Important First Amendment ruling

Recently there has been a spate of events where police have prevented ordinary people from recording them and even public meetings of congresspeople.

In a ruling on Friday, the First Circuit Court of Appeals has now said that such prohibitions violate the First Amendment.

Simon Glik was arrested for using his cell phone’s digital video camera to film several police officers arresting a young man on the Boston Common. The charges against Glik, which included violation of Massachusetts’s wiretap statute and two other state-law offenses, were subsequently judged baseless and were dismissed. Glik then brought this suit under 42 U.S.C. § 1983, claiming that his arrest for filming the officers constituted a violation of his rights under the First and Fourth Amendments.

In this interlocutory appeal, the defendant police officers challenge an order of the district court denying them qualified immunity on Glik’s constitutional claims. We conclude, based on the facts alleged, that Glik was exercising clearly-established First Amendment rights in filming the officers in a public space, and that his clearly-established Fourth Amendment rights were violated by his arrest without probable cause.
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It is firmly established that the First Amendment’s aegis extends further than the text’s proscription on laws “abridging the freedom of speech, or of the press,” and encompasses a range of conduct related to the gathering and dissemination of information. As the Supreme Court has observed, “the First Amendment goes beyond protection of the press and the self-expression of individuals to prohibit government from limiting the stock of information from which members of the public may draw.” First Nat’l Bank v. Bellotti, 435 U.S. 765, 783 (1978); see also Stanley v. Georgia, 394 U.S. 557, 564 (1969) (“It is . . . well established that the Constitution protects the right to receive information and ideas.”). An important corollary to this interest in protecting the stock of public information is that “[t]here is an undoubted right to gather news ‘from any source by means within the law.'” Houchins v. KQED, Inc., 438 U.S. 1, 11 (1978) (quoting Branzburg v. Hayes, 408 U.S. 665, 681-82 (1972)).

The filming of government officials engaged in their duties in a public place, including police officers performing their responsibilities, fits comfortably within these principles. Gathering information about government officials in a form that can readily be disseminated to others serves a cardinal First Amendment interest in protecting and promoting “the free discussion of governmental affairs.” Mills v. Alabama, 384 U.S. 214, 218 (1966). Moreover, as the Court has noted, “[f]reedom of expression has particular significance with respect to government because ‘[i]t is here that the state has a special incentive to repress opposition and often wields a more effective power of suppression.'” First Nat’l Bank, 435 U.S. at 777 n.11 (alteration in original) (quoting Thomas Emerson, Toward a General Theory of the First Amendment 9 (1966)). This is particularly true of law enforcement officials, who are granted substantial discretion that may be misused to deprive individuals of their liberties. Cf. Gentile v. State Bar of Nev., 501 U.S. 1030, 1035-36 (1991) (observing that “[t]he public has an interest in [the] responsible exercise” of the discretion granted police and prosecutors). Ensuring the public’s right to gather information about their officials not only aids in the uncovering of abuses, see id. at 1034-35 (recognizing a core First Amendment interest in “the dissemination of information relating to alleged governmental misconduct”), but also may have a salutary effect on the functioning of government more generally, see Press-Enter. Co. v. Superior Court, 478 U.S. 1, 8 (1986) (noting that “many governmental processes operate best under public scrutiny”).

In line with these principles, we have previously recognized that the videotaping of public officials is an exercise of First Amendment liberties. (All emphases mine)

This is an important blow against the repressive use of the state apparatus.

The shape of things to come

I tend to be generally optimistic about progress in almost all areas of life. For example, I think we are making progress on important areas of social values. We have seen huge improvements in attitudes on race and gender and it is only a matter of a short time before equal rights for gays will also be taken for granted. The rights of animals are also increasingly being respected. Compared to even just a century ago, we have made tremendous advances in expanding the circle of those we think worthy of treating justly.

On the religious front too, the prognosis is good. I think the decline of religion is irreversible. We may never be able to eliminate religion completely but relegating it to irrelevancy is likely although that will take time and pockets of religious fervor will continue to exist. I think that religion will end up like astrology, something that never goes away but becomes largely harmless, with those who take it seriously being looked upon with amused indulgence.

When it comes to the environment, I have mixed feelings. While there is some serious concern about the degradation we have caused, I think that there is still hope that it can be turned around and that we have not passed the point of no return.

