:

Interpol accused after journalist arrested over Muhammad tweet
Saudi Arabia used Interpol's system to get journalist arrested in Malaysia for insulting the Prophet Muhammad on Twitter

Interpol has been accused of abusing its powers after Saudi Arabia used the organisation's red notice system to get a journalist arrested in Malaysia for insulting the Prophet Muhammad.

Police in Kuala Lumpur said Hamza Kashgari, 23, was detained at the airport "following a request made to us by Interpol" the international police cooperation agency, on behalf of the Saudi authorities.

Kashgari, a newspaper columnist, fled Saudi Arabia after posting a tweet on the prophet's birthday that sparked more than 30,000 responses and several death threats. The posting, which was later deleted, read: "I have loved things about you and I have hated things about you and there is a lot I don't understand about you … I will not pray for you."

More than 13,000 people joined a Facebook page titled "The Saudi People Demand the Execution of Hamza Kashgari".

Clerics in Saudi Arabia called for him to be charged with apostasy, a religious offence punishable by death. Reports suggest that the Malaysian authorities intend to return him to his native country.

Kashgari's detention has triggered criticism by human rights groups of Malaysia's decision to arrest the journalist and of Interpol's cooperation in the process.

Jago Russell, the chief executive of the British charity Fair Trials International, which has campaigned against the blanket enforcement of Interpol red notices, said: "Interpol should be playing no part in Saudi Arabia's pursuit of Hamza Kashgari, however unwise his comments on Twitter.

"If an Interpol red notice is the reason for his arrest and detention it would be a serious abuse of this powerful international body that is supposed to respect basic human rights (including to peaceful free speech) and to be barred from any involvement in religious or political cases."

He called on Interpol to stand by its obligations to fundamental human rights and "to comply with its obligation not to play any part in this case, which is clearly of a religious nature".

Interpol, which has 190 member countries, has a series of coloured notice systems that police forces around the world use to pass on requests for help. Contacted at its headquarters in Lyon, France, the organisation did not immediately reply to requests for comment on the Kashgari case.

In response to past criticisms of the red notice system, it has said: "There are safeguards in place. The subject of a red notice can challenge it through an independent body, the commission for the control of Interpol's files (CCF)."

Last year Interpol was accused by Fair Trials International of allowing the system to be abused for political purposes when it issued a red notice for the arrest of the Oxford-based leader of an Asian separatist movement, Benny Wenda, who has been granted asylum and has lived in the UK since 2003.

from the Christian Science Monitor online, 2012-Feb-10, by Curt Hopkins:

Malaysia may repatriate Saudi who faces death penalty for tweets

Saudi writer Hamza Kashgari fled Saudi Arabia after a trio of tweets about the prophet Muhammad brought death threats. Malaysian police apprehended him en route to New Zealand, where he was to request asylum.

A 23-year-old Saudi Twitter user, Hamza Kashgari, fled the country Sunday to avoid being arrested for his religious tweets, only to find himself in the hands of the Malaysian police today. He had been heading to New Zealand to request political asylum.

On Saturday, the anniversary of the prophet Muhammad's birthday, Kashgari tweeted three times, expressing his religious beliefs about the founder of Islam. Within hours, he was inundated with violent threats. Despite a full renunciation, a warrant was issued by kingdom authorities for his arrest and the Kingdom's religious Fatwa Council condemned him as an apostate and an infidel, crimes which are punishable by death.

"Blasphemous" Tweets

According to one of Kashgari's friends, who wishes to remain anonymous, these are the three tweets that were the basis for the Saudi arrest warrant.

Kashgari's Twitter account, @Hmzmz, has been shut down.

Kashgari's friend points out that these actions have come after a number of reversals for religious conservatives in the Wahhabi-influenced state. These include a law allowing women to work as salespeople in public lingerie stores, and the replacement of the head of the religious police with a moderate, who ordered restrictions on how the religious police operate. It also happened within the context of the unrest of the Arab Spring.

Hashtags of shame

Kashgari's harassment is not out of the blue, nor, apparently, based on these tweets alone. He has been the target of religious Twitter users for months. "Public shaming through hashtags is now a common Saudi pressure tactic, especially against public officials and government scandals," said his friend.

A hardcore Saudi cleric used YouTube to post his condemnation of the young man. The cleric, Nasser al-Omar, known as the "weeping cleric" for his tendency to burst into tears at the blasphemy done to the prophet, called for Kashgari to be hauled before a sharia court, according to long-time Saudi blogger, Ahmad al-Omran (Saudi Jeans).

"These people [like Kashgari] should be put to trial in sharia courts. It is known that cursing God and his prophet is apostasy. And the fact that he has repented with cold words will not probably save him in the court." (Al-Omram's translation.)

The punishment for apostasy is death.

Saudi Arabia's information minister has commanded that no one publish any of Kashgari's writings. Prior to this incident, he was a columnist with al-Bilad, a newspaper based in the eastern city of Jeddah.

"I have instructed all newspapers and magazines in the kingdom not to allow him to write any thing and we will take legal measures against him."

Kashgari was trying to make a connecting flight to New Zealand when he was apprehended and arrested yesterday in Malaysia at the Kuala Lumpur airport. It has been reported that Malaysia, an officially Islamic state, will forcibly repatriate Kashgar to Saudi Arabia. Malaysia has no formal extradition agreement with the Kingdom of Saudi Arabia.

Curt Hopkins is a production editor and international reporter for the technology blog site,, where this blog originally appeared on Feb. 9.

from Gulf News of Dubai, 2012-Feb-14, by Habib Toumi:

Call to try those who supported Saudi blogger
Malaysian minister defends decision to deport Kashgari

Manama People who encouraged a controversial Saudi columnist facing charges of blasphemy could be summoned by the public prosecutor, a report has said.

"The public prosecutor in Jeddah is filing a lawsuit against Hamza Kashgari on charges of disrespecting God and insulting Prophet Mohammad (PBUH) in his Twitter account," sources told Al Hayat daily.

The sources said that public prosecutor in the Red Sea city of Jeddah was likely to summon people who expressed support or agreed with him on the social network, the daily reported yesterday.

"The public prosecutor, as the attorney for the society, has the right to summon anyone who encouraged the defendant or who is connected to matters that motivated his action," Abdul Aziz Al Zamel, a legal consultant, said, quoted by Al Hayat.

The prosecutor is based in Jeddah, the city where Hamza Kashgari posted his tweets on Prophet Mohammad's (PBUH) birth anniversary before fleeing to Malaysia, the sources said.

According to Saudi daily Arab News, "a number of Saudis have called for the trial of all those who tweeted support for Kashgari, saying they were equally guilty."


"Those who supported the contents of Kashgari's tweets are considered criminal exactly like him," Khalid Abu Rashid, a lawyer and a legal consultant, was quoted as saying. The sentence to be passed on Kashgari should be imposed on his supporters too, he said.

The lawyer, however, said it was important to use the written texts to differentiate between two things in this case.

"If the support was for general principles like freedom of expression, then this is a different matter, but if the support was for the attacks on Allah and His Prophet (PBUH), then the supporters should be tried for apostasy," he said in the report quoting Al Eqtisadiah newspaper.

The Arabic daily said that individual and collective calls were made to the Prosecution and Investigations Commission to try Kashgari and all the bloggers who supported him in his blasphemy.

The 23-year-old columnist was deported on Sunday by the Malaysian authorities who arrested him at Kuala Lumpur International Airport.

On Sunday, a Malaysian daily reported that Kashgari was deported back home hours before his lawyers managed to get a High Court injunction to stop the deportation.

The lawyers, led by R. Kesavan, said that they obtained the injunction at 1:30pm on Sunday, but were told that Kashgari has been put on a plane at 10am.