The one exception to this generally sunny outlook is when I turn my gaze to the economic and political situation in the US. Here I think the future looks very bleak indeed and I see nothing but disaster in store. The rapacious looting by the oligarchy, the domestic war being waged to further impoverish the poor and middle class, the interminable and multiplying foreign wars (Iraq, Afghanistan, Yemen, Somalia, Libya, the semi-war in Pakistan, and possible soon-to-be wars in Iran and Syria), coupled with a political system that seems increasingly disconnected from reality, have created the conditions for collapse.

The US ruling class elite are in a state that is typically found during the last gasp of an empire: greedy, wasteful, bloated, hypocritical, contemptuous of the needs and feelings of the mass of people, arrogant in its view that its military supremacy will enable it to meet all challenges, and unmindful of the rot that is eating away at the foundations of the republic

I occasionally get the question as to what we should do to reverse this trend. To be quite honest, I don’t know that we can. I feel like we are on a massive ocean liner headed straight towards a reef. Although the speed does not seem to be that great, the sheer momentum of the massive vessel is such that there is nothing that can be done to stop or reverse its direction in time before the crash occurs, even assuming that the people on the bridge commanding the vessel (i.e., the oligarchs) want to do so. The only thing to be done is to alert people so that they can brace themselves for the impact and prepare them to start anew picking up the pieces and repairing the damage.

What form the crash will take and what the fallout from the crash will be is something that I cannot foresee, just as I cannot predict what will emerge from the rubble. Post-collapse situations, like post-revolutionary ones, are highly unpredictable and their direction can be swayed by relatively minor events. What we can say for sure is that many people are going to be hurt.

When the crash will occur is also hard to predict. What keeps civilized societies functioning is the social compact that persuades people to voluntarily obey certain norms of behavior with the expectation that others will too. When that compact is seen as being ignored with impunity by some people, you breed general contempt for the norms and open the door to chaos. When people see how the ruling class loots in open contempt of the general expectation of having responsibility for the greater good, they begin to wonder why they should subject themselves to those norms. The symptoms of impending trouble are a rising level of social unrest consisting of grumblings, protests, demonstrations, strikes, vandalism, and even rioting as people begin to realize how bad things are, how bleak their own futures are, and start to take the law into their own hands.

The warning signs are so obvious that I cannot believe that the oligarchy and its political and media lackeys do not see them. I think they do, which is why the looting has reached such reckless levels. In the excellent documentaries Enron: The Smartest Guys in the Room (2006) and Inside Job (2010) you see the top people on the inside realizing that the situation is unstable and too far gone to remedy, that the crash is coming, and trying to make as much money as possible and escape while they can, destroying the lives of millions of people in the process. It would be a big mistake to think that the corruption was confined to just the institutions depicted in the films. They are merely indicators of a rot writ large.

In watching the Enron documentary, what struck me was that the key perpetrators of that fraud were actually prosecuted, convicted, and sent to jail. Chairman Ken Lay (a close friend of the Bush family) was found guilty in 2006 and faced 20 to 30 years in prison but died before sentencing. Chief Executive Office Jeffrey Skilling was sentenced to 24 years in jail and fined $45 million. Chief Financial Officer Andrew Fastow was sentenced to six years in prison and fined.

Those were the good old days. It seems so quaint that at one time people actually went to jail for major financial crimes. The oligarchy soon put a stop to that nonsense. Now they control the government and the regulatory agencies so thoroughly that no one risks going to jail for using their big institutions to enrich themselves at the expense of others. Despite the massive scale of malfeasances during the financial debacle of 2008, as far as I am aware not a single person went to prison. The only people who are prosecuted are relative small-timers like Bernie Madoff who make the mistake of swindling other rich people.

We now have a class of people who seem to believe that they have immunity from any legal consequences for their financial actions. That should tell us all we need to know about how bad the situation is.

The Bush-Obama presidency

David Bromwich, a professor of literature at Yale, argues that there is a remarkable continuity between the Bush and Obama presidencies. He repeats the warning that I have made earlier, that Obama and the Democrats are in fact more dangerous to the fortunes of the not-wealthy than the Republicans were.

In these August days, Americans are rubbing their eyes, still wondering what has befallen us with the president’s “debt deal” — a shifting of tectonic plates beneath the economy of a sort Dick Cheney might have dreamed of, but which Barack Obama and the House Republicans together brought to fruition. A redistribution of wealth and power more than three decades in the making has now been carved into the system and given the stamp of permanence.

Only a Democratic president, and only one associated in the public mind (however wrongly) with the fortunes of the poor, could have accomplished such a reversal with such sickening completeness.
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A certain mystery surrounds Obama’s perpetuation of Bush’s economic policies, in the absence of the reactionary class loyalty that accompanied them, and his expansion of Bush’s war policies in the absence of the crude idea of the enemy and the spirited love of war that drove Bush. But the puzzle has grown tiresome, and the effects of the continuity matter more than its sources.

Bush we knew the meaning of, and the need for resistance was clear. Obama makes resistance harder. During a deep crisis, such a nominal leader, by his contradictory words and conduct and the force of his example (or rather the lack of force in his example), becomes a subtle disaster for all whose hopes once rested with him.

Bromwich looks in detail at which advisors the president likes to keep and which ones he is quick to jettison and sees a pattern that points to Obama’s willing complicity in the looting by the oligarchy.

Meanwhile Glenn Greenwald argues that the increasing surveillance powers that the US and UK governments have developed to spy on and monitor their own citizens is because they are afraid of the growing anger among their populations at the fact that most people are being marginalized while a very few are doing well. The governments will need this information to crack down on possible mass protests in the future.

This year, the Obama administration began demanding greater power to obtain Internet records without a court order. Meanwhile, the Chairwoman of the DNC, Rep. Debbie Wasserman-Schultz, is sponsoring a truly pernicious bill that would force Internet providers “to keep logs of their customers’ activities for one year.” And a whole slew of sleazy, revolving-door functionaries from the public/private consortium that is the National Security State — epitomized by former Bush DNI and current Booz Allen executive Adm. Michael McConnell — are exploiting fear-mongering hysteria over cyber-attacks to justify incredibly dangerous (and profitable) Internet controls. As The Washington Post‘s Dana Priest and William Arkin reported in their “Top Secret America” series last year: “Every day, collection systems at the National Security Agency intercept and store 1.7 billion e-mails, phone calls and other types of communications.” That is a sprawling, out-of-control Surveillance State.

One must add to all of these developments the growing attempts to stifle meaningful dissent of any kind — especially civil disobedience — through intimidation and excessive punishment. The cruel and degrading treatment of Bradley Manning, the attempted criminalization of WikiLeaks, the unprecedentedly harsh war on whistleblowers: these are all grounded in the recognition that the technology itself cannot be stopped, but making horrific examples out of those who effectively oppose powerful factions can chill others from doing so.

There is already a lot of anger in the US. This is often taking inchoate forms and directed at the wrong targets out of ignorance (the Tea Party is a good example of this) but the ruling class cannot depend on that happy state of affairs continuing forever.

The escalating war on the poor

The ruling class and their media lackeys do not even make an attempt anymore to hide their contempt for the poor and their desire to crush them completely. If they keep this up, who knows what will happen.

Part 1:

Part 2:

How John McCain destroyed the Republican party (and Tim Pawlenty)

When the history of the Republican party is written, John McCain will have to share the brunt of the blame for its demise, and the central piece of evidence will be his choice of Sarah Palin as his running mate in 2008. To support this contention, I am going to indulge myself with a highly self-referential post.

I wrote on September 3, 2008, soon after he announced her selection:

Someone once said that the most common last words expressed by reckless men before they do something stupid is: “Hey guys, watch this!” The McCain decision strikes me as exactly one of those ideas, something that looks bold and daring and exciting in the heat of a brainstorming session where a few people are trying to “think outside the box” and make a stunning impression, but where all the negatives only show up in the cold light of day. It is then that you realize that there is a very thin line separating ‘thinking outside the box’ from ‘being out of your mind’.

I think that this decision is going to haunt McCain. His and her ardent supporters are trying to put on a good face and saying that this move is a ‘game changer’. I think they are right but not in a good way for him. It risks changing a narrow race into a blowout victory for Obama.

And so it turned out.

I believe that the seeds of Tim Pawlenty’s failure as a presidential candidate were also planted by that same event. As I wrote a few days after the 2008 election:

On election night, Minnesota governor Tim Pawlenty, one of the reported four finalists to be McCain’s running mate, was interviewed just after Obama had become elected. I knew the others in the running (Joe Lieberman and Tom Ridge) and I could see why the campaign might not be excited about them, since they both seemed kind of dull and stodgy, not adding much to McCain’s appeal. But I had never seen Pawlenty before and he seemed to me to have many of Palin’s positives (youth and energy and ideology) without all of her obvious negatives.