The injunction was an order to the police, the Home Ministry, as well as the Subang and Kuala Lumpur International Airport immigration authorities to stop Kashgari's deportation, the daily said.

However, Home Minister Hesham Al Deen Hussain yesterday denied the claim, saying that no court order was issued to prevent his repatriation.

"There was no injunction. No court order was given to prevent us from returning him to Saudi," the minister told reporters. "If there was a court order, we would abide by it, but there wasn't, so don't make up stories. We have never failed to obey the justice system," he said, quoted by The Malaysian Insider.

The columnist is a Saudi Arabian national wanted by his home country to be tried in the justice system for his offence, the minister said.

No compromise

"I will not compromise. Do not look at Malaysia as a safe transit... Do not think you can come in and out of Malaysia. He is a foreign national, he is wanted by his own country of origin," he said.

Hussain said allegations made by several parties that the columnist would be killed if he was deported were "illogical."

"Allegations that he would be executed, abused, do not make sense. The country being accused is a dignified country. These are serious allegations against Saudi Arabia," Hussain said, quoted by the daily. The home minister said that there were no requests made by Interpol for Kashgari to be returned to his country of origin.

Deportation decisions are made on a case-by-case basis and not all those apprehended are sent back, Hussain said.

from, 2012-Feb-13, by Thomas Hawk:

Think You Can Sell That Photo of Your Cat on Your Living Room Couch as Stock Photography? Think Again.

I just got an email from Getty Images that I suspect is a mass email to all of their various contributors. In the email Getty is asking for help in identifying our photographs that might contain images of designer furniture. The email states that French courts have found in favor of the Le Corbusier rights-holders against Getty in a case where furniture was in the stock photograph.

Here is the email below with emails redacted:

“Attention all Flickr Collection on Getty Images Contributors!

You may have heard about a recent case (actually more than one case) where Getty Images and some of our photographers have had claims lodged against us in French court for images which include designer furniture, even as a minor part of the image.

This is a serious issue that involves potential liability for you as photographers.

The French courts have found in favor of the Le Corbusier rights-holders who initiated these claims. While we disagree with the decision and we are appealing it, we are very mindful that for now, it is a valid decision. It is critical that you understand that any claim like this one is extremely serious and requires action on your part in order to protect your interests, not just ours. We will continue to fight this decision, but in the meantime we must continue to actively pull content from our site that may be deemed infringing. We simply cannot identify all problematic images as quickly without your active participation. And quick action is vital.

Most importantly, if you believe that any of the images you have uploaded to us might possibly include any designer furniture, please email the Getty Images ID numbers to [email redacted] as soon as possible! The sooner we can identify and remove potentially infringing images the better we can reduce potential legal problems.

We are including links to information and FAQs that give more information on this issue and we strongly request that you read them and study the visual guides included.

You can also read the original Le Corbusier complaint here:

In English

Original in French (clearer photos)

Please note: because we are still engaged in litigation, we are very limited in what comments we can make or questions we can answer. If you do have questions please email [email redacted] especially for any specific images you believe may be a problem.

This is only for images you have on the site. We cannot answer questions about images you have posted on Flickr or elsewhere.

Thank you for your help and attention to this very important matter.”

from USA Today, 2012-Jan-20, by Byron Acohido, with contributions by Yamiche Alcindor, Roger Yu and Matthew Barakat in McLean, Va.; Kevin Johnson in Washington; Associated Press:

Government takedown of Megaupload leads to new fears

Seattle -- The government takedown of Megaupload, a popular file-sharing site, has stoked simmering fears that hard-line enforcement of copyright infringements could profoundly disrupt Internet commerce.

File sharing has become a major way corporations collaborate with employees and partners and interact with customers. It fuels the sharing of rich content across Internet-connected devices in the home and office and distributed to mobile devices and has emerged as a major component of cloud computing, the delivery of content and services across the Web.

"If legitimate content is housed on the same service that might have infringing content, it gets sucked into this vortex and it's gone," says Dennis Fisher, security blogger at "I don't know how much the government or these companies (advocating strict anti-piracy enforcement) have thought this through. I would guess not a lot."

Federal authorities shut down, one of the world's most popular file-sharing sites, Thursday and accused it of costing copyright holders more than $500 million in lost revenue from pirated films, music and other content.

Four executives arrested in New Zealand appeared Friday in an Auckland courtroom to begin extradition proceedings that could take more than a year. Three others remain at large.

According to New Zealand's Fairfax Media, a defense lawyer raised objections to a media request to photograph the proceedings, but his client, Megaupload chief Kim Dotcom, spoke out, saying he would not object "because we have nothing to hide."

The judge granted the media access, and ruled that Dotcom and the three other suspects would remain in custody until Monday, the next scheduled hearing in the case.

The five-count indictment, which alleges copyright infringement as well as conspiracy to commit money laundering and racketeering, described a site designed specifically to reward users who uploaded pirated content for sharing, and turned a blind eye to requests from copyright holders to remove copyright-protected files.

It was unsealed a day after technology companies staged an online blackout to protest two related bills in Congress that would crack down on sites that use copyrighted materials and sell counterfeit goods. Congressional leaders agreed Friday to indefinitely delay action on those bills — Stop Online Priacy Act in the House and Protect IP Act in the Senate.

Critics contend SOPA and PIPA don't so much protect the rights of filmmakers, musicians, writers and artists as they do preserve an antiquated film and music distribution system.

"No law passed in the U.S. is going to have any real effect on whether people steal movies, music and books. That ship has sailed," Fisher says. "The network of underground sites that traffic in pirated movies and music won't disappear. It will simply adapt."

Within 24 hours after U.S. authorities shut down Megaupload servers in Virginia, ABC News reported that the website was accessible again by typing a numeric address in a Web browser. But that address led to a webpage with a message saying work was underway to restore Megaupload, and asking people to spread the word on Facebook and Twitter.

Megaupload may have had a contingency plan with a backup domain and server at the ready to restore services should its main servers go down, something that many Internet companies do, Fisher says.

Al Hilwa, an analyst at research firm IDC, says defining who is responsible for strictly obeying copyright laws is at the heart of the piracy issue. "Shifting that responsibility to the technology providers, networks, hosters and intermediate service providers who make up the file-transfer chain would mean burdening them with escalating costs. That would make them uncompetitive and hurt their growth." he says.

That law enforcement officers were able to coordinate internationally to take action demonstrates that current laws targeting copyright violators work, says Art Brodsky, a spokesman for Public Knowledge, a Washington, D.C.-based communications and technology advocacy group. "They roped in New Zealand police and the FBI flew down there," he said. "So why do you need more laws?"

On Friday afternoon, Twitter and Facebook users continued buzzing about the shutdown of Megaupload. Some posted messages such as "R.I.P. Megaupload," "Missing Megaupload already," and "Let's all have 1 minute of silence for Megaupload."

Meanwhile, federal authorities are investigating disruptions to the Justice Department website and threats to the site maintained by the FBI believed to be prompted by the Megaupload arrests.

The Justice Department website was back online Friday after being hit Thursday evening. An alliance of hackers known as "Anonymous" claimed responsibility.

In a written statement, the Justice Department said its Web server had experienced a "significant increase in activity, resulting in a degradation in service" and that the activity was "being treated as a malicious act."

The enforcement action against Megaupload and actions by hacktivists was not unprecedented. Something similar happened in May 2006 when authorities shut down movie-sharing site Piracy Bay.

Millions of people use websites such as Megaupload and Bit Torrent to transfer TV shows, movies and music. Other file-sharing sites like You Send It and Dropbox focus on file-sharing for workplace collaboration. And newer file-sharing sites like Spotify focus on file-sharing within social media and mobile devices.

If anti-piracy enforcement actions accelerate, hacktivists can be expected to uniformly retaliate, says Josh Shaul, chief technology officer at Application Security.

"We may be looking at a cycle of more enforcement action, more sites being taken down and more retaliation by hacktivists," Shaul says. "People will bring up new file-sharing sites in countries where they can't be taken down, and the cycle will continue."

The hacktivists are getting better at retaliating quickly. Recruits to help execute distributed denial of service (DDos) attacks are trained and equipped to instantly add the processing power of their individual PCs to the cause.

The constant stream of nuisance requests that cut off public access to the Justice Department and motion picture industry websites came from about 5,635 individuals using a networking tool called a "low orbit ion cannon," according to messages posted by Anonymous, which claims this to be the largest such attack ever. PCs likely scattered in multiple nations, using tried-and-true technology to make them difficult to trace, were used.

Such attacks formulate spontaneously in Internet Relay Chat rooms. Participants must use their own initiative to set up their PCs ahead of time so they can't be traced, but the necessary software and training are readily available online.

"The ranks of the hacktivists are swelling," Shaul says. "More people are willing to stick their necks out on the line and start hacking."

While Justice says it is illegal for anyone to download pirated content, its investigation focused on the leaders of the company, not end users who may have downloaded a few movies for personal viewing. has 150 million registered users, about 50 million hits daily and endorsements from music superstars. The U.S. indictment said founder Dotcom made $42 million last year alone.

The website allowed users to download some content for free, but made money by charging subscriptions to people who wanted access to faster download speeds or extra content. The website also sold advertising.

The movie industry has fought against the site, saying it is making money off pirated material. Though the company is based in Hong Kong and Dotcom was living in New Zealand, some of the alleged pirated content was hosted on leased servers in Virginia, and that was enough for U.S. prosecutors to act.

New Zealand police seized guns, artwork, more than $8 million in cash and luxury cars valued at nearly $5 million after serving 10 search warrants at several businesses and homes around Auckland.

Dotcom is a resident of Hong Kong and New Zealand and a dual citizen of Finland and Germany who had his name legally changed. The 37-year-old was previously known as Kim Schmitz and Kim Tim Jim Vestor.

Of the three others arrested Thursday, two were German citizens and one was Dutch. Three other defendants — another German, a Slovakian and an Estonian — remained at large.

The Electronic Frontier Foundation, which defends free speech and digital rights online, said in a statement that the arrests set "a terrifying precedent. If the United States can seize a Dutch citizen in New Zealand over a copyright claim, what is next?"

from the Hollywood Reporter, 2012-Jan-20, by Eriq Gardner:

SOPA Defeat Is Not the End Of Hollywood's Ramped-Up Fight Against Piracy (Analysis)

Hollywood still needs Obama. SOPA and the Protect-IP Act could be red herrings. And bigger fights lie ahead. Time to examine the much larger picture...

Today, leaders in both the Senate and House announced the postponement of a procedural vote on controversial anti-piracy bills. As the backlash to SOPA and the Protect-IP Act forces political leaders to reconsider their stances, MPAA head Chris Dodd has signaled that he desperately wants to meet with leaders in the tech sector to look for a compromise.

A truce? Don't speak that word just yet.

Although debate over SOPA has instigated protests and gathered headlines in the past few weeks, the truth is that the legislation would have been only a small part of Hollywood's ongoing attempt to crack down on foreign piracy. Large entertainment studios wanted -- and still want, of course -- codified language that would result in serious efforts by websites to do something about troublesome foreign piracy sites. But even in the absence of such formal legislation, there's a plan to get the intended results anyway.

Here are some key weapons for Hollywood as politicians now do their best to quell the SOPA uproar:

* Federal Enforcement

Many observers have noted the timing of federal authorities dropping the hammer on Megaupload by shutting down the file-sharing site and arresting its leaders on Thursday.

What is not commonly appreciated is the amount of frustration inside Hollywood in the past decade at the Justice Department's refusal to do more about wholesale copyright infringement. Yes, the Hollywood trade organizations and labor guilds issue praising press releases anytime the FBI or ICE makes a major action against copyright pirates. But in our background interviews with Hollywood's fiercest piracy protectors over the years, we've consistently heard how the entertainment industry thinks the executive branch of the government could be doing so much more.

Remember the scene in The Wire when Baltimore cops go into FBI offices in an attempt to get them to make a major drug kingpin crackdown? In that episode, the cops are told that drugs are simply not as big a priority as things like terrorism and political corruption.

That's exactly what happens in real life. Hollywood would love for federal authorities to do everything they can concerning piracy, and to that end, have attempted to connect piracy with terrorism funding. But the Justice Department has limited resources. If the Megaupload raid is a sign of things to come in terms of federal law enforcement reprioritization, it will certainly make Hollywood happy.

* International Enforcement

One thing remarkable about the Megaupload crackdown was the willingness of New Zealand's government to arrest leaders of the company, who were residents of that nation. This was not a simple matter of slapping handcuffs on a few guys. Reportedly, Megaupload founder Kim Dotcom retreated behind a series of electronic locks and barricaded himself in a safe room, gun in hand. In other words, New Zealand decided to puts its own law enforcement in harm's way in the fight against piracy.

The move followed another action in England where 23-year-old British student, Richard O'Dwyer, accused of running a website linking to free films and TV shows, was ordered extradited to the United States. To make this sort of stuff happen requires diplomatic effort. It's not entirely clear that mere linking is illegal so we imagine that British officials had to be convinced that extradition was appropriate.

All the hullabaloo about whether Hollywood will continue to donate money to the campaign of Barack Obama ignores one big reality: They still need him. The Justice Department has discretion on whether to pursue the Megauploads of the world. And the State Department or the U.S. Trade Rep still gets to decide how hard to lean on other countries for cooperation.

* Extraordinary Injunctive Relief

As we discussed last month, even if SOPA doesn't pass, courts could eventually put the effects of the bill into force anyway. Hollywood would surely like this, but in the meantime, judges are issuing all sorts of extraordinary injunctive relief for plaintiffs in intellectual property disputes.

One judge in a case involving a website that marketed counterfeit Chanel merchandise ordered GoDaddy to change registration info and told Google, Twitter, Facebook and Bing to "de-index and/or remove [the domain name] from any search results page." Another judge ordered two advertising networks from assisting a website that was pointing its users to copyright infringing textbooks. (The judge reversed course after hearing an objection.) And yet more judges have ordered search engines, web hosts, registrars and registries to cease facilitating access to websites allegedly participating in trademark infringement.

SOPA protesters roundly cheered when DNS-blocking was taken out of the anti-piracy bills before Congress. But just because Congress won't explicitly approve such measures doesn't mean that they won't happen. In piracy cases going forward, Holllywood can ask sympathetic judges to grant such relief anyway.

* The Boundaries Of Copyright Liability

The debate over SOPA has been marked by heated rhetoric, and perhaps the most overreaching reaction to the controversy is suggestions that some big American-based websites like Wikipedia or Reddit could shutter as a result of a passage. We'll let others argue whether SOPA really poses an existential threat to such operations, but we will propose that the sanctity of free speech isn't the primary reason why some leaders in the tech lobby are fighting so hard.

Rather, the legislation represents yet more burden for them.

The passage of previous anti-piracy laws has compelled these tech companies to have takedown provisions in place, and in many instances, to invest in things like filtering and digital fingerprinting technologies. Now, for better or worse, these companies are dealing with the ramifications of receiving subpoenas and responding to ex parte injunctive relief orders. This is not only a headache and an added expense. It also disrupts relationships with its legitimate customers. Does Facebook, for example, want to explain why it can't protect the secrets of all its users?

Hollywood has stressed that the legislation is intended to fight foreign pirates, but what's got everyone stressing out is the obligations on companies inside American borders. Hollywood has defended the legislation on the idea that nothing will happen without judicial approval, but yes, what then...?