Pawlenty spoke fluently and well about the issues that drove the campaign, and graciously about Obama. Furthermore he is an evangelical Christian and is solidly in step with their anti-abortion, anti-gay agenda, although in the early 1990s he was not quite as hard-line. As he spoke, I became increasingly mystified as to why McCain had overlooked him for Palin.

But while being the vice-presidential candidate in 2008 would undoubtedly have helped Pawlenty in 2012, it was not being overlooked that hurt him so badly. The real problem was that the Palin selection opened a Pandora’s box within the Republican party, releasing furies that have divided the party and in the process destroyed his presidential hopes. As I predicted in November 2008:

This is where the battle lines are going to be drawn within the Republican party. What is happening now is that the culture wars that were used in the fights against Democrats is becoming a weapon to be used within the Republican Party, to determine who the ‘real Republicans’ are. The Southern strategy tactics of dividing the country on cultural issues that worked so well for the Republicans on the national level for nearly four decades, has now suddenly turned in on itself and is being used to divide up the party internally in order to see who will lead it and in what direction it will go.

This is why the jockeying for leadership within the Republican party will be interesting to watch, as various candidates try to keep their names in the public eye while at the same time trying to gauge which way the wind is blowing.
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Minnesota governor Tim Pawlenty, who was short-listed as a possible vice-presidential candidate, might serve the bill. He seems to have the required positions on social issues such as abortion, gay rights and stem-cell research, though he does not seem to flaunt his religion, perhaps because of that famous Minnesota reserve.

But earlier in his career he had softer stands on abortion and stem-cell research and supported anti-discrimination laws against gays. He is also one of the few evangelicals to support actions to combat global warming, and these will hurt him with the true believers.

While Pawlenty should be acceptable to the social values base of the party, it is not clear if he gives out that special frequency signal that only true believers can hear that enables them to identify those who are truly one of them and thus support them enthusiastically.

We now know the answer to that last question: No. For Michele Bachmann, the answer is yes.

The final nail that McCain drove into the Republican party coffin is that by putting one of their own into the running mate slot, he gave the social base their first real taste of power. Until then, they had been successfully manipulated by the Republican leadership into delivering their votes and energy to the establishment candidates the party chose, while being kept out of leadership positions. That changed in 2008. As I wrote in July 2009:

The old-style conservatives seem to have been routed and are even more marginalized than before. At this stage, they look like people unhappy with what the Republican Party has become and not sure if they can bring it back to what they see as sanity or whether it is hopelessly under the control of nutcases and they need to look for a new home.
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The second group [the rank-and-file social values base for whom guns, gays, abortion, stem-cell research, flag, religion, homosexuality, and immigration are the main concerns] has not grown larger but has grown more militant. It is digging in its heels and demanding to be in the party leadership and will not go back to their former role as mere foot soldiers. This group has always been made use of by their party leaders but never given a real shot at leadership. McCain’s choice of Palin changed that. For the first time, they felt that one of their own was close to the driver’s seat and they are not returning to the back of the bus.

And so it has turned out. We saw the rise of the Tea Party as the manifestation of this phenomenon. We now see candidates for the nomination swearing fealty to the most extreme positions of this group. It seems obvious that the Republican party establishment is worried that they have lost control of their party’s agenda to a bunch of loonies. Republican David Frum has been quite harsh about the direction his party has taken, and the desperate search for a ‘savior candidate’ (Paul Ryan or even people like Chris Christie and Mitch Daniels who have been emphatic about not seeking the nomination) are further symptoms of this unease.

The oligarchy cannot be happy about this development. They need both party leaderships to be smooth manipulators of the system who can deliver the fiscal and economic policies that enrich them under cover of the noise generated by extreme social policies, so that whichever party wins, the oligarchy’s interests are advanced. They are not social issues ideologues that believe in the crazy policies and slogans that are used to inflame voters, particularly at election time. As the process moves forward, it will be interesting to see how the oligarchs try to shoot down the candidates they dislike and advance the candidacies of ‘sensible’ people like Romney or Huntsman.

This is the headache that John McCain created for the Republican party with his impulsive and ill-thought out decision in 2008.

Ron Paul, Gary Johnson, and the media narrative

The Daily Show had an excellent piece on the extreme lengths that the media have gone to in ignoring Ron Paul’s candidacy for the Republican nomination, that reached comical levels following his near tie with Michele Bachmann in the Ames straw poll.

Glenn Greenwald points out that both Paul and former two-term New Mexico governor Gary Johnson have been effectively declared non-persons and makes the persuasive case that this is because neither of them fit into the pre-ordained media narrative because of their stances on war and civil liberties.