Just because the SOPA fight has been tabled for now doesn't mean that the fight won't continue in the courts over the boundaries of such obligations. Coming soon is the decision in the 2nd Circuit Court of Appeal in Viacom's lawsuit against YouTube. Viacom maintains that YouTube willfully blinded itself to infringements and had an affirmative duty to clean up its servers of copyright infringing material. YouTube says that it is the copyright owner's responsibility to first provide notice of specifically infringing material. That's one case that will shape copyright liability and the burdens of tech companies going forward, but there are others (like MPAA's lawsuit against Hotfile) which will also be important.

Each of these developments will have just as much -- and perhaps more -- impact on innovation, speech, and property protection as the SOPA sweepstakes. Keep perspective.

from, 2012-Jan-18, by Mike Masnick:

Supreme Court Chooses SOPA/PIPA Protest Day To Give A Giant Middle Finger To The Public Domain
from the ridiculous dept

We've been talking about the Golan case, and its possible impact on culture, for years. If you're unfamiliar with it, it's the third in a line of cases, starting with the Eldred case, to challenge aspects of copyright law as violating the First Amendment. The key point in the case was questioning whether or not the US could take works out of the public domain and put them under copyright. The US had argued it needed to do this under a trade agreement to make other countries respect our copyrights. Of course, for those who were making use of those public domain works, it sure seemed like a way to unfairly lock up works that belonged to the public. It was difficult to see how retroactively taking works out of the public domain could fit into the traditional contours of copyright law... but today, on the day of the big SOPA/PIPA protests... that's exactly what happened (pdf).

The ruling is ridiculously depressing. The Justices basically just keep repeating the mantra they first set forth in Eldred, that as long as Congress says it's okay -- and that the "fair use" and the "idea/expression" dichotomy remain -- all is just dandy. They also claim that since the very first copyright law took works from the public domain and gave them copyright protection, clearly there's nothing wrong with removing works from the public domain. This decision reinforces why the Eldred decision was a complete disaster, and just keeps getting worse. The Eldred ruling basically ignored the fact that copyright had changed entirely in a way that went against the First Amendment... by retroactively granting copyright extension. Now that ruling is being used to take works out of the public domain as well.

First, as with Eldred (and the second case in the trilogy, the Kahle case), I believe that the Court is greatly mistaken in its analysis of copyright law. First it claims that there's little fight between copyright and the First Amendment because the two things were put in place at about the same time. That's a specious argument for a variety of reasons. First, the original copyright law was significantly limited in a way that it was unlikely to really come into conflict with the First Amendment. It was limited to just a few specific areas, and for a very short period of time. It's only now that (1) copyright law has been totally flipped to make just about everything you create covered by copyright, (2) the law has been massively expanded in time and (3) changes in technology make us all create tons of "copyrighted" material all the time -- things have changed an entirely. It's hard to see how the Court can reasonably argue that the traditional contours of copyright law have not changed... but that's exactly what it does. Stunningly, the majority decision here, written by Justice Ginsburg, seems to suggest that there's no First Amendment issue here, because if people want to make use of the works that were previously, but are no longer, in the public domain, they can just buy those rights:

But Congress has not put petitioners in this bind. The question here, as in Eldred, is whether would-be users must pay for their desired use of the author’s expression, or else limit their exploitation to “fair use” of that work. Prokofiev’s Peter and the Wolf could once be performed free of charge; after §514 the right to perform it must be obtained in the marketplace.

It's a really frustrating decision, because it appears to lack any recognition of just how much copyright law has changed and expanded. It seems to lack -- as it did in Eldred -- any sense of how overreaching copyright law is, in fact, stifling free expression everyday. It's a tone deaf response to what's actually happening.

The dissent, by Justice Breyer (with support from Alito), seems to actually understand this. The rest of the Justices (excluding Kagan, who recused herself due to her role in the case prior to joining the court) just don't seem to want to bother to understand. The dissent, however, kicks off with a quote from Thomas Macaulay's famous speech on the problems of copyright, noting that copyright is, by definition, "a tax on readers for the purpose of giving a bounty to writers." They then note that the decision to remove works from the public domain fails to uphold the basic premise of copyright law:

The statute before us, however, does not encourage anyone to produce a single new work. By definition, it bestows monetary rewards only on owners of old works -- works that have already been created and already are in the American public domain. At the same time, the statute inhibits the dissemination of those works, foreign works published abroad after 1923, of which there are many millions, including films, works of art, innumerable photographs, and, of course, books--books that (in the absence of the statute) would assume their rightful places in computer-accessible databases, spreading knowledge throughout the world.

Breyer -- who has always had a much stronger grasp on copyright than his colleagues -- notes that the whole point of copyright law is to encourage new works, and that the Founders themselves recognized that "monopoly is a two-edged sword, that must be wielded carefully. Breyer quotes the early words of James Madison to Thomas Jefferson, that copyright should be granted, but only "in certain cases.... with caution and guarded with strictness agst abuse" and solely such that it acts as "compensation for a benefit actually gained to the community... which the owner might otherwise withhold from public use."

How taking works out of the public domain accomplishes that goal mystifies Breyer (and me and many others).

Separately, he notes that Congress and the Court have both made it clear in the past that copyright is for the benefit of the public, and not solely to grant rights to authors. The granting of monopolies to authors is the method by which the public might benefit, but not the purpose of copyright law. Retroactively seizing works out of the public domain does not benefit the public. And thus, is unconstitutional. Except... to the six justices who chose not to understand copyright law.

That the Supreme Court released this on the same day of widespread protests against overreaching copyright law is a bit of unfortunate irony. The truth is that Congress is the one who could fix this by actually fixing copyright law and making it clear that the Court's interpretation was wrong. But, instead, because Hollywood pays the bills, they only make copyright law worse. While it's easy to blame this ruling on the Supreme Court, it really implicates Congress. And, thus, it's actually depressingly fitting that this ruling came out today.

from the New York Times, 2012-Jan-18, by Jonathan Weisman:

Web Protests Piracy Bills, and Senators Change Course

WASHINGTON — Online protests on Wednesday quickly cut into Congressional support for online antipiracy measures as lawmakers abandoned and rethought their backing for legislation that pitted new media interests against some of the most powerful old-line commercial interests in Washington.

A freshman senator, Marco Rubio of Florida, a rising Republican star, was first Wednesday morning with his announcement that he would no longer back antipiracy legislation he had co-sponsored. Senator John Cornyn, the Texas Republican who heads the campaign operation for his party, quickly followed suit and urged Congress to take more time to study the measure, which had been set for a test vote next week.

By Wednesday afternoon, Senator Orrin G. Hatch, Republican of Utah and one of the Senate bill’s original co-sponsors, called it “simply not ready for prime time” and withdrew his support.

Their decisions came after some Web pages shut down Wednesday to protest two separate bills, the Stop Online Piracy Act and the Protect Intellectual Property Act. The Stop Online Piracy Act was written by Representative Lamar Smith, the Texas Republican who is chairman of the House Judiciary Committee. Senator Patrick Leahy, the Vermont Democrat who is chairman of the Senate Judiciary Committee, drafted the Protect Intellectual Property Act.

Protests organized in the real world drew far less attention. A rally convened in Midtown Manhattan outside the offices of Senators Charles E. Schumer and Kirsten E. Gillibrand, who co-sponsored some of the proposed legislation, drew a few hundred protesters.

Members of Congress, many of whom are grappling with the issues posed by the explosion in new media and social Web sites, appeared caught off guard by the enmity toward what had been a relatively obscure piece of legislation to many of them. The Senate’s high-tech expertise was mocked in 2006 after the chairman of the Commerce Committee, Senator Ted Stevens of Alaska, called the Internet “not a big truck” but a “series of tubes” — an observation enshrined in the Net Hall of Shame.

In reaction to the pending legislation, the online encyclopedia Wikipedia went dark. Google’s home page had a black banner across it that led to information blasting the bills.

Such new-media lobbying was having an impact.

“As a senator from Florida, a state with a large presence of artists, creators and businesses connected to the creation of intellectual property, I have a strong interest in stopping online piracy that costs Florida jobs,” Mr. Rubio wrote on his Facebook page. “However, we must do this while simultaneously promoting an open, dynamic Internet environment that is ripe for innovation and promotes new technologies.”

Mr. Rubio has outsize influence for a junior senator entering his second year in Congress. He is considered a top contender for the vice presidential ticket of his party’s White House nominee this year, and is being groomed by the Republican leadership to be the face of his party with Hispanics and beyond.

Mr. Cornyn posted on his Facebook page that it was “better to get this done right rather than fast and wrong. Stealing content is theft, plain and simple, but concerns about unintended damage to the Internet and innovation in the tech sector require a more thoughtful balance, which will take more time.”

The moves on Capitol Hill came after the White House over the weekend also backed off the legislative effort.

“While we believe that online piracy by foreign Web sites is a serious problem that requires a serious legislative response, we will not support legislation that reduces freedom of expression, increases cybersecurity risk or undermines the dynamic, innovative global Internet,” White House officials said.

With the growing reservations, a bill that passed the Senate Judiciary Committee unanimously and without controversy may be in serious trouble. Senator Harry Reid, the majority leader and Democrat of Nevada, has scheduled a procedural vote on the Leahy version for early next week, but unless negotiators can alter it to satisfy the outraged online world, no one expects it to get 60 votes.

“I encourage Senator Reid to abandon his plan to rush the bill to the floor,” Mr. Rubio wrote on Facebook. “Instead, we should take more time to address the concerns raised by all sides, and come up with new legislation that addresses Internet piracy while protecting free and open access to the Internet.”

Indeed, a senior Senate Republican leadership aide said the Senate version of the bill was dead in its current form, and bipartisan negotiations had begun to revise it considerably. Senators from both parties want to address the Internet piracy issue, but they acknowledged that concerns raised by Google and its online partners would have to be addressed.

At issue is how the bills deal with “DNS filtering.” Web site addresses are converted by the Internet’s domain name server system from typed words into computer language to bring a user to a specific Web site.

The Congressional bills would allow the Justice Department to seek injunctions to prevent domestic Internet service providers from translating the names of suspected pirate sites; the legislation would also require search engines such as Google not to display suspected sites on search results. In effect, the bills would make search engines the enforcers of a law they oppose.

Congressional negotiators are looking at radical revisions to the DNS provisions, but lawmakers may decide the resulting legislation is too neutered to pursue, aides from both parties say.

Support for the legislation on Capitol Hill eroded throughout the day. Another Republican co-sponsor of the Senate bill, Roy Blunt of Missouri, withdrew his support in the early afternoon. Other senators who issued concerns about the legislation as written included Republican Senators Mark Kirk of Illinois and Jim DeMint of South Carolina. Senator Scott Brown, Republican of Massachusetts, had said on Tuesday that he would vote against the measure.

Mr. DeMint called the proposed legislation “misguided bills that will cause more harm than good.”

“In seeking to protect intellectual property rights, we must ensure that we do not undermine free speech, threaten economic growth, or impose burdensome regulations,” he said in a statement.

The media industry has been pushing for a legislative response to online piracy for some time. Groups like the Motion Picture Association of America and the Recording Industry Association of America, as well as giants like News Corporation, are practiced at old-time lobbying — hiring big-name Washington personalities like the former senator Christopher J. Dodd and contributing to campaign funds.

Mr. Dodd, who is now chairman and chief executive of the motion picture association, forcefully denounced the shutdowns in a statement issued on Tuesday.

“Only days after the White House and chief sponsors of the legislation responded to the major concern expressed by opponents and then called for all parties to work cooperatively together, some technology business interests are resorting to stunts that punish their users or turn them into their corporate pawns, rather than coming to the table to find solutions to a problem that all now seem to agree is very real and damaging,” he said.

In the Tea Party era of grass-roots muscle, though, the old school was taken to school, Congressional aides and media lobbyists agree.

“The problem for the content industry is they just don’t know how to mobilize people,” said John P. Feehery, a former Republican leadership aide and executive at the motion picture lobby. “They have a small group of content makers, a few unions, whereas the Internet world, the social media world especially, has a tremendous reach. They can reach people in ways we never dreamed of before.

“This has been a real learning experience for the content world,” Mr. Feehery added.

from the Wall Street Journal, 2012-Jan-18, by Amy Schatz, Siobhan Hughes, Geoffrey A. Fowler and Christopher S. Stewart, with Tom Loftus and Corey Boles contributing:

SOPA Bill Faces New Hurdles

Antipiracy bills in Congress faced new hurdles Wednesday as House Speaker John Boehner said the legislation wasn't ready for a vote and more than a half-dozen senators expressed reservations in some form.

Sen. Orrin Hatch of Utah, the top Republican on the Judiciary Committee, was among the most significant shifts. He said in a statement Wednesday afternoon that the bill is "simply not ready for prime time."

Other senators expressing reservations included Sen. Marco Rubio (R., Fla.), formerly a co-sponsor of the Senate version of the legislation, Sen. Scott Brown (R., Mass.) and Sen. Roy Blunt (R., Mo.). Mr. Rubio said he was withdrawing his support and called for "new legislation that addresses Internet piracy while protecting free and open access to the Internet.

Similar versions of online piracy legislation in the House and the Senate—called the Stop Online Piracy Act, or SOPA, and Protect Intellectual Property Act, or PIPA—are aimed at stopping domestic access and funding to foreign-based websites that offer pirated movies, music and other content. The legislation would give the U.S. attorney general new powers to cut off funding, advertising and access to the sites.

Still, the lead backer of controversial House piracy legislation said he "expects to move forward" with the legislation next month.

House Judiciary Committee Chairman Lamar Smith (R., Texas) said in an interview Wednesday that he wasn't discouraged by the criticisms leveled at him by opponents of the legislation. He said many of their concerns have already been addressed by changes to the bill.

"It's easy to engage in fear-mongering and it's easy to raise straw men and red herrings but if they read the bill they will be reassured," Mr. Smith said.

Protests against the legislation mounted on Wednesday. Online encyclopedia Wikipedia and many other websites went dark in protest against the legislation, which they say will lead to a less open Internet and could lead to new legal liability for U.S. websites that inadvertently host pirated movies, music or other content.

Tiffiniy Cheng, the founder of the activist group Fight for the Future, said that at least 60,000 websites had signed up on to say that they would join Wednesday's online "blackout" in some way.

Internet users going to Wikipedia's front page on Wednesday were greeted with this protest banner from the online encyclopedia.

"This is a fundamental struggle that people are waging against corporate copyright holders who want to control the Internet," she said. "Internet users around the world and especially in the U.S. are up in arms about it."

Some famous names in tech joined in the fray on Wednesday, too. Facebook Inc. CEO Mark Zuckerberg posted a status update on his social network about his opposition to the laws. "We can't let poorly thought out laws get in the way of the internet's development. Facebook opposes SOPA and PIPA, and we will continue to oppose any laws that will hurt the Internet," he wrote.

"The world today needs political leaders who are pro-internet. We have been working with many of these folks for months on better alternatives to these current proposals," he added.

Google Inc. executive chairman Eric Schmidt echoed the plea that Google plastered across the front of its search engine by Tweeting, "Take 1 minute to sign Google's petition urging Congress to vote NO on PIPA and SOPA. Defend the web!"