[W]hat makes the media most eager to disappear Paul is that he destroys the easy, conventional narrative — for slothful media figures and for Democratic loyalists alike. Aside from the truly disappeared former New Mexico Governor Gary Johnson (more on him in a moment), Ron Paul is far and away the most anti-war, anti-Surveillance-State, anti-crony-capitalism, and anti-drug-war presidential candidate in either party. How can the conventional narrative of extremist/nationalistic/corporatist/racist/warmongering GOP v. the progressive/peaceful/anti-corporate/poor-and-minority-defending Democratic Party be reconciled with the fact that a candidate with those positions just virtually tied for first place among GOP base voters in Iowa? Not easily, and Paul is thus disappeared from existence. That the similarly anti-war, pro-civil-liberties, anti-drug-war Gary Johnson is not even allowed in media debates — despite being a twice-elected popular governor — highlights the same dynamic.
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GOP primary voters are supporting a committed anti-war, anti-surveillance candidate who wants to stop imprisoning people (disproportionately minorities) for drug usage; Democrats, by contrast, are cheering for a war-escalating, drone-attacking, surveillance-and-secrecy-obsessed drug warrior.

Greenwald also makes the important point is that the media pouring so much resources into covering the trivialities of politics during the interminably long election cycle (now lasting 18 months) means that government can act without much scrutiny during that time.

NPR’s Talk of the Nation on the Monday following the straw poll, devoted a large segment of their program to discussing the candidacies of Michele Bachmann and Rick Perry, showing that they follow the media herd as well. They had to fend off questions from annoyed listeners as to why they were ignoring Paul. The host’s weak response was that they were focusing on the ‘new’ people who were getting the ‘buzz’ and that Paul did not fit the category.

Justin Raimondo also looks at what the media silence on Paul’s candidacy says about their agenda, and how the very brazen way in which they are deliberately ignoring Paul is now becoming a story in itself.

The media’s refusal to report Paul’s growing support, beyond grudging acknowledgement that he’s come in from “the fringe,” reflects its institutional bias in favor of the right-left red-blue narrative that has, up until now, dominated American politics, and in which so much of the news industry is heavily invested. This narrative doesn’t allow for any significant deviations, and certainly not on the presidential level: all must submit to its tyranny, in spite of its archaic and increasingly obstructionist character. What it obstructs is any meaningful challenge to the functioning of the Welfare-Warfare State. If one party is in power, welfare is given more weight than warfare, if the other takes the throne, then welfare is given the axe. In any case, these two aspects of the modern American state are inextricably intertwined, as “defense” spending in the age of empire becomes just another dollop of pork to be ladled out to corporate and political interests – and welfare becomes a way to keep the disgruntled quiescent in wartime.

Think of the media as the Greek chorus to the two “majors,” with different media actors cheerleading one party and razzing the other – but never straying outside the bounds of the red-blue narrative, with its rigid definitions and litmus tests. This mindset is encoded in the two-party system, and institutionalized in our ballot access laws, which privilege the two “major” parties – the very same two parties that have led us down the path to endless war and imminent bankruptcy, and are now running away from their dual responsibility for the present crisis.

Roger Simon also thinks that Paul is getting shafted and finds some telling clues about how political narratives are structured.

There was a deliciously intriguing line in The Washington Post‘s fine recap of Ames on Sunday. It said had Paul edged out Bachmann, “it would have hurt the credibility and future of the straw poll, a number of Republicans said.”

So don’t blame the media. Here are Republicans, presumably Republican operatives, who said if one candidate wins, the contest is significant, but if another wins the contest is not credible.

I myself have mixed feelings about Ron Paul. I like the fact that he opposes all these wars that the US is waging and the militarization of foreign policy and his civil libertarian and anti-Wall Street stances. I dislike his positions on some social issues, find his desire to eliminate almost all of government too extreme, and do not understand economics well enough to confidently judge his desire to return the US to the gold standard. But there is no doubt that he is far and away the candidate who discusses the issues most substantively and not in clichés and sound bites aimed at pandering to the base. He undoubtedly elevates the level of political debate. But that is another reason for the media to ignore him. It would require them to actually talk about monetary and foreign policy and other boring stuff. It is much easier and way more fun to talk about Michele Bachmann’s husband or Sarah Palin’s latest publicity-seeking stunt or Rick Perry’s swagger.

I hope that Paul does well if for no other reason than to have the smug condescending looks of the media establishment wiped off their faces.