Silicon Valley's own Democrat member of Congress, Rep. Anna G. Eshoo from Palo Alto, joined in the online protest by turning her House website black. "Members of Congress need to hear about the consequences of SOPA, and when they do, they'll learn of the serious consequences to the Internet the bill poses. It's time to pull up the emergency brake on this legislation," she said in a statement.

Rep. Earl Blumenauer (D., Ore.) said he would black out his website for one hour on Wednesday afternoon to show solidarity with online sites. Rep. Peter DeFazio (D., Ore.) went to the House floor to say, "Imagine how some of these user content sites are going to have to try and police things. They can always err on the side of censorship, because there's broad provisions in this bill to allow you in good faith to censor something."

A New York City technology group called NY Tech Meetup, which hosts monthly meetings for start-ups, scheduled a protest for 12:30 p.m. in front of the midtown offices of U.S. Senators Charles Schumer and Kirsten Gillibrand.

As of about noon, 1,500 people had indicated on NY Tech's website that they would be attending the protest. Both Sen. Schumer (D.-N.Y.) and Sen. Gillibrand (D.-N.Y.) are sponsors of PIPA.

"Obviously there's no censorship in the bill and no one can indicate any censorship whatsoever. It's not censorship to want to stop illegal activity," Mr. Smith said Wednesday. "That's all we do. We're trying to impede illegal activity by foreign websites."

The Stop Online Piracy Act is awaiting action in the House Judiciary Committee, which tried to finish work on the bill in December but stopped after opponents proposed dozens of amendments. The House returned this week from its holiday recess. Mr. Smith said Tuesday that he plans to try again to pass the legislation out of committee next month.

Even if he is successful, it's not clear if the legislation would move much further unless changes are made to appease opponents. On Wednesday, House Speaker John Boehner (R., Ohio) told reporters that the piracy legislation wasn't set to come up for a vote anytime soon because "it's pretty clear to many of us that there's a lack of consensus at this point."

"I would hope the committee would continue to work to try and build consensus before this bill comes to the floor," Mr. Boehner said.

Similar legislation has been stalled in the Senate since May but is expected to be on the floor Tuesday for a procedural vote.

Meanwhile, websites including Wikipedia and Craigslist on Wednesday continued to shut down their English-language services to protest the bill. The websites fear that they will wind up as targets for unknowingly linking to pirated content, and wind up facing court orders to shut down links to pirated content or private legal action for hosting allegedly illegal content.

Large media companies say the legislation is tailored to target foreign-based websites, which are currently outside the jurisdiction of U.S. law enforcement officials. But media executives' efforts to rally support for the bill haven't been as visible as their opponents.

Asked about a network going dark as a public stunt in response to Internet blackout day, a media executive said Wednesday, "It's not practical. The only time that we've done anything coordinated like that across networks is in a time of national peril or national disaster. I don't think this qualifies."

The media executive also said that it had not been easy recruiting Hollywood talent for the cause. "Despite common understanding that we control the talent, they do whatever they want."

The executive added that there was some "disappointment" when Ashton Kutcher came out against SOPA. The star of CBS' "Two and a Half Men" came out against the legislation in late December, declaring in a lengthy blog post that "SOPA Is The problem And Not The Solution."

from the Hill, 2012-Jan-14, by Brendan Sasso:

SOPA shelved until 'consensus' is found

House Oversight Chairman Darrell Issa (R-Calif.) said early Saturday morning that Majority Leader Eric Cantor (R-Va.) promised him the House will not vote on the controversial Stop Online Piracy Act (SOPA) unless there is consensus on the bill.

"While I remain concerned about Senate action on the Protect IP Act, I am confident that flawed legislation will not be taken up by this House," Issa said in a statement. "Majority Leader Cantor has assured me that we will continue to work to address outstanding concerns and work to build consensus prior to any anti-piracy legislation coming before the House for a vote."

The announcement comes just hours after Judiciary Chairman Lamar Smith (R-Texas), SOPA's sponsor, made a major concession to the bill's critics by agreeing to drop a controversial provision that would have required Internet service providers to block infringing websites.

SOPA is designed to go after foreign websites that offer illegal copies of music, movies and TV shows with impunity. Even without the provision allowing sites to be blocked, the bill would empower the Justice Department and copyright holders to demand that search engines delete links to sites “dedicated” to copyright infringement. Ad networks and payment processors would be prohibited from doing business with the sites.

The bill has sparked a backlash from Internet freedom advocates and Web companies, including Google, Yahoo and Facebook, who say it would stifle innovation and suppress free speech.

The provision that would have required Internet providers to block infringing websites was one of the most controversial aspects of the bill. Google Chairman Eric Schmidt compared the provision to how China censors political speech online.

Issa, who is a former chairman of the Consumer Electronics Association, is close with the tech community and has been an outspoken critic of SOPA. He had scheduled a hearing for next Wednesday to examine the potential consequences of the bill's site-blocking provision, but he announced in his statement Saturday that he would cancel the hearing in light of Smith's decision to drop the provision.

Issa said that even without the site-blocking provision, the bill is "fundamentally flawed."

"Right now, the focus of protecting the Internet needs to be on the Senate where Majority Leader Reid has announced his intention to try to move similar legislation in less than two weeks," he said.

The Senate bill's sponsor, Sen. Patrick Leahy's (D-Vt.), said on Thursday that he is open to changes to the site-blocking provision.

from Gun Owners of America, 2012-Jan-18:

Senate Moves on Bill to "Muzzle the Web"
Legislation could potentially shut down gun websites

By now, you are no doubt aware that several websites have either gone totally or partially "dark" today in protest of the pernicious internet legislation that will be coming to a vote next week. Wikipedia and Google are just two of the websites which are protesting in this manner.

And while you may have not paid much attention to this story, you need to know that the "muzzle the web" legislation these sites are protesting could also affect your ability to get gun-related information on websites like GOA's.

The reason is that S. 968 could, in its final form, allow the Brady Campaign to partially shut down our GOA website and our organization (plus many other pro-gun websites) with a series of factually accurate, but legally frivolous complaints.

The Senate bill and its House counterpart have accurately been called "a direct attack on the underpinnings of the web."

True, many of the most serious "gun problems" are in the House counterpart. But the reality is this: We are within a few votes of killing the whole concept next week in the Senate with only 41 Senate votes.

But if we allow the so-called "anti-piracy" bill to go forward on the HOPE that the worst provisions will not make it into the final version -- and we fail to eliminate them -- the bill may be unstoppable.

Here are the "gun problems," as we see them: Section 103(b)(1) of H.R. 3261 allows any "holder of an intellectual property right" to demand that PayPal and other payment and advertising services stop providing services to organizations like ours, thereby shutting off our income.

How would they do this? Perhaps by arguing that we were stealing their intellectual property by quoting their lying misrepresentations in our alerts.

Is this legally frivolous? Sure it is. But the Brady Campaign is the King of Frivolous Complaints:

* Remember when the Brady Campaign asked the Federal Election Commission in 2007 to shut down GOA's ability to post its candidate ratings on the Internet? They claimed that we were in violation of the McCain-Feingold Campaign Finance Reform Act. Thankfully, the FEC ruled in GOA's favor, thus enabling us to continue posting candidate ratings without restraint.

* Remember when the Brady Campaign got 36 state and local jurisdictions to bring frivolous lawsuits against gun manufacturers -- not in the expectation of winning, but to drain the resources of the manufacturers in order to halt the manufacture of guns in America?

This "muzzle the web" legislation will throw the doors open to even more frivolous complaints. Could we defend ourselves? Yes, we could. We could file a counter notification under section 103(b)(5) and spend years defending ourselves. But the one thing we did learn during the 36 frivolous lawsuits is that the anti-gun forces in America have very deep pockets.

And the other problem is that, under section 104, our Internet providers would be insulated from liability for shutting us down. But they would receive no comparable insulation from legal liability if they refused to cut us off.

The Senate version, S. 968, has been amended, at the behest of Iowa Senator Chuck Grassley and others, to provide many protections which were not in its initial form.

Under section 3, the Attorney General would go to court and would have to claim that, because of a hyperlink to an offending site, we were "primarily" engaged in the theft of intellectual property.

We would feel a lot better about these protections if the Attorney General were not Eric Holder, a ruthless ideologue who has demonstrated that he will go to any lengths to destroy the Second Amendment.

So the bottom line is this: H.R. 3261 and S. 968 would potentially empower the Brady Campaign and Eric Holder to go after our Internet site. To do so, they would have to make the same frivolous arguments and engage in the same lawless activity that they have done so often in the past.

But -- given that we're within a few votes of snuffing out that risk by killing the bill in the Senate -- we believe it's the better course of action to do so.

from the Stanford Law Review, 2011-Dec-19, by Mark Lemley, David S. Levine, & David G. Post:

Don't Break the Internet

Two bills now pending in Congress—the PROTECT IP Act of 2011 (Protect IP) in the Senate and the Stop Online Piracy Act (SOPA) in the House—represent the latest legislative attempts to address a serious global problem: large-scale online copyright and trademark infringement. Although the bills differ in certain respects, they share an underlying approach and an enforcement philosophy that pose grave constitutional problems and that could have potentially disastrous consequences for the stability and security of the Internet's addressing system, for the principle of interconnectivity that has helped drive the Internet's extraordinary growth, and for free expression.

To begin with, the bills represent an unprecedented, legally sanctioned assault on the Internet's critical technical infrastructure. Based upon nothing more than an application by a federal prosecutor alleging that a foreign website is “dedicated to infringing activities,” Protect IP authorizes courts to order all U.S. Internet service providers, domain name registries, domain name registrars, and operators of domain name servers—a category that includes hundreds of thousands of small and medium-sized businesses, colleges, universities, nonprofit organizations, and the like—to take steps to prevent the offending site's domain name from translating to the correct Internet protocol address. These orders can be issued even when the domains in question are located outside of the United States and registered in top-level domains (e.g., .fr, .de, or .jp) whose operators are themselves located outside the United States; indeed, some of the bills' remedial provisions are directed solely at such domains.

Directing the remedial power of the courts towards the Internet's core technical infrastructure in this sledgehammer fashion has impact far beyond intellectual property rights enforcement—it threatens the fundamental principle of interconnectivity that is at the very heart of the Internet. The Internet's Domain Name System (DNS) is a foundational block upon which the Internet has been built and upon which its continued functioning critically depends; it is among a handful of protocols upon which almost every other protocol, and countless Internet applications, rely to operate smoothly. Court-ordered removal or replacement of entries from the series of interlocking databases that reside in domain name servers and domain name registries around the globe undermines the principle of domain name universality—the principle that all domain name servers, wherever they may be located across the network, will return the same answer when queried with respect to the Internet address of any specific domain name. Much Internet communication, and many of the thousands of protocols and applications that together provide the platform for that communication, are premised on this principle.

Mandated court-ordered DNS filtering will also have potentially catastrophic consequences for DNS stability and security. It will subvert efforts currently underway—and strongly supported by the U.S. government—to build more robust security protections into the DNS protocols. In the words of a number of leading technology experts, several of whom have been intimately involved in the creation and continued evolution of the DNS for decades:

Mandated DNS filtering would be minimally effective and would present technical challenges that could frustrate important security initiatives. Additionally, it would promote development of techniques and software that circumvent use of the DNS. These actions would threaten the DNS's ability to provide universal naming, a primary source of the Internet's value as a single, unified, global communications network. . . . DNS filtering will be evaded through trivial and often automated changes through easily accessible and installed software plugins. Given this strong potential for evasion, the long-term benefits of using mandated DNS filtering to combat infringement seem modest at best.[1]

Indeed, this approach could actually have an effect directly contrary to what its proponents intend: if large swaths of websites are cut out of the Internet addressing system, those sites—and the users who want to reach them—may well gravitate towards alternative, unregulated domain name addressing systems, making it even harder for governments to exercise their legitimate regulatory role in Internet activities.

The bills take aim not only at the Internet's core technical infrastructure, but at its economic and commercial infrastructure as well. Credit card companies, banks, and other financial institutions could be ordered to “prevent, prohibit, or suspend” all dealings with the site associated with the domain name. Online advertisers could be ordered to cease providing advertising services to the site associated with the domain name. Search engine providers could be ordered to “remove or disable access to the Internet site associated with the domain name,” and to disable all hypertext links to the site.

These drastic consequences would be imposed against persons and organizations outside of the jurisdiction of the U.S. courts by virtue of the fiction that these prosecutorial actions are proceedings in rem, in which the “defendant” is not the operator of the site but the domain name itself. Both bills suggest that these remedies can be meted out by courts after nothing more than ex parte proceedings—proceedings at which only one side (the prosecutor or even a private plaintiff) need present evidence and the operator of the allegedly infringing site need not be present nor even made aware that the action was pending against his or her “property.”

This not only violates basic principles of due process by depriving persons of property without a fair hearing and a reasonable opportunity to be heard, it also constitutes an unconstitutional abridgement of the freedom of speech protected by the First Amendment. The Supreme Court has made it abundantly clear that governmental action suppressing speech, if taken prior to an adversary proceeding and subsequent judicial determination that the speech in question is unlawful,[2] is a presumptively unconstitutional “prior restraint.” In other words, it is the “most serious and the least tolerable infringement on First Amendment rights,”[3] permissible only in the narrowest range of circumstances. The Constitution requires a court “to make a final determination” that the material in question is unlawful “after an adversary hearing before the material is completely removed from circulation.[4]

The procedures outlined in both bills fail this fundamental constitutional test. Websites can be “completely removed from circulation”—rendered unreachable by, and invisible to, Internet users in the United States and abroad—immediately upon application by the government, without any reasonable opportunity for the owner or operator of the website in question to be heard or to present evidence on his or her own behalf. This falls far short of what the Constitution requires before speech can be eliminated from public circulation.

As serious as these infirmities are, SOPA, the House's bill, builds upon them, enlarges them, and makes them worse. Under SOPA, IP rights holders can proceed vigilante-style against allegedly offending sites, without any court hearing or any judicial intervention or oversight whatsoever. For example, SOPA establishes a scheme under which an IP rights holder need only notify credit card companies of the facts supporting its “good faith belief” that an identified Internet site is “primarily designed or operated for the purpose of” infringement. The recipients of that notice will then have five days to cease doing business with the specified site by taking “technically feasible and reasonable” steps to prevent it “from completing payment transactions” with customers. And all of this occurs based upon a notice delivered by the rights holder, which no neutral third party has even looked at, let alone adjudicated on the merits. If they get the assistance of a court, IP owners can also prevent other companies from “making available advertisements” to the site, and the government can prevent search engines from pointing to that site.

These bills, and the enforcement philosophy that underlies them, represent a dramatic retreat from this country's tradition of leadership in supporting the free exchange of information and ideas on the Internet. At a time when many foreign governments have dramatically stepped up their efforts to censor Internet communications, these bills would incorporate into U.S. law a principle more closely associated with those repressive regimes: a right to insist on the removal of content from the global Internet, regardless of where it may have originated or be located, in service of the exigencies of domestic law.

United States law has long allowed Internet intermediaries to focus on empowering communications by and among users, free from the need to monitor, supervise, or play any other gatekeeping or policing role with respect to those communications. Requiring Internet service providers, website operators, search engine providers, credit card companies, banks, Internet advertisers, and others to block access to websites because of their content would constitute a dramatic retreat from that important policy. Laws protecting Internet intermediaries from liability for content on the Internet are responsible for transforming the Internet into the revolutionary communications medium that it is today. They reflect a policy that has not only helped make the United States the world leader in a wide range of Internet-related industries, but that has also enabled the Internet's uniquely decentralized structure to serve as a global platform for innovation, speech, collaboration, civic engagement, and economic growth. These bills would undermine that leadership and dramatically diminish the Internet's capability as a communications medium. As Secretary of State Hillary Clinton noted last year:

[T]he new iconic infrastructure of our age is the internet. Instead of division, it stands for connection. But even as networks spread to nations around the globe, virtual walls are cropping up in place of visible walls. . . . Some countries have erected electronic barriers that prevent their people from accessing portions of the world's networks. They've expunged words, names, and phrases from search engine results. They have violated the privacy of citizens who engage in non-violent political speech. . . . With the spread of these restrictive practices, a new information curtain is descending across much of the world.[5]

It would be not just ironic, but tragic, were the United States to join the ranks of these repressive and restrictive regimes, erecting our own “virtual walls” to prevent people from accessing portions of the world's networks. Passage of these bills will compromise our ability to defend the principle of the single global Internet—the Internet that looks the same to, and allows free and unfettered communication between, users located in Boston, Bucharest, and Buenos Aires, free of locally imposed censorship regimes. As such, it may represent the biggest threat to the Internet in its history.

Copyright and trademark infringement on the Internet is a very real problem, and reasonable proposals to augment the ample array of enforcement powers already at the disposal of IP rights holders and law enforcement officials may serve the public interest. But the power to break the Internet shouldn't be among them.

Mark Lemley is the William H. Neukom Professor at Stanford Law School
David Levine is an Assistant Professor at Elon University School of Law
David Post is a Professor at Beasley School of Law, Temple University


  1. Steve Crocker et al., Security and Other Technical Concerns Raised by the DNS Filtering Requirements in the PROTECT IP Bill, (May 2011),
  2. Freedman v. Maryland, 380 U.S. 51, 58-60 (1965).
  3. Neb. Press Ass'n v. Stuart, 427 U.S. 539, 559 (1976).
  4. Ctr. For Democracy & Tech. v. Pappert, 337 F. Supp. 2d 606, 657 (E.D. Pa. 2004) (emphasis added).
  5. Hillary Clinton, U.S. Sec'y of State, Remarks on Internet Freedom (Jan. 21, 2010),

from Popular Mechanics, 2011-Dec-20, by Adam Savage:

MythBuster Adam Savage: SOPA Could Destroy the Internet as We Know It

Soon the U.S. Congress will reconvene to consider the Protect IP Act and the Stop Online Piracy Act (SOPA). Mythbuster and PM contributing editor Adam Savage says that if these sweeping pieces of legislation pass, the U.S. will join the likes of China and Iran in censoring the Internet, and destroy the openness that made the Web perhaps the most important technological advance of his lifetime.

Right now Congress is considering two bills—the Protect IP Act, and the Stop Online Piracy Act (SOPA)—that would be laughable if they weren't in fact real. Honestly, if a friend wrote these into a piece of fiction about government oversight gone amok, I'd have to tell them that they were too one-dimensional, too obviously anticonstitutional.

Make no mistake: These bills aren't simply unconstitutional, they are anticonstitutional. They would allow for the wholesale elimination of entire websites, domain names, and chunks of the DNS (the underlying structure of the whole Internet), based on nothing more than the "good faith" assertion by a single party that the website is infringing on a copyright of the complainant. The accused doesn't even have to be aware that the complaint has been made.

I'm not kidding.

The Digital Millennium Copyright Act (DMCA), passed in 1998, is a lousy piece of legislation and a very useful lens through which to regard these two new pieces of legislation. Think of all the stories you've read over the past 14 years of people slapping DMCA takedowns of content that they didn't own, just because they didn't like what it had to say. One that comes to mind is Uri Gellar, the popular psychic who performed spoon bending and other tricks on TV in the 1970s. Using a DMCA claim, he had YouTube pull videos of him being humiliated during a 1973 appearance on The Tonight Show with Johnny Carson, when he had no copyright claim to them at all.

This is exactly what will happen with Protect IP and SOPA. We've seen it again and again. Give people a club like this and you can kiss the Internet as you know it goodbye. It's really that bad. And it's a clear violation of our First Amendment right to free speech.

The Internet is probably the most important technological advancement of my lifetime. Its strength lies in its open architecture and its ability to allow a framework where all voices can be heard. Like the printing press before it (which states also tried to regulate, for centuries), it democratizes information, and thus it democratizes power. If we allow Congress to pass these draconian laws, we'll be joining nations like China and Iran in filtering what we allow people to see, do, and say on the Web.

And we're better than that.

Please don't just take my word for it. There's tons of information out there about these two bills out there. Google it. Read the Stanford Law Review's take on it. And read what Cory Doctorow has to say here, here and here.

Educate yourself. Call your congressperson or senator and make your voice heard. You can make a difference.

from Forbes, 2011-Dec-21, by Andy Greenberg:

SOPA Haters Are Already Finding Easy Ways To Circumvent Its Censorship

“The Internet interprets censorship as damage and routes around it,” goes the saying coined by Sun Microsystems coder and EFF founder John Gilmore. Now the Internet's communities of coders and free speech advocates have interpreted the Stop Online Piracy Act (SOPA) as intolerable digital damage before it has even come to a vote, and are already working on tools anyone can use to route around its roadblocks to foreign, copyright-infringing sites.

While Congress has postponed the second half of its hearing of SOPA until next year, a developer named Tamer Rizk has been busy building an add-on for Firefox called DeSopa, which aims to give any Firefox user access to sites that SOPA's copyright protection measures has blocked. “This program is a proof of concept that SOPA will not help prevent piracy,” reads a note including on DeSopa's download page. “If SOPA is implemented, thousands of similar and more innovative programs and services will sprout up to provide access to the websites that people frequent. SOPA is a mistake. It does not even technically help solve the underlying problem, as this software illustrates.”

DeSopa takes advantage of an blatant weakness in how SOPA's controversial filtering mandate would function under the current version of the bill. The new copyright infringement regime would allow editing of the Domain Name System, the registry that converts websites' domains (like or into an Internet Protocol address (like or When you type “” into your browser, your computer communicates with DNS servers that convert that name into an IP address. But type the IP address directly into your browser, and it works just as well.

Since SOPA would lead to editing American DNS servers' IP lists to insert errors for sites deemed illegal, DeSopa simply checks with foreign DNS servers to find the correct IP address and navigates directly to whatever blocked site the user enters. To avoid incorrect IP addresses in those foreign servers, the program even checks domains with three DNS servers and grabs whichever IP address has at least two agreeing answers. “Similar offshore resolution services will eventually maintain their own cache of websites, without blacklisting, in order to meet the demand created by SOPA,” writes Rizk.

For the last two weeks, users on Reddit have been assembling their own lists of IP addresses for key sites that might be blocked under SOPA, what some of them call the “Emergency List.” Users could simply check the list for the IP address of a blocked site they want to visit and navigate directly to its IP. Or, as the redditors have discussed, they could edit the “hosts” file on their own machines, a locally-stored list that overrides DNS and tells Web browsers which domains correspond with which IP addresses.

Editing hosts files is far from a perfect solution: Because sites' IP addresses frequently change, users would often find certain sites inaccessible and need to go searching for a more current IP. But as DeSopa illustrates, SOPA's thin layer of DNS censorship means users are sure to find a way to keep their locally-stored versions of DNS up to date and visit blacklisted sites.

Just because SOPA's DNS censorship can be defeated, however, doesn't mean the bill won't damage the Internet. Engineers have been warning Congress that monkeying with DNS will make it impossible to implement DNSSEC, a new DNS protocol designed